Case 1:16-cr-01701-JCH Document 216 Filed 03/15/19 Page 1 of 28
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF NEW MEXICO
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`AARON MERCADO-GRACIA,
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`Defendant.
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`CR No. 16-1701 JCH
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`MEMORANDUM OPINION AND ORDER
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`On February 26, 2019, the United States filed a “Motion in Limine to Admit Summary
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`Charts Pursuant to Fed. R. Evid. 1006 and Fed. R. Evid. 801(d)(2)(E), and Fed. R. Evid.
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`801(d)(2)(A)” (ECF No. 189). Defendant argues the non-voluminous originals are the best
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`evidence and summary exhibits are not necessary. Defendant also asserts that the extraction data
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`lacks foundation and contains hearsay. The Government disclosed numerous conversations
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`between Defendant and others that it intends to admit at trial and argues they are not hearsay under
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`Rule 801(d)(2)(E) and/or they contain statements which fall under other exceptions to the hearsay
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`rule. Defendant argues that the Government has not established by any independent evidence that
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`the March 4-6 and March 19-21, 2016 trips were for the purpose of drug trafficking or that there
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`is independent evidence of any conspiracy with “Favian.”
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`This Court held a hearing on the motion on March 12, 2019 (hereinafter “James hearing,”
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`see United States v. James, 590 F.2d 575 (5th Cir. 1979)). This Court, having considered the
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`motion, briefs, objections, evidence, applicable law, and otherwise being fully advised, makes the
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`Case 1:16-cr-01701-JCH Document 216 Filed 03/15/19 Page 2 of 28
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`following findings of fact and conclusions of law regarding the admissibility of the co-conspirator
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`statements and grants in part and denies in part the motion as described herein. The Court’s rulings
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`on admissibility are subject to the foundation set forth by the Government in the hearing and in
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`the briefs being properly laid at trial with admissible evidence.
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`I.
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`LEGAL STANDARD
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`A.
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`Summary Rule
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`Federal Rule of Evidence 1006 provides:
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`The proponent may use a summary, chart, or calculation to prove the content of
`voluminous writings, recordings, or photographs that cannot be conveniently
`examined in court. The proponent must make the originals or duplicates available
`for examination or copying, or both, by other parties at a reasonable time and place.
`And the court may order the proponent to produce them in court.
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`Federal Rule of Evidence 1001(d) defines an “original” of electronically stored information
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`as “any printout—or other output readable by sight—if it accurately reflects the information.” The
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`information upon which the summary is based must itself be admissible, though it need not be
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`admitted. United States v. Channon, 881 F.3d 806, 810 (10th Cir. 2018).
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`The Tenth Circuit has “held that it is within the discretion of the Trial Court, absent abuse
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`working to the clear prejudice of the defendant, to permit the display of demonstrative or
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`illustrative exhibits admitted in evidence both in the courtroom during trial and in the jury room
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`during deliberations.” United States v. Downen, 496 F.2d 314, 320 (10th Cir. 1974). The Tenth
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`Circuit stated “that the submission of papers, documents or articles, whether or not admitted in
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`evidence, to the jury for view during trial or jury deliberations, accompanied by careful cautionary
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`instructions as to their use and limited significance, is within the discretion accorded the Trial
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`Court in order that it may guide and assist the jury in understanding and judging the factual
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`controversy.” Id. at 321.
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`2
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`B.
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`Authentication
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`To authenticate an item, its proponent must produce enough evidence to support a finding
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`that the item is what the proponent says it is. United States v. Arnold, 696 F. App’x 903, 906 (10th
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`Cir. June 23, 2017) (quoting Fed. R. Evid. 901(a)). “When ‘evidence is unique, readily identifiable
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`and relatively resistant to change, the foundation need only consist of testimony that the evidence
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`is what its proponent claims.’” United States v. Yeley-Davis, 632 F.3d 673, 683 (10th Cir. 2011)
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`(quoting United States v. Johnson, 977 F.2d 1360, 1367 (10th Cir. 1992)).
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`C.
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`Hearsay
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`Hearsay is a statement that “the declarant does not make while testifying at the current trial
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`or hearing” and “a party offers in evidence to prove the truth of the matter asserted in the
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`statement.” Fed. R. Evid. 801(c)(1)-(2). “But testimony not offered to prove the matter asserted
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`that is ‘offered instead for relevant context or background’ is not hearsay.” United States v.
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`Becknell, 601 F. App’x 709, 712 (10th Cir. 2015) (unpublished opinion) (quoting United States v.
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`Hinson, 585 F.3d 1328, 1336 (10th Cir.2009)). Questions and comments do not constitute hearsay
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`if they are not offered to prove the truth of the matter but are offered to show their effect on the
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`other person in the conversation and provide context. See United States v. Smalls, 605 F.3d 765,
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`785 n. 18 (10th Cir. 2010).
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`“A party lays the proper foundation for the trustworthiness of computer generated business
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`records and the records are admissible, in the following circumstances: (1) The records must be
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`kept pursuant to some routine procedure designed to assure their accuracy, (2) they must be created
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`for motives that would tend to assure accuracy (preparation for litigation, for example, is not such
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`a motive), and (3) they must not themselves be mere accumulations of hearsay or uninformed
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`opinion.” United States v. Fernandez, 392 F. App’x 743, 745-46 (11th Cir. 2010) (internal
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`quotations omitted). Information automatically generated by a computer without the assistance or
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`input of a person is not hearsay because there is no statement nor declarant involved within the
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`meaning of 801. United States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005). See also United
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`States v. Lamons, 532 F.3d 1251, 1262-64 (11th Cir. 2008) (finding that data showing date, time,
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`and connected phone numbers are “statements of machines, not statements of persons,” therefore
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`not “statements” under Fed. R. Evid. 801(a)).
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`Although hearsay statements are generally not admissible at trial, see Fed. R. Evid. 802, a
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`statement that “was made by the party’s coconspirator during and in furtherance of the conspiracy”
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`is not hearsay, and therefore may be admissible as substantive evidence against the party, Fed. R.
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`Evid. 801(d)(2)(E). For a statement to be non-hearsay under Rule 801(d)(2)(E), the district court
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`must first find the following elements by a preponderance of the evidence: (1) a conspiracy existed;
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`(2) the declarant and the defendant were both members of the conspiracy; and (3) the statements
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`were made during the course of and in furtherance of the conspiracy. United States v. Rutland, 705
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`F.3d 1238, 1248 (10th Cir. 2013). The elements of conspiracy, in turn, are: (1) there was an
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`agreement to violate the law; (2) the declarant knew the essential objectives of the conspiracy; (3)
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`the declarant knowingly and voluntarily took part in the conspiracy; and (4) the coconspirators
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`were interdependent. Id. at 1249 (citing United States v. Ailsworth, 138 F.3d 843, 850-51 (10th
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`Cir. 1998)). The government, as the proponent of the evidence, has the burden of proving the
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`relevant preliminary facts. United States v. Perez, 989 F.2d 1574, 1580 (10th Cir. 1993).
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`The government does not have to prove an express or formal agreement was made; rather,
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`it merely has to show the coconspirators tacitly came to a mutual understanding. Rutland, 705 F.3d
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`at 1250. “The existence of a conspiracy may be inferred from circumstantial evidence.” United
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`States v. Martinez, 825 F.2d 1451, 1452 (10th Cir. 1987). Interdependence means the
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`coconspirators were united in a common goal or purpose. Ailsworth, 138 F.3d at 851. The trial
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`witness need not be a co-conspirator, so long as the declarant is a co-conspirator with the defendant
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`against whom the statement is being offered. See United States v. Williamson, 53 F.3d 1500, 1519
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`(10th Cir. 1995).
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`When making a determination under Rule 801(d)(2)(E), the court “may consider both
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`independent evidence and the statements themselves.” Rutland, 705 F.3d at 1248. To satisfy Rule
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`801(d)(2)(E), the United States need show only that there is “some independent evidence linking
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`the defendant to the conspiracy.” Martinez, 825 F.2d at 1453 (relying on Bourjaily v. United States,
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`483 U.S. 171 (1987)). “[S]uch independent evidence may be sufficient even it is not ‘substantial.’”
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`United States v. Owens, 70 F.3d 1118, 1125 (10th Cir. 1995) (quoting United States v. Rascon, 8
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`F.3d 1537, 1541 (10th Cir. 1993)). Independent evidence is any “evidence other than the proffered
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`[coconspirator] statements themselves.” Owens, 70 F.3d at 1125 (quoting Martinez, 825 F.2d at
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`1451).
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`With regard to the third element under Rule 801(d)(2)(E), “in furtherance” means that the
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`statements are “intended to promote the conspiratorial objectives.” Rutland, 705 F.3d at 1252
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`(quoting United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007)). Examples of statements
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`the Tenth Circuit has held to be in furtherance of a conspiracy include
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`statements explaining events of importance to the conspiracy, statements between
`coconspirators which provide reassurance, which serve to maintain trust and
`cohesiveness among them, or which inform each other of the current status of the
`conspiracy, statements identifying a fellow coconspirator, and discussions of future
`intent that set transactions to the conspiracy in motion or that maintain the flow of
`information among conspiracy members.
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`Id. (internal quotations and citations omitted). Additionally, statements identifying members of a
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`conspiracy, discussing particular roles of other coconspirators, and avoiding detection by law
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`enforcement personnel are made “in furtherance of” a conspiracy. Williamson, 53 F.3d at 1520.
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`“A coconspirator statement is made during the course of the conspiracy it if is made before the
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`objectives of the conspiracy have either failed or been achieved.” Owens, 70 F.3d at 1126 (quoting
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`Perez, 989 F.2d at 1579).
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`Rule 801(d)(2)(E) requires the trial court to make findings on the record regarding the
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`elements before admitting coconspirator’s out of court statements. See Perez, 989 F.2d at 1581.
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`The “strongly preferred order of proof” in determining the admissibility of an alleged
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`coconspirator’s statement is to first hold a hearing outside the presence of the jury to determine
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`whether the party offering the statements has established the existence of a conspiracy by a
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`preponderance of the evidence. United States v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994). At
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`the hearing, the district court has discretion to consider “any evidence not subject to a privilege,
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`including both the coconspirator statements the government seeks to introduce at trial and any
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`other hearsay evidence, whether or not that evidence would be admissible at trial.” Owens, 70 F.3d
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`at 1124.
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`II. Whether evidence is hearsay
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`A.
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`Findings of Fact Regarding Co-Conspirator Statements
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`In making these findings, the Court has considered the content of the alleged co-conspirator
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`statements themselves, as well as independent evidence of the existence of the conspiracy.
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`This Court held hearings on the motion to suppress filed in this case on November 7, 2017,
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`and on May 1, 2018, after which the Court made the following findings of fact relevant to the
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`issues herein:
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`On March 25, 2016, Officer Wood was traveling westbound on Interstate-40 with
`Arras when he observed a silver Dodge Charger traveling eastbound on I-40
`seemingly driving faster than the posted 75 miles per hour speed limit. [Nov. 7,
`2017 Hr’g Tr.] 34:21-36:1. Officer Wood engaged his properly tested and working
`radar, which showed the vehicle speed was 92 mph, so he turned around, caught up
`to the vehicle, and stopped the vehicle by activating his emergency lights. See id.
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`6
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`Case 1:16-cr-01701-JCH Document 216 Filed 03/15/19 Page 7 of 28
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`36:17-41:8. The vehicle stopped on the shoulder to the highway, and Officer Wood
`approached the passenger side. Id. 41:6-7, 45:10-14. A video camera in Officer
`Wood’s patrol vehicle recorded the stop. Id. 37:24-39:6.
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`The driver spoke English and appeared to understand Officer Wood
`throughout the encounter. See Gov.’s Ex. 6 (“Video of Stop”). Officer Wood
`explained to the driver, later identified as Defendant Mercado-Gracia, that he was
`going 92 mph, asked for his license and vehicle registration, and asked him to come
`over to the police vehicle while he checked Defendant’s identification. Gov.’s Ex.
`7 (“Tr. of Stop”) 2:7-14, ECF; Video of Stop 11:58 a.m….
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`Defendant provided an Arizona driver’s license for Aaron Mercado-Gracia
`and a vehicle registration matching the stopped Dodge Charger. Id. 46:12-47:7. The
`vehicle registration showed the car was registered to Hector Ramirez Reyes. Id. At
`this point, Officer Wood became concerned that that name on the license did not
`match the registration. See id. 47:1-12.
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`Officer Wood then asked about ownership of the vehicle because it was
`unclear from the paperwork Defendant provided. See id. 51:10-24. In response to
`Officer Wood’s question who owned the vehicle, Defendant said, “Huh?” Tr. of
`Stop 2:16-18. When Officer Wood repeated his question, Defendant answered,
`“My cousin.” Id. 2:19-20. Defendant gave his cousin’s name as “Favian.” Id. 2:21-
`25. Officer Wood observed that the insurance card had the name Favian Reyes, so
`he asked Defendant what Favian’s last name was. Id.; Nov. 7, 2017 Hr’g Tr. 52:5-
`14; Gov.’s Ex. 8. When Defendant could not provide Officer Wood with Favian’s
`last name, he clarified, “Well, he’s my lady’s, uh, husband’s cousin.” Video of Stop
`at 11:59 a.m. Defendant said Favian let him borrow his car to come over here for
`the weekend, and when asked where he was heading, Defendant responded,
`“Albuquerque.” Tr. of Stop 3:5-8….
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`Sergeant Chavez and Officer Wood searched the interior of Defendant’s car where
`they found two large bundles of heroin and a firearm. Id. 115:8-9, 174:7-21.
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`Mem. Op. and Order 3-4, 12, ECF No 107.
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`The Court has also considered evidence introduced at the James Hearing. The Court heard
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`the testimony of Special Agent Jose Ramon Martinez, a law enforcement officer with the
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`Department of Homeland Security, who the Court finds credible and finds has specialized
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`knowledge through his training and experience with drug trafficking practices and patterns and the
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`use of code words. See James Hr’g Tr. 5:12-10:22. The Court finds the following facts proven by
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`a preponderance of the evidence.
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`7
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`Special Agent Martinez’s first language is Spanish, he understands and speaks Spanish
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`daily in his personal life and often when investigating crimes, and he has received his proficiency
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`in Spanish language by the Department of State. See id. Special Agent Martinez translated the text
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`messages from Defendant’s phone into English fairly and accurately using his knowledge and
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`experience in the Spanish language and in drug trafficking investigations, as well as using
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`information from the cell phone: contact information, photographs, emails, telephone calls, video,
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`text messages, videos, and geo-location data. See James Hr’g Tr. 14:1-23. The summary charts in
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`Exhibits 141, 141A, and 141B show Special Agent Martinez’s Spanish to English translations of
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`text messages from March 2, 2016 to March 25, 2016, extracted from Defendant’s cell phone and
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`placed in chronological order. See id. at 32:15-34:1, 49:5-12.
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`Law enforcement conducted a forensic examination of the cellphone seized from
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`Defendant’s person on March 25, 2016, which revealed numerous photographs, emails, text
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`messages, records of phone calls, and GPS geo-location data. See James Hr’g Tr. 11:1-14:23,
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`20:14-22:13, 23:18-24:12. The sum contents of the cellphone established that the cellphone is
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`Defendant’s and Defendant took a trip on March 4 through 6, 2016 (“Trip 1”), on March 19
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`through 21, 2016 (“Trip 2”), and on March 25, 2016, when drugs and the cell phone were seized
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`from the vehicle Defendant was driving. See supra; James Hr’g Tr. 11:1-14:23, 20:14-22:13,
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`23:18-24:12.
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`“Favian” is listed in Defendant’s cellphone contact list for the phone number (480) 479-
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`7096, and Defendant kept in contact with Favian in each of the three trips. See id. at 20:14-22,
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`26:20-27:10. Law enforcement confirmed through a subpoena for the phone number that the phone
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`number belonged to Hector Reyes, Favian Reyes’s brother. See id. at 28:1-9. Hector Ramirez
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`Reyes registered the vehicle in which drugs were seized from Defendant. See id. at 27:11-25.
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`8
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`In text messages beginning on March 2, 2016 at 8:32 p.m. through 9:00 p.m., Favian and
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`Defendant discussed if Defendant was going to work on Friday (March 4), and they arranged
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`payment and a meeting on March 3, 2016. See Ex. 141; James Hr’g Tr. 34:15-36:6. Defendant
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`asked how many tickets he can get, which is a common drug trafficking term. James Hr’g 35:5-
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`22; Ex. 141. Additional text messages extracted from Defendant’s cell phone between Defendant
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`and “Favian” beginning on March 3, 2016 at 8:31 p.m. through 10:23 p.m. suggest they were
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`arranging a meeting and met that night. See Ex. 141; James Hr’g 36:7-13.
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`Text messages on March 4, 2016 starting at 4:56 a.m. through 11:35 a.m. involve Favian
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`and Defendant discussing the trip and status updates. See Ex. 141. At 4:56 a.m., Defendant texted
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`Favian, “I did not work today, as soon as you have the dark sunglasses let me know.” Id. In Special
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`Agent Martinez’s training and experience, “dark sunglasses” is a reference to heroin. See James
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`Hr’g Tr. 36:16-39:1. Drug traffickers often use color codes to refer to the type of drug they are
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`trafficking, and there is no reason to use the adjective “dark” with “sunglasses” when all sunglasses
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`are dark. See id.
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`At 8:48 a.m., Favian texted Defendant: “What happened is that I am for the guy to open
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`that is going to fix the window that is not working.” Ex. 141. In Special Agent Martinez’s opinion,
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`the window may refer to the load vehicle needing to be fixed, so Favian and Defendant were
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`discussing when it will be ready. James Hr’g Tr. 39:3-40:7. At 11:04 a.m., Defendant texted
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`Favian, “Go go the suit case is at the door bro,” and then Favian acknowledged by text that he will
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`be there in five minutes. Ex. 141. Photographs taken by Defendant beginning on 12:21 p.m. on
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`March 4, 2016 show he was driving. See id. Text messages, photographs, e-mails, and geo-location
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`information show that Defendant took a trip from March 4 and March 6, 2016, from Phoenix,
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`9
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`Arizona, through Las Vegas, Nevada, up to Salt Lake City, and then returned to Las Vegas,
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`Nevada, back to Phoenix. See James Hr’g Tr. 11:3-19:25, 19:2-10.
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`On March 4, 2016 at 4:06 p.m., Defendant took a photograph of a Tacos El Gordo
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`restaurant in Las Vegas, Nevada. Id. at 16:6-14. Ex. 141. At 7:50 p.m., Defendant received a
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`booking reservation made by “Eliana Rodriguez” for a hotel in Cedar City, Utah. Ex. 141. Eliana
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`Rodriguez is the mother of Defendant’s child. James Hr’g Tr. 42:17-18. Law enforcement later
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`determined that Eliana Rodriguez purchased the firearm seized from Defendant on March 25,
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`2016. Id. at 41:21-24. On March 4, 2016, at 9:17 p.m., Defendant took a photograph of himself
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`with a firearm. Ex. 141; James Hr’g Tr. 11:16-12:9. Carrying firearms is common during drug
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`trafficking for safety and to defend the valuable narcotics. James Hr’g Tr. 12:10-22.
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`On March 5, 2016, beginning at 1:57 a.m. until 6:51 a.m., Favian sent text messages to
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`Defendant asking how it is going and telling him to be careful on his travel. Ex. 141. These
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`messages are consistent with a drug supplier checking on the status of his courier. James Hr’g Tr.
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`43:2-20. At 9:33 a.m., Defendant texted Favian he will arrive in 40 minutes, and then he texted
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`Favian at 9:54 a.m. telling him he was here. Ex. 141. Favian responded at 10:01 a.m. with a phone
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`number, 801 835 4793. Id. Defendant called the phone number. Id. At 10:19 a.m., Defendant
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`received an incoming call with a location to meet at a Wal-Mart. Id. Special Agent Martinez
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`subsequently confirmed that the location given on the text message was the location of Wal-Mart
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`in West Valley, Utah, a suburb of Salt Lake City. See James Hr’g Tr. 15:1-15, 44:17-23. A series
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`of phone calls between Defendant and the phone number and Defendant and Favian occurred over
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`the next hour. Ex. 141. These communications are consistent with a drug supplier helping to ensure
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`his courier is making the delivery. See James Hr’g Tr. 44:24-45:13.
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`10
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`On March 5, 2016, at 12:56 p.m., Defendant took a photograph of a Holiday Inn south of
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`Salt Lake City. Ex. 141; James Hr’g Tr. 16:15-17:3. Special Agent Martinez subsequently travelled
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`to the Holiday Inn and confirmed the photograph matched that of the Holiday Inn near Salt Lake
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`City. James Hr’g Tr. 17:5-11.
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`On March 5, 2016, between 1:45 p.m. and 1:49 p.m., Favian asked Defendant by text, “Are
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`you done?” Ex. 141. Defendant responded, “Ya,” and “I am on my way out.” Id. Favian texted
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`Defendant to be careful and asked if they gave him the tickets. Id. Tickets are code words for
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`money. See James Hr’g Tr. 46:4-13. These communications were consistent with status updates.
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`At 4:58 p.m., Defendant took a photograph of a sign marking the Arizona and Utah state line. Ex.
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`141; James Hr’g Tr. 17:12-18:6. Special Agent Martinez subsequently travelled through the
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`location, verifying it was the same sign as in the photograph. James Hr’g 17:25-18:3. At 5:08 p.m.,
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`Defendant entered a GPS location request in his cell phone for a destination in Las Vegas, Nevada,
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`and when he did so, GPS coordinates were retrieved by his cell phone of his location at that time
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`in an area near Las Vegas, Nevada. See id. at 18:7-19:1.
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`Text messages sent by Defendant to Favian, beginning at 8:45 p.m., indicated that he was
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`returning to Phoenix. See Ex. 141; James Hr’g Tr. 46:17-47:6. Defendant indicated that his trip
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`was a success by texting Favian at 8:45 p.m., “Start putting them on ice, I am almost there.” See
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`id. This text is a celebratory type of text meaning to get the beers ready. See id. At 11:33 p.m.,
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`Favian checks on his location, and they exchanged texts between 11:34 p.m. and 11:55 a.m. as to
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`where Defendant was and that Favian was waiting. See Ex. 141. On March 6, 2016, at 12:30 a.m.,
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`Defendant texted Favian, “Bro pay attention to the bills, I got one here that is bad.” Id. Favian
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`responded by text that he will exchange it, but Defendant replied, “It’s not a problem bro, I am
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`saying it just in case there is more in the bunch.” Id. They discuss trading it out anyway. Id. Special
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`11
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`Case 1:16-cr-01701-JCH Document 216 Filed 03/15/19 Page 12 of 28
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`Agent Martinez testified that bills in this context means money and indicates they were dealing in
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`bulk cash and that there may be counterfeit bills within the bunch of cash. See James Hr’g Tr.
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`47:17-48:17.
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`Defendant’s phone extraction also shows evidence that “Favian” helped Defendant plan a
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`second trip in which Defendant traveled from Phoenix, Arizona, to Las Vegas, Nevada, to Salt
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`Lake City, Utah, to Denver Colorado, to Albuquerque, New Mexico, and then back to Phoenix.
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`See James Hr’g Tr. 21:14-22:13. A text message from Favian to Defendant on March 16, 2016 at
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`9:52 p.m. said: “Planning for a trip for Friday, what do you think?” Ex. 141A. Defendant responded
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`a minute later to Favian: “You said it!! I get out of work Friday at 6pm if that works out, what do
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`you think old man?” Id. At 9:58 p.m., Defendant texts Favian to throw some CDs in there, “the
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`ones that are in the charger and the one that is in the Cherokee, please.” Id. Special Agent Martinez
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`testified that law enforcement conducted registration queries and determined Hector had two DMV
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`records in Arizona, one for a Dodge Charger, and one for a Jeep Cherokee. James Hr’g Tr. 51:5-
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`12. The contents of the texts indicated that Favian was in possession of the vehicle and preparing
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`it for the trip. James Hr’g 51:2-18.
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`The text messages in Hearing Exhibit 141A show a series of text messages on March 16,
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`2016 starting at 9:52 p.m. through March 18, 2016 at 4:03 p.m. in which Favian and Defendant
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`discussed arrangements for meeting and for the trip. Defendant’s text 3/18/2016 2:54 p.m.
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`indicates he was going to swing by at 5:30 or 6 and was ready to go on the trip. See Ex. 141A;
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`James Hr’g Tr. 52:6-17. At 3/18/2016 4:01 p.m. Favian texts Defendant: “Bro, that the umpire
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`says that after all we would be going for the cards only. What do you think?” Ex. 141A; James
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`Hr’g Tr. 52:21-53:4. Special Agent Martinez testified that “cards” mean “money,” which he
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`explained indicated that on one of the trips he would be picking up money. James Hr’g Tr. 53:5-
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`11. The term “umpire” in Special Agent Martinez’s experience refers to someone higher up the
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`chain. Id. at 30:3-13. Defendant at 4:03 p.m. asks, “How much wil I get out of the
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`equipment/team?” Ex. 141A. Special Agent Martinez understood that question to mean that
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`Defendant was asking how much he can take from the money he picks up. James Hr’g Tr. 53:9-
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`18.
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`On March 19, 2016, beginning at 12:52 a.m. through 12:26 p.m., Favian and Defendant
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`exchanged text messages about where Defendant is and if he has arrived. See Ex. 141A; James
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`Hr’g Tr. 53:19-55:1. Defendant took a series of photographs of locations while he was driving.
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`Ex. 141A. At 12:18 p.m., after Favian asked, “What’s up bro, almost?” Defendant replied, “Almost
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`bro, no pressure no pressure!!!” and asked if Favian still didn’t trust that he would go and come
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`back. Ex. 141A. Because drug suppliers are concerned with a transporter stealing the drugs or
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`money, it is common that there is a certain level of trust needed between the transporter and sender
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`of the narcotics. James Hr’g Tr. 54:17-55:1.
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`At 12:24 p.m. on March 19, 2016, Favian sent a text to Defendant asking, “Oh ok, more or
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`less what time do you think you will arrive with my cousin?” Ex. 141A. Defendant responds, “1
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`1:30 more or less,” and Favian replies to be careful and give him a shout. Id. Defendant took
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`additional photographs while driving, and at 2:23 p.m. Defendant texted Favian, “I arrive in 20.”
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`Id. Favian responded a minute later, “Okee dokee bro, I will send you the number.” Id. At 2:41
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`p.m., Favian sent: “345 299 12XX and tell him you are there for the tickets.” Id. Defendant called
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`the number twice, and they then discussed by text that it was the wrong number. Id. Favian sent
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`him another phone number, 801 835 47XX, which is the same phone number he contacted in Trip
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`1. See id. & James Hr’g Tr. 55:22-56:5. Defendant and Favian exchanged texts between 3:16 p.m.
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`and 3:32 p.m. about no one answering the phone. Ex. 141A; James Hr’g Tr. 56:3-9. At 3:38 p.m.,
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`Favian texted Defendant: “They sent to look for the young man, they will let me know what’s up
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`in a little bit.” Ex. 141A. Another series of phone calls occurred between Favian and Defendant,
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`and then at 4:49 p.m., Defendant asked “My Queen” to look for a Best Western in Salt Lake City.
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`See id. at 141A. At 6:02 p.m., Defendant received a booking confirmation for an Econo Lodge in
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`Provo, Utah, for accommodation that night. See id.; James Hr’g Tr. 56:16-24. Special Agent
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`Martinez confirmed that a photograph Defendant took on March 19, 2016 at 7:04 p.m. was of a
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`Chevron gas station in Provo, Utah, taken from the vantage point of an Econo Lodge hotel, the
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`same hotel that matched the booking confirmation. Ex. 141A; James Hr’g Tr. 22:23-23:17. Favian
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`and Defendant exchanged a series of text messages from 7:40 p.m. to 7:53 p.m. in which he
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`checked on Defendant’s status. See Ex. 141A.
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`On March 20, 2016, at 12:33 a.m., Defendant told Favian, “I am going to the place with
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`yadi.” Ex. 141A. Favian responded, “Ok bro, be careful.” Id. Defendant took a series of additional
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`photographs of his trip as he traveled. Id. Special Agent Martinez confirmed that one of the
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`photographs taken 3/20/2016 8:39 AM was of Hanging Lake Tunnel west of Breckenridge,
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`Colorado, as one drives toward Denver. James Hr’g Tr. 24:13-24.
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`Defendant texted Favian at 9:14 a.m. on March 20, 2016, “Arrive in two hours at the latest.”
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`Ex. 141A. This text message fits the common drug trafficking pattern of a drug transporter
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`indicating that he is ready for the next part. James Hr’g Tr. 57:24-58:7. At 11:56 a.m., Favian sent
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`Defendant a message, “720 692 3656 el mochomo.” Ex. 141A. This text message fits the common
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`drug pattern of sending the contact information for the meet. See James Hr’g Tr. 58:8-59:1. After
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`a series of phone calls occurred at 12:02 a.m. between Defendant and the number and between
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`Defendant and Favian, at 12:44 p.m., Favian sent another text message, “720 692 1865 call this
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`guy.” Ex. 141A. From 12:45 p.m. to 12:50 p.m., Defendant and Favian exchanged text messages
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`about what Defendant was doing. Id. Phone data showed a series of phone calls between 720 692
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`1865, Favian, and Defendant around 1:17 p.m. Id. At 6:24 p.m., Defendant sent a text to “Tony”
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`that he would not be into work because he was in Colorado and would not return until Tuesday
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`morning. Id. At 6:28 p.m., Defendant had a series of phone calls with 720 692 1865, 720 692 3659,
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`and Favian. Id.
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`On March 21, 2016 at 8:02 a.m., Defendant texted Favian, “I arrive in 40 to Albuquerque,
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`I’ll eat breakfast and leave bro.” Id. At 8:12 a.m., the geo-location data indicated that Defendant’s
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`cell phone was in Albuquerque, New Mexico, and he was seeking directions to Phoenix, Arizona
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`from that location. Ex. 141A; James Hr’g Tr. 25:12-25. A series of photographs from Defendant’s
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`phone show that he drove from Nine Mile Hill westbound along I-40. See Ex. 141A; James Hr’g
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`Tr. 26:1-10. On March 21, 2016, Defendant send Favian at text at 11:57 a.m., “Put them on ice!!”
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`Ex. 141A. This text is a similar celebratory type of text as Defendant made in Trip 1. Compare id.,
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`with James Hr’g Tr. 29:16-20, 46:17-24. Beginning at 11:58 a.m. through 2:38 p.m., Defendant
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`and Favian exchanged text messages regarding meeting up at the house. Ex. 141A. At 4:09 p.m.
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`Favian texted Defendant, “Bro so the score 50 for salt lake and 90 for closed color, was that the
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`score that they gave you at each one?” Id. Special Agent Martinez testified that this text is code
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`for picking up 50,000 in Salt Lake City and then 90,000 in Colorado. James Hr’g Tr. 30:16-24,
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`59:14-20. Defendant concurred, “Yes oldman.” Ex. 141A.
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`Defendant and Favian texted again about meeting on 3/23/2016 8:16 p.m. Ex. 141B. The
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`next day, on March 24, 2016 at 4:36 p.m., Defendant texted Favian, “I leave in about an hour old
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`man, I’ll call you getting to Phoenix.” Id. After exchanging texts about how Favian was, Defendant
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`asked, “What do you say old man is the airplane ready?” Id. Favian replied, “Ready.” Id.
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`“Airplane” is a code word for the load vehicle. James Hr’g Tr. 60:2-8. Text messages beginning
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`6:28 p.m. indicate a meeting between Defendant and Favian occurred and they exchanged texts
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`regarding Defendant keeping Favian apprised of his status. Ex. 141B. Defendant took a photograph
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`of himself driving on March