United States v. Dones-Vargas

          ORDER DENYING MOTION FOR NEW TRIAL

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Defendant, 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.

         BACKGROUND

         Following 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.

         I. Testimony at Trial

         At 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.

         Most of 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.

         Ghost 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. at 20-21.

         Ghost 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 methamphetamine.

         Witness 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 Mangum.

         Chua-Lemus's 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.

         Detective 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 vehicle.

         II. Evidence Discovered After Trial

         After 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 ...