Jan 27, 2012 - By Martin Reed and Christina George, Staff WritersArguments for dismissals in the alleged vast drug trafficking prosecution in Fremont County are happening with one case dropped and another one under consideration.
In documents filed in Lander's 9th District Court on Tuesday, deputy county attorney Patrick LeBrun asked Sublette County Judge Marvin L. Tyler to dismiss the case against Tina Jean Jenkins.
LeBrun had dated his request Jan. 17 and Tyler, who presided over the case, signed the order Jan. 19, according to court records.
The dismissal of the Arapahoe woman's indictment alleging a single felony charge of conspiracy to deliver marijuana is the first to happen in the sweeping case involving 35 defendants.
The Fremont County Attorney's Office obtained the indictments by employing the rarely used grand jury process resulting from work by the Wyoming Division of Criminal Investigation and other area law enforcement.
Resutling from "Operation Angry Sun," the indictments unsealed Dec. 2 outline allegations that include multiple transactions involving methamphetamine, cocaine and marijuana among the charged individuals. Some charges include prescription pills.
Nearly all of those indicted have appeared for their arraignments and pleaded not guilty to their respective allegations. A small few have not been in court.
In Jenkins' case, Fremont County attorney Brian Varn said the dismissal resulted from an evaluation of the evidence. He credited defense attorney Tom Fasse, of Riverton, for working to disprove the allegations against his client.
"Mr. Fasse did some excellent public defender work in investigating the allegations, and then my attorney was able to go in and do some investigation and do some further investigation and collect some new evidence," Varn said.
The result of their work determined "she was in fact not implicated and it was proper to dismiss the indictment," Varn said.
In nearly all of the allegations contained in the indictments, investigators cited text messages from cell phones as evidence to support the charges. The text messages cited in Jenkins' case alleged an exchange between herself and another defendant, Alfonso Roman, about buying marijuana in May.
Fasse said the text messages did not come from Jenkins.
"The indictment was based upon intercepted text messages from cell phones," he said. "The cell phone in question was not possessed or used by her.
"As soon as we were able to show the county attorneys she didn't have access to the cell phone in question they dismissed the indictment. ... She's been exonerated," Fasse said.
Jenkins has been affected by the allegations, he added.
"As a result of the indictment, she lost her job with tribal social services, and we hope that they consider reinstating her," Fasse said.
He appreciated that the dismissal arrived without having to disclose evidence on anyone else.
"We didn't have to rat anybody out," he said.
In another case, District Judge Norman E. Young said he would decide within 10 days whether to grant a motion to dismiss Fortino Sanchez-Pena's single charge of aiding and abetting delivery of cocaine.
During the hearing in Lander, defense attorney Sky Phifer argued for dismissal because the warrant for Sanchez-Pena's arrest cites methamphetamine as the illicit substance, but the indictment states cocaine.
Phifer said if his client was held on methamphetamine, he cannot be charged with a cocaine violation. "They are two different substances," he said, adding there is "quite a discrepancy on what my client was bound over on an indictment."
Phifer argued the indictment itself "fails to allege a crime" committed by his client. He pointed to the indictment stating a Honda Accord "believed to be driven" by Sanchez-Pena involved in an alleged drug deal, while the substance allegedly obtained in the transaction was "suspected" cocaine.
Phifer said it needs to be definitive, not suspected or believed.
"That does not make a crime in Wyoming and anywhere else as far as I know," he said.
During the hearing, LeBrun responded to the difference between methamphetamine and cocaine, saying, "I have to agree."
He attributed the difference to a typo.
"It's completely our fault," he said.
LeBrun emphasized that authorities arrested Sanchez-Pena under an indictment issued by a grand jury. He noted that even if it was a different drug, it's the same type of crime.
"It's an evidentiary issue, not a crime issue," LeBrun said, adding that dismissing the charge is not the solution.
He said cocaine should have been the narcotic listed throughout the documents pertaining to the defendant.
Although Young took the dismissal request under advisement, he ordered the prosecution to provide more information about the allegations.
Phifer asked the judge to order the prosecution to provide details about the specific allegations, a document called a bill of particulars.
"We are kind of going in the dark," Phifer said. "We do not know what they're actually alleging my client did."
Some other attorneys in the narcotics case have noted their intent to seek the same document.
Young said he doesn't have much experience with grand jury indictments.
"I think a bill of particulars would go a long way," he said.
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