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United States v. Fuentes

United States District Court, E.D. Washington

October 31, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
OMAR ALARCON FUENTES, Defendant.

ORDER - (1) DENYING THE DEFENDANT'S REVISED DISCOVERY REQUEST, (2) GRANTING AND DENYING THE DEFENDANT'S MOTIONS IN LIMINE, AND (3) GRANTING THE DEFENDANT'S REQUEST FOR SEPARATE TRIALS

FRED VAN SICKLE, District Judge.

THIS MATTER comes before the Court without oral argument based Omar Fuentes Alarcon's revised discovery request, his motions in limine, and his request for separate trials. Mr. Fuentes is represented by Philip E. Nino. The United States is represented by Assistant United States Attorney George J. C. Jacobs, III.

BACKGROUND

Omar Fuentes Alarcon ("Omar Fuentes") is named as a defendant in three pending indictments. In CR-13-125-FVS-2, he is charged with one count of distribution of a controlled substance. 21 U.S.C. § 841(a)(1). In CR-13-132-FVS, he is charged with unlawfully reentering the United States after removal. 8 U.S.C. § 1326. In CR-14-2071-FVS, he is charged with possessing ammunition despite being unlawfully in the United States. 18 U.S.C. § 922(g)(5)(A).

ALLEGEDLY ILLEGAL PRESENCE

Mr. Fuentes allegedly is a citizen of Mexico. He objects to the admission of any evidence in CR-13-125-FVS-2 indicating he is illegally in the United States. That is not all. Cause number 13-125 (§ 841(a)(1)) and cause number 13-132 (§ 1326) are scheduled to be tried together on December 1, 2014. Mr. Fuentes asks the Court to try 13-125 (the drug-trafficking case) as scheduled on December 1, 2014, but to continue 13-132 (unlawful reentry after removal) until a date during March of 2015 and to combine it for trial with 14-2071-FVS (illegal alien in possession of ammunition).

Ruling:

The requests set forth above are granted. Cause number CR-13-125-FVS-2 shall be tried separately from cause numbers CR-13-132-FVS and CR-14-2071-FVS. During the trial of cause number CR-13-125-FVS-2, the United States shall refrain from alleging Mr. Fuentes is a citizen of Mexico. Cause number CR-14-2071-FVS shall be tried in Spokane, Washington, with cause number CR-13-132-FVS. A new trial date will be set in due course.

VIOLENT GANGS

Mr. Fuentes was investigated and, ultimately, arrested by members of a drug task force. He objects to the admission of any testimony indicating the members of the drug task force are responsible for investigating violent gangs or gang violence.

Ruling:

This request is granted.

EXISTENCE OF FORFEITURE ACTION

Mr. Fuentes objects to the admission of any testimony indicating the United States has instituted any type of forfeiture action with respect to property that was seized from him.

Ruling:

This request is granted.

PLEA AGREEMENTS

Henry Bevans was Mr. Fuentes's codefendant. Mr. Bevans has pleaded guilty, and he is serving a prison sentence. Mr. Fuentes objects to the admission of Mr. Bevans' plea agreement.

Ruling:

This request is granted.

TESTIMONY BY HENRY BEVANS

If Henry Bevans testifies, Mr. Fuentes objects to the admission of any testimony indicating he promised, as part of his plea agreement, to testify truthfully.

Ruling:

This request is granted.

DRUG CARTELS

Mr. Fuentes objects to the admission of any testimony describing the operations of foreign drug-distribution cartels.

Ruling:

This request is granted.

CONDUCT OF GUSTAVO MARTINEZ

Gustavo Martinez is the brother-in-law of Mr. Fuentes. Mr.

Martinez allegedly contacted Henry Bevans on July 24, 2013. After Mr. Martinez left Mr. Bevans' place, Mr. Martinez allegedly threw a package out of the window of his car. Mr. Fuentes objects to the admission of any testimony regarding Mr. Martinez' alleged conduct on the 24th.

Ruling:

This request is granted.

TWO POUNDS OF MARIJUANA

Mr. Fuentes objects to the admission of any testimony indicating officers found two pounds of marijuana during the search of his residence on July 25, 2013.

Ruling:

This request is granted.

TEXT MESSAGES

As explained in more detail in a separate order, a confidential informant ("CI") contacted Henry Bevans in a motel room on July 18, 2013. Mr. Bevans allegedly was waiting for his supplier to arrive. The CI's contact with Mr. Bevans was being surveilled by law enforcement officers. The CI sent a number of text messages to an officer prior to and during the CI's contact with Mr. Bevans. The United States has attached the disputed text messages to ECF No. 110 as Exhibit 1.

A. Description of Text Messages

The messages are displayed on 12 screens. The following provides a sense of the content of the messages; it is not intended to be an exhaustive recitation:

Screen 1
Hause: My ass is tired and I need my beauty sleep... cuz my ass is getting up at the ass crack of dawn to get what I need done to make this happen... call if its an EMERGENCY... text any important updates. I likely won't respond cuz' I'm sleeping... see you in the morning.
CI: Fore sure.
CI: My phone is only texting; my bill didn't get paid so u ...

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