United States v. Gonzalez-Oseguera

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UNITED STATES OF AMERICA, v. RUBEN OSEGUERA-GONZALEZ, Defendant.

CRIMINAL ACTION No. 16-229 (BAH)

United States District Court, District of Columbia

August 12, 2024

UNDER SEAL

MEMORANDUM OPINION

BERYL A. HOWELL United States District Judge

As part of a long-term investigation into the drug trafficking activities of the Cartel de Jalisco Nueva Generacion (“CJNG”), a large and violent drug trafficking organization based in Jalisco, Mexico, responsible for trafficking bulk quantities of cocaine, methamphetamine, and heroin into the United States, the Drug Enforcement Agency (“DEA”) identified defendant Ruben Oseguera-Gonzalez as the son of the leader of the CJNG Nemesio Oseguera-Cervantes, also known as “Mencho,” and as a high-ranking participant in the CJNG's drug trafficking. See Gov't's Mot. for Pre-Trial Det. (“Gov't's Det Mot.”) at 2, 6, ECF No. 13. In February 2017, the government filed the operative two-count superseding indictment against defendant, charging him with conspiring from around 2007 until February 1, 2017, to distribute five kilograms of more of a mixture and substance containing a detectable amount of cocaine, as well as 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, for unlawful importation into the United States, in violation of 21 U.S.C. §§ 959(a), 960, and 963, and 18 U.S.C. § 2 (Count One); and using, carrying, brandishing, and possessing a firearm, including a destructive device, in furtherance of the drug trafficking offense charged in Count One, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(ii), 924(c)(1)(B)(ii), and 2 (Count Two). See Superseding Indictment, ECF No. 6. Defendant was extradited from Mexico to Washington, D.C. on February 20, 2020, to face prosecution on the Superseding Indictment, see Gov't's Det. Mot. at 2, and, after over three years of extensive discovery, now faces trial on September 9, 2024.

In compliance with Federal Rule of Evidence 404(b)(3), the government filed, on June 11, 2024, its Notice of Rule 404(b) Evidence (“Gov't's Notice”), ECF No. 132, identifying the following four categories of evidence, “in an abundance of caution,” id. at 1, that might be subject to Rule 404(b), related to defendant's: (1) use of violence; (2) use of bribery; (3) manufacturing and distribution of fentanyl and marijuana; and (4) post-arrest conduct and statements. Defendant, in turn, has moved to exclude this evidence, which motion is now ripe for consideration. See Def.'s Mot. to Exclude Proposed Rule 404(b) Evid. (“Def.'s Mot.”), ECF No. 135; see also Gov't's Opp'n to Def.'s Mot. to Exclude Proposed Rule 404 Evid. (“Gov't's Opp'n”), ECF Nos. 155 (sealed), 156 (public, redacted); Def.'s Reply Supp. Mot. to Exclude Proposed Rule 404 Evid. (“Def.'s Reply”), ECF No. 160.

For the reasons set forth below, defendant's motion is GRANTED IN PART AND DENIED IN PART.

I. LEGAL STANDARD

Rule 404(b) governs the admissibility of “other crimes, wrongs, or acts.” FED. R. EVID. 404(b) (capitalization omitted). When conducting a Rule 404(b) analysis, therefore, the threshold question is whether the evidence at issue is an “other” act; that is, “whether the evidence, in actuality, relates to acts unconnected with those for which the defendant is charged, or instead is intertwined with the commission of the charged crimes.” United States v. Machado-Erazo, 47 F.4th 721, 728 (D.C. Cir. 2018). The law is clear that only “[a]cts ‘extrinsic' to the crime charged are subject to Rule 404(b)'s limitations; acts ‘intrinsic' to the crime are not.” Id.

Less clear is the distinction between extrinsic and intrinsic acts. See United States v. Alexander, 331 F.3d 116, 126 & n.13 (D.C. Cir. 2003) (expressing “dissatisfaction with the extrinsic-intrinsic distinction” and describing the distinction as “plague[d]” with “practical and definitional problems”). The D.C. Circuit has interpreted intrinsic evidence narrowly, limiting it to acts that are “part of the charged offense” or “performed contemporaneously with the charged crime if they facilitate the commission of the charged crime.” United States v. Moore, 651 F.3d 30, 63 (D.C. Cir. 2011) (alteration in original accepted and citation omitted); see also United States v. Abou-Khatwa, 40 F.4th 666, 677 (D.C. Cir. 2022) (“Of course, evidence that constitutes the very crime being prosecuted, by definition is not barred by Rule 404(b).” (alterations in original accepted and citation omitted)); Alexander, 331 F.3d at 126 (describing, as an “example” of intrinsic evidence, evidence “offered as direct evidence of a fact in issue, not as circumstantial evidence requiring an inference regarding the character of the accused” (citation omitted)). Evidence that simply “complete[s] the story,'' “incidentally involve[s] the charged offense,'' or merely “explain[s] the circumstances” surrounding the charged offense, on the other hand, are not intrinsic. United States v. Bowie, 232 F.3d 923, 928 (D.C. Cir. 2000) (citations omitted).

Applicable to only extrinsic acts, Rule 404(b) provides that “[e]vidence of any other crime, wrong, or 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)(1). So-called “propensity” evidence is excluded not because it is irrelevant, but because “it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.” Michelson v. United States, 335 U.S. 469, 475-76 (1948). Rule 404(b) thus attempts to head off the risk that, presented with such evidence, “a jury [might] convict for crimes other than those charged-or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment.” Old Chief v. United States, 519 U.S. 172, 181 (1997) (citation omitted).

At the same time, Rule 404(b) expressly “permit[s]” the admission of “[e]vidence of any other crime, wrong, or act” for “another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” FED. R. EVID. 404(b)(2). As such, “‘Rule 404(b) is a rule of inclusion rather than exclusion,' ‘prohibiting the admission of other crimes evidence in but one circumstance-for the purpose of proving that a person's actions conformed to his character.'” Machado-Erazo, 47 F.4th at 728 (first quoting Bowie, 232 F.3d at 929, then quoting United States v. Crowder, 141 F.3d 1202, 1206 (D.C. Cir. 1998) (en banc)); see also United States v. Miller, 895 F.2d 1431, 1436 (D.C. Cir. 1990) (“[U]nder Rule 404(b), any purpose for which bad-acts evidence is introduced is a proper purpose so long as the evidence is not offered solely to prove character.”). “‘Rule 404(b) thus is not so much a character rule as a special aspect of relevance' because it ‘does not prohibit character evidence generally, only that which lacks any purpose but proving character.'” Machado-Erazo, 47 F.4th at 728 (quoting Bowie, 232 F.3d at 930).

Evidence that withstands scrutiny under Rule 404(b), however, is not automatically admissible. Rather, “[t]he admissibility of Rule 404(b) evidence is also determined by the ‘general strictures limiting admissibility such as Rules 402 and 403.'” United States v. Brown, 845 Fed.Appx. 1, 5 (D.C. Cir. 2021) (quoting Miller, 895 F.2d at 1436). Rule 402 provides that whereas “[i]rrelevant evidence is not admissible,” “[r]elevant evidence is admissible” unless the United States Constitution, a federal statute, the Federal Rules of Evidence, or “other rules prescribed by the Supreme Court” “provide[] otherwise.” FED. R. EVID. 402; see also FED. R. EVID. 401 (explaining that evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence,” and “the fact is of consequence in determining the action”).

Rule 403, in turn, provides that a “court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” FED. R. EVID. 403. Most relevant here, Rule 403 renders relevant evidence inadmissible upon a showing that it presents a risk of “unfair prejudice,” i.e., prejudice that is “compelling or unique,” United States v. Mitchell, 49 F.3d 769, 777 (D.C. Cir. 1995) (citation omitted), or has “an undue tendency to suggest decision on an improper basis,” United States v. Ring, 706 F.3d 460, 472 (D.C. Cir. 2013) (quoting FED. R. EVID. 403 advisory committee's note). The danger of any potential unfair prejudice, in addition, must “substantially outweigh[]” the evidence's probative value. FED. R. EVID. 403. Put differently, “Rule 403 does not bar powerful, or even prejudicial evidence” and, instead, “focuses on the danger of unfair prejudice, and gives the court discretion to exclude evidence only if that danger substantially outweighs the evidence's probative value.” United States v. Pettiford, 517 F.3d 584, 590 (D.C. Cir. 2008) (alteration in original accepted and citations omitted)

“Rule 403 ‘tilts, as do the rules as a whole, towards the admission of evidence in close cases,' even when other crimes evidence is involved.” United States v Cassell, 292 F.3d 788, 795 (D.C. Cir. 2002) (quoting United States v. Moore, 732 F.2d 983, 989 (D.C. Cir. 1984)). “In performing the balancing test required under Rule 403, ‘it is a sound rule that the balance should generally be struck in favor of admission when the evidence indicates a close relationship to the event charged.”' Id. (citation omitted...