United States v. Castellano-Benitez

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge

         Following a 4-day jury trial, the defendant, Alexander Castellano-Benitez, was convicted of possessing with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine. The defendant now moves for a new trial pursuant to Fed. R. Crim. P. 33. For the reasons explained below, that motion will be denied.

         BACKGROUND

         The defendant was arrested in September 2015 in a Hastings, Nebraska motel room. Upon searching the room, authorities found methamphetamine and various drug-related paraphernalia, including baggies, scissors, and a scale. Also arrested was Yulio Cervino-Hernandez, who had travelled to Hastings with the defendant from Tampa, Florida. Both men were charged with possessing with the intent to distribute 500 grams or more of methamphetamine. Cervino-Hernandez pled guilty to the offense, but the defendant proceeded to trial.

         The government's theory of the case, generally speaking, was that the defendant had stolen the methamphetamine from a drug cartel in Texas. He then transported the drugs from Texas to Florida, and then from Florida to Nebraska, for distribution. Along the way, the defendant recruited Cervino-Hernandez, who had agreed to drive the defendant (and the drugs) from Tampa to Hastings. The defendant admitted travelling with Cervino-Hernandez, but denied knowing about the methamphetamine.

         The government's case relied in part on testimony from two cooperating witnesses. The first was Cervino-Hernandez, who largely confirmed the government's account. He testified, for example, about how the defendant had concealed the methamphetamine in the air vents and battery of his truck before leaving for Nebraska. He also described how the two men, upon arriving in Hastings, moved the drugs from the truck to their motel room. And he explained the defendant's role in an initial drug transaction, in which the men sold over an ounce of methamphetamine in or around Grand Island.

         The government also called Yunior Flores-Veliz, who had pled guilty to a separate, but related, drug offense. He testified to phone conversations that he had with the defendant in October 2015, when the defendant was awaiting trial in the Saline County Jail. According to Flores-Veliz, the defendant, while incarcerated, encouraged him to transport drugs from Florida to Nebraska for distribution. Needing money, Flores-Veliz obliged-driving over 2 kilograms of methamphetamine from Tampa to Grand Island. Flores-Veliz was arrested with the drugs soon after arriving in the state, and he, too, was placed in the Saline County Jail.

         The defense characterized this testimony as inconsistent and untrue. It suggested that the witnesses had a motive to lie based on the possibility that their own sentences would be reduced because of their cooperation. And it noted that both Cervino-Hernandez and Flores-Veliz were angry that the defendant had been released from the county jail in December 2015 to await trial, while they remained behind bars. So, the defense argued, the cooperating witnesses might have coordinated their testimony while in the Saline County Jail in an effort to shift the blame to the defendant and implicate him.

         One of the issues, then, was whether Cervino-Hernandez and Flores-Veliz had the opportunity and means to coordinate their testimony as the defense had suggested. The government claimed they did not, noting that the jail had intentionally segregated the men "to prevent them from coming up with a story." But the defense, through cross-examination, questioned the effectiveness of those efforts. It suggested that inmates, regardless of their classification, can communicate with each other through informal (and unauthorized) means. And when it posed that possibility at trial to the jail's administrator, Adam Drake, he largely agreed-noting that if inmates want to communicate, "I'm sure [they] can find a way."

         But the defense did not present evidence that the two men were housed in the same unit or cell block. That was due in part, the defense now argues, to information it received from the government in pretrial discovery. Defense counsel had requested information about whether the defendants had been housed together, so in September 2016, the government emailed the defense a report it had compiled based on a review of Saline County's transportation and housing logs. Filing 174-1 at 1-3. That report concluded that Cervino-Hernandez and Flores-Veliz "were never housed or together at any time [during their incarceration] in the Saline County Jail." Filing 174-1 at 3. Then, in December, the government's attorney emailed defense counsel about possible stipulations for trial. Referring to the government's September report, the U.S. Attorney wrote:

In addition to the stipulations we discussed on Monday . . . I was hoping you would be, since I went through the trouble to get the information at your request, [willing] to stipulate to the agent testifying that he checked with the federal detention officials and as far as they could tell Yulio Cervino-Hernandez and [Yunior Flores-Veliz] never crossed paths in their custody.

Filing 170-1 at 2 (emphasis added).

         However, it is now clear that the government's representations were inaccurate, or, at the least, incomplete. Indeed, while the witnesses were not housed together in Saline County, the government's September report, if carefully examined, would show that Cervino-Hernandez and Flores-Veliz were transported to a different facility in Dawson County in May and July 2016. And there is now evidence that the two witnesses, while incarcerated in Dawson ...