Exhibit O

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,

Plaintiff, 

vs.

AURORA LOPEZ-AVILA, 

Defendant. 

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No. CR-10-035-TUC-CKJ (BPV)

ORDER

This case was remanded to this Court from the Ninth Circuit Court of Appeals

with directions to consider the exercise of its supervisory powers. Further, currently

pending before the Court is Defendant Aurora Lopez-Avila’s Motion to Dismiss [Doc.

103]. On April 9, 2012, the Court held a hearing on Defendant’s motion. Minute Entry

4/9/2012 [Doc. 108]. The Court after hearing argument and the testimony of Assistant

United States Attorney (“AUSA”) Jerry Albert, took the matter under advisement. For

the reasons delineated below, the Court will grant Defendant’s motion.

 . . .

 . . .

 . . .

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The complete factual recitation is thoroughly outlined in the Ninth Circuit Court of Appeals

opinion in this matter. See United States v. Lopez-Avila, No. 11-10013, slip. op. (9th Cir. filed Jan.

12, 2012) (“Lopez-Avila I”).

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As the record in this case indicates, it was not until Defendant met with a female, Hispanic

probation officer preparing the presentence report that she felt confident enough to talk about the

danger she allegedly suffered. Hr’g Tr. 4/12/10 49:23-50:2. She believed her counsel, because he

was paid by the United States, was a Government agent and did not feel comfortable being forthright

with him about her fears. Id. at 12:20-13:7.

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I. BACKGROUND1

This case began as a rather routine drug trafficking arrest on December 8, 2009. 

The Defendant, a thirty-seven (37) year old Mexican citizen was caught at the DeConcini

port of entry with 10.3 kilograms of cocaine hidden in her car. After entering into a plea

agreement with the Government, the Defendant filed a motion to withdraw her plea of

guilty to assert a duress defense at trial. The Court, after hearing the Defendant’s

testimony and considering the arguments of counsel, found that the Defendant had stated

a prima facie case of duress.2

 As such, the Court allowed the Defendant to withdraw her

plea of guilty and set the case for trial.

Trial in this matter began on November 30, 2010, and ended in a mistrial upon

Defendant’s motion, after AUSA Albert improperly cross-examined the Defendant using

a redacted version of a question asked during the plea colloquy. Subsequently, Defendant

moved to dismiss on double jeopardy grounds, and then filed an interlocutory appeal. See

Def.’s Mot. for Rule 29: Post-Release of Jury; Mot. for Ruling Double Jeopardy [Doc.

76]; Not. of Interlocutory Appeal [Doc. 84]. The Ninth Circuit Court of Appeals affirmed

this Court regarding its finding that double jeopardy did not bar further prosecution of

Defendant. See Lopez-Avila I.

The Government filed a motion seeking redaction of the AUSA’s name from the

appellate opinion, and the Court of Appeals responded by issuing its amended opinion,

United States v. Lopez-Avila, No. 11-10013, slip op. at 9 (9th Cir. filed Feb. 14, 2012)

(“Lopez-Avila II”) emphasizing, “[t]he mistake in judgment does not lie with AUSA

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Albert alone. We are also troubled by the government’s continuing failure to

acknowledge and take responsibility for Albert’s error.” The court went on to state:

Prosecutors, as servants of the law, are subject to constraints and

responsibilities that do not apply to other lawyers; they must serve truth and

justice first. United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993). 

Their job is not just to win, but to win fairly, staying within the rules. 

Berger, 295 U.S. at 88. That did not happen here, and the district court

swiftly and correctly declared a mistrial when Albert’s misquotation was

revealed.

When a prosecutor steps over the boundaries of proper conduct and

into unethical territory, the government has a duty to own up to it and

to give assurances that it will not happen again.

Lopez-Avila II, slip op. at 9 (emphasis added).

The court of appeals remanded the matter to this Court with a clear directive, stating:

[W]e do not need a record greater or different than we have here to

determine that Albert should not have misrepresented the transcript’s

question. Accordingly, we are in a position to do three things to ensure that

this matter is handled properly following this disposition: we remand the

case to allow the district court to consider dismissal with prejudice of the

indictment as an exercise of its supervisory powers and to prevent other

misconduct in the future; we instruct the district court to consider

disciplinary options also pursuant to its supervisory powers; and we note

that the Office of Professional Responsibility within the Department of

Justice has the responsibility of investigating allegations of misconduct by

federal prosecutors. Whether the circumstances attendant to Albert’s

misrepresentation attenuate or aggravate the misconduct is a matter as to

which the trial judge or officials in the Office of Professional Responsibility

are in a better position to determine.

Id., slip. op. at 10 (emphasis added).

II. STANDARD OF REVIEW

“Dismissal under the court’s supervisory powers for prosecutorial misconduct

requires (1) flagrant misbehavior and (2) substantial prejudice.” United States v. Kearns,

5 F.3d 1251, 1253 (9th Cir. 1993) (citations omitted). “A district court may not use its

supervisory authority to dismiss an indictment for prosecutorial misconduct ‘not

prejudicial to the defendant.’” United States v. Ross, 372 F.3d 1097, 1110 (9th Cir. 2004)

(citations omitted). A district court’s dismissal of an indictment based upon its

supervisory powers is reviewed for an abuse of discretion. United States v. Struckman,

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611 F.3d 560, 575 (9th Cir. 2010); United States v. Barrera-Moreno, 951 F.2d 1089,

1091 (9th Cir. 1991). “Factual findings upon which the decision [is] based are reviewed

for clear error.” Ross, 372 F.3d at 1109 (citations omitted).

III. ANALYSIS

“A district court may exercise its supervisory power ‘to implement a remedy for

the violation of a recognized statutory or constitutional right; to preserve judicial integrity

by ensuring that a conviction rests on appropriate considerations validly before a jury;

and to deter future illegal conduct.’” United States v. Chapman, 524 F.3d 1073, 1085 (9th

Cir. 2008) (citations omitted); Barrera-Moreno, 951 F.2d at 1091 (citations omitted). 

“Dismissal under the court’s supervisory powers for prosecutorial misconduct requires (1)

flagrant misbehavior and (2) substantial prejudice.” United States v. Kearns, 5 F.3d 1251,

1253 (9th Cir. 1993) (citations omitted). The court of appeals has “never suggested,

however, that ‘flagrant misbehavior’ does not embrace reckless disregard for the

prosecution’s constitutional obligations.” Chapman, 524 F.3d at 1085. Although “the

drastic step of dismissing an indictment is a disfavored remedy,” the Court finds that it is

appropriate in this case for the reasons stated herein. United States v. Jacobs, 855 F.2d

652, 655 (9th Cir. 1988) (citations omitted).

The Ninth Circuit Court of Appeals cites to United States v. Kojayan, 8 F.3d 1315

(9th Cir. 1993) and Chapman, 524 F.3d 1073 in remanding the case to this Court. These

cases focus not only on the individual AUSA’s behavior, but on the office as a whole. 

Kojayan, 8 F.3d at 1324 (“What we find most troubling about this case is not the AUSA’s

initial transgression, but that he seemed to be totally unaware he’d done anything at all

wrong, and that there was no one in the United States Attorney’s office to set him

straight. Nor does the government’s considered response, filed after we pointed out the

problem, inspire our confidence that this kind of thing won’t happen again.”); Chapman,

524 F.3d at 1088 (“We are similarly troubled, both by the AUSA’s actions at trial and by

the government’s lack of contrition on appeal.”). This broader concern regarding the

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office as a whole is demonstrated in the Court of Appeal’s amended opinion in this case. 

The Government, in its response to the Motion to Dismiss and at oral argument, focused

solely on AUSA Albert’s personal culpability and the sufficiency of the sanctions to him

personally, e.g., self reporting to the Office of Professional Responsibility (“OPR”) and

the Arizona State Bar complaint that has been filed against him. The Kojayan court

stated succinctly, “[i]n a situation like this, the judiciary – especially the court before

which the primary misbehavior took place – may exercise its supervisory power to make

it clear that the misconduct was serious, that the government’s unwillingness to own up to

it was more serious still and that steps must be taken to avoid a recurrence of this chain of

events. Kojayan, 8 F.3d at 1325. 

A. AUSA Albert’s Conduct

During the April 9, 2012 hearing, AUSA Albert testified regarding his lengthy

career as a prosecutor, what happened before the Court during trial, and what has

happened since. AUSA Albert took full responsibility for his actions and apologized

accordingly. As this Court recognized at the hearing, AUSA Albert has historically

conducted himself in a professional manner, and is an experienced advocate. Hr’g Tr.

4/9/2012 at 44:21-45:3.

In this case, AUSA Albert made a tactical decision to edit the plea colloquy to

impeach the Defendant on cross-examination. AUSA Albert approached sidebar, while

cross-examining the Defendant, and represented to the Court that the truncated question

was the entire question, rather than the truth that it was an edited version. It had

previously been stipulated to by counsel that nothing about the Defendant’s guilty plea

would be brought out at trial. AUSA Albert failed to provide the Court with a copy of the

transcript at the time of the sidebar or tell the Court that the question he proposed to ask

was a redacted version of the actual question asked of the Defendant at the prior

proceeding. Based on AUSA Albert’s misstatement, the Court allowed him to proceed

with his cross-examination. AUSA Albert proceeded to question the Defendant, and got

her to admit that she had lied under oath to the magistrate judge. Defense counsel asked

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for and received a copy of the transcript from AUSA Albert, determined what had

transpired, and sought a mistrial. AUSA Albert initially denied that he had done anything

wrong.

AUSA Albert’s direct misrepresentation to the Court is sufficient to deem his

conduct in reckless disregard of his constitutional obligations. This is particularly true

given AUSA Albert’s extensive trial experience and misrepresentation to the Court

regarding a fundamental issue. Indeed, AUSA Albert testified that it was his practice to

always direct the Court’s attention to a potential redaction before using it at trial. 

Moreover, AUSA Albert’s transgression occurred at a critical point in the trial. 

Defendant was testifying regarding the duress she allegedly was under to commit the

crime. This was her primary defense and AUSA Albert’s actions improperly painted her

as a liar before the jury. The Ninth Circuit does not require a pattern of behavior or

multiple incidents of misconduct for a district court to determine that an AUSA’s

behavior was in reckless disregard of his constitutional obligations. See Chapman, 524

F.3d at 1085. The Court, therefore, finds that AUSA Albert’s conduct at trial was

flagrant. See Kearns, 5 F.3d at 1253.

B. United States Attorney’s Office

On appeal and subsequently before this Court, the U.S. Attorney’s office has

continued to minimize AUSA Albert’s error. By labeling AUSA Albert’s conduct as a

“mistake,” the office minimizes the nature of the incident. AUSA Albert intentionally

failed to tell the Court that he was presenting a redacted version of a prior question and

answer – something he had never previously done in his long career as a prosecutor. 

Indeed, AUSA Albert cannot explain why it happened in this case. The office has failed

to recognize that “the prosecution’s misconduct is an affront to the integrity of our system

of justice.” Kohring, 637 F.3d at 914 (Fletcher, J. B., concurring in part and dissenting in

part). For example, the Government’s argument that AUSA Albert “was aware that it is

not uncommon for Magistrate Judges in Tucson to inquire of defendants at a change of

plea proceeding whether they were coerced into committing the crime” is completely

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disingenuous. See Govt’s Resp. [Doc. 104] at 5-6. AUSA Albert was present at the

change of plea proceeding and was fully aware that this did not occur in the instant case. 

The duress issue was not even raised until after the change of plea hearing.

The question now is not whether AUSA Albert will ever engage in the same

conduct again, but rather what is the U.S. Attorney’s office doing to ensure that none of

their attorneys will do so. Unfortunately, Government counsel did not address the office

response at the hearing on the motion to dismiss until pressed by the Court. Although

Government counsel then averred that the attorneys within the U.S. Attorney’s Office

take their reputations, and that of the office, seriously, he did not speak to any actions that

the office has taken to ensure that their attorneys are learning from this experience. In

fact, the statements reflected that counsel personally took the incident seriously, but did

not reflect a clear departmental concern. Indeed, “training to impart awareness of

constitutional rights is an essential function of an office . . . whose administration of

justice the public [relies on].” Kojayan, 8 F.3d at 1324 (alterations in original) (quoting

United States v. Foster, 985 F.2d 466, 469 (9th Cir. 1993)). The Government zealously

advocates in support of their colleague on the one hand, while simultaneously attempting

to assure this Court that it is a serious matter of concern for the office. This equivocation

is ineffective and provides the Court with little guidance. At this juncture, in light of the

Ninth Circuit Court of Appeal’s clear directive, this case is not simply about the mistake

of one AUSA, but rather the prosecuting office as a whole.

C. Substantial Prejudice

Defense counsel avers that the prejudice to his client lies in the additional time she

has spent in custody since her last trial, the toll it has taken on her health, the fact that she

has tipped her trial strategy to Government counsel, and that time results in faded

memories of witnesses. The Government avers that such prejudice could be easily cured

and a mistrial is a sufficient sanction. However, a new trial in this case would advantage

the government. See Chapman, 524 F.3d at 1087. “Where the defendant asks the district

court to use its supervisory powers to dismiss an indictment for outrageous government

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conduct, the proper prejudice inquiry is whether the government conduct ‘had at least

some impact on the verdict and thus redounded to [the defendant’s] prejudice.’” United

States v. Ross, 372 F.3d 1097, 1110 (9th Cir. 2004) (alterations in original) (citations

omitted). “When an initial prosecution ends in mistrial, a subsequent retrial will increase

the emotional and financial burden imposed on the defendant, and may give the state an

unfair opportunity to tailor its case based on what it learned the first time around.” Id. at

1081 (discussing whether double jeopardy precluded retrial). The Court’s confidence as

to the fairness of a retrial in this case is shaken.

Unlike Chapman, this was not a case where the Government’s case was going

badly. The case proceeded to trial and was uneventful through the Government’s case in

chief. Defendant began to present her case, and took the stand, testifying during direct

examination regarding her duress defense. Defendant has now laid out the details of her

defense and at a second trial this fact greatly benefits the Government. Further, the

second time around, the Defendant is less likely to be able to recount her version of the

events after the passage of time. In addition, at a crucial juncture in Defendant’s case,

Government counsel got her to admit on cross-examination that she had lied to a

magistrate judge about her duress defense. But for the Government’s misconduct,

Defendant would not have to withstand a second trial. It is indisputable that “the

government conduct ‘had at lease some impact on the verdict and thus redounded to [the

defendant’s] prejudice.’” Ross, 372 F.3d at 1110 (alterations in original) (citations

omitted). As such, the Court finds that Defendant would be substantially prejudiced by a

retrial in this matter.

IV. CONCLUSION

Dismissal is appropriate where the Government’s misconduct was flagrant, there is

substantial prejudice to the Defendant and no lesser sanction is available. See Chapman,

524 F.3d at 1087. All three of these are true in this case.

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The Court finds that dismissal is appropriate in order to highlight the seriousness

of this matter and to hopefully prevent any recurrence. Furthermore, in light of AUSA

Albert’s self-reporting to OPR and the pending state bar complaint against him, the Court

declines to take any further action regarding AUSA Albert. The record before the Court

demonstrates that AUSA Albert, personally, has been sufficiently punished for his

actions.

Accordingly, IT IS HEREBY ORDERED that the indictment is DISMISSED

WITH PREJUDICE.

DATED this 27th day of April, 2012.

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