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United States of America v. (5) Carlos Cosme

November 2, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
(5) CARLOS COSME,
(6) MARIO ESCAMILLA, (8) FAUSTO ESCAMILLA-CAMPOS, (9) EDGAR GUSTAVO ESTRADA, (10) JESUS QUINONES MARQUEZ, (11) JOSE ANTONIO ORTEGA NUNO, (16) OSCAR DANIEL MONTOYA MORA, (17) JORGE ALBERTO RAMIREZ PONCE, (19) JONATHAN VALLE, (20) ARMANDO CASTILLO, (21) MIKAEL DANIEL BLASER, (22) ENRIQUE SALINAS, JR., (23) RAUL MORENO, (24) MIGUEL SORIA, (25) PERLA YADIRA FLORES, (26) LUZ MARIA BENAVIDEZ MARTINEZ, (27) BRIDGETTE REYNOSO, (28) JORGE HUMBERTO LORA, (29) CHRISTOPHER ADRIAN RUIZ, (30) RICHARD GILBERT FAVELA, (31) HUMBERTO MENDOZA-TORRES, (32) JUAN CARLOS RIQUE AGUIRRE, (38) ULISES VALENZUELA, (41) ARACELI VARELA, (42) ROCIO LOPEZ, (43) KEVIN LUIS,
DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matters before the Court are substantive motions filed by Defendants.

On July 29, 2010, the federal grand jury returned a one-count indictment charging forty-three defendants with conspiring to conduct enterprise affairs through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d). The indictment alleged that the defendants and "others known and unknown to the grand jury, were members and associates of an organization known as the 'Fernando Sanchez Organization' ('FSO'), whose members engaged in, among other things, murder, conspiracy to commit murder, attempted murder, kidnaping, conspiracy to kidnap, attempted kidnaping, robbery, conspiracy to commit robbery, attempted robbery, importation of controlled substances into the United States from Mexico, conspiracy to import controlled substances into the United States from Mexico, distribution of controlled substances, conspiracy to distribute controlled substances, money laundering and conspiracy to launder money." ECF No. 82 at 3-4.

On April 28, 2011, the federal grand jury returned a two-count superseding indictment. The superseding indictment charges the forty-three defendants in Count One with conspiring to conduct enterprise affairs through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d) as charged in the original indictment. The superseding indictment charges twenty-nine defendants in Count Two with conspiring to distribute cocaine, marijuana and methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 841(b)(1)(A)(vii), 841(b)(1)(A)(viii) and 846. ECF No. 644.

Defendants were ordered to file substantive motions by August 29, 2011. ECF No. 565. On September 21, 2011, the Court held a hearing on the motions with all counsel and all defendants present. ECF No. 972.

A. DISCOVERY ISSUES

Motions to disclose confidential informant

Defendants move the Court for an order to disclose the identity of confidential informants. Defendants seek an order requiring the Government to produce Confidential Informant #1 prior to trial for interview by defense counsel, and to disclose all potential impeachment information relevant to informants. Defendant Escamilla further requests that the Court order the Government "to disclose immediately whether any co-defendants are cooperating witnesses." ECF No. 866-1 at 1.

The Government states that the identity of Confidential Informant #1 and Confidential Informant #3 have been revealed in discovery. The Government contends that the Defendants have failed to make a legally sufficient showing to support their request for an order requiring further disclosure of the identity of confidential informants.

Based upon the record, the Court finds that an order to disclose further information regarding confidential informants and any cooperating witnesses is not required at this stage in the proceedings. Defendants have not met their burden to demonstrate the need for further disclosure. See United States v. Sanchez, 908 F.2d 1443, 1451 (9th Cir. 1990).

Defendants' motions to disclose confidential informants are denied. (ECF No. 878, ECF No. 866, ECF No. 849-2 and 5, ECF No. 870-4, ECF No. 905).

Motions to disclose co-defendant statements and all proffer statements

For reasons stated in the order of this Court filed on March 29, 2011, the Court concludes that Defendants are not entitled to an order requiring the Government to provide co-defendant statements and proffer statements at this stage in the proceedings. ECF No. 613 at 3, 6. Defendants' motions to disclose co-defendant statements and proffer statements are denied. (ECF No. 849-4 and 6, ECF No. 870-5, ECF No. 877).

Motions to disclose grand jury transcripts and instructions

Defendants move the Court for an order to disclose grand jury transcripts and instructions in order to ensure that the indictment is legally viable. The Government contends that indictments are presumed properly brought and the Defendant has not demonstrated a particularized need for grand jury transcripts and instructions.

Rule 6(e)(3)(E) of the Federal Rules of Criminal Procedure provides that: "[t]he court may authorize disclosure - at a time, in a manner, and subject to any other conditions that it directs - of a grand jury matter... at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury." Fed. R. Crim. P. 6(e)(3)(E)(ii). "An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits." Costello v. United States, 350 U.S. 359, 363 (1956). In this case, Defendants have failed to demonstrate a "particularized and compelling need" for the disclosure of grand jury transcripts and instructions. Conforte v. Commissioner of Internal Revenue, 692 F.2d 587, 594 (9th Cir. 1982).

Defendants' motions to disclose grand jury transcripts are denied. (ECF No. 876, ECF No. 879, ECF No. 924).

Other discovery motions

Defendant Rameriz-Ponce has filed a second motion for discovery (ECF No. 861) identical to his initial filing (ECF No. 650) which remains pending on the record in this case. Defendant Rameriz-Ponce's motion to compel discovery (ECF No. 861) is denied.

Defendant Oscar Mora moves the Court for an order requiring disclosure of all co-defendant statements, all grand jury transcripts, disclosure of information regarding confidential informant #3, and expert witnesses and the basis for their opinions. (ECF No. 847). For the reasons, stated above this motion is denied as to all co-defendant statements, all grand jury transcripts, and disclosure of information regarding confidential informant #3. The Government is ordered to meet the expert witness requirements of Fed. R. Crim. P. 16(a)(1)G) by January 3, 2012. Defendant Oscar Mora's motion for further discovery (ECF No. 847) is denied.

B. CHALLENGES TO THE SUPERSEDING INDICTMENT Motions for bill of particulars

Defendants Moreno, Rique Aguirre, Benavidez Martinez, and Escamilla-Campos move the court for an order requiring a bill of particulars on the grounds that the indictment does not sufficiently inform the Defendant of the charges.

Rule 7(f) of the Federal Rules of Criminal Procedure provides that the court may "direct the filing of a bill of particulars." Fed. R. Crim. P. 7(f). "To the extent that the indictment or information itself provides details of the alleged offense, a bill of particulars is [] unnecessary." United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979) (internal citation omitted). Full discovery obviates the need for a bill of particulars. Id.

An indictment is a "plain, concise, and definite written statement of the essential facts constituting the offense charged...." Fed. R. Crim. P. 7(c)(1). "A legally sufficient indictment must state the elements of the offense charged with sufficient clarity to apprise a defendant of the charge against which he must defend, and to enable him to plead double jeopardy." United States v. Givens, 767 F.2d 574, 584 (9th Cir. 1985). "The test of sufficiency for the indictment is not whether it could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards." United States v. Awad, 551 F.3d 930, 935 (9th Cir. 2009) (quotation and citation omitted).

The superseding indictment in this case adequately alleges the manner and means of the alleged offense and the overt acts provide further description of the alleged charges against the Defendants. The Court concludes that the charges in the superseding indictment are stated with sufficient clarity to apprise the Defendants of the charge against which they must defend and to enable them to plead double jeopardy. The Court concludes that there are no facts or circumstances which would require a bill of particulars.

Defendants' motions for bill of particulars are denied. (ECF No. 857-1, ECF No. 859, ECF No. 880, ECF No. 925).

Motions to strike surplusage

Defendants Marquez and Rique Aguirre move the Court for an order to strike surplusage from the superseding indictment on the grounds that certain ...


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