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United States v. Aleman

United States District Court, N.D. Georgia, Atlanta Division

March 2, 2017

UNITED STATES OF AMERICA,
v.
BLAS ALEMAN,

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Blas Aleman's (“Aleman”) Motion to Dismiss Due to Post-Indictment, Pre-Arrest Delay [214] (the “Motion”). Magistrate Judge Catherine M. Salinas, after conducting an extended evidentiary hearing, issued her Report and Recommendation (“R&R”) on the Motion [284], finding that Aleman did not suffer actual prejudice by the delay in his prosecution and recommending that the Motion be denied. Also before the Court are Aleman's Objections to the R&R [288].

         I. INTRODUCTION

         Aleman was charged, in an indictment dated June 10, 2008, with conspiracy to possess cocaine and methamphetamine with intent to distribute, in violation of 21 U.S.C. § 846, 841(b)(1)(A)(ii)(II) and 841(b)(1)(A)(viii). ([10]). A warrant for Aleman's arrest was issued the same day (the “Arrest Warrant”) he was indicted. (See [14]). Aleman was eventually arrested on the warrant in March 2016, following his arrest in Mexico on drug charges. He was extradited to the United States on the charges in this case.

         II. BACKGROUND FACTS

         In May 2005, three years before the indictment in this prosecution was returned and the Arrest Warrant was issued, Aleman was arrested in Florida on state charges of trafficking in methamphetamine. Victoria Aviles (“Aviles”), Aleman's then-wife and the mother of his children, posted $15, 000.00 for Aleman's bail. She borrowed the funds from one of Aleman's relatives. The day after Aleman was released from detention, he spent two hours with Aviles at their home, and then he left. Aleman did not appear at his arraignment on the state drug trafficking charges. In June 2005, the Florida court issued its warrant for Aleman's arrest for failing to appear at his arraignment. Neither Aviles nor her children heard from Aleman for eight (8) years after he went missing.

         Detective Clay Nicholson, who was involved in the Florida case brought against Aleman, searched for Aleman unsuccessfully from June 2005 to March 2008. In 2008, Detective Nicholson learned from a confidential source that Aleman was in Atlanta where he was involved in drug trafficking with his uncle, Juan Aleman. Detective Nicholson arranged for his confidential informant to provide information to law enforcement in the Atlanta office of the Drug Enforcement Administration (“DEA”), which opened an investigation of Aleman.

         DEA Special Agent Michael Bagley testified that, in early March 2008, when serving on a surveillance team, he took photographs of Blas Aleman and Juan Aleman at a car dealership and at a hotel in Atlanta. The photographs show Aleman in Atlanta in 2008.

         Aleman states that he was not in Atlanta in 2008, that Juan Aleman is not his uncle, and that he does not know Juan Aleman. Immigration documents, which Aleman supplied, however, show that Aleman's grandparents have the same name as Juan Aleman's parents. Government immigration file documents show that Juan Aleman was born in El Salitre, Guerrero, Mexico to Tomasa Mederos and Juan Aleman. Aleman's birth certificate has this same lineage information, specifically that Tomasa Mederos and Juan Aleman are his grandparents.[1]

         The DEA investigation resulted in the drug trafficking conspiracy charges brought against Aleman and his co-conspirators, including Defendant Filiberto Alanis-Soto (“Alanis-Soto”), on June 10, 2008.

         A. Search for Aleman

         After the indictment was returned and the Arrest Warrant issued, Special Agent Bagley and others tried to find Aleman to arrest him. Aleman could not be located. Unable to find him, and according to standard fugitive search processes, the DEA turned the search for Aleman over to the United States Marshals Service (“USMS”).

         While the USMS undertook to locate Aleman, DEA Special Agent Bagley continued his efforts to find Aleman. Each year, beginning in 2008, he reviewed information in the DEA's Narcotics and Dangerous Drugs Information System to ensure that the Arrest Warrant was active in the National Crime Information Center (“NCIC”) database. He also ensured that the El Paso Intelligence Center database continued to list correct information about Aleman. These databases and intelligence systems are searched by law enforcement agencies conducting investigations to check on information about individuals they encounter in their law enforcement work. They would cause a law enforcement officer to notify the DEA if Aleman was encountered. By ensuring the accuracy of the information in the NCIC and El Paso databases, the DEA ensured that law enforcement across the country were involved in the search for Aleman.

         Criminal Inspector Alberto Navarro was in charge of the USMS effort to locate Aleman. When assigned the case in June 2008, Inspector Navarro conducted internet and credit searches for information that could help locate Aleman. A Social Security number for Aleman, provided to Inspector Navarro by the DEA, disclosed an address in Smyrna, Georgia, at which it was possible that Aleman resided. The address was in an apartment complex. Inspector Navarro first conducted surveillance at the apartment address. He later contacted apartment complex neighbors and employees but was unable to develop useful information about Aleman's whereabouts. Inspector Navarro then knocked on the door of the apartment at which it was thought that Aleman might reside. A person who identified himself as Aleman's brother told Inspector Navarro that Aleman knew he was wanted and that Aleman had returned “to Mexico with his wife.” Inspector Navarro gave the brother his contact information and asked him to call if he remembered anything further. The brother did not call.

         Inspector Navarro then obtained a possible address for Aviles in Wauchula, Florida. USMS deputies in Wauchula went to that residence to investigate. They did not find Aviles, but identified and interviewed Aviles' sister who reported that Aviles lived in Austin, Texas. She also told investigators that Aleman was from Guerrero, Mexico.

         Inspector Navarro searched for possible addresses for Aviles in Austin and developed two address possibilities, neither of which helped him locate Aviles.

         In addition to ensuring that accurate information for Aleman still was resident in the NCIC and El Paso databases, each year Inspector Navarro reviewed the database information to ensure it was accessible. He also conducted internet searches for information about Aviles.

         B. Mexico

         There are various operational limitations on DEA investigations in Mexico. The DEA cannot subpoena Mexican records, cannot access Mexican databases, cannot make arrests in Mexico, and cannot order Mexican law enforcement to arrest United States fugitives. Mexican law enforcement resources are limited and that impacts their ability, and the ability of the DEA, to conduct surveillance and obtain records in Mexico. It is particularly hard to operate in Guerrero, Mexico because of the violence in that area and the danger presented there to law enforcement personnel generally. Because of danger in Guerrero, the DEA generally waits for fugitives to depart the Guerrero area before attempting to apprehend them. Aleman is from Guerrero.

         In the absence of success locating Aleman or Aviles in the United States, the USMS turned its search efforts toward Mexico. In January 2009, Inspector Navarro sent a report to the DEA field office in Mexico City, Mexico stating it was possible that Aleman was in Guerrero. Inspector Navarro hoped that the DEA might obtain access to Mexican databases for information about Aleman. Inspector Navarro also contacted the Department of Justice for help in obtaining an INTERPOL Red Notice for Aleman. A Red Notice advises all INTERPOL member countries, which includes Mexico, that an individual is wanted for prosecution in a member country and if a wanted person crosses an INTERPOL member's border the country posting the notice is advised. The Red Notice contains various identifying information including photographs, fingerprints, place of birth, the basic facts of the offense alleged against the person sought, and the region or country the person is likely to visit. The Red Notice for Aleman contained this information and it was posted on September 11, 2009. The United States committed in the notice to seek extradition if Aleman was encountered.

         With investigative tools already in place, Inspector Navarro conducted other investigative activity. Every six months, he checked various consumer databases including Accurint, Auto Track, and CLEAR. He asked the Georgia Department of Labor for employment data about Aleman. He revisited the Smyrna apartment complex, but Aleman's brother was not there, and no new leads were developed. He followed up with the DEA for leads.

         C. Aviles Contact

         In April 2013, USMS personnel in Florida told Inspector Navarro that Aviles, now divorced from Aleman, had applied for a new Florida driver's license. USMS deputies were sent to interview her. Aviles was cooperative when contacted. She told the investigating USMS personnel that she had not seen or heard from Aleman for the eight years since she bailed him out of jail, except, on the day she was interviewed, she had received the first contact from Aleman since he left in 2005. The contact was by text message and, in it, Aleman asked about his children.[2] Aviles responded to the text message but claims she did not tell Aleman about the USMS inquiry. She suggested to investigating agents that Aleman might be living with his parents in Guerrero, and she gave them Aleman's mother's name and the Mexican phone number Aleman was using.

         Inspector Navarro told the United States Attorney's Office (“USAO”) in Atlanta that Aleman might be living in Guerrero and requested that a provisional arrest warrant be obtained to be executed in Mexico. The office began working on the warrant in June 2013. The office worked with the Department of Justice Office of International Affairs (“OIA”) in Washington, D.C. An affidavit from a lay person was required to support the warrant. The only available affiant was Aleman's codefendant Alanis-Soto, who was in custody, having entered a guilty plea to the same indicted offense on which Aleman was charged. Still in custody when the affidavit was requested, counsel was arranged to represent Alanis-Soto. Alanis-Soto's counsel negotiated a post-plea agreement with the Government on behalf of Alanis-Soto in connection with the Government's request for the affidavit. The affidavit was obtained in the summer of 2013. The warrant request was sent to OIA who advised that a more specific description of Aleman's location was required. OIA advised that the application had to specify a neighborhood, small town, or small section of the city where Aleman could be located.

         The Atlanta USAO told Inspector Navarro to obtain this specific location information. He did, the affidavit was processed, and the provisional arrest warrant was transmitted to Mexico in December 2014.

         Although already in Mexican custody on local charges, Aleman was served with the provisional arrest warrant in August 2015. The United States requested his extradition in October 2015, and he ...


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