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United States v. Fagot-Maximo

United States District Court, E.D. Virginia, Alexandria Division

May 23, 2019




         This matter comes before the Court on Defendant's Motion to Set Aside the Verdict and Grant a New Trial. Dkt. No. 256. The Motion is fully briefed and the Court heard oral argument on May 9, 2019. For the following reasons, the reasons stated from the bench, and good cause shown the Motion is denied.

         I. Background

         In October 2015, Defendant, Arnulfo Fagot-Maximo, and five co-conspirators were charged in a single count indictment with conspiring to distribute cocaine for importation into the United States. All co-conspirators charged in the indictment were members and associates of the Montes-Bobadilla drug-trafficking organization (Montes DTO).

         During a five-day trial, lasting from November 27 to November 30, 2018, nine cooperating witnesses testified to Defendant's role in the conspiracy. Two of these witnesses were Luis Valle and Miguel Valle. The witnesses described how Defendant and his organization received shipments of cocaine, which each could total hundreds or thousands of kilograms, directly from Colombian suppliers. The shipments arrived at Defendant's property in La Mosquitia, a remote region in northeastern Honduras. The evidence presented at trial also showed how Defendant worked with the Montes DTO and others to transport the cocaine through Honduras so it could reach its ultimate destination, the United States. After deliberating the jury found Defendant guilty of conspiring to distribute five kilograms or more of cocaine, knowing or intending that the cocaine would be imported to the United States.

         Defendant bases his present Motion on three main arguments - that the Court erred in its pretrial rulings, that posttrial disclosures by the Government amount to Brady violations, and that the Court erred in declining to provide a copy of the indictment to the jury to use in its deliberations.

         Prior to trial, Defendant moved three times to compel the government to disclose the identities of cooperating sources. Dkt. Nos. 60, 122, 147. The Court denied the first two motions because Defendant was not specific enough in his requests for information. In his third motion, Defendant narrowed his request to asking the government to reveal the identities of, or make available to testify, fourteen cooperating sources.

         At a hearing on the third motion, the Court ordered Defendant to furnish the investigative reports that defense counsel claimed contained exculpatory information and ordered the government to submit an ex parte submission with identifying information about the sources. After reviewing these submissions, the Court determined the reports did not contain exculpatory information and the disclosure of the confidential sources' identities would put both them and their families at risk for their lives. For these reasons, the Court denied the motion.

         After trial, on January 31, 2019, the government filed a notice with the Court informing the Court that it had recently discovered a letter written May 6, 2015 that was relevant to the case and had produced the letter to Defendant. The letter was written by a prosecutor who had formerly worked on the case, but who had since left the office. In the letter, the prosecutor wrote to inform officials at the Alexandria Detention Center that Miguel Valle and Luis Valle were abusing their telephone privileges. The letter explained,

Specifically, after reviewing draft summary translations of a portion of their Spanish-language jail calls for the period of December 18, 2014 to April 6, 2015, recordings of which we obtained pursuant to subpoena, we are concerned that these two defendants appear to be using jail phones to: (1) communicate threats; (2) conduct drug-trafficking and trafficking-related business, including selling and moving drugs and collecting debts; (3) circumvent jail phone protocols by conducting three-way calls and by contacting associates overseas by dialing U.S. telephone numbers that somehow route directly to persons located overseas; and (4) circumvent jail phone protocols by using another prisoner's pin code to make calls.

Dkt. No. 264, Ex. O.

         On the same day the government filed its notice with the Court regarding the recently discovered letter it also emailed defense counsel a copy of an agent's rough notes from an interview with Miguel Valle. The government had previously produced to Defendant the final DEA-6 of the interview, but not the rough notes. The government produced these rough notes because of a discrepancy between their contents and Miguel Valle's testimony at trial. In his testimony at trial, Miguel Valle described how Defendant had introduced Miguel Valle to El Cinco, a Colombian drug trafficker. However, the rough notes of Miguel Valle's interview stated "El Cinco introduced [Defendant] to [Miguel Valle]." The government informed defense counsel that after conferring with the agents involved in the interview it was unclear whether this was a mistranscription of what Miguel Valle said or a misstatement by Miguel Valle.

         Defendant argues in his Motion a new trial is warranted because the Court erred in not disclosing information about the cooperating sources, because the government's posttrial disclosures regarding the Valles constitute Brady violations, and ...

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