United States v. Mosquera-Murillo, Criminal Action No. 13–cr–134

• Citation: 153 F.Supp.3d 130
• Decision Date: 14 December 2015
• Docket Number: Criminal Action No. 13–cr–134
• Court: U.S. District Court — District of Columbia
• Parties: United States of America, v. Alfredo Mosquera–Murillo, Joaquin Chang–Rendon, and Antonio Moreno–Membache, Defendants.

153 F.Supp.3d 130

United States of America,
v.
Alfredo Mosquera–Murillo, Joaquin Chang–Rendon, and Antonio Moreno–Membache, Defendants.

Criminal Action No. 13–cr–134

United States District Court, District of Columbia.

Signed December 14, 2015

153 F.Supp.3d 140

Adrienne Rose, Amanda Nunn Liskamm, U.S. Department of Justice, Washington, DC, for United States of America.

Ron Earnest, Law Offices of Ron Earnest, Riverdale, MD, for Alfredo Mosquera–Murillo.

Shawn Franklin Moore, Federal Public Defender for D.C., Washington, DC, for Joaquin Chang–Rendon.

Carmen D. Hernandez, Highland, MD, for Antonio Moreno–Membache.

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

Defendants Alfredo Mosquera–Murillo, Joaquin Chang–Rendon, and Antonio Moreno–Membache (collectively, the “defendants”) are charged in a one-count indictment of conspiring to distribute, and possess with intent to distribute, at least five kilograms of cocaine and 100 kilograms of marijuana, on board a vessel subject to the jurisdiction of the United States, in violation of the Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. §§ 70503(a) and 70506(b), an offense that carries a mandatory minimum sentence of ten years of incarceration and a maximum penalty of life imprisonment. See Indictment, ECF No. 1; see 46 U.S.C. § 70506(a) ; 21 U.S.C. § 960(b)(1)(B).¹ The defendants, all Colombian nationals, were extradited to the United States in 2014 and are currently detained pending trial, Minute Entries, dated June 19, 2014 and Oct. 29, 2014, which is scheduled to begin on January 19, 2016, see Minute Entry, dated Oct. 9, 2015.²

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With each of the defendants now detained in the United States for over a year, the parties have a substantial interest in proceeding expeditiously to trial. Indeed, federal law explicitly recognizes the important interests of both the defendants and the public in the prompt resolution of the government's charges at trial. 18 U.S.C. § 3161(h)(7)(A) (allowing for exclusion of time within which a criminal trial must commence only where the “ends of justice” served by a continuance outweigh both the “the best interest of the public and the defendant in a speedy trial”). Pending before the Court are ten pretrial motions, a number of which required supplemental briefing, addressing both the substance of the government's allegations and the means by which the government will attempt to prove its case. In connection with two of these motions, the Court heard testimony from three government witnesses at a day-long evidentiary hearing, but the defendants request no fewer than five additional pretrial hearings to test their various procedural and substantive challenges to this prosecution. See infra Part IV.C.2. & notes 14, 19, 35, 40. These requests for multiple, time-consuming rehearsals of the trial would, if granted, provide the defendants with a helpful preview of the government's case but, as discussed in more detail below, are neither required nor practical. Thus, in an effort to provide the parties with clear direction as they prepare for trial, the discussion that follows is grounded in the concrete realities of the present prosecution and the government's specific allegations against the defendants.

As noted, pending before the Court are a total of ten motions: (1) Chang–Rendon's Motion for Bill of Particulars, ECF No. 69; (2) Moreno–Membache's and Chang–Rendon's separate motions to dismiss the indictment, ECF Nos. 78 and 119, respectively; (3) the United States' Motion In Limine to Introduce Other Crimes Evidence, ECF No. 71; (4) the United States' Motion In Limine to Admit or Allow out-of-court statements by alleged co-conspirators, ECF No. 72; (5) the United States' Motion In Limine to Preclude Cross–Examination or Argument by Defense Counsel as to a variety of topics, ECF No. 73; (6) Chang–Rendon's Amended Motion to Suppress Statements he gave to law enforcement on or about September 9, 2013, ECF No. 74; (7) Chang–Rendon's Amended Motion to Suppress Identifications made by three cooperating witnesses through the use of photo arrays, ECF No. 75; (8) Moreno–Membache's Motion to Disclose Identities of Confidential Informants Regardless of Whether They Will be Called at Trial, ECF No. 79; and (9) Chang–Rendon's Motion to Exclude Expert Testimony, ECF No. 115.³

Following a summary of the relevant factual and procedural background, these motions are discussed in the following sequence: Part II addresses Chang–Rendon's Motion for Bill of Particulars; Part III takes up the defendants' motions to

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dismiss the indictment in its entirety; and, lastly, Part IV addresses the parties' seven outstanding motions seeking the admission or exclusion of certain categories of evidence at trial.

I. BACKGROUND

On June 19, 2012, the U.S. Coast Guard (“USCG”) intercepted a go-fast vessel called the “Mistby ” on the high seas, approximately 70 nautical miles Southeast of Punta Mariato, Panama. Gov't Mot. Pretrial Detention ¶ 4, ECF No. 5. During the ensuing pursuit, the Mistby crew jettisoned overboard bales that were subsequently recovered and determined to contain approximately 125 kilograms of marijuana and approximately 229 kilograms of cocaine. Id. ; Gov't Opp'n Def. Moreno–Membache's Mot. Dismiss Indictment (“Gov't Opp'n Moreno–Membache MTD”) at 2–3, ECF No. 93.

Upon intercepting the vessel, U.S. law enforcement personnel conducted a right-of-visit board to determine the vessel's nationality. Id. After the vessel's master claimed Colombian nationality for both the Mistby and its crewmembers, the United States sought confirmation of the vessel's registry from Colombian authorities, as well as authorization to board and search the vessel pursuant to a formal Agreement Between the Government of the United States of America and the Government of the Republic of Colombia to Suppress Illicit Traffic by Sea. Id. at 2 & n.3 (citing the NARCOTIC DRUGS SHIPRIDER AGREEMENT BETWEEN THE UNITED STATES OF AM. & COLOMBIA, STATE DEPT., No. 97–57, State Dept. No. 97-57, 1997 WL 193931 (Feb. 20, 1997) ). The Government of Colombia confirmed the nationality of the crew and the vessel, and, upon learning that the jettisoned bales contained narcotics, on June 26, 2012, granted the United States government's request to confirm that the exercise of United States jurisdiction over the Mistby was in accordance with this agreement. Id. at 2–3. In so doing, the Colombian government confirmed and concurred with the government's interpretation of the agreement, which served as its consent to allow the government to enforce American law over the vessel. Id. at 3 & n.4. Based on this consent, the United States government determined that the Mistby was subject to the jurisdiction of the United States pursuant to the MDLEA. Id. at 4, Ex. A (Certification for the Maritime Drug Law Enforcement Act Case Involving Go–Fast Vessel Mistby (Colombia)) at 3, ECF No. 93–1.

Following the seizure of the Mistby, investigation by both Colombian law enforcement and the Drug Enforcement Agency (“DEA”) indicated that the shipment was dispatched by a drug trafficking organization (“DTO”) in Colombia. Mot. Pre–Trial Detention ¶ 5. While the charged defendants were not captured aboard the Mistby, but only arrested more than a year after its interdiction, they are now charged with assisting the DTO in its efforts to ship narcotics across the high seas on this vessel. See Executed Arrest Warrants, ECF Nos. 9, 30, 31. Specifically, the government alleges that Chang–Rendon, who was employed as a contractor by the Colombian Navy, obtained information regarding the location of Colombian and United States naval and law enforcement patrols and provided this information to the DTO. Gov't MIL Intro. Other Crimes Evidence at Trial (“Gov't 404(b) MIL”) at 3, ECF No. 71. The government alleges that Mosquera–Murillo assisted in the preparation of the launch of the Mistby by working to recruit crew members for the maritime load; arranging planning meetings prior to the dispatch of the vessel; and serving as the

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primary link (“broker”) between the organizers and co-defendant Chang–Rendon. Id. at 3–4. The government also alleges that Mosquera–Murillo owned the marijuana transported aboard the Mistby . Id. at 4. Finally, the government alleges that Moreno–Membache oversaw the launch of the Mistby, including traveling with the crew members to the launch point on the Colombian coast; guarding the seized load prior to the vessel's launch; and supervising a group of co-conspirators, who helped load the vessel. Id. Following their arrests, the defendants were extradited to the United States on June 16, 2014 (Chang–Rendon) and October 23, 2014 (Mosquera–Murillo and Moreno–Membache) on the single charge of conspiring from approximately January 2012 to February 2013, in Colombia and elsewhere, to distribute, and possess with intent to distribute, at least five kilograms of cocaine and at least 100 kilograms of marijuana, on board a vessel subject to the jurisdiction of the United States, in violation of the MDLEA, 46 U.S.C. §§ 70503 and 70506(b), 21 U.S.C. §§ 960(b)(1)(B) and (b)(2)(G), and 18 U.S.C. § 2. Indictment at 1–2; see Gov't Mots. Pre–Trial Detention, ECF Nos. 5, 14, 15.

Following Chang–Rendon's extradition and arraignment, the government has produced discovery on a rolling basis since June 19, 2014. See Gov't Status Report on Discovery at 1, ECF No. 12. The government's initial productions comprised hundreds of pages of investigation reports and related materials obtained from both United States and Colombian law enforcement authorities, including a USCG drug seizure report, eighteen United States law enforcement reports of cooperator interviews and associated photo arrays, and more than 350 pages of investigation reports and court documents stemming from the Colombian investigation. Id. at 2– 3. In light of the volume of documentary and other evidence,...