The opinion of the court was delivered by: Edward J. Lodge United States District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it several motions, many of which seek to dismiss the indictment. See Dkts. 223, 224, 225, 227, 230, 234, and 238. The Court has determined oral argument would not assist the decision-making process and will decide the motions without a hearing. For the reasons explained below, the Court will deny these motions.
In March 2011, defendants Oscar Garcia and Juan Jimenez, along with nine others, were indicted for various crimes related to their association with a street gang known as Brown Magic Clica, or BMC. The other defendants have pled guilty; Garcia and Jimenez are the only defendants who will proceed to trial.
Both Garcia and Jimenez are named in Count One, which charges conspiracy -- under 18 U.S.C. § 1962(d) -- to violate the federal racketeering statute, 18 U.S.C. § 1962(c). Additionally, Counts Four, Five, and Six charge Garcia with murder and attempted murder in violation of 18 U.S.C. § 1959 -- the federal statute on violent crimes in aid of racketeering activity (VICAR). Both defendants contend that the indictment fails to adequately state a RICO conspiracy offense. Garcia also contends that the indictment fails to adequately allege the VICAR offenses. These and other arguments are made in seven separate motions, which the Court will address in turn.
1. Garcia's Motion to Dismiss Count One (Dkt. 223)
In his first motion to dismiss (which Jimenez joined), Garcia argues that Count One fails to satisfy pleading requirements because it does not allege that (1) he agreed to further or facilitate an enterprise's alleged criminal endeavor, (2) he was aware of the nature and scope of the enterprise, or (3) his acts are "linked in any way" to the alleged enterprise's "plans or directives." Before addressing these arguments, the Court will summarize the relevant parts of the indictment.
The indictment's conspiracy allegations can be divided into three basic parts: (1) allegations regarding the alleged RICO enterprise, including its history and purposes; (2) allegations that ten individuals, including Garcia and Jimenez, conspired to operate the enterprise through a pattern of racketeering acts; and (3) a list of specific overt acts.
1) BMC's History and Purpose
Paragraphs 1 through 13 of the indictment allege numerous specific facts about the formation and history of the street gang Brown Magic Clica, or BMC, which is the alleged RICO enterprise. See Indictment ¶¶ 1-13. According to the government:
Alfredo Castro and three others formed BMC in Nyssa, Oregon in the early 1990s. BMC is aligned with the national Sureno gang and, ultimately, the Mexican Mafia. BMC's colors are blue and brown and the gang often identifies itself with the number 13. BMC has existed continuously since its inception and its purposes include:
(1) preserving and protecting the gang's "power, territory, and profits" from rival gangs through violence and threats of violence;
(2) instilling fear in BMC's victims and potential victims through violence and threats of violence;
(3) financially supporting and "providing assistance" to BMC members, including members in prison;
(4) "assisting" gang members who commit crimes, including by hindering law enforcement from identifying, arresting, trying, or punishing them.
BMC frequently conducts monthly meetings, or juntas, typically on the 13th of the month "to discuss gang business, collect gang dues, and administer discipline to members." Id. ¶ 8. Each member is expected to have a "hustle" -- some form of criminal activity that yields money -- and pay a percentage of the hustle (often 13%) to the gang as "'barrio money.'" Id.
The government also alleges that BMC members "frequently engaged in criminal activity, including, but not limited to, murders, assaults, intimidating witnesses, and the sale of controlled substances, firearms, and stolen property." In fact, "BMC members were required to commit acts of violence to maintain membership and discipline within the gang and against rival gangs." Id. ¶ 7.
2) Defendants' Agreement to Join the Conspiracy
After laying out this information about BMC, the indictment alleges that Garcia, Jimenez and eight others conspired to operate BMC through a pattern of racketeering activity. Specifically, paragraph 15 alleges that Garcia, Jimenez, and the others were "employed by and associated with BMC" and "knowingly and intentionally conspire[d] to violate 18 U.S.C. § 1962(c), that is to conduct and participate, directly and indirectly, in the conduct of the affairs of the enterprise through a pattern of racketeering . . . which pattern . . . consisted of multiple acts involving" among other things, murder, attempted murder, arson, tampering and interfering with witnesses, and drug dealing. Indictment
¶ 15. Paragraph 15 also alleges that as part of the conspiracy, "each defendant agreed that a conspirator would commit at least two acts of racketeering activity in the conduct of the affairs of the enterprise." Id.
Paragraphs 16 through 19 specify additional "parts of the conspiracy." Among other things, the government alleges Garcia and the others agreed BMC members and associate would:
(1) commit crimes, including murders, assaults, witness intimidation, distribution of controlled substances, and sale of firearms and stolen property;
(2) commit violent acts, including murder, attempted murder, and assault of rival gang members;
(3) contribute a portion of financial gain from crimes to BMC;
(4) cover up their crimes (including by threatening witnesses);
(5) notify each other of gang members who were arrested or incarcerated;
(6) share identities of individuals who may be cooperating with law enforcement and propose actions against them;
(7) purchase, maintain, and circulate a collection of firearms for use in criminal activity; and
(8) discipline BMC members and associates as necessary to promote a climate of fear and to enforce BMC's authority. ¶¶ 16-19.
Finally, in paragraph 20 (which has 71 sub-paragraphs and is about 15 pages long), the government alleges a host of specific "overt acts." Within paragraph 20, the government alleges that in July 2006, Garcia, Jimenez, and one other co-defendant shot at rival gang members I.C.'s house, "striking C.C. with a bullet." ¶ 20(g). The government also alleges that in August 2008, Garcia and another co-defendant shot at fellow gang members R.M. and G.M., killing R.M. and injuring G.M. ¶ 20(q).
B. The Indictment Sufficiently Alleges a RICO Conspiracy
1) Defendants' Agreement to Conspire
Garcia and Jimenez's first two arguments -- that the indictment does not adequately allege they agreed to the conspiracy, or that they were aware of the enterprise's nature and scope -- are focused primarily on paragraphs 15 through 19 of the indictment. Defendants assert that these "generic allegations as to a group of eleven defendants[*fn1 ] as a whole provide insufficient factual allegations to furnish Mr. Garcia [and Mr. Jimenez] with notice of the charges against [them] and sufficient opportunity to prepare a defense." Reply, Dkt. 270, at 6.
The Court disagrees. Generally, a criminal indictment "must be a plain, concise and definite written statement of the essential facts constituting the offense charged . . . ." Fed. R. Crim. P. (c)(1). Failure to recite an essential element of the offense charged "is not a minor or technical flaw . . . but a fatal flaw requiring dismissal of the indictment." United States v. Pernillo-Feuentes, 252 F.3d 1030, 1032 (9th Cir. 2001) (citation omitted).
To adequately list the elements of RICO conspiracy, "an indictment need only charge -- after identifying a proper enterprise and the defendant's association with that enterprise -- that the defendant knowingly joined a conspiracy the objective of which was to operate that enterprise through an identified pattern of racketeering activity." United States v. Glecier, 923 F.2d 496, 500 (7th Cir. 1991); see also 18 U.S.C. § 1962(d); United States v. Tille, 729 F.2d 615, 619(9th Cir. 1984)("Proof of an agreement, the objective of which is a substantive violation of RICO (such as conducting the affairs of an enterprise through a pattern of racketeering) is sufficient to ...