United States v. Apodaca , 275 F. Supp. 3d 123 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
Criminal Action No. 14-57 (BAH)
v.
Chief Judge Beryl A. Howell
AGUSTIN FLORES APODACA and
PANFILO FLORES APODACA,
Defendants.
MEMORANDUM OPINION
The defendants, Agustin Flores Apodaca, also known as “El Nino,” “El Barbon,” and “El
Ingenierio,” and Panfilo Flores Apodaca, also known as “Charmin,” were indicted separately on
two substantively similar counts of conspiring to commit drug trafficking offenses, including
distribution of large quantities of cocaine, methamphetamine, heroin, and marijuana, with the
intent to unlawfully import those controlled substances into the United States, as charged in
Count One, in violation of 21 U.S.C. §§ 959, 960, 963, and 18 U.S.C. § 2; and using, carrying
and brandishing a firearm, during and in relation to one or more drug trafficking crimes, as
charged in Count Two, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(ii),
924(c)(1)(B)(ii), and 2. 1 At the government’s request, over the defendants’ objections, the Court
consolidated the defendants’ criminal cases for trial, see Minute Order (dated Jan. 6, 2017),
which trial is scheduled to begin on September 18, 2017.
Pending before the Court are twelve pretrial motions filed by each defendant and by the
government. These motions are: (1) the defendants’ multi-pronged challenges to the
1
Given the similarity in surnames between the defendants, and alleged co-conspirators, each defendant is
referred to by his first name.
government’s admission in its case-in-chief of court-authorized interceptions of Panfilo’s
electronic communications and other co-conspirator statements, including (a) Agustin’s Motion
to Compel Discovery (“Agustin’s Discovery Mot.”), ECF No. 40; Panfilo’s Motion to Join and
Supplement Agustin’s Motion to Compel Discovery (“Panfilo’s Discovery Mot.”), ECF No. 41,
and an amendment thereto (“Panfilo’s Am. Discovery Mot.”), ECF No. 45; (b) the defendants’
Joint Motion to Suppress Title III Intercepts (“Defs.’ Jt. Mot. Suppress Intercepts”), ECF No. 33;
(c) Agustin’s Motion in Limine to Preclude Introduction of Post-Arrest Title III Intercepts
(“Agustin’s MIL Preclude Post-Arrest Intercepts”), ECF No. 51; (d) the defendants’ Joint
Motion for Pretrial Hearing of Admissibility of Alleged Co-Conspirator Statements (“Defs.’ Jt.
Hr’g Mot.”), ECF No. 52; and (e) Agustin’s Motion to Enforce the Rule of Specialty (“Agustin’s
Specialty Mot.”), ECF No. 54; (2) Agustin’s Motion to Suppress Statements (“Agustin’s
Suppress Stms. Mot.”), ECF No. 48; (3) the defendants’ Joint Motion to Dismiss Count Two of
Indictments (“Defs.’ Count Two Mot.”), ECF No. 50; (4) the defendants’ separate Motions to
Strike Improper Aliases, ECF Nos. 53 and 56; and, finally, (5) the government’s Motion to
Introduce Co-Conspirator Statements, Other Crimes Evidence at Trial, and Allow Lead Agents at
Counsel Table (“Gov’t’s Mot.”), ECF No. 55. Following a summary of the relevant factual
background proffered by the government in briefing papers, these motions are addressed in the
following sequence: Part II discusses three of the defendants’ motions challenging the
introduction of intercepted communications; Part III addresses Agustin’s motion to suppress the
statements he made to the U.S. law enforcement agents on two occasions; and, lastly, Part IV
discusses the defendants’ joint and joined motions to dismiss the firearms charge in Count Two
of the indictments and to strike reference to aliases in the indictments. Pending supplemental
briefing, the Court reserves ruling on five motions in full or in part: (1) the Defendants’ Joint
2
Motion to Suppress Title III Intercepts, ECF No. 33; (2) Agustin’s Motion to Compel Discovery,
ECF No. 40; (3) Panfilo’s Motion to Join and Supplement Agustin’s Motion to Compel
Discovery, ECF No. 41, (4) Panfilo’s Amended Motion to Join and Supplement Agustin’s
Motion to Compel Discovery, ECF No. 45; and (5) the portion of the government’s omnibus
motion seeking admission of intrinsic or other bad acts, under Federal Rule of Evidence 404(b),
ECF No. 55. 2
I. BACKGROUND
The government proffers that, based on information provided to the Federal Bureau of
Investigation (“FBI”) Office in Washington State by a confidential informant (“CI”) in July
2010, the FBI was able to identify a distribution cell of a larger Mexican drug trafficking
organization (“DTO”), known as the Meza Flores DTO (“MF-DTO”), which was based in
Guasave, Sinaloa, Mexico, and worked closely with the Hector Beltran Leyva DTO (“BL-DTO”)
to traffic tonnage quantities of cocaine, methamphetamine, heroin, and marijuana into the United
States for distribution in the states of Arizona and Washington, and elsewhere in the United
States. See Gov’t’s Mot. Consolidate Cases for Trial (“Gov’t Consolidation Mot.”) at 1–2, ECF
No. 16. As set forth in the government’s affidavit in support of Agustin’s extradition from
Mexico, the government identified Agustin as a longtime member of the BL-DTO and as the
person who introduced his nephew, Fausto Isidro Meza Flores, also known as “Chapo Isidro”
(“Chapo Isidro”), into the organization, and also worked with his brother, Salome Flores
Apodaca, also known as “Pelon” and “Fino,” to distribute cocaine, methamphetamine, heroin,
and marijuana into the United States. See Agustin’s Specialty Mot., Ex. 1 ¶ 5 (Gov’t’s Aff.
2
The portion of the government’s motion to seat at counsel table the lead case agent, Gov’t’s Mot. at 38–39,
ECF No. 55, is granted as conceded, since the defendants raise no objection to this request “provided the
Government’s request is limited to this agent.” Defs.’ Jt. Resp. to Gov’t’s Mot. at 2, ECF No. 66.
3
Supp. Extradition of Agustin Flores Apodaca, dated Oct. 9, 2012), ECF No. 54-2. Chapo Isidro
is viewed by the government as the leader of the MF-DTO, while his uncles, both defendants
Agustin and Panfilo, and Salome, participated in the distribution of illegal drugs from Mexico
into the United States. See Gov’t’s Mot. at 5. In addition, Agustin’s role within the MF-DTO is
described by the government as “synthesizing large volumes of methamphetamine form pre-
cursor chemicals,” while “Panfilo grew and harvested marijuana, and also coordinated logistics
for the shipments of narcotics into the United States for the DTO.” Id. Both Agustin and Panfilo
“carried firearms” and “employed armed gunmen for protection,” and “were also directly
involved in acts of violence including shootouts against rival cartel members and kidnapping
individuals who were unable to pay drug debts.” Id.; see also Gov’t’s Opp’n Agustin’s MIL
Preclude Post-Arrest Intercepts at 2–3, ECF No. 61.
The government attributes three seizures of illegal narcotics in 2010 and 2011 to the MF-
DTO. Gov’t’s Consolidation Mot. at 7. First, on September 2, 2010, U.S. law enforcement
seized two pounds of methamphetamine in the gas tank of a silver BMW in Utah, after
recovering information from a CI that Donato Valle Vega, who owned a used car lot in Centralia,
Washington, and Salome had discussed selling narcotics in the Washington area and sending
guns to Mexico. Id. at 8. Prior to the seizure, the FBI surveilled Vega loading a brown
Chevrolet Impala onto a transportation truck, which was subject, on August 2, 2010, to a “sneak
and peek” search that revealed approximately USD $56,000 in bundles and two drug ledgers in
the Impala. Id. Law enforcement observed Salome arrive at the truck. Id. On September 1,
2010, two men were observed loading a package into a silver BMW at Vega’s used car lot,
leading to the traffic stop and recovery of the methamphetamine in the gas tank. Id.
4
Vega subsequently consented to a search of his used car lot in Centralia, Washington,
where law enforcement made the second seizure, on September 2, 2010, of thirty-three pounds of
methamphetamine and four kilograms of cocaine. Id. Vega then, between September 2 and 8,
2010, made consensually recorded calls with Agustin discussing: (1) the purchase of fifty caliber
weapons with United States currency, and as a trade for methamphetamine, a deal Agustin said
he would call Salome directly to discuss, id. at 9; and (2) customers, quantities, and pricing for
kilograms of cocaine, which discussions were also recorded with Salome, id. On September 14,
2010, Salome tried to sell to a confidential informant of the Drug Enforcement Administration
(“CI-2”) approximately thirty pounds of methamphetamine and four kilograms of cocaine at a
meeting held in Phoenix, Arizona. Id. Salome arrived at this meeting in the brown Impala
originally surveilled on Vega’s used car lot. Id.
Finally, on June 10, 2011, Mexican authorities seized 2,800 kilograms of marijuana in
Nogales, Mexico, following receipt of information provided by another confidential informant
(“CI-3”), who reported being present when Agustin, Panfilo, and Salome discussed “their shared
responsibilities for drug trafficking to include money laundering, murder, kidnapping, firearms,
and extortion.” Id. CI-3 met with Agustin and Chapo Isidro to arrange the shipment of 2,800
kilograms of marijuana via Nogales to the United States. Id. at 9–10. Prior to the shipment,
Agustin escorted CI-3 to Chapo Isidro’s ranch, “where there were approximately 300 gunmen
present, armed with automatic rifles, grenades and rocket propelled grenades.” Id. at 10. After
Chapo Isidro approved the transaction, the marijuana shipment was sent to Nogales for transport
by another confidential informant (“CI-4”), who was “unable to cross the drugs into the United
States.” Id. About thirty days later, the Mexican Army seized the marijuana in Nogales. Id.
5
As a result of this seizure, Chapo Isidro, Agustin, and Panfilo held CI-3, CI-4, and a third
informant, (“CI-5”), responsible for paying off the debt for the seized marijuana, and Agustin
and Panfilo allegedly tried to take control of CI-3’s properties as part of the debt repayment. Id.
In October 2011, Agustin allegedly sent armed gunmen to CI-3’s business in Bamoa, where CI-3
was kidnapped for a total of nineteen days until CI-5 paid USD $200,000 in cash and properties,
with an understanding to pay the rest of the debt later. Id. During his kidnapping ordeal, CI-3
was held at a camp where he “saw the bodies of young men who and been tortured and murdered
lying about the camp,” and other captives, who “had their legs broken so that they could not
escape.” Id.
After CI-3’s release, a lawyer, Pedro Ozuna, advised CI-3 and CI-5 to release their
properties to Ozuna, or else pay $1,000,000 to Chapo Isidro and Agustin by December 31, 2011.
Id. at 11. Fearing for their lives, CI-3 and CI-5 fled to the United States, but continued to
negotiate the debt with Agustin. Id. CI-5 assured Agustin in a consensually recorded call on
February 13, 2012, that they were not responsible for the debt and were scared due to the
kidnapping, and requested addition time to pay the June 2011 marijuana debt. Id. These
discussions continued via Blackberry Messenger (BBM) until, on June 22, 2012, a family
member of CI-3 and CI-5 was kidnapped by members of the MF-DTO to force payment of the
debt. Id. After Agustin was arrested in Mexico on July 24, 2012, on the United States’
provisional arrest warrant pending an extradition request, CI-5 began receiving BBM messages
from Panfilo regarding payment of the debt. Id. The government then sought, and the United
States District Court for the Western District of Texas authorized, Title III interceptions of
electronic communications over 59 devices used by DTO co-conspirators, from February 2013 to
December 2014, including Panfilo, which wiretap ultimately led to the interception of over
6
12,500 pertinent intercepts between Panfilo and “other DTO co-conspirators.” Gov’t’s Opp’n
Agustin’s MIL Preclude Post-Arrest Intercepts Mot. at 4. 3 In these intercepted communications,
Panfilo allegedly discussed “the growing, harvesting, and packaging of marijuana, the production
and sale of heroin, the sale of methamphetamine, cocaine, and guns, and violent acts, with other
members known and unknown of the [MF-]DTO.” Gov’t’s Consolidation Mot. at 12.
Agustin was indicted on May 2, 2012, in this Court, of conspiring, for a period of about
twelve years, from January 2000 through the date of indictment on May 2, 2012, “both dates
being approximate and inclusive,” to distribute and import into the United States of 5 kilograms
or more of cocaine, 50 grams or more of methamphetamine, 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine, 1 kilogram or more of heroin,
and 1000 kilograms or more of marijuana; and, for a period of about two years, from July 2010
to May 2012, pursuant to 18 U.S.C § 3238 and within the venue of the District Court for the
District of Columbia, of using, carrying or brandishing a firearm during or in relation to drug
crime charged in the prior count. See Agustin Indictment, United States v. Agustin Flores
Apodaca, Crim. No. 12-116 at 1–3 (D.D.C. May 2, 2012), ECF No. 1. 4 Following his arrest by
the Mexican Federal Police in Mexico on July 24, 2012, Agustin claims he was subjected to
brutal torture that resulted in permanent loss of his vision in one eye, as documented in a medical
report by a Mexican forensic specialist, Dr. Jorge Enrique Leon Robles. See Agustin’s Suppress
Stms. Mot. at 3. He was also allegedly subjected to multiple death and other forms of threats to
his family. Id. at 7.
3
The first device subject to the Title III interception was used by Panfilo, who “thereafter switched to three
additional target devices.” Id.
4
Both Fausto Isidro Meza Flores and Salome Flores Apodaca were indicted with Agustin in a two-count
indictment, see generally id., but were not extradited to the United States.
7
Before he made an initial appearance in this Court on October 21, 2015, Agustin was
interviewed twice by the FBI: the first time, on September 26, 2012, during his detention in a
Mexican prison; and, the second time, on October 20, 2015, after he was ordered extradited and
during his travel to the United States. See Agustin’s Suppress Stms. Mot. at 1. He seeks to
suppress both of those statements. See generally id. Agustin has been in continuous custody in
Mexico and the United States since his arrest in July, 2012.
Two years after Agustin’s indictment, his brother Panfilo was indicted in March 2014, for
substantially the same charges. Specifically, Panfilo is charged, with conspiring, for a period of
about fourteen years, from January 2000 through the date of indictment on March 13, 2014,
“both dates being approximate and inclusive,” to distribute and import into the United States 5
kilograms or more of cocaine, 50 grams or more of methamphetamine, 500 grams or more of a
mixture or substance containing a detectable amount of methamphetamine, 1 kilogram or more
of heroin, and 1,000 kilograms or more of marijuana; and for a period of about nine years, from
January 2005 to the date of indictment on March 13, 2014, pursuant to 18 U.S.C § 3238 and
within the venue of the District Court for the District of Columbia, of using, carrying or
brandishing a firearm during or in relation to drug crime charged in the prior count. See
Indictment (“Panfilo Indictment”), ECF No. 1. Panfilo was arrested in Guasave, Mexico, on
April 8, 2015, and has been in continuous custody since then in Mexico and, after his extradition
on October 11, 2016, in the United States.
The Court now turns to several of the pending pretrial motions.
8
II. DEFENDANTS’ CHALLENGES TO THE INTRODUCTION OF INTERCEPTED
COMMUNICATIONS AND ALLEGED CO-CONSPIRATOR STATEMENTS
The defendants bring a multi-faceted challenge to the government’s introduction of Title
III intercepts and other co-conspirator statements at trial. First, Agustin has moved to preclude
introduction of the intercepts obtained after he was arrested, arguing that he exited the
conspiracy at the time of his arrest, and, therefore, co-conspirators’ statements that post-date his
arrest cannot be introduced against him. See generally Agustin’s MIL Preclude Post-Arrest
Intercepts, ECF No. 51. Second, the defendants have jointly moved for a pre-trial hearing to
address the duration of each defendant’s participation in the alleged conspiracy and to determine
the admissibility of any statements of alleged co-conspirators pursuant to Federal Rule of
Evidence 801(d)(2)(E). See generally Defs.’ Jt. Hr’g Mot., ECF No. 52. Third, Agustin argues
that the admission of any Title III wiretap evidence against him would violate the Rule of
Specialty and therefore argues that all intercepted communications must be suppressed as to him.
See generally Agustin’s Specialty Mot., ECF No. 54. Each of these motions is addressed in
turn. 5
A. Agustin’s Motion to Preclude Introduction of Post-Arrest Title III Intercepts
Agustin has moved to preclude admission against him of any evidence obtained from the
Title III intercepts against him on grounds that he “was arrested in Mexico on July 24, 2012,” at
which time he had presumptively “withdrawn from the conspiracy,” and “the wiretap did not
commence until February 2013—after the time frame of the charges contained in the Indictment
5
The Court reserves ruling, pending further briefing, on the defendants’ other attacks on the government’s
wiretap evidence, namely, Agustin’s and Panfilo’s separate motions to compel discovery concerning the wiretaps,
see Agustin’s Discovery Mot., ECF No. 40; Panfilo’s Discovery Mot., ECF No. 41; and Panfilo’s Am. Discovery
Mot., ECF No. 45, and the defendants’ joint motion to suppress all wiretap evidence, see Defs.’ Jt. Mot. Suppress
Intercepts, ECF No. 33.
9
against him,” in reliance on United States v. Escobar, 842 F. Supp. 1519, 1528 (E.D.N.Y. 1994),
a non-binding, out-of-Circuit district court decision. Agustin’s MIL Preclude Post-Arrest
Intercepts at 1, ECF No. 51. Agustin reasons that if his withdrawal from the conspiracy is
marked by his arrest, “the contents of the wiretap intercepts are inadmissible hearsay and cannot
be introduced against him,” under Federal Rule of Evidence 801(d)(2)(E). Id. at 2–3 (citing
Bourjaily, 483 U.S. at 175–76). This argument to preclude admission of the Title III intercepts is
based on the faulty premise that Agustin’s arrest is sufficient evidence of his withdrawal from
the charged conspiracy to bar admission of alleged co-conspirator statements made after that
arrest. This is not the law in this Circuit, and Agustin has otherwise failed to sustain sufficiently
his burden of showing his withdrawal from the charged conspiracy. Consequently, as explained
further below, Agustin’s motion to suppress the wiretap evidence on this ground is denied.
1. Relevant Legal Standard
The law is well-established that “[c]onspiracy is a crime that presumes continuity until
accomplishment or termination; once a defendant becomes a member of a conspiracy, he remains
a member until he affirmatively withdraws or the conspiracy ends.” United States v. Moore, 651
F.3d 30, 90 (D.C. Cir. 2011) (citing Hyde v. United States, 225 U.S. 347, 368–70 (1912)). As a
result, “once the government proves that a defendant was a member of an ongoing conspiracy, it
has proven the defendant’s continuous membership in that conspiracy unless and until the
defendant withdraws.” Id. Contrary to Agustin’s assertion of the applicable law, the mere fact
that a defendant is arrested does not, without more, demonstrate withdrawal from a conspiracy.
Instead, the D.C. Circuit has made clear that “[t]o establish withdrawal, a defendant may show
that it has taken ‘[a]ffirmative acts inconsistent with the object of the conspiracy and
communicated in a manner reasonably calculated to reach co-conspirators.’” Osborn v. Visa
10
Inc., 797 F.3d 1057, 1067 (D.C. Cir. 2015) (quoting United States v. U.S. Gypsum Co., 438 U.S.
422, 464 (1978)); see also Hyde, 225 U.S. at 369–70 (holding that a defendant remains a member
of the conspiracy “until he does some act to disavow or defeat the purpose . . .”); United States v.
Garrett, 720 F.2d 705, 714 (D.C. Cir. 1983) (“[T]o establish an effective withdrawal, the
defendant must show that he took affirmative action to defeat or disavow the purpose of the
conspiracy.”). As the D.C. Circuit recently noted, “withdrawal from the conspiracy is difficult,
requiring an affirmative step.” Bahlul v. United States, 840 F.3d 757, 800 (D.C. Cir. 2016).
Thus, withdrawal requires either coming clean to authorities or communicating abandonment to
co-conspirators. See United States v. Walls, 70 F.3d 1323, 1327 (D.C. Cir. 1995).
2. Analysis
Agustin acknowledges, as he must, that he bears the burden of establishing that he
withdrew from the conspiracy upon his arrest, see Agustin’s MIL Preclude Post-Arrest Intercepts
at 3, a burden that must be proven by a preponderance of the evidence, see Smith v. United
States, 568 U.S. 106, 109 (2013) (holding “that the defendant bears the burden of proof and that
such a disposition does not violate the Due Process Clause”); Moore, 651 F.3d at 90 (holding
that “the district court correctly instructed the jury that the defendant bore the burden of
persuasion to show that he withdrew from the conspiracy” and noting that “[w]e previously have
said unequivocally, albeit in the context of sentencing, that the defendant, not the government,
‘has the burden of proving that he affirmatively withdrew from the conspiracy if he wishes to
benefit from his claimed lack of involvement’” (quoting United States v. Thomas, 114 F.3d 228,
268 (D.C. Cir. 1997))); United States v. Dale, 991 F.2d 819, 854 (D.C. Cir. 1993) (“Defendants
have the burden of proving they affirmatively withdrew from the conspiracy[.]”); United States
v. Bostick, 791 F.3d 127, 143 (D.C. Cir. 2015) (same). As support for his argument that he
11
withdrew from the conspiracy, Agustin points to the fact that he was arrested and thereafter “was
not intercepted during the twenty-three month wiretap investigation,” and no allegation has been
proffered that he took “any other action in furtherance of the conspiracy . . . after his
incarceration.” Agustin’s MIL Preclude Post-Arrest Intercepts 1. Moreover, Agustin notes that
“indeed, the prosecution has stated that it did not intend to use the intercepted communications
against him if he was the sole defendant in the case.” Id. at 4.
This evidence falls far short of showing affirmative withdrawal from the conspiracy,
particularly in light of other evidence proffered by the government. At the outset, the mere fact
that Agustin was arrested does not amount to withdrawal. As the Supreme Court has observed,
“[p]assive nonparticipation in the continuing scheme is not enough to sever the meeting of minds
that constitutes the conspiracy.” Smith, 568 U.S. at 112–13; see also United States v. Wilson,
605 F.3d 985, 1037 (D.C. Cir. 2010) (noting defense concession that “his imprisonment” did not,
standing alone, constitute a withdrawal from the conspiracy); United States v. Wilkerson, 656 F.
Supp. 2d 22, 44 (D.D.C. 2009) (noting “correct” reading of the law “that incarceration by itself is
not an affirmative act of withdrawal and creates no presumption of withdrawal”) (citing United
States v. Melton, 131 F.3d 1400, 1405 (10th Cir. 1997) (“Although a conspirator’s arrest or
incarceration by itself is insufficient to constitute his withdrawal from the conspiracy, an arrest
may under certain circumstances amount to a withdrawal.” (internal quotation omitted))); United
States v. Harris, 542 F.2d 1283, 1301 (7th Cir. 1976) (“The arrest or incarceration of a
conspirator may constitute a withdrawal for a conspirator, but it does not as a matter of law.”).
Indeed, when given an opportunity two months after his arrest to “come clean to
authorities,” during a visit by FBI and DEA agents at the Altiplana Federal Rehabilitation Center
in Toluca, Mexico, on September 26, 2012, Agustin instead made, in the government’s view, “a
12
self-serving exculpatory statement” indicating “that he was only a business man, involved in
agriculture and denied any involvement in drug trafficking.” Gov’t’s Opp’n to Agustin’s MIL
Preclude Post-Arrest Intercepts at 7. Agustin did not clearly communicate any withdrawal from
the conspiracy or take any affirmative steps to do so. Certainly, by virtue of his arrest, Agustin’s
role in the conspiracy necessarily changed but that simply does not amount to withdrawal. See
Garrett, 720 F.2d at 714 (rejecting withdrawal defense and observing that the defendant
“confuses abandonment of criminal purpose with the mere fact that his role in the criminal
venture, the success of which he always intended, had come to an end”).
In short, Agustin has not met his burden of showing that he withdrew from the conspiracy
either before or during the period of the Title III interceptions and, consequently, those
communications in furtherance of the conspiracy would be appropriately admissible against him.
See United States v. Thomas, 114 F.3d 228, 267–68 (D.C. Cir. 1997) (finding that where the
defendant failed to meet burden of showing affirmative withdrawal from conspiracy, “drugs
handled by the conspiracy” after the defendant’s “claimed lack of involvement” were properly
attributed to him); United States v. Childress, 58 F.3d 693, 733 (D.C. Cir. 1995) (“[B]ecause he
does not claim he affirmatively withdrew from the conspiracy, Childress is criminally
responsible . . . for all of his compatriots’ foreseeable conduct in furtherance of those goals.”);
United States v. Alcorta, 853 F.3d 1123, 1139–41 (10th Cir. 2017) (rejecting the defendant’s
argument that intercepted calls were improperly admitted as not in furtherance of the conspiracy
when communications occurred after the arrest of two co-conspirators since the argument that
“the conspiracy terminated upon” the arrests was “based on an erroneous factual premise,” given
that the defendant’s drug operations did not end with the arrests).
13
For these reasons, Agustin’s motion to exclude Title III intercepts obtained after his arrest
on the ground that his arrest effectively marked his withdrawal from the conspiracy is denied.
B. Defendants’ Joint Motion for Pretrial Hearing of Admissibility of Alleged Co-
Conspirator Statements
Agustin and Panfilo have jointly moved for “a hearing in order to make a pre-trial
determination as to the duration and participation of each defendant in the alleged conspiracy and
to determine the admissibility of any statements of alleged co-conspirators pursuant to Fed. R.
Evid. 801(d)(2)(E).” Defs.’ Jt. Mot. Pretrial Hr’g of Admissibility of Alleged Co-Conspirator
Statements (“Defs.’ Jt. Mot. Hr’g”) at 1, ECF No. 52. In support, the defendants cite three
“substantial reasons to conduct such a pre-trial hearing,” id. at 5: first, although they are charged
with a conspiracy that began in 2000, “the only evidence that has been provided to the defense
consists of events that took place ten years later,” id.; second, the government’s evidence
regarding the three drug seizures, which occurred in September 2010 and June 2011, includes
alleged conversations of Agustin with informants, but “no mention” of Panfilo,” id. at 5–6; and,
finally, despite reference to the BL-DTO in the extradition papers, no “specific discovery
concerning” this DTO, which is a “separate criminal organization,” has been provided and
should not be admissible, id. at 6. 6
The government objects to holding a pre-trial hearing, proffering that, through witness
testimony at trial, the “Government will show that the Defendants, their nephew and brother
along with other co-conspirators were working together to traffic narcotics from Mexico into the
6
Agustin also cites his arrest in July 2012 as marking his withdrawal from the conspiracy, thereby
precluding the admissibility as co-conspirator statements, under Federal Rule of Evidence 801(d)(2)(E), of any
statement made thereafter, Defs.’ Jt. Mot. Hr’g at 6, but this basis for barring admission of post-arrest co-conspirator
statements has been rejected, see supra at Part II.A.
14
United States.” Gov’t’s Opp’n to Defs.’ Jt. Mot. Hr’g at 5, ECF No. 60. For the reasons set out
below the defendants’ joint motion for a pretrial hearing on this issue is denied.
1. Relevant Legal Standard
Federal Rule of Evidence 801(d)(2)(E) provides that an out-of-court statement is not
hearsay if it is “offered against an opposing party and . . . was made by the party’s coconspirator
during and in furtherance of the conspiracy,” with further instruction that “the statement must be
considered, but does not by itself establish . . . the existence of the conspiracy or participation in
it under (E).” FED. R. EVID. 801(d)(2). Upon objection to admission of an alleged co-
conspirator’s out-of-court statement, “the district court must find by a preponderance of the
evidence that a conspiracy existed and that the defendant and declarant were members of that
conspiracy.” United States v. Gewin, 471 F.3d 197, 201 (D.C. Cir. 2006) (citing Bourjaily v.
United States, 483 U.S. 171, 175–76 (1987)). As reflected in the Rule itself, an out-of-court
statement cannot alone support the necessary finding that the defendant and declarant were
together involved in a conspiracy. FED. R. EVID. 801(d)(2); see also Gewin, 471 F.3d at 201
(noting “that the finding [of conspiracy’s existence and defendant and declarant’s membership in
conspiracy] must rest on some independent evidence of the conspiracy”) (citing United States v.
Gatling, 96 F.3d 1511, 1520–21 (D.C. Cir. 1996)). Thus, the ultimate admissibility
determination must rest both on finding that the challenged co-conspirator statement is in
furtherance of the conspiracy and, at least partially, on some independent evidence of the
conspiracy.
2. Analysis
The parties agree on the law applicable to determining whether alleged co-conspirator
statements are admissible under Rule 801(d)(2)(E) but dispute the preferable timing for when
15
this determination should be made. In this regard, Federal Rule of Evidence 104(c) expressly
addresses the circumstance in which the relevance, and therefore the admissibility, of evidence
“depends on whether a fact exists,” and authorizes a court to “admit the proposed evidence on
the condition that the proof be introduced later.” FED. R. EVID. 104(c). Notwithstanding this
timing rule allowing deferral of the determination of the prerequisites for admission of co-
conspirator statements with conditional admission of the challenged statements, the defendants,
relying on United States v. Jackson, 627 F.2d 1198 (D.C. Cir. 1980), seek a pretrial hearing at
which the government will present evidence to support its charged conspiracy and the
defendants’ participation in it, along with the co-conspirators whose out-of-court statements the
government intends to introduce. Defs.’ Jt. Mot. Hr’g at 5–6. Indeed, the D.C. Circuit has
suggested that the “preferred practice is for the trial court to make these determinations before
the hearsay evidence is admitted.” United States v. Slade, 627 F.2d 293, 307 (D.C. Cir. 1980);
Jackson, 627 F.2d at 1218 (“[T]he better practice is for the court to determine before the hearsay
evidence is admitted that the evidence independent of the hearsay testimony proves the existence
of the conspiracy sufficiently to justify admission of the hearsay declarations.”).
Yet, in these same cases, the Circuit has acknowledged that, due to “practical
impediments,” “it is just impractical in many cases for a court to comply strictly with the
preferred order of a proof by taking the testimony of such witnesses piecemeal, waiting until a
conspiracy is fully proved by independent evidence, and then recalling from their normal
pursuits, those who testify to hearsay declarations of co-conspirators.” Jackson, 627 F.2d at
1218. Consequently, “the court is vested with considerable discretion to admit particular items
of evidence ‘subject to connection.’” Id. (internal citation omitted); see also Slade, 627 F.2d at
307 (acknowledging that the trial court “retains discretion . . . to admit particular co-conspirator
16
statements conditioned on a later showing of substantial independent evidence of the three
prerequisites for their admission”).
In particular, “a decision on a motion should be deferred, if disposing of the motion
involves deciding issues of fact that are inevitably bound up with evidence about the alleged
offense itself.” United States v. Wilson, 26 F.3d 142, 159 (D.C. Cir. 1994). Doing so conserves
judicial resources by avoiding “what would otherwise become a separate trial on the issue of
admissibility.” United States v. Gantt, 617 F.2d 831, 845 (D.C. Cir. 1980), abrogated on other
grounds by In re Sealed Case, 99 F.3d 1175, 1178 (D.C. Cir. 1996). If, however, “at the close of
the government’s case, or at any other critical point,” the government has failed to meet its
burden, the court “must upon motion, and may sua sponte, strike the testimony that has not been
sufficiently connected and direct the jury to disregard it.” Jackson, 627 F.2d at 1218 (citing
authorities). Where such an instruction “cannot cure the prejudice threatened by the inadmissible
hearsay[,] a mistrial is required.” Id.
As recognized by the D.C. Circuit, the “practical impediments” to holding a pretrial
hearing on the preliminary questions about the existence of a conspiracy and the defendant and
declarant’s participation in it, has led to the general practice in this jurisdiction to defer these
determinations until the trial. See, e.g., United States v. Hassanshahi, 195 F. Supp. 3d 35, 52–53
(D.D.C. 2016) (deferring to trial “final ruling on the admissibility of” alleged co-conspirator
emails); United States v. Knowles, 2015 U.S. Dist. LEXIS 178210, at *7–9 (D.D.C. Dec. 30,
2015) (“Standard practice in this district is to allow the government to admit coconspirator
statements conditionally, subject to connection by the government at trial.”) (quoting United
States v. Larrahondo, 885 F. Supp. 2d 209, 220 (D.D.C. 2012))); United States v. Savoy, 889 F.
Supp. 2d 78, 111–12 (D.D.C. 2012) (denying the defendant’s motion for pretrial hearing and
17
deferring determination of conspiracy to trial); United States v. Loza, 763 F. Supp. 2d 108, 111–
12 (D.D.C. 2011) (“In this district it is common practice for a court to avoid a ‘disfavored ‘mini-
trial’ of the evidence’ by deferring its determination regarding the admissibility of alleged co-
conspirator statements until after the close of the government’s case.” (citing United States v.
Cooper, 91 F. Supp. 2d 60, 78 (D.D.C. 2000) (declining to hold a pretrial evidentiary hearing on
this issue), and United States v. Hsin-Yung, 97 F. Supp. 2d 24, 37 (D.D.C. 2000) (rejecting a
request for a pretrial hearing on admissibility of co-conspirator statements because “having a
pretrial hearing essentially would create a time-consuming mini-trial before the trial”)); United
States v. Eiland, 2006 U.S. Dist. LEXIS 11726, at *18–19 (D.D.C. Mar. 1, 2006) (denying a
defense motion for pretrial determination of the admissibility of alleged co-conspirator
statements). The reasons proffered by the government for following this general practice in this
case are persuasive.
In particular, despite the pre-trial discovery evidentiary gaps identified by the defendants,
the government indicates that the charged “conspiracy will be evidenced at trial through the
testimony of cooperating witnesses (the Defendants’ co-conspirators), co-conspirator statements
and through evidence of drug seizures in Mexico and the United States.” Gov’t’s Opp’n to
Defs.’ Jt. Mot. Hr’g at 4. Plainly, some of the same witnesses will be testifying about the
existence and activities of the charged conspiracy and the co-conspirator statements. Requiring
these witnesses to testify twice, first at a pretrial hearing and second at the trial itself, would
result in duplicative testimony, “allow defense counsel two bites at the apple to cross-examine
the cooperating witnesses in this case,” id. at 10; and raise “a significant concern about the safety
of these cooperating witnesses and their families,” id. at 11, in light of proffered government
evidence about the use of weapons, kidnapping, and other violence associated with the charged
18
conspiracy. See United States v. White, 116 F.3d 903, 915, 916 (D.C. Cir. 1997) (noting that
“courts routinely admit hearsay statements of co-conspirators subject to connection through
proof of a conspiracy” and affirming trial court’s sequencing of proof since defendants’ proposed
preliminary hearing for proof of conspiracy “would have been wasteful of judicial time, as the
hearing and trial testimony on the murder would have been largely duplicative,” and “seriously
increased the risks to the witnesses”); United States v. Edelin, 128 F. Supp. 2d 23, 45–46 (D.D.C.
2001) (denying the defendant’s request for an advance determination of conspiracy since such a
pretrial hearing “would be lengthy, further delaying the trial in this case and placing an
unreasonable burden on the government,” and “would jeopardize the safety of cooperating
witnesses and other persons”). These considerations militate strongly in favor of permitting the
government to introduce the co-conspirator statements, subject to connection, at trial. 7
Accordingly, the defendants’ joint motion for a pretrial hearing on the admissibility of
co-conspirator statements is denied.
C. Agustin’s Motion to Enforce the Rule of Specialty
In yet another effort to bar admission against him of “any and all information obtained as
the result of the Government’s Title III wiretap in this case,” Agustin’s Mot. Enforce the Rule of
Specialty (“Agustin’s Specialty Mot.”) at 1, ECF No. 54, Agustin contends that the admission of
such interceptions “would also constitute an impermissible constructive amendment of the
Indictment that formed the basis of the extradition request,” id., and thereby violate the Rule of
Specialty. As grounds for this contention, he asserts that “the basis for the extradition included
7
The government has also moved to introduce “co-conspirator statements in the form of: [(1)] oral
statements; [(2)] photographs of drug ledgers; and [(3)] intercepted electronic communications.” Gov’t’s Mot. at 1.
Generally, co-conspirator statements will be conditionally admitted at trial, subject to proof of the existence of a
conspiracy and the defendants’ involvement therein by a preponderance of the evidence, and to the extent such
statements are otherwise admissible, including under Federal Rules of Evidence 401, 403 and/or 404(b).
19
only events that took place before May 2, 2012—the date the Indictment was returned,” and the
government indicated no intent “to use post-Indictment evidence against Agustin [], or that it
reserved the right to do so.” Id.
Indisputably, the Title III intercepts Agustin seeks to exclude were obtained after the
indictment against this defendant was returned in May 2012 and his arrest in July 2012. See
Gov’t’s Opp’n to Agustin’s Specialty Mot. at 8, ECF No. 64 (stating the government’s intention
“to introduce other crimes evidence and co-conspirator statement evidence,” including
“statements of Co-defendant Panfilo intercepted pursuant to the Government’s Title III
electronic interception investigation” that “occurred after May 2, 2012, the date the Defendant
was indicted”). Nevertheless, Agustin’s contention falls far short of violating the Rule of
Specialty, which poses no obstacle to admission of post-indictment evidence against him.
The Rule of Specialty is a doctrine that “an internationally extradited defendant may be
tried only ‘for the offenses specified in the warrant of extradition . . . .’” Day v. Trump, 860 F.3d
686, 689 (D.C. Cir. 2017) (quoting 18 U.S.C. § 3192, and citing United States v. Rauscher, 119
U.S. 407, 423–24 (1886) (an extraditee may not be “delivered up” to be “tried for any other
offense than that [with which he was] charged in the extradition proceedings”)); United States v.
Kember, 685 F.2d 451, 458 (D.C. Cir. 1982) (explaining that the Rule of Specialty “requires that
a requisitioning state may not, without the permission of the asylum state, try or punish a fugitive
for any crimes committed before the extradition except the crimes for which he was extradited”
(internal citations omitted)). This doctrine is expressly incorporated into the Mexico–United
States Extradition Treaty, which provides that “[a] person extradited under the present Treaty
shall not be detained, tried, or punished in the territory of the requesting Party for an offense
other than that for which the extradition has been granted . . . .” Extradition Treaty Between the
20
United States of America and the United Mexican States, art. 17, Feb. 6, 1980, 31 U.S.T. 5059
(emphasis added).
At the outset, as the government points out, Gov’t’s Opp’n to Agustin’s Specialty Mot.,
at 5 n.2, Agustin may not have standing to raise a challenge under the Rule of Specialty since the
D.C. Circuit has declined to resolve conflicting authority and opine “as to whether a criminal
defendant—as opposed to the extraditing state—has standing to assert the doctrine of specialty.”
United States v. Lopesierra-Gutierrez, 708 F.3d 193, 206 (D.C. Cir. 2013); see also United
States v. Todd, 287 F.3d 1160, 1165 (D.C. Cir. 2002) (recognizing “that we are leaving certain
legal questions raised by the Government unresolved,” including “whether [defendant] lacks
standing to bring a claim [of violation of rule of specialty] based on alleged threats to prosecute
him for visa and tax fraud,” when he was not extradited to face such charges); United States v.
Sensi, 879 F.2d 888, 892 n.1 (D.C. Cir. 1989) (declining to resolve this question); Casey v. Dep’t
of State, 980 F.2d 1472, 1476 n.4 (D.C. Cir. 1992) (“[I]t remains an open question in this circuit
whether Casey has ‘standing’ to raise his claims after extradition.”).
At the same time, assuming that the merits of this argument may properly be reached, the
D.C. Circuit has stressed that “the doctrine of specialty governs prosecutions, not evidence.”
Lopesierra-Gutierrez, 708 F.3d at 206. Consequently, evidence admitted to bolster proof of the
crime for which the defendant was extradited does not amount to a violation of the Rule of
Specialty. Id. For example, in Lopesierra-Gutierrez, the D.C. Circuit found that “the doctrine of
specialty has no bearing” on the admission at trial of the extradited defendant’s involvement in a
conspiracy to ship cocaine in 1996, which occurred prior to the start of the charged conspiracy,
and was admitted “for the limited purpose of showing knowledge or intent.” 708 F.3d at 205–
06; see also United States v. Mosquera-Murillo, 153 F. Supp. 3d 130, 186 (D.D.C. 2015)
21
(denying the defendants’ objection to admission of other crimes evidence as a violation of the
Rule of Specialty since the evidence did not alter the charges for which defendants were being
prosecuted).
The evidence that the government intends to introduce against Agustin simply does not
alter the specific charges for which he was indicted and extradited. 8 Thus, the Rule of Specialty
has no bearing on admission of this post-indictment evidence and provides no basis for
exclusion. Accordingly, Agustin’s invocation of the Rule of Specialty as grounds to exclude the
Title III wiretap evidence against him is denied.
III. AGUSTIN’S MOTION TO SUPPRESS STATEMENTS
Agustin has also filed a motion seeking suppression of “any and all statements made to
law enforcement agents, whether Mexican or United States law enforcement, at any time
subsequent to his arrest in Mexico in July, 2012, to the present.” Agustin’s Suppress Stms. Mot.
at 1. Agustin focuses in particular on statements he made to U.S. law enforcement agents on two
different dates: September 26, 2012, when agents questioned him while he was imprisoned in
Mexico, and October 20, 2015, when he was being transported by law enforcement agents from
8
In a shifting argument, Agustin also posits that, “[b]eyond the rule of specialty,” Agustin’s Specialty Mot.
at 3, “introduction of thousands of intercepted communications obtained through the Title III wiretap—many of
which allegedly concern other criminal acts—would constructively amend the Indictment in this case,” id. at 4. He
is incorrect. A constructive amendment that violates a defendant’s right to be charged by a grand jury occurs “only
if the deviation in proof or instructions from the specifics of the indictment affects an essential element of the
offense charged.” United States v. Sayan, 968 F.2d 55, 59 (D.C. Cir. 1992) (quoting United States v. Lemire, 720
F.2d 1327, 1345 (D.C. Cir. 1983)); see also United States v. Toms, 396 F.3d 427, 436 (D.C. Cir. 2005); United
States v. Mangieri, 694 F.2d 1270, 1277 (D.C. Cir. 1982). Evidence that merely expands the time frame beyond the
end date specified in the charged conspiracy does not alter the essential elements of that criminal offense. See
United States v. Emor, 573 F.3d 778, 786–87 (D.C. Cir. 2009) (rejecting a challenge of constructive amendment to
an indictment due to “variance between the timeline set forth in his indictment and the years for which the
government presented evidence at trial,” noting that “[a]ll critical aspects of the conspiracy remained unchanged
throughout its existence, and the precise timing of the criminal scheme was not a material element either in the
indictment or during trial”). Consequently, to the extent Agustin contends that evidence from the Title III intercepts
expands the time frame of the charged conspiracy beyond the charged end date of May 2012, this does not amount
to a constructive amendment and does not provide a basis for exclusion of the challenged evidence.
22
Mexico to the United States. See id. Agustin argues that his statements on these two occasions,
and all evidence derived therefrom, must be suppressed because “(1) admission would violate the
Defendant’s Sixth amendment rights; (2) the statements are the subject of involuntary acts
predicated upon, amongst other factors, the substantial fear of additional torture; (3) the
statements were purposely obtained in violation of the Fifth Amendment; and, ([4]), the
statements were elicited via a deliberate two-step interrogation procedure of the sort forbidden
by Missouri v. Seibert, 542 U.S. 600 (2004) and Oregon v. Elstad, 470 U.S. 298 (1985).” Id. at
10. The government maintains that Agustin’s statements are admissible because he “made a
knowing, intelligent, and voluntary waiver of his Fifth and Sixth Amendment rights, and made
un-coerced statements to law enforcement officers.” Gov’t’s Opp’n Agustin’s Suppress Stms.
Mot. at 1. At hearings on August 2 and August 7, 2017, the Court heard testimony from two
government witnesses, Drug Enforcement Administration (“DEA”) Special Agent Luis de La
Cruz and FBI Special Agent Dean Giboney, and two defense witnesses, Dr. Miguel Angel
Carvajal Quinonez and Dr. Jorge Enrique Leon Robles. In light of this testimony, and the
arguments presented by the parties in their written submissions and during the hearing, the
motion to suppress is denied.
1. Relevant Legal Standard
As noted, Agustin argues that the September 2012 statement was obtained in violation of
his Fifth Amendment rights, and that the October 2015 statement was obtained in violation of his
Fifth and Sixth Amendment rights. The Fifth Amendment provides that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V. Under
the Sixth Amendment, a defendant is guaranteed the right to have counsel present “at all critical
stages of the criminal proceedings,” including “before trial.” Missouri v. Frye, 566 U.S. 133,
23
140 (2012) (internal quotation marks omitted); accord Lafler v. Cooper, 566 U.S. 156, 162
(2012) (stating that the Sixth Amendment guarantees defendants “the effective assistance of
competent counsel” during plea negotiations (internal quotation marks omitted)). “Critical
stages include arraignments, postindictment interrogations, postindictment lineups, and the entry
of a guilty plea.” Frye, 566 U.S. at 140. 9
The Supreme Court held in Miranda v. Arizona that “the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination.” 384 U.S. 436, 444 (1966). Miranda requires law
enforcement to warn a person subject to custodial interrogation, before any interrogation has
begun, “that he has a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an attorney, either retained or
appointed.” Miranda, 384 U.S. at 444. “Unless a suspect ‘voluntarily, knowingly and
intelligently’ waives these rights, any incriminating responses to questioning may not be
introduced into evidence in the prosecution’s case in chief in a subsequent criminal proceeding.”
Pennsylvania v. Muniz, 496 U.S. 582, 589 (1990) (internal citation omitted).
Where, as here, the government acknowledges that the defendant was in custody when
questioned by authorities, see Gov’t’s Opp’n Agustin’s Suppress Stms. Mot. at 3 (noting that
Agustin was “releas[ed] to the custody of the FBI”); see also id. at 6–7, 9–15, the government
bears the burden of proving, by a preponderance of the evidence, that the defendant validly
waived his Miranda rights to overcome a motion to suppress any resulting statements,
9
The government does not dispute that the defendant’s Sixth Amendment rights had attached on both
occasions when he was questioned by law enforcement agents in connection with this case. See Gov’t’s Opp’n
Def.’s Mot. Suppress Statements at 9 (quoting United States v. Gouveia, 467 U.S. 180, 188 (1984)).
24
see Colorado v. Connelly, 479 U.S. 157, 168 (1986). As noted, in order to be valid, such a
waiver must be both knowing and voluntary. United States v. Yunis, 859 F.2d 953, 961 (D.C.
Cir. 1988). Thus, “‘[f]irst, the relinquishment of the rights must have been voluntary in the sense
that it was the product of a free and deliberate choice rather than intimidation, coercion or
deception[; and, s]econd, the waiver must have been made with a full awareness both of the
nature of the right being abandoned and the consequences of the decision to abandon it.’” Id.
(internal alterations omitted) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). The D.C.
Circuit has instructed that, “courts use an ‘objective standard’ for evaluating a defendant’s
waiver, and this takes into account ‘the education, experience, and conduct of the accused.’” Id.
at 965 (quoting Pettyjohn v. United States, 419 F.2d 651, 654 n.7 (D.C. Cir. 1969)).
2. Analysis
Agustin contests the admissibility of the statements he made to U.S. law enforcement
officers on September 26, 2012, and October 20, 2015, insisting that those statements were not
voluntarily and knowingly given but instead were the product of lingering fear of authority that
Agustin developed after having been tortured by Mexican authorities. In documenting his
torture, the defendant relies on “a medical report by one of the foremost forensic specialists in
Mexico, Dr. Jorge Enrique Leon Robles,” which report was “introduced into the criminal case
dossier in the Mexican tribunal as evidence of the extreme torture and physical injury . . . the
Defendant suffered while in custody.” Agustin’s Suppress Stms. Mot. at 3; see also generally
Agustin’s Reply Supp. Suppress Stms. Mot., Ex. A, Leon Robles Torture Report, ECF No. 71-
1. 10 The report explains that the defendant was brutally beaten, resulting in “a deteriorating
10
A certified translation of Dr. Leon Robles’s report was introduced as Agustin’s Exhibit C during the
August 7, 2017 hearing.
25
muscular-skeletal disorder,” “chronic head and neck pain,” and “permanent[] damage[] [to] his
vision.” Agustin’s Suppress Stms. Mot. at 4–5. The report also indicates that, upon his arrest,
the defendant was “forced to sign documents which incriminate him while receiving multiple
death threats towards his family.” Id. at 3.
The threshold question in this analysis is whether Agustin was in fact tortured by
Mexican authorities, which the government continues to dispute. In light of the credible,
unrebutted testimony of both Dr. Carvajal Quinonez and Dr. Leon Robles, the Court finds that
Agustin was tortured upon his arrest by Mexican officials. In particular, Dr. Carvajal Quinonez
testified that Agustin’s retina tear was consistent with torture, and Dr. Leon Robles, who
specializes in forensic medicine, is an expert on torture, and regularly examines individuals for
determinations of torture, testified at length about his previous examination of Agustin and his
conclusion that Agustin had been tortured, which conclusion is well documented in Dr. Leon
Robles’s forensic report. 11 In particular, Dr. Leon Robles testified that he believed that, among
other things, Agustin was violently beaten by Mexican authorities upon his arrest, and that these
authorities used a form of torture called “the blender” or “the little onion,” which causes the
subject of the torture to experience intense neck pain. Dr. Leon Robles testified that he believed
that Agustin was subjected to these forms of torture based on the “organic manifestations”
observed during his examination. Moreover, Dr. Leon Robles conducted a psychological
evaluation and concluded that Agustin suffered from Post-Traumatic Stress Disorder (“PTSD”),
as evidenced by “intrusive memories of what had happened,” “repeated nightmares,” loss of trust
in himself and others, and a generalized loss of interest. According to Dr. Leon Robles,
11
Dr. Leon Robles testified that he has issued at least 250 reports similar to the report he prepared in this case
since the publication of the Istanbul Protocol, which he described as a manual for the investigation and
documentation of torture by the United Nations Office for the Special Commission of Human Rights.
26
Agustin’s behavior while he discussed his torture was likewise consistent with PTSD, including
crying, shaking hands, an active carotid gland, increased blood circulation and heart rate, and
excessive sweating. Furthermore, Dr. Leon Robles performed a cortisol test on Agustin, which
came back at less than median, indicating the presence of PTSD. In sum, Dr. Leon Robles
testified that he was “certain” that Agustin was tortured by Mexican authorities, and that he was
suffering from PTSD seven months after that torture when Dr. Leon Robles conducted his
examination. On this undisputed evidence, the Court finds that Agustin was tortured by Mexican
authorities upon his arrest. Accordingly, the dispositive question is whether that torture renders
Agustin’s statements involuntarily. Each of Agustin’s contested statements to U.S. law
enforcement is addressed in turn.
a. The September 2012 Statement
The government put on testimony by DEA Special Agent Luis de La Cruz, who
questioned Agustin in September 2012 in a small cell at the Mexican prison along with FBI
Special Agent Britton Boyd. Agent de La Cruz testified that he and Agent Boyd were
accompanied by a Mexican attorney, and were seated at a table across from Agustin and
separated from him by a “mesh” wall. A Mexican prison guard stood outside the cell. As soon
as Agustin entered the room, the agents introduced themselves and read Agustin an Advice of
Rights (“AOR”) form in Spanish, as he read along. Agustin did not ask any questions about the
AOR form, but proceeded to sign it, thereby waiving his rights to remain silent and speak to an
attorney before answering law enforcement’s questions. See Agustin’s Signed AOR Form,
Suppression Hearing, Gov’t’s Ex. 10; Translated AOR Form, Suppression Hearing, Gov’t’s Ex.
11. Agent de La Cruz stated that he did not observe any injuries on Agustin’s body, and that he
does not recall Agustin being restrained during the questioning. Further, Agent de La Cruz
27
stated that Agustin spoke in a calm voice, that he sensed no fear in Agustin’s voice, nor did he
observe that Agustin was shaking. Agustin did mention that he was “beaten up” on the day of
his arrest, but the agents told him that they were not there to discuss what occurred the day of his
arrest and that he should speak with his attorneys if he had concerns about his treatment. The
interview lasted for between thirty and forty minutes, and Agustin did not at any time indicate
that he did not wish to speak with the agents. During the conversation, Agustin did not admit to
involvement in drug trafficking and maintained that he was a businessman.
Agustin argues that his September 2012 statement was not voluntary or knowing in light
of his “past torture and fear of additional torture when he was interrogated by United States
agents in the presence of Mexican officials.” Agustin’s Suppress Stms. Mot. at 11. The
government responds that “the Defendant was apprised of his rights, waived those rights, and
gave a voluntary statement.” Gov’t’s Opp’n Agustin’s Suppress Stms. Mot. at 10. To be
precise, during the September 2012 interview, the law enforcement agents provided Agustin with
AOR form, in Spanish, and “[a]fter reading the AOR and having the AOR read to him, the
Defendant signed and executed the AOR form and did not request counsel.” Id. According to
the government, although “a Mexican prison official was present in the statement room,”
Agustin “responded to the agents in a conversational tone” and “did not indicate that he was in
any distress or request medical attention,” and the agents did not observe any physical trauma on
his body. Id. Further, “[a]ssuming the alleged torture was conducted,” the statements obtained
by U.S. law enforcement agents in September 2012 are admissible because they are “‘so
attenuated from the illegal search or seizure that the taint of the unlawful government conduct
was dissipated.’” Id. at 11–12 (quoting United States v. Holmes, 505 F.3d 1288, 1293 (D.C. Cir.
2007). The government contends that the three-factor test for assessing whether a statement is
28
sufficiently attenuated from the initial unlawful search or seizure is satisfied here. See id. at 12
(citing United States v. Brodie, 742 F.3d 1058, 1063 (D.C. Cir. 2014) (referencing the three
factors to be addressed, including (1) the amount of time between the illegality and the discovery
of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy
of the illegal conduct)).
The totality of the circumstances surrounding Agustin’s September 2012 statement to
U.S. authorities compel the conclusion that it was voluntarily and knowingly given,
notwithstanding Agustin’s previous torture by Mexican authorities. As explained by Agent de
La Cruz, no Mexican law enforcement officer was in the room when Agustin spoke with Agent
de La Cruz and Agent Boyd, and Agustin was separated from the agents by a mesh wall. He was
given an AOR form, which he read, and he proceeded to speak with the agents in a calm
demeanor. Notably, far from admitting his guilt, Agustin maintained that he was merely a
businessman and was not involved in drug trafficking, which indicates that he had his wits about
him and did not feel coerced to make inculpatory admissions. 12 On these facts, Agustin’s
September 2012 statement was voluntary and knowing and is admissible at trial.
b. The October 2015 Statement
The government elicited testimony concerning the October 2015 statement from Special
Agent Giboney, who is assigned to the FBI’s Seattle field office, and who participated in
Agustin’s extradition from Mexico to the United States along with Special Agent Boyd. 13
12
Agustin did refer to the Impala that the U.S. authorities believed had been used in connection with drug
trafficking by the Meza Flores DTO, but Agustin had no reason to know that his statement about the Impala would
be inculpatory.
13
Agent Giboney’s testimony was consistent with the FBI Form 302 detailing the extradition and the
conversation that occurred on the FBI jet. See Gov’t’s Opp’n Agustin’s Suppress Stms. Mot., Ex. 4, Oct. 2015 FBI
Report at 2, ECF No. 62-4.
29
Special Agent Giboney testified that he first came into contact with Agustin at the Mexico City
airport, at which point both Mexican and U.S. authorities conducted medical examinations of
Agustin to ensure his fitness for extradition. After this processing, Agustin was escorted onto an
FBI jet by three to five agents. He was placed near the rear of the plane in a chair at a table and
was restrained with handcuffs, a bellyband, and leg irons. Agustin’s eyesight and hearing were
temporarily restricted with goggles and earmuffs during take-off and landing. There were
several FBI agents on the flight, along with the pilot and co-pilot; no Mexican authorities were
on the plane. During the flight, Agustin was given water and soda and was offered a meal,
which he declined. Special Agent Giboney testified that Agustin’s demeanor was relatively calm
but evinced some nervousness, and that overall he was very cooperative. The Special Agents’
first interaction with Agustin occurred shortly after take-off. The conversation was in Spanish,
and began with Special Agent Boyd explaining to Agustin that he was being extradited to the
United States on drug trafficking and firearm charges. Six minutes into the conversation,
Agustin was given the AOR form. He requested his reading glasses to review the AOR form.
After reading it, Agustin stated that he understood his rights and that he had no questions about
the form but questions about the case against him. Agustin declined to sign the AOR form,
stating that he had previously spoken to an attorney who advised him not to sign anything.
Nevertheless, Agustin agreed to speak with the agents and asked them how his name had ended
up on the “black list,” the slang term for an OFAC list of individuals subject to economic
sanctions. Agustin also discussed horse racing and horse purchases he had made. The interview
lasted approximately one to one-and-a-half hours.
Agustin seeks suppression of his October 2015 statement on three grounds. First,
Agustin argues that his post-arrest statements “were not knowing, intelligent, and voluntary”
30
because he was unfamiliar with the U.S. justice system; he was “terrified because he thought he
may again be tortured;” and the defendant suffered through torture while in custody in Mexico.
Agustin’s Suppress Stms. Mot. at 14–16. Second, Agustin contends that he “told the government
agents that he was represented by counsel, that counsel had advised him not to make any
statements not to sign any waivers,” and that the agents “persisted in questioning him
notwithstanding his refusal to execute a Miranda waiver.” Id. at 10. Finally, he argues that the
law enforcement agents who transported him from Mexico to the United States “engaged in a
deliberate two-step interrogation: they first questioned [him] prior to affording him Miranda
warnings” and “then, and only then, administered the warnings.” Id. at 13 (citing Missouri v.
Seibert, 542 U.S. 600 (2004)).
The government argues that the defendant’s statements made during the October 2015
interview are admissible because “the Defendant was apprised of his rights, orally waived those
rights, and then gave voluntary statements to law enforcement.” Gov’t’s Opp’n Agustin’s
Suppress Stms. Mot. at 15 (emphasis in original) (noting that the defendant was provided an
AOR form to review, though he declined to sign the form, but nevertheless spoke with the law
enforcement agents). The government maintains that Agustin’s telling of events is “factually
incorrect” because although he indicated that he had a lawyer, and the lawyer had instructed him
not to sign anything, Agustin nevertheless expressed a desire to speak with the agents. Id. at 15–
16 (“[T]he Defendant’s statements about his attorney were not an invocation of his right to have
counsel present. The mere mention of an attorney and reference to advise from an attorney is not
an unambiguous invocation of the right to counsel.”). As for Agustin’s contention that he was
subjected to a “deliberate two-step interrogation,” the government asserts that “[the] [a]gents did
not ask any questions of the Defendant until he had orally agreed to waive his rights after he read
31
the [AOR] form,” and that the agents merely “informed Defendant of the nature of the charges
and a background of the investigation that had led to his extradition” before providing the AOR.
Id. at 17.
First, the totality of the circumstances surrounding Agustin’s October 2015 statement
again demonstrate that the statement was voluntary and knowing. This statement was much
farther removed from the torture than Agustin’s previous statement, and long after Dr. Leon
Robles’s examination, but assuming that Agustin continued to experience PTSD in October
2015, Agustin clearly had his wits about him on the flight from Mexico City to the United States,
as evidenced by the fact that, to his mind, he again did not make any inculpatory statements. 14 In
addition, Agustin was provided an AOR form, which he read after requesting his reading glasses.
Although he did not sign the form, he proceeded to speak with the Special Agents and in fact
stated a desire to speak with them to find out about his alleged placement on the “black list.”
Moreover, the fact that Agustin declined to sign the AOR form indicates that his will was not
overborne by the presence of U.S. law enforcement authorities.
The defense makes much of the similarities between Agustin’s questioning on the FBI jet
en route to the United States and an incident shortly after his arrest in which Mexican authorities
placed Agustin in a helicopter, blindfolded him, and threatened to throw him off the helicopter or
hurt his family members if he did not incriminate himself. Although the two situations bear
limited similarities in terms of being airborne and temporary blindfolding, Agustin was in U.S.
custody at the time of the second questioning, with no Mexican authorities on the plane, and
Agustin does not suggest that he was in any way threatened by the FBI agents. To the contrary,
14
The government explains that Agustin did mention the sale of a horse, which may be inculpatory, and he
also confirmed that he heard his voice on recorded phone calls, but Agustin had no reason to believe either of these
statements would be inculpatory.
32
he was offered food, water, and soda, and provided an AOR form. Thus, the helicopter incident
does not render Agustin’s statements during extradition involuntary, and his statement is not
inadmissible on that basis.
Agustin’s second argument in favor of suppression boils down to the question whether he
adequately invoked his right to counsel by stating that he had an attorney and his attorney had
advised him not to sign anything. The government argues that “the mere mention of an attorney
and reference to advice from an attorney is not an unambiguous invocation of the right to
counsel.” Gov’t’s Opp’n Agustin’s Suppress Stms. Mot. at 16. As noted above, the parties
dispute exactly what Agustin said to the FBI agents. Whereas Agustin argues that he “told the
government agents that he was represented by counsel, that counsel had advised him not to make
any statements nor to sign any waivers,” Agustin’s Suppress Stms. Mot. at 10, the government
contends that Agustin merely “indicated that he wished to speak with the agents, but that he
could not sign any documents on advice of his attorney,” Gov’t’s Opp’n Agustin’s Suppress
Stms. Mot. at 15–16. The Court finds, based on the unrebutted testimony from Special Agent
Giboney, who presented as credible and forthright, that although Agustin stated he had spoken
with an attorney who had advised him not to sign anything, Agustin expressed a desire to speak
with the Special Agents. Thus, the question is whether this statement and refusal to sign the
AOR form constitutes invocation of Agustin’s right to counsel.
As the Supreme Court has explained, if a suspect “makes a reference to an attorney that is
ambiguous or equivocal in that a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to counsel . . . precedents do not
require the cessation of questioning.” Davis v. United States, 512 U.S. 452, 458 (1994)
(emphasis in original). In Davis, the Supreme Court held that the defendant’s statement
33
“[m]aybe I should talk to a lawyer” was insufficient to invoke his right to counsel. Id. at 455.
As other courts have explained, mere references to an attorney are insufficient to meet Davis’s
exacting standard. See, e.g., Sechrest v. Ignacio, 549 F.3d 789, 807 (9th Cir. 2008) (“Sechrest
said that he had spoken with his attorney and had been advised to ‘keep his mouth shut.’ This
mention of an attorney and reference to advice from an attorney is not an unambiguous request
for counsel.”); United States v. Hitselberger, 991 F. Supp. 2d 130, 143 (D.D.C. 2014) (rejecting
the defendant’s argument that he had invoked his right to counsel where the defendant had
“declar[ed] that he would feel ‘more comfortable’ with a lawyer” because such a statement “is
not a clear and unequivocal request for a lawyer, and a reasonable officer could be confused as to
whether the Defendant was actually invoking his right to counsel before additional questioning
took place”). Clearly, then, under applicable caselaw, Agustin did not invoke his right to
counsel, since he simply stated that he had spoken to an attorney and was instructed not to sign
an AOR form.
Agustin’s third argument is that the FBI agents, who accompanied him on his journey
from Mexico to the United States, engaged in the “question-first, warn-second” method of
questioning, in violation of Missouri v. Seibert, 542 U.S. 600 (2004); see also United States v.
Hitselberger, 991 F. Supp. 2d 130, 141 (referring to the “‘question-first, warn-second’ tactic”).
Again, there are factual disputes here as to what occurred during the October 2015 questioning.
Whereas Agustin, in briefing, contends that the agents asked questions first, then provided an
AOR, Def.’s Mot. Suppress Statements at 13, the government maintains that “[a]gents did not
ask any questions of the Defendant until he had orally agreed to waive his rights after he was
read the advice of rights form,” Gov’t’s Opp’n Agustin’s Suppress Stms. Mot. at 17 (noting that
the government’s version of events is “evidenced by the memorialized report as well as the
34
content of Defendant’s exculpatory statements”). Here, as the government points out, the FBI
report detailing Agustin’s extradition from Mexico to the United States provides that “[a]t
approximately 3:00 p.m., the FBI plane departed the Mexico City airport, and at approximately
3:07 p.m., SA Giboney and SA Boyd sat down with FLORES APODACA to conduct an
interview.” Gov’t’s Opp’n Agustin’s Suppress Stms. Mot., Ex. 4, Oct. 2015 FBI Report at 2,
ECF No. 62-4. After providing Agustin some information about the case against him, including
that the case “originated in Washington State from the illegal weapons and narcotics trafficking
activities taking place there,” at approximately 3:16 p.m., he “was presented with an
international advice of rights form in the Spanish language.” Id. The report indicates that
“FLORES APODACA read through the document” and “was asked if he understood his rights
and if he had any questions.” Id. In response, Agustin “indicated that he understood his rights
and was willing to talk to investigators, but did not want to sign the advice of rights document
because an attorney had told him not to sign anything.” Id.
In Seibert, the Court addressed the validity of “a police protocol for custodial
interrogation that calls for giving no warnings of the rights to silence and counsel until
interrogation has produced a confession,” and then asking the suspect to repeat the statements
after the proper warnings were administered. Id. at 604. A plurality of the Court, joined by
Justice Kennedy in an opinion concurring in judgment, concluded that “the ‘question-first, warn-
second’ tactic can indeed be coercive, . . . no tactic is per se unconstitutional.” Hitselberger, 991
F. Supp. 2d at 141. When interrogators engage in this tactic, the question “is thus whether it
would be reasonable to find that in the[] circumstances the warnings could function ‘effectively’
as Miranda requires.” Seibert, 542 U.S. at 611–12. Here, the FBI Report makes clear that there
was no questioning of Agustin until after he had reviewed the AOR form, and there is no
35
evidence that Agustin responded to the agents with any incriminating information before he read
the AOR form. Thus, the facts of this case are wholly distinguishable from Seibert and other
cases in which Miranda warning administered “midstream,” and post-confession, were
sufficient. Id. at 604; see also Hitselberger, 991 F. Supp. 2d at 141 (“The technique used here is
not even close to the calculated two-step inquiry in Siebert. The agents only asked general
questions, with the purpose of establishing rapport with Mr. Hitselberger, not to elicit a
confession.”). Here, the warnings were appropriately timed to serve their intended purpose of
notifying the defendant of his rights before he might say something incriminating. Accordingly,
Seibert is simply inapplicable to the facts of this case and does not bar admission of the
defendant’s statements en route to the United States.
In sum, then, Agustin’s October 2015 statements are admissible, and his motion to
suppress is denied.
IV. DEFENDANTS’ MOTIONS CHALLENGING PARTS OF INDICTMENTS
The defendants challenge two aspects of the indictments. First, the defendants
individually and jointly move to dismiss the firearms charge for violation of 18 U.S.C. § 924(c)
in Count Two. The defendants allege that § 924(c) does not apply extraterritorially and, thus,
that the government cannot prosecute the defendants under § 924(c) for any alleged acts that
occurred outside the United States. Defs.’ Mot. to Dismiss Count II (“Defs.’ Mot. to Dismiss”),
ECF No. 50. The defendants also aver that Count Two of the indictments is “facially defective”
because the indictments do not adequately provide the defendant “sufficient information to
defend themselves against the charge.” Id. at 2. Second, both defendants have moved
separately, pursuant to Federal Rule of Criminal Procedure 7(d), “to strike from the Indictment”
any reference to the defendants using aliases. Agustin’s Mot. Strike Aliases at 1, ECF No. 53;
36
Panfilo’s Mot. Strike Aliases at 1, ECF No. 56. For the reasons stated below, these three
motions are denied.
A. Defendants’ Motions to Dismiss Count Two
The defendants individually and jointly move to dismiss Count Two of their respective
indictments, which charge each defendant with using, carrying or brandishing a firearm during or
in relation to drug crime, in violation of 18 U.S.C. § 924(c). Defs.’ Mot. to Dismiss. The
defendants argue that Count II must be dismissed for two reasons. First, the defendants aver that
§ 924(c) does not apply extraterritorially, and that the government cannot prosecute the
defendants for conduct that occurred outside the United States. Id. at 1. Second, the defendants
contend that the indictments “fail[] to provide either defendant [with] sufficient information to
defend themselves against the charge,” and “do not identify what weapons were allegedly
possessed by either defendant.” Id. at 2. Accordingly, the defendants assert that the indictments
fail to comply with Federal Rule of Criminal Procedure 7(c)(1), which requires that an
Indictment be a “plain, concise, and definite written statement of the essential facts constituting
the offense charged.” FED. R. CRIM . P. 7(c)(1). Neither argument has merit, and the motion is
denied.
1. Relevant Legal Standard
A criminal defendant “may raise by pretrial motion any defense, objection, or request that
the court can determine without a trial on the merits. FED. R. CRIM . P. 12(b)(1). Such motion
may challenge “a defect in the indictment or information” if “the basis for the motion is then
reasonably available and the motion can be determined without a trial on the merits.” FED. R.
CRIM . P. 12(b)(3)(B). Although a court’s supervisory powers provide it with the authority to
37
dismiss an indictment, “dismissal is granted only in unusual circumstances.” United States v.
Ballestas, 795 F.3d 138, 148 (D.C. Cir. 2015).
2. Extraterritorial Application of § 924(c)
It is well-established that “Congress has the authority to enforce its laws beyond the
territorial boundaries of the United States.’” EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248
(1991) (internal quotation marks omitted). “Unless contrary intent appears,” however, “all
statutes, without exception, [should] be construed to apply within the United States only.”
United States v. Delgado-Garcia, 374 F.3d 1337, 1344 (D.C. Cir. 2004) (internal quotation
marks omitted); see also RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016)
(“Absent clearly expressed congressional intent to the contrary, federal laws will be construed to
have only domestic application.”); Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664
(2013) (explaining that the presumption against extraterritorial application provides that
“‘[w]hen a statute has no clear indication of an extraterritorial application, it has none’” (quoting
Morrison v. Nat’l Australia Bank, 561 U.S. 247, 261 (2010)). “[N]otwithstanding th[is]
presumption against extraterritoriality, a statute will be construed to apply extraterritorially if
Congress gives a ‘clear indication’ of that intention.” United States v. Ballestas, 795 F.3d 138,
144 (D.C. Cir. 2015) (quoting Morrison, 561 U.S. at 255).
“[I]n examining [a] statute for congressional intention of extraterritorial application, [a
court] should consider both contextual and textual evidence.” Delgado-Garcia, 374 F.3d at
1345. The defendants argue that “[n]either the plain language of the statute, nor any legislative
history suggests—directly, indirectly, or otherwise—a Congressional intent to create criminal
liability in federal court in the United States for the possession of a firearm outside our national
38
borders.” Defs.’ Mot. to Dismiss at 1. 15 Section 924(c) penalizes “any person who, during and
in relation to any crime of violence or drug trafficking crime . . . for which the person may be
prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of
violence or drug trafficking crime . . . be sentenced,” as set forth in the statute, 18 U.S.C.
§ 924(c)(1)(A).
The defendants argue that because “the statute does not make any specific reference to
the possession of a firearm outside of the United States, . . . there is no ‘clear, affirmative
indication’ that Congress intended the statute to apply extraterritorially.” Defs.’ Mot. to Dismiss
at 8. “Section 924(c) crimes are not ordinary substantive offenses, however.” United States v.
Abu Khatallah, 151 F. Supp. 3d 116, 136 (D.D.C. 2015). “They depend on the commission of a
concurrent—and predicate—‘crime of violence’” or drug trafficking crime. Id. see also 18
U.S.C. § 924(c)(1)(A). The D.C. Circuit has held that “the extraterritorial reach of an ancillary
offense . . . is coterminous with that of the underlying criminal statute.” United States v. Ali, 718
F.3d 929, 939 (D.C. Cir. 2013) (citing United States v. Yakou, 428 F.3d 241, 252 (D.C. Cir.
2005)). Thus, courts have universally held that where the predicate offense applies
extraterritorially, so does § 924(c). See, e.g., Khatallah, 151 F. Supp. 3d at 136; United States v.
Shibin, 722 F.3d 233, 247 (4th Cir. 2013) (stating that because the defendant “could be
15
Notably, the government asserts that it “anticipates introducing at trial” evidence of Agustin and a co-
conspirator “discussing and coordinating the purchase of weapons in the United States for transportation into
Mexico.” Gov’t’s Opp’n Defs.’ Mot. to Dismiss at 5, ECF No. 63. The government further anticipates introducing
testimony from witnesses regarding the defendants’ “aiding and abetting the use, carrying, brandishing, and/or
possession of a firearm in the United States during and in relation to and/or in furtherance of drug trafficking.” Id.
Thus, to the extent the government is offering evidence of domestic violations of § 924(c), Count II may not be
dismissed for lack of extraterritorial application, although this proffered evidence may raise other admissibility
issues under, for example, Federal Rules of Evidence 403 and/or 404(b). See Defs.’ Reply Supp. Mot. to Dismiss at
2, ECF No. 78.
39
prosecuted in the United States for hostage taking and maritime violence, he could also be
prosecuted under § 924(c) for possessing, using, or carrying a firearm in connection with those
crimes”); United States v. Siddiqui, 699 F.3d 690, 701 (2d Cir. 2012) (holding that § 924(c)
applies extraterritorially where “the underlying substantive criminal statutes apply
extraterritorially”); United States v. Belfast, 611 F.3d 783, 814 (11th Cir. 2010) (upholding
extraterritorial application of § 924(c) where torture was the predicate offense); United States v.
Ahmed, 94 F. Supp. 3d 394, 413 (E.D.N.Y. 2015) (holding that § 924(c) applies extraterritorially
where “the predicate crimes of violence relate to international terrorism, and . . . Congress
clearly and explicitly gave those statutes extraterritorial effect”); United States v. Mardirossian,
818 F. Supp. 2d 775, 777 (S.D.N.Y. 2011) (“[Section] 924(c) applies extraterritorially where the
Government can prosecute a defendant’s underlying extraterritorial ‘crime of violence or drug
trafficking crime.’”); United States v. Hasan, 747 F. Supp. 2d 642, 684 (E.D. Va. 2010) (holding
that § 924(c) applies extraterritorially where the predicate acts include crimes on the high seas);
United States v. Reumayr, 530 F. Supp. 2d 1210, 1219 (D. N.M. 2008) (holding that § 924(c)
applies extraterritorially in a bombing plot where the charges were predicated on 18 U.S.C. §
844(i), which the court held to apply extraterritorially); United States v. Bin Laden, 92 F. Supp.
2d 189, 201 (S.D.N.Y. 2000) (holding that § 924(c) applied to bombings of United States
embassies in East Africa because the predicate charges under 18 U.S.C. §§ 844(f)(1), (3) apply
extraterritorially); United States v. Emmanuel, Crim. No. 06-20758, 2007 WL 2002452, at *13
(S.D. Fla. July 5, 2007) (holding that § 924(c) applies extraterritorially “because the predicate
‘crime of violence,’” violation of the Torture Act, “is one that ‘may be prosecuted in a court of
the United States’”).
40
The defendants argue that the Supreme Court has stated that § 924(c) is an offense that is
“distinct from the underlying federal felony.” Defs.’ Reply Supp. Mot. to Dismiss at 3, ECF No.
78. In this case, the underlying predicate offense charged in Count One of the respective
indictments, 21 U.S.C. § 959, is a “drug trafficking crime” for the purposes of § 924(c) because
it is a felony punishable under the Controlled Substance Import and Export Act. 18 U.S.C.
§ 924(c)(2). Clearly, § 924(c) is a “distinct” offense from the underlying predicate offense of
§ 959 as “each provision requires proof of a fact which the other does not.” Blockburger v.
United States, 284 U.S. 299, 304 (1932). This does not mean, however, that § 924(c) is not an
“ancillary” offense for purposes of the extraterritoriality analysis. A successful prosecution for
§ 924(c) still depends on the commission of an underlying predicate offense, and the D.C. Circuit
has been clear that “the extraterritorial reach of an ancillary offense . . . is coterminous with that
of the underlying criminal statute.” Ali, 718 F.3d at 939.
Section 959 has an explicit provision providing for extraterritorial application, stating that
“[t]his section is intended to reach acts of manufacture or distribution committed outside the
territorial jurisdiction of the United States.” 18 U.S.C. § 959(d). Accordingly, because the
predicate offense has extraterritorial reach, § 924(c) also applies extraterritorially in this case. 16
16
In a footnote, the defendants dismiss the decision in Abu Khatallah as “not binding on this Court” and
criticizes the reasoning as “inconsistent with the Supreme Court’s explicit holding in Morrison that the presumption
against extraterritoriality applies to ‘all’ cases and the test for determining extraterritorial application articulated in
RJ [sic] Nabisco.” Defs.’ Mot. to Dismiss at 8 n.2. This cursory argument is not persuasive. Although Morrison
established a presumption against extraterritorial application that applies to all statutes, this presumption may be
rebutted when Congress provides evidence of an “affirmative intention of the Congress clearly expressed to give a
statute extraterritorial effect.” Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 255 (2010). In this particular
case, the Supreme Court’s decision in RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090 (2016), is instructive.
In RJR Nabisco, the Supreme Court considered whether two provisions of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) applied extraterritorially. With respect to RICO’s substantive provisions, contained in
§ 1962, the Supreme Court concluded that the presumption against extraterritoriality had been rebutted but only with
respect to predicates of § 1962 “that plainly apply to at least some foreign conduct.” Id. at 2101. Thus, RJR
Nabisco is entirely consistent with the universal view of courts that § 924(c) applies extraterritorially where the
underlying predicate violation expressly rebuts the presumption against extraterritoriality. Here, that is clearly the
41
3. Sufficiency of the Indictment
The defendants also argue that “the Indictment fails to provide either defendant sufficient
information to defend themselves against the charge” in Count Two and thus is “facially
defective.” Defs.’ Mot. to Dismiss at 2, 10. According to defendants, the indictments “contain
only a boilerplate recitation of the criminal statute,” “allege[] conduct that took place during a
multi-year time frame, in unspecified international locations, and there is no precision as to what
weapons were possessed or whether the defendants ‘used, carried or brandished’ the firearm(s).”
Id. at 10. In support, the defendants primarily rely on Federal Rule of Criminal Procedure
7(c)(1) and two U.S. Supreme Court cases, Russell v. United States, 369 U.S. 749 (1962), and
Stirone v. United States, 361 U.S. 212 (1960), asserting that “[a]n indictment must provide the
defendant sufficient detail to allow him to prepare a defense, to defend against a subsequent
prosecution for the same offense, and to ensure that he prosecuted based upon the facts presented
to the grand jury.” Id. at 9.
a. Relevant Legal Standard
“[T]he validity of an indictment ‘is not a question of whether it could have been more
definite and certain.’” United States v. Verrusio, 762 F.3d 1, 13 (D.C. Cir. 2014) (quoting
United States v. Debrow, 346 U.S. 374, 378 (1953)). “Rather, to be sufficient, an indictment
need only inform the defendant of the precise offense of which he is accused so that he may
prepare his defense and plead double jeopardy in any further prosecution for the same offense.”
Id.; see also United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001) (stating that an
“indictment’s main purpose is ‘to inform the defendant of the nature of the accusation against
case because the predicate offense, as set forth in 18 U.S.C. § 959(d), expressly provides for extraterritorial
application.
42
him’” (quoting Russell v. United States, 369 U.S. 749, 767 (1962)). “[A]n indictment must
“first, contain the elements of the offense charged and fairly inform a defendant of the charge
against which he must defend, and, second, enable him to plead an acquittal or conviction in bar
of future prosecutions for the same offense.” Hitt, 249 F.3d at 1016 (quoting Hamling v. United
States, 418 U.S. 87, 117 (1974)) (alterations adopted); see also United States v. Resendiz-Ponce,
549 U.S. 102, 108 (2007). Thus, Federal Rule of Criminal Procedure 7(c)(1) states that an
indictment need only contain a “plain, concise, and definite written statement of the essential
facts constituting the offense charged.” FED. R. CRIM . P. 7(c)(1). In most cases, detailed
allegations “surely are not contemplated by Rule 7(c)(1) . . . .” Resendiz-Ponce, 549 U.S. at 109.
The Federal Rules of Criminal Procedure were “designed to eliminate technicalities in criminal
pleadings and are to be construed to secure simplicity in procedure.” Id. (internal quotation
marks omitted). Generally speaking, an indictment “may use the language of the statute, but that
language must be supplemented with enough detail to apprise the accused of the particular
offense with which he is charged.” United States v. Colon, 628 F.2d 150, 155 (D.C. Cir. 1980). 17
b. Analysis
In this case, Count Two of the indictments satisfies Rule 7(c)(1) and adequately informs
the defendants of the § 924(c) offenses with which they are charged and enables them “to plead
an acquittal or conviction in bar of future prosecutions for the same offense.” Hitt, 249 F.3d at
17
An indictment that restates the language of a federal criminal statute is ordinarily sufficient, Resendez-
Ponce, 549 U.S. at 109, except that certain crimes require greater specificity in the indictment, Russell, 369 U.S. at
749. For example, an indictment for a violation of 2 U.S.C. § 192—which prohibits a congressional committee
witness from refusing to answer any question “pertinent to the question under inquiry”—must include the subject of
the congressional hearing so that the defendant may determine whether the defendant’s refusal to answer was
“pertinent to the question under inquiry.” Id. Accordingly, “[w]here guilt depends so crucially upon such a specific
identification of fact,” an indictment that merely restates the language of the criminal statute is insufficient. Id. at
764.
43
1016. The defendants primarily argue that the indictments for Count Two must be dismissed
because they do not identify specific weapons, specify where and when the weapons were
possessed, or state whether weapons were “used, carried or brandished.” Defs.’ Mot. to Dismiss
at 2, 10. As noted above, however, a violation of § 924(c) depends on a predicate offense; in this
case, the predicate offense is the drug trafficking crime charged in Count One, which charges the
defendants with conspiracy to distribute cocaine, methamphetamine, heroin, and marijuana for
importation into the United States. Count Two provides general detail as to the places where the
offenses were committed: namely, Mexico and the United States. See, e.g., Indictment as to
Panfilo Flores Apodaca (“Panfilo Indictment”) at 1, ECF No. 1.
In addition to “where” the offenses were allegedly perpetrated, the indictment also states
“when” they were allegedly committed. The indictments state that Agustin committed the
§ 924(c) offense from July 2010 to May 2012, and Panfilo committed the same offense from
January 2005 to the filing date of the indictment, March 13, 2014. See Agustin Indictment at 2;
Panfilo Indictment at 2.
To be sure, the indictments do not specify a particular weapon that was possessed. The
defendants, however, do not cite any legal authority for the position that an Indictment for
§ 924(c) must identify a specific firearm. That said, the Indictments do cite § 924(c)(1)(B)(ii),
which provides for a sentence of imprisonment of not less than thirty years if the firearm
possessed “is a machinegun or a destructive device, or is equipped with a firearm silencer or
firearm muffler.” See, e.g., Panfilo Indictment at 3. Thus, the indictments do provide significant
detail as to the kind of firearms that were allegedly used by the defendants triggering a
mandatory minimum penalty. Further, although the indictments do not specify whether the
firearms were “used, carried or brandished,” “it is well established that if a criminal statute
44
disjunctively lists multiple acts with constitute violations, ‘the prosecution may in a single count
of an indictment or information charge several or all of such acts in the conjunctive and under
such charge make proof of any one or more of the acts, proof one alone, however, being
sufficient to support a conviction.’” United States v. Brown, 504 F.3d 99, 104 (D.C. Cir. 2007)
(quoting District of Columbia v. Hunt, 163 F.2d 833, 837–88 (D.C. Cir. 1947) (citing Crain v.
United States, 162 U.S. 625 (1896))); see also United States v. Joseph, 169 F.3d 9, 13 (D.C. Cir.
1999) (explaining that “[t]his rule applies to § 924(c)(1) indictments drafted in the conjunctive,
which can support a conviction if the jury is charged and the violation is proved disjunctively”
(citing United States v. Dickey, 102 F.3d 157, 164 n.8 (5th Cir. 1996)). 18
Additionally, although not included in the indictments, the government has since filed
supplemental briefing which includes details of the defendants’ past use, carrying, or brandishing
of firearms in relation to their drug trafficking activities. The government states that it is
prepared to present testimony from cooperating witnesses that both defendants “personally
18
The defendants’ reliance on United States v. Hillie, 227 F. Supp. 3d 57 (D.D.C. 2017), is misplaced. In
Hillie, the court held that an indictment inadequately stated violations of child pornography statutes, because the
charges did not “specify the nature of the sexual acts that relate to [the defendant’s] unspecified conduct involving
video depiction, let alone the manner of his actual or attempted video recording of any such sexual act.” Id. at 74.
Noting the broad language in the child pornography production statute, 18 U.S.C. § 2251(a), which “proscribes a
wide array of conduct in the broadest, most generic terms,” and in the child pornography possession statute, 18
U.S.C. § 2252(a), which also uses a term that can “take on several different, but related, meanings,” id. at 75, the
court held that the indictments failed to provide “an explanation of how [the defendant] allegedly violated those
statutes,” id. at 76 (citing United States v. Nance, 533 F.2d 699, 701 (D.C. Cir. 1976) (“The United States Supreme
Court has stated: ‘Where guilt depends so crucially upon . . . a specific identification of fact, our cases have
uniformly held that an indictment must do more than simply repeat the language of the criminal statute.’” (alteration
in original; quoting Russell, 369 U.S. at 767))), and such an omission was insufficient, id. The indictment stated
only that the defendant “did something involving visual depictions of sexually explicit conduct of a minor ‘in the
District of Columbia’ during periods of time that span two to three years” and “[t]he indictment is barren of factual
averments regarding the what, where, or how of [the defendant’s conduct], and thus, a non-clairvoyant reader cannot
possibly ascertain the substance of the government’s accusations from the face of the charging instrument.” Id. at
72. In contrast to the statutes at issue in Hillie, however, § 924(c) does not “proscribe[] a wide array of conduct in
the broadest, most generic terms,” but makes specific conduct—the use, carrying or brandishing of a firearm during
a crime of violence or drug trafficking crime—a federal crime. As the predicate “drug trafficking crime” is clearly
stated in Count One, the indictments provide sufficient information so that the reader can “ascertain the substance of
the government’s accusations from the face of the charging instrument.”
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possessed and carried firearms, including various handguns and AK-47 assault rifles, during the
course of their drug trafficking activities, including while driving in their vehicles in the course
of their drug trafficking duties.” Gov’t Second Supp. Supp. Mot. Introduce Co-Conspirator
Statements, Other Crimes Evidence at Trial, and Allow Lead Agents at Counsel Table (“Gov’t
Second Supp.”) at 3, ECF No. 94. In addition, the government anticipates presenting testimony
regarding the following incidents of violence that support the firearms charge in Count Two of
each indictment:
(i) In approximately December 2009, “in the town of El Burrion in the state of Sinaloa,
Mexico,” Agustin, “armed with a ‘five-seven’ pistol and an AK-47 selective-fire assault
rifle,” and Panfilo, “armed with a .45 inch caliber handgun and an AK-47,” were present
“helping the injured after the shootout” involving members of the MF-DTO. Id. at 4. On
this occasion, the government alleges that “[m]ultiple people were shot, causing injury
and death.” Id.
(ii) In September 2010, Agustin made efforts to trade drugs for .50 caliber machine guns
in the United States for use against rival drug cartels. Id. at 5.
(iii) In October 2013, Panfilo, and other co-conspirators, attending a family wedding in
Santa Maria del Oro in the state of Nayarit, Mexico fled from Mexican Marines and had
in their possession AR-15 semi-automatic rifles, AK-47 selective-fire assault rifles and
“larger caliber weapons.” Id. at 6. During the flight from the Marines, a shootout ensued.
Id. at 5–6.
With this evidence, the defendants have been apprised of allegations that specific types of
firearms were used, carried, or brandished by both defendants at a particular place in Mexico in a
narrow timeframe.
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For these reasons, Count Two of the indictments satisfy Rule 7(c)(1)’s command of a
“plain, concise, and definite written statement of the essential facts constituting the offense
charged.” Read in conjunction with Count One, the language of Count Two, further bolstered by
the government’s supplemental briefing, sets forth sufficient information so that the defendants
are aware of the offense with which they are charged and so that they can prepare an adequate
defense or avoid double jeopardy. See Resendiz-Ponce, 549 U.S. at 108.
4. Conclusion
For the foregoing reasons, § 924(c) clearly applies extraterritorially in this case because
the underlying predicate offense, a drug trafficking crime, explicitly rebuts the presumption
against extraterritorial application of statutes. Further, Count Two of the indictments adequately
informs the defendants of the offense with which they are charged and provides sufficient
information so that they can mount a defense and plead double jeopardy in any further
prosecution for the same offense. Moreover, § 924(c) is not a federal crime for which greater
specificity of fact is required. Accordingly, the defendants’ joint motion to dismiss Count Two
of the indictments is denied.
B. Defendants’ Motions to Strike Improper Aliases
The indictments against the defendants include in the captions and each of the two counts
the aliases allegedly used by each defendant. Agustin’s three referenced aliases are “El Nino,”
“El Barbon,” and “El Ingeniero,” which this defendant translates, respectively, as “the boy,” “the
bearded one,” and “the engineer.” Agustin’s Mot. Strike Aliases at 1, ECF No. 53. Panfilo’s
single referenced alias is “Charmin,” which he describes as “a nickname” that he concededly
used as his Blackberry screen name and, further, was “referred to by this name by others.”
Panfilo’s Mot. Strike Aliases at 1, ECF No. 56. Both defendants have moved separately,
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pursuant to Federal Rule of Criminal Procedure 7(d), “to strike from the Indictment” any
reference to the defendants using their aliases as surplusage. Agustin’s Mot. Strike Aliases, at 1;
Panfilo’s Mot. Strike Alias at 1 (joining Agustin’s arguments). Agustin also seeks to strike any
reference to his aliases from “transcripts of recorded conversations (prepared by the
Government),” Agustin’s Mot. Strike Aliases at 1, while Panfilo “does not seek to prohibit the
use of the nickname during the Government’s case-in-chief as it would appear that the Defendant
identified himself by it,” Panfilo’s Mot. Strike Aliases at 2. These motions are denied.
1. Relevant Legal Standard
Federal Rule of Criminal Procedure 7(d) authorizes the Court “[u]pon the defendant’s
motion, [to] . . . strike surplusage from the indictment or information,” but does not define what
constitutes “surplusage.” The meaning may be gleaned from the context of same rule, which
requires, in Rule 7(c)(1) regarding the “Nature and Contents” of an indictment or information,
that these charging documents provide “a plain, concise and definite written statement of the
essential facts constituting the offense charged . . . .” FED. R. CRIM . P. 7(c). Consequently,
words used to describe essential facts relevant to the offense are not surplusage subject to being
stricken. The D.C. Circuit has made clear that a motion to strike surplusage “should be granted
only if it is clear that the allegations are not relevant to the charge and are inflammatory and
prejudicial.” United States v. Rezaq, 134 F.3d 1121, 1134 (D.C. Cir.1998); see also United
States v. Oakar, 111 F.3d 146, 157 (D.C. Cir. 1997) (“Material that can fairly be described as
‘surplus’ may only be stricken [from an indictment] if it irrelevant and prejudicial.”); 1 Charles
Alan Wright & Andrew D. Leipold, FEDERAL P RACTICE AND P ROCEDURE: CRIM INAL 4th § 128 at
643 (2008) (“[A] motion to strike surplusage should be granted only if it is clear that the
allegations are not relevant to the charge and are inflammatory and prejudicial.”).
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“[T]he striking of surplusage from an indictment, although permissible, is by no means
mandatory,” and is left to the discretion of the Court. United States v. Watt, 911 F. Supp. 538,
554 (D.D.C. 1995) (emphasis in original); see also United States v. Edmond, 52 F.3d 1080, 1112
(D.C. Cir. 1995) (noting that the denial of motions to strike surplusage is reviewed for abuse of
discretion). Indeed, “[m]otions to strike surplusage from an indictment are highly disfavored in
this Circuit.” United States v. Singhal, 876 F. Supp. 2d 82, 102 (D.D.C. 2012); see also United
States v. Jordan, 626 F.2d 928, 930 n.1 (D.C. Cir. 1980).
2. Analysis
According to Agustin, striking his aliases as surplusage is warranted because (1) “it does
not appear that [Agustin] used or was known by the aliases contained in the Indictment,”
Agustin’s Mot. Strike Aliases at 2; and (2) “the inclusion of the aliases in the Indictment” is not
necessary to identify the defendant or “connect him to the charged offenses, id. at 2–3. 19 As
support for his argument, Agustin points to the government’s draft transcripts of four recorded
telephone conversations between Agustin and a confidential informant, which transcripts the
government intends to use at trial. Apparently, the headings of the draft transcripts identify this
defendant using his alias “Nino,” despite the fact that this alias “is never mentioned in the
conversation.” Agustin Mot. Strike Aliases at 3. 20 Given his view that “[t]he probative value of
the alleged alias is de minimis,” Agustin argues that “the mere suggestion by the Government
19
Plainly, given Panfilo’s acknowledgement that he used and was known by his nickname, “Charmin,” these
two arguments cannot apply to him. Panfilo’s Mot. Strike Aliases at 1; see also Gov’t’s Opp’n to Agustin and
Panfilo’s Mots. Strike Aliases at 3, ECF No. 65 (anticipating that witnesses will refer to Panfilo as “Charmin”
during trial testimony consistent with their witness interviews).
20
The government has agreed to delete from each transcript and the recorded calls an introductory statement
by an FBI agent describing the recorded conversation as between a confidential “source” and Agustin Flores-
Apodaca, also known as “El Nino, El Barbon and El Ingeniero,” before this evidence is admitted at trial. Agustin’s
Mot. Strike Aliases at 3 n.1; Gov’t’s Opp’n to Agustin and Panfilo’s Mots. Strike Aliases at 2 n.2, ECF No. 65.
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that the defendant used or was known by the alias El Nino (or any other alias) is unfairly
prejudicial as it suggests some nefarious need for a secret or hidden name by the defendant to
hide his true identity from law enforcement.” Agustin’s Mot. Strike Aliases at 4. 21
In response, and contrary to Agustin’s assertion that the aliases listed in the indictment
and on the draft transcripts are “the Government’s own invention,” Agustin’s Mot. Strike Aliases
at 3, the government proffers that (1) the cooperating witness involved in the recorded calls with
Agustin will refer to this defendant using the three aliases; (2) in one recorded call with Agustin,
the cooperating witness says, “Ingeniero,” to which Defendant Agustin responds, “Yes.”; (3) in
another recorded call between the cooperating witness and a co-conspirator, the latter refers to
Agustin as “Ingeniero;” (4) the contact list in a cell phone seized from a co-conspirator uses the
contact name “Nino” for Agustin’s known telephone number, which was also used for
consensually recorded calls with Agustin; and (5) the witnesses will refer to Agustin by all three
aliases during their trial testimony, consistent with their references to Agustin during witness
interviews. Gov’t’s Opp’n to Agustin and Panfilo’s Mots. Strike Aliases at 2–3, ECF No. 65.
The government’s proffer regarding Agustin’s use of the listed aliases in recorded
telephone calls and in his contacts with alleged co-conspirators, and Panfilo’s admitted use of his
alias, sufficiently show that these aliases are relevant to establishing the defendants’ identities
and participation in the charged offense conduct. See United States v. Palfrey, 499 F. Supp. 2d
34, 40 (D.D.C. 2007) (denying defense motion to strike three aliases listed in indictment
“[b]ecause the Government credibly asserts that these aliases are necessary to identify Defendant
21
Agustin also complains that “the practice in this jurisdiction” of “leav[ing] a copy of the Indictment with
the jurors during deliberation . . . would create a significant potential for unfair prejudice if the aliases remain
included in the document.” Agustin’s Mot. Strike Aliases at 3. This Judge’s practice is not to provide a stand-alone
copy of the indictment to the jury during deliberations, but to incorporate the charges as part of the final instructions,
a written copy of which is provided to the jury during deliberations.
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at trial, and because Defendant has shown no prejudice inherent in those aliases”); United States
v. Brodie, 326 F. Supp. 2d 83, 90 (D.D.C. 2004) (“The general rule regarding the use of aliases is
that ‘if the government intends to introduce evidence of an alias and the use of that alias is
necessary to identify the defendant in connection with the acts charged in the indictment, the
inclusion of the alias in the indictment is both relevant and permissible, and a pretrial motion to
strike should not be granted.’”) (internal citation omitted); United States v. McFarlane, 491 F.3d
53, 61 (1st Cir. 2007) (“Where the use of an alias is important to the government’s case, its
submission to the jury as part of the indictment is permissible.”).
Moreover, as both defendants conceded during the August 2, 2017 hearing, the aliases
themselves are not in any way inflammatory or prejudicial. Instead, the defendants contend that
the use of any alias, no matter how innocuous, carries some prejudice by implying that the
defendant was engaged in “nefarious” activity. To the extent that the use of an alias in
communications regarding illegal activity may be construed as an effort to conceal or mask the
defendant’s identity from law enforcement, the Court agrees that this may be prejudicial but not
unfairly so. See, e.g., United States v. Pippenger, 552 F. Supp. 2d 990, 997 (D.S.D. 2008)
(denying a motion to strike aliases because, “[w]hile the use of an alias may tend to be
prejudicial, such prejudice is not unfair because it is the means by which many of the defendants
were known in the community”). In any event, the testifying witnesses are anticipated to refer to
the defendants by their aliases while testifying, presumably because this is how the defendants
were known to those witnesses. In such circumstances, the use of the defendants’ aliases both in
the indictment and in connection with the presentation of evidence at trial, through witness
testimony and in transcripts of recorded or intercepted communications, is not unfairly
prejudicial. See United States v. Clark, 184 F.3d 858, 869–70 (D.C. Cir. 1999) (affirming the
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denial of a defense motion to strike an alias from the indictment, since the “alias was not
irrelevant,” given that the defendant identified himself to the police with an alias, and rejecting
the defense argument of prejudice since “the jury properly learned of defendant’s use of the
[alias] through the officer’s testimony that defendant gave the name when arrested”).
Accordingly, the defense motions to strike the references to their aliases from the
indictments and transcripts, which are to be introduced at trial, as surplusage, under Federal Rule
of Criminal Procedure 7(d), is denied.
V. CONCLUSION
For the foregoing reasons, the following seven motions filed by the defendants are
denied: (1) Agustin’s Motion in Limine to Preclude Introduction of Post-Arrest Title III
Intercepts, ECF No. 51; (2) the defendants’ Joint Motion for Pretrial Hearing of Admissibility of
Alleged Co-Conspirator Statements, ECF No. 52; (3) Agustin’s Motion to Enforce the Rule of
Specialty, ECF No. 54; (4) Agustin’s Motion to Suppress Statements, ECF No. 48; (5) the
defendants’ Joint Motion to Dismiss Count Two of Indictments, ECF No. 50; and (6) the
defendants’ separate Motions to Strike Improper Aliases, ECF Nos. 53 and 56. The portions of
the government’s motion addressed in this Memorandum Opinion are granted. An appropriate
Order accompanies this Memorandum Opinion.
Date: August 17, 2017
__________________________
BERYL A. HOWELL
Chief Judge
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