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

May 29, 2024

MEMORANDUM OPINION

BERYL A. HOWELL United States District Judge

Defendant Ruben Oseguera-Gonzalez has filed two pretrial motions, both lodging essentially the same complaint about the government's lack of sufficient discovery for him to defend against the two charges against him for conspiring between 2007 and the date of the Superseding Indictment, on February 1, 2017, to distribute five kilograms or more of cocaine, and 500 grams or more of methamphetamine, knowing and intending that these controlled substances would be unlawfully imported into the United States, in violation of 21 U.S.C. §§ 963, 959(a), 960(b)(1)(B)(ii), 960(b)(1)(H), and 18 U.S.C. § 2, and for using and possessing a firearm during and in relation to one or more drug trafficking crimes, in violation of 18 U.S.C §§ 924(c)(1)(A)(i), 924(c)(1)(A)(ii), 924(c)(1)(B)(ii), and 2. Superseding Indictment, Counts One and Two, ECF No. 6. These charges have been publicly pending against defendant since December 2016, when this case was unsealed, see Min. Order (Dec. 16, 2016), and defendant was provided clear notice of, and the substantive basis for, these charges while fighting his extradition from Mexico to the United States, before arriving in this country on an extradition warrant in February 2020. See Gov't's Mot. for Pretrial Detention at 2, ECF No. 13.

Belatedly over seven years after these charges were made public and known to him while under arrest in Mexico, over four years after his extradition to the United States, and after trial dates in this matter have been set-and re-set at defendant's request or with his consent-three separate times, see Minute Scheduling Orders (June 1, 2022, Sept. 15, 2023, and Nov. 27, 2023) (scheduling trial to begin on May 1, 2023, then on Oct. 7, 2024 and, now, on Sept. 9, 2024, respectively), defendant for the first time has raised complaints about discovery production in this case. Specifically, defendant filed, in March 2024, his first and, so far, only pretrial motions regarding discovery seeking to compel production of information responsive to 25 separate requests and production of a bill of particulars from the government, see Def.'s Motion to Compel Discovery (“Def.'s Mot. Compel”), ECF No. 114; Def.'s Mot. For A Bill of Particulars (Def.'s Mot. BoP”), ECF No. 115. While conceding that “the government has provided voluminous discovery,” Def.'s Mem. Supp. Mot. Compel (“Def.'s Mem. Mot. Compel”) at 1, ECF No. 114, defendant insists that “a majority of the evidence subject to disclosure has not been provided,” id.

By way of procedural background, at a motions hearing demanded by defendant and held on May 13, 2024, defendant's arguments in support of the 25 discovery requests outlined in his Motion to Compel were each thoroughly aired, along with the government's responses. This lengthy hearing largely confirmed that defendant's discovery motion was filed without prior consultation with the government about a number of the requests made, in violation of the local rules of this Court. See D.D.C. LOCAL CRIM. R. 16.1 (“No discovery motion shall be heard unless it states that defense counsel has previously requested that the information sought from the attorney for the United States and that such attorney has not complied with the request.”). Such required conferral might have spared the expenditure of parties' and judicial resources expended on the pending motions. Indeed, the hearing discussion prompted defendant's explicit withdrawal of six requests as already complied with by the government or otherwise not requiring judicial intervention at all.^[1]Likewise, defendant conceded that seven additional requests were presented to the Court without any live dispute about any lack of compliance by the government with its discovery obligations, and thus required no judicial attention.^[2] Further, as became clear at the hearing, defendant's discovery motion merely sought a schedule for disclosure of the information described in nine requests-which schedule could also have been resolved through informal conferral between the parties without judicial intervention-and this schedule was set in an order entered promptly after the hearing. See Min. Order (May 13, 2024) (directing the government, by June 14, 2024, to “provide notice regarding its intent to introduce at trial any evidence, pursuant to Federal Rule of Evidence 404(b)” and “disclose any expert witness(es) the government intends to have testify at trial,” and by August 26, 2024, to “produce to defendant any materials subject to disclosure under Giglio v. United States, 405 U.S. 150 (1972), and Jencks Act, 18 U.S.C. § 3500”).^[3] Given that defendant's 25 discovery requests were presented with minimal, if any, discussion or context, and little to no prior conferral with the government, contrary to requirements in local procedural rules; provided few citations and then almost exclusively to non-binding out-of-circuit law; were broadly framed when the hearing revealed defendant sought more narrow information; and, as further revealed at the hearing, the majority of requests turned out to be largely pro forma rather than requiring judicial attention, defendant was directed, by court order entered the same day as the hearing, to address these shortcomings in his original discovery motion and provide clarity as to the information for which he sought an order compelling production. See Min. Order (May 13, 2024) (directing defendant to “file a supplemental submission, with fulsome explanation and citations to applicable law, in support of defendant's Motion to Compel, to which defendant filed no reply in response to the government's Opposition, addressing the basis for any outstanding discovery request, as to which defense counsel did not during the hearing disclaim the necessity for judicial intervention, including addressing, in particular, request number 2 and its subparts”). In compliance with this order, the parties timely submitted supplemental briefing. See Def.'s Suppl. Briefing Supp. Def.'s Mot. Compel (“Def.'s Suppl. Mem.”), ECF No. 123; Gov't's Suppl. Opp'n Def.'s Mot. Compel (“Gov't's Suppl. Opp'n”), ECF No. 125. Notably, defendant's supplemental briefing addresses only parts of Request No. 2, which under the terms of the order, indicates he “disclaim[s] the necessity for judicial intervention” as to any other outstanding request. Min. Order (May 13, 2024).

For the reasons explained below, defendant's Motion for a Bill of Particulars and to Compel Discovery are denied. These motions are addressed seriatim below.

I. DEFENDANT'S MOTION FOR BILL OF PARTICULARS

Defendant has moved, pursuant to Federal Rule of Criminal Procedure 7(f), for a bill of particulars. Def.'s Mot. BoP. While Rule 7(f) authorizes such a motion, strict time limits are imposed, requiring that the motion be filed “within 14 days after arraignment” or “at a later time if the court permits.” FED. R. CRIM. P. 7(f). At the outset, defendant failed to comply with the procedural prerequisites for filing this motion, which was filed over four years after his arraignment in this case, and then he failed to seek leave of Court to file tardily, rendering this motion highly untimely. Notwithstanding these procedural defects, examination of defendant's motion makes clear its deficiencies on the merits.

Defendant concedes, repeatedly, that “the government has disclosed voluminous discovery,” Def.'s BoP Mem. at 6, ECF No. 115; id. (again, describing discovery as “voluminous”); Def.'s Mem. Mot. Compel at 1 (same), but nonetheless seeks an order requiring the government to produce a bill of particulars “as to what acts establish the allegations in the superseding indictment,” Def.'s BoP Mem. at 6. Defendant suggests the bill of particulars should provide information not otherwise detailed in the charging instrument regarding: “any particular acts of distribution or importation between the dates alleged, 2007 and 2017, a ten year period,” id. at 4; “the other co-conspirators [defendant] allegedly conspired with,” id.; “any particular dates or incidents [defendant] used or possessed firearms or destructive devices in relation to drug trafficking activity,” id.; “any particular firearm or destructive device used,” id.; and “the government's theory of prosecution,” id. at 5 (citation omitted).

Taken together, all of the information defendant seeks in the bill of particulars amounts to a demand that the government spell out its trial strategy and plan to prove the charges against him, with specific identification of the underlying evidentiary support, which in this case involves, in addition to over 50,500 pages of produced discovery, a number of cooperating witnesses, one of whom has already testified at a deposition conducted, pursuant to Federal Rule of Criminal Procedure 15, due to a health issue. A schedule is in place for disclosure of trial witnesses and related disclosures two weeks prior to the trial, see Min. Order (May 13, 2024) (directing production “to defendant [of] any materials subject to disclosure under Giglio v. United States, 405 U.S. 150 (1972), and Jencks Act, 18 U.S.C. § 3500”), to protect the safety of witnesses and their families, see Gov't's Opp'n Def.'s Mot. BoP at 9, ECF No. 118 (describing government's concerns in this case about witness safety, “given the violent history of the CJNG-the drug cartel of which the Defendant was a leader for years,” and noting that “two potential Government witnesses in this case have been murdered in Mexico” and that “disclosing the identities of other coconspirators may place them...