United States v. Salas-Lozano

1

UNITED STATES OF AMERICA, Plaintiff, v. ONOFRE SALAS-LOZANO, Defendant.

No. 5:23-cr-00101-EJD-1

United States District Court, N.D. California, San Jose Division

November 12, 2024

ORDER DENYING MOTION TO DISMISS; DEFERRING REQUEST FOR ADVERSE INFERENCE INSTRUCTION RE: DKT. NO. 53

EDWARD J. DAVILA UNITED STATES DISTRICT JUDGE

Defendant Onofre Salas-Lozano (“Defendant”), is charged with Aggravated Sexual Abuse in violation of 18 U.S.C. § 2241(a), Sexual Abuse in violation of 18 U.S.C. § 2242(1), and False Statements to a Government Agency in violation of 18 U.S.C. § 1001(a)(2). Indictment, ECF No 1.

Defendant moves the Court to dismiss his indictment, or in the alternative, provide an adverse inference instruction, based on two categories of lost or destroyed evidence: (1) evidence the Government possessed but failed to preserve; and (2) evidence the Government failed to collect. Mot., ECF No. 53. The Government opposes Defendant's motion. Opp'n, ECF No. 56; Reply, ECF No. 60.

The Court held a hearing and heard arguments from both parties on October 30, 2024. ECF No. 71. Upon review of the parties' briefing and in consideration of the oral arguments, the Court DENIES Defendant's motion to dismiss his indictment and DEFERS Defendant's alternative request for an adverse inference instruction.

I. BACKGROUND

Beginning in February 2021, Defendant worked for Quality Services International, LLC (“QSI”), a janitorial service contracted with the Department of Veterans Affairs (“VA”), where he supervised J.J.^[1] Mot. 1. On July 7, 2021, J.J. reported to the VA police that Defendant raped her at the VA hospital several days prior. Id.

That same day, July 7, 2021, Defendant learned of J.J.'s report and went to the VA police department to speak with them. Id. Defendant told the police: “I want to show you guys what is on my phone. I have text and videos from the day after she says I attacked her that will prove it is not true. You will see that she is just obsessed with me or something.” Decl. of Christoffer Lee (“Lee Decl.”), Ex. B, Report of Investigation (“July 9 Investigation Report”), ECF No. 55-3. The police did not review his phone and advised Defendant to stop discussing the incident. Id.

On July 9, Special Agent Andres Gonzalez (“Gonzalez”) and Investigator Miguel Martin (“Martin”) interviewed J.J. Lee Decl., Ex. D, Memorandum of July 9, 2021, Interview (“July 9 Interview”), ECF No. 55-3. J.J. stated that she had maintained a professional relationship with Defendant prior to July 7, 2021, and they occasionally exchanged text messages and WhatsApp messages about religious topics. Id. J.J. claimed that Defendant expressed romantic interest in her around May 2021 and asked her to be in a relationship in June 2021, but she was not interested. Id. J.J. raised concerns about their age difference and Defendant's recent loss of his wife, stating that she was looking for a serious relationship with a religious man. After J.J. rejected his advances, Defendant apologized, and their interactions continued normally until July 2, 2021. Id. J.J. alleges that on July 2, 2021, Defendant requested that she help him move furniture in a patient room, closed the door behind her, and raped her. Id. A Sexual Assault Nurse Examiner (SANE) later observed bruises and tearing on J.J. consistent with a non-consensual sex act, and Defendant's DNA was later found on J.J.'s underwear. Opp'n 1.

J.J. specifically stated that she sent various religious-related YouTube videos to Defendant after July 2, 2021, on his personal phone, work phone, and WhatsApp. July 9 Interview. J.J. sent the videos because she believed they expressed how she felt, and she wanted Defendant to think about what he did to her. Id. J.J. handed her cell phone to Gonzalez at some point in the interview to show him the messages. Id.; see also Lee Decl., Ex. E, Transcript for Interview of J.J. (“July 9 Transcript”), ECF No. 55-3. During his review of J.J.'s cell phone, Gonzalez noted that J.J. sent ten YouTube video clips to Defendant between July 3 and July 6, but he did not reply. July 9 Interview. However, Gonzalez did not inquire about the videos. Id. J.J. offered to let the officers keep her phone for evidence, but they quickly returned it, cautioning her that they might need it later to record text messages and WhatsApp messages. Id.

On July 20, 2021, Gonzalez and Martin interviewed Defendant. Lee Decl., Ex. F, Memorandum of July 20, 2021, Interview (“July 20 Interview”), ECF No. 55-3. Defendant denied having any sexual contact with J.J. on July 2, 2021. Id. He claimed that J.J. became romantically interested in him in May 2021, but he did not reciprocate. Id. Defendant alleged that J.J. frequently sent him unsolicited YouTube videos, prompting him to delete the messages and block her on his personal cell phone. Id. He also stated that she constantly called him at work for trivial matters and made excuses to meet him. Id. Defendant reported these behaviors to his supervisor, Reyna Sanchez (“Sanchez”), who had to reprimand J.J. for her excessive calls, which Sanchez separately confirmed was true. Lee Decl., Ex. G, Memorandum of July 14, 2021, Interview (“July 14 Interview”). Defendant asserted that he repeatedly rejected J.J.'s advances, explaining that pursuing a new relationship so soon after his wife's death would betray her memory. July 20 Interview. On July 2, 2021, Defendant recalled asking J.J. to help him move the furniture in a patient room. Id. Once they were in the room, J.J. allegedly asked Defendant for a back massage and expressed romantic interest in him again. Id. He declined, which he believes upset her because she started crying. Id.

Defendant played two videos he received from J.J. for the officers, noting that they were just a “small sample” of what she sent him. Id. He described the videos as “creepy” and indicative of obsession. Id. The officers reported that the video loosely expressed love and romantic feelings. Id. Defendant sent these videos to the officers, which were preserved and later produced to defense. See id.

The transcript of the male voice narrating the first video states:

Learn to understand that she really does all this for you, because she loves you, because she really saw in you something that nobody else saw. Because you'll never find one like her again, twice. Because if she preferred to be with you instead of being with another person, it's because something in her makes her love you with so much passion, with so much desire, with so much impetus. Don't let her go. Take care of her. Value her. Call her. Ask her how her day was. Ask her how things went. Ask her if she's tired, if she wants a coffee, if she wants you to clothe her, if she wants you to rest alongside her, if she wants you to hug her. Don't leave her exposed to isolation or loneliness, where you[r] warmth should cover her. Listen to her whenever you can. Listen to her always. Don't let her feel alone next to you.

Lee Decl., Ex. H, Transcript of July 20, 2021, Interview (“July 20 Transcript”), ECF No. 55-3.

The transcript of the male voice narrating the second video states:

Something that men will never understand. The silence of a woman says a lot, when her heart tires of so much-of so much waiting, of so much trying. Of so much trying that she be given love, and begging. That she be heard at least once. The words will work. The performance will be noted. And she alone will leave. A moment will arrive in which she will tell you that everything is better than ever, that there's nothing wrong with her, that she feels happy. But, friend, you have hurt her inside. The pain that a broken heart generates is very, but very difficult, very difficult to overcome. Next to you she learned many things. She learned not to be overly trusting of people, to always be vigilant for her happiness before someone else's. To care for and achieve her goals. She learned that someone who truly loves her-

Id.

On October 21, 2021, law enforcement requested Defendant's work phone records from QSI but did not ask for the phone or its contents. See Lee Decl., Ex. J, Memorandum of Record, ECF No. 55-3. The records showed that that between March 15 and August 14, 2021, Defendant “made or received” 200 text, picture, and data messages to or from J.J.'s personal phone. Id. It is unclear how many messages were sent by each party. See id. The officers did not obtain records from the phone carrier or attempt to retrieve any of the messages, nor did they seek records from WhatsApp. See id.

On March 31, 2022, law enforcement contacted J.J. again to inquire whether she still had her phone. Lee Decl., Ex. I, Memorandum of March 31, 2022, Interview (“March 31 Interview”), ECF No. 55-3. J.J. replied that the old phone “broke approximately two months earlier,” but “some of the data from the broken phone was able to be transferred.” Id. She added that she had not deleted any communications with Defendant from the old phone and was willing to provide the old phone to law enforcement. Id. However, the officers did not get the cell phone from J.J. that day, or at any point that month. Instead, they contacted J.J. again on May 4, 2022, but she informed them that she no longer had it, having misplaced it during spring cleaning. Id.

On March 10, 2023, about one year and eight months after her original interview, law enforcement obtained J.J.'s consent to search her current phone. Id. The oldest text message found was from December 2022, with no preserved messages between her and Defendant. Id.

On April 6, 2023, Defendant was indicted. Upon his arrest, officers searched his personal cell phone and provided a full forensic report.

On May 4, 2023, approximately one year and ten months after J.J.'s...