United States District Court, D. South Dakota, Southern Division
ORDER DENYING MOTION FOR NEW TRIAL
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Orlando Dones-Vargas, moves for a new trial under Rule 33 of
the Federal Rules of Criminal Procedure. Docket 87.
Specifically, Dones-Vargas alleges that the government failed
to disclose law enforcement payments to a cooperating witness
in violation of Brady v. Maryland, 373 U.S. 83
(1963). See Id. at 7-9. Plaintiff, the United
States, opposes the motion. Docket 91. On June 25, 2018, the
court held an evidentiary hearing on Dones-Vargas's
motion. Docket 96. For reasons that follow, the court denies
the motion for a new trial.
a jury trial on January 29 and 30, 2018, the jury convicted
Dones-Vargas of one count of conspiracy to distribute
methamphetamine and one count of possession with intent to
distribute methamphetamine. Dockets 36, 67. In total, nine
witnesses testified for the government at Dones-Vargas's
trial. See Docket 68 (minutes from trial). Two of
those witnesses were Margaret Ghost and Detective John
Spaeth. Id. at 2-3.
Testimony at Trial
Dones-Vargas's trial, Ghost testified that she was his
long-time girlfriend and that Dones-Vargas was the father of
her four children. Docket 93 at 4-5 (transcript of
Ghost's trial testimony). Ghost further testified that
she and Dones-Vargas dated for over six years. Id.
At the time of trial, Ghost testified that she was being
housed at the Yankton County Jail in Yankton, South Dakota.
Id. at 3. Prior to being housed at the Yankton
County Jail, Ghost was housed at the South Dakota's
Women's Prison in Pierre, South Dakota. Id.
Ghost was in prison because she had violated her parole for a
pair of 2014 convictions. Id.
Ghost's trial testimony was about instances where she
observed Dones-Vargas's involvement in distributing
methamphetamine in South Dakota during the six-plus years
that they were together. See Id. at 4-15, 18-19.
Specifically, Ghost testified to observing Dones-Vargas sell
methamphetamine to over 30 people. Id. at 8. Many of
these sales took place in Sioux Falls, South Dakota.
Id. at 10-12. Although Dones-Vargas never sold
methamphetamine to Ghost, she testified that he would
regularly provide her with methamphetamine so she could get
high. See Id. at 6-7.
also testified at trial about instances where she observed
Dones-Vargas purchase and transport methamphetamine. See
Id. at 12-14. The purchases Ghost observed took place in
Vermillion, South Dakota, at a home with a yellow Hummer.
Id. at 12-13, 19. Ghost further testified that when
Dones-Vargas transported methamphetamine, he would remove the
front passenger console, place the methamphetamine above the
console, and then put the console back into the car.
Id. at 13. Dones-Vargas then transported the
methamphetamine to a storage locker in Sioux Falls.
Id. at 13-14. According to Ghost, the largest amount
of methamphetamine that she witnessed Dones-Vargas possess at
one time was four pounds. Id. at 19. Ghost also
testified that she expected to receive nothing from the
government for testifying against Dones-Vargas. Id.
was not the only witness who testified at trial regarding
Dones-Vargas's distribution and possession of
methamphetamine. Three other witnesses testified at trial
regarding their interactions with Dones-Vargas in
distributing methamphetamine. One of these witnesses, Jose
Riveraperez, testified regarding his personal involvement
with Dones-Vargas in distributing methamphetamine.
See Docket 68. Riveraperez specifically testified
that he purchased methamphetamine from Dones-Vargas, that he
helped Dones-Vargas sell methamphetamine to others by
translating from English to Spanish for Dones-Vargas, that he
observed Dones-Vargas trade guns for methamphetamine, and
that he observed Dones-Vargas pay over $1, 000 to purchase
Blanca Luna-Soto also testified at Dones-Vargas's trial.
See Id. Luna-Soto testified about a meeting that she
and her boyfriend, Edras Chua-Lemus, had with Dones-Vargas in
Vermillion where the three of them discussed the possibility
of Dones-Vargas purchasing drugs from Luna-Soto and
Chua-Lemus. Luna-Soto also testified regarding two
instances-one outside a restaurant in Sioux Falls and one in
Vermillion at her and Chua-Lemus's home-where
Dones-Vargas purchased three to four pounds of
methamphetamine from them. On another occasion, Luna-Soto
testified that she and Chua-Lemus sold methamphetamine to
Dones-Vargas while in Vermillion in exchange for a Dodge
trial testimony corroborated Luna-Soto's trial testimony.
Specifically, Chua-Lemus testified about the meeting he and
Luna-Soto had with Dones-Vargas in Vermillion while
discussing the sale of methamphetamine to Dones-Vargas, that
he and Luna-Soto sold Dones-Vargas methamphetamine outside of
a restaurant in Sioux Falls, that Dones-Vargas traded them a
Dodge Magnum for methamphetamine, and that Dones-Vargas came
to their home in Vermillion to purchase methamphetamine.
Chua-Lemus also corroborated Ghost's trial testimony when
he testified that he owned a yellow Hummer that he kept at
his residence in Vermillion. Chua-Lemus testified that
Dones-Vargas had his girlfriend with him during this sale of
methamphetamine. In addition to corroborating the testimony
of other witnesses, Chua-Lemus testified about other
instances where he sold methamphetamine to Dones-Vargas. On
one of these occasions, according to Chua-Lemus, Dones-Vargas
paid him $12, 000 for one pound of methamphetamine at a hotel
in Sioux Falls.
John Spaeth of the Sioux Falls Police Department also
testified at Dones-Vargas's trial. Detective Spaeth is a
member of the Sioux Falls Area Drug Task Force and was
involved in the investigation into Dones-Vargas.
Specifically, Detective Spaeth testified that he began
investigating Dones-Vargas in 2013 and surveilled him at
three different residences. Detective Spaeth also testified
that during the course of his investigation, he observed
Dones-Vargas driving ten different vehicles. In August 2017,
Detective Spaeth interviewed Dones-Vargas following his
arrest and was involved in the search of Dones-Vargas's
vehicle by law enforcement. Detective Spaeth testified that
Dones-Vargas was released on bond after his August 2017
interview, but was re-arrested on September 13, 2017, after
Dones-Vargas was indicted on the present federal charges.
During this arrest, as Detective Spaeth testified, law
enforcement found more than $1, 000, multiple cell phones,
and multiple MoneyGram receipts in Dones-Vargas's
Evidence Discovered After Trial
Dones-Vargas's trial was completed, Dones-Vargas learned
for the first time that his ex-girlfriend Ghost had
previously acted as an informant for law enforcement.
See Docket 89 at 1 (affidavit from
Dones-Vargas's attorney); see also Docket 88
(Ghost affidavit). Dones-Vargas also learned that Ghost had
provided information to law enforcement in relation to
Dones-Vargas's case and that she was paid for providing
this information. See Docket 89 at 1. This
information was not disclosed to Dones-Vargas in discovery,
nor did counsel for the government inquire as ...