Professional Documents
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This order addresses the Court’s November 8, 2018 order to show cause why the Court
should not publicly file its proposed redacted version of its October 30, 2018 order granting in
part and denying in part the Government’s motions in limine concerning cooperating and law
enforcement witnesses. Defendant opposes the Court’s redactions to the extent they differ from
his own minimal proposed redactions. The Government is amenable to the Court’s version of
The Court issues the attached public version of its October 30, 2018 order with limited
5. As for the law enforcement witnesses identified on pages 7 and 8 of the order (whose
names are currently redacted), the Government is ordered to show cause within two
days after those officers testify why their names cannot be made public.
Although defense counsel is correct that this Court’s rulings in its October 30, 2018 order
are based “on the Rules of Evidence that govern what evidence can be presented at trial, not what
can [be] publicly filed on the Court’s docket,” the Government has made a sufficient showing
that most – but not all – of its proposed redactions are essential to preserve the higher value of
protecting the cooperating and law enforcement witnesses and their families from identification,
harm, and embarrassment. The redactions are narrowly tailored to achieve that objective.
Indeed, some of the redactions that defendant proposed for this order cover information
that is potentially embarrassing for or prejudicial to defendant and which the Court ruled is
inadmissible because it is irrelevant or unduly prejudicial. Defendant previously asked the Court
to redact similar information about defendant that the Court determined should not be presented
as evidence during trial, when that information appeared in the Government’s opening brief for
its second tranche of motions in limine. For the same reason that the Court agreed with and
applied defendant’s proposed redactions, it agrees with the Government’s proposed redactions
here: this information is both identifying and inflammatory, and the witnesses should not be
judged in the court of public opinion on information that this Court has determined is too
SO ORDERED.
Digitally signed by
Brian M. Cogan
______________________________________
U.S.D.J.
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This order addresses the Government’s motions in limine seeking to preclude cross-
examination of certain cooperating and law enforcement witnesses. The motions [350], [354]
Cooperating Witnesses
where CW1 paid a $10,000 bribe to get out of jail after being arrested for
2. The only topic that appears relevant to CW1’s character for truthfulness is the incident in
which paid a $10,000 bribe to get out of jail after was arrested for
that the Government cites from CW1’s § 3500 materials. This particular bribe’s
examples of CW1 bribing a public official are not. Even “quintessential impeachment
impeachment material, see United States v. Avellino, 136 F.3d 249, 257 (2d Cir. 1998)
or repetitive, see Fed. R. Evid. 611; United States v. Maldonado-Rivera, 922 F.3d 934,
956 (2d Cir. 1990). Here, defendant can cross-examine CW1 about the other times
, including one instance the Government cites when CW1 bribed officials
quantities of
cocaine.
relevant impeachment because they contradict CW1’s statement to the Government that
is not a violent person. As a preliminary matter, it is not clear exactly what CW1 said
(unlike some of CW1’s other statements, defendant did not quote this one). More
importantly, the assertion that someone is not a violent person is an opinion, not a factual
statement. Whether engaging in one act of violence (or ten or fifty) makes someone a
even if the alleged statement about not being a violent person was probative of the
CW1’s character for truthfulness, the Government concedes that defendant will have a
least eight murder conspiracies while was a member of the Sinaloa Cartel. That
2
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involvement and CW1’s desire to avoid punishment for it will be rich fodder for cross-
examination in response to any statement CW1 made about not being a violent person;
the probative value of these two incidents would be substantially outweighed by the
interests may be eccentric, but unusual beliefs or views (unless they are about the nature
of truth or honesty) are not probative of character for truthfulness. This Court is in no
position to assess which beliefs about the universe are correct or even plausible. See also
Fed. R. Evid. 610 (“Evidence of a witness’s religious beliefs or opinions is not admissible
to attack or support the witness’s credibility.”). Defendant argues that these beliefs
“clearly suggest mental illness . . . or at the very least, that [CW1] is delusional,” but
professed interests and beliefs. All of the cases defendant cites to support his argument
involved evidence of a medically diagnosed mental impairment; none has not been
1
As far as the Court can tell, the only way this evidence could be probative of CW1’s relationship with defendant is
that CW1’s knowledge of defendant’s demonstrates that defendant trusted CW1.
However, the Court will exclude all evidence ,
because whatever miniscule probative value it may have is completely outweighed by the undue prejudice it would
cause to either the defendant or CW1.
3
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presented here. Moreover, three out of four of those appellate courts upheld the district
stronger evidence of mental illness. See United States v. Butt, 955 F.2d 77, 82-83 (1st
Cir. 1992); United States v. Moore, 923 F.2d 910, 913 (1st Cir. 1991); United States v.
Bari, 750 F.2d 1169, 1179 (2d Cir. 1984). Should defendant uncover evidence of CW1’s
ability to perceive the events at the time they occurred or to tell the truth at trial. CW1’s
allegations against CW2 and CW3 (none of which resulted in a criminal conviction).
These allegations are not probative of the witnesses’ character for truthfulness or their
risk of undue prejudice, confusing the issues, or the other factors listed in FRE 403. This
particularly prejudicial, and so under FRE 403, whatever probative value it has is not
substantially outweighed by the risk of undue prejudice. However, the Government has
stated in its motion that defendant will have ample evidence of CW4’s participation in the
cartel with which to impeach . The Court will exclude evidence of CW4’s
4
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for the witness’s character for truthfulness. Under the reverse-FRE 403 test of FRE
609(b)(1), whatever minimal probative value they have does not substantially outweigh
are not
“specific instances of conduct” that may be inquired into under Rule 608(b). They are
not probative of CW5’s character for truthfulness. Defendant argues that CW5’s failure
to promptly pay the civil judgment “calls into question his veracity as a witness” because
he “disobey[ed] a court order.” Defendant may inquire into CW5’s failure to pay the
civil judgment against , but the impetus for the civil judgment is irrelevant to CW5’s
failure to pay it, so defendant may not refer to the underlying conduct that led to that civil
that CW6 , is
“hugely important to establishing his lack of loyalty to the defendant, and possible bias
2
The Government has not clarified the potential punishment CW4 faced for these three misdemeanors (whether it
was more than one year or less than or equal to one year). Even if these crimes were punishable by more than one
year in prison, their age (the , the
) and their minor nature ( reflects a lack of judgment but not a lack of truthfulness)
would render their probative value so minimal it would be substantially outweighed by the waste of time from
admitting them. Therefore, even if these convictions fell under FRE 609(a)(1)(A), the Court would exclude them
under FRE 403.
5
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defendant until
. If CW7 is
on .
12. Finally, the Government moves to preclude cross-examination based on “irrelevant text
messages and other communications” from CW1 and CW8, which are “banter . . . about
non-relevant issues” as to the former and “of a politically incorrect or ribald nature” as to
the latter. The Government does not identify the particular messages it seeks to preclude,
so the Court does not have enough information to decide now whether they are proper
impeachment material.
6
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Law-Enforcement Witnesses
2. Nearly all of the topics addressed in the Government’s motion fall into two categories:
internal discipline the witnesses received for failure to follow their agency’s rules (mostly
for consuming alcohol on duty or improper use of a government vehicle) and tickets the
3. Defendant objects to certain topics relating to six witnesses. Most of his objections
concern conduct that falls into the first category: suspensions for “failing to exercise
caution while driving a government vehicle,” “being under the influence of alcohol on
duty,” “operating a vehicle rented by the Government after consuming alcohol,” and
similar violations. Defendant argues that these are proper subjects of cross-examination
because they demonstrate the witnesses’ “poor judgment.” Defendant is correct in his
assessment of the witnesses’ behavior, but wrong about the Federal Rules of Evidence:
these instances do show poor judgment, but they do not show bias or a lack of
truthfulness that would make them proper cross-examination. See United States v.
4. Defendant argues that a disciplinary “letter of caution” that another law enforcement
3
The Government also moved in limine to preclude cross-examination about another unrelated matter that does not
fall into those categories: two paragraphs in a report written by about the events leading up to
defendant’s 2012 capture operation in Mexico. As proffered by the Government, those two paragraphs “opin[e] on
the amount of vigor and competence the Mexican government applied in its efforts to capture the defendant” and
opine that its “lack of effort may be due to the defendant’s ties to high-level officials.” Defendant has not objected
to this portion of the motion in limine and the Court does not see how it would be proper impeachment. The motion
is therefore granted as to this topic.
7
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does not diminish character for truthfulness or show bias against defendant. 4
into this incident – however minor it appears – could create an incentive for that officer to
testify in a certain way to please superiors. The underlying incident itself is not
inflammatory or unduly prejudicial, so defendant may properly inquire on how the open
witness who inadvertently produced to defendant notes that were not prepared or adopted
by and which defendant concede are irrelevant to this case. Defendant cites no
reason why the production of these notes or their contents bear on the witness’s
credibility or bias and therefore no reason why they should be permitted as impeachment
evidence.
4
Indeed, the Federal Rules of Evidence generally preclude evidence to show that “he’s done it before, he did it
again here.” See generally Fed. R. Civ. P. 404(b).
8
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SO ORDERED.
Digitally signed by
Brian M. Cogan
______________________________________
U.S.D.J.