United States District Court, W.D. Missouri, Western Division
REPORT AND RECOMMENDATION
W. HAYS UNITED STATE MAGISTRATE JUDGE
January 8, 2019, defendant Nayeli Fuentes-Verdugo, along with
co-defendants Omar Eliseo Barraza-Bueno, Alfredo
Soto-Contreras, Rey Moreno-Chepe, and Daniel Calderon-Varga,
was charged in a twenty-five count Indictment. (Doc. # 27).
Defendant Nayeli Fuentes-Verdugo is charged in the Indictment
with three criminal counts: (1) Conspiracy to Distribute
Methamphetamine; (2) Aiding and Abetting Possession with
Intent to Distribute Methamphetamine; and (3) Aiding and
Abetting Distribution of Methamphetamine. Defendant has pled
not guilty to the charges.
matter currently before the Court is defendant Nayeli
Fuentes-Verdugo's Motion to Dismiss Due To Outrageous
Government Conduct, With Suggestions. (Doc. #56). Defendant
contends that the government engaged in outrageous conduct
and violated her due process rights when it created a drug
sting operation that resulted in her being targeted and
criminally charged. (Doc. # 56). In opposition, the
government maintains that during the sting operation, which
involved the sale of twenty-five pounds of methamphetamine
from defendants to the government's undercover agent, the
government took no actions that even approached the threshold
for finding outrageous government conduct. (Doc. # 69).
reasons set forth below, the Court finds that a hearing on
the motion is not necessary and it is recommended that
defendant Nayeli Fuentes-Verdugo's motion to dismiss be
FACTUAL BASIS FOR DEFENDANT'S MOTION
motion to dismiss is based upon the following factual
1. Relying upon discovery provided by the government, it is
alleged that, sometime before June of 2018, Federal law
enforcement authorities set up an elaborate sting operation
based in a warehouse somewhere in the Kansas City area. Where
this warehouse is located is a secret being protected to this
date. Federal agents and informers posed as illegal drug and
gun distribution kingpins and sought to make fake deals for
purchase of large quantities of drugs and guns from any and
all comers. Substantial efforts were made to record each such
sting transaction. When possible, transactions were conducted
at the warehouse. There, sophisticated recording systems,
consisting of multiple cameras directed at different angles,
and sensitive microphones, were stationed to memorialize
activities outside, at the entrance to the warehouse, and
inside the building, both in a large open area, and also in
an office. When activities occurred away from the warehouse
site, multiple recording devices were employed, including
body cams and mics on the undercover agents, and remote
cameras and mics employed by supporting surveillance teams.
2. Beginning in June of 2018, a series of fifteen sting
interactions occurred involving, primarily, Alfredo
Soto-Contreras (Named Defendant #1), and Omar Eliseo
Barraza-Bueno (Named Defendant #2). These interactions
consisted of the undercover agent paying money to these men
for guns and drugs they delivered to him, and also the
undercover agent planning with these defendants for the
defendants to sell to the agent a large amount of
methamphetamine, originally projected to be upwards of 100
pounds, but ultimately scaled back to 25 pounds.
3. Nayeli Fuentes-Verdugo is the wife of defendant
Barraza-Bueno. Ms. Verdugo is a Mexican national who has
legally lived and worked in the Bakersfield, California area
for many years. During a lull in her work schedule, Ms.
Fuentes-Verdugo traveled to the Kansas City area to visit her
husband, defendant Barraza-Bueno, who was staying here.
Though Ms. Fuentes-Verdugo has lived in the United States for
a considerable period of time, she only speaks and
understands her native Spanish language.
4. Shortly after Ms. Fuentes-Verdugo arrived in the Kansas
City area, three interactions occurred between the undercover
agent and defendant Barraza-Bueno, on December 10, 2018 at
her husband's home in Kansas City, Kansas, on December
17, 2018 at Elvira's Restaurant on Independence Avenue in
Kansas City, Missouri, and on December 18, 2018 at the
undercover sting warehouse. On each occasion, Ms.
Fuentes-Verdugo was present, at the home in Kansas City,
Kansas because she was staying there, and at Elvira's and
the warehouse because she was brought there either by
Barraza-Bueno or by Daniel Calderon-Vargas, another
codefendant. On each of the three occasions, English language
discussions about guns and drugs were engaged between the
undercover agent and defendant Barraza-Bueno. On December 17,
at the instance of the undercover agent, it was discussed
that, instead of monies for drugs being paid directly to
Barraza-Bueno, as had been the practice in all previous
transactions, the monies for the anticipated December 18
transaction would supposedly be paid to Ms. Fuentes-Verdugo.
This conversation was never directed to Ms. Fuentes-Verdugo,
and was never translated from English to Spanish.
5. During all three interactions, any reasonable person would
have taken note that Ms. Fuentes-Verdugo could not understand
the English language conversations going on around her.
6. On December 18, a passenger car, driven by a codefendant,
arrived at the undercover warehouse. Approximately 25 pounds
of methamphetamine was contained in the trunk of that car.
Shortly thereafter, defendant Barraza-Bueno arrived in a
separate vehicle. The undercover agent inquired why others,
including Ms. Fuentes-Verdugo, were not present, and was
informed that the others were elsewhere eating breakfast. The
undercover officer refused to carry on with the transaction,
and insisted that the others be present before he would
continue. A call was made, directing that the others,
including Ms. Fuentes-Verdugo, present themselves at the
warehouse. About fifteen minutes later, a pickup truck
arrived at the warehouse, driven by defendant Daniel
Calderon-Vargas, with Ms. Fuentes-Verdugo as a passenger.
Defendant Calderon-Vargas got out of the truck and went
inside the warehouse, but Ms. Fuentes-Verdugo remained in the
truck. At that point, the undercover agent ordered that
defendant Calderon-Vargas have Ms. Fuentes-Verdugo come into
the warehouse. Per that direction, defendant Calderon-Vargas
waved to Ms. Fuentes-Verdugo to come into the warehouse, and
she complied with that direction which was initiated by the
undercover officer. The drugs, which had arrived much
earlier, were then taken out of the car, and weighed. A
couple of minutes after that, the undercover officer got out
of harm's way, and heavily armed officers, who had
secreted themselves in another part of the warehouse, stormed
in, and placed all of the codefendants under arrest.
(Doc. # 56 at 1-5).
government's opposition to the motion to dismiss
contained the following factual statements:
1. On December 17, 2018, an undercover agent with ATF (UC),
and four of the members of the indicted drug conspiracy
(including Defendant Fuentes-Verdugo) sat in a restaurant and
made arrangements for the sale of 25 pounds of
methamphetamine (the defendants selling to the UC) to take
place the next day. After the sale, the defendants were to
travel in caravan with the UC to Chicago so the UC could sell
to another party (this was a rouse). In confirming the
logistics of the transaction with Defendant Barraza-Bueno, it
was established that everyone would be arriving at an
agreed-upon location for the sale, but that only three would
be continuing to Chicago. During that discussion, the UC and
Barraza-Bueno engaged in the following exchange:
UC: She's staying here? (referring to Defendant
B-B: She's gonna stay here.
UC: So, she's coming down, she's taking ...