United States v. Gomez
| Decision Date | 08 February 2021 |
| Docket Number | No. 1:18-cr-00002-NONE-SKO,1:18-cr-00002-NONE-SKO |
| Parties | UNITED STATES OF AMERICA Plaintiff, v. ISRAEL ALBERTO RIVAS GOMEZ and JOHN DOE, aka "Marcos Castro," Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER DENYING MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR BILL OF PARTICULARS
Before the court is defendant Israel Albert Rivas Gomez's motion to dismiss, or in the alternative, for a bill of particulars, filed on April 6, 2020. (Doc. No. 94.) Co-defendant Marcos Castro joins in the motion. (Doc. No. 95.) Defendants argue that the two-count indictment in this case, charging them with crimes under the Violent Crimes in Aid of Racketeering Activity ("VICAR") statute, 18 U.S.C. § 1959, should be dismissed because the state-law predicates of murder and kidnapping are not sufficiently alleged. For the reasons explained below, the court will deny the motion to dismiss and the alternative motion seeking a bill of particulars.
Defendants are charged in a two-count indictment with kidnapping in aid of racketeering and murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1). (Doc. No. 13.) The indictment alleges that both defendants Rivas Gomez and Castro are members or associates of Mara Salvatrucha, or MS-13, and that the charged crimes were committed "for the purpose of gaining entrance to and maintaining and increasing position in" that organization. (Id. at 13, 14.) MS-13, in turn, is alleged in the indictment to be "an enterprise engaged in racketeering activity." (Id.)
As noted, on April 6, 2020, defendant Rivas Gomez filed a motion to dismiss the two counts of the indictment or, in the alternative, for a bill of particulars. (Doc. No. 94.) On April 7, 2020, defendant Castro joined in that motion. (Doc. No. 95.) They argue that the two counts of the indictment are deficient because the indictment fails to allege that the defendants committed murder and kidnapping as those crimes are generically defined for purposes of VICAR. (Doc. No. 94 at 3, 6, 8-14.) Instead, the defendants contend that references in the indictment to murder and kidnapping under California state law sweep in a broader array of conduct than that contemplated by the generic definitions of those underlying crimes. (Id.) According to defendants, because of the broad sweep of the relevant California statutory provisions, the indictment must be dismissed under the categorical approach. (Id.)
In their alternative request for a bill of particulars, defendants underscore their belief that Count One, which charges murder under VICAR, inadequately advises them of the charges against them because that count of the indictment does not "identify the specific theory of liability the government intends to use at trial." (Doc. No. 94 at 3.)
Oral arguments were heard on all of defendants' motions.
An indictment must contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c). "An indictment that sets forth the offense in the language of the statute itself and contains the necessary factual predicates is sufficient." United States v. Wilson, No. 4:11-CR-00010-RRB, 2011 WL 4368436, at *1 (D. Alaska Sept. 13, 2011), report and recommendation adopted sub nom. United States v. Haynes, No. 4:11-CR-0010-RRB, 2011 WL 4368538 (D. Alaska Sept. 20, 2011), aff'd sub nom. United States v. Gadson, 763 F.3d 1189 (9th Cir. 2014). "[A]n indictment should be: (1) read as awhole; (2) read to include facts which are necessarily implied; and (3) construed according to common sense." United States v. Buckley, 689 F.2d 893, 899 (9th Cir. 1982).
A defendant may move for dismissal of an indictment under Federal Rule of Criminal Procedure 12(b), on grounds including for lack of specificity and failure to state an offense. Fed. R. Crim. P. 12. "The test for validity is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards." United States v. Ely, 142 F.3d 1113, 1120 (9th Cir. 1997). "An indictment will withstand a motion to dismiss if it contains the elements of the charged offense in sufficient detail (1) to enable the defendant to prepare his defense; (2) to ensure him that he is being prosecuted on the basis of the facts presented to the grand jury; (3) to enable him to plead double jeopardy; and (4) to inform the court of the alleged facts so that it can determine the sufficiency of the charge." United States v. Rosi, 27 F.3d 409, 414 (9th Cir. 1994) (citation omitted).
Under Federal Rule of Criminal Procedure 7, a court "may direct the government to file a bill of particulars." Fed. R. Crim. P. 7(f). "A bill of particulars is appropriate when the indictment is insufficient to permit the preparation of an adequate defense." United States v. DiCesare, 765 F.2d 890, 897 (9th Cir.), amended, 777 F.2d 543 (9th Cir. 1985). "Generally an indictment is sufficient if it sets forth the elements of the charged offense so as to ensure the right of the defendant not to be placed in double jeopardy and to be informed of the offense charged." United States v. Woodruff, 50 F.3d 673, 676 (9th Cir.1995), as amended (Apr. 19, 1995). Thus, as the undersigned has previously stated it:
The purpose of a bill of particulars is to inform the defendant of the nature of the charges against him or her with sufficient precision to enable the defendant to prepare for trial, to avoid or minimize the danger of surprise at the time of trial and to protect against double jeopardy should the defendant be prosecuted a second time for the same offense. United States v. Ayers, 924 F.2d 1468, 1483 (9th Cir. 1991); United States v. Mitchell, 744 F.2d 701, 705 (9th Cir. 1984); United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979).
United States v. Cadena, No. CR.S 07-0248 WBS, 2008 WL 2557948, at *1 (E.D. Cal. June 24, 2008).
The indictment in this case sufficiently sets forth the elements of the charged offenses as well as the necessary factual predicates. The VICAR statute which defendants are charged with violating states in part:
(a) Whoever, ... for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders [or] ... kidnaps ... in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished ....
18 U.S.C. § 1959(a).
The Ninth Circuit has "identified four elements required for a conviction under this statute: '(1) that the criminal organization exists; (2) that the organization is a racketeering enterprise; (3) that the defendant[ ] committed a violent crime; and (4) that [the defendant] acted for the purpose of promoting [his] position in a racketeering enterprise.' " United States v. Banks, 514 F.3d 959, 964 (9th Cir. 2008) (quoting United States v. Bracy, 67 F.3d 1421, 1429 (9th Cir. 1995)). While the statute provides definitions for "racketeering activity" and "enterprise," it does not do so with respect to the enumerated violent crimes, including the underlying crimes charged here. Instead, as reported in the Congressional Record:
While section [1959] proscribes murder, kidnaping, maiming, assault with a dangerous weapon, and assault resulting in serious bodily injury in violation of federal or State law, it is intended to apply to these crimes in a generic sense, whether or not a particular State has chosen those precise terms for such crimes.
129 CONG. REC. S1, 22,906 (daily ed. Aug. 4, 1983) (emphasis added). Thus, the definitions implicit in VICAR are "generic." The Ninth Circuit, as well as other circuits, have found that the generic definitions of crimes are informed by "the Model Penal Code, dictionary definitions, and state laws." United States v. Vederoff, 914 F.3d 1238, 1246-47 (9th Cir. 2019) (). In this case, both the defendants and the government agree that the recently adoptedgeneric definition of murder in Vederoff applies. (Doc. Nos. 94 at 10; 114 at 15.) The parties, however, disagree on the significance the generic definition's application.
In a lengthy, detailed brief, the government argues, in essence, that a plain reading of the VICAR statute and consideration of other relevant factors mean that a VICAR prosecution for a state law predicate first requires proof that the defendant violated the generic definition of the charged crime and then also requires proof that the same conduct constitutes a violation of the particular state statute. (Doc. No. 114 at 1, 3, 5, 10, 16.) In other words, a state statute criminalizing murder may sweep in more behavior than the generic definition of murder, but if a state law murder encompasses behavior outside the bounds of the generic definition contemplated in VICAR, that state law murder is not prosecutable under VICAR. (Id. at 14.) In short, the government's view is that only murders in violation of a state murder statute that also satisfy the generic definition of murder can be prosecuted under VICAR. (Id.)
Defendants, on the other hand, argue that the court should apply the categorical approach that is most often employed retrospectively, e.g. to determine whether a state law conviction may serve as a predicate for a sentencing enhancement. (Doc. No. 94 at 6.) According to defendants, if a state statute sweeps in more behavior than the generic definition of the crime contemplated in VICAR, no offense under the state law may ever serve as a VICAR predicate, regardless of the actual conduct in question and despite the fact the determination is not post hoc in the same way. (Id. at 6, 12, 14.)
The court is unable to address every argument and...
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