United States v. Vazquez

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal Action No. 21-597 (BAH)
JAVIER ALGREDO VAZQUEZ,
Judge Beryl A. Howell
Defendant.
MEMORANDUM OPINION
Following his conviction by a jury of all three charges against him for conspiring to
manufacture and distribute 500 grams or more of methamphetamine for unlawful importation
into the United States, in violation of 21 U.S.C. §§ 959(a), 960(b)(1)(H), and 963; conspiring to
distribute methylamine for unlawful importation into the United States, in violation of 21 U.S.C.
§§ 959(b), 960, and 963; and conspiring to launder monetary instruments, in violation of 18
U.S.C. § 1956(a)(2)(A), (h), defendant Javier Algredo Vazquez filed the pending renewed
motion for judgment of acquittal, under Federal Rule of Criminal Procedure 29(c), and motion
for a new trial, under Federal Rule of Criminal Procedure 33(a). See Def.’s Mot. New Trial
(“Def.’s Mot.”), ECF No. 124; Def.’s Renewed Mot. J. Acquittal, ECF No. 125. For the reasons
set forth below, both of defendant’s motions are denied.
I. BACKGROUND
As part of an extensive and long-term investigation into the drug trafficking and money
laundering activities of the Cártel de Jalisco Nueva Generación (“CJNG”), a large and violent
drug trafficking organization (“DTO”) based in Jalisco, Mexico, responsible for trafficking bulk
quantities of cocaine, methamphetamine, and opioids into the United States, the Drug
Enforcement Agency (“DEA”) identified several seemingly legitimate U.S. companies that
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acquired precursor chemicals used to manufacture methamphetamine from China and imported
them into Mexico. Defendant’s U.S.-based company, Pro Chemie New York Inc. (“Pro
Chemie”), was allegedly one such company.
In September 2021, the government filed a three-count indictment against defendant,
charging him with engaging in three conspiracies: conspiring, between around 2011 until
September 23, 2021, to manufacture 500 grams or more of methamphetamine for importation
into the United States (Count One); conspiring, during the same period, to distribute listed
methamphetamine precursor chemicals (Count Two); and conspiring, from around January 2018
to September 23, 2021, to launder monetary instruments (Count Three). See Indictment, ECF
No. 8. The case proceeded to trial on July 18, 2023. See Min. Entry (July 18, 2023).
A. The Government’s Case in Chief
The government’s testimonial evidence at the seven-day trial consisted of nine fact and
expert witnesses. The first witness was Jesus Contreras-Arceo, a co-conspirator who testified,
among other things, that he was responsible, from 2009 until his arrest in 2018, for running, for
the CJNG, between eight to ten labs in Mexico that each produced approximately 200 kilograms
of methamphetamine a month for export into the United States, that he placed orders of
methamphetamine precursor chemicals for use at these labs, that the CJNG and their associates
bribed the Mexican Navy, and others, to permit the transportation of drugs via seaports, and that
he had bought some of these precursor chemicals from defendant, who, together with his brother,
Carlos Algredo Vazquez, were in business transporting chemicals from China to Mexico,
knowing that the resulting drugs would eventually be transported to Texas. See Rough
Transcript of Trial (July 18, 2023 AM) (“July 18 AM Trial Tr. (Rough)”) at 6:5–9:5, 15:1–4,
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15:17–16:2, 20:17–21:6, 42:21–23.1 Specifically, Contreras-Arceo explained that one of his
workers, Peteto, would give him a list of chemicals that the CJNG labs needed, and that
Contreras-Arceo would then transmit this list to Francisco Pulido. Id. at 15:1–9. Pulido,
together with defendant and Carlos, would coordinate the acquisition of these chemicals. See id.at 15:10–16:2. Defendant’s role was to order the chemicals, using his U.S.-based company Pro
Chemie, from Chinese companies for export to Mexico. See id. at 24:10–25:19. Pulido would
tell Contreras-Arceo that the chemicals had arrived at a specific Mexican port, and Contreras-
Arceo, working with bribed government officials, would, with the help of his workers, receive
the shipments. See id. at 21:9–11, 22:20–23:3; see also id. at 43:11–13 (Contreras-Arceo
explaining that “Peteto was in charge of transporting all the chemicals to the labs.”).
Contreras-Arceo’s testimony revealed a sophisticated conspiracy that avoided detection
for years, in part by ensuring that each individual’s roles and responsibilities were specifically
delineated and siloed. Contreras-Arceo explained, for example, that the CJNG and its associates
used “slang terms for chemicals” to ensure that all but a few select individuals did not know the
official names of the chemicals stocked in the CJNG labs. Id. at 10:6–17, 27:13–16. Contreras-
Arceo viewed defendant and Carlos as on Pulido’s “team” and would get in touch with them
through Pulido, using Pulido’s Blackberry. Rough Transcript of Trial (July 18, 2023 PM) (“July
18 PM Trial Tr. (Rough)”) at 32:9–11; see July 18 AM Trial Tr. (Rough) at 22:10–12. Indeed,
audio recordings intercepted by Mexican authorities introduced into evidence were identified by
Contreras-Arceo as the voices of Pulido and Carlos. See, e.g., July 18 PM Trial Tr. (Rough) at
7:4–14:1. On one occasion, Contreras-Arceo wanted urgently to meet with defendant about a
seized shipment of precursor chemicals from China but, in order to reach out to defendant, had to
1
All citations to the trial transcripts cite to rough drafts of the transcript, since the final transcripts have not
yet been docketed. When the final transcripts are available, they will be posted on this case’s docket. Discrepancies
in page numbers between the rough and final transcripts may exist.
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ask Pulido to get in touch with Carlos, who would in turn speak to defendant. See July 18 AM
Trial Tr. (Rough) at 46:7–15. Pulido, via Carlos, ultimately advised Contreras-Arceo that
defendant could not arrive to Mexico quickly because he was based in the United States. Id.Contreras-Arceo recounted some of his communications over multiple years with
defendant, Carlos, and Pulido. Instructed by Nemesio Oseguera Cervantes, who was the leader
of the CJNG and to whom Contreras-Arceo reported directly, to meet with Carlos to ensure that
“all the precursor chemicals that were to come from China would go to [Oseguera Cervantes]
alone,” Contreras-Arceo was first introduced to Carlos by Pulido at an in-person meeting in
about 2010 at Pulido’s Guadalajara office, where Pulido had a warehouse used for storing
precursor chemicals. Id. at 5:22–6:10, 18:5–18, 26:9–14. At the meeting, Carlos and Pulido told
Contreras-Arceo that they were in business together exporting chemical precursors from China to
Mexico and asked him for a favor: defendant had ordered from the Sinaloa cartel, a DTO like the
CJNG, 160 200-liter barrels of mono-methylamine, which can produce 3,200 kilograms of
methamphetamine, and wanted Contreras-Arceo to bribe the Mexican Navy to secure its safe
arrival. Id. at 18:15–20:11; see also id. at 21:9–11 (Contreras-Arceo admitting that he was
responsible for bribing the Mexican Navy and the Mexican port’s governing bodies). In return,
Carlos agreed that defendant would become part of the partnership with Carlos and Pulido and
all the chemicals that they exported together from China would go to the CJNG. Id. at 20:12–16.
When Contreras-Arceo arrived at the port to fulfill the favor, however, the Mexican Navy said
they could not help because the DEA had already seized the containers. Id. at 20:17–21:6.
Contreras-Arceo recalled “g[etting] in touch” with Carlos and defendant “through”
Pulido to make two orders of mono-methylamine, totaling 60 200-liter barrels of the chemical,
which allegedly produces 1,200 kg of methamphetamine. Id. at 21:16–23:15. He then recounted
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his second in-person meeting with Carlos and his first meeting with defendant, together with
Pulido, in a cafe in Guadalajara in about 2013, during which he was told that defendant had a
U.S.-based company used to export chemicals from China to Mexico, and that the brothers had
“relationship[s]” and “connections” in China to enable them “to export any chemical that is
prohibited to Mexico to make methamphetamines,” arranged to purchase 160 200-liter barrels of
“dulce” and two 20-ton containers of “iron,” which would be supplied by defendant, discussed
the logistics of these shipments, and told defendant and Carlos that these chemicals would be
used to make methamphetamine. Id. at 23:16–29:10; see also id. at 29:10–12 (Contreras-Arceo
testifying that he received the “dulce” and “iron” he agreed to purchase at this meeting).
Contreras-Arceo further described a third in-person meeting in about 2017 at Pulido’s
Guadalajara office, with Carlos, at which defendant and Pulido were present, during which
Contreras-Arceo purchased 160 200-liter barrels of nitroethane, to be used to produce 9,600 kg
of methamphetamine. See id. at 29:13–31:11. Contreras-Arceo explained that he “personally
pa[id]” for the chemicals purchased from defendant and Carlos, most frequently by cash or wire
transfers of $1,000,000 to $2,000,000 USD to Pulido, who was then responsible for transmitting
payment to defendant and Carlos using exchange houses. See id. at 31:12–35:23. On at least
one occasion, Contreras-Arceo paid defendant in two bulk deliveries of methamphetamine,
which Peteto transferred to an individual named “Men,” another one of Contreras-Arceo’s
workers, who then transferred the drugs by car to “Javier’s customers” in Texas. Id. at 36:20–
38:14.
Contreras-Arceo, in addition, testified that he not only purchased precursor chemicals
from defendant but also helped defendant manufacture methamphetamine, such as by discussing
profit “margin[s],” sending some of his own workers, including Martin Partida-Ceja, Partida-
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Ceja’s son, Antonio Romo Reyes (“Romo”), and Romo’s brother, to work in a lab on a ranch
that defendant rented from Men, and personally visiting the lab himself. Id. at 39:1–44:16.
Contreras-Arceo explained that because operating a methamphetamine lab in or near Guadalajara
required permission from Oseguera Cervantes, Oseguera Cervantes and defendant had a fee- or
production-splitting arrangement. See id. at 40:7–24.
Contreras-Arceo’s testimony was repeatedly corroborated. His description of how the
chemicals that defendant helped transport were packaged and shipped and how these chemicals
could be used to create methamphetamine, see, e.g., id. at 19:24–20:11, was consistent with DEA
Special Agent Novick’s description, see, e.g., Rough Transcript of Trial (July 19, 2023) (“July
19 Trial Tr. (Rough)”) at 72:20–74:11. His description of Men’s “ranch,” where the lab
defendant rented to manufacture methamphetamine was located, and its daily operations, see,
e.g., July 18 AM Trial Tr. (Rough) at 39:1–44:16, was consistent with the description provided
by Romo, see, e.g., Rough Transcript of Trial (July 24, 2023 AM) (“July 24 AM Trial Tr.
(Rough)”) at 22:25–23:8, 24:25–25:7, 30:11–31:4. Romo further corroborated Contreras-
Arceo’s association with Romo, Romo’s brother, Partida-Ceja, and Partida-Ceja’s son, and
Contreras-Arceo’s testimony that he sent the four men to work together in a methamphetamine
lab on Men’s ranch. See July 24 AM Trial Tr. (Rough) at 27:14–20, 29:8–15. He also
confirmed that Peteto would pick up the methamphetamine from the lab by truck for transport
off Men’s ranch. See id. at 28:8–29:7.
Contreras-Arceo’s testimony that defendant used his company to export chemicals from
China to Mexico was confirmed by a plethora of documentary evidence, including business
documents listing defendant as Pro Chemie’s registered agent, see July 19 Trial Tr. (Rough) at
75:21–78:3; invoices and shipping documents reflecting that Pro Chemie transported large
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quantities of chemicals that could be used to manufacture methamphetamine and fentanyl from
China to Mexico, id. at 99:5–100:9, 105:12–106:5; and WhatsApp messages and emails between
defendant and Carlos discussing orders and shipments of chemicals, the transfer money to
chemical companies, and shipments that had been “detained” and other delivery “issues,” id. at
88:11–99:4.2 DEA Special Agent Kevin Novick, in addition, testified in detail about several
large shipments of bulk quantities of methylamine hydrochloride, oxalic acid, and citric acid on
route from China to Mexico that had been seized by U.S. law enforcement in 2021, of which the
government also introduced photo evidence. See, e.g., Rough Transcript of Trial (July 20, 2023
AM) (“July 20 AM Trial Tr. (Rough)”) at 20:14–29:12 (22,000 kg oxalic acid shipment seized in
Houston on February 25, 2021), 29:23–35:12 (44,400 kg acetic acid shipment seized in Miami
on September 21, 2021), 36:7–42:8 (24,500 kg methylamine hydrochloride, a key
methamphetamine ingredient, seized in Oakland on June 8, 2021). He linked these shipments to
defendant by emphasizing that the identification numbers on the seized containers, which were
visible in the government’s photo evidence, were the same identification numbers referenced by
defendant and Carlos in their emails discussing shipments and listed on shipping documents that
were found in defendant’s email. See id. He further testified that the quantity and type of
chemicals seized, corresponded to the quantity and type listed on Pro Chemie invoices for tens of
thousands of dollars and shipping documents found in defendants’ email. See id.3 In total,
2
The government also introduced wiretap calls conducted by Mexican law enforcement officials as part of a
parallel investigation, which suggested that Carlos knew that he was not running a legitimate chemical business and
that many of the precursor chemicals that he and defendant were transporting were illegal to import into Mexico or
the United States. See, e.g., July 19 Trial Tr. (Rough) at 58:23–25, 60:12–15, 61:17–62:6; Rough Transcript of Trial
(July 20, 2023 AM) (“July 20 AM Trial Tr. (Rough)”) at 5:12–15:3, 36:7–8 (email from Carlos to defendant with
subject line “Reply . . . : Prohibited product in the USA”).
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Special Agent Novick’s testimony was further corroborated by Homeland Security Investigations Special
Agent Doug Miller and DEA Special Agent Adrian Owens, who testified about similar and additional seizures by
U.S. law enforcement in 2021 of bulk quantities of chemicals being shipped to Mexico and linked to defendant. See
July 20 PM Trial Tr. (Rough) at 28:23–45:3 (Special Agent Miller), 77:24–97:11 (Special Agent Owens). Special
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Special Agent Novick estimated, based on review of defendant’s emails and the invoices and
shipping materials attached, that defendant assisted in procuring over 5,000,000 kilograms total
of precursor chemicals. See id. at 45:5–9.
DEA Special Agent Kelly Chang’s testimony supported Contreras-Arceo’s, insofar as it
reinforced that Pro Chemie was unlikely shipping chemicals for legitimate purposes. Special
Agent Chang explained, for example, that loan documents submitted by defendant to Bank of
America in 2018 stated that the company, which had been in operation for approximately three
years and had two employees, had a gross revenue of $65,000 and an annual net profit of
$55,000.4 Rough Transcript of Trial (July 20, 2023 PM) (“July 20 PM Trial Tr. (Rough)”) at
111:19–112:15; see also Rough Transcript of Trial (July 21, 2023) (“July 21 Trial Tr. (Rough)”)
at 12:14–16:16 (explaining, based on tax documents, that Pro Chemie had “very minimal
operational expenses”). She testified, however, that wire transfers from the Pro Chemie bank
account during the same period listed that over $8,500,000 was transferred out of and over
$9,000,000 was transferred into the account, of which over $5,700,000 was deposited by M.B.
Barter & Trading, Carlos’s chemical company. See July 20 PM Trial Tr. (Rough) at 112:16–
113:23. Defendant’s surprising wealth, including his five properties located in Queens, New
York, valued at over $4,000,000, Special Agent Chang suggested, could not quite be explained
by or squared with Pro Chemie’s finances. See July 21 Trial Tr. (Rough) at 21:10–12. DEA
Senior Research Chemist Joseph Bozenko Jr., who testified as an expert witness, with no
objection from the defense, spoke about, inter alia, the types and quantities of chemicals
Agent Chang, too, linked the chemicals to defendant by connecting emails sent from Carlos to defendant asking
defendant to pay for shipments of chemicals and the invoices attached to these emails with wire transfers involving
Pro Chemie’s bank account for amounts that corresponded with the invoices. See, e.g., id. at 114:24–132:6.
4
Defendant later admitted that although he reported that Pro Chemie had a net income of $55,000, Pro
Chemie never made $55,000 a year, and that “the bank suggested that [defendant] put a greater amount in earnings
in order for the loan to be approved.” See July 25 PM Trial Tr. (Rough) at 49:8–50:10.
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procured by Pro Chemie. See July 24 AM Trial Tr. (Rough) at 44:10–72:17; see, e.g., id. at
66:24–70:19. Like Special Agent Chang, Bozenko was not convinced that defendant was
transporting drugs for legitimate purposes and rendered his expert opinion, “[b]ased on [his]
training, [his] experience, [his] education, and [his] review of the evidence in the case,” that
those chemicals were procured “to support the manufacturing of methamphetamine, fentanyl,
and cocaine.” Id. at 72:11–17.
B. Defense Cross-Examination and Defense Case
An essential part of the defense—and, as most relevant to the pending motions—was
discrediting Contreras-Arceo. In a lengthy cross-examination, lasting longer than the
government’s direct, the defense questioned Contreras-Arceo about his deep involvement in the
CJNG, a “violent, dangerous cartel,” July 18 PM Trial Tr. (Rough) at 14:10–16:22; his extensive
experience manufacturing and trafficking drugs for the cartel, see id. at 23:20–31:25; and his
plea agreement, id. at 19:25–23:19; July 19 Trial Tr. (Rough) at 18:8–25:2. The defense asked
Contreras-Arceo specifically about two proffer sessions he had with the government, during
which he was asked to identify Carlos. See July 18 PM Trial Tr. (Rough) at 33:1–8; July 19
Trial Tr. (Rough) at 9:19–10:13. Contreras-Arceo testified on cross-examination that during the
proffer sessions, he recognized and was able to pick Carlos’s photo out of a group of six photos.
July 19 Trial Tr. (Rough) at 9:19–10:13.
In addition to cross-examining the government’s witnesses, defendant called four
witnesses, including one expert witness, and testified on his own behalf. See Min. Entry (July
24, 2023); Min. Entry (July 25, 2023). Defendant’s first witness was Dr. Gregory Dudley, a
chemistry professor at Western Virginia University who testified, with no objection from the
government, as an expert. See Rough Transcript of Trial (July 24, 2023 PM) (“July 24 PM Trial
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Tr. (Rough)”) at 5:5–8, 9:23–10:3. Dr. Dudley acknowledged that the chemicals that defendant
had transported could be used to create methamphetamine but testified that each of these
chemicals had “many, many applications,” including legal or commercial industrial uses, and
that his research lab stocked “[m]any, if not all” of these chemicals. See, e.g., id. at 11:22–12:1,
12:10–16, 22:8–23, 24:15–26:5. He admitted on cross-examination, however, that his lab had to
keep their inventory of these chemicals “low and small, both for safety and cost reasons” and
thus stocked these chemicals “on the order of 50 grams, a hundred grams,” or at most “liters or
tens of liters” of some of the solvents—in stark contrast to the tonnage quantities defendant
transported to Mexico. See id. at 28:7–30:3.
Defendant’s wife, Lorena Algredo, then took to the stand and maintained that defendant
never talked about drugs, did not have a methamphetamine lab, never left the family for
extended periods of time, and was not a drug trafficker or in any way affiliated with the CJNG.
See id. at 51:2–53:6. She acknowledged that defendant’s business, Pro Chemie, imported
chemicals into Mexico but denied her involvement in the business. Id. at 49:2–15. On cross-
examination, she again denied her involvement with Pro Chemie, but, when confronted with
emails from defendant to Carlos stating that “Lorena already deposited the check to Pro
Chemie,” she explained that she would deposit checks for defendant when he asked but did not
specifically remember depositing checks into the Pro Chemie account. Id. at 53:20–54:23. She
testified, in addition, about defendant’s purchase of five properties in New York City, including
four rental properties, and the costs associated with maintaining these properties, which totaled
more than what they were collecting in rent. See id. at 51:9–15; 56:15–61:7. She revealed that
defendant maintained bank accounts and real property in Mexico, including a four-family
building, which even defendant’s accountant did not know about. Id. at 51:9–20, 56:5–14.
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Defendant’s accountant of 23 years, Alexander Ruiz, further testified about defendant’s
assets and finances. Ruiz acknowledged that while defendant earned $87,000 and $43,000 in
wages working at Hyatt in 2019 and 2020, respectively, and not more than $3,174 from Pro
Chemie, defendant owned property in Queens worth over $4,500,000. See Rough Transcript of
Trial (July 25, 2023 AM) (“July 25 AM Trial Tr. (Rough)”) at 49:16–50:6; see also July 24 PM
Trial Tr. (Rough) at 61:8–64:3 (Lorena Algredo testifying that the cost of sending defendant’s
son to Boston University was approximately $80,000 per year). On direct examination, Ruiz
argued that defendant’s wealth could be explained by his taking advantage of the tax
consequences of depreciating property and by the sudden increase in the value of his five
properties due to “luck[].” July 25 AM Trial Tr. (Rough) at 19:23–23:18. On cross-
examination, however, Ruiz admitted that he was unaware of defendant’s Mexican bank
accounts and real property, that no foreign properties are reported on defendant’s tax returns, and
that failure to report income from foreign properties amounts to “tax fraud.” Id. at 54:9–55:13.
He further confirmed that any information he had about defendant’s Pro Chemie business, was
based on defendant’s representations since Ruiz examined no records when filing defendant’s tax
returns. See id. at 47:23–49:10.
The defense also called as a witness Martin Partida-Ceja, Contreras-Arceo’s brother-in-
law, who admitted to working for Contreras-Arceo for approximately seven years in Mexican
labs that produced methamphetamine. See id. at 65:8–12, 65:21–66:21.5 Partida-Ceja’s
testimony corroborated Contreras-Arceo’s and Romo’s in several important respects. He
5
In response to the Court’s October 24, 2023 Minute Order, directing the government to confer with counsel
for Partida-Ceja about whether Partida-Ceja’s name may be unredacted from the trial transcript of the public
portions of the morning session of July 25, 2023, see Min. Order (Oct. 24, 2023), Partida-Ceja requests that he “be
referred to by pseudonym throughout the transcript and in any subsequent public filings,” see Govt.’s Resp. Min.
Order at 1, ECF No. 136. While existing redactions in the transcript will not be altered at this stage, this opinion
will not refer to Partida-Ceja by pseudonym, in light of the fact that he testified publicly at trial and the parties in
their post-trial motions and the docket entries refer to this witness by name.
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acknowledged, for example, that Contreras-Arceo sent him, his son, Romo, and Romo’s brother
to Men’s ranch to work at a methamphetamine lab, and that Contreras-Arceo was in charge of
placing orders for precursor chemicals through Pulido, and that Peteto would eventually pick up
those chemicals for transport to the labs. See id. at 74:22–75:3, 79:25–80:18, 83:22–84:5; see
also id. at 72:25–73:1 (Partida-Ceja testifying that while he did not know for certain that the
methamphetamine produced in these labs was going to the United States, he is “not stupid not to
realize that it would probably come here”). Partida-Ceja’s testimony also supported Contreras-
Arceo’s testimony about the cartel’s sophistication and its efforts to silo its members. He
confirmed Contreras-Arceo’s testimony that those working in labs often did not know the official
names of the chemicals that they were working with and explained that Pulido would remove the
labels on the drums of chemicals that arrived in the labs so that nobody would know or could
trace where the chemicals came from. Id. at 81:1–17. He further testified that he, on occasion,
joined Contreras-Arceo when he went to meet Pulido, but that whenever additional people came
to speak with Contreras-Arceo and Pulido, Partida-Ceja would “never [be] present” because
Pulido “would take great care not to get people together, not to mix people.” Id. at 85:25–86:18.
His descriptions, in addition, of Men’s ranch, Men, and accidents that occurred in the lab were
consistent with the testimony of Contreras-Arceo and Romo. See id. at 75:22–76:9, 77:11–79:4.
Partida-Ceja, however, testified that he never met or worked in methamphetamine labs with
defendant and met him for the first time in jail in the United States after both men were
incarcerated. Id. at 67:21–69:5, 70:6–10.
The defense’s last witness was defendant himself, who described Pro Chemie as “a
brokerage company” that did “not buy,” “receive,” or “sell” products and “just deal[t] with the
paperwork” and “pa[id] the companies in China, India, and Europe” for chemicals destined for
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Mexico, for orders taken by Carlos and Carlos’s own chemical company, M.B. Barter &
Trading. See Rough Transcript of Trial (July 25, 2023 PM) (“July 25 PM Trial Tr. (Rough)”) at
18:19–19:11. Defendant acknowledged that he paid the invoices for bulk quantities of precursor
chemicals exported from China to Mexico, and that he made millions of dollars of wire transfers
to companies overseas using the Pro Chemie bank account. Id. at 37:21–41:11. The thrust of
defendant’s testimony, however, was that he did all of this at Carlos’s order: the chemical
shipments belonged to Carlos, who knew and arranged the sellers in China and buyers in
Mexico, and the money in the Pro Chemie account belonged to Carlos. Id. at 37:21–40:4.
According to defendant, his only involvement was paying the invoices “when Carlos told [him]
the name of the company and the invoice that needed to be paid.” Id. at 39:23–25; see also id. at
38:23–25. He denied having ever met Contreras-Arceo, Pulido, or any member of a Mexican
cartel. Id. at 31:19–32:4. He claimed only to follow Carlos’s orders.
During closing statements, the defense repeatedly urged the jury to believe Partida-Ceja,
whose testimony, the defense argued, was inconsistent with Contreras-Arceo’s on the presence
of defendant at Men’s ranch and thus undercut Contreras-Arceo’s credibility. See Rough
Transcript of Trial (July 26, 2023) (“July 26 Trial Tr. (Rough)”) at 35:25–38:20. In its rebuttal,
the government argued that the defense’s focus on defendant’s physical presence was a red
herring. See id. at 55:23–56:9. “[N]o one said that the defendant was at Men’s ranch, not
[Partida-Ceja], not [Romo], and not [Contreras-Arceo].” Id. at 55:23–56:1. Rather, defendant,
who was based in the United States, was the conspiracy’s main connection to the United States,
and thus he did not need to be in Mexico to do his job. See id. at 55:12–22.
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C. The Verdict and Post-Trial Motions
At the conclusion of all the evidence, defendant moved for a judgment of acquittal, which
was denied. See Min. Entry (July 25, 2023) (“Oral motion by counsel for the defendant for
acquittal under Rule 29, heard and denied.”); see also Fed. R. Crim. P. 29(a). The next day, the
jury found defendant guilty on all counts. See Min. Entry (July 26, 2023); see also Jury Verdict
Form, ECF No. 121. On August 17, 2023, defendant filed the pending motions for acquittal
under Federal Rule of Criminal Procedure 29(c) or, alternatively, for a new trial under Rule
33(a). Def.’s Mot. at 1.
Sentencing is currently scheduled for November 17, 2023. See Min. Entry (July 26,
2023). Defendant faces a mandatory minimum term of 10 years’ imprisonment and a maximum
period of life on Count One. See 21 U.S.C. §§ 959(a), 960(b)(1)(H). He also faces a maximum
term of imprisonment of 20 years for each of Counts Two and Three. See 18 U.S.C.
§ 1956(a)(2)(A); 21 U.S.C. §§ 595(b), 960(b)(7).
II. LEGAL STANDARD
A. Rule 29 Motion for Judgment of Acquittal
Federal Rule of Criminal Procedure 29(c) permits a defendant to renew a motion for a
judgment of acquittal previously denied at the close of the government’s case-in-chief or at the
close of all evidence. Fed. R. Crim. P. 29(c). In evaluating this post-verdict motion, a court
“must enter a judgment of acquittal of any offense for which the evidence is insufficient to
sustain a conviction.” Fed. R. Crim. P. 29(a). The Supreme Court has emphasized that, in
evaluating the sufficiency of the evidence, “[t]he reviewing court considers only the ‘legal’
question ‘whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
14
doubt.’” Musacchio v. United States, 577 U.S. 237, 243 (2016) (emphasis in original) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also United States v. Thompson, 279 F.3d
1043, 1050–51 (D.C. Cir. 2002) (“In reviewing a conviction for sufficiency of the evidence, the
court need only determine whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.”). A court must “view the evidence in the light most favorable to the
government, drawing no distinction between direct and circumstantial evidence, and giving full
play to the right of the jury to determine credibility, weigh the evidence and draw justifiable
inferences of fact.” United States v. Williams, 836 F.3d 1, 6 (D.C. Cir. 2016) (citation omitted);
see also United States v. Singleton, 702 F.2d 1159, 1163 (D.C. Cir. 1983) (articulating standard
as “whether, viewing the evidence in the light most favorable to the Government, according the
Government the benefit of all legitimate inferences, and recognizing that it is the jury’s province
to determine credibility and to weigh the evidence, a reasonable jury must necessarily entertain a
reasonable doubt on the evidence presented” (emphasis omitted)).
The standard’s purpose is to preserve “the factfinder’s role as weigher of the evidence”
and to respect “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”
Jackson, 443 U.S. at 319. “Expressed more fully,” the role of a reviewing court “faced with a
record of historical facts that supports conflicting inferences must presume—even if it does not
affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of
the prosecution and must defer to that resolution.” McDaniel v. Brown, 558 U.S. 120, 133
(2010) (citation omitted); see also United States v. Bostick, 791 F.3d 127, 137 (D.C. Cir. 2015)
(explaining that “evidence need not exclude every reasonable hypothesis of innocence or be
15
wholly inconsistent with every conclusion except that of guilt” to sustain a guilty verdict
(citation omitted)). In short, the standard for granting a motion for judgment of acquittal is “very
high,” United States v. Pasha, 797 F.3d 1122, 1135 n.9 (D.C. Cir. 2015), and “highly
deferential” to the jury verdict, Williams, 836 F.3d at 6.
B. Rule 33 Motion for New Trial
Federal Rule of Criminal Procedure 33(a) provides that “[u]pon the defendant’s motion,
the court may vacate any judgment and grant a new trial if the interest of justice so requires.”
Fed. R. Crim. P. 33(a). As indicated by the word “may” in Rule 33(a), “[t]rial courts enjoy broad
discretion in ruling on a motion for a new trial.” United States v. Wheeler, 753 F.3d 200, 208
(D.C. Cir. 2014); see also United States v. Dale, 991 F.2d 819, 838 (D.C. Cir. 1993) (explaining
that when “the court denies the new trial motion because the court’s decision accords with the
jury’s,” any appellate “review of the district court’s decision is particularly narrow”); United
States v. Pettiford, 517 F.3d 584, 591 (D.C. Cir. 2008) (“In reviewing the District Court’s
decision on a new trial motion, [the D.C. Circuit] appl[ies] a deferential standard, and will
reverse only if the court abused its discretion or misapplied the law.” (citation omitted)). While
the rules do not define “interests of justice,” the D.C. Circuit has instructed that “granting a new
trial motion is warranted only in those limited circumstances where ‘a serious miscarriage of
justice may have occurred.’” Wheeler, 753 F.3d at 208 (quoting United States v. Rogers, 918
F.2d 207, 213 (D.C. Cir. 1990)). The defendant bears the burden of showing that a new trial is
justified. United States v. Reese, 561 F.2d 894, 902 (D.C. Cir. 1977).
III. DISCUSSION
Defendant contends that he is entitled to a judgment of acquittal or a new trial due to the
insufficient evidence to support the jury’s conclusion that he intended to further the conspiracy’s
16
unlawful purpose; that is, that defendant intended to import into Mexico chemicals that would be
used to produce methamphetamine for eventual distribution in the United States. See Def.’s
Mot. at 1, 9–10; Def.’s Reply Supp. Mot. New Trial (“Def.’s Reply.”) at 1, ECF No. 131. He
raises no challenge to other elements of the charged offenses or any of the documentary
evidence. He argues only that Contreras-Arceo’s testimony, which, in his view, was the only
evidence that linked the chemicals defendant imported into Mexico to the illegal production of
methamphetamine, was “at best compromised, at worst, knowingly false” and thus insufficient to
sustain his convictions. Def.’s Mot. at 9; see also Fed. R. Crim. P. 29(c); Govt.’s Opp’n Def.’s
Mot. New Trial (“Govt.’s Opp’n”) at 3, ECF No. 126 (“The only element of the three offenses of
conviction that the Defendant alleges there is insufficient evidence to support is the Defendant’s
knowledge that the chemicals he was purchasing, via wire transfer between the United States and
China, were being used to manufacture methamphetamine.”). He further argues that Contreras-
Arceo’s testimony, coupled with the government’s last-minute change in its theory of
identification, and Bozenko’s testimony that allegedly opined on the ultimate issue of fact, were
a series of injustices that support the need for a new trial. See Def.’s Mot. at 9–11. As the Court
explained orally at the close of trial and for the reasons below, these arguments fail to persuade.
A. Testimony of Jesus Contreras-Arceo
Defendant contends that Contreras-Arceo’s testimony was “full of exaggerations and
outright lies.” Id. at 2. As support, he revives arguments that Contreras-Arceo lied when he
testified that he never failed to identify defendant’s brother Carlos and had never heard any of
the government’s audio recordings involving Carlos prior to trial. See id. at 2–4, 9–10. These
same arguments were vigorously made at trial, plainly rejected by the jury, and certainly fare no
17
better under the more stringent standards applicable to a motion for acquittal and motion for a
new trial. They are addressed seriatim below.
Before turning to defendant’s specific arguments about Contreras-Arceo, however, his
claim that the government’s case was “paltry” since Contreras-Arceo was the only witness who
connected defendant to any illegal activity, id. at 1; see also id. at 9 (arguing that without
Contreras-Arceo’s testimony, none of the chemicals imported by defendant could be traced to an
illegal methamphetamine lab), is a gross mischaracterization of the trial record and understates
the other testimony elicited and the documentary evidence presented at trial.6 Business records,
invoices, shipping documents, and emails and WhatsApp messages between defendant and
Carlos undisputedly showed that defendant used his U.S.-based company, Pro Chemie, to export
bulk quantities of chemicals from China to Mexico. Specials Agent Novick and Owens, Partida-
Ceja, the government’s expert witness, Bozenko, and the defense’s expert witness, Dr. Dudley,
testified that these chemicals could be used to create methamphetamine. While Dr. Dudley
acknowledged that these chemicals had legitimate, legal uses, such as in a research lab, he
conceded that labs stock only approximately “50 grams or a hundred grams,” or at most “liters or
6
To the extent defendant contends that the government was required to provide direct evidence explicitly
tracing the chemicals exported by defendant to the illegal methamphetamine labs, this argument has no merit. See
Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (“[W]e have never questioned the sufficiency of
circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is
required.”); see also Holland v. United States, 348 U.S. 121, 140 (1954) (observing that in criminal cases,
circumstantial evidence is “intrinsically no different from testimonial evidence”). Any lack of direct evidence
tracing the chemicals exported by defendant to the labs is particularly reasonable in this case, which concerns
international drug trafficking by highly sophisticated cartels. Contreras-Arceo testified, for example, that the cartel
kept track of when certain chemicals became more heavily regulated and would change the primary chemical used
to manufacture methamphetamine from time to time to evade law enforcement scrutiny. July 18 AM Trial Tr.
(Rough) at 10:2–13:3. Partida-Ceja testified that Pulido would remove the labels on the drums of chemicals that
arrived in the labs so that nobody would know where the chemicals came from, and that, as a result, those working
in the laboratories often did not even know the official names of the chemicals they were working with. See July 25
AM Trial Tr. (Rough) at 81:1–17. Special Agent Miller testified that, as far as he knew, the DEA did not have the
authority to put GPS trackers on the shipments of chemicals in Mexico, but that when law enforcement in Mexico
put a GPS tracker on a shipment of chemicals imported by Carlos’s company, the tracking “die[d]” mid-transport.
See July 20 AM Trial Tr. (Rough) at 66:21–67:15; July 20 PM Trial Tr. (Rough) at 46:25–47:17.
18
tens of liters,” of these chemicals, a significant difference from the tonnage quantities transported
by defendant.
Special Agents Novick, Miller, and Owens testified in detail about several large
shipments of tonnage quantities of precursor chemicals on route from China to Mexico that were
seized by the DEA, and that were directly linked to defendant using defendant’s own emails,
invoices, and shipping documents and the government’s photos identifying transmittal
information on the seized chemicals. Wiretap calls conducted by Mexican law enforcement
revealed that Carlos knew that he and defendant were not running a legitimate chemical
business. Special Agent Chang testified that defendant’s own finances and unexplained wealth
could not be squared with Pro Chemie’s finances and defendant’s other legal, reported sources of
income, suggesting an additional source of unreported income. Defendant’s wife acknowledged
that defendant had bank accounts and owned real property, including a four-family building, in
Mexico, which defendant’s accountant Ruiz did not know about. In sum, confronted with this
evidence, a jury, even without Contreras-Arceo’s testimony, could reasonably have found that
defendant knew that the tonnage quantities of precursor chemicals he purchased for importation
into Mexico were being used to manufacture methamphetamine for foreseeable importation into
the United States.
1. Identification of Carlos Algredo-Vazquez
The parties agree that Contreras-Arceo was asked to identify defendant’s brother, Carlos,
over the course of two proffer sessions: in one session, he recognized Carlos after he was shown
a sole photograph of Carlos and recalled details of his personal experiences with him; in the
other session, Contreras-Arceo failed to identify Carlos when faced with a six-photograph array.
See Min. Order (July 16, 2023). Defendant now argues that when defense counsel confronted
19
Contreras-Arceo about his inability to recognize Carlos in the six-photograph array, “Contreras-
Arceo lied and testified that he had never failed to identify the defendant’s brother.” Def.’s Mot.
at 2; see also Def.’s Reply at 2.
The jury has the well-established right “to determine credibility, weigh the evidence and
draw justifiable inferences of fact,” United States v. Battle, 613 F.3d 258, 264 (D.C. Cir. 2010)
(citation omitted), and a court must presume that “the jury has properly carried out [this]
function[],” United States v. Campbell, 702 F.2d 262, 264 (D.C. Cir. 1983). Consistent with the
standard applied when evaluating the sufficiency of the evidence—i.e., “whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt,” Wright v. West, 505 U.S.
277, 284 (1992) (emphasis omitted) (quoting Jackson, 443 U.S. at 319)—defendant essentially
asks this Court to conclude that no rational juror could have relied upon the challenged
testimony. Cf. Millar v. FCC, 707 F.2d 1530, 1539 (D.C. Cir. 1983) (“[A] witness’s testimony
may be, under the circumstances of the case, so incredible, or contrary evidence may be so
overwhelming, that demeanor could not convince a reasonable factfinder that the witness was
telling the truth.”).
Here, the jury was presented with dueling narratives from the parties. The defense
attempted to undermine Contreras-Arceo’s credibility by confronting him, during cross-
examination, with his inability “to pick out Carlos . . . from a group of six photos” during one of
his proffer sessions and by arguing, in closing statements, that Contreras-Arceo was not to be
believed. See July 19 Trial Tr. (Rough) at 10:1–13 (“Q. But what you don’t remember is that
one week before, on January the 27th, that you were unable to pick out Carlos Algredo from a
group of six photos; correct? A. I remember that I always identified . . . Carlos. . . . Q. So you
20
don’t remember not being able to identify Carlos. . . . A. I remember that I did identify him.”);
July 26 Trial Tr. (Rough) at 43:2–7 (defense counsel in summation, stating “[t]he only evidence
at this trial to connect [defendant] to the meth conspiracy was the testimony of [Contreras-
Arceo]. The government is asking you to believe him. Despite the lack of any corroboration and
his wild exaggerations and untruthful testimony”). The government, through its direct
examination of DEA Special Agent Kevin Novick, explained that cooperating witnesses who fail
to identify someone from displayed photographs are not told that they have failed; thus, being
unaware of his failure to identify Carlos’s photograph, Contreras-Arceo did not lie when
testifying that he had not failed to identify Carlos at a proffer session. See July 20 AM Trial Tr.
(Rough) at 16:19–18:6. Armed with these competing narratives, the jury could have reasonably
concluded that Contreras-Arceo did not lie when he testified that he never failed to identify
Carlos because he did not know that he had once failed to identify Carlos.
Defendant further argues that the government interfered with his attempts to impeach
Contreras-Arceo in two ways. Def.’s Mot. at 3–4. First, he contends that the government
belatedly told defense counsel that the six-photograph array produced in discovery to the defense
was not the array presented to Contreras-Arceo at the proffer session, which prevented the
defense from showing Contreras-Arceo the exact array he was previously shown. Id. at 3. The
government, in response, asserts that the six photographs in the array were shown to Contreras-
Arceo; they were simply shown to him one-by-one rather than in a simultaneous array due to
COVID protocols requiring use of remote technology to show the photographs. See Govt.’s
Opp’n at 7; see also July 20 AM Trial Tr. (Rough) at 17:2–20. This explanation, which was
previously provided to defense counsel, is consistent with Agent Novick’s testimony at trial
about the procedures for photograph identification. See July 20 AM Trial Tr. (Rough) at 16:19–
21
18:6. In any case, nothing the government did prevented the defense from showing the witness
the full array, and defendant offers no reason why showing Contreras-Arceo the photographs,
which he had been presented on direct examination, during cross-examination would have aided
his impeachment attempts. See Def.’s Reply at 2 (offering no response to the government’s
questioning of “the possible ‘impeachment’ value of confronting the witness” (quoting Govt.’s
Opp’n at 7)). The parties did not—and do not—dispute that Contreras-Arceo once failed to
identify Carlos, as the jury was advised; the issue was, instead, whether Contreras-Arceo lied
when he said, based on what he knew, that he had never failed to identify Carlos.
Second, defendant argues that the government prevented the defense from impeaching
Contreras-Arceo using the government’s notes from its interview where Contreras-Arceo failed
to identify Carlos by improperly “object[ing]” to the evidence, refusing to stipulate to the
authenticity of the notes, and not making Special Agent Kyle Mori, who took the notes,
“available as a defense witness.” Def.’s Mot. at 3–4; see also Def.’s Reply at 2. These
arguments have no merit. As an initial matter, the defense never sought admission of the notes
in court and thus the government never “object[ed]” to their introduction. To the extent that
defendant refers to out-of-court, informal conversations between the parties where the
government questioned the admissibility of these notes, see Govt.’s Opp’n at 7, these
conversations were not binding on the parties, and neither these conversations nor the
government’s refusal to stipulate to the authenticity or admissibility of the notes prevented the
defense from attempting to use or admit the notes and allowing the Court to decide the issue of
admissibility. Finally, the government did nothing to make Agent Mori “[un]available”; rather,
this Court expressed that if defendant requested a subpoena, the “subpoena will probably be
issued.” July 24 AM Trial Tr. (Rough) at 8:7–12. The defense never requested the subpoena or
22
otherwise attempted to call Agent Mori as a witness. The government may be right that
defendant “made a strategic decision not to call another Government agent, whose testimony
may have done more harm than good to the defense theory.” Govt.’s Opp’n at 9. In any case, as
before, defendant offers no reason why these notes would have aided its impeachment attempts,
given that the parties agreed to what the notes would have shown: that Contreras-Arceo once
failed to identify Carlos. Put differently, defendant raises no arguments that justify disturbing
the jury’s credibility determination with entry of a judgment of acquittal or indicate any serious
miscarriage of justice occurred to justify a new trial.
2. Testimony About the Government’s Audio Recordings
Defendant next argues that he was “unfair[ly] prejudice[d]” by Contreras-Arceo’s false
testimony that he had never heard any audio recordings involving Carlos prior to trial, and the
government’s decision to “simply let the perjurious testimony stand.” Def.’s Mot. at 10; see also
id. at 4 (accusing the government of taking “no steps to correct and/or impeach what they knew
was false testimony”).7 Defendant blatantly mischaracterizes the record.8
During redirect examination of Contreras-Arceo, the government asked him about the
audio recordings three times. See July 19 Trial Tr. (Rough) at 39:13–19. When Contreras-Arceo
repeated twice that the government did not play the recordings for him and then said that he did
not remember the recordings being played for him, the government reasonably moved on. Id.
When given the opportunity to later clarify the record, the government did so through the
7
The parties agree that some of the audio recordings played during Contreras-Arceo’s testimony were also
played for him during a pre-trial interview in preparation for trial. See Def.’s Mot. at 3–4; Govt.’s Opp’n at 6.
8
Defendant, elsewhere, seems to acknowledge that the government did try to correct the record. See, e.g.,
Def.’s Mot. at 10 (acknowledging that the government questioned Contreras-Arceo about the audio recordings on re-
direct); July 26 Trial Tr. (Rough) at 32:21–33:9 (stating, in closing statements, that “the prosecutor tried to prompt
him” but Contreras-Arceo still would not “admit that he heard the tapes before”).
23
testimony of Agent Novick, who was present when the recordings were played for Contreras-
Arceo:
Q: Again, you were here the entire time Mr. Contreras testified yesterday and the
day before, correct?
A: Yes.
Q: And he testified, both on cross and during redirect, that he had never heard the
recordings—the audio recordings that were played for him in court, that that was
the first time he had ever heard those recordings. That’s not accurate, is it?
A: I can’t speak to what he remembers or what he doesn’t remember. I
remember being at a proffer where recordings were played for him—or sorry—an
interview where recordings were played for him; but what he remembers or not, I
can’t speak for him as far as that.
July 20 AM Trial Tr. (Rough) at 75:22–76:9.
The defense, in addition, repeatedly argued in closing statements that Contreras-Arceo
was not to be believed. See July 26 Trial Tr. (Rough) at 32:21–24 (“When you deliberate, you
should remember that Contreras was so dishonest on the witness stand in this case that he would
not even admit to having listened to the audiotapes before he came to court.”), 33:11–15
(“[T]here is not one shred of independent evidence to corroborate what Contreras said about
Javier Algredo running a meth lab in Mexico.”), 33:20–42:24 (arguing that “[a]ll that exists in
the record of this trial is the word of a convicted felon who is facing a 35-year sentence,” who, as
the jury “know[s] from the evidence at trial,” “has every motive to lie” and made “wild
exaggerations and [gave] untruthful testimony”). That the jury, despite being presented with this
testimony, this evidence, and these arguments, still chose to credit Contreras-Arceo’s testimony
that he knew defendant, bought precursor chemicals from him, and discussed with defendant the
use of those precursor chemicals to manufacture methamphetamine for importation into the
United States, is insufficient to require a judgment of acquittal or to order a new trial.
“Simply put, credibility judgments are the sole province of the jury,” which “ultimately
decided whom to believe, and how important this issue was to its verdict.” Radtke v. Lifecare
24
Mgmt. Partners, 795 F.3d 159, 167 (D.C. Cir. 2015); see also United States v. Anderson, 498
F.2d 1038, 1039 n.1 (D.C. Cir. 1974) (affirming “trial court’s refusal to grant a motion for
judgment of acquittal” based on defendant’s argument that “testimony of the complaining
witness was ‘inherently incredible,’” since “[t]he question of credibility was for the jury”).
Defendant’s attempts to again persuade this Court to supplant the jury’s assessment of the
credibility of Contreras-Arceo are rejected.
B. The Government’s Theory of Identification
On July 6, 2023, more than a month before trial, the government moved to strike the alias
“Men” from the indictment, in light of new information that defendant did not go by the alias
“Men” and in fear of “the potential to mislead the jury.” Govt.’s Mot. Strike Alias at 1, ECF No.
95. The motion was denied as unnecessary, since the indictment would not be presented to the
jury, and the charges against defendant would be provided to the jury as part of jury instructions
using only defendant’s full name. See Min. Order (July 6, 2023). Several days later, defendant
stated, in briefing associated with a different motion, that he too “considered filing a motion to
strike the alias in March of 2023,” but because the government objected, “[t]he motion was never
filed.” Def.’s Reply Supp. Mot. for Hr’g at 2 n.1, ECF No. 101-1. Now, in an ironic turn of
events, defendant, relying on Berger v. United States, 295 U.S. 78 (1935), argues that this “last-
minute change” in the government’s “theory of identification” was a “fatal variance” that
warrants a new trial. Def.’s Mot. at 11. This argument fails to persuade.
In Berger, the Supreme Court explained that not every variance between the crime
charged in the indictment and the crime proved at trial is “fatal” to the validity of the resulting
conviction. 295 U.S. at 81. The “true inquiry” is “not whether there has been a variance in
proof, but whether there has been such a variance as to ‘affect the substantial rights’ of the
25
accused.” Id. at 82. The purpose of the rule is, in part, to ensure that “the accused shall be
definitely informed as to the charges against him, so that he may be enabled to present his
defense and not be taken by surprise by the evidence offered at the trial.” Id. The “proper
standard of review” for such alleged variance is “whether the error had a substantial and
injurious effect or influence in determining the jury’s verdict.” United States v. Baugham, 449
F.3d 167, 174 (D.C. Cir. 2006) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
Here, any error from listing the alias “Men” in the indictment was minimal and did not
affect defendant’s “substantial rights.” The indictment charged defendant by his correct full
name, and the witnesses, including Contreras-Arceo, identified him and referred to him in their
testimony by his first or full name. See, e.g., July 18 AM Trial Tr. (Rough) at 15:17–16:2
(Contreras Arceo identifying defendant in court by describing his clothes), 19:15–19 (calling
defendant “Javier”), 24:17–19 (explaining that he was introduced to defendant as “Javier” and
not by “a nickname, or any other way”).9 The documentary evidence, too, referred to defendant
by name and not alias: business records listed defendant by his full name as the owner of Pro
Chemie; emails requesting information and inquiring about the status of a shipment of bulk
quantities of oxalic acid, a chemical commonly used to conceal methamphetamine after
production for transport without detection, which shipment was seized by the DEA in Texas,
were signed “Javi Vazquez ; emails between defendant and his brother discussing the
coordination of payments for chemicals included his full name; and invoices for the sale of bulk
quantities of chemicals included the name of his company, Pro Chemie. The jury instructions,
9
In fact, Contreras-Arceo testified that Men is “Victor Mora,” who helped Contreras-Arceo deliver, from
Mexico to Texas, methamphetamine as payment to defendant on one occasion, and from whom defendant rented his
methamphetamine lab. See July 18 AM Trial Tr. (Rough) at 37:17–38:7; see also id. at 41:20–21 (“Q. To clarify,
are Javier and ‘Men’ different people? A. Yes. That’s correct.”); July 19 Trial Tr. (Rough) at 25:14–26:4 (similar
but on cross-examination). In summation, the government “agree[d]” with the defense that Men and defendant “are
two different people.” July 26 Trial Tr. (Rough) at 56:25–57:1.
26
too, refer to defendant by his full name without mention of the alias “Men.” See Final Jury
Instructions, ECF No. 117. In short, any variance caused by listing the alias “Men” in the
indictment was immaterial, not prejudicial, and certainly not “fatal.”
Defendant’s only argument with respect to prejudice is that he was deprived of the
opportunity to argue that “another person named ‘Men’ worked at the methamphetamine
laboratories” run by the cartel and to use “its planned cross-examination to establish that the
defendant was not nicknamed ‘Men.’” Def.’s Mot. at 11. Put differently, defendant seems to
argue that he was prejudiced by the fact that because the government did not falsely present
evidence that defendant went by the alias “Men,” he lost out on the opportunity to prove that he
was not, in fact, “Men.” This argument gets nowhere.
At the outset, even though the government did not call to testify the only witness who
identified defendant using the nickname “Men,” the defense elicited testimony that suggested
that the government once thought defendant was “Men.” Partida-Ceja, for example, testified:
Q. Did anyone ever ask you if Mr. Algredo had the nickname ‘Men’? . . .
A. The prosecutors there asked me if he was Men.
Q. And what did you tell them?
A. No, that he was not Men.
Q. And when you told the government that, did they seem unhappy with you?
A. No. Because, in fact, they don’t believe me.
July 25 AM Trial Tr. (Rough) at 69:6–14. The defense, in addition, if it truly wanted, could have
called the one witness who identified defendant using the nickname “Men” and elicit from him
testimony to this effect. That the government did not, at trial, falsely pursue the theory that
defendant used the alias “Men” is not an injustice that justifies a new trial. That defendant is not
“Men,” in addition, does little to defend him against the conspiracy charges he faced and of
which he has now been found guilty.
27
C. Joseph Bozenko’s Expert Testimony
For the first time in his reply brief, defendant argues that the government’s expert witness
Joseph Bozenko “improperly invaded the jury’s province” by “opin[ing] upon the ultimate issue
of the defendant’s intent,” in violation of Federal Rule of Evidence 704(b). Def.’s Reply at 1, 4;
see also July 24 AM Trial Tr. (Rough) at 44:10–17 (the Court accepting Bozenko as an expert
witness who “may testify and offer his opinions in this case” after defense counsel stated that
“[t]here is no objection” to the government’s tender of Bozenko “as an expert in the areas of the
use of chemicals to produce and distribute drugs, clandestine drug laboratories, and the means
and methods for producing methamphetamine and fentanyl”).10 Defendant specifically takes
issue with the following exchange:
Q. Based on your training, your experience, your education, and your review of
the evidence in this case, are you able to reach an expert opinion as to what the
chemicals being procured by the defendant were most likely used for?
A. From what I see and from what I have assessed here, . . . these substances
were used to support the manufacturing of methamphetamine, fentanyl, and
cocaine.
July 24 AM Trial Tr. (Rough) at 72:11–17.
Rule 704(b) provides that, “[i]n a criminal case, an expert witness must not state an
opinion about whether the defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or of a defense. Those matters are for the trier of
fact alone.” Fed. R. Evid. 704(b). “[T]estimony should not be excluded under Rule 704(b) as
long as it is clear that the expert is testifying on the basis of his knowledge or general criminal
practices and not on some special knowledge of the defendant’s mental processes.” United
States v. Bailey, 319 F.3d 514, 521 (D.C. Cir. 2003). To determine whether testimony should be
excluded, courts consider “(1) the language used by the questioner and/or the expert, including
10
At trial, defense objected to Bozenko’s testimony as it relates to fentanyl on relevance grounds, and the
objection was overruled. See July 24 AM Trial Tr. (Rough) at 37:8–22.
28
use of the actual word ‘intent’; and (2) whether the context of the testimony makes clear to the
jury that the opinion is based on knowledge of general criminal practices, rather than ‘some
special knowledge of the defendant’s mental processes.’” Id. (citation omitted).
Even setting aside the fact that defendant did not object to this line of questioning at trial
and failed to raise this objection in his motion for a new trial, see United States v. Powers, 885
F.3d 728, 732 (D.C. Cir. 2018) (explaining that a party “ordinarily must raise any issues ripe for
[a court’s] consideration in their opening briefs”), his argument has no merit. Read in context,
Bozenko’s testimony did not suggest that he was speaking based on “special knowledge of the
defendant’s mental processes.” Bailey, 319 F.3d at 521. Neither the government nor Bozenko
used the actual word “intent.” Rather, the government’s use of the language “most likely” makes
clear that Bozenko was asked to offer his “opinion,” based on “[his] training, [his] experience,
[his] education, and [his] review of the evidence in this case,” as to what the chemicals procured
by defendant were used for. Bozenko, in turn, qualified his answer with the clause “[f]rom what
I see and from what I have assessed here,” which refers to the context in which the question
arose: the government had been asking Bozenko to review documents that listed the chemicals—
and the huge quantity of such chemicals—procured by defendant and his co-conspirators, if he
was familiar with the chemicals, and then to explain how these chemicals are generally used in
the process of manufacturing and distributing drugs. Understood in this more fulsome context,
Bozenko’s testimony did not offer an opinion on defendant’s mental state or condition. Put
another way, Bozenko’s testimony that the chemicals procured by defendant were “most likely”
used “to support the manufacturing of methamphetamine, fentanyl, and cocaine” did not speak to
defendant’s actual intent when he procured the chemicals or imply that Bozenko had actual
knowledge of how defendant used these chemicals.
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D. Defendant’s Miscellaneous Alleged “Miscarriages of Justice”
Defendant identifies in passing several other instances he describes as “miscarriages of
justice,” Def.’s Mot. at 10, which are briefly addressed here for completeness. First, he contends
that “during its summation and rebuttal the Government referred to Contreras-Arceo as
‘Canasto,’ rather than by his actual name,” which “might” have confused the jury. Id. at 4 n.3.
Given that Contreras-Arceo stated at the beginning of his testimony that he goes by the nickname
“Canasto,” July 18 AM Trial Tr. (Rough) at 3:15–16, and other witnesses, including defense
witnesses, confirmed that Contreras-Arceo goes by “Canasto,” see, e.g., July 25 AM Trial Tr.
(Rough) at 65:8–16, defendant offers no reason why the jury might have been confused.
Second, defendant states that “[i]t was unclear to the defense prior to the trial why the
government indicated an intention to call Tony Romo Reyes to testify in their case in chief”
because Romo’s “testimony added nothing to the Government’s affirmative evidence.” Def.’s
Mot. at 4–5. Defendant’s implication that Romo’s testimony was irrelevant or cumulative is
belied by his own motion to subpoena Romo to testify, which motion was granted. See Def.’s
Mot. Issuance of Subpoena, ECF No. 94; Order Granting Mot. Issuance of Subpoena, ECF No.
98. In any case, Romo’s testimony is clearly relevant to corroborate Contreras-Arceo’s
testimony in several important respects, such as by confirming the conditions of and day-to-day
operations at Men’s ranch, that Peteto was in charge of picking up the produced
methamphetamine, that Contreras-Arceo sent some of his workers, including Romo, Romo’s
brother, Partida-Ceja, and Partida-Ceja’s son, to work at the ranch, and that another group of
individuals worked to manufacture methamphetamine in the same lab, but with whom Romo had
little interaction. See July 24 AM Trial Tr. (Rough) at 27:14–25, 29:8–15.
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Third, defendant argues that Special Agent Chang’s testimony about casa de cambios, a
type of money exchange business that allows individuals to transfer cash in a way that is hard to
trace, “caused improper [jury] confusion.” Def.’s Mot. at 9 n.5. The government asked Special
Agent Chang several brief questions about casa de cambios in the context of her experience
investigating money laundering, which defendant did not object to, and her investigative
experience was plainly relevant to her later testimony about her investigation into Pro Chemie’s
engagement in international promotional money laundering. See July 20 PM Trial Tr. (Rough) at
106:12–107:9, 110:1–10. Any confusion, in addition, was cleared up on cross-examination,
during which the defense engaged in a longer series of questioning about casa de cambios,
elicited testimony that casa de cambios can be legitimate businesses in Mexico, and clarified that
transfers from Carlos’s company, M.B. Barter & Trading, to defendant’s company, Pro Chemie,
were sent via Mexican banks, not casa de cambios. See July 21 Trial Tr. (Rough) at 34:15–38:7.
In its closing statements, the government reiterated that casa de cambios are not “relevant to the
money laundering charge in this case,” which involves “a pretty simple form of money
laundering.” July 26 Trial Tr. (Rough) at 23:24–24:25.
Finally, defendant argues that because the government initially anticipated that its case in
chief would last for three weeks but only actually took five days, the defense “was left
scrambling to coordinate the defense witnesses” and thus “put[] on a significantly weaker case
than planned.” Def.’s Mot. at 11 n.6. At the outset, the government gave defendant notice at the
pre-trial conference that it anticipated that its case-in-chief would last seven days. See Govt.’s
Opp’n at 10. Then, because defendant agreed to stipulate to certain testimony, the government
no longer needed to call four of its witnesses and immediately told defendant that its case would
now last only five to six days. See id. The government’s case in chief ultimately lasted five
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days. Even setting these facts aside, the defense never made these objections on the record,
indicate that it needed more time to secure the arrival of its witnesses, or otherwise ask the Court
to intervene, such as by asking for a continuance.
IV. CONCLUSION
The testimonial and documentary evidence at trial demonstrated that defendant Javier
Algredo Vazquez, using his U.S.-based company Pro Chemie, assisted in procuring and
transporting from China to Mexico tonnage quantities of chemicals to support the manufacturing
of methamphetamine and conspired to commit money laundering. None of defendant’s
arguments justify disturbing the jury’s verdict, convicting him of three counts: (1) conspiring,
between around 2011 until September 23, 2021, to manufacture and distribute 500 grams or
more of methamphetamine for unlawful importation into the United States, in violation of 21
U.S.C. §§ 959(a), 960, and 963; (2) conspiring, during the same period, to distribute
methylamine for unlawful importation into the United States, in violation of 21 U.S.C.
§§ 959(b), 960, and 963; and (3) conspiring, from around 2018 to September 23, 2021, to
launder monetary instruments, in violation of 18 U.S.C. § 1956(a)(2)(A), (h).
Accordingly, for the foregoing reasons, defendant Javier Algredo Vazquez’s Motion for
Motion for New Trial, ECF No. 124, and Renewed Motion for Judgment of Acquittal, ECF No.
125, are DENIED.
An Order consistent with this Memorandum Opinion will be filed contemporaneously.
Date: October 30, 2023
_________________________
BERYL A. HOWELL
United States District Judge
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