WINNEMUCCA — On the eve of trial, defense counsel for a local man charged with trafficking in a controlled substance is attempting to have the case dismissed.

The defendant, Ramiro Gutierrez, 30, was arrested last year and charged with two counts of trafficking in methamphetamine level III.  The defendant is scheduled to go before the jury on March 30.

He is being defended by Robert Hager who alleged the defendant’s rights were violated by the conduct of investigators from the Department of Public Safety – Investigation Division (DPS).

In addition, Hager alleged there was improper communication between the Humboldt County DA’s Office and trial judge Michael Montero, which the judge denied. Defense counsel further alleged his client’s due process rights have been jeopardized by an inability to obtain evidence for review and investigation.

HISTORY OF THE CASE:  Gutierrez was the subject of a drug trafficking investigation conducted by DPS.

During the course of the investigation, DPS used a Confidential Informant (CI) who was sent to the home of Gutierrez’s girlfriend on two separate occasions in January 2009 to purchase methamphetamine under the supervision of investigators.

Gutierrez was arrested at the conclusion of the investigation.

EX PARTE COMMUNICATION:  Hager was in 6^th Judicial District Court on Monday for a pre-trial conference. At that time he brought up the issue of possible ex parte communications between the prosecution and trial judge over the file containing information on the CI.

Ex parte communication is an exchange of information from one of the parties to the judge without the presence of the other side.  This is generally against the rules, though there are some exceptions – including questions of procedure that are general in nature.

In the Gutierrez case, the defense alleged Chief Deputy DA Brian Williams communicated with the judge concerning the CI’s file and proposed the judge redact necessary information out of the file.  Hager alleged he protested this course of action on the telephone.

The CI’s file may be reviewed by the judge if there’s an evidence dispute over the amount of information redacted by the DA’s Office.

In this case, however, there’s no dispute because the defense never received the CI’s file because the DA’s Office doesn’t have it.

Montero adamantly denied on the record that any ex parte communication occurred between the court and the prosecution.  He did acknowledge signing an order to have the CI’s file produced for the defense.

THE CONFIDENTIAL INFORMANT’S FILE:  The fact an order had to be issued for the CI’s file was also a subject of complaint from the defense.  Hager said Humboldt County was the only place he practiced where the DA’s Office did not review the CI file – along with all the other evidence --  before bringing charges. 

“We don’t see this anywhere else,” he said.

He also noted the trial date was fast approaching and his inability to review the file and investigate what it contained prejudiced the defense.

Williams said DPS did not keep CI files locally; they are kept in Carson City. Further, he said, it was the policy of DPS that CI files can only be obtained by an order signed by the judge. To date, the CI file has not been reviewed by either side because it was not turned over by DPS.

Williams said every effort was being made to obtain the file, but the process was slowed by state-mandated furloughs.  He added the file was being expedited to his office, he would redact what information needed to be redacted, and immediately turn the file over to the defense.

Montero declined to get involved in DPS policy.  He did, however, order the DA’s Office to notify him of the status of the file by 5 p.m. Tuesday (March 16).

OUTRAGEOUS GOVERNMENT CONDUCT:  Although Hager filed a motion to have the case dismissed on these issues, and also on the issue of the conduct of DPS during the investigation, Montero moved that discussion to Monday, March 22.

Outrageous government conduct is a relative of the entrapment defense and alleges the conduct of the government was such it shocks the universal sense of fairness.

In order for the court to exercise its supervisory powers to dismiss the case, the defense would have to prove the defendant’s due clause rights were violated by the conduct.

In documents filed with the court, Hager alleged the controlled purchases of methamphetamine  used to implicate Gutierrez were conducted in a way to implicate the defendant and protect his girlfriend.

Hager claimed the evidence indicated it was the girlfriend, and not his client, who facilitated the drug sales from her home where the controlled buys took place, that she benefited economically, and that investigators knew this but protected her because her father is a judge and connected to the 6^th Judicial District Court Drug Court program.

Hager will be given an opportunity to make this argument on Monday.  Williams must first be given an opportunity to respond to the motion for dismissal.