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United States v. Fuentes-Verdugo

United States District Court, W.D. Missouri, Western Division

July 17, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
NAYELI FUENTES-VERDUGO, Defendant.

          ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DENYING DEFENDANT'S MOTION TO DISMISS

          BETH PHILLIPS, CHIEF JUDGE.

         Pending is Defendant's motion to dismiss due to outrageous government behavior. (Doc. 56.) On May 10, 2019, the Honorable Magistrate Judge Sarah W. Hays issued a report and recommendation that the Court deny Defendant's motion to dismiss. (Doc. 92.) The Court has reviewed the record de novo and agrees with the recommendations of Judge Hays. Defendant's motion to dismiss is DENIED.

         I. BACKGROUND

         The Court adopts the reports and recommendation in its entirety, including its recommended findings of fact. In summary, the Government conducted an undercover operation in which federal agents sought to purchase large quantities of drugs and guns from various individuals. Defendant Nayeli Fuentes-Verdugo is the wife of Omar Eliseo Barraza-Bueno, who was also charged in this drug conspiracy. (Doc. 92, ¶ 3.) Defendant is a Mexican national who has legally lived and worked in Bakersfield, California. (Id.) Defendant often visited her husband in Kansas City. (Id.) Defendant does not speak English; she only speaks and understands Spanish. (Id.)

         On December 10, 2018, an undercover agent went to the home of Mr. Barraza-Bueno to discuss the sale of twenty-five pounds of methamphetamine. Defendant was present at this meeting because she was staying with her husband at his home in Kansas City. On December 17, 2018, the undercover agent met with several members of the drug conspiracy - including Defendant - to make arrangements for the sale the drugs which was to take place the following day at a warehouse. (Doc. 92, ¶ 4.) During this discussion (which took place in English) the undercover agent suggested - and Mr. Barraza-Bueno agreed - that Defendant would accept payment for the drugs. (Id.) On December 18, 2018, Mr. Barraza-Bueno and other defendants arrived at the agreed-upon warehouse with the twenty-five pounds of methamphetamine to complete the drug transaction. (Id. at ¶ 6.) The undercover officer inquired why other members of the group, including Defendant, were not present and was informed that they were elsewhere eating breakfast. (Id.) The undercover agent refused to continue with the transaction without all members of the group present. (Id.) The others were contacted and arrived at the warehouse shortly thereafter. (Id.) However, Defendant did not enter the warehouse when she arrived, but instead remained in the vehicle. (Id.) At that point, the undercover agent asked that Defendant come inside the warehouse to join the others. (Id.) After Defendant was inside the warehouse and the drugs were weighed, other law enforcement officers entered the warehouse and placed Defendant and the other codefendants under arrest. (Id.)

         Defendant was subsequently charged with conspiracy to distribute methamphetamine and aiding and abetting possession with intent to distribute methamphetamine. (Doc. 1.) On February 19, 2019, Defendant filed a motion to dismiss the indictment due to outrageous government behavior. (Doc. 56.) On May 10, 2019, Judge Hays issued her report recommending that the Court deny Defendant's motion to dismiss. (Doc. 92.) For the following reasons, the Court adopts Judge Hays' Report and DENIES the motion to dismiss.

         II. DISCUSSION

         The Court adopts Judge Hays' recommendation it its entirety; this discussion is meant only to augment her legal analysis.

         Defendant's primary arguments are that Judge Hays made critical mistakes of fact. (Doc. 98, pp. 7-11.) Specifically, Defendant contends that

• Judge Hays belittled Defendant's language barrier by stating that “Defendant maintains” she is unable to understand English and that the conversation between the undercover agent and Mr. Barraza-Bueno at the restaurant took place “in Defendant's presence, ” somehow indicating that Defendant could understand the conversation, (Id. at p. 8),
• Judge Hays incorrectly stated that four members of the conspiracy discussed arrangements for the drug sale, when in reality only Mr. Barraza-Bueno discussed the sale with the undercover agent, (Id.),
• Judge Hays did not consider the fact that, during the conversation at the restaurant, the undercover agent and Mr. Barraza-Bueno did not specify the circumstances of how Defendant was to receive the money, (Id.), and
• Judge Hays mistakenly found that the undercover officer “asked” Defendant to enter the warehouse, when in reality he ordered or commanded the group to come inside. (Id. at 10.)

         The Court does not find Defendant's arguments persuasive for several reasons. First, accepting Defendant's arguments as true, the Court is not convinced that any of Defendant's claims impact the analysis of outrageous government conduct. If anything, Defendant's arguments go to whether Ms. Verdugo was knowingly involved in the conspiracy and not to the outrageousness of the government's actions. Second, several of Defendant's arguments regarding the facts are immaterial. For example, whether the undercover agent spoke with one or four codefendants does not detract from the fact that it was decided Defendant would accept the monies in the transaction. Third, even if Defendant's allegations had any bearing on the analysis of the government's actions, the Court agrees with Judge Hays that the government's conduct was not outrageous because it does not shock the conscience of the Court. Specifically, the undercover agent's behavior in ...


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