Case 2:18-mj-01760-JFM Document 5 Filed 08/17/18 Page 1 of 8 1 ELIZABETH A. STRANGE First Assistant United States Attorney 2 District of Arizona 3 KEITH VERCAUTEREN Assistant U.S. Attorney 4 Arizona State Bar No. 013439 Two Renaissance Square 5 40 N. Central Ave., Suite 1200 Phoenix, Arizona 85004 6 Telephone: 602-514-7500 Email: keith.vercauteren@usdoj.gov 7 Attorneys for Plaintiff 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 United States of America, Plaintiff, 12 v. 13 14 Magistrate’s Case No. 18-1760MJ (JFM) Magistrate’s Case No. 18-1767MJ (JFM) UNITED STATES’ MEMORANDUM FOR DETENTION Jesus Ivan Lopez Garcia, Defendant. 15 16 The United States of America files this Memorandum seeking the detention of JESUS 17 IVAN LOPEZ GARCIA (Defendant) pending trial since Defendant poses both a flight risk 18 and a danger to the community. 19 I. PROCEDURAL HISTORY 20 On August 13, 2018, Defendant was arrested and a Complaint was filed on August 21 14, 2018, charging Defendant with Count 1, Possession with Intent to Distribute 500 grams 22 or more of methamphetamine, Count 2, Possession with Intent to Distribute 5 kilograms or 23 more of cocaine, and Count 4, Possession with Intent to Distribute 1 kilogram or more of 24 heroin, all in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A); and Count 3, Possession 25 with Intent to Distribute a mixture and substance containing a detectable amount of fentanyl, 26 in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). 27 On August 15, 2018, law enforcement executed Federal search warrants at 28 Defendant’s business and residence. Law enforcement discovered a transnational tunnel Case 2:18-mj-01760-JFM Document 5 Filed 08/17/18 Page 2 of 8 1 from the Republic of Mexico into Defendant’s business in San Luis, Arizona. 2 3 4 On August 16, 2018, a Complaint was filed charging Defendant with one count of Conspiracy to Construct a Border Tunnel, in violation of 18 U.S.C. § 555. II. FACTS 5 On August 13, 2018, at approximately 5:45 p.m., a San Luis Police Department 6 Officer observed JESUS IVAN LOPEZ GARCIA driving a white 2015 Chevrolet Silverado 7 pickup truck bearing Arizona license plate CCL5849 with a trailer attached to the hitch 8 traveling near Somerton, Arizona. The Officer conducted a traffic stop for an equipment 9 violation. During the traffic stop, a Narcotic Detection Dog (NDD) positively alerted for the 10 presence of drugs on the trailer. The trailer was not covered, and law enforcement found two 11 large containers filled with packages wrapped in plastic. Suspecting the packages to contain 12 a large quantity of drugs, the officer called Federal Special Agents from Homeland Security 13 Investigations (HSI). 14 The HSI agents removed the two containers from the trailer, which contained two- 15 hundred thirty-nine (239) packages, including 118.65 kilograms (261 pounds) of 16 methamphetamine, 6.4 kilograms (14 pounds) of cocaine, 13.65 kilograms (30 pounds) of 17 white heroin, 6.25 kilograms (13.7 pounds) of brown heroin, and 3.1 kilograms (6.8 pounds) 18 of fentanyl. 19 On August 15, 2018, law enforcement executed Federal search warrants at 20 Defendant’s business and residence. A search of Yuma County Assessor’s records verifies 21 that Defendant’s business property at 552 San Luis Plaza Drive, San Luis, Arizona, is owned 22 by Defendant. Specifically, records show that Defendant purchased this property on April 23 17, 2018, for $390,000.00. Records also reveal that Defendant paid this entire sum in United 24 States currency. The property’s recording date was verified as May 1, 2018, with a reception 25 number of 2018-11384. 26 hundred yards north of the international border with the city of San Luis Rio Colorado, 27 Mexico. This area of the border is marked by a primary fence along the border, and a 28 secondary fence, approximately fifty yards north of the primary fence. Defendant’s business property is located approximately two -2- Case 2:18-mj-01760-JFM Document 5 Filed 08/17/18 Page 3 of 8 1 The Defendant’s business property contains a structure that was a Kentucky Fried 2 Chicken fast food restaurant for several years. However, the structure was vacant in recent 3 years and was not used for business. Law enforcement observed Defendant coming in and 4 out of this business property on several occasions, including carrying the large containers 5 from the business to the trailer just prior to the traffic stop on August 13, 2018. 6 On August 15, 2018, at approximately 2:00 p.m., law enforcement searched 7 Defendant’s business property, and located an opening in the floor of the property. The 8 opening lead to a tunnel, which was large enough for people to walk and transport packages 9 through the tunnel and into Defendant’s business property. On August 15, 2018, agents were 10 informed by representatives of the Mexican government that the tunnel did in fact transverse 11 the international border between the Republic of Mexico and the United States. HSI Special 12 Agents have also verified that the Secretary of the Department of Homeland Security did not 13 authorize the tunnel and that the tunnel is in fact subject to inspection by Immigration and 14 Customs Enforcement (ICE). The approximate distance from the tunnel’s exit point on the 15 defendant’s property in San Luis, Arizona from the primary border fence demarking the 16 international border is approximately 610 feet (610 feet is approximately 200 yards). This 17 distance does not include the exact distance from the tunnel’s entry point in San Luis Rio 18 Colorado, Mexico to the international border. 19 A clandestine, unauthorized, underground tunnel traversing the United States and the 20 Republic of Mexico is not the sort of undertaking that could have been accomplished by 21 Defendant alone. This tunnel would take this Drug Trafficking Organization (DTO) a long 22 time to construct and would have been very expensive. In the experience of HSI Special 23 Agents, such an endeavor necessarily requires a combination of several individuals on both 24 sides of the border, engaged in an intricate, risky transnational conspiracy to construct such 25 a secretive structure. Such tunnels, not uncommon to the border of the United States and the 26 Republic of Mexico, are almost exclusively used for the smuggling of narcotics from Mexico 27 into the United States. 28 -3- Case 2:18-mj-01760-JFM Document 5 Filed 08/17/18 Page 4 of 8 1 III. DEFENDANT’S CRIMINAL HISTORY 2 Defendant was charged with Count 3, Conspiracy to Possess with Intent to Distribute 3 500 grams or more of methamphetamine, and 5 kilograms or more of cocaine; Count 4, 4 Conspiracy to Commit Promotional Money Laundering; and Count 5, Conspiracy to Commit 5 Concealment Money Laundering on December 11, 2012, with a Superseding Indictment on 6 January 15, 2013. On February 3, 2014, Defendant pleaded guilty to Count 5. On May 27, 7 2014, Defendant was sentenced to eleven months imprisonment followed by a three-year 8 term of supervised release. The count to which Defendant pleaded guilty explicitly stated 9 that the acts which constitute the offense “involved the proceeds of specified unlawful 10 activity, that is, the possession with intent to distribute methamphetamine and cocaine, in 11 violation of Title 21, United States Code, Section 841.” 12 On June 1, 2006, Defendant was convicted of two counts of Driving Under the 13 Influence (DUI), and Extreme DUI. On February 8, 2010, Defendant was convicted again 14 of DUI. On August 28, 2013, Defendant was convicted of Driving on a Revoked Driver’s 15 License. 16 IV. LEGAL ANALYSIS 17 Pursuant to Title 18, United States Code, Section 3142(e), a judicial officer shall order 18 the detention of the person before trial if the officer finds that no condition or combination 19 of conditions will reasonably assure the appearance of the person as required and the safety 20 of any other person and the community. Section 3142(e) contains a presumption that no 21 condition or combination of conditions will reasonably assure the appearance of the 22 defendant and the safety of the community based on the nature of his charges. 23 24 25 26 Title 18, United States Code, Section 3142(g) outlines the factors to be considered which include: (1) the nature and circumstances of the offense charged, including whether the offense … involves a … controlled substance; 27 (2) the weight of the evidence against the person; 28 (3) the history and characteristic’s of the person, including -4- Case 2:18-mj-01760-JFM Document 5 Filed 08/17/18 Page 5 of 8 1 (A) … family ties, employment, financial resources, length of residence in the 2 community, community ties, past conduct, history relating to drug or alcohol abuse, 3 criminal history, …; and 4 (4) the nature and seriousness of the danger to any person or the community that 5 would be posed by the person’s release. 6 1) 7 Defendant is charged with Possession with Intent to Distribute methamphetamine, 8 cocaine, and heroin, which all carry a mandatory minimum sentence of ten (10) years, with 9 a maximum of life imprisonment. Defendant is also charged with Possession with Intent to 10 Distribute fentanyl and Conspiracy to Construct a Border Tunnel, which both carry a 11 maximum of twenty (20) years’ in prison. Under the United States Sentencing Guidelines 12 (U.S.S.G.), Defendant is facing an Offense Level of 42, which includes a base offense level 13 of 38 for the large quantities of drugs, a two-level enhancement for importation of 14 methamphetamine, and another two-level enhancement for maintaining a drug premise. 15 Defendant has a Criminal History Category II, and therefore, Defendant is facing an advisory 16 guideline range of 360 months to life in the Bureau of Prisons. Nature and Circumstances of the Offense 17 The tunnel that ended in the Defendant’s business property extended to Mexico and 18 was built for smuggling large quantities of controlled substances. This tunnel was very well 19 constructed and would have taken this Drug Trafficking Organization (DTO) a long time to 20 dig and would have been very expensive. This tunnel necessarily required a combination of 21 several individuals on both sides of the border, engaged in an intricate, risky transnational 22 conspiracy to construct such a secretive structure. A DTO would limit knowledge and access 23 to this type of tunnel to very few well-trusted members of the organization. 24 Defendant was clearly a well-trusted member of this DTO. Not only was Defendant 25 trusted with knowledge and access to this transnational tunnel, Defendant was trusted with a 26 very large quantity of expensive drugs. Based on wholesale prices in Arizona, 261 pounds 27 of methamphetamine is worth $417,600, 6.4 kilograms of cocaine is worth $134,400, 13.65 28 kilograms of white heroin is worth $395,850, 6.25 kilograms of brown heroin is worth -5- Case 2:18-mj-01760-JFM Document 5 Filed 08/17/18 Page 6 of 8 1 $118,750, and 3.1 kilograms of fentanyl is worth $99,200. Therefore, Defendant was trusted 2 with $1,165,800 worth of controlled substances. 3 Based on the possible punishment in this case, Defendant has every incentive to flee 4 this prosecution. Additionally, Defendant lost over $1 million worth of drugs and the 5 investigation led law enforcement to the tunnel at his business property. 6 Defendant may face repercussions from the DTO and may flee to avoid consequences due 7 to the drug seizure and dismantlement of the expensive tunnel. These facts show that the 8 nature and circumstances of the crimes support a finding that Defendant is a flight risk and 9 a danger to the community. Therefore, 10 2) 11 Law enforcement observed Defendant at his business property on several occasions, 12 including carrying the large containers from the business to the trailer just prior to the traffic 13 stop on August 13, 2018. Defendant was the sole occupant and driver of the truck when 14 stopped by law enforcement and the drugs were found in his possession. Following the 15 traffic stop and seizure of the large quantity of drugs, law enforcement executed a search 16 warrant at Defendant’s business property and located the transnational tunnel. Therefore, 17 the United States views its evidence as strong in this case. Weight of the Evidence 18 3) 19 Defendant has documented issues with alcohol abuse. Defendant has two prior 20 convictions for DUI, including extreme DUI, in 2006 and 2010. Even after Defendant’s 21 driving privileges were revoked, Defendant disobeyed court rules and drove anyway, 22 resulting in a conviction for driving on a revoked driver’s license in 2013. As stated above, 23 Defendant has a previous felony conviction in 2014 for money laundering for drug 24 traffickers. Despite facing severe consequences in Federal Court previously, Defendant has 25 continued to engage in more dangerous conduct involving drug trafficking. History and Characteristics of Defendant 26 Defendant also has strong ties to Mexico. Defendant admitted to the Pretrial Services 27 Officer that he travels to Mexico about three times per month and stays overnight at his 28 parent’s house. Defendant could easily flee the United States if released in this case and -6- Case 2:18-mj-01760-JFM Document 5 Filed 08/17/18 Page 7 of 8 1 comfortably reside in Mexico with a place to live and familial ties. Thus, Defendant’s history 2 and characteristics demonstrate that he is a flight risk and a danger to the community. 3 4) Nature and Seriousness of Danger 4 Defendant had a large quantity of dangerous drugs. The Court is well aware of 5 numerous cases of individuals committing violent acts while high on methamphetamine. It 6 has also been well reported that the United States is facing an epidemic of heroin overdose 7 cases. Fentanyl is synthetic heroin, which is an extremely toxic substance that has also led 8 to numerous overdose deaths. The amount of these dangerous drugs posed an extreme 9 danger to our community. Defendant committed these crimes while he was recently released 10 from supervision for a Federal felony conviction. Therefore, these facts show that Defendant 11 is a flight risk and a danger to the community. 12 V. CONCLUSION 13 Defendant should be detained as a flight risk by a preponderance of the evidence and 14 a danger to the community by clear and convincing evidence. The fact that the defendant is 15 facing a lengthy prison term is a factor this Court should consider in assessing the risk of 16 flight of Defendant. Defendant may face repercussions from the DTO and may flee to avoid 17 consequences due to the drug seizure and dismantlement of the expensive tunnel. Defendant 18 has alcohol problems with numerous DUI convictions. Defendant also has a previous 19 Federal felony conviction for similar conduct and involvement with drug traffickers. Instead 20 of learning from his past misdeeds, Defendant has escalated his behavior and status as a 21 trusted member of a drug trafficking organization. 22 conditions would reasonably assure Defendant’s appearance or the safety of others in the 23 community. The charges in this case carry a presumption of detention, and based on all of 24 the facts above, Defendant cannot rebut the presumption. Therefore, the United States 25 respectfully requests that the Court order Defendant be detained as both a flight risk and a 26 danger to the community. 27 28 -7- No condition or combination of Case 2:18-mj-01760-JFM Document 5 Filed 08/17/18 Page 8 of 8 1 Respectfully submitted this 17th day of August, 2018. 2 ELIZABETH A. STRANGE First Assistant United States Attorney District of Arizona 3 4 s/ Keith Vercauteren KEITH VERCAUTEREN Assistant U.S. Attorney 5 6 7 CERTIFICATE OF SERVICE 8 9 10 11 12 13 14 I hereby certify that on August 17, 2018, I electronically transmitted the attached document using the CM/ECF System to the Clerk’s office as well as the following registrant: Paul Ramos Attorney for Defendant s/ Keith Vercauteren KEITH VERCAUTEREN Assistant U.S. Attorney 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-