USA v. Valencia et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Gabriel Valencia,
Defendant.
No. CR-25-02676-001-TUC-SHR (BGM)
REPORT AND RECOMMENDATION
Before the Court is Defendant Gabriel Valencia’s combined Motion to Dismiss
Indictment and for Bill of Particulars. (Doc. 34.) The Government filed a Response to
Defendant’s combined Motion to Dismiss. (Doc. 43.) Pursuant to LRCrim 5.1, this matter
was referred to Magistrate Judge Bruce G. Macdonald for an evidentiary hearing and a
report and recommendation. (See Doc. 17 at 1.) The Magistrate Judge recommends that
the District Judge, after his independent review, deny Defendant’s combined motion.
PROCEDURAL HISTORY
On June 4, 2025, Gabriel Valencia was charged by Indictment with one felony count
of conspiracy to transport and harbor illegal aliens for profit, in violation of 8 U.S.C. §§
1324(a)(1)(A)(v)(I), 1324(a)(1)(A)(ii), and 1324(a)(1)(A)(iii) for crimes that occurred
“[f]rom a date unknown to on or about November 4, 2020, in the District of Arizona and
elsewhere.” (Doc. 1 at 1-2.) On January 2, 2026, Valenica filed his combined motion to
dismiss and for bill of particulars. (Doc. 34.) On January 22, 2026, the Government filed
its response to Defendant’s combined motion. (Doc. 43.) Valencia failed to file a reply.
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On January 29, 2026, February 12, 2026, and February 24, 2026, the Court conducted
hearings on Valencia’s combined motion, as well as other pending motions. (See Docs.
45, 48, 51.) At the February 24, 2026 motion hearing, the parties declined to present oral
argument on Defendant’s combined motion and the Government relied on the arguments
written in its response. This Report and Recommendation follows.
DISCUSSION
Valencia brings his combined motion to dismiss and for bill of particulars arguing
the Indictment against him should be dismissed because it is barred by the statute of
limitations, he suffered prejudicial pre-indictment delay, and the indictment fails to provide
adequate notice of the crimes for which he is charged. (Doc. 34 at 2-10.) Valencia argues
that if his motion is denied, the Government should provide him with a bill of particulars
identifying the names of the alleged transported illegal aliens, the dates at issue for those
aliens, and the specific subsections of the “preceding acts” upon which the conspiracy
charge is based. (Id. at 10.) The Court addresses these arguments in the order raised.
I. Indictment Not Barred By Five-Year Statute of Limitations
“A court may dismiss an indictment as barred by the statute of limitations upon a
pretrial motion.” United States v. Pac. Gas & Elec. Co., 153 F. Supp. 3d 1048, 1051 (N.D.
Cal. 2015). In ruling on a motion to dismiss, “the district court is bound by the four corners
of the indictment.” United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). “Adherence
to the language of the indictment is essential because the Fifth Amendment requires that
criminal prosecutions be limited to the unique allegations of the indictments returned by
the grand jury.” Pac. Gas & Elec. Co., 153 F. Supp. 3d at 1051 (quoting United States v.
Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001)). At this stage, the allegations of the indictment
are presumed to be true. United States v. Blinder, 10 F.3d 1468, 1471 (9th Cir. 1993).
Valencia argues that the five-year statute of limitations for the charge against him
has run before he was indicted. (Doc. 34 at 2-3.) He asks that the Court dismiss the
indictment or limit it to conduct occurring on June 2, 2020. (Id.) The Court finds that the
statute of limitations has not run on the conspiracy charge in the indictment due to the
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statute of limitations calculation for ongoing conspiracy charges and the date of the most
recent criminal act alleged in the indictment. Valencia’s motion to dismiss indictment
based on a statute of limitations challenge should therefore be denied.
18 U.S.C. § 3282(a) provides that a five-year statute of limitations applies to non-
capital offenses. “Generally speaking, the return of an indictment tolls the statute of
limitations with respect to the charges contained in the indictment.” United States v.
Pacheco, 912 F.2d 297, 305 (9th Cir. 1990). The statute of limitations does not commence
until the end of a criminal conspiracy. Flintkote Co. v. United States, 7 F.3d 870, 873 (9th
Cir. 1993). As long as some part of the conspiracy continued into the five-year period
preceding the indictment, the statute of limitations does not insulate the defendant from
criminal liability for actions taken more than five years prior to the time of indictment. Id.
On June 4, 2025, the grand jury returned the Indictment at issue. (See Doc. 1.) The
Indictment does not violate the five-year statute of limitations because the statute of
limitations does not begin until the end of the alleged conspiracy. The Indictment provides
that the conspiracy to transport and harbor illegal aliens for which Valencia is charged
ended “on or about November 4, 2020.” (Doc. 1 at 1.) As such, the Government had until
November 4, 2025, to charge Valencia with the conspiracy offense. The June 4, 2025,
return of the Indictment is more than sufficient time to meet this requirement. The motion
to dismiss indictment on statute-of-limitations grounds should therefore be denied.
II. No Due Process Violation for Pre-indictment Delay
Generally, the statute of limitations for a particular crime limits the Government’s
delay in bringing an indictment and protects the defendant from the effects of excessive
delay. United States v. Doe, 149 F.3d 945, 948 (9th Cir. 1998). However, delay violating
a defendant’s Fifth Amendment due process rights requires dismissal of the charges even
if the statute of limitations has not expired. Id. The United States Court of Appeals for the
Ninth Circuit applies a two-prong test to determine if preindictment delay has violated a
defendant’s due process rights. Id. Under the first prong, the defendant must prove that
he suffered “actual, non-speculative prejudice from the delay.” United States v. Sherlock,
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9623 F.2d 1349, 1353 (9th Cir. 1989). To establish actual prejudice from the delay, the
defendant must provide “definite, non-speculative proof” that demonstrates “how the loss
of a witness and/or evidence is prejudicial to his case.” Id. at 1354. The burden of showing
actual prejudice is rarely met. Id. If the defendant fails to establish actual prejudice, the
court need not address the second prong of the due process test. Doe, 149 F.3d at 949.
Valencia argues that he suffered actual prejudice and an impaired ability to defend
himself due to the Government’s delay in filing the Indictment in a timely manner. (Doc.
34 at 4.) Valencia contends that the material witnesses to his alleged crimes are no longer
in custody nor in the county. (Id.) Valencia also asserts prejudice because he was unable
to cross-examine the witnesses at a deposition. (Id.) Valencia contends that his co-
defendant is also no longer in custody and that his whereabouts are unknown. (Id.)
Valencia finally contends that the Government’s delay in waiting to file the Indictment was
a deliberate mechanism to gain an advantage over him. (Id. at 5.) Valencia’s unsupported
speculative allegations about the loss of witnesses or evidence fail to demonstrate actual
prejudice for pre-indictment delay, and his argument should be denied. See United States
v. Manning, 56 F.3d 1188, 1194 (9th Cir. 1995) (“Generalized assertions of the loss of
memory, witnesses, or evidence are insufficient to establish actual prejudice.”); United
States v. Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007) (cleaned up) (instructing
that the accused must show “both that lost testimony, witnesses, or evidence meaningfully
has impaired his ability to defend himself, and the proof must demonstrate by definite and
non-speculative evidence how the loss of a witness or evidence is prejudicial to his case”).
III. Indictment Provides Sufficient Notice
“An indictment is sufficient if it contains the elements of the charged crime in
adequate detail to inform the defendant of the charge and to enable him to plead double
jeopardy.” United States v. Buckley, 689 F.2d 893, 896 (9th Cir. 1982). “Two corollary
purposes of an indictment are: (1) to ensure that the defendants are being prosecuted on the
basis of the facts presented to the grand jury, and (2) to allow the court to determine the
sufficiency of the indictment.” Id. “The Government need only allege the ‘essential facts
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necessary to apprise a defendant of the crime charged,’ and not its theory of the case.”
United States v. Schmidt, 947 F.2d 362, 369 (9th Cir. 1991) (quoting Buckley, 689 F.2d at
896). “An indictment that tracks the words of the statute violated is generally sufficient,”
as long as implied, necessary elements, not present in the statutory language, are included
in the indictment. United States v. Jackson, 72 F.3d 1370, 1380 (9th Cir. 1995)
Valencia argues the Indictment fails to satisfy the notice requirements because: (i)
it fails to provide the names of the alleged transported illegal aliens; (ii) it fails to provide
dates for when the alleged aliens were present in the United States; (iii) it is so vague and
unspecific that it prevents him from preparing his defenses; (iv) it is so vague and
unspecific that it prevents him from availing himself of the protection against double
jeopardy; and (v) it fails to inform the court of the alleged facts so that it may judge whether
those facts are sufficient to support a conviction for the offense charged. (Doc. 34 at 6.)
Valencia also argues that the Indictment’s citation for the conspiracy charge, 8 U.S.C. §
1324(a)(1)(A)(v)(I), refers to the “preceding acts” but is not specific as to whether it is
referring to all four subsections of the offense or just the two subsections cited in the
Indictment. (Id. at 9.) The Court finds Valencia’s arguments unavailing.
The Indictment provides:
COUNT ONE
From a date unknown to on or about November 4, 2020, in the District of
Arizona and elsewhere, GABRIEL VALENCIA and [Co-Defendant] did
knowingly and intentionally combine, conspire, confederate, and agree
together and with various persons known and unknown, to transport and
move illegal aliens within the United States by means of transportation or
otherwise, and to conceal, harbor and shield from detection said aliens, all in
furtherance of such violation of law for the purpose of commercial advantage
or private financial gain, in violation of Title 8, United States Code, Sections
1324(a)(l)(A)(v)(I), 1324(a)(l)(A)(ii), 1324(a)(l)(A)(iii) and
1324(a)(l)(B)(i).
(Doc. 1 at 1-2.)
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Despite Valencia’s arguments to the contrary, the Indictment need not include the
names of the alleged transported and concealed illegal aliens or provide the dates for when
the aliens were present in the United States. See United States v. Cochrane, 985 F.2d
10278, 1031 (9th Cir. 1993) (“An indictment … need not specify the theories or evidence
upon which the government will rely.”) The Indictment also sufficiently tracks the words
of the violated statutes and includes implied elements not present in the statutory language.
Section 1324 provides criminal penalties for “[a]ny person who … engages in any
conspiracy to commit any of the preceding acts.” 8 U.S.C. § 1324(a)(1)(A)(v)(I). The
preceding acts charged in the Indictment pursuant to 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (iii)
describe transporting and harboring an alien within the United States while knowing or
being in reckless disregard of the fact that the alien came to, entered, or remains in the
country in violation of the law. The language in the Indictment follows these statutory
requirements and properly charges a conspiracy pursuant to 8 U.S.C. § 1324(a)(1)(A)(v)(I).
The Indictment identifies the specific acts upon which the conspiracy is based and need
not identify acts for which Valencia has not been charged. See United States v. Olivas, No.
CR-19-2942, 2021 WL 1669498, at *1 (D. Ariz. Apr. 15, 2021) (ruling § 1324 indictment
properly charged conspiracy by including reference to illegal transportation of alien under
§ 1324(a)(1)(A)(ii) in addition to § 1324(a)(1)(A)(v)(I)). Valencia’s arguments that the
Indictment should be dismissed for a lack of notice should therefore be denied.
IV. Bill of Particulars Unnecessary
Federal Rule of Criminal Procedure 7(f) provides for a bill of particulars. United
States v. Giese, 597 F.2d 1170, 1180 (9th Cir. 1979). A bill of particulars has three
functions: “to inform the defendant of the nature of the charge against him with sufficient
precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at
the time of trial, and to enable him to plead his acquittal or conviction in bar of another
prosecution for the same offense when the indictment itself is too vague, and indefinite for
such purposes.” Id. (cleaned up). The denial of a motion for a bill of particulars is within
the court’s discretion, and to the extent that the indictment itself provides details of the
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alleged offense, a bill of particulars is unnecessary. Id. “Full discovery also obviates the
need for a bill of particulars.” Id.
Valencia requests a bill of particulars identifying the aliens by name, the precise
dates at issues for those aliens, and the specific subsections of the “preceding acts” for the
conspiracy charge. (Doc. 34 at 10.) The Government asserts that discovery has provided
the information Valencia seeks. (Doc. 43 at 7.) It asserts he has been provided with the
following initial disclosures: (i) approximately twenty investigative reports; (ii) proof of
alienage related to the November 4, 2020 event; (iii) proof of alienage related to the
May 7, 2020 event; (iv) proof of alienage related to the April 16, 2020 event; (v) audio
files; and (vi) trail camera photos. (Id.) The Government further asserts that the disclosed
proofs of alienage satisfy Valencia’s requests to identify the aliens by name and the precise
dates at issue. Additionally, the Court recommended denying Valencia’s prior argument
that the Indictment include the “preceding acts” for which he is not being charged. The
Government’s disclosures therefore obviate the need for a bill of particulars in this case,
and Valencia’s request should be denied.
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REPORT AND RECOMMENDATION
The Magistrate Judge recommends that the District Judge, after his independent
review, DENY Defendant’s combined Motion to Dismiss Indictment and for Bill of
Particulars (Doc. 34). Pursuant to Federal Rule of Criminal Procedure 59, any party may
serve and file written objections within 14 days of being served a copy of this Report and
Recommendation. Fed. R. Crim. P. 59(b)(2). A party may respond to the other party’s
objections within 14 days. LRCiv 7.2(c). No reply shall be filed unless leave is granted
by the District Judge. If objections are filed, the following case number should be used:
CR-25-2676-SHR. Failure to file timely objections to any factual or legal determination
of the Magistrate Judge may result in waiver of the right of de novo review. Fed. R. Crim.
P. 59(b)(2).
Dated this 27th day of February, 2026.
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