United States v. Lorenzana-Cordon, Criminal Action No. 03–cr–331–13–14 (CKK)

• Decision Date: 30 October 2015
• Docket Number: Criminal Action No. 03–cr–331–13–14 (CKK)
• Parties: United States, v. Eliu Lorenzana–Cordon and Waldemar Lorenzana–Cordon, Defendants.
• Court: U.S. District Court — District of Columbia

141 F.Supp.3d 35

United States,

v.Eliu Lorenzana–Cordon and Waldemar Lorenzana–Cordon, Defendants.

Criminal Action No. 03–cr–331–13–14 (CKK)

United States District Court, District of Columbia.

Signed October 30, 2015

George Allen Dale, Law Office of G. Allen Dale, Andrea Goldbarg, Michael Nicholas Lang, Amanda Nunn Liskamm, United States Department of Justice, Washington, DC, for United States.

A. Eduardo Balarezo, Balarezo Law, Barry Coburn, Marc Jason Eisenstein, Coburn & Greenbaum, PLLC, Manuel J. Retureta, Retureta & Wassem, P.L.L.C., Adrian Rosales, Steven N. Siegel, Stephen A. Sola, U.S. Department of Justice, Washington, DC, Ron Earnest, Law Offices of Ron Earnest, Riverdale, MD, Dennis N. Urbano, Miami, FL, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY

, United States District Judge

Presently before the Court is the Government's [614] Motion to Admit Other Crimes Evidence at Trial ("Motion"). For the reasons stated below, upon consideration of the pleadings,¹ the relevant legal authorities, and the record as a whole, the Government's Motion to Admit Other Crimes Evidence at Trial is GRANTED–IN–PART and HELD–IN–ABEYANCE–IN–PART. Specifically, upon close review of the record currently before the Court, the Court finds that the following evidence shall be admitted evidence as evidence intrinsic of the alleged conspiracy:

• evidence of Defendant Eliu's arrest in February 1999 where he possessed multiple firearms and weapons, including AK–47s, M–16s, and submachine guns;

• evidence of Defendants' use and possession of firearms during the time period of the alleged conspiracy;

• evidence of Defendants' use of heavily-armed security during the time period of the alleged conspiracy;

• evidence relating to the drug ledgers seized by Guatemalan officials on April 2, 2003; and

• evidence, through the testimony of cooperating witnesses, that proceeds from and funds for drug trafficking were being laundered from the U.S. to Mexico, Guatemala, and Colombia, during the time period of the alleged conspiracy.

Upon close review of the record currently before the Court, the Court further finds that the following evidence shall be conditionally admitted as "other acts" evidence under Rule 404(b). The Court shall defer judgment until trial as to whether such evidence should be excluded under Federal Rule of Evidence 403

.

• evidence of bribes paid by Defendants and other co-conspirators outside the time frame of the alleged conspiracy;

• evidence of bribes paid by Defendants and other co-conspirators during the alleged conspiracy;

• evidence of Defendants' use of firearms and armed security, outside the time frame of the alleged conspiracy;

• evidence relating to co-Defendant Harold Lorenzana's possession and use of rockets to shoot down law enforcement aircraft; and

• evidence, through the testimony of cooperating witnesses, that proceeds from and funds for drug trafficking were being laundered from the U.S. to Mexico, Guatemala, and Colombia, outside the time period of the alleged conspiracy.

I. BACKGROUND

Defendants are charged with one count of conspiracy to import over five kilograms of cocaine into the United States in violation of 21 U.S.C. § 959

, 960, and 963. Indictment at 3.² The Indictment charges that Defendants "knowingly and intentionally" conspired to manufacture and distribute cocaine in "the Republic of Colombia, El Salvador, Guatemala, Mexico, and elsewhere," from approximately March 1996 to April 2009, the filing date of the Indictment, knowing that the drugs would be unlawfully imported into the United States. Id. at 3–4. The Indictment also includes a "Forfeiture Allegation" pursuant to 21 U.S.C. §§ 853 and 970, stating that the Defendants shall forfeit their "respective right, title or interest" in the proceeds derived from the alleged conspiracy. Id. at 4.

The Government's theory of the conspiracy is, in general, that from March 1996 to April 2009, Defendants were significant members of a complex international drug trafficking organization ("DTO") that received, inventoried, and stored large quantities of cocaine, worth millions of dollars, from Colombia, to be imported into Mexico, and ultimately, the United States, for further distribution. Govt.'s Mot. at 2. The Government alleges that multi-kilogram cocaine shipments were smuggled into Guatemala by land from El Salvador, via "go-fast" boats from Colombia, or arrived directly by aircraft, which landed on clandestine airstrips located on properties owned and/or utilized by the DTO, including Defendants. Id. at 2–3. Once in Guatemala, the cocaine shipments were allegedly received, inventoried, and stored on properties owned and/or utilized by the DTO, including Defendants. Id. at 3. The Government intends to prove at trial that Defendants took the lead in planning, organizing, and directing where shipments of cocaine would be stored upon their delivery to Defendants' properties in Guatemala. Id. The Government also intends to show that in order to protect the cocaine shipments from being seized from law enforcement or stolen from rival DTOs, Defendants and members of their organization used corruption and heavily-armed security to ensure that the cocaine shipments made it safely to their next destination along the distribution route toward the United States. Id. Additionally, the Government alleges that Defendants and other members of their DTO received payments in proceeds and cocaine for their involvement in the conspiracy. Id. Defendants and other members of the DTO then allegedly sold the cocaine to Mexican drug traffickers in Guatemala, knowing or intending that it would be further distributed to the United States. Id.

In the instant motion, the Government has given notice of its intent to introduce three categories of "other crimes" evidence against Defendants in support of the above allegations. First, the Government seeks to admit evidence of public corruption, bribery, and obstruction of justice as direct evidence of Defendants' involvement in the charged conspiracy. Id. at 4. According to the Government, it will use this evidence to prove at trial that in order for the DTO to effectively run its operation of transporting cocaine from Colombia through Guatemala and Mexico and into the United States, Defendants and co-conspirators paid Guatemalan law enforcement officials to provide information to the DTO, to avoid law enforcement's detection and interference with the movement of cocaine, and also to release co-conspirators from prison. Id. at 3. Second, the Government seeks to admit evidence relating to possession of weapons in furtherance of the conspiracy by Defendants and other co-conspirators. Id. at 5. According to the Government, it will use this evidence to prove at trial that to ward off competition, protect the cocaine, and maintain stability within the DTO, Defendants and co-conspirators possessed weapons to further their operation of trafficking narcotics. Id. at 3–4. Third, the Government seeks to introduce evidence of money laundering, related to the movement of drug payments and drug-related proceeds to and by DTO. Id. at 6. According to the Government, it will use this evidence to prove at trial that the laundering activities were necessary to promote the complex international trafficking operations in which Defendants and their DTO were engaged. Id. at 4.

II. LEGAL STANDARD

The issue before the Court is whether the evidence the Government intends to offer can be considered either evidence intrinsic to the crimes charged or evidence of "other acts" subject to Federal Rule of Evidence 404(b)

. The distinction is meaningful because under Rule 404(b), "[e]vidence of other a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed. R. Evid. 404(b). However, such "other acts" evidence may be admitted for "another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident," but the defendant is entitled to notice and a limiting instruction restricting the jury's consideration of the evidence to the purpose for which it is admitted. See Fed. R. Evid. 404(b), 105. By contrast, evidence that is "intrinsic" to the crimes charged is not subject to the limitations of Rule 404(b) because, by its very nature, it does not involve "other crimes, wrongs, or acts," and thus there is no concern that it might be used as improper character evidence. United States v. Bowie, 232 F.3d 923, 927 (D.C.Cir.2000).

Furthermore, to admit "other acts" evidence under Rule 404(b)

, the Court must apply a two-step mode of analysis that is not required when determining whether evidence is "intrinsic" of the charged offense. Under the first step, which addresses Rule 404(b), "[the court] must determine whether the evidence is relevant to a material issue other than character. If so, [the court] proceeds to the second inquiry," under Rule 403, "whether the probative value is substantially outweighed by the prejudice." United States v. Burch, 156 F.3d 1315, 1323 (D.C.Cir.1998) (quoting United States v. Mitchell, 49 F.3d 769, 775 (D.C.Cir.1995) ). Accordingly, if the evidence is not intrinsic to the charged offense, it is generally admissible under Rule 404(b) for any purpose other than to prove character and to show action in conformity therewith. See Bowie, 232 F.3d at 929–30 ("Rule 404(b) is a rule of inclusion rather than exclusion."). The government need not show that the evidence is being offered for one of the purposes specifically enumerated in the rule. Id. Rather, the government need only show that it is offered for a valid purpose other than to prove the defendant's propensity to commit similar acts. Id.

The D.C. Circuit has criticized the distinction between "intrinsic" and "extrinsic" evidence, commonly invoked to avoid the procedural requirements associated with...