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

(a), 960(b)(1)(H), and 963; conspiring to

distribute methylamine for unlawful importation into the United States, in violation of

(b), 960, and 963; and conspiring to launder monetary instruments, in violation of

(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

1 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,

2 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.

at 15:1–9. Pulido,

together with defendant and Carlos, would coordinate the acquisition of these chemicals. See

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

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

at 21:9–11, 22:20–23:3; see also

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.

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.

3 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.

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.

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.

at 18:15–20:11; see also

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.

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.

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.

at 21:16–23:15. He then recounted

4 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.

at 23:16–29:10; see also

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

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

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.

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-

5 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.

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

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.,

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

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

6 quantities of chemicals that could be used to manufacture methamphetamine and fentanyl from

China to Mexico,

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,”

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

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”). 3 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

7 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

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.,

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.

8 procured by Pro Chemie. See July 24 AM Trial Tr. (Rough) at 44:10–72:17; see, e.g.,

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.”

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

at 23:20–31:25; and his

plea agreement,

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

9 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.,

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

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

at 51:2–53:6. She acknowledged that defendant’s business, Pro Chemie, imported

chemicals into Mexico but denied her involvement in the business.

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.

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

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.

at 51:9–20, 56:5–14.

10 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.”

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

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

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.

11 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

at 74:22–75:3, 79:25–80:18, 83:22–84:5; see

also

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.

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.”

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

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.

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

12 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.

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.

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.”

at 39:23–25; see also

at

38:23–25. He denied having ever met Contreras-Arceo, Pulido, or any member of a Mexican

cartel.

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

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].”

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

at 55:12–22.

13 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

(a), 960(b)(1)(H). He also faces a maximum

term of imprisonment of 20 years for each of Counts Two and Three. See

(a)(2)(A);

(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,

(2016) (emphasis in original) (quoting

Jackson v. Virginia,

(1979)); see also United States v. Thompson,

, 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,

(D.C. Cir. 2016) (citation omitted);

see also United States v. Singleton,

(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,

. “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,

(2010) (citation omitted); see also United States v. Bostick,

(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,

, 1135 n.9 (D.C. Cir. 2015), and “highly

deferential” to the jury verdict, Williams,

.

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,

(D.C. Cir. 2014); see also United States v. Dale,

(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,

(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,

(quoting United States v. Rogers,

(D.C. Cir. 1990)). The defendant bears the burden of showing that a new trial is

justified. United States v. Reese,

(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,

(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,

(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,

(D.C. Cir. 2010)

(citation omitted), and a court must presume that “the jury has properly carried out [this]

function[],” United States v. Campbell,

(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,

(1992) (emphasis omitted) (quoting Jackson,

)—defendant essentially

asks this Court to conclude that no rational juror could have relied upon the challenged

testimony. Cf. Millar v. FCC,

(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,

(D.C. Cir. 2015); see also United States v. Anderson,

, 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,

(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.

. 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.”

. 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.”

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,

(D.C. Cir. 2006) (quoting Kotteakos v. United States,

(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

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,

(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.’”

(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,

(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,

. 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.

29 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.

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.

30 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

The government’s case in chief ultimately lasted five

31 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

(a), 960, and 963; (2) conspiring, during the same period, to distribute

methylamine for unlawful importation into the United States, in violation of

(b), 960, and 963; and (3) conspiring, from around 2018 to September 23, 2021, to

launder monetary instruments, in violation of

(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

32