United States v. Gonzalez

• Citation: 507 F.Supp.3d 137
• Decision Date: 11 December 2020
• Docket Number: Criminal Action No. 20-40 (BAH)
• Parties: UNITED STATES of America v. Jessica Johanna OSEGUERA GONZALEZ, Defendant.
• Court: United States District Courts. United States District Court (Columbia)

507 F.Supp.3d 137

UNITED STATES of America

v.Jessica Johanna OSEGUERA GONZALEZ, Defendant.

Criminal Action No. 20-40 (BAH)

United States District Court, District of Columbia.

Signed December 11, 2020

Anthony John Nardozzi, Kaitlin Julia Sahni, Brett Clarence Reynolds, Cole Arnold Radovich, Kate M. Naseef, U.S. Department of Justice, Washington, DC, for United States of America.

Steven J. McCool, Julia M. Coleman, Mccool Law PLLC, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Having already resolved twelve of defendant Jessica Johanna Oseguera Gonzalez's pretrial motions, see United States v. Oseguera Gonzalez , Crim. Action No. 20-40 (BAH), 2020 WL 6158246 (D.D.C. Oct. 21, 2020) and United States v. Oseguera Gonzalez , Crim. Action No. 20-40 (BAH), 2020 WL 6342948 (D.D.C. Oct. 29, 2020), this memorandum opinion resolves the government's four pretrial motions, defendant's six pending motions to compel, and defendant's pending motion to dismiss the Superseding Indictment.¹

Specifically, the government seeks to preclude defendant from suggesting at trial, through argument or testimony, (1) that the government must show defendant was given actual contemporaneous notice that each of the five entities with which she is charged with engaging in unlawful transactions had been designated as a Specially Designated Narcotics Trafficker by the U.S. Department of Treasury's Office of Foreign Asset Control ("OFAC"), Gov't’s Omnibus Set of Pretrial Mots. ("Gov't’s Omnibus Mots.") at 18–21, ECF No. 63; and (2) that the underlying OFAC designations are invalid, id. at 22–23. In addition, the government moves to admit at trial as "other crimes" evidence (3) defendant's association with a Mexico-based business not named in the Superseding Indictment that OFAC also designated as a Specially Designated Narcotics Trafficker, Gov't’s Omnibus Mots. at 5–18; and (4) defendant's activity in keeping ledgers of the proceeds and expenses of certain narcotics trafficking activities for the drug trafficking organization ("DTO") based in Jalisco, Mexico, known as the Cartel de Jalisco Nueva Generacion ("CJNG"), of which her father, Nemesio Oseguera Cervantes ("Mencho") is the leader, Gov't’s Mot. to Admit Other Crimes Evidence at Trial ("Gov't’s 404(b) Mot.") at 1, ECF No. 139.

For her part, defendant's six motions to compel seek discovery from the government of any evidence (1) from OFAC related to the designations of the entities named in the Superseding Indictment, Def.’s Second Mot. to Compel Production of Evid. and Witnesses and Incorporated Mem. of Points and Auths. ("Def.’s 2nd Mot. to Compel"), ECF No. 102; (2) showing a loss relevant to sentencing under U.S.S.G. § 2B1.1 or indicating the proceeds of the entities named in the Superseding Indictment, Def.’s Third Mot. to Compel Production of Evid. and Witnesses and Incorporated Mem. of Points and Auths. ("Def.’s 3rd Mot. to Compel"), ECF No. 105; (3) regarding government agents’ knowledge of defendant's arrest warrant when she entered the United States from Mexico and then flew from Los Angeles to Washington, D.C., Def.’s Fourth Mot. to Compel Production of Evid. and Witnesses and Incorporated Mem. of Points and Auths. ("Def.’s 4th Mot. to Compel"), ECF No. 106; (4) indicating when the government first learned that defendant had engaged in transactions or dealings with the entities named in the Superseding Indictment, Def.’s Fifth Mot. to Compel Production of Evid. and Witnesses and Incorporated Mem. of Points and Auths. ("Def.’s 5th Mot. to Compel"), ECF No. 110; (5) of requests made from the government to the Government of Mexico pursuant to the United States’ mutual legal assistance treaty ("MLAT") with Mexico, Def.’s Sixth Mot. to Compel Production of Evid. and Witnesses and Incorporated Mem. of Points and Auths. ("Def.’s 6th Mot. to Compel"), ECF No. 125; and (6) of any transactions or dealing between the United States and the entities named in the Superseding Indictment, Def.’s Seventh Mot. to Compel Production of Evid. and Witnesses ("Def.’s 7th Mot. to Compel"), ECF No. 145. Defendant has also filed a motion to dismiss the Superseding Indictment for vindictive prosecution. Def.’s Mot. to Dismiss Superseding Indictment for Vindictive Prosecution and Incorporated Mem. of Points and Auths. ("Def.’s Mot. Dismiss"), ECF No. 160.

Following a brief description of the charges against defendant, the government's motions regarding the admissibility, or preclusion, of certain evidence at trial are addressed first before turning to discussion of defendant's motions to compel additional discovery and motion to dismiss.

I. BACKGROUND

As previously described, see Oseguera Gonzalez, 2020 WL 6342948, 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) (quoting first 21 U.S.C. § 1904(b)(2)–(4) and then 31 C.F.R. § 598.314 ; citing 31 C.F.R. § 598.803 ).² The Kingpin Act, inter alia , prohibits "[a]ny transaction ... in property or interests in property" of a designated entity and "[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). Criminal penalties are provided under the Kingpin Act for an individual who "willfully violates the provisions of [the Statute]," id. § 1906(a)(1) and for "[a]ny officer, director, or agent of any entity who knowingly participates in a violation [of the Statute]," id. § 1906(a)(2).

This case was initiated on February 13, 2020, when a grand jury returned a sealed indictment against defendant, alleging that "[b]eginning on or about September 17, 2015, and continuing to the present day," defendant engaged in transactions with five separate companies, each of which had been designated under the Kingpin Act. See Indictment at 1–4, ECF No. 1. A week later, on February 22, 2020, defendant entered the United States from Mexico and was arrested soon thereafter when, on February 26, 2020, she came to this Court to visit her brother, who is a detained 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 a superseding indictment charging that defendant, over the same period as in the original indictment, beginning on about September 17, 2015, and continuing to the present day, "willfully": (1) engaged in transactions with the same five companies named in the original indictment, each of which had been designated under the Kingpin Act, "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 [CJNG], and/or being controlled or directed by, or acting for or on behalf of, [CJNG]," without first obtaining the required license from OFAC; (2) "engaged in transactions or dealings to evade and avoid" the Kingpin Act's prohibitions on dealing with designated entities; and (3) aided, abetted, and caused others to engage in dealings to evade this Act's prohibitions. Superseding Indictment at 1–5, ECF No. 65. The Superseding Indictment also charged defendant with (4) "knowingly participa[ing]" in violations of the Act as an "officer, director, and/or agent" of each designated entity. Id. Each of the five counts make the same allegations with regard to one of the five designated entities.

See id. These five 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). Id.³

These charges were the culmination of a years-long investigation by the Drug Enforcement Agency ("DEA").⁴ DEA began investigating defendant in November 2014 with the involvement of the Mexican Federal Police and the Guadalajara Resident Office. Def.’s Mot. Dismiss at 2. DEA then obtained information, on September 1, 2015, "allegedly connecting Ms. Gonzalez to certain businesses, including Mizu Sushi Lounge, Las Flores Cabanas, J&P Advertising, Tequila Onze Black, and JJGON S.P.R. de R.L. de C.V." Id. at 1. A DEA report, prepared in February 2018, further noted that defendant "had been ‘previously identified as the administrative officer[ ]’ of Cabanas Las Flores Tapalpa, Tequila Onze Black, and J&P Advertising." Id. at 2 (alteration in original). Defendant was also surveilled by DEA between July 31, 2019 and August 2, 2019 when she was in the Unites States. Id. DEA agents approached defendant twice "in an attempt to secure her cooperation," but she did not provide the information they sought. Id. at 2–3.

II. GOVERNMENT'S MOTIONS

The government's four pretrial motions seek to preclude defendant from making certain arguments or eliciting certain testimony at trial, and to admit certain evidence of defendant's other bad acts, under Federal Rules of Evidence 404(b) and 403. These motions are discussed seriatim after review of the applicable legal standards.

A. Applicable Legal Standards

1. Rules 401 and 403

Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence; and ... the fact is of consequence in determining the action." FED. R. EVID. 401. While "[i]rrelevant...