United States District Court, N.D. California
ORDER DENYING DEFENDANTS' MOTION TO DISMISS COUNTS ONE THROUGH THREE OF THE SUPERSEDING INDICTMENT
EDWARD M. CHEN, District Judge.
Defendant Jairo Hernandez and his remaining co-defendants (collectively, Defendants) move to dismiss Counts One through Three of the Superseding Indictment, which counts are common to all Defendants. See Docket No. 391 (Motion); Docket No. 241 (Superseding Indictment) (hereafter Indictment). Alternatively, the Defendants argue that the Government is constructively amending the Indictment, and therefore seek disclosure of the grand jury transcripts and the instructions given to the grand jury with respect to Counts One through Three.
Defendants are charged in Count One of the Superseding Indictment with conspiring to violate the Racketeer Influenced and Corrupt Organizations (RICO) statute, in violation of 18 U.S.C. section 1962(d). Indictment at 52. Defendants are charged in Count Two with conspiracy to commit murder in aid of racketeering activity, and in Count Three with conspiracy to commit assault with a dangerous weapon in aid of racketeering activity, both in violation of the Violent Crimes in Aid of Racketeering Activity (VICAR) statute. See Indictment at 57-59 (alleging violations of 18 U.S.C. §§ 1959(a)(5) and 1959(a)(6)). According to Defendants, Counts One through Three must be dismissed because the Indictment fails to allege sufficient factual details regarding the "nature of the agreement or agreements at the heart of the charged conspiracy or conspiracies." Docket No. 449 (Reply Br.) at 2; see also Reply Br. at 5 (arguing that "the Indictment fails to provide the rudimentary factual detail required to inform him of the nature of the agreement he is charged with entering into") (emphases in original). For the reasons explained below the Court disagrees, and holds that the Superseding Indictment contains sufficient factual detail to survive Defendants' motion to dismiss. The Court also finds that the Defendants have not made the necessary showing to obtain grand jury instructions or transcripts on the basis of alleged constructive amendment.
Counts One through Three of the Government's Superseding Indictment charge Hernandez, along with his sixteen other co-defendants,  with three racketeering conspiracy counts: Count One (RICO Conspiracy); Count Two (VICAR Conspiracy to Commit Murder in aid of Racketeering Activity); and Count Three (VICAR Conspiracy to Commit Assault With a Dangerous Weapon in aid of Racketeering Activity). Indictment at 52-60. Without going into unnecessary detail, the alleged racketeering enterprise at the heart of the charged conspiracies is the "19th Street Sureños, including its leadership, members, and associates, such as the members of the 16th Street Sureños." Id. at 55. According to the Indictment, the 19th Street Sureños is a "predominately Hispanic street gang" whose members "engage in criminal activity, including murder, attempted murder, narcotics distribution, assault, robbery, and obstructing justice by threatening and intimidating fellow gang members and others whom they believe to be cooperating with law enforcement." Id. at 52, 54. The Indictment alleges that the purposes of the 19th Street Sureños include "[p]reserving and protecting the power, territory, reputation, and profits of the enterprise through the use of intimidation, violence, threats of violence, assaults and murder" and providing "financial support and information to 19th Street Sureños gang members and associates, including those members and associates who are incarcerated." Id. at 55.
Count One specifically alleges that Defendants conspired to "conduct and participate, directly and indirectly, in the conduct of the affairs of the 19th Street Sureños enterprise through a pattern of racketeering activity... which pattern of racketeering activity consisted of: (a) multiple acts and threats involving murder... (b) multiple acts involving dealing in controlled substances... and (c) multiple acts... relating to tampering with a witness, a victim or an informant [or] relating to obstruction of justice." Indictment at 56-57. The Indictment charges that "each defendant agreed that a conspirator would commit at least two acts of racketeering activity in the conduct of the affairs of the enterprise." Id. at 57. The only conspirators identified by name in the Superseding Indictment are the other defendants originally charged in this case. Id. at 56. According to the Government, the charged conspiracy began "at least [by] the early 1990s and continu[es] until up through and including the present." Id. The charged conspiracy allegedly took place "in the Northern District of California and elsewhere...." Id. The Indictment more specifically alleges that the 19th Street Sureños "claim the area centered around 19th Street and Mission Street in the Mission District of San Francisco as its territory... includ[ing] the area bounded by 19th Street to the south, 16th Street to the north, Folsom Street to the east, and Dolores Street to the west." Id. at 52. The 19th Street Sureños have also apparently laid claim to Dolores and Franklin Square Parks. Id. The 19th Street Sureños's "principal rivals" as identified as "various Norteños gangs, " and the Indictment alleges that these gangs are at "war" with each other. Id. at 53. 19th Street Sureños gang members are instructed to "attack members of the other side, " and the "more brazen the attack, the greater the respect that is given to the attacker by fellow gang members." Id.
Count Two charges that Hernandez, his co-defendants, and other unnamed co-conspirators conspired "with each other to commit murder" and specifically to "kill actual or suspected Norteños, actual or suspected members of other gangs, individuals who defied the will of the 19th Street Sureños, and individuals suspected of cooperating with law enforcement." Indictment at 58-59. According to the Government, Hernandez and his co-conspirators so acted "for the purpose of gaining entrance to and maintaining and increasing position in the 19th Street Sureños." Id. at 58. The Government alleges that the conspiracy began in the early 1990s and continues to the present in the Northern District of California "and elsewhere." Id.
Count Three alleges that Hernandez, his co-defendants, and other unnamed co-conspirators conspired "to assault with firearms, knives, and other dangerous weapons actual and suspected Norteños, actual and suspected members of other gangs, individuals who defied the will of the 19th Street Sureños, and individuals suspected of cooperating with law enforcement." Indictment at 60. As with Counts One and Two, the alleged conspiracy is claimed to have begun sometime in the early 1990s, continue through the current day, and operate in the Northern District of California and "elsewhere." Id. at 59. As with Count Two, the Indictment alleges that Hernandez and his co-conspirators agreed to commit assault with a dangerous weapon "for the purpose of gaining entrance to and maintaining and increasing position in the 19th Street Sureños, an enterprise engaged in racketeering activity...." Indictment at 59.
In the remaining counts of the Indictment ( i.e., Counts Four through Nineteen), the Government alleges various substantive criminal offenses against each of the Defendants, including various specific murders and assaults that the Defendants are alleged to have committed "for the purpose of gaining entrance to, and increasing and maintaining position in, the 19th Street Sureños..." See Indictment at 60-68. For instance, Hernandez and his co-defendant Vasquez are charged in Count Five with Murder in Aid of Racketeering, which charge stems from an alleged homicide that occurred on August 30, 2011. Indictment at 61. Importantly, and as noted above, each of the Defendants are charged in the Indictment not only with conspiracy but also with committing at least one substantive crime ( i.e., a non-conspiracy crime) allegedly undertaken in aid of the racketeering enterprise. See, e.g., Indictment at 62 (charging Defendants Garcia-Gomez and Real in Count Eight with Assault with a Dangerous Weapon in Aid of Racketeering stemming from an incident occurring on May 31, 2013).
Earlier in this litigation, a number of defendants filed motions for bills of particulars in an attempt to learn more about the precise conduct underlying the charges in Counts One through Three of the Indictment. On December 19, 2014, Magistrate Judge Cousins granted in part and denied in part these motions. Docket No. 297. After the Government provided its first bill of particulars on January 16, 2015, Docket No. 311, certain defendants became concerned that the Government was improperly withholding information under the protective order that was otherwise responsive to Judge Cousin's order. After litigating the dispute, Judge Cousins ordered the Government to file a supplemental bill of particulars with respect to Counts One through Three that would:
clarify when each defendant is alleged to have first joined the conspiracy; and
provide details of who was present at meetings in which murders, attempted murders, or assaults with dangerous weapons were discussed, when and where such meetings took place, what was said at the meetings, and what each defendant did or said to indicate participation in the conspiracy.
Docket No. 340 (emphases in original). The Government filed its supplemental bill of particulars on February 25, 2015, and remains under an obligation to further supplement its bill of particulars if it learns of ...