United States v. Gonzalez

Decision Date21 October 2020
Docket NumberCriminal Action No. 20-40 (BAH)
PartiesUNITED STATES OF AMERICA v. JESSICA JOHANNA OSEGUERA GONZALEZ, Defendant.
CourtU.S. District Court — District of Columbia

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

Defendant Jessica Johanna Oseguera Gonzalez has, as of today's date, sixteen pretrial motions pending before this Court, six of which motions are resolved in this memorandum opinion and the accompanying order. See Def.'s Mot. for Bill of Particulars ("Def.'s BOP Mot."), ECF No. 69; Def.'s Mot. for Notice by the Government Pursuant to Rule 12 of Intention to Use Specific Evid. Arguably Subject to Suppression and Incorporated Mem. of Points and Auths. ("Def.'s Rule 12 Mot."), ECF No. 70; Def.'s Mot. to Preserve Notes, Memoranda, and/or Reports and Incorporated Mem. of Points and Auths. ("Def.'s Mot. Preserve Notes"), ECF No. 71; Def.'s Mot to Exclude Witness Prior to and During the Trial of this Case and to Disclose All Instances Where Witnesses Were Interviewed Jointly and Incorporated Mem. of Points and Auths. ("Def.'s Mot. Exclude Witnesses"), ECF No. 72; Def.'s Mot. for Notice of Gov't's Intention to Invoke Residual Hearsay Exception Under Federal Rule of Evidence ("FRE") 807 and Incorporated Mem. of Points and Auths. ("Def.'s FRE 807 Mot."), ECF No. 77; Def.'s Mot. for Leave to File Additional Pretrial Mots. and Incorporated Mem. of Points and Auths. ("Def.'s Mot. Leave"), ECF. No. 73. After a brief description of the charges against defendant, each of the six motions is addressed in turn.

I. BACKGROUND

As set out in a prior decision granting the government's motion for review of a Magistrate Judge's order releasing defendant pretrial and denying defendant's motion to compel discovery from the government in connection with a detention hearing, see United States v. Oseguera Gonzalez, Crim. Action No. 20-40 (BAH), 2020 WL 1065448, at *1-2 (D.D.C. Mar. 5, 2020), 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) (quoting 21 U.S.C. § 1904(b)(2)-(4) and citing 31 C.F.R. §§ 598.314, 598.803).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" the prohibition on such transaction. 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 defendant. In it the government alleges that "[b]eginning on or about September 17, 2015," defendant began engaging in transactions with five separate companies, each of which had been designated underthe Kingpin Act. See Indictment at 1, ECF No. 1. Those companies 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). Indictment at 1-5. Defendant was arrested less than two weeks after the indictment was filed 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. Case. No. 16-229 (BAH) (D.D.C. Dec. 14, 2016).

On July 16, 2020, a grand jury returned a superseding indictment additionally charging defendant as "aid[ing], abet[ing], and caus[ing] others to engage and attempt to engage in" prohibited transactions and dealings with the same five companies, in violation of 18 U.S.C. § 2, and, as an "officer, director, and/or agent" of those entities, as knowingly violating the Kingpin Act, in violation of 21 U.S.C. § 1906(a)(2). See Superseding Indictment at 1-6, ECF No. 65.

II. ANALYSIS

Defendant's motions are largely without merit. For the reasons set out below, each is therefore denied except for the motion to exclude witnesses at trial, which motion is granted in part, without objection from the government, and denied in part.

A. Defendant's Motion for Bill of Particulars

Federal Rule of Criminal Procedure 7(c) requires an indictment to "be a plain, concise, and definite written statement of the essential facts constituting the offense charged." FED. R. CRIM. P. 7(c)(1). If the Court so directs, these factual allegations may be supplemented by a bill of particulars. FED. R. CRIM. P. 7(f). Rule 7(f) permits a defendant to move for a bill of particulars "before or within 14 days after arraignment or at a later time if the court permits." Id. "A bill of particulars can be used to ensure that the charges brought against a defendant arestated with enough precision to allow the defendant to understand the charges, to prepare a defense, and perhaps also to be protected against retrial on the same charges." United States v. Mejia, 448 F.3d 436, 445 (D.C. Cir. 2006) (quoting United States v. Butler, 822 F.2d 1191, 1193 (D.C. Cir. 1987)); United States v. Lorenzana-Cordon, 949 F.3d 1, 5 (D.C. Cir. 2020) ("Of course, indictments must contain sufficient detail for defendants 'to understand the charges, to prepare a defense, and . . . to be protected against retrial on the same charges'" (quoting Mejia, 448 F.3d at 445)). Defendants are not entitled to a bill of particulars as a matter of right, and the determination whether a bill of particulars is necessary lies within the Court's sound discretion. See FED R. CRIM. P. 7(f); Mejia, 448 F.3d at 445. "[I]f the indictment is sufficiently specific, or if the requested information is available in some other form, then a bill of particulars is not required." Butler, 822 F.2d at 1193.

Arguing that "the Superseding Indictment does not provide legally sufficient notice for Ms. Gonzalez to understand the charges and to prepare her defense," defendant requests a bill of particulars with additional information about the allegations against her. Def.'s Mem. of Points and Auths. Supp. Def.'s Mot. for Bill of Particulars ("Def.'s BOP Mem.") at 7, ECF No. 69-1. Defendant points out that the Superseding Indictment "does not identify a single transaction or dealing" in which the she engaged and contends that this charging document thus provides "no notice" and will lead to unfair surprise at trial. Def.'s BOP Mem. at 7-8. Consequently, defendant seeks a bill of particulars (1) specifying particular transactions or dealings in which defendant is alleged to have willfully engaged with each of the businesses named in the Superseding Indictment, Def.'s BOP Mot. ¶¶ 1-5; (2) demonstrating that defendant had actual notice of each OFAC designation relevant to the charges, id. ¶¶ 6-10; (3) specifying particular transactions or dealings in which the defendant willfully evaded or avoided the prohibitions ontransactions or dealings with each of the businesses named in the Superseding Indictment, id. ¶¶ 11-15; (4) specifying how the defendant aided, abetted, and caused others to engage and attempt to engage in transactions or dealings for each of the businesses named in the Superseding Indictment, id. ¶¶ 16-20; (5) specifying how defendant is an "officer, director, and/or agent" of each of the businesses named in the Superseding Indictment, id. ¶¶ 21-25; and (6) specifying how defendant knowingly participated each of the violations alleged in the Superseding Indictment, id. ¶¶ 26-30. Defendant's request for a bill of particulars amounts to a demand that the government spell out its trial strategy and plan to prove aspects of the charges against her, with specific identification of the underlying evidentiary support.

The Superseding Indictment, while somewhat spare, is sufficiently detailed to enable defendant to understand the charges and prepare a defense. An indictment need not specify in detail the precise transactions or dealings that support the charges. Similarly, it need not spell out all of the facts that the government plans to raise to prove that defendant acted with the required mental state. See United States v. Bourdet, 477 F. Supp. 2d 164, 184 (D.D.C. 2007) (indictment sufficiently specific where it identified time period, location, and object of a conspiracy as well as the statutes violated by the conspiracy and the mens rea required by those statutes). Here, the Superseding Indictment describes (1) the general time period of the relevant criminal conduct, (2) the general classes of prohibited conduct in which defendant engaged, (3) the OFAC-designated entities with which defendant dealt, (4) defendant's relationship to the OFAC designated-entities, (5) the statutory provisions that defendant violated, and (6) the mens rea requirement for each violation. See Superseding Indictment at 1-6; see also Gov't's Opp'n Def.'s Mot. Bill of Particulars ("Gov't's Opp'n Def.'s BOP Mot") at 7-8, ECF No. 90.

Moreover, much of the information that defendant seeks has been provided by the government in other filings. See Butler, 822 F.2d at 1193 ("Yet if the indictment is sufficiently specific, or if the requested information is available in some other form, then a bill of particulars is not required." (emphasis added)). For example, in its Motion for Pre-Trial Detention, ECF No.12...

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