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United States v. Velazquez

United States District Court, D. Arizona

May 17, 2018

United States of America, Plaintiff,
v.
Guadalupe Velazquez, Defendant.

          ORDER

          Neil V.Wake Senior United States District Judge.

         Before the Court are Defendant Guadalupe Velazquez's Motion to Dismiss the Third Superseding Indictment (Doc. 1012), the Response, and the Reply. The Motion will be denied.

         I. BACKGROUND

         On April 26, 2012, Guadalupe Velazquez (“Velazquez”) was indicted, along with nine others, for her alleged role in drug and money laundering conspiracies. (Doc. 3.) Eight of the counts pertained to Velazquez: Count 1, Conspiracy to Possess with the Intent to Distribute Marijuana; Counts 2, 3, 7, and 9, Possession with Intent to Distribute Marijuana; Count 10, Conspiracy to Commit Money Laundering; Count 13, Promotional and Concealment Money Laundering; and Count 14, Engaging in Monetary Transactions. (Id.)

         On April 9, 2013, the Government filed a First Superseding Indictment. (Doc. 201.) Velazquez was charged with the same offenses. (Id.) But the First Superseding Indictment also added four new counts. The two counts relevant to this Motion are Counts 26 and 28: Possession or Use of a Firearm During and in Relation to a Drug Trafficking Offense, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(C)(i). (Id.)

         The Government filed a Second Superseding Indictment on November 19, 2013. (Doc. 396.) It contained the same charges but expanded the time period of the conspiracies. The First Superseding Indictment alleged the conspiracies began on March 11, 2010. (Doc. 201.) The Second Superseding Indictment, by contrast, claimed they began on December 1, 2008. (Doc. 396.)

         Velazquez entered into a plea agreement on December 11, 2013. She pled guilty to Counts 1 and 10. (Doc. 500.) The Government agreed to dismiss the other counts. (Id. at 3.)

         Velazquez was sentenced on June 17, 2014. (Doc. 725.) She then appealed. Three years later, the Court of Appeals vacated the conviction for a Rule 11 violation by the Magistrate Judge while taking the change of plea. See generally United States v. Velazquez, 855 F.3d 1021 (9th Cir. 2017). The case was remanded for further proceedings and newly assigned to the undersigned judge.

         On January 31, 2018, the Government obtained a Third Superseding Indictment. (Doc. 1002.) The new Indictment applied only to Velazquez, the only remaining defendant. The only changes in the Third Superseding Indictment were to Counts 26 and 28. The Second Superseding Indictment had presented Counts 26 and 28 as follows: Velazquez “did use, carry, and possess a firearm, during and in relation to a drug trafficking crime . . . .” (Doc. 396 at 14-15.) By contrast, the Third Superseding Indictment added the following language: Velazquez “did knowingly use and carry a firearm, during and in relation to a drug trafficking crime, and did possess a firearm in furtherance of a drug trafficking crime . . . .” (Doc. 1002 at 14 (emphasis added).)

         Velazquez now moves to dismiss the Third Superseding Indictment. She raises two arguments. First, she argues Counts 26 and 28 were deficient in the Second Superseding Indictment because “they did not properly allege [ ] the in furtherance element of 18 U.S.C. § 924(c).” (Doc. 1012 at 2 (internal quotation marks omitted).) The five-year statute of limitations therefore applies and bars the Government from including the “fixed” counts in the Third Superseding Indictment. Second, she contends the counts must “be dismissed for vindictive prosecution.” (Id. at 4.)

         II. ANALYSIS

         A. The statute of limitations does not bar the Government's changes to Counts 26 and 28 because the Second Superseding Indictment had independently sufficient language and the Third Superseding Indictment did not broaden or substantially amend the Second.

         The original Indictment was filed on April 26, 2012, more than five years before the Third Superseding Indictment, which was filed on January 31, 2018. Velazquez points out the statute of limitations on Counts 26 and 28 is five years. (Doc. 1012 at 3.) She claims the Third Superseding Indictment attempted to correct a fatal flaw in the Second Superseding Indictment. Specifically, she contends Counts 26 and 28 were missing essential statutory language. By the time of the Third Superseding Indictment, it was too late for the Government to add this language, so those counts, she says, should be dismissed.

         Velazquez is wrong for two reasons. First, the so-called essential language was not, in fact, essential. Second, the Third Superseding Indictment did not broaden or ...


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