United States v. Gonzalez
| Decision Date | 29 October 2020 |
| Docket Number | Criminal Action No. 20-40 (BAH) |
| Parties | UNITED STATES OF AMERICA v. JESSICA JOHANNA OSEGUERA GONZALEZ, Defendant. |
| Court | U.S. District Court — District of Columbia |
MEMORANDUM OPINION
Having already resolved six of defendant Jessica Johanna Oseguera Gonzalez's sixteen pretrial motions, see United States v. Oseguera Gonzalez, Crim. Action No. 20-40 (BAH), 2020 WL 6158246 (D.D.C. Oct. 21, 2020), another six pretrial motions challenging aspects of the Superseding Indictment and the propriety of venue in the District of Columbia are addressed in this Memorandum Opinion. See Def.'s Mot. to Dismiss the Superseding Indictment for Lack of Venue and Incorporated Mem. of Points and Auths. ("Def.'s Venue Mot."), ECF No. 66; Def.'s Mot. to Dismiss the Superseding Indictment Based on Violations of Defendant's Due Process Rights and Incorporated Mem. of Points and Auths. ("Def.'s Due Process Mot."), ECF No. 67; Def.'s Mot. to Dismiss Counts One through Five of the Superseding Indictment as Duplicitous ("Def.'s Duplicity Mot."), ECF No. 68; Def.'s Mot to Dismiss the Superseding Indictment for Vagueness and Incorporated Mem. of Points and Auths. ("Def.'s Vagueness Mot."), ECF No. 74; Def.'s Mot. to Strike Surplusage from the Superseding Indictment and Incorporated Mem. of Points and Auths. ("Def.'s Surplusage Mot."), ECF No. 75; Def.'s Mot. to Dismiss the Superseding Indictment for Lack of Specificity and Incorporated Mem. of Points and Auths. ("Def.'s Specificity Mot."), ECF. No. 76. After a brief description of the charges against defendant, each of the six motions is addressed in turn.
As described in this Court's previous memorandum opinion, see Oseguera Gonzalez, 2020 WL 6158246, at *1-2, defendant is charged in a Superseding Indictment with violations of the Foreign Narcotics Kingpin Designation Act ("Kingpin Act"), Pub. L. No. 106-120, 113 Stat. 1606 (1999), codified at 21 U.S.C. §§ 1901-08. The Kingpin Act allows "the Secretary of the Treasury—and by delegation the Office of Foreign Assets Control [("OFAC")] . . .—to deem foreign persons who 'materially assist[] in . . . international narcotics trafficking activities' as 'specially designated narcotics traffickers.'" Fares v. Smith, 901 F.3d 315, 318 (D.C. Cir. 2018) ().1 The Kingpin Act, inter alia, makes it a crime for United States persons to engage in "[a]ny transaction . . . in property or interests in property" of a designated entity or to engage in "[a]ny transaction or dealing . . . that evades or avoids, or has the effect of evading or avoiding, and any endeavor, attempt, or conspiracy to violate" the prohibitions of the statute. 21 U.S.C. § 1904(c)(1)-(2). The Kingpin Act provides criminal penalties for an individual who "willfully violates the provisions of [the Statute]" and for "[a]ny officer, director, or agent of any entity who knowingly participates in a violation [of the Statute]." Id. § 1906(a)(1)-(2).
On February 13, 2020, a grand jury returned a sealed indictment against the defendant. In it the government alleges that "[b]eginning on or about September 17, 2015," the defendant began engaging in transactions with five separate companies, each of which had been designated under the Kingpin Act. See Indictment at 1-4, ECF No. 1.
Defendant entered the country from Mexico on February 22, 2020, when she was allegedly detained by United States Customs and Border Patrol ("CBP") in a secondaryinspection. See Def.'s Venue Mot. at 2; Def.'s Fifth Mot. to Compel Production of Evid. and Witnesses and Incorporated Mem. of Points and Auths ("Def.'s Fifth Mot. to Compel") at 8, ECF No. 110. Defendant was in a CBP database with an instruction to "detain the defendant and contact" the Drug Enforcement Administration ("DEA"), but DEA was not notified of defendant's entry until after she had been released and admitted into the United States. Gov't's Opp'n to Def.'s Mot. to Dismiss the Superseding Indictment for Lack of Venue ("Gov't's Venue Opp'n") at 6 n.3, ECF No. 88. She was arrested soon thereafter when, on February 26, 2020, she came to this Court to visit her brother, who is a defendant in a criminal case also pending in this Court. See United States v. Oseguera-Gonzalez, Crim. Action. No. 16-229 (BAH) (D.D.C. Dec. 14, 2016).
On July 16, 2020, a grand jury returned the Superseding Indictment charging that defendant (1) engaged in transactions with five separate companies, each of which had been designated under the Kingpin Act, (2) "engaged in transactions or dealings to evade and avoid" the Act's prohibitions on dealing with designated entities; (3) aided, abetted, and caused others to engage in dealings to evade the Act's prohibitions; and (4) knowingly participated in violation of the Act as an officer, director, and/or agent of each designated entity. See Superseding Indictment at 1-5, ECF No. 65. The first count of the Superseding Indictment reads in full:
Beginning on or about September 17, 2015, and continuing to the present day, in the District of Columbia, Mexico, and elsewhere, the defendant, JESSICA JOHANNA OSEGUERA GONZALEZ, willfully (1) engaged in transactions or dealings in property or interests in property of a foreign person, J&P Advertising, S.A. de C.V. (also known as J and P Advertising, S.A. de C.V.), designated as materially assisting in, or providing support for or to, or providing goods or services in support of, the international narcotics trafficking activities of the significant foreign narcotics trafficker known as the Cartel de Jalisco Nueva Generacion, and/or being controlled or directed by, or acting for or on behalf of, Cartel de Jalisco Nueva Generacion, under Title 21, United States Code, Sections 1904(b)(2), 1904(b)(3), and did not first obtain the required license from theOffice of Foreign Asset Control ("OFAC"); and (2) engaged in transactions or dealings to evade and avoid, and that had the effect of evading and avoiding, the prohibition on transactions or dealings in property or interests in property of said foreign person; and aided, abetted, and caused others to engage and attempt to engage in transactions and dealings to evade and avoid the prohibition on transactions or dealings in property of said foreign person. The Defendant's transactions or dealings violate Title 21, United States Code, Sections 1904(c)(1), 1904(c)(2) and 1906(a)(1), and Title 18, United States Code, Section 2. The Defendant is an officer, director, and/or agent of J&P Advertising, S.A. de C.V. (also known as J and P Advertising, S.A. de C.V.), who knowingly participated in the violation alleged in this Count, in violation of Title 21, United States Code, Section 1906(a)(2).
Superseding Indictment at 1-2. Each of the other four counts makes the same allegations with regard to one of the other designated entities. See Superseding Indictment at 1-5. These entities are (1) J&P Advertising S.A. de C.V.; (2) JJGON S.P.R. de R.L. de C.V.; (3) Las Flores Cabanas (aka Cabanas Las Flores); (4) Mizu Sushi Lounge and Operadora Los Famosos, S.A. de C.V. (aka Kenzo Sushi and Operadora Los Famosos, S.A.P.I. de C.V.); and (5) Onze Black (aka Tequila Onze Black).
Defendant seeks dismissal or transfer of the Superseding Indictment on various grounds, as well as removal as surplusage of the same sentence repeated in each count. None of these motions has any merit and each is therefore denied.
Defendant moves to dismiss the superseding indictment for lack of venue, arguing (1) that venue is not proper in the District of Columbia under 18 U.S.C. § 3237(a) because none of the offense conduct took place in this district and (2) that venue is not proper under 18 U.S.C. § 3238 because defendant was "first brought" to the Southern District of California when she was taken to secondary inspection by CBP. Def.'s Venue Mot. at 2 & n.2. In the alternative,defendant requests that the case be transferred to the Southern District of California under Federal Rule of Criminal Procedure 21(b). Def.'s Venue Mot. at 1 n.1.
The first relevant venue statute, 18 U.S.C. § 3237 (), provides, in relevant part:
Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
18 U.S.C. § 3237(a). The second statute, 18 U.S.C. § 3238 (), provides, in relevant part:
The trial of all offenses begun or committed . . . out of the jurisdiction of any particular State or district, shall be in the district in which the offender . . . is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender . . . , or if no such residence is known the indictment or information may be filed in the District of Columbia.
18 U.S.C. § 3238. These venue provisions are not mutually exclusive: venue might be proper under § 3237(a) or § 3238, or both. See United States v. Miller, 808 F.3d 607, 620 & n.9 (2d Cir. 2015) (); see also United States v. Hassanshahi, 185 F. Supp. 3d 55, 59 (D.D.C. 2016) (citing Miller).
The government contends that venue is appropriate under § 3237(a) because the crimes charged include omissions of actions that should have occurred in the District of Columbia. Gov't's Venue Opp'n at 2. The Kingpin Act prohibits certain transactions and dealings involving specially designated narcotics traffickers "except to the extent...
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