United States v. Lorenzana-Cordon

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES,
v.
Criminal Action No. 03-cr-331-13-14 (CKK)
ELIU LORENZANA-CORDON and
WALDEMAR LORENZANA-CORDON,
Defendants.
MEMORANDUM OPINION
(September 15, 2015)
Presently before the Court is Defendants’ [599] Motion for Bill of Particulars (“Motion”).
On August 28, 2015, the Court held a hearing in this matter and made oral findings, which the
Court INCORPORATES herein. Upon consideration of the pleadings, 1 the relevant legal
authorities, and the record as a whole, the Court DENIES Defendants’ Motion.
I. BACKGROUND
On April 2, 2009, a federal grand jury returned an indictment (“Indictment”) charging
Defendants Eliu Exiander Lorenzana-Cordon and Waldemar Lorenzana-Cordon (“Defendants”),
with conspiracy to import over five kilograms of cocaine into the United States in violation of 21
U.S.C. § 959, 960, and 963. Indictment at 3. 2 The Indictment charges that Defendants
“knowingly and intentionally” conspired to manufacture and distribute cocaine in “the Republic
of Colombia, El Salvador, Guatemala, Mexico, and elsewhere,” from approximately March 1996
1
The Court’s consideration has focused on the following documents: Indictment, ECF No.
[173], Defs.’ Mot. for Bill of Particulars (“Defs.’ Mot.”), ECF No. [599], Govt.’s Mem. in Opp’n
to Def.’s Mot. for Bill of Particulars (“Govt.’s Opp’n”), ECF No. [602], and Defs.’ Reply to
Govt.’s Opp’n (“Defs.’ Reply”), ECF No. [607].
2
The Indictment is still under seal, and has only been unsealed as to these Defendants. See
Redacted Indictment, ECF No. [563].
1
to April 2009, the filing date of the Indictment, knowing that the drugs would be unlawfully
imported into the United States. Id. at 3-4. The Indictment also includes a “Forfeiture
Allegation” pursuant to 21 U.S.C. §§ 853 and 970, stating that the Defendants shall forfeit their
“respective right, title or interest” in the proceeds derived from the alleged conspiracy. Id. at 4.
Defendant Eliu Exiander Lorenzana-Cordon filed a Motion for Bill of Particulars on July
7, 2015, ECF No. [599]. On July 14, 2015, Defendant Waldemar Lorenzana-Cordon filed a
motion to join his co-defendant’s Motion. See Motion for Joinder of Co-Defendant Motions,
ECF No. [604]. On August 28, 2015, the Court granted Defendant Waldemar Lorenzana-
Cordon’s motion to join the Motion for Bill of Particulars.
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 7(c) provides that an indictment “must be a plain,
concise, and definite written statement of the essential facts constituting the offense charged…”
Fed. R. Crim. Proc. 7(c). Under Rule 7(f), “[t]he court may direct the government to file a bill of
particulars.” Id. at 7(f) (emphasis added). “A bill of particulars can be used to ensure that the
charges brought against a defendant are stated with enough precision to allow the defendant to
understand the charges, to prepare a defense, and perhaps also to be protected against retrial on
the same charges.” United States v. Butler, 822 F.2d 1191, 1193 (D.C. Cir. 1987). However, “if
the indictment is sufficiently specific, or if the requested information is available in some other
form, then a bill of particulars is not required.” Id. A bill of particulars “properly includes
clarification of the indictment, not the government’s proof of its case.” United States v. Savoy,
889 F. Supp. 2d 78, 114 (D.D.C. 2012) (internal quotation marks and citations omitted).
2
III. DISCUSSION
Defendants request that the Court direct the government to inform the Defendants of the
following twelve particulars 3:
(1) Name those “others known and unknown to the Grand Jury” with whom Mr.
Lorenzana Cordon and the other co-defendants did “knowingly, willfully, and
intentionally combine, conspire, and confederate with . . . .”
(2) Specify how Mr. Lorenzana Cordon did “knowingly, willfully, and intentionally
combine, conspire, and confederate with . . . .” as referenced in the Indictment.
(3) Identify when Mr. Lorenzana Cordon entered into the alleged conspiracy, and
withdrew from the alleged conspiracy.
(4) Identify where Mr. Lorenzana Cordon was located when he allegedly entered
into the alleged conspiracy, and withdrew from the alleged conspiracy.
(5) Specify the instances when Mr. Lorenzana Cordon manifested his having
entered into the alleged conspiracy.
(6) Identify any instance where Mr. Lorenzana Cordon entered, acted in, or caused
actions in the United States in furtherance of the alleged conspiracy.
(7) Identify all instances of “intentional[] distribute[ion] and possess[ion] with
intent to distribute [narcotics]...” as referenced in the Indictment.
(8) Specify “elsewhere” as referenced in the Indictment setting forth the alleged
locations of the conspiratorial activity.
(9) Identify all overt acts that occurred in the United States furthering the alleged
conspiracy, including the names of the participants in these actions, the alleged
aircraft used, aircraft nation of registry, identification number of any aircraft, the
dates of the actions and facts detailing these actions.
(10) Identify all overt acts that occurred outside the United States furthering the
alleged conspiracy, including the names of the participants in these actions, the
dates of these actions and facts detailing these actions.
(11) Specify what narcotics Mr. Lorenzana Cordon is alleged to have
“manufactured and distributed.”
3
For the purposes of this joint motion, the Court interprets all references in the Indictment to
“Mr. Lorenzana Cordon” as references to both Defendants, Eliu Exiander Lorenzana-Cordon and
Waldemar Lorenzana-Cordon.
3
(12) List the amounts and type of narcotics for which Mr. Lorenzana Cordon is
being held responsible, either directly or from the perspective of vicarious co-
conspirator liability.
Defs.’ Mot. at 2-3. Defendants argue that “[t]he bare bones allegations contained in [Defendants’]
Indictment fail to notify [them] what the government is alleging” and “prevents [them] from
adequately preparing for trial.” Id. at 3, 5. The Government opposes Defendants’ Motion and
urges the Court to deny the Motion in its entirely “because the Indictment, discovery and other
information the Government has already supplied to the defense provides more than sufficient
information to apprise the Defendants of the nature of the charges and the evidence against them.”
Govt.’s Opp’n at 1. The Government specifically argues that the Indictment is sufficiently specific
and because “the requested information is available in some other form.” Id. at 5, 9. The Court
agrees that the Indictment is sufficiently specific and, to the extent Defendant would be entitled to
further information, the Government has provided that information in an acceptable, alternate
form.
A. The Indictment is Sufficient under United States v. Mejia
While the Indictment charging the Defendant may be “bare bones,” the Indictment states
the statutes Defendant is alleged to have violated, the corresponding mens rea requirements, the
dates of the conspiracy, the object of the conspiracy, and at least five countries in which the
conspiracy took place. See 21 U.S.C.A. § 963. The D.C. Circuit has affirmed a court’s discretion
to deny a defendant’s motion for a bill of particulars when an indictment in a drug conspiracy case
meets those requirements. See United States v. Mejia, 448 F.3d 436, 445 (D.C. Cir. 2006).
Furthermore, when a case involves a narcotics conspiracy, an indictment need not specify overt
acts because committing an overt act in furtherance of the conspiracy is not an element of the
offense. See id. at 445 (“[T]he language of Section 963 does not call for any [overt acts] to be set
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forth in an indictment, nor do [] any . . . have to be committed in order for a [§] 963 [violation to
be proven].”) (internal quotation marks and citations omitted); see also 21 U.S.C. § 963.
Accordingly, under Mejia, the Court must deny the twelve requests proffered by Defendants in
their Motion for a Bill of Particulars.
1. Request #1: Names of Co-Conspirators
Defendants’ first request is that the Government “[n]ame those ‘others known and
unknown to the Grant Jury’ with whom Mr. Lorenzana Cordon and the other co-defendants did
‘knowingly, willfully, and intentionally combine, conspire, and confederate with . . . .’ ” Defs.’
Mot. at 2. Defendants argue that the naming of co-conspirators in a bill of particulars “is not
uncommon in conspiracy cases brought in this District”, citing United States v. Brodie, 326 F.
Supp. 2d 83, 91 (D.D.C. 2004), United States v. Ramirez, 54 F. Supp. 2d 25, 30 (D.D.C. 1999),
and United States v. Trie, 21 F. Supp. 2d 7, 22. Id. at 4. The Government argues that the Court
should deny the Defendants’ Motion because disclosing the identities of the co-conspirators would
endanger the safety of the Government’s witnesses (who are co-conspirators), as well as their
families. See United States v. Santiago, 174 F. Supp. 2d 16, 36-37 (S.D.N.Y. 2001).
The cases cited by Defendants are distinguishable and inapplicable to the facts of this case. 4
Brodie and Trie each concerned non-violent conspiracies to defraud institutions, and disclosing
the identities of co-conspirators did not pose any security risks to the co-conspirators or their
families. 326 F. Supp. 2d at 91; 21 F. Supp. 2d at 22. In Ramirez, there were no security threats,
and there were significant evidentiary questions whether the defendants had even entered the
alleged conspiracy. See 54 F. Supp. 2d at 30. Here, however, the Government has raised serious
4
At the August 28, 2015 hearing, the parties discussed each of the cases cited in their briefs. The
parties did not express any disagreements with the Court’s analysis of the case law.
5
security concerns for the safety of the Government’s witnesses and their families if the
Government were to identify co-conspirators in a bill of particulars. See Govt.’s Opp’n at 7 (citing
Govt.’s Reply in Support of a Protective Order, ECF No. [474]). Additionally, several of the co-
conspirators remain fugitives in this case, and premature disclosure of indicted co-conspirators
could pose a risk to investigative agencies’ efforts attempting to apprehend them. Id. When there
is a “legitimate basis for concern about the safety” of coconspirators, and disclosure of their
identities could seriously impede the government’s investigation, a court should decline a motion
for a bill of particulars requesting that their identities be disclosed. Santiago, 174 F. Supp. 2d at
36. Accordingly, the Court denies Defendants’ motion with respect to Request #1.
The Court acknowledges, however, that as the parties move closer to trial, the Court may
take into consideration more information concerning the nature of the security threats related to
disclosing the identities of the co-conspirators. At such a time, the Court may have a more detailed
discussion with the parties about how and when to name the relevant co-conspirators before trial.
2. Request #2: Information Concerning Defendants’ Mens Rea
Defendants’ second request is that the Government “[s]pecify how Mr. Lorenzana Cordon
did ‘knowingly, willfully, and intentionally combine, conspire, and confederate with . . . .’ as
referenced in the Indictment.” Defs.’ Mot. at 2. Under United States v. Mejia, the indictment in a
drug conspiracy case need only allege the “proper mens rea” requirements. See 448 F.3d at 445.
Here, the Indictment charges that Defendants “knowingly and intentionally” imported cocaine into
the United States under 21 U.S.C. §§ 952 and 960 and that Defendants manufactured and
distributed cocaine, “intending and knowing” that it would be unlawfully imported into the United
States in violation of 21 U.S.C. §§ 959 and 960. Indictment at 4. Because the Indictment is
sufficiently detailed under Mejia, the Court denies Defendants’ motion with respect to Request #2.
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3. Requests #3, #4, and #8: Dates and Locations of the Conspiracy
Defendants’ third and fourth requests ask that the Government identify where and when
the Defendants “entered into the alleged conspiracy and withdrew from the alleged conspiracy.”
Defs.’ Mot. at 2. Defendants’ eighth request asks that the Government specify “elsewhere”, as
referenced in the Indictment, setting forth the alleged locations of the conspiratorial activity.
Defs.’ Mot. at 2.
In support of these requests, Defendants rely on Ramirez, in which the court granted a
request for a bill of particulars as to “the approximate dates and locations of any meetings or
conversations not already identified in the indictment in which each defendant allegedly
participated, and the approximate date on which each defendant allegedly joined the conspiracy.”
54 F. Supp. 2d at 29. In Ramirez, the indictment contained specific factual deficiencies leading
the court to question whether the particular defendants requesting the bill of particulars had ever
entered into the alleged conspiracy. See id. at 30 (“[Defendants] are not charged with any
criminal conduct before . . . six days before the alleged [year-long] conspiracy ended . . . the
government says that it may not even have any evidence of when these defendants joined the
conspiracy.” ) (emphasis in original). Ramirez, however, is an exception to the general rule in
this circuit, which states that an indictment need only to provide a general time period of the
conspiracy and a list of the countries where the conspiracy transpired. See, e.g., Mejia, 448 F.3d
at 445 (holding that an indictment suffices if it “provides a time period of the conspiracy . . .
[and] identifies at least five countries where the conspirators acted”) (internal quotations
omitted); United States v. Butler, 822 F.2d 1191, 1193-94 (D.C. Cir. 1987) (holding that “[m]ore
specific information about the times and places that [defendant] participated in the alleged
conspiracy” was not required beyond the approximate months of the conspiracy’s duration),
7
United States v. Savoy, 889 F. Supp 2d 78, 115 (D.D.C. 2012) (adopting the government’s
argument that “it has no obligation to file a bill of particulars detailing facts regarding the
existence and formation of the conspiracy”), Brodie, 326 F. Supp. 2d at 91 (“Nor is the
government required to prove how or when the conspiracy was formed, the details of any
meeting or when the defendant joined the conspiracy.”).
Here, the Indictment identifies March 1996 as an approximate date when the Defendants
entered into the conspiracy, and it alleges that the conspiracy continued “thereafter up to and
including the date of the filing of this Indictment,” April 2009. Indictment at 3. The
Government is not required to provide any more specific information concerning the times and
places at which the defendants entered and exited the alleged conspiracy. See Butler, 822 F.2d at
1194 (holding that the government satisfied its burden by alleging that the defendant participates
in the conspiracy through actions taken between March 1981 and April 1982). Furthermore, the
Indictment identifies four countries where the conspiracy took place: the “Republic of
Colombia, El Salvador, Guatemala, Mexico, and elsewhere.” Indictment at 3. Such information
is sufficient under Mejia. See 448 F.3d at 445. Accordingly, the Court denies Defendants’
motion with respect to Requests #3, #4, and #8.
4. Requests #5 - #7, #9 - #10: Overt Acts
Requests #5 - #7 and #9 - #10 all request information concerning the overt actions taken
by Defendants as part of the alleged conspiracy. 5 In support of these requests, Defendants cite
5
Defendants make the following requests regarding “overt acts”:
(5) Specify the instances when Mr. Lorenzana Cordon manifested his having entered into
the alleged conspiracy.
8
United States v. Trie, 21 F. Supp. 2d 7 (D.D.C. 1998) and United States v. Hsia, 24 F. Supp. 2d 14(D.D.C. 1998). These cases, however, accept as a basic principle that the “government need not
provide details, including the time, place, and date, of all overt acts in furtherance of the alleged
conspiracy.” Hsia, 24 F. Supp. 2d at 31 (citing Trie). The government must provide information
concerning overt acts only in special circumstances, such as when the indictment specifies a large
number of acts, but does not specify which co-defendant took each specified act. See id. (granting
a motion for a bill of particulars to resolve confusion as to who performed the specified acts
attributed in the indictment to a religious organization); Trie, 21 F. Supp. 2d at 21 (granting a
motion for a bill of particulars where the indictment attributed 45 pages of false statements to 175
different persons, an act, which according to the court, “smack[ed] of gamesmanship”). In cases
involving a narcotics conspiracy, an indictment need not specify overt acts because committing an
overt act in furtherance of the conspiracy is not an element of the offense. See Mejia, 448 F.3d at
445 (“[T]he language of Section 963 does not call for any [overt acts] to be set forth in an
indictment, nor do [] any . . . have to be committed in order for a [§] 963 [violation to be proven].”)
(internal quotation marks and citations omitted); see also 21 U.S.C. § 963, United States v.
(6) Identify any instance where Mr. Lorenzana Cordon entered, acted in, or caused actions
in the United States in furtherance of the alleged conspiracy.
(7) Identify all instances of “intentional[] distribute[ion] and possess[ion] with intent to
distribute [narcotics]...” as referenced in the Indictment.
(9) Identify all overt acts that occurred in the United States furthering the alleged
conspiracy, including the names of the participants in these actions, the alleged aircraft
used, aircraft nation of registry, identification number of any aircraft, the dates of the
actions and facts detailing these actions.
(10) Identify all overt acts that occurred outside the United States furthering the alleged
conspiracy, including the names of the participants in these actions, the dates of these
actions and facts detailing these actions.
Defs.’ Mot. at 2.
9
Martinez, 764 F. Supp. 2d 166, 174 (D.D.C. 2011) (“[The indictment] need not spell out which
co-conspirator committed which conspiratorial act, and, as detailed above, need not allege any
overt act in furtherance of the conspiracy.”), United States v. Bourdet, 477 F. Supp. 2d 164, 184
(D.D.C. 2007) (“Defendants’ argument that the indictment must list overt acts in furtherance of
the alleged conspiracy is unavailing.”) (citing Mejia), Savoy, 889 F. Supp. 2d at 115 (D.D.C. 2012)
(adopting the government’s argument that it has no obligation to “specify every overt act of the
conspiracy that it plans to prove at trial”). Accordingly, because the Government need not identify
every overt act committed by the Defendants, the Court denies Defendants’ motion with respect
to Requests #5 - #7 and #9 - #10.
5. Requests #11 - #12: Amounts and Types of Narcotics
Requests #11 and #12 seek for the Government to “specify what narcotics Mr. Lorenzana
Cordon is alleged to have ‘manufactured and distributed’ ” and to list “the amounts and type of
narcotics for which Mr. Lorenzana Cordon is being held responsible, either directly or from the
perspective of vicarious co-conspirator liability.” Defs.’ Mot. at 3. Such information is beyond
the scope of a bill of particulars. See Butler, 822 F.2d at 1193 (“A bill of particulars can be used
to ensure that the charges brought against a defendant are stated with enough precision to allow
the defendant to understand the charges, to prepare a defense, and perhaps also to be protected
against retrial on the same charges.”). Rather, an indictment in a drug conspiracy case need only
to set forth “bare bones” allegations, such as the elements necessary to be proven under the
applicable statutes. See Mejia, 448 F.3d at 445. Here, the Indictment specifies the type of
narcotics, as well as an amount, i.e., Defendants allegedly imported “five kilograms or more of a
mixture and substance containing a detectable amount of cocaine.” Indictment at 4. Such
10
information is sufficient under Mejia. Id. Accordingly, the Court denies Defendants’ motion with
respect to Requests #11 - #12. 6
B. The Requested Information is Available in Some Other Form
The Court also finds that a bill of particulars is not appropriate in this case because “the
requested information is available in some other form.” Butler, 822 F.2d at 1193. The
Government has provided over 16,000 pages of discovery, which includes records, reports, and
photographs related to seizures of cocaine shipments connected to the Defendants. Govt.’s
Opp’n at 9. Additionally, the Government has provided Defendants with an index categorizing
all of the produced seizure reports and photographs broken down by event that the Government
may introduce at trial. Id. at 9-10. The Government also has provided each Defendant with a
filter disk of each Defendant’s own calls. Id. at 10. These materials allows Defendants to
adequately prepare for trial in ways that were impossible for the defendants in Trie. See 21 F.
Supp. 2d at 21-22 (ordering the Government to provide a bill of particulars where there was a
lack of specificity in the materials provided to the defendants).
The Government’s publicly available pre-trial motions in a co-defendant’s case also
provide a detailed “roadmap” of the Government’s case against these Defendants. See
Government’s 404(b) Motion, ECF No. [473]; Government’s Motion in limine, ECF No. [480];
and the Government’s Sentencing Memorandum, ECF No. [538]. These motions contain
detailed information concerning Defendants’ relationships with undisclosed co-conspirators;
specific instances where Defendants acted in furtherance of the alleged conspiracy; and dates,
places, and times concerning these acts. See id. Defendants therefore should not have to “guess”
6
It is unclear from the discussion on the record from the August 18, 2015 hearing whether there
is evidence concerning the Defendants’ alleged manufacturing of narcotics.
11
at what they are facing at trial. See, e.g., Mejia, 448 F.3d at 446. Because the information
requested by Defendants through a bill of particulars is available to them “in another form,” the
Court concludes that a bill of particulars is not warranted. See Martinez, 764 F. Supp. 2d at 174.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ [599] Motion for Bill of
Particulars.
An appropriate Order accompanies this Memorandum Opinion.
Dated: September 15, 2015
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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