Report and Recommendation re Motion to Sever Charges and Motion to Dismiss (Dkt. 154, filed 01/07/25)

Summary

In this report and recommendation, a magistrate judge of the District Court of Guam addresses defendant Jose Quevedo Salazar's motion to sever charges and motion to dismiss. Salazar argues he would be prejudiced by a trial with the codefendants because Counts 1-7 of the Superseding Indictment do not involve him, and he seeks dismissal of Counts 8-10 and 12-18; the court recommends denying severance and dismissal, reasoning that all four defendants are charged in Count 34, a money laundering conspiracy, and that he may be liable as an aider and abettor. It recommends granting his alternative request for a bill of particulars because those counts lack sufficient detail.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

 1
 2
 3
 4
 5
 6                                         DISTRICT COURT OF GUAM
 7                                           TERRITORY OF GUAM
 8
 9    UNITED STATES OF AMERICA,                                 CRIMINAL CASE NO. 24-00011-004

10                            Plaintiff,

11               vs.
                                                            REPORT AND RECOMMENDATION
12    JOSE QUEVEDO SALAZAR,                                    re Motion to Sever Charges and
                                                              Motion to Dismiss (ECF No. 136)
13                            Defendant.

14
15           Pending before the court is defendant Jose Quevedo Salazar’s (“Salazar’s”) Motion to Sever
16   Charges and Motion to Dismiss. See Mot. Sever and Dismiss, ECF No. 136. Salazar argues that his
17   defense would be unduly prejudiced if he was tried with the codefendants1 because Counts 1-7 of
18   the Superseding Indictment do not involve him. Id. at 1. Additionally, Salazar seeks dismissal of
19   Counts 8-10 and 12-18 because said counts “do not contain any specific allegations against” him.
20   Id. at 2. Having reviewed the parties’ filings on the matter and based on relevant case law, the court
21   issues this Report and Recommendation to deny the requests to sever and to dismiss but to grant
22   Salazar’s alternative request for a bill of particulars.
23   I.      BACKGROUND
24           A.        Charges
25           On March 22, 2024, a Complaint was filed in MJ 24-00036 charging brothers Jonovan,
26
             1
27             The codefendants are Jonovan Michael Cruz (“Jonovan”), Jeremy Cruz (“Jeremy”) and
     Eric Shaun Cruz (“Eric”). Jonovan, Jeremy and Eric are collectively referred to as the “Cruz
28   brothers.”



                 Case 1:24-cr-00011         Document 154        Filed 01/07/25    Page 1 of 13
     United States v. Jose Quevedo Salazar, Criminal Case No. 24-00011-004
     Report and Recommendation to Deny Motion to Sever Charges and Motion to Dismiss                         page 2 of 13

 1   Jeremy and Eric each with Conspiracy to Distribute Fifty or More Grams of Methamphetamine
 2   Hydrochloride, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(viii), and Attempted
 3   Possession with Intent to Distribute Fifty or More Grams of Methamphetamine Hydrochloride, in
 4   violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(viii) and 18 U.S.C. § 2. See Compl., ECF
 5   No. 1.
 6             On April 10, 2024, the grand jury issued an Indictment charging the three Cruz brothers with
 7   the same offenses alleged in the Complaint. See Indictment, ECF No. 15.
 8             On June 5, 2024, the grand jury issued a Superseding Indictment against Salazar and the three
 9   Cruz brothers. See Superseding Indictment, ECF No. 60. The charges in the Superseding Indictment
10   are summarized below:
11    Count                              Offense Description                                     Defendant(s)
12                  Conspiracy to Distribute Fifty or More Grams of
          1         Methamphetamine Hydrochloride                                          Jonovan, Jeremy and Eric
13
          2         Attempted Possession with Intent to Distribute Fifty                   Jonovan, Jeremy and Eric
14                  or More Grams of Methamphetamine Hydrochloride
15       3-7        Engaging in Monetary Transactions with Proceeds of                          Jeremy and Eric
                    Specified Unlawful Activity
16
        8-13        Engaging in Monetary Transactions with Proceeds of                     Jeremy, Eric and Salazar
17                  Specified Unlawful Activity

       14-18        Engaging in Monetary Transactions with Proceeds of                     Jonovan, Eric and Salazar
18                  Specified Unlawful Activity
19                  Engaging in Monetary Transactions with Proceeds of
       19-33        Specified Unlawful Activity                                                 Eric and Salazar
20
         34         Conspiracy to Engage in Monetary Transactions                           Jonovan, Jeremy, Eric
21                  with Proceeds of Specified Unlawful Activity                                and Salazar

22             The money laundering counts naming Salazar as a defendant allege that he and his
23   codefendants engaged in financial transactions with the proceeds of specified unlawful activity,
24   specifically, a conspiracy to distribute drugs, knowing that the transactions were designed in whole
25   and in part to conceal and disguise the nature, location, source, ownership and control of said
26   proceeds.
27             B.        Release Conditions
28             On June 6, 2024, Salazar was arrested in the Eastern District of California. He was



                 Case 1:24-cr-00011                 Document 154               Filed 01/07/25   Page 2 of 13
     United States v. Jose Quevedo Salazar, Criminal Case No. 24-00011-004
     Report and Recommendation to Deny Motion to Sever Charges and Motion to Dismiss                       page 3 of 13

 1   temporarily detained, and on June 18, 2024, that court ordered him to be released once a bed became
 2   available at Wellspace inpatient facility and to comply with all rules and regulations of the substance
 3   abuse treatment program. See Rule 5 Documents, ECF No. 113. On June 20, 2024, the court
 4   ordered Salazar to remain in the inpatient facility until released by the pretrial services officer and
 5   upon completion, to reside at a location approved by the Pretrial Services Office. Id., Am. Special
 6   Conditions of Release, ECF No. 113-2.
 7             On June 27, 2024, Salazar appeared by Zoom for his arraignment in this district. See Mins.,
 8   ECF No. 75. The court ordered him released on the same conditions imposed by the Eastern District
 9   of California. Id.
10             C.        Arrest Warrant and Detention
11             On July 24, 2024, the probation office filed a Petition for Action on Conditions of Release
12   (the “Violation Petition”), stating that Salazar entered Wellspace on July 2, 2024, and thereafter
13   terminated his participation from the program on or about July 19, 2024. See ECF No. 96. The
14   probation officer requested that an arrest warrant be issued.
15             On July 25, 2024, the court granted the request and ordered that a warrant issue for the
16   Salazar’s arrest. See Order, ECF No. 98.
17             On September 6, 2024, Salazar appeared by video conference for a status hearing, and the
18   court explained that an arrest warrant was pending. See Mins., ECF No. 114. The court ordered him
19   to self-surrender to the marshals in the morning. Id.
20             On September 12, 2024, Salazar self-surrendered. See Rule 5 Documents, ECF No. 125.
21   He appeared in the Eastern District of California on September 16, 2024, and agreed to be removed
22   to Guam. See Commitment to Another District, ECF No. 125-2.
23             On September 30, 2024, Salazar arrived on Guam, and he appeared in court on October 8,
24   2024, to address the allegations in the Violation Petition. See Mins., ECF No. 127. Having found
25   that Salazar violated his release conditions and that there was no condition or combination of
26   conditions of release that will assure that he will not flee, the court ordered Salazar detained pending
27   trial. Id.
28             Trial is presently scheduled to commence February 19, 2025. See Order Granting Mot.



                  Case 1:24-cr-00011                Document 154               Filed 01/07/25   Page 3 of 13
     United States v. Jose Quevedo Salazar, Criminal Case No. 24-00011-004
     Report and Recommendation to Deny Motion to Sever Charges and Motion to Dismiss                       page 4 of 13

 1   Continue Trial and Related Dates, ECF No. 135.
 2             On November 15, 2024, Salazar filed the instant Motion to Sever Charges and Motion to
 3   Dismiss. See ECF no. 136. On November 22, 2024, the United States filed an Opposition to the
 4   motion. See ECF No. 138. Salazar filed an Amended Reply on December 3, 2024. See ECF
 5   No. 144.
 6             On November 20, 2024, the Chief Judge referred said motion to this court to determine and
 7   to issue a report and recommendation. See Order, ECF No. 137.
 8   II.       DISCUSSION
 9             A.        Motion to Sever
10             Salazar’s motion asserts that only Count 11 and Counts 19-33 specifically mention him “with
11   any particular detail[,]” and Count 34 only mentions him “as being part of a conspiracy generally.”
12   Mot. Sever and Dismiss at 3, ECF No. 136. Salazar argues that because he is not named in Counts
13   1-7, he will be unduly prejudiced if he were to be tried together with the codefendants on these
14   counts. He claims that the jury will “hear evidence concerning allegations of drug possession and
15   drug distribution,” and the “spillover effect” of such evidence “would risk allowing the jury to
16   impute to . . . Salazar[] guilt based on the alleged drug activities of the codefendant Cruz brothers.”
17   Id. at 5-6.
18             The United States opposes severance and asserts that although Salazar is not named in
19   Counts 1-7, the charges in the Superseding Indictment are “inter-related.” Opp’n at 5, ECF No. 138.
20   The government contends that the charges “are connected with or parts of a common scheme or plan,
21   here to traffic methamphetamine in Guam and to funnel the proceeds of that drug trafficking to the
22   U.S. mainland[.]” Id. The United States asserts that “[t]he drug trafficking conspiracy and nearly
23   all of the substantive money laundering transactions took place within [the] same timeframe[,]” so
24   the United States maintains that said charges “were properly joined within the same indictment and
25   a joint trial is appropriate.” Id.
26                       1.     Legal Standard
27             Rule 8 of the Federal Rules of Criminal Procedure permits joinder of defendants in the same
28   indictment to promote judicial economy.



                 Case 1:24-cr-00011                 Document 154               Filed 01/07/25   Page 4 of 13
     United States v. Jose Quevedo Salazar, Criminal Case No. 24-00011-004
     Report and Recommendation to Deny Motion to Sever Charges and Motion to Dismiss                       page 5 of 13

 1             The indictment or information may charge 2 or more defendants if they are alleged
               to have participated in the same act or transaction, or in the same series of acts or
 2             transactions, constituting an offense or offenses. The defendants may be charged in
               one or more counts together or separately. All defendants need not be charged in each
 3             count.
 4   Fed. R. Crim. P. 8(b). “There is a preference in the federal system for joint trials of defendants who
 5   are indicted together. Joint trials ‘play a vital role in the criminal justice system.’ They promote
 6   efficiency and ‘serve the interests of justice by avoiding the scandal and inequity of inconsistent
 7   verdicts.” Zafiro v. United States, 506 U.S. 534, 537 (1993) (quoting Richardson v. Marsh, 481 U.S.
 8   200, 209-210 (1987)).
 9           Nevertheless, a trial judge has broad discretion to grant or deny severance of joined counts or
10   defendants after balancing the interest in judicial economy against the risk of prejudice to the
11   defendant or the Government. Rule 14 of the Federal Rules of Criminal Procedure provides for
12   relief from prejudicial joinder and states that “[i]f the joinder of offenses or defendants in an
13   indictment, an information, or a consolidation for trial appears to prejudice a defendant or the
14   government, the court may order separate trials of counts, sever the defendants’ trials, or provide any
15   other relief that justice requires.” Fed. R. Crim. P. 14(a).
16           The Supreme Court has stated that a severance is warranted “only if there is a serious risk that
17   a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from
18   making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539 (emphasis added).
19           The Ninth Circuit has also stated:
20           The moving party must show more than that a separate trial would have given him a
             better chance for acquittal. He must also show violation of one of his substantive rights
21           by reason of the joint trial: unavailability of full cross-examination, lack of opportunity
             to present an individual defense, denial of Sixth Amendment confrontation rights, lack
22           of separate counsel among defendants with conflicting interests, or failure properly to
             instruct the jury on the admissibility of evidence as to each defendant. In other words,
23           the prejudice must have been of such magnitude that the defendant was denied a fair
             trial.
24
25   United States v. Douglas, 780 F.2d 1472, 1478 (9th Cir. 1986) (quoting United States v. Escalante,
26   637 F.2d 1197, 1201 (9th Cir. 1980)).
27             The Ninth Circuit identified the following factors a court may consider in inquiring into the
28   prejudicial effect of a joint trial:



                 Case 1:24-cr-00011                 Document 154               Filed 01/07/25   Page 5 of 13
     United States v. Jose Quevedo Salazar, Criminal Case No. 24-00011-004
     Report and Recommendation to Deny Motion to Sever Charges and Motion to Dismiss                       page 6 of 13

 1             (1) whether the jury may reasonably be expected to collate and appraise the
               individual evidence against each defendant; (2) the judge’s diligence in instructing
 2             the jury on the limited purposes for which certain evidence may be used; (3) whether
               the nature of the evidence and the legal concepts involved are within the competence
 3             of the ordinary juror; and (4) whether [a]ppellants could show, with some
               particularity, a risk that the joint trial would compromise a specific trial right of one
 4             of the defendants, or prevent the jury from making a reliable judgment about guilt or
               innocence.
 5
 6   United States v. Fernandez, 388 F.3d 1199, 1241 (9th Cir. 2004), modified, 425 F.3d 1248 (9th Cir.
 7   2005). “The first two factors are the most important in this inquiry.” Id.
 8                       2.        Analysis
 9             The court’s analysis begins with the four factors identified in Fernandez. The first factor
10   requires the court to determine whether the jury may reasonably be expected to compartmentalize
11   the evidence against each defendant. While Salazar is not named as a defendant in the specific
12   money laundering acts alleged in Counts 3-7, the court notes that all four defendants are charged in
13   Count 34 with the overarching money laundering conspiracy. The Ninth Circuit has noted that “a
14   joint trial is particularly appropriate where the codefendants are charged with conspiracy, because
15   the concern for judicial efficiency is less likely to be outweighed by possible prejudice to the
16   defendants when much of the same evidence would be admissible against each of them in separate
17   trials.” Fernandez, 388 F.3d at 1242. Thus, with regard to Counts 3-7, it would appear that this first
18   factor does not favor severance of trial.
19             Additionally, as to the individual money laundering counts, one of the essential elements the
20   government will have to prove beyond a reasonable doubt is that each defendant knew that the
21   property involved in the financial transactions represented the proceeds of specific, separate criminal
22   activity. See Ninth Circuit Model Crim. Instr. 18.4. In this case, the Superseding Indictment alleges
23   that the property involved in the money laundering counts were proceeds of a conspiracy to traffic
24   drugs. Thus, despite Salazar’s arguments to the contrary, see Am. Reply at 3-4, it would appear that
25   evidence of the codefendant’s drug activity as charged in Counts 1 and 2 are relevant and admissible
26   as to the money laundering counts. Accordingly, the court finds that the jury can reasonably be
27   expected to evaluate the evidence against each of the defendants independently, especially if the trial
28   judge fashions jury instructions accordingly and is diligent in instructing the jury on the limited



                 Case 1:24-cr-00011                 Document 154               Filed 01/07/25   Page 6 of 13
     United States v. Jose Quevedo Salazar, Criminal Case No. 24-00011-004
     Report and Recommendation to Deny Motion to Sever Charges and Motion to Dismiss                       page 7 of 13

 1   purposes for which certain evidence may be used.2
 2             The second factor the Ninth Circuit considers is the judge’s diligence in instructing the jury
 3   on the limited purposes for which certain evidence may be used. Because the trial has not occurred
 4   yet, the court is unable to say that the trial judge has not been diligent in instructing the jury, but the
 5   court is confident that the trial court will strive to ensure that the jury is appropriately instructed,
 6   including the frequent use of limiting instructions to explain how and against whom certain evidence
 7   may be considered. This should reduce or eliminate the possibility of prejudice arising from a joint
 8   trial with the Cruz brothers.
 9             With regard to the third factor, the Ninth Circuit asks trial court to consider the nature of the
10   evidence and legal concepts involved in the case. Here, the Superseding Indictment essentially
11   alleges two different conspiracies: one involving the three Cruz brothers to distribute
12   methamphetamine hydrochloride, and another agreement involving all the defendants to engage in
13   financial transactions involving drug proceeds in order to conceal or disguise the nature, ownership
14   and control of the drug proceeds. The charged offenses only span a short period of time – from April
15   to October 2023, about seven months. The elements of the offenses and the legal concepts involved
16   in the charges are not too difficult for the jurors to understand if careful and detailed instructions are
17   given. Thus, the third factor does not support Salazar’s request for a severed trial.
18             Finally, the fourth factor considers whether a defendant can show, with some particularity,
19   a risk that a joint trial would compromise a specific trial right or prevent the jury from making a
20   reliable judgment about guilt or innocence. In this case, Salazar has not shown that a specific trial
21   right would be compromised by a joint trial nor has he alleged that his defense is antagonistic to the
22   codefendants. Instead, Salazar asserts that evidence regarding the codefendants’ drug activities will
23   result in a “spillover effect” that would lead the jury to convict him by association. But the Ninth
24   Circuit has stated that “neither a better chance of acquittal in a separate trial nor the mere fact of joint
25   trial with a more culpable defendant is sufficient in itself to require severance.” Fernandez, 388 F.3d
26
27             2
             See Ninth Circuit Model Crim. Instr. 2.12 (Evidence for Limited Purposes), 6.10 (Activities
28   Not Charged) and 6.13 (Separate Consideration of Multiple Counts – Multiple Defendants).



                   Case 1:24-cr-00011               Document 154               Filed 01/07/25   Page 7 of 13
     United States v. Jose Quevedo Salazar, Criminal Case No. 24-00011-004
     Report and Recommendation to Deny Motion to Sever Charges and Motion to Dismiss                       page 8 of 13

 1   at 1241 (citing United States v. Baker, 10 F.3d 1374, 1388 (9th Cir. 1993)).
 2             Salazar analogies his situation with the defendants in United States v. Harrison, 2021 WL
 3   1816895 (S.D. Ohio May 6, 2021), and United States v. Donaway, 447 F.2d 940 (9th Cir. 1971).
 4   In Harrison, the indictment charged Daryl Harrison “with sixteen counts (including conspiracy to
 5   commit mail and wire fraud, wire fraud, mail fraud, and witness tampering)” and his step-father
 6   Robert Harrison was charged “with just one count of conspiracy to commit wire fraud.” 2021 WL
 7   1816895 at *2 (parentheses omitted). The government alleged that the defendants were “involved
 8   in a scheme where they made fraudulent statements to investors to acquire funds, then misused those
 9   funds for their own personal benefit.” Id. Robert Harrison filed a motion to sever, asserting that “he
10   was arguably only tenuously involved in this scheme[,]” that “he received no benefit from being
11   listed on the bank accounts at issue, . . . no evidence suggests he withdrew money from the accounts
12   for his personal use[,]” and that “he did not facilitate conversations with investors and did not
13   communicate with them.” Id. The defendant “maintain[ed] that his only connection to this alleged
14   scheme was that the bank accounts at issue were in his name but controlled by his stepson, Daryl.”
15   Id. The court found that a joint trial would “result in unnecessary prejudice to Robert Harrison in
16   light of the disparity of evidence and charges between him” and the codefendant. Id. The court
17   further held that a joint trial “would lead to the jury hearing substantially more evidence regarding
18   his stepson Daryl Harrison's conduct and would likely result in a spillover effect that would risk
19   allowing the jury to impute to Robert Harrison's guilt based on the alleged misconduct of his
20   stepson[.]” Id. Here, unlike Harrison, Salazar is charged in twenty-seven of the thirty-four counts
21   alleged in the Superseding Indictment. As discussed above, any risk of a spillover effect is minimal
22   since the evidence of the drug activities involved in Counts 1 and 2 are relevant to the money
23   laundering offenses and conspiracy to commit money laundering charge in Count 34. Furthermore,
24   the trial court’s careful and frequent use of limiting instructions will reduce or eliminate the
25   possibility of prejudice arising from a joint trial.
26             The Donaway case involved a ten-court indictment charging Donaway and eight others with
27   interstate transmission of wagering information, transmission in aid of gambling, and conspiracy to
28   violate the federal bribery statute. 447 F.2d at 941. The conspiracy count was dismissed as to all



                 Case 1:24-cr-00011                 Document 154               Filed 01/07/25   Page 8 of 13
     United States v. Jose Quevedo Salazar, Criminal Case No. 24-00011-004
     Report and Recommendation to Deny Motion to Sever Charges and Motion to Dismiss                       page 9 of 13

 1   but two defendants, and Donaway was convicted of the two remaining counts. Id. On appeal, he
 2   argued that his joinder in the indictment was improper and the district court abused its discretion in
 3   denying his motion to sever. Id. at 942. The scheme in Donaway involved “‘fixed’ horse races”
 4   where Donaway’s codefendant Swank “was the hub in a wheel of activity” involving five horses.
 5   Id. Swank
 6             had contacts wit[h] horse owners, racetrack employees, trainers and bookmakers and
               acquired valuable information that made betting at the track’s pari-mutuel windows
 7             much too tame for him. He bet instead through off-track bookmakers, including one
               Lawler[.] Swank bet so heavily that Lawler protected himself by ‘laying off’ or
 8             spreading all or part of the bets with other bookmakers.
 9   Id. “The race involving ‘Prize Candy’ drew Donaway and another co-defendant into the picture.
10   In attempting to ‘lay off’ Swank’s bet, Lawler had telephoned Donaway in Philadelphia and the latter
11   placed a $4,200 bet on the horse[.]” Id. This was Donaway’s only connection to the group. Id. He
12   “timely objected in a pretrial motion to being joined with eight others and asked for severance” and
13   renewed the motion when the conspiracy count was dismissed, but the trial court denied both
14   motions. Id. at 943. On appeal, the Ninth Circuit noted that the government’s case in chief covered
15   more than 2,300 pages of transcript, and less than 50 pages were relevant to Donaway. Id. The court
16   stated that “[m]ost of the rest dealt with the other defendants and transactions involving the handling
17   and ‘doping’ of horses, with which Donaway had no connection.” Id. The Ninth Circuit found “it
18   impossible to conclude on the facts here that [Donaway] was not severely prejudiced by the evidence
19   relevant only to the co-defendants.” Id. The Ninth Circuit held that “[d]espite the trial judge’s
20   sincere effort to keep the jury aware of the limitations in the admissibility of evidence, . . .the failure
21   to sever as to appellant was an abuse of discretion[.]” Id. The court at this time cannot conclude that
22   Salazar’s involvement in the scheme to launder drug proceeds is as limited as Donaway’s role in the
23   fixed horse races. As previously stated by the court, Salazar is charged in twenty-seven of the thirty-
24   four counts alleged in the Superseding Indictment. He is alleged to have received drug proceeds on
25   sixteen of the thirty-one counts of money laundering. Even though Salazar is not named as a
26   defendant in the two drug distribution counts, evidence of the drug trafficking activities of the three
27   Cruz brothers is directly relevant to the money laundering charges. There are only two drug
28   trafficking counts but there are thirty-two counts related to money laundering, which does not



                 Case 1:24-cr-00011                 Document 154               Filed 01/07/25   Page 9 of 13
     United States v. Jose Quevedo Salazar, Criminal Case No. 24-00011-004
     Report and Recommendation to Deny Motion to Sever Charges and Motion to Dismiss                     page 10 of 13

 1   support Salazar’s argument that “[t]he majority of this case will focus on the alleged drug possession
 2   and drug conspiracy of the Cruz brothers and not . . . Salazar.” Am. Reply at 2, ECF No. 144. Based
 3   on the information before it, the court finds that the fourth Fernandez factor does not support
 4   Salazar’s request for a severance.
 5             In light of the preference in the federal system for joint trials of defendants who are indicted
 6   together, Zafiro, 506 U.S., at 537, and because the four Fernandez factors do not support a severance
 7   of the trial, the below-signed judge recommends that Salazar’s Motion to Sever Counts 1-7 be
 8   denied.
 9             B.        Motion to Dismiss
10             Salazar also moves to dismiss Counts 8-10 and Counts 12-18 against him. While the
11   Superseding Indictment charges him with said counts, Salazar argues that the Superseding
12   Indictment “contains no information concerning [his] involvement” in the specific transactions.
13   Mot. Sever and Dismiss at 7, ECF No. 136. In the alternative, Salazar asks the court to order the
14   government to provide a bill of particulars to “provide specific allegations of [his] conduct that
15   would prove he is involved or otherwise culpable for these counts.”
16             The United States opposes the motion and asserts that dismissal is not warranted since the
17   Superseding Indictment contains a concise statement of the charges, including all necessary elements
18   of the crimes charged.
19                       1.     Legal Standard
20             Federal Rule of Criminal Procedure 12(b)(3) governs a motion to dismiss an information or
21   indictment for failure to state an offense. United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002).
22   The rule specifies which motions must be made before trial and includes a motion to dismiss because
23   the indictment or information fails to state an offense. See Fed. R. Crim. P. 12(b)93)(B)(v). To
24   withstand a 12(b)(3) motion, an indictment must allege that the defendant performed acts that, if
25   proven, would constitute a violation of the law under which he has been charged. Boren, 278 F.3d
26   at 914.
27             Under Federal Rules of Criminal Procedure 7, an information is sufficient if it is “a plain,
28   concise, and definite written statement of the essential facts constituting the offense charged.” Fed.



                Case 1:24-cr-00011                 Document 154               Filed 01/07/25   Page 10 of 13
     United States v. Jose Quevedo Salazar, Criminal Case No. 24-00011-004
     Report and Recommendation to Deny Motion to Sever Charges and Motion to Dismiss                     page 11 of 13

 1   R. Crim. P. 7(c)(1). For the purpose of analyzing a 12(b)(3) motion, the court must accept the
 2   allegations in the indictment or information as true. Boren at 914. In ruling on a pretrial motion to
 3   dismiss, “the district court is bound by the four corners of the [charging document].” United States
 4   v. Lyle, 742 F.3d 434, 436 (9th Cir. 2014). The court “cannot consider evidence that does not appear
 5   on the face of the indictment.” United States v. Kelly, 874 F.3d 1037, 1046 (9th Cir. 2017) (citing
 6   Lyle, 742 F.3d at 436).
 7                       2.     Analysis
 8             In this case, Counts 8-10 and 12-13 of the Superseding Indictment charge Salazar, Jeremy
 9   and Eric with Engaging in Monetary Transactions with Proceeds of Specified Unlawful Activity, in
10   violation of 18 U.S.C. §§ 1956(a)(1)(B)(i), 1961(1) and 2. Similarly, Counts 14-18 of the
11   Superseding Indictment charge Salazar, Jonovan and Eric with Engaging in Monetary Transactions
12   with Proceeds of Specified Unlawful Activity, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i), 1961(1)
13   and 2. The essential elements of these counts require the United States to prove that (1) the
14   defendant conducted a financial transaction involving property that represented the proceeds of a
15   conspiracy to distribute methamphetamine hydrochloride; (2) the defendant knew that the property
16   represented the proceeds of some form of unlawful activity; and (3) the defendant knew that the
17   transaction was designed in whole or part to conceal or disguise the nature, location, source,
18   ownership and control of the proceeds. See Ninth Circuit Model Crim. Instr. 18.4. (Laundering or
19   Attempting to Launder Monetary Instruments). The Superseding Indictment contains sufficient
20   information on its face to satisfy the requirement of Rule 7 that it be “a plain, concise, and definite
21   written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1).
22             The United States notes that while the Superseding Indictment does not identify Salazar as
23   either the sender or receiver of the funds involved in the financial transactions in said counts, the
24   Superseding Indictment specifically cites to 18 U.S.C. § 2, which gives Salazar notice that he can
25   be held liable as a principal for the money laundering offenses if he “aids, abets, counsels,
26   commands, induces or procures its commission.” 18 U.S.C. § 2. The court concurs and concludes
27   that the Superseding Indictment adequately states money laundering offenses against Salazar in
28   Counts 8-10 and Counts 12-18. Accordingly, the court recommends that Salazar’s Motion to



                Case 1:24-cr-00011                 Document 154               Filed 01/07/25   Page 11 of 13
     United States v. Jose Quevedo Salazar, Criminal Case No. 24-00011-004
     Report and Recommendation to Deny Motion to Sever Charges and Motion to Dismiss                     page 12 of 13

 1   Dismiss said counts be denied.
 2                       3.     Alternative Request for Bill of Particulars
 3             In the alternative to dismissal, Salazar requests the court order the government to file a bill
 4   of particulars. The Ninth Circuit has explained that a bill of particulars serves three functions: (1)
 5   to inform a defendant of the nature of the charges against him to enable him to prepare for trial; (2)
 6   to avoid or minimize the danger of surprise at trial, and (3) to protect against double jeopardy. Id.
 7   The test for granting of a bill of particulars is whether the indictment is so vague that a bill of
 8   particulars is required. United States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979). “In determining
 9   if a bill of particulars should be ordered . . . , a court should consider whether the defendant has been
10   advised adequately of the charges through the indictment and all other disclosures made by the
11   government. Full discovery will obviate the need for a bill of particulars.” Long, 706 F.2d at 1054.
12             In this case, the government asserts that the discovery provided to Salazar’s counsel “makes
13   it abundantly clear . . . how the[] individuals and . . . transactions [alleged in said counts] relate to
14   . . . Salazar.” Opp’n at 7, ECF No. 138. Aside from this blanket statement, the government’s
15   Opposition has not explained how Salazar aided and abetted in said transactions or where
16   specifically in the voluminous discovery is the information regarding Salazar’s relationship to these
17   transactions so that Salazar and his counsel can meaningfully prepare for trial. The court notes that
18   Counts 11 and 19-33 specifically identify Salazar as the recipient of the funds involved in the
19   financial transactions and the sender is identified as one of the Cruz brothers. However, it is not
20   clear from the face of the Superseding Indictment how Salazar’s conduct relates to the financial
21   transactions alleged in Counts 8-10 and Counts 12-18, where neither the senders or receivers of the
22   proceeds in said counts are either Salazar or one of the Cruz brothers. Salazar asserts he “is left
23   guessing as to his alleged involvement, if any.” Am. Reply at 5, ECF No. 144.
24             The court agrees with Salazar. While the Superseding Indictment is sufficient to withstand
25   a Rule 12(b)(3) motion to dismiss, the government’s references to “18 U.S.C. § 2” and the
26   “discovery provided” are insufficient to enable Salazar and his counsel to adequately prepare for trial
27   and minimize the danger of surprise at trial. Accordingly, the court recommends that the trial judge
28   grant Salazar’s alternative request and order the United States to file a bill of particulars that either



                Case 1:24-cr-00011                 Document 154               Filed 01/07/25   Page 12 of 13
     United States v. Jose Quevedo Salazar, Criminal Case No. 24-00011-004
     Report and Recommendation to Deny Motion to Sever Charges and Motion to Dismiss                      page 13 of 13

 1   explains how Salazar aided, abetted, counseled, commanded, induced or procured the commission
 2   of the money laundering transactions in Counts 8-10 and Counts 12-18 or references specific pages
 3   of the discovery that furnishes said information.
 4   III.      RECOMMENDATION
 5             The court recommends that Salazar’s requests to sever charges and dismiss certain counts
 6   be denied. Because a joint trial promotes judicial efficience and economy and will not result in
 7   unnecessary prejudice to Salazar, the court recommends that his Motion to Sever be denied.
 8   Additionally, although Salazar is not specifically identified as being the person who physically
 9   engaged in the asserted financial transaction in Counts 8-10 and Counts 12-18, he nonetheless may
10   be held liable as an aider and abettor in said money laundering transactions as alleged in the
11   Superseding Indictment. Accordingly, said counts of the Superseding Indictment should not be
12   dismissed as to him. Finally, because the allegations in Counts 8-10 and Counts 12-18 of the
13   Superseding Indictment lack sufficient detail to enable Salazar and his counsel to adequately prepare
14   for trial and minimize the danger of surprise at trial, the court recommends that the trial judge grant
15   Salazar’s alternative request for a bill of particulars.
16             IT IS SO RECOMMENDED.
17                                                                                         /s/ 0LFKDHO-%RUGDOOR
18                                                                                             U.S. Magistrate Judge
                                                                                           Dated: Jan 07, 2025
19
20
21
22                                                              NOTICE

23             Failure to file written objections to this Report and Recommendation within
               fourteen (14) days from the date of its service shall bar an aggrieved party from
24             attacking such Report and Recommendation before the assigned United States
               District Judge. 28 U.S.C. § 636(b)(1)(B).
25
26
27
28



                Case 1:24-cr-00011                 Document 154               Filed 01/07/25   Page 13 of 13


File and source

File

154.pdf

Size

154,051 bytes

SHA-256

b4460733210dd43b63bd81a3b48c9090fdcb3445a7d8b838d1df58a8c5408579

Our copy

154.pdf

Original

No public link identified.