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United States v. Ybarra Cruz.

No. 19-2132. D.N.M. Judge Phillips. Fourth Amendment—Reasonable Suspicion—Public Authority Defense—Confidential Informant.

December 14, 2020


Defendant served as a confidential informant (CI) in federal drug investigations from 2016 until 2018 when his CI status was terminated due to a pending drug-related charge. Several weeks later, defendant was under federal surveillance based on a tip from another CI that defendant was transporting methamphetamine in New Mexico. A state police officer located defendant’s vehicle, followed it, and witnessed the truck crossing over the line separating the right lane from an exit lane for a few seconds. The officer performed a traffic stop for failure to maintain the traffic lane.  Defendant was asked to exit the vehicle and was given a written warning. After telling defendant he was free to leave, the officer asked him for permission to ask additional questions. Defendant consented, and after additional questioning, defendant consented to a search of his truck and the truck he was towing. The officer then found 11 bundles of methamphetamine hidden in the bed of one truck. The federal surveilling agent was summoned to the scene and read defendant his Miranda rights and took over the investigation. Among other things, defendant admitted that he was transporting methamphetamine for $10,000, but he stated that he was working with federal agents in Phoenix.

Defendant was later indicted on conspiracy to distribute 500 grams or more and possession with intent to distribute 500 grams or more of methamphetamine. Before trial, defendant moved to suppress the Mirandized statements and the methamphetamine. Following a suppression hearing, the trial court denied the motion. At trial, defendant primarily relied on the public authority defense. He testified that he reasonably believed that he was working as an informant. Following the cases in chief, defendant’s motion for judgment of acquittal under Fed. R. Crim. P. 29 was denied, but the court agreed to instruct the jury on the public authority defense. The jury ultimately acquitted defendant on the conspiracy charge but convicted him on the possession with intent to distribute charge. Defendant’s post-trial motions under Fed. R. Crim. P. 29 for judgment of acquittal and Rule 33(a) for a new trial were denied.

On appeal, defendant argued that the district court erred in not suppressing evidence, alleging that the police officer lacked reasonable suspicion to support the traffic stop. However, the officer had reasonable suspicion that defendant violated New Mexico law by failing to drive as nearly as practicable in his lane where there was no construction, roadway debris, or other visible condition to justify the deviation. Therefore, the district court did not err.

Defendant further argued that the district court erred by not acquitting him based on his public authority defense. The public authority defense required defendant to show that he was engaged by a government official to participate in a covert activity. Based on the government’s solid evidence against the public authority defense and defendant’s failure to meet his burden to prove his defense by a preponderance of the evidence, the court properly denied defendant’s motion for acquittal.

Defendant also contended that the district court abused its discretion by denying him a new trial based on allegations of possible juror confusion. Here, the district court gave defendant’s requested jury instruction on the public authority defense, which was unambiguous. Accordingly, the district court did not err in denying defendant’s motion for a new trial.

Lastly, defendant argued that the district court abused its discretion by not sua sponte instructing on duress. However, defendant did not adduce sufficient evidence to prove each element of duress by a preponderance of the evidence, and he did not seek such instruction. Thus, the district court did not abuse its discretion.

The conviction was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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