United States v. Rodriguez

• Decision Date: 27 July 2020
• Docket Number: CRIMINAL ACTION NO. 4:18-CR-00216-ALM-CAN-18
• Parties: UNITED STATES OF AMERICA v. CELSO RODRIGUEZ A/K/A BIG PUN (18)
• Court: U.S. District Court — Eastern District of Texas

UNITED STATES OF AMERICA v. CELSO RODRIGUEZ A/K/A BIG PUN (18)

CRIMINAL ACTION NO. 4:18-CR-00216-ALM-CAN-18

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

July 27, 2020

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Defendant Celso Rodriguez, Jr.'s Motion to Dismiss the Indictment, or, in the alternative, For a Bill of Particulars ("Defendant's Motion") [Dkt. 738]. Defendant moves to dismiss the indictment under Federal Rule of Criminal Procedure Rule 12(b)(3)(B)(iii) for lack of specificity or alternatively under Rule 7(f) for an order "directing the Government to inform the defendant of the nature of the [sic] each charge against him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at trail [sic], and to enable him to plead his acquittal or conviction in bar of another prosecution for the same offense" [Dkt. 738]. The Government opposes Defendant's Motion [Dkt. 745]. United States District Judge Amos Mazzant, III has referred Defendant's Motion to the undersigned for consideration and a determination or recommended disposition. After reviewing the Motion [Dkt. 738] and all other relevant filings [including Dkts. 745; 823],¹ the Court recommends that the Motion be DENIED.

APPLICABLE BACKGROUND

On November 15, 2018, the grand jury returned a two-count indictment in which Defendant was charged [Dkt. 1]. On February 6, 2019, the grand jury returned a fifteen-count Second Superseding Indictment, naming Defendant in each of Counts One, Two, and Three for conspiracy to possess with intent to manufacture and/or the intent to distribute methamphetamine, heroin, and cocaine, a violation of 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C. § 846 [Dkt. 311, Sealed]. Defendant Rodriguez claims the Second Superseding Indictment is "deficient," "lacks adequate specificity to provide Defendant with notice of the charges against him," and in the interest of fairness and justice should be dismissed, or the Government should be directed to inform Defendant of a list of particulars which Defendant claims are essential to his ability to prepare a defense for trial [Dkt. 738 at 1-3]. The Government contends, to the contrary, the charges are sufficiently specific and clear, and to require further disclosure would necessarily be a disclosure of evidence prior to trial [Dkt. 745]. Additionally, the Government argues it has provided Defendant with all of the discovery that it is required to divulge at this time and that Defendant cannot demonstrate any prejudice or point to the withholding of any fact or information which causes actual surprise or injury [Dkt. 745]. Defendant acknowledges the Government has provided discovery, but claims that of the discovery produced, the only potentially incriminating evidence thus far revealed has no factual, physical, or forensic support [Dkt. 738 at 2-3].

LEGAL STANDARDS AND ANALYSIS

Motion to Dismiss

Rule 12 of the Federal Rules of Criminal Procedure provides that "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial onthe merits." FED. R. CRIM. P. 12(b)(1). This includes a pre-trial motion challenging the indictment for lack of specificity. FED. R. CRIM. P. 12(b)(3)(B)(iii).

"The indictment . . . must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government." FED. R. CRIM. P. 7(c)(1). An indictment is legally sufficient on its face if it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal to bar a subsequent prosecution. United States v. Heon Jong Yoo, No. 6:18CR16, 2018 WL 9362570, at *2 (E.D. Tex. Nov. 8, 2018) (quoting United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004)) ("'[I]t is well settled that an indictment must set forth the offense with sufficient clarity and certainty to apprise the accused of the crime with which he is charged.' The test for sufficiency is 'not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimum constitutional standards[.]'"). Stated differently, "[t]he sufficiency of an indictment is judged by whether (1) each count contains the essential elements of the offense charged, (2) the elements are described with particularity, without any uncertainty or ambiguity, and (3) the charge is specific enough to protect the defendant against a subsequent prosecution for the same offense." United States v. Lightner, No. H-18-513, 2018 WL 6602183, at *2 (S.D. Tex. Dec. 17, 2018) (quoting United States v. Lavergne, 805 F.2d 517, 521 (5th Cir. 1986)).

Relevant herein, even though the indictment must contain "the essential facts" of the charged crime, the defendant is not entitled to "the evidentiary details by which the government plans to establish his guilt." FED. R. CRIM. P. 7(c)(1); United States v. Gordon, 780 F.2d 1165, 1172 (5th Cir. 1986) (citation omitted). The Fifth Circuit has explained that "the language of the statute may guarantee sufficiency if all required elements are included in the statutory language."Id. at 1171 (citation omitted). Indeed, "[a] defendant may not properly challenge an indictment, sufficient on its face, on the ground that the allegations are not supported by adequate evidence, for an indictment returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to call for trial of the charge on the merits." United States v. Mann, 517 F.2d 259, 267 (5th Cir. 1975) (citing Costello v. United States, 350 U.S. 359, 363 (1956)), cert. denied, 423 U.S. 1087 (1976). Allowing courts to evaluate the quality of evidence prior to trial runs "counter to the whole history of the grand jury institution," and, thus, courts cannot rule on motions to dismiss based on the sufficiency of the evidence. United States v. Strouse, 286 F.3d 767, 773 (5th Cir. 2002) (citation omitted).

Accordingly, the central issue in considering Defendant's instant request to dismiss the indictment is whether Counts One, Two, and Three of the Second Superseding Indictment properly and adequately state the elements of the charged crimes. See United States v. Luna, No. DR-06-CR-972-AM, 2014 WL 12861730, at *2 (W.D. Tex. Jan. 9, 2014) (quoting United States v. Ramirez, 233 F.3d 318, 323 (5th Cir. 2000)) ("Generally, an indictment which follows the language of the statute under which it is brought is sufficient to give a defendant notice of the crime of which he is charged.").

The conspiracy provision of the Controlled Substances Act, 21 U.S.C. § 846, reads: "any person who . . . conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the . . . conspiracy." 21 U.S.C. § 846. The Second Superseding Indictment alleges that Defendant conspired to violate 21 U.S.C. § 841, which provides that "it shall be unlawful for any person knowingly or intentionally . . . to . . . distribute . . . a controlled substance." 21 U.S.C. § 841(a)(1). The elements for a controlled substance conspiracy charge are as follows:

First: "That two or more persons, directly or indirectly, reached an agreement to" possess with the intent to distribute a controlled substance;

Second: "That the defendant knew of the unlawful purpose of the agreement";

Third: That the defendant joined in the agreement willfully, that is, with the intent to further its unlawful purpose; and

Fourth: "That the overall scope of the conspiracy involved at least" [insert quantity] "of methamphetamine, heroin, or cocaine"; and

Fifth: "That the defendant knew or reasonably should have known that the scope of the conspiracy involved at least" [insert quantity] of methamphetamine, heroin, or cocaine.

See Pattern Crim. Jury Instr. 5th Cir. 2.97 (2019).

According to the indictment, Defendant:

(Count One) from sometime in or about July 2015, and continuously thereafter up to and including February 6, 2019, in the Eastern District of Texas and elsewhere, . . . [Defendant] Rodriguez [and other co-defendants] . . . did knowingly and intentionally combine, conspire, and agree with each other and other persons known and unknown to the United States Grand Jury, to knowingly and intentionally possess with the intent to manufacture and distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine or 50 grams or more of methamphetamine (actual), a violation of 21 U.S.C. § 841(a)(1).

(Count Two) from sometime in or about July 2015, and continuously thereafter up to and including January 9, 2019, in the Eastern District of Texas and elsewhere, . . . [Defendant] Rodriguez [and other co-defendants] . . ., did knowingly and intentionally combine, conspire, and agree with each other and other persons known and unknown to the United States Grand Jury, to knowingly and intentionally possess with the intent to manufacture and distribute 1 kilogram or more of a mixture or substance containing a detectable amount of heroin, a violation of 21 U.S.C. § 841(a)(1).

(Count Three) from sometime in or about July 2015, and continuously thereafter up to and including January 9, 2019, in the Eastern District of Texas and elsewhere, . . . [Defendant] Rodriguez [and co-defendants] . . ., did knowingly and intentionally combine, conspire, and agree with each other and other persons known and unknown to the United States Grand Jury, to knowingly and intentionally possess with the intent to manufacture and distribute 500 grams or more of a mixture of substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1).

[Dkt. 311, Sealed]. The indictment tracks the...