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Otero DA dismisses 35 felony cases

Editor’s note: This story has been updated in the third paragraph to clarify that no violent offenses were dismissed, only drug crimes.

Copyright © 2018 Albuquerque Journal

The district attorney in Alamogordo dismissed 35 felony criminal cases this week amid allegations that an undercover Otero County deputy used illicit narcotics with suspects before their arrests, sometimes inside the deputy’s tattoo parlor.

Joshua Marchand

Twelfth Judicial District Attorney John P. Sugg told the Journal that the deputy, who reportedly no longer works for the agency, refused to take a polygraph test, invoked his right to a lawyer and then wouldn’t speak with the FBI. The FBI has been investigating the allegations for at least a year, but no criminal charges have been filed against Joshua Marchand.

Sugg clarified on Wednesday that all the charges dismissed involved drug crimes. Some of those same defendants whose drug charges were dropped are still charged with violent crimes, including attempted murder. Several faced first-degree felony charges, carrying a maximum of 18 years in prison, because of their previous drug trafficking convictions.

“We have to be confident if we are going to be taking somebody’s liberty away that everything was done constitutionally and appropriately,” Sugg said. “So do I like the idea that there’s some guilty people that are going to get off and get away with crimes? No, I don’t like that. But my duty is not just to seek a conviction. My duty is to make sure justice is done, and we’re not confident at this point in time whether or not the drug use occurred with deputy Marchand.”

Marchand, 37, couldn’t be reached for comment. There was no answer Tuesday when a Journal reporter called the phone number for his Alamogordo tattoo parlor.

His attorney, Steve Sanders, didn’t return a Journal phone call Tuesday. Nor did Otero County Sheriff Benny House respond to a Journal request for an interview.

Frank Fisher, FBI spokesman in Albuquerque, said in an email, “We don’t comment on reports of investigations.”

At issue was whether the defendants Marchand arrested could accuse the former deputy of entrapment at trial, Sugg said.

“I would say 20 defendants all claim that this individual had been using drugs with them when he was an undercover detective,” Sugg said. “A lot of these issues started coming forward because defense attorneys were telling us that there were some entrapment issues.”

Only cases in which Marchand was an essential witness were dropped, Sugg said. The criminal cases, all filed in 2017, were dismissed with prejudice, Sugg said, meaning they can’t be refiled.

One defendant, charged with selling 0.6 gram of methamphetamine to the deputy, was interviewed by the FBI in April 2018, according to a six-page dismissal notice filed Monday. That defendant, Cory Kessler, reported that he “visually saw” Marchand smoke methamphetamine in 2017. A subsequent polygraph test showed, however, that Kessler was being deceptive.

When confronted with the results, the notice said, Kessler said “his view was partially obstructed because Deputy Marchand was in a small bathroom in Deputy Marchand’s tattoo shop.” While he couldn’t see the deputy “visually” inhale the drug, he saw Marchand “go into the bathroom with the same meth pipe he had just smoked, and he saw smoke coming up from the mirror,” the notice said.

Marchand on the internet is listed as an owner/artist of an Alamogordo tattoo business.

Kessler’s public defender, James Plummer, conducted a pretrial interview with Marchand in February of this year before his client’s polygraph test.

When confronted with the allegations, Marchand said at the time that he had “simulated” drug use in front of Kessler. “This was the first time Deputy Marchand had revealed that he had simulated drug use during an undercover operation to the District Attorney’s Office,” the dismissal notice said.

The FBI served at least two federal grand jury subpoenas for Otero County Sheriff’s Office law enforcement incident reports in which Marchand was involved.

But initially, the incident report related to Kessler’s bathroom smoking claim wasn’t provided to the FBI, and the DA’s Office had never received copy of the report.

Ultimately, when the FBI served a subsequent grand jury subpoena this year demanding all sheriff’s reports documenting “simulated drug use,” a sheriff’s report was provided for that interaction between Kessler and Marchand on April 25, 2017.

Sugg said another defendant who also alleged using drugs with Marchand in 2014 and 2015 passed his polygraph test.

“Numerous other defendants have claimed that Deputy Marchand used drugs with them while he worked as an undercover detective for OCSO. Other accounts from law enforcement officers have raised concerns over the handling of evidence, evidence going missing, problems with the chain of custody for evidence, and possible alcohol intoxication by Deputy Marchand while working undercover,” the dismissal notice said.

“If called to testify in the criminal cases at trial, it is unclear whether Marchand would invoke his right to counsel or his right to remain silent,” the dismissal notice said. “Without a good faith basis to believe Deputy Marchand would answer the questions posed to him while testifying, the State cannot call Deputy Marchand as a witness. There is insufficient evidence to obtain a conviction in this case without Deputy Marchand’s testimony.”

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