Professional Documents
Culture Documents
February 1, 2019
By ECF
Pursuant to the Court’s order adopting the parties’ joint proposal for review of
sealed and redacted documents entered on the docket in this case, see Dkt. No. 557, the
government has reviewed the government filings identified with specificity in the letter of the
New York Times (Dkt. No. 536).
First, the government has determined that the considerations that previously
justified sealing docket entries 413, 421, 504, and 506 no longer apply – generally because the
cooperating witnesses identified or referenced in those entries have now been publicly revealed
– and those documents may therefore be unsealed in their entirety. The government asks the
Court to direct the clerk to unseal them and enter them on the public docket.
Second, with respect to docket entries 350, 354, 375, 396, 460, and 494, the
government hereby attaches those documents with partial redactions. These limited redactions
are necessary (1) to protect ongoing government investigations; (2) to protect operational
details about law enforcement operations and techniques, including details about witness
security programs; and (3) to protect cooperating witnesses who, although they testified
publicly at trial, have nonetheless taken steps to conceal their whereabouts and identities in
other parts of their lives. The government has previously set forth the legal bases for partial
sealing of these and other categories of information, and incorporates that discussion by
reference here. See Dkt. Nos. 404, 549. 1
1
With respect to docket entry 354, in particular, the government’s redactions are
consistent with the position the government previously articulated regarding redactions to that
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For the reasons set forth in the government’s prior submissions as well as in the
underlying documents themselves, the government submits that there is sufficient rationale for
the narrowly-tailored redactions to the docket entries attached hereto.
Respectfully submitted,
RICHARD P. DONOGHUE
UNITED STATES ATTORNEY
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
OF COUNSEL:
motion. See Dkt. No. 549 at 5-6. The government additionally notes that many of the
witnesses referenced in docket entry 354 did not ultimately testify at trial.
2
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U.S. Department of Justice
October 9, 2018
By ECF
Pursuant to its obligations under Giglio v. United States, 405 U.S. 150 (1972),
on October 5, 2018, the government disclosed information relating to the majority of its
cooperating witnesses. The government respectfully moves in limine to preclude cross-
examination of certain of the government’s witnesses as detailed below. 1
I. Legal Standard
1
The government anticipates that it may file additional motions to preclude
cross-examination of certain witnesses pursuant to Federal Rules of Evidence 608 and 609 in
advance of their testimony, including the witnesses for whom the government has delayed
disclosure of 18 U.S.C. § 3500 material until two weeks prior to their testimony.
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control . . . so as to . . . avoid wasting time[] and protect witnesses from harassment or undue
embarrassment”).
Federal Rule of Evidence 608(b) governs where a party seeks to elicit testimony
regarding specific instances of a witness’s conduct to attack the witness’s character for
truthfulness. See United States v. Peterson, 808 F.2d 969, 973-74 (2d Cir. 1987); see also
United States v. Cruz, 894 F.2d 41, 43 (2d Cir. 1990) (“Under Rule 608(b), the court has
discretion to permit or deny a line of inquiry on cross-examination.”). Rule 608(b) provides
in pertinent part:
Fed. R. Evid. 608(b). The advisory committee’s note to Rule 608(b) also notes that because
the “possibilities of abuse are substantial” in cross-examination, specific instances may only
be inquired into if they are probative of truthfulness, “not remote in time,” and not “outweighed
by danger of unfair prejudice, confusion of issues, or misleading the jury.” Fed. R. Evid. 608
advisory committee’s note.
2
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of undue delay, waste of time, or needless presentation of cumulative evidence.” United States
v. Figueroa, 548 F.3d 222, 229 (2d Cir. 2008); United States v. Devery, 935 F. Supp. 939, 407-
08 (S.D.N.Y. 1996) (“[E]ven if the prior act does concern the witness’s character for
truthfulness under Rule 608(b), its probative value must not be substantially outweighed by its
unfairly prejudicial effect under Rule 403.”); United States v. Brown, No. 07-CR-874 (KAM),
2009 WL 497606, at *4 (E.D.N.Y. Feb. 26, 2009).
United States v. Nelson, 365 F. Supp. 2d 381, 390 (S.D.N.Y. 2005) (quoting John W. Strong,
McCormick on Evidence § 41). As another court in this district has previously explained, “[i]f
all that can be said about behavior is that it might be called improper, immoral, or
unlawful . . . asking about it can not be justified under Fed. R. Evid. 608.” United States v.
Stone, No. 05-CR-401 (ILG), 2007 WL 4410054, at *1 (E.D.N.Y. Dec. 14, 2007) (internal
quotation marks and citation omitted).
II. Discussion
3
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to return to her home country and bribed a police official with $10,000 for his release. Mexican
authorities did not pursue charges.
Later, after CW1 reunited with his girlfriend (now wife), in or about 2009, she
became pregnant. When she stated that she intended to abort the pregnancy, CW1 threatened
to dissuade her by telling her that if she pursued an abortion she should consider herself dead.
Around the same time, CW1 sent BlackBerry Messenger messages to an associate stating that
he wanted to kill his wife after she gave birth over this issue. After one fight with his wife
related to this issue, CW1 asked the defendant for one of the defendant’s handguns. CW1
insists, however, that he was never serious about killing his wife. Eventually, CW1 sought
permission from the defendant to move to where his wife was living in Mexico to watch over
her to ensure that she did not terminate the pregnancy. His wife gave birth to the child and he
never attempted to harm her afterward.
After the birth of his child, CW1 had an argument with his wife (they had by
then been married) because he had sexually harassed the child’s babysitter. When confronted
by his wife, CW1 became upset and stopped talking to her.
Cooperating Witness No. 3 (“CW3”) has told the government that at one point
in approximately 1998-2000, he hit his then-wife in an argument and broke her cheekbone,
and that he had previously broken her nose during an altercation in approximately 1995-96.
Later, in approximately 2006 or 2007, he was involved in an altercation with a different wife
when he pulled her hair and grabbed her arm. The government has no indication that legal
charges were ever filed in relation to these incidents.
4
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Gambardella, No. 10-CR-674 (KBF), 2011 WL 6314198, at *1 n.1 (S.D.N.Y. Dec. 15, 2011)
(witness’s past domestic abuse is not probative of character for truthfulness).
2
Other cooperating witnesses corroborate the defendant’s actions in this regard.
5
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activity with young girls gave him “life.” The government does not plan to elicit or introduce
testimony related to these events.
Finally, CW1 was neither charged nor convicted with a crime in relation to this
sexual conduct, so Fed. R. Evid. 609—which allows, in certain circumstances, impeachment
of a witness by evidence of a criminal conviction—does not apply. Fed. R. Evid. 608(b), in
turn, would therefore only permit cross-examination into CW1’s sexual conduct if it is
“probative of [his] character for truthfulness or untruthfulness.” But the Second Circuit has
long held that past sexual misconduct, standing alone, does not bear on a witness’s propensity
to tell the truth. See United States v. Rodriguez, 648 Fed. Appx. 9, 11 (2d Cir. 2016) (“[T]his
Court has found that it is not an abuse of discretion to preclude questioning of prosecution
witnesses regarding sex crimes because such evidence has insufficient bearing on the witness’s
credibility.”); see also United States v. Rabinowitz, 578 F.2d 910, 912 (2d Cir. 1978)
(affirming trial court’s preclusion of cross-examination as to witness’s sexual acts with young
6
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children, noting that there was no “logical relevance” of those acts to the witness’s credibility).
The Court should therefore preclude the defense from cross-examining CW1 in this regard. 3
C. Unorthodox Interests
CW1 also has an interest in astrology and witch doctors. He has personally
availed himself of the services of a witch doctor on several occasions. On one occasion, CW1
observed the defendant consulting with a witch doctor from whom he obtained snake oils. The
government does not intend to elicit testimony about these topics.
These unorthodox interests and beliefs are not relevant and do not bear on either
the defendant’s guilt or innocence or on CW1’s veracity and credibility. They do not,
therefore, have any probative value, or at most only very slight value. Moreover, the only
conceivable purpose in eliciting testimony on these subjects would be to invite the jury to
improperly judge the witness based on his spiritual beliefs and interests. That invitation would
risk unfair prejudice, confusion of the issues, and unnecessary delay should the government
need to rehabilitate CW1 from the embarrassment caused by inquiring into these matters.
Given that the defense will be free to cross-examine CW1 about his involvement in the drug
trafficking and murder conspiracies in which he was involved with the defendant, the risk of
prejudice greatly outweighs any possible probative value. Cross-examination should therefore
be limited under Rules 401, 403, and 611. Moreover, to the extent that these interests reflect
3
If the Court should find that cross-examination of CW1 on this topic is proper,
the government submits that it should be permitted to elicit testimony from CW1 about his
involvement in this activity with the defendant, specifically. Omitting such a critical fact from
CW1’s testimony would be misleading to the jury, and such testimony is arguably probative
of the relationship of trust between the defendant and CW1. United States v. Kalaydijian, 784
F.2d 53, 56 n.3 (2d Cir. 1986) (evidence of defendant’s prior meeting with cooperating witness,
at which plan to purchase heroin was discussed, was properly admitted “to establish the basis
of the trust relationship between [cooperating witness] and [defendant]”); see also, Old Chief
v. United States, 519 U.S. 172, 183 (1997) (analyzing the admissibility of evidence and finding
the trial court should make its determinations “with an appreciation of the offering party’s need
for evidentiary richness and narrative integrity in presenting a case”).
7
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CW1’s religious beliefs, cross-examination is prohibited pursuant to Fed. R. Evid. 610, which
states that “evidence of a witness’s religious beliefs or opinions is not admissible to attack or
support the witness’s credibility.” The Court thus should grant the government’s motion to
limit cross-examination on these grounds.
First, the government expects that Cooperating Witness No. 4 (“CW4”) will
generally testify regarding his assistance in storing cocaine and marijuana for the Sinaloa
Cartel during the late 2000s. The government has disclosed a number of minor prior criminal
charges and convictions related to CW4 to the defense. Specifically, CW4 was arrested in
Texas in 1994 and charged with misdemeanor disorderly conduct, a charge to which he pleaded
guilty, after being arrested for running away from the police in a stolen vehicle. See Tex. Pen.
Code § 42.01 (disorderly conduct). CW4 was 17 years old at the time. CW4 was judged guilty
of a number of misdemeanor motor vehicle violations in 1999, including having an expired
license, an expired registration sticker, speeding, failure to maintain financial responsibility,
and failure to yield right of way. CW4 was 21 years old at the time, and was sentenced to five
days in jail (which amounted to time served). In 2007, CW4 was judged guilty of misdemeanor
public intoxication and ordered to pay a $101 cash bond. In 2010, CW4 pleaded guilty to a
charge of criminal nonsupport of his children. He owed his children’s mother $12,000, but
because he could only pay approximately half of that amount at the time, he spent
approximately six months in custody. In Texas, criminal nonsupport is a felony. Tex. Pen.
Code § 25.05.
Second, CW1 was involved in an incident in 1994 where he set fire to an area
behind a discotheque. Specifically, CW1 and a friend were denied entry to a discotheque
because the bouncer thought they were too intoxicated. In retaliation, CW1 and his friend
purchased gasoline and set a fire behind the building. No one was harmed, and no criminal
charges or civil claims were ever brought in relation to the incident.
Third, the government expects that Cooperating Witness No. 5 (“CW5”) will
generally testify at trial about his interactions with the defendant and his drug trafficking
activities on behalf of the defendant’s organization, which occurred from the mid-2000s
through the mid-2010s. The government has disclosed to the defense that in 2006 or 2007,
CW5 was involved in a motor vehicle accident in Mexico while operating a vehicle under the
influence of alcohol and cocaine. As a result of that incident, a civil judgment was entered
against CW5. CW5 was delinquent in the satisfaction of that civil judgment, although it was
eventually satisfied.
8
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609(a)(2) (“[F]or any crime regardless of the punishment, the evidence must be admitted if the
court can readily determine that establishing the elements of the crime required proving—or
the witness admitting—a dishonest act or false statement.”); see also United States v. Ashburn,
No. 11-CR-303 (NGG), 2015 WL 5098607, *24 (E.D.N.Y. Aug. 31, 2015) (granting
government motion to preclude cross-examination into misdemeanor convictions of witness)
(citing United States v. Hayes, 553 F.2d 824, 827 (2d. Cir. 1977) (“Congress emphasized that
[Rule 609(a)(2)] was meant to refer to convictions peculiarly probative of credibility, such as
those for perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or
false pretense, or any other offense in the nature of crimen falsi, the commission of which
involves some element of deceit, untruthfulness, or falsification bearing on the accused’s
propensity to testify truthfully.”)).
CW4’s felony conviction for criminal nonsupport of his children could only be
admissible pursuant to Rule 609(a)(1), which subjects its potential admission to a Rule 403
analysis. Rule 403 provides that the Court may exclude relevant evidence where its “probative
value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Here, given that his expected testimony is that he arranged for the
storage of drugs and weapons on behalf of the Sinaloa Cartel, and will undoubtedly be cross-
examined extensively regarding his criminal activity related to drug trafficking, the probative
value of CW4’s failure to pay child support is minimal. However, given that the offense
involved CW4’s own children, the risk of unfair prejudice is high. A number of district courts
have excluded evidence of a witness’s or a party’s failure to pay child support on similar
grounds. See, e.g., Watkins v. Genesee, No. 13-cv-13678, 2016 WL 727855, *5 (E.D. Mich.
Feb. 24, 2016) (granting motion in limine to exclude evidence of plaintiff’s failure to pay child
support where “relevance of such evidence to the issues to be tried is, at most, minimal and
the unfair prejudicial value of such evidence would be substantial”); Lauhoff v. Quality Corr.
Health Care, Inc., No. 5:14-cv-00614, 2016 WL 3618361, *4 (N.D. Ala. Jul. 6, 2016) (granting
motion in limine to exclude evidence of failure to pay child support); Perkins v. Fed. Fruit &
Produce Co., Inc., 945 F. Supp. 2d 1225, 1271 n.35 (D. Col. 2013) (same).
As for CW1’s 1994 act of arson behind a discotheque, Rule 609 does not apply
because it only applies to impeachment by evidence of a criminal conviction. CW1 was never
convicted or even charged in relation to the arson attempt. Thus, CW1 could be impeached
with the arson only pursuant to Rule 608(b). But Rule 608(b) permits cross-examination only
where instances of a witness’s conduct is probative of the witness’s character for truthfulness
or untruthfulness. See Fed. R. Evid. 608(b). Because an arson attempt is not probative of
truthfulness, cross examination should be limited. See Cruz, 894 F.2d at 43. Additionally, the
“remote[ness] in time” (i.e., 23 years ago) and the “danger of unfair prejudice [and] confusion
of issues” also merit limiting cross-examination on this topic. Fed. R. Evid. 608, advisory
committee’s note.
With respect to the civil judgment entered against CW5, Rule 609 does not apply
because the civil judgment is not a criminal conviction. Thus, pursuant to Rule 608, it may be
inquired into only if “probative of the character for truthfulness or untruthfulness of the
9
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6884
witness.” But the civil judgment against CW5 related to a motor vehicle accident and CW5’s
consumption of alcohol and cocaine; it is not a judgment stemming from fraud or other acts of
dishonesty. See Fed. R. Evid. 608 advisory committee’s note (noting that “possibilities of
abuse are substantial” with respect to cross-examination on particular instances of conduct,
and that “consequently safeguards are erected in the form of specific requirements that the
instances inquired into be probative of truthfulness or its opposite and not remote in time”);
see also Nibbs v. Goulart, 822 F. Supp. 2d 339, 341 (S.D.N.Y. 2011) (granting motion in limine
to preclude plaintiff from inquiring into or offering into evidence unrelated, prior lawsuits
against defendants, pursuant to Rules 402, 403, 404(b), 608 and 611). CW5’s civil judgment
should also be excluded on Rule 403 grounds, as the civil judgment is only marginally
probative at best of CW5’s credibility or the issues about which he will testify at trial, but risks
an “undue tendency to suggest decision on an improper basis” by inviting the jury to assess
CW5 based on a motor vehicle accident which occurred while he was under the influence.
Fed. R. Evid. 403, advisory committee’s note.
The government expects that the defense will cross-examine a number of the
government’s cooperating witnesses about murders and other acts of violence with which they
were involved during the time that they worked with the defendant and the Sinaloa Cartel. In
general, the government will not seek to preclude cross-examination as to these acts. The
government does seek to preclude cross-examination as to one attempted murder, however, in
order to minimize the risk of harm and retribution to a cooperating witness’s family, and to
limit the presentation of needlessly cumulative evidence pursuant to Rules 611 and 403.
10
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6885
therefore limit cross-examination pursuant to Rules 611 and 403. See Locascio, 6 F.3d at 949
(holding, in Brady/Giglio context, that where witness had “already confessed to numerous
crimes, including murders,” and was subject to cross-examination about them, there was no
error where defense was unable to cross-examine witness about additional murders); see also
Fed. R. Evid. 611(a)(3) (court may limit cross-examination to “protect witnesses from
harassment”).
The defense should be precluded from asking CW7 about the details of this
transaction, as any details are of only marginal relevance and slight probative value, at best.
The government does not object to defense cross-examining CW7 about the fact that his wife
received payment for writing Cartel Wives, and that she stands to make more money through
the sale of rights to the book for movie and television production. But inquiry into the specific
details of the sale of the rights to the production company would be protected by the
nondisclosure agreement, and it therefore would harm the contractual rights of both parties to
the nondisclosure agreement. Cross-examination could either lead CW7 to inadvertently
provide details in violation of the agreement, or require him to attempt to decline to answer
questions on that basis. In either case, there is a substantial risk of undue harassment of the
witness, which the Court may decline to permit pursuant to Rule 611, or misleading or
confusing the issues before the jury, which permits the Court to preclude the questioning under
Rule 403’s balancing test.
As for the other side of the Rule 403 balancing test, disclosure of details of the
sale of the rights to Cartel Wives would not advance any claim or argument of bias or
untruthfulness by CW7, as the defense will already be free to cross-examine CW7 about the
book itself and the potential for selling the rights to the story. The needless presentation of
cumulative evidence provides an additional reason to preclude cross-examination as to the
specific details of the sale of the rights to Cartel Wives. See Fama, 2012 WL 6094135 at *1.
11
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H. Cumulative Evidence
In addition to the reasons set forth above, the Court should preclude
cross-examination regarding the categories of evidence discussed herein because cross-
examination on these subjects would be cumulative of other impeachment evidence that the
defense is free to use in examining the credibility of the government’s witnesses. The Second
Circuit has repeatedly held that evidence offered to further impeach a “witness whose character
was already challenged at trial” is considered “cumulative” and may be excluded or otherwise
limited. United States v. Damblu, 134 F.3d 490, 494 (2d Cir. 1998); see also Locascio, 6 F.3d
at 949 (holding that new allegations involving credibility of government witness, which were
cumulative of information about which the witness was subject to cross-examination, would
not have materially affected the outcome of the case and did not warrant a new trial); Shabazz
v. Artuz, 336 F.3d 154, 166 (2d Cir. 2003) (“[W]here the undisclosed evidence merely
furnishes an additional basis on which to challenge a witness whose credibility has already
been shown to be questionable or who is subject to extensive attack by reason of other
evidence, the undisclosed evidence may be cumulative, and hence not material.”). In this case,
the government’s cooperating witnesses are likely to be cross-examined on a variety of topics,
including their own involvement with the defendant’s criminal enterprise, so the limits on
cross-examination that the government seeks in this motion relate to evidence which would
merely be cumulative, and granting the government’s motion will not materially limit the
defendant’s ability to cross-examine government witnesses.
III. Conclusion
For the foregoing reasons, the government respectfully moves under Rules 402,
403, 608, 609 and 611 to preclude various lines of cross-examination as detailed herein.
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Respectfully submitted,
RICHARD P. DONOGHUE
United States Attorney
Eastern District of New York
OF COUNSEL:
13
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U.S. Department of Justice
October 9, 2018
By ECF
The government respectfully submits this letter in connection with the trial in
the above-referenced matter. At trial, the government anticipates calling the following law
enforcement witnesses, among others: (1) Customs and Border Protection (“CBP”) Officer
; (2) Drug Enforcement Administration (“DEA”) Special Agent (“SA”)
Jr.; (3) DEA SA (4) Chicago Police Officer (5) DEA Senior
Forensic Chemist (6) CBP Officer (7) DEA Supervisory
Intelligence Research Specialist (“SIRS”) (8) CBP Officer
(9) SA of the Federal Bureau of Investigation (“FBI”); (10) FBI Evidence
Custodian ; and (11) DEA Special Agent Pursuant to its
obligations under Giglio v. United States, 405 U.S. 150 (1972), the government hereby notifies
the defendant of the incidents detailed below, for which certain of the witnesses received a
reprimand and/or disciplinary action. The government moves in limine to preclude
cross-examination about all of the disclosed incidents.
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A. CBP Officer
C. Retired DEA SA
2
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Officer advised the government that he was involved in the arrest of a distraught woman in
his precinct in the 1970s. After several warnings about the disruptive nature of her conduct,
officers in the precinct arrested the woman. The woman ultimately filed a civil suit against the
arresting officers. Officer states the civil suit was resolved when a jury found in Officer
favor. It should be noted that, in corroboration of Officer statements, there is no
mention of this incident in Officer’s police file.
G. CBP Officer
H. CBP Officer
3
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officer with the New York City Police Department (“NYPD”). In 1988, while an NYPD
officer, was on foot patrol when a man attempted to run over with his car.
A foot chase ensued between and the man, during which the man jumped into the
river and never came out. No charges were filed against and no grand jury was ever
convened to investigate the matter. A civil suit was filed against but it was
dismissed in 1994.
I. FBI SA
K. DEA Agent
4
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Trial courts have broad “discretion to permit or deny a line of inquiry on cross-
examination.” United States v. Cruz, 894 F.2d 41, 43 (2d Cir. 1990); see also United States v.
Lawes, 292 F.3d 123, 131 (2d Cir. 2002); Fed. R. Evid. 611(a) (“The court shall exercise
reasonable control over the mode and order of interrogating witnesses . . . .”). Pursuant to
Federal Rule of Evidence 608(b),
“Rule 608(b) is intended to be restrictive. . . . The rule does not authorize inquiry on cross-
examination into instances of conduct that do not actually indicate a lack of truthfulness.”
United States v. Nelson, 365 F. Supp. 2d 381, 386 (S.D.N.Y. 2005) (citing Jack B. Weinstein
& Margaret A. Berger, Weinstein’s Federal Evidence 608.22[2][c][1] (2d ed. 1997)). “[E]ven
if the prior act does concern the witness’s character for truthfulness under Rule 608(b), its
probative value must not be substantially outweighed by its unfairly prejudicial effect under
Rule 403.” United States v. Devery, 935 F. Supp. 393, 407-08 (S.D.N.Y. 1996); see also Fed.
R. Evid. 401 (“Evidence is relevant if: (a) it has a tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in determining the
action”); Fed. R. Evid. 403 (“Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless preparation
of cumulative evidence.”).
individual during traffic stop and not preparing required stop and frisk report, because such
allegations did not bear on witness’s credibility); United States v. Stone, No. 05 CR 401 (ILG),
2007 WL 4410054, at *1 (E.D.N.Y. Dec. 14, 2007) (precluding cross-examination concerning
a substantiated CCRB complaint regarding assault allegations because it was not “probative
of truthfulness or untruthfulness”); United States v. Laster, No. S1 06 CR 1064 (JFK), 2007
WL 2872678, *2 (S.D.N.Y. Sep. 28, 2007) (finding “no basis under Rule 608(b) for the
defense to cross-examine [government witness] regarding the CCRB complaint, the findings
of the CCRB, or the events that underlay the CCRB proceedings” where three-year-old
allegations were not relevant to instant case or to witness’s credibility).
As explained further below, the matters outlined above do not constitute proper
impeachment material pursuant to Federal Rule of Evidence 608(b) because none of them
relate to any of the issues to be resolved at trial, and they are not relevant to the witnesses’
capacity for truthfulness; and the prejudice to the witnesses outweighs the minimal probative
value of the evidence. Alternatively, even if the Court were to conclude there was some
relevance to these matters, they should nevertheless be excluded because their probative value
is substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403.
Therefore, the government respectfully moves for an order precluding defense counsel from
raising these matters on cross-examination or in argument.
A. CBP Officer
to the drug seizure that is the subject of his testimony. Therefore, the Court should also
preclude questioning about the reprimand under Rules 401 and 403.
C. Retired DEA SA
The matter for which SA was disciplined—namely, his being under the
influence of alcohol on duty, his unauthorized use of a government vehicle after consuming
alcohol, and his exercising poor judgment—do not constitute proper impeachment material.
First, this conduct post-dated the interaction that SA had with the defendant by
approximately seven years, and therefore his improper conduct is irrelevant to the instant case.
Thus, the Court should preclude questioning of SA concerning these actions under Rule
401. Second, the Court should not permit SA to be questioned about his actions, because
they do not relate to SA capacity for truthfulness and should be precluded under Rule
608. Moreover, his disciplinary records have little probative value of SA interaction
with the defendant, yet it would be overly prejudicial to the witness. Thus, Rule 403 justifies
preclusion of cross-examination.
The Court should preclude questioning of Officer about the incident with
the distraught woman under Rule 403, as being overly prejudicial. There was never a
determination that Officer engaged in any inappropriate conduct and the only reason to
raise the issue would be to embarrass the witness and prejudice the jury against him. This line
of questioning would be unfair to Officer and it would require a trial within a trial to
explain the appropriateness of his conduct. See Rickets 74 F.3d 1414. Moreover, the incident
occurred at least two decades before the seizure at issue in this case. Therefore, the incident
has no relevance to the officer’s testimony in this case and questioning should be precluded
under Rules 401 and 403. Finally, the arrest incident does not relate to Officer capacity
for truthfulness, and the Court therefore should preclude questioning under Rule 608.
E. Forensic Chemist
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As with Officer the matters for which DEA SIRS was charged—
namely, being a minor in possession of alcohol—does not constitute proper impeachment
material, because it bears no relation to capacity for truthfulness. Also, these events
do not bear any relevance to testimony in this case, as these incidents occurred prior
to him ever becoming a DEA SIRS. Thus, the Court should preclude any questioning on this
topic under Rules 608, 401 and 403.
G. CBP Officer
Additionally, the open investigation into Officer badge being stolen from
his vehicle should also be precluded as there have been no substantiated charges arising from
this alleged conduct. See United States v. Stone, 2007 WL 4410054, at *1 (E.D.N.Y. Dec. 14,
2007) (holding that unsubstantiated CCRB complaints in which the testifying NYPD witness
was accused of conducting an unauthorized search, being rude, and punching an individual
were not “probative or truthfulness or untruthfulness”).
H. CBP Officer
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I. FBI SA
As with Officer and SIRS the matters for which FBI employee
received a ticket—namely, being a minor in possession of alcohol—does not
constitute proper impeachment material, because it bears no relation to capacity for
truthfulness. Also, these events do not bear any relevance to testimony in this case,
as these incidents occurred prior to him ever becoming a CBP Officer. Thus, the Court should
preclude any questioning on this topic under Rules 608, 401 and 403.
K. SA
IV. Conclusion
For the foregoing reasons, the Court should preclude argument and cross-
examination of the above-listed witnesses, on the topics described above.
V. Sealing is Appropriate
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6898
application describe the sealed information in question with particularity, rather than in
general, the government likewise requests that those portions of the order be filed under seal.
Respectfully submitted,
RICHARD P. DONOGHUE
UNITED STATES ATTORNEY
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
OF COUNSEL:
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U.S. Department of Justice
By ECF
The government respectfully submits this letter in connection with the trial in
the above-referenced matter. Concurrently with this letter, and pursuant to its obligations
under Giglio v. United States, 405 U.S. 150 (1972), the government has notified the defendant
by separate letter of information related to certain potential government witnesses. In this
letter, the government moves in limine to preclude cross-examination about certain of the
disclosed information and for a limiting instruction related to court-imposed sentences on the
government’s cooperators. Additionally, for purposes of streamlining its case, the government
has elected not to proceed on certain violations charged in Count One of the Indictment as well
as several additional counts in the Indictment, which are outlined below.
A. Legal Standard
control . . . so as to . . . avoid wasting time[] and protect witnesses from harassment or undue
embarrassment”).
Fed. R. Evid. 608(b). The advisory committee’s note to Rule 608(b) also notes that because
the “possibilities of abuse are substantial” in cross-examination, specific instances may only
be inquired into if they are probative of truthfulness, “not remote in time,” and not “outweighed
by danger of unfair prejudice, confusion of issues, or misleading the jury.” Fed. R. Evid. 608
ad. comm. note.
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is “admissible only if its probative value, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect.” Fed. R. Evid. 609(b).
B. Discussion
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Even if admissible under Rule 608(b), domestic violence instances should also
be excluded under Rules 403 and 611. The instances of abuse could mislead and confuse the
jury, and risk unfair prejudice by inviting the jury improperly to judge the witnesses’ credibility
based on the jurors’ views of domestic violence rather than a proper assessment of the
witnesses’ truthfulness. See Fama, 2012 WL 6094135 at *1 (holding that domestic violence
allegations against witness are excludable in Rule 403 analysis because any probative value is
outweighed by “unfair prejudice that could result if the jury were to focus on the purported
instances of abuse rather than [the witness’s] testimony about the bank robbery”); see also
United States v. Jeffers, 402 Fed. Appx. 601, 603 (2d Cir. 2010) (“Moreover, even if the
1
The government continues sequentially here the numbering of cooperating
witnesses from its first motion to preclude cross-examination of cooperating witnesses. See
Dkt. No. 350.
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alleged abuse was somehow relevant to Hick’s motivation for testifying, which is not clear,
the district court did not abuse its discretion in concluding that any probative value was
substantially outweighed by unfair prejudice and the need for a mini-trial on domestic
disputes.”).
2. Prior Arrests
The government previously disclosed to the defendant that CW7 was arrested
in 1999 for misdemeanor criminal trespass of a vehicle and in 2000 for misdemeanor domestic
battery/bodily harm. In the former arrest, CW7 was operating a family member’s vehicle with
that family member’s consent when he was pulled over and arrested for driving what the police
initially believed had been a stolen vehicle. The charges were ultimately dropped. In the latter,
CW7 was attacked by a family member in a shopping mall, then pushed the family member
away to escape from the situation, and did not learn until some time later when the family
member decided to press charges and accuse him of domestic battery. This charge was also
dropped. As CW7 was not convicted of either crime, Rule 609 does not apply, and extrinsic
evidence of the crimes cannot be admitted. Nor should the defendant be allowed to cross
examine the witness about the conduct under Rule 608, as the conduct underlying the two
arrests is not “probative of the character for truthfulness or untruthfulness of . . . the
witness.” Fed. R. Evid. 608. This is particularly the case given the fact that 19 and 18 years,
respectively, have passed since the arrests. See Fed. R. Evid. 608 advisory committee’s
note. The Court should preclude the defendant from questioning CW7 about these two arrests.
The government previously disclosed to the defendant that CW3 was arrested
for drunk driving in Mexico. In approximately 1988-1990, CW3 got into a car accident, while
he was high on cocaine and drunk. The defendant’s girlfriend suffered a minor head injury
after the car spun out of control. CW3 was arrested, but the case was dismissed. He believes
that his mother may have paid the prosecutor a bribe, but does not recall for certain. In
approximately 1990 to 1993, as CW 3 was driving home, he was drunk and high on cocaine.
He ran multiple red lights and a pickup truck crashed into his car. The man driving the pickup
truck fractured his arm. CW3 was arrested, but the case was dismissed after he paid the
prosecutor a bribe of approximately $300 to $500. Pursuant to Rule 608, the nature of these
arrests may be inquired into only if “probative of the character for truthfulness or
untruthfulness of the witness.” But CW3’s consumption of alcohol and cocaine is not a bad
act related to fraud or other acts of dishonesty, and conduct related thereto should be excluded.
See Fed. R. Evid. 608 advisory committee’s note (noting that “possibilities of abuse are
substantial” with respect to cross-examination on particular instances of conduct, and that
“consequently safeguards are erected in the form of specific requirements that the instances
inquired into be probative of truthfulness or its opposite and not remote in time”). The arrests
also should also be excluded on Rule 403 grounds, as they do not bear on CW3’s credibility
or the issues about which he will testify at trial, but risk an “undue tendency to suggest decision
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on an improper basis” by inviting the jury to assess CW3 based on the accidents which
occurred while he was under the influence of drugs and alcohol. Fed. R. Evid. 403 advisory
committee’s note.
Similarly, the government previously disclosed that CW1 was arrested for
assaulting a cab driver in the early 2000’s. Specifically, when CW1 realized that his cab driver
was driving in the wrong direction, CW1 choked the driver to make him pull over. As a result,
several of the cab driver’s friends appeared and beat up CW1; they all ended up in jail.
Subsequently, CW1’s brother’s partner arranged for CW1 to be released from jail. Because
CW1 was not convicted of a crime arising from this incident, it is not admissible under Rule
609. Pursuant to Rule 608, the nature of these arrests may be inquired into only if “probative
of the character for truthfulness or untruthfulness of the witness.” Similarly, because it
involves an act of violence, it does not bear on CW1’s character for truthfulness and thus
should not be a basis for cross-examination under Rule 608(b). See Brown, 2009 WL 497606,
at *3 (citing United States v. Flaharty, 295 F.3d 182, 191 (2d Cir. 2002); United States v.
Turcotte, 515 F.2d 145, 151 (2d Cir. 1975)).
Between 2001 and 2005, CW9 made a $3.5 million personal loan to one of his
friends from his teenage years, who had also worked with him in the drug trafficking business
in the past. The friend had not yet fully repaid CW9 when he was arrested and sent to prison
in the United States. The friend continued to promise CW9 that he would repay this loan, even
after CW9 had surrendered to authorities in the United States and was living here. However,
CW9’s friend fell ill with leukemia without completing repayment of the loan. Prior to dying,
CW9’s friend promised to repay the loan because he knew it was personal money CW9 had
saved for his family. After his friend’s death, CW9 approached his friend’s widow about
repaying the loan, because he was in need of the money to support his family in the United
States. CW9’s Colombian defense attorney at the time was dating CW9’s widow. 2 CW9’s
attorney tried to avoid having the widow repay the loan by complaining to CW9’s handling
agent. Around the same period, CW9’s new U.S. based attorney contacted CW9’s handling
agent to alert him to this situation. CW9’s handling agent looked into the matter and
determined that CW9 had not done anything improper and, in fact, the loan was personal in
nature.
The Court should preclude cross-examination into CW9’s efforts to collect this
personal loan because it is not probative of truthfulness under Rule 608, and does not relate to
2
Notably, CW9’s Colombian defense attorney had represented himself to be a
U.S.-qualified attorney; that was not true.
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drug trafficking, and thus is not relevant to the defendant’s guilt or other issues before the
court, see Maldonado-Rivera, 922 F3d. at 956; see also Fed. R. Evid. 611. Furthermore,
because this instance of conduct involves CW9 continuing to collect a loan from a friend after
he passed away, some jurors may find this off-putting; it thus should be precluded under Rule
403. Given that the probative value of this instance of conduct is virtually non-existent, its
“probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues . . . , or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Figueroa, 548 F.3d at 229.
4. Accidental Death
Cross-examination into this incident should be precluded under Rules 608, 403,
and 611. No criminal conviction resulted from this instance, so Rule 609 does not apply.
Cross-examination about this incident could therefore only be permitted pursuant to Rule
608(b). But as noted above, a district court nonetheless enjoys “broad discretion” to impose
limits on cross-examination. Rivera, 971 F.2d at 886. Rule 608(b), moreover, is “intended to
be restrictive” and “does not authorize inquiry on cross-examination into instances of conduct
that do not actually indicate a lack of truthfulness.” Nelson, 365 F. Supp. 2d at 386. Here,
although CW1 left the scene of the accident, he nonetheless sought out the family of the victim
and took financial responsibility for the accident. Testimony about CW1’s involvement in the
death of a 10-year-old girl is highly inflammatory, and it would invite the jury to improperly
discount CW1’s testimony by “suggest[ing] decision on an improper bias, commonly, though
not necessarily, an emotional one.” Fed. R. Evid. 403 advisory committee’s note. The highly
prejudicial nature of this testimony far outweighs the marginal probative value that CW1’s
accidental killing of a young girl in a car accident could possibly have. Additionally, this
incident occurred 32 years ago. Considering the “remote[ness] in time” and the “danger of
3
The government did not know about this incident until CW1 disclosed it to the
government on April 13, 2016, almost two years prior to his guilty plea. A report dated April
13, 2016, notes that the defendant’s family paid officials in connection with this incident. CW1
subsequently clarified that this was incorrect—it was the victim’s family who received a
payment from his family, not officials.
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unfair prejudice [and] confusion of issues” that is likely to result, cross-examination on this
topic should be limited. Fed. R. Evid. 608, advisory committee’s note.
To the extent the Court views CW1’s payment to the victim’s family as a
payment to avoid liability, whether it be civil or criminal, the Court should nonetheless
preclude cross-examination regarding this incident. Cross-examination on this particular
subject would be cumulative of other impeachment evidence that the defense is free to use in
examining the credibility of CW1. For example, the government anticipates that CW1 will
testify about multiple instances in which he either assisted in bribing government officials, or
government officials were bribed on his behalf. United States v. Damblu, 134 F.3d 490, 494
(2d Cir. 1998); see also United States v. Locascio, 6 F.3d at 949 (holding that new allegations
involving credibility of government witness, which were cumulative of information about
which the witness was subject to cross-examination, would not have materially affected the
outcome of the case and did not warrant a new trial); Shabazz v. Artuz, 336 F.3d 154, 166 (2d
Cir. 2003) (“[W]here the undisclosed evidence merely furnishes an additional basis on which
to challenge a witness whose credibility has already been shown to be questionable or who is
subject to extensive attack by reason of other evidence, the undisclosed evidence may be
cumulative, and hence not material.”). Therefore, given the highly prejudicial and cumulative
nature of this testimony, the Court should preclude it from cross-examination.
5. Mental Health
Permitting the defense to cross-examine this witness in detail about his mental
health issues could only serve to unfairly prejudice the jury and risk confusing the issues.
When weighed against the minimal probative value of mental health issues that did not exist
during the time of the witnesses’ interactions with the defendant, these risks justify limiting
inquiry on these subjects pursuant to Rule 403. Indeed, the Second Circuit has held that
evidence related to a witness’s psychological history may properly be limited on Rule 403
grounds even where the issues in question overlapped with the time about which the witness
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was to testify. See United States v. Sasso, 59 F.3d 341, 348 (2d Cir. 1995) (“In assessing the
probative value of [psychological] evidence, the court should consider such factors as the
nature of the psychological problem, the temporal recency or remoteness of the history, and
whether the witness suffered from the problem at the time of the events to which she is to
testify . . .”); Davidson v. Smith, 9 F.3d 4, 7 (2d Cir. 1993) (affirming district court ruling that
evidence of the plaintiff’s psychiatric institutionalization 15 years prior should be excluded
under Rule 403). In this case, the witness’s mental health issues did not occur during the time
of the events about which he will testify, they are not of a nature that would call into question
the veracity of his testimony and are temporally remote. The Court thus should preclude cross-
examination on these topics.
Specifically, the government has disclosed to the defendant that more than six
years ago, CW10
As a result of his
frustration, CW10 stated the that he wanted to contact 60 Minutes, Univision and anyone else
he could reach to detail his complaints about He also indicated that he intended
to provide all of the contact numbers and details that he had, as well as information
about his to the Sinaloa Cartel so that they could compromise the
operations of the CW10 believed that if he provided this information to the cartel,
he would no longer be a target for killing or other retribution. He also indicated that he no
longer intended to cooperate with the government in ongoing cases. More than two years later,
largely the same issue reoccurred.
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Cross-examination into these topics may properly be limited because they are
not legally relevant to the issues before the jury. See Thomas, 377 F.3d at 241. Additionally,
any slight probative value inherent in examination of CW10’s frustrations with
and the conclusions of that CW10 had been deceptive is outweighed by
the danger of unfair prejudice, unnecessary delay and confusing the issues before the jury. See
Fed. R. Evid. 403. In particular, the jury may interpret CW10’s actions as
The jury may also give undue weight to CW10’s threats, never carried out, to
provide information about to the Sinaloa Cartel. The risk of confusion on this
front justifies precluding cross-examination into these matters under Rules 403 and 611. See
Figueroa, 538 F.3d at 229.
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CW10, like two other cooperating witnesses who are expected to testify
following him at trial, already has been sentenced. Because sentencing is a judicial
determination based on many factors, the defendant’s questions and arguments based on a
cooperating witness’s sentence may mislead the jury into believing that the government
selected and imposed a cooperating witness’s sentence. To avoid any such confusion, the
government therefore moves for a limiting instruction following CW10’s testimony regarding
judicially imposed sentences.
The government requests that the Court give the same instruction that it gave in
United States v. Cacace, No. 08-CR-240 (S-7)(BMC). There, the Court instructed the jury as
follows:
Ladies and gentlemen, let me explain to you a little bit about how
federal sentencing works, particularly with regard to cooperating
witnesses. When someone cooperates with the government the
government does not determine what sentence they are going to
get. Nor does the government [typically] make a recommendation
to the sentencing judge as to how much time they’re going to get.
What the government will do, if it is satisfied with the level of
cooperation, is write to the sentencing judge what is known as a
5k1 letter. That sets forth the nature of the crimes that the
defendant has committed and all the cooperation that the
defendant has undertaken. The judge takes that letter, together
with a lot of other information about the defendant and all of the
crimes that he’s committed, and it is the judge exclusively that
decides upon the appropriate sentence; not the government.
So all that a cooperating witness gets from the government, if the
government is satisfied with their cooperation, is this 5k1 letter.
I won’t tell you that the 5k1 letters aren’t important to sentencing
judges, they generally are, but it is the judge’s decision and only
the judge’s decision as to what the sentence should be.
Trial Tr. dated Mar. 20, 2012 at 327:15-328:12.
In an effort to streamline its case, the government has determined that it will not
proceed on the following violations charged in Count One and listed in its bill of particulars
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dated May 11, 2018, see Dkt. No. 227: Violations 13-69, 71, 73-75, 79-80, 90, 92, 94. The
government also will not proceed on Counts Five through Nine and Eleven of the Indictment.
For ease of reference for the jury, should the Court elect to send the Indictment to the jury
during its deliberations, the government requests that the Court submit the Indictment with the
Counts and violations re-numbered without altering the substance of the violations and Counts
themselves. The government further requests that the Court consecutively number the Counts
and violations in the verdict sheet.
Here, renumbering the Indictment would not constitute the government is not
making changes to any factual allegations or altering the substance of any of the charges on
which it will proceed; rather, it would involve deleting and re-numbering portions of the
Indictment in order to prevent confusion for the jury. None of these alterations affects the
charging language of the Indictment and none of the changes alters the essential elements of
the charged offenses. Moreover, since the defendant is receiving notice of the deletions and
renumbering in advance of the trial, he cannot claim surprise or unfair prejudice.
IV. Conclusion
For the foregoing reasons, the Court should preclude argument and cross-
examination of the above-listed witnesses, on the topics described above.
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Thus, partial sealing is warranted because of the concerns regarding the safety
of potential witnesses and their families, and the danger posed by disclosing the potential
witnesses’ identities and their cooperation with the government. See United States v. Amodeo,
44 F.3d 141, 147 (2d Cir. 1995) (need to protect integrity of ongoing investigation, including
safety of witnesses and the identities of cooperating witnesses, and to prevent interference,
flight and other obstruction, may be a compelling reason justifying sealing); see Feb. 5, 2018
Mem. & Order Granting Gov’t Mot. for Anonymous and Partially Sequestered Jury, Dkt. No.
187 at 2-3 (concluding that defendant’s actions could pose risk of harm to cooperating
witnesses). As the facts set forth herein provide ample support for the “specific, on the record
findings” necessary to support partial sealing, Lugosch v. Pyramid Co., 435 F.3d 110, 120 (2d.
Cir. 2006), the government respectfully requests that the Court permit the government to file
this motion to limit cross-examination partially under seal. Should any order of the Court
regarding this application describe the sealed information in question with particularity, rather
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than in general, the government likewise requests that those portions of the order be filed
under seal.
Respectfully submitted,
RICHARD P. DONOGHUE
UNITED STATES ATTORNEY
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
OF COUNSEL:
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U.S. Department of Justice
By ECF
The government respectfully submits this letter in response to the Court’s order,
see Dkt. No. 390 (the “Order”), granting and denying certain of the government’s second set
of motions in limine, see Dkt. No. 326, to proffer additional factual detail to the court in regard
to several issues.
A. Factual Background
The government provides the following additional factual proffer regarding the
2001 escape. Although perhaps not as technologically sophisticated as the 2015 escape, which
involved a mile-long tunnel dug directly to the defendant’s prison cell, the 2001 escape
nonetheless relied upon a willing network of co-conspirators and substantial advance planning
to aid the defendant’s efforts to escape from prison. The escape was not one of chance or spur-
of-the-moment opportunity, but was planned and aided by the defendant’s associates.
Once CW9 began working at the prison, the defendant paid him bribes to
persuade CW9 to keep corrupt guards in place so that the defendant could continue reaping
the benefits of his corrupt bargain. To that end, the defendant gifted CW9 a house in
Guadalajara, which he later sold for just under 2 million pesos (approximately $102,000 U.S.
dollars), and approximately 200,000 to 300,000 pesos in cash (approximately $10,000 to
$15,000 U.S. dollars).
With respect to the escape itself, the defendant bribed several people on the
inside of the prison to facilitate elements of the escape. CW9 and Cooperating Witness No. 6
(“CW6”) will testify that the defendant bribed the guards who controlled the doors, the guard
who controlled the security cameras, the guard who lifted the barrier leading to the outside of
the prison, and “Chito,” the maintenance worker who pushed the laundry cart. The government
expects CW9 to testify that these bribes were payed “outside” of the prison by an attorney for
the defendant, further demonstrating the defendant’s network of corrupt associates.
1
The government continues its numbering sequentially from the second set of
motions in limine.
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Even once outside of the prison walls, the defendant’s escape was not yet
complete. The defendant required the assistance of additional coconspirators and substantial
resources to fully escape the reach of law enforcement. According to CW6, the defendant’s
co-conspirator Mayo Zambada orchestrated the delivery of an armored Volkswagen Jetta near
to the prison, which was driven by another criminal associate of the defendant, to permit the
defendant to drive or be driven under the cover of night to Tepic, Nayarit, the state adjacent to
Jalisco, where the prison was located. According to Cooperating Witness No. 10 (“CW10”),
once the defendant was in Nayarit, the defendant’s criminal associates, including Mayo
Zambada, learned that law enforcement was closing in on the defendant and recognized that
he needed another means to continue his flight from justice. The government expects CW10
to testify that Mayo Zambada sent his helicopter pilot, Patricio Estolano, to fly to the mountains
of Nayarit to help the defendant evade law enforcement capture. CW10 will further testify
that when the helicopter landed, Mayo Zambada, CW10 and a small security detail drove the
defendant to Mexico City, where he hid for a period of time. This particular event was the
occasion on which CW10 first met the defendant face-to-face. The government anticipates
that CW10 will also testify that in the immediate aftermath of the defendant’s escape from
Puente Grande, CW10 and Mayo Zambada used their corrupt connections at all levels of
government to receive information about planned capture operations against the defendant,
who was now a fugitive from justice.
All of these events took place within days of the laundry cart incident, and were
critical in ensuring that the defendant could continue his criminal activity by avoiding further
incarceration and the possibility of extradition to the United States. Additionally, testimony
from several cooperating witnesses will show the means by which Mayo Zambada was able to
mobilize the cartel’s resources to assist the defendant in escaping the prison, and cooperating
witnesses will testify that within a few weeks of the escape, the full partnership between the
defendant and Zambada—which characterized their relationship throughout the 2001 to 2016
period—took root. The escape and Zambada’s efforts to assist the defendant, therefore, were
instrumental in cementing the relationship of trust and mutual reliance between the defendant
and Zambada, and allowed the enterprise to flourish to unprecedented heights from 2001 until
the defendant’s ultimate re-capture in 2016.
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B. Analysis
The fact that the defendant was able to make these arrangements to escape and
avoid re-capture by law enforcement in its immediate aftermath is probative of the substantial
income derived from the charged CCE. See Order at 6. As courts across the country have
held, there is no threshold amount required to establish the “substantial income” prong of CCE.
See, e.g., United States v. Losada, 674 F.2d 167, 173 (2d Cir. 1982) (concluding that even a
net income of $2,000 could suffice on particular facts of case, as “neither the statute nor the
cases establish a minimum amount of ‘income or resources’ required to make [21 U.S.C. §]
848 applicable”). Additionally, the “substantial income” prong may be established
circumstantially, as by evidence of a defendant’s “position” in an enterprise, and by the
defendant’s “level of operation.” United States v. Ayala, 769 F.2d 98, 102 (2d Cir. 1985).
Additionally, in light of the fact that the government will, pursuant to the Court’s
ruling, introduce evidence of the defendant’s ongoing drug trafficking while in prison from
1993-2001, evidence of the 2001 escape is “necessary to complete the story of the crime on
trial” and is therefore alternatively admissible as “inextricably intertwined” with evidence of
2
The fact that the defendant received aid from and promptly returned to work
with other co-conspirators following his escape is also probative of the CCE element that he
worked “in concert” with five or more other persons in relation to the continuing series of
violations which comprise the defendant’s CCE. 21 U.S.C. § 848(c)(2)(A).
4
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his crimes. United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (internal quotation marks
and citation omitted). See also Dkt. No. 213 at 31-33. Without evidence of the 2001 escape,
the jury will have no context for understanding how the defendant went from drug trafficking
while in prison, to expanded trafficking outside of prison in the 2000s, to being the subject of
fugitive capture operations in 2012 and 2014. And, in particular, the jury would not hear
evidence explaining the genesis of the defendant’s significant relationship with Mayo
Zambada, whose efforts to assist the defendant in escaping and whose role in helping the
defendant return to the cartel were crucial in establishing the defendant’s position as a principal
leader of the Sinaloa Cartel and major trafficker. See also United States v. Escalera, 536 Fed.
App’x 27 (2d Cir. 2013) (even where not “inextricably intertwined,” a district court has
discretion to admit uncharged conduct as “background to the conspiracy, helping the jury
understand how the illegal relationship among the participants developed, and how [a
defendant’s] role in the conspiracy evolved”).
Finally, as set forth in the government’s prior briefing, evidence of the 2001
escape demonstrates the defendant’s consciousness of guilt of the crimes charged. As the
government expects CW6 and CW9 to testify, the defendant himself told his associates that he
had been motivated to escape because he believed he would be extradited to the United States
to face charges here. As the government has explained in previous briefing, evidence of flight
that demonstrates consciousness of guilt can be admissible as direct evidence of the crimes
charged. See Dkt. No. 213 at 34-36. See also United States v. DeSimone, 699 F.3d 113, 125
(1st Cir. 2012) (admitting evidence of escape as probative of consciousness of guilt where
defendant escaped prison after learning that he was under investigation for separate, previously
uncharged offenses). 3
In its Order, the Court denied without prejudice to renewal the government’s
motion to limit dissemination of photographs and sketches of cooperating witnesses. See
Order at 13-14. The Court explained that, with respect to photographs, the government must
identify the specific photographs and exhibits at issue before the Court can make a ruling. See
id. at 14. With respect to courtroom sketches, the Court explained that the government would
be permitted to make a factual proffer to the Court prior to a particular witness taking the stand
3
The escape is alternatively admissible as Rule 404(b) evidence to show the
defendant’s “opportunity, intent, preparation, [and] plan” to commit the charged CCE. See
Dkt. No. 213 at 36-38; see also Order at 6 (“[E]vidence of these three events is admissible
under FRE 404(b) to show defendant’s opportunity to commit the charged crimes.”).
5
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to explain the specific safety concerns faced by that witness, in order to determine whether to
prohibit sketching of that witness. See id.
The government may raise additional factual proffers during trial as necessary,
but provides additional factual detail here for two cooperating witnesses in order to permit the
Court to make an advance ruling. In light of the unique security concerns associated with these
witnesses, which the government has detailed for the Court in a separate ex parte submission
submitted simultaneous with this briefing (the “Fifteenth Ex Parte Submission”), the
government requests a pretrial ruling from the Court that it may redact or pixilate eight
photographs that the government intends to introduce as evidence at trial. It further requests a
pretrial ruling that courtroom sketch artists may not draw and disseminate the faces of these
two witnesses.
The government is not aware of any recent photographs of CW5 that are public,
and CW5 has no social media presence. The government is aware that the seventh photograph
described above has been published on the internet by at least one foreign internet site;
however, the photograph was not linked to CW5’s name, and it has not been widely circulated.
For the reasons discussed in the government’s Fifteenth Ex Parte Submission, the broad
dissemination of CW5’s photograph or sketch in the media would raise significant security
concerns. Moreover, the possibility that CW5’s photograph or sketch may be circulated
following CW5’s testimony would put undue stress on CW5 and CW5’s family members
leading up to CW5’s testimony in light of the security risks that they would face if CW5’s
image is disseminated. The government thus requests that the Court issue a pretrial ruling
permitting the government to pixilate or redact the photographs in which CW5 is depicted and
prohibiting CW5’s sketch from being drawn during trial.
6
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See Dkt. No. 240 at 11. The government is not aware of any
public photographs of CW11. Indeed, given the security risks that he faces, CW11 has no
social media presence. Thus, the broad dissemination of CW11’s image would
likely permitting members of the
press, the public and the Sinaloa Cartel to discover his true identity. Moreover, as with CW5,
the possibility that CW11’s photograph or sketch may be circulated following CW11’s
testimony would put undue stress on CW11 and CW11’s family members leading up to
CW11’s testimony in light of the security risks that they would face if CW11’s image is
disseminated. In light of the security concerns discussed in the government’s Fifteenth Ex
Parte Submission, the government requests that the Court issue a pretrial ruling permitting the
government to pixilate or redact the photographs in which CW11 is depicted and prohibiting
CW11’s sketch from being drawn during trial.
III. Present Sense Impressions and Excited Utterances in 2015 Prison Surveillance Video
The Court has ruled that the statements of law enforcement officers and
journalists in several of the videos that the government intends to introduce at trial are not
admissible as “present sense impressions” or “excited utterances.” See Order at 12. The Court,
however, did not issue a ruling with respect to the statements made by prison officials during
surveillance footage of the defendant’s escape from prison. As described below, those
statements qualify as excited utterances and present sense impressions. The government thus
requests that the Court rule these statements are admissible.
As set forth in Exhibit G-1 to the government’s second motions in limine, see
Dkt. No. 326, the audio in the video contains a conversation between a prison guard and a
supervisor or chief. 4 As the guard and other prison staff are scrambling to determine why the
defendant’s cell is empty, the guard—in real time and as he observes it—calls out the
defendant’s name to determine if he is in the cell and then reports to his chief that there was a
“hole in the shower,” that the hole is “big,” and that the “person” is not present in the cell.
4
Since filing its second motions in limine, the government has finalized the
transcription and translation of the video. That transcript is attached hereto as Exhibit B.
7
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The statements of the first guards to arrive at the defendant’s empty cell,
describing the “event or condition [] while the declarant was perceiving the event or
condition.” Order at 12 (citing Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004)). These
contemporaneous statements of the guards are the first observations of the defendant’s startling
and dramatic escape. They should therefore be admissible under the present sense impression
and excited utterance exceptions to the rule against hearsay.
The government acknowledges that the Court has ruled that evidence that the
defendant raped a cooperating witness, thereafter beginning a romantic relationship with her
and drawing her into his criminal enterprise, is precluded pursuant to Rule 403. See Order at
4. The government asks that the Court confirm that the defendant will also not be permitted
to elicit testimony or otherwise introduce evidence of the rapes, which he might do in an
attempt to show bias on the part of the cooperating witness.
V. Conclusion
For the foregoing reasons, the Court should grant the government’s motions in
limine with respect to the evidence described above.
8
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harm to cooperating witnesses). As the facts set forth herein provide ample support for the
“specific, on the record findings” necessary to support partial sealing, Lugosch v. Pyramid Co.,
435 F.3d 110, 120 (2d. Cir. 2006), the government respectfully requests that the Court permit
the government to file these motions in limine under seal. Should any order of the Court
regarding this application describe the sealed information in question with particularity, rather
than in general, the government likewise requests that those portions of the order be filed under
seal. 5
Respectfully submitted,
RICHARD P. DONOGHUE
UNITED STATES ATTORNEY
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
OF COUNSEL:
5
The government will publicly file a redacted copy of this motion, once the
Court unseals the Order. See Dkt. No. 390.
9
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GMP:BCR
F.#2009R01065/OCDETF# NY-NYE-616
Defendant.
----------------------------------X
RICHARD P. DONOGHUE
UNITED STATES ATTORNEY
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
OF COUNSEL:
ARIANA FAJARDO ORSHAN
United States Attorney
Southern District of Florida
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PRELIMINARY STATEMENT
related to a government agent’s email describing his personal opinions and characterization of
the defendant; (2) preclude the defense from introducing irrelevant, self-serving portions of
the defendant’s statements made in 1998 to United States law enforcement agents; (3) preclude
unsuccessful public authority defense in his own case; (4) preclude the introduction of
regarding information that the government was obliged to provide to him by the government
These motions relate to issues that the defendant raised in his opening statement,
have arisen during the course of trial so far, or were only recently discovered by the
government in the course of preparing for trial. They could not, therefore, have reasonably
For the reasons set forth herein, the Court should grant the government’s
motions in limine.
2
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ARGUMENT
a Homeland Security Investigations (“HSI”) agent offering his personal opinions and
characterizations about the defendant and a year-long wiretap investigation in which the agent
participated. See 11/13/18 Tr. 597:11-16. During the break in the opening statement, the
government objected that this was inadmissible hearsay. See id. at 593:14-17. As the Court
explained in providing its initial view of the issue at that time, “if an agent says, ‘I believe this
guy,’ or ‘I don’t believe this guy,’ that’s not admissible evidence.” Id. at 594:10-12.
During a sidebar the next day, the Court commented that it would be “absolutely
impermissible to put in an email from an agent opining on the culpability of the defendant.
That’s none of the agent’s business. He has no ability to form that.” 11/14/18 Tr. 611:11-14.
Counsel for the defendant suggested that such statements might be admissible as nonhearsay
pursuant to Fed. R. Evid. 801(d)(2)(D), which provides that a statement “made by a party’s
agent or employee on a matter within the scope of that relationship and while it existed” is not
hearsay within the general prohibition of the Federal Rules of Evidence. See id. at 611:20-
612:2. The Court indicated that it would take argument and briefing on the issue. The next
day, the Court provided case citations that the Court understood as standing for the proposition
that out-of-court statements of government agents do not fall within the ambit of Rule
801(d)(2)(D). See 11/15/18 Tr. 804:8-14 (citing United States v. Yildiz, 355 F.3d 80 (2d Cir.
2004); United States v. Santos, 372 F.2d 177 (2d Cir. 1967)).
3
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By way of background, the email that defense counsel quoted in his opening
statement was produced by the government as part of the Section 3500 materials relating to an
HSI Special Agent (the “HSI Agent”). See JJZ0000002172. The government anticipates
calling the HSI Agent to introduce the evidence from a Title III wiretap investigation
conducted from February 14, 2013 through August 21, 2014. The HSI Agent’s testimony will
lay the foundation for admission of the Title III intercepts of BlackBerry Messenger (“BBM”)
communications involving the defendant and his associates during that time period. 1 The
government expects the HSI Agent will testify to the mechanics of the wiretap investigation
and to what he learned about the structure of the defendant’s communication systems based
upon his observations. The HSI Agent’s testimony will be limited to his observations of the
communication systems that were the subject of the wiretap investigation in which he
participated. While the government intends to elicit some general testimony regarding the
methods and means of communication and communication patterns the HSI Agent observed,
it is wholly distinct from testimony regarding the HSI Agent’s personal opinions and
impressions of the defendant. The government cannot, under the Rules of Evidence, and will
not elicit testimony regarding the HSI Agent’s personal opinions and impressions about the
defendant, the defendant’s guilt or the Sinaloa Cartel more generally. The defense is not
entitled to do so either. Such opinion testimony would not be the proper subject of examination
of a government agent.
1
Other case agents may also be able to provide testimony sufficient to admit
intercepts from this particular Title III investigation into evidence. As such, it is not a certainty
that the HSI Agent will be called at all.
4
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The email from the HSI Agent quoted by defense counsel was a response to an
email from another federal law enforcement agent. The other agent, who was not involved in
the investigation into the defendant, wrote to the HSI Agent, knowing that the HSI Agent had
been involved in investigating the Sinaloa Cartel and the defendant, to congratulate the HSI
Agent on the defendant’s capture a few days earlier, on February 21, 2014. See
JJZ0000002173-74. In response, the HSI Agent criticized the press coverage relating to the
defendant, and noted that only a so-called “roving” wiretap had been sufficient to aid law
of tunnels beneath safe houses and public corruption had enhanced his ability to evade capture.
See JJZ0000002172. It was in that context, responding to press coverage of the defendant and
his notoriety, that the HSI Agent offered the opinions and characterization defense counsel
This email is, on its face, hearsay, and the defendant’s opening statement
indicates that the defense intends to introduce it for the truth of the matter asserted. As defense
counsel explained in introducing the email, “their own witnesses think that he is not who the
prosecutors claim he is.” 11/13/18 Tr. 579:9-10. Thus, it is clear that the defense intends to
use the opinion offered in the email to rebut evidence of the defendant’s drug trafficking.
Because the defense intends to introduce the email for its truth, it is admissible
only if it is nonhearsay pursuant to Rule 801, or falls within the ambit of an exception to the
rule against hearsay pursuant to Rules 803 or 804. The defense has argued, at the sidebars
quoted above, that the HSI Agent’s email is nonhearsay pursuant to Rule 801(d)(2)(D) as the
statement of an agent of an opposing party. As the Second Circuit has explained, however, a
“government agent’s out-of-court statements are not admissible for their truth in a criminal
5
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prosecution as admissions by a party opponent.” Yildiz, 355 F.3d at 80. The Yildiz court
allowed that statements or filings by government attorneys that bind the government,
statements about which a party has “manifested an adoption or belief in its truth,” and sworn
statements submitted to a court might be nonhearsay, but emphasized that statements by agents
outside of court and which the government has not adopted and which do not bind the
The HSI Agent’s email falls clearly within the latter category. It is a conclusory
opinion offered outside of court in a casual message to an acquaintance, it has not been adopted
by the government, and it does not legally bind the government in any way. Pursuant to Yildiz,
it is inadmissible here.
Furthermore, because the HSI Agent’s email is inadmissible hearsay, it may not
be used in cross-examination to probe any alleged inconsistency pursuant to Rule 613(b). Rule
inconsistency. As this Court has already ruled, however, in adopting former Judge Forrest’s
Guidelines Regarding Appropriate Use of 302 Forms in Criminal Trials, see Nov. 2, 2018
Order, “Rule 613(b) does not itself provide a separate, stand-alone basis for the admissibility
of such extrinsic evidence—it only governs the proper use of otherwise admissible evidence.
In other words, if the underlying extrinsic evidence is inadmissible (because, for instance, it is
hearsay), it cannot come in under rule 613(b).” See Case No. 17-cv-350 (S.D.N.Y.), Dkt. No.
819 at 3.
Because the HSI Agent’s email is hearsay and does not fall within the scope of
trial either for its truth or as extrinsic evidence of a prior inconsistent statement under Rule
(“DEA”) special agent (“retired DEA agent”) who conducted an interview of the defendant in
1998 (“the 1998 Statement”) while the defendant was being housed at the Puente Grande
prison in Mexico. During that interview, the defendant made the following statements that the
2
The defense should also not be permitted to attempt to elicit testimony in an
effort to create an inconsistency with the email so that they can argue for the admission of the
email pursuant to Rule 613(b). It is dubious, under former Judge Forrest’s ruling, that Rule
613(b) provides a path to admissibility for otherwise inadmissible evidence, see supra. But in
any event, the HSI Agent’s opinions about the defendant and his personal reactions to the Title
III investigation—such as whether he was “impressed” or not by the defendant—are irrelevant
to the defendant’s actual guilt or innocence, and risk confusing the jury as to the issues properly
before it. Any attempt to elicit the HSI Agent’s personal opinions to generate an inconsistency
should therefore be prohibited pursuant to Federal Rules of Evidence 402, 403, and 611(a).
7
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• The defendant stated he had met with other drug traffickers in the early
1990s in Mexico City to form an alliance. This alliance was later broken
when Ramon Arellano tried to kill the defendant.
For the reasons set forth below, the Court should preclude the defendant from
admitting any portion of the defendant’s statements to this retired DEA agent at trial. Because
the defendant would not be offering any such statements against an opposing party, and there
are no other hearsay exceptions that apply, the other statements in the report would be
Decision and Order (June 7, 2018 Order, Dkt No. 240 at 9-10), the Rule of Completeness does
not compel introduction of the other portions of the defendant’s statement not offered into
of the 2015 Interview Video and Preclude the Defense from Introducing Irrelevant, Self-
Serving Portions (See Dkt No. 213, incorporated by reference), Rule 801(d)(2) provides in part
that a statement is not hearsay when it is “(a) offered against an opposing party and (b) the
statement was made by a party in an individual capacity.” See Fed. R. Evid. 801(d)(2)(A).
Thus, a defendant’s statement may be admissible against him even as it is impermissible for
provides that “even though a statement may be hearsay, an omitted portion of the statement
8
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must be placed in evidence if necessary to explain the admitted portion, to place the admitted
portion in context, to avoid misleading the jury, or to ensure fair and impartial understanding
of the admitted portion.” United States v. Johnson, 507 F.3d 793, 796 (2d Cir. 2007) (alteration
However, the Second Circuit has explained, while the rule of completeness may
“require that a statement be admitted in its entirety when [it] is necessary to explain the
admitted portion, to place it in context, or to avoid misleading the trier of fact,” it does not
require the “introduction of portions of a statement that are neither explanatory of nor relevant
to the admitted passages.” United States v. Marin, 669 F.2d 73, 84 (1982) (internal citations
omitted); see United States v. Jackson, 180 F.3d 55, 73 (2d Cir. 1999) (“The completeness
doctrine does not, however, require the admission of portions of a statement that are neither
The 1998 Statement, which the defendant made in an interview setting while he
was housed in a Mexican prison, is hearsay if offered by the defendant and, therefore, the Court
should bar the defendant from offering these statements into evidence. The government seeks
to admit only portions of the 1998 Statement that are relevant to the charged offenses as
limited portions of the interview that the government proposes to introduce are highlighted in
the information the defendant provided to both Mexican and U.S. law enforcement. As seen
in Exhibit A, the limited statements that the government seeks to introduce are severable from
others so the doctrine of completeness is not a consideration here. See Marin, 669 F.2d at 82
9
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6931
(“The completeness doctrine does not, however, require introduction of portions of a statement
Further, in the 1998 Statement, the defendant made multiple statements that
were purely self-serving and designed to further focus law enforcement attention on the
activities of his enemies – the Arellano-Felixes. These statements do not relate to, or provide
any, additional context to the portion of the interview the government intends to elicit –
namely, the defendant’s statements that shed light on his own culpability and the culpability
of his co-conspirators. In sum, the Court should preclude the defense from eliciting statements
unsuccessful public authority defense in his own case. Although the cooperating witness’s
argument was unsuccessful, as set forth in further detail below, should the defendant here be
permitted to cross-examine the cooperating witness about it, the cross-examination risks
suggesting to the jury that the cooperating witness engaged in drug trafficking with the assent
of the United States government. Because the cooperating witness was a high-ranking member
of the Sinaloa Cartel, eliciting detail about the cooperating witness’s public authority defense
strategy could, in turn, improperly suggest to the jury that the defendant himself, as the leader
of the Sinaloa Cartel, was likewise operating with some level of assent or approval by the
government. As the Court is aware, however, the defendant has not filed a notice of public
authority defense as required by Fed. R. Crim. P. 12.3, and repeatedly has indicated to the
Court that the defense does not intend to pursue such a defense strategy. See 11/13/18 Tr.
10
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6932
593:22-23; 11/14/18 Tr. 600:19-22. Because the defendant cannot now advance a public
authority defense of his own, he should not be able to imply one through the questioning of a
On February 18, 2010, Vicente Zambada Niebla was extradited to the United
States to stand trial in the Northern District of Illinois, where he had been indicted on April
23, 2009. See United States v. Zambada Niebla, Case No. 1:09-cr-00383 (N.D. Ill.), Dkt. No.
1. (Superseding indictments against Zambada Niebla added the defendant, Ismael Zambada-
Garcia, and others as Zambada Niebla’s co-defendants. See id., Dkt. No. 7.) On April 3, 2013,
Zambada Niebla pleaded guilty to the Third Superseding Indictment against him and agreed
pursuant to Rule 12.3 and filed a number of motions in which his defense counsel advanced a
public authority defense, asserting that the United States government had “conferred
immunity” on him. See id., Dkt. Nos. 85, 94, 95, 108, 109, 128. As the government explained
in opposition to Zambada Niebla’s motions in his case in the Northern District of Illinois,
Zambada Niebla’s public authority theory “rest[ed] on the premise that another criminal
defendant, Humberto Loya-Castro, indicted in San Diego in 1995 and alleged to be an attorney
for and member of the Sinaloa Cartel, entered into a cooperation agreement with DEA agents
and the U.S. Attorney’s Office in San Diego in an effort to gain a sentencing benefit in his
criminal case. After a period of cooperation, Loya-Castro’s pending indictment was dismissed
in 2008 upon an application to the court by the U.S. Attorney in San Diego.” See id., Dkt. No.
109 at 1-2.
11
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6933
Zambada Niebla’s public authority arguments derived from the fact that Loya-
Castro met with Zambada Niebla while Loya-Castro was cooperating with the DEA and
convinced Zambada Niebla to meet with the DEA as well. 3 Zambada Niebla thereafter met
with DEA agents in Mexico City in March 2009. Shortly after leaving that meeting, however,
Zambada Niebla was arrested by Mexican law enforcement authorities. At no time prior to
that meeting, or during the meeting, did the DEA or any other entity of the U.S. government
confer any immunity or authorization for Zambada Niebla or the defendant to engage in
public authority or immunity: first, that he had a valid immunity agreement with the United
States government; second, that the United States government granted the Sinaloa Cartel full
immunity from prosecution in Loya-Castro’s cooperation agreement with the DEA; and third,
that Zambada Niebla detrimentally relied on assurances from the United States government
The district court in the Northern District of Illinois rejected all of these
arguments. See id., Dkt. No. 170. As that court noted, the only evidence provided by Zambada
Niebla’s attorneys in support of these arguments was an affidavit by his own attorney. See id.
understanding that he would “not be promised any benefits…for [his] ongoing cooperation,”
and several DEA Confidential Source Agreements that Loya-Castro signed also indicated that
the DEA provided “no immunity or protection from investigation, arrest, or prosecution,” and
3
Loya-Castro and Zambada Niebla informed both the defendant and his co-
defendant (and Zambada Niebla’s father) Mayo Zambada about this meeting. The defendant
and Mayo Zambada permitted Zambada Niebla to attend the meeting.
12
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6934
that the DEA did not “promise or agree to any consideration by a prosecutor or a court in
exchange for cooperation.” Id. at 5. With those agreements, as well as additional evidence
offered by the government, see id. at 7, the court concluded that there were “no material issues
in dispute regarding Zambada [Niebla]’s claim of immunity from prosecution,” and therefore
rejected the public authority and immunity arguments. Id. at 11. As noted above, Zambada
Niebla thereafter pleaded guilty, and has been cooperating with the government since that
point. The government anticipates calling Zambada Niebla to testify against the defendant in
this trial and does not anticipate eliciting any testimony regarding Zambada Niebla’s
of the district court. See United States v. Wilkerson, 361 F.3d 717, 734 (2d Cir. 2004). A
court may properly bar cross-examination that is only marginally relevant to a defendant’s
guilt or other issues before the court. See United States v. Maldonado-Rivera, 922 F3d. 934,
956 (2d Cir. 1990); see also Fed. R. Evid. 611 (stating that “court should exercise reasonable
control . . . so as to . . . avoid wasting time[] and protect witnesses from harassment or undue
abuse of discretion.” United States v. Lawes, 292 F.3d 123, 131 (2d Cir. 2002) (citing United
States v. Rosa, 11 F.3d 315, 335 (2d Cir. 1993)). The Second Circuit has repeatedly upheld
district courts’ exercise of discretion in imposing reasonable limits on the subjects that may be
inquired into on cross-examination. See United States v. Rivera, 971 F.2d 876, 886 (2d Cir.
1992) (“The court is accorded broad discretion in controlling the scope and extent of cross-
Evidence 402 and 403, which exclude otherwise relevant evidence if its “probative value is
13
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6935
evidence.” United States v. Figueroa, 548 F.3d 222, 229 (2d Cir. 2008).
public authority defense in his own case would provide the jury with no additional facts or
evidence from which it could draw any conclusion as to the defendant’s guilt or innocence,
nor would it be probative of Zambada Niebla’s credibility. The fact that Zambada Niebla’s
defense counsel made various arguments in his own case and prior to his agreement to
cooperate with the government simply do not bear on the defendant’s drug trafficking or
however, have an unfairly prejudicial and confusing effect, as it would suggest to the jury that
the United States government granted Zambada Niebla “immunity” or authorization to engage
in drug trafficking, from which the jury might improperly and incorrectly infer that the
government extended some form of assent to the broader drug trafficking activities of the
Sinaloa Cartel as a whole, and to the defendant. Lengthy redirect testimony and rebuttal
witnesses might then be required to rebut this suggestion of public authority—which, as noted
above, is not a defense noticed by the defendant. The Court should exercise its discretion to
preclude cross-examination into this irrelevant issue and avoid an unnecessary mini-trial on
the defenses raised in Zambada Niebla’s own case. See Fed. R. Evid. 611.
evidence related to Humberto Loya-Castro’s cooperation with the United States government.
14
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6936
in 1995, and subsequently cooperated with the United States government. Loya-Castro’s
cooperation with the DEA spanned from 2005 to 2015, and the government voluntarily
dismissed his indictment in 2008, in part because of his cooperation. Loya-Castro will not be
called by the government to testify in this trial. (Indeed, he has not been actively cooperating
with the government for some time.) He is, however, a former associate of the Sinaloa Cartel
and coconspirator of the defendant. The government intends to elicit testimony from one
cooperating witness that from approximately 1987 to 1993, Loya-Castro was responsible for
making corrupt payments to police on behalf of the defendant and the Sinaloa Cartel. Loya-
Castro made those payments at the direction of the defendant. A second cooperating witness
will corroborate that Loya-Castro served this role for the Sinaloa Cartel prior to 2003.
The government does not intend to elicit testimony from other cooperating
witnesses about Loya-Castro; although in light of Loya-Castro’s role in the cartel and as one
of the defendant’s coconspirators, the government is aware that other of its cooperating
witnesses knew Loya-Castro and are familiar with the activities he undertook in support of the
Sinaloa Cartel. Specifically, that Loya-Castro would meet with the defendant and his partner,
Mayo Zambada to gather information about rivals of the Sinaloa Cartel and provide this
information to the DEA during the 2005 to 2015 period. The government also does not intend
to elicit testimony about Loya-Castro’s cooperation with the government. That cooperation
occurred many years after the activities for which the government intends to elicit testimony
relating to Loya-Castro, and does not bear on Loya-Castro’s role from 1987 to 1993 as being
responsible for corruption payments to police on behalf of the defendant and the Sinaloa Cartel.
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As set forth in Section III above, the Court has broad latitude to limit the scope
of cross-examination and may properly bar cross-examination that is only marginally relevant
to a defendant’s guilt or other issues before the court. See Maldonado-Rivera, 922 F.3d at 956;
see also Fed. R. Evid. 611 (stating that “court should exercise reasonable control . . . so as
to . . . avoid wasting time[] and protect witnesses from harassment or undue embarrassment”).
Castro’s cooperation would not be relevant to the issues before the jury: the fact that Loya-
Castro cooperated with the government many years after making payments to police on behalf
of the Sinaloa Cartel does not relate to the defendant’s guilt or the credibility of the testifying
witnesses. Such cross-examination would only serve to waste time and confuse the issues. As
cooperation would risk unfair prejudice to the government and the specter of an impermissible
otherwise assented to his conduct on behalf of the defendant and the Sinaloa Cartel. 4 Cross-
probative value, and would risk confusion of the issues, wasting time, and unfair prejudice to
4
Were Loya-Castro to testify for the government, the defense would of course
be permitted to cross-examine him as to the benefits he received or hoped to receive for his
cooperation. But as noted above, Loya-Castro is no longer cooperating with the government
and the government will not be calling him to testify in this trial. The purpose of cross-
examining testifying witnesses about their plea agreements and cooperation is to aid the jury
in assessing their credibility. Here, however, cross-examining other witnesses about Loya-
Castro’s cooperation would not aid the jury, as Loya-Castro’s credibility is not at issue because
he is not testifying.
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Among the draft transcripts produced to the defense was a transcript of a January
20, 2010 telephone call between cooperating witness Jorge Milton Cifuentes-Villa (J.
discussed how a Bolivian man named Don Chucho refused to provide cocaine the defendant
had paid for through J. Cifuentes-Villa. After J. Cifuentes-Villa’s mother urged J. Cifuentes-
Villa to talk to Don Chucho to convince him to provide the cocaine, J. Cifuentes-Villa pointed
out that any further discussion would be pointless, because Don Chucho was a liar. Then, on
pages 17-18 of the transcript, J. Cifuentes-Villa continues: “Anyone can talk, any black man
who sweet talks anyone and then he’ll say that he loves you a lot. . . . So what he is looking
for there, more money is what he is looking for . . . Because I was the fool that gave him the
Don Chucho are not relevant in any way. They are not, for example, probative of truthfulness
or any other issues in the case, and are therefore presumptively inadmissible.
substantially outweighed by the unfair prejudice and misleading of the jury that would likely
consequence, pursuant to Federal Rules of Evidence 401 and 403, the defendant should be
precluded from questioning J. Cifuentes-Villa about these comments. For the same reason,
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the government seeks to preclude the defendant from introducing this portion of the transcript
into evidence.
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requests permission to submit this brief partially under seal. See Dkt. No. 57 ¶ 8. Portions of
this brief refer to the government’s cooperating witnesses. The government has identified two
of them by their full names for the convenience of the Court and in light of the fact that
reference to the district in which one of the cooperating witnesses was charged and pleaded
guilty would likely reveal him to many observers even if the government used a code number
or pseudonym.
Thus, partial sealing is warranted because of the concerns regarding the safety
of potential witnesses and their families, and the danger posed by disclosing the potential
witnesses’ identities and their cooperation with the government prior to their testimony in this
case. See United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995) (need to protect integrity
witnesses, and to prevent interference, flight and other obstruction, may be a compelling reason
justifying sealing); see Feb. 5, 2018 Mem. & Order Granting Gov’t Mot. for Anonymous and
Partially Sequestered Jury, Dkt. No. 187 at 2-3 (concluding that defendant’s actions could pose
risk of harm to cooperating witnesses). As the facts set forth herein provide ample support for
the “specific, on the record findings” necessary to support partial sealing, Lugosch v. Pyramid
Co., 435 F.3d 110, 120 (2d. Cir. 2006), the government respectfully requests that the Court
permit the government to file this motion partially under seal. Should any order of the Court
regarding this application describe the sealed information in question with particularity, rather
19
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than in general, the government likewise requests that those portions of the order be filed under
seal.
CONCLUSION
For the foregoing reasons, the Court should grant the government’s motions in
RICHARD P. DONOGHUE
United States Attorney
Eastern District of New York
OF COUNSEL:
ARIANA FAJARDO ORSHAN
United States Attorney
Southern District of Florida
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U.S. Department of Justice
December 9, 2018
By ECF
The government submits this letter pursuant to its obligations under Giglio v.
United States, 405 U.S. 150 (1972), and respectfully moves the Court for a ruling precluding
cross-examination on potential Giglio information related to one of its cooperating witnesses.
I. Facts
Several years ago, the government received an allegation from a fellow inmate
from the federal prison system that Flores and his twin brother Margarito had withheld $20
million dollars in drug proceeds from U.S. Government, and that their lawyer was helping to
pay out this money to family. The source of the allegation correctly identified where the
brothers had been housed and had some other information about the brothers’ family members'
whereabouts, and alleged that the brothers carried AK-47s in Mexico for protection. Upon
receiving the allegation, the DEA conducted an investigation into the claims about the
withholding of money and could not substantiate the claims. For his part, Flores denied
withholding any drug proceeds from the government and denied that his lawyer was helping
to pay out any money to the family (although he did acknowledge that he did carry an AK-47
in Mexico for protection).
The government recently received an allegation from the facility where Flores
is currently housed. On September 22, 2018, another inmate in the prison facility provided a
statement to his prison counselor about activities in the unit. Among the allegations made by
the inmate was
That investigation is currently underway; however, none of the inmate’s allegations regarding
has been substantiated. Prison officials confronted Flores with the allegation
that he was using his family members to send money to other inmates’ commissary accounts,
and he acknowledged that he had done so. Accordingly, the facility handed out disciplinary
punishment: Flores lost his phone privileges for 180 days because of his involvement in
sending money to other inmates’ commissary accounts.
On October 12, 2018, a DEA agent and prosecutor confronted Flores with the
allegation of the inmate commissary account scheme, and Flores acknowledged his
2
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participation in the scheme. The agent and prosecutor asked Flores whether he had engaged
in any other inappropriate conduct while in prison over the last few months, and Flores
volunteered that he, along with other inmates in his unit, had discovered that a “regular”
telephone in the unit could be used to make unauthorized outside calls, and that he had used
this phone to call his wife on a number of occasions. Flores also explained to the agent and
prosecutor that he was aware that another inmate in the unit with whom he had an ongoing
dispute was making false accusations about him involving pills and cell phones. Flores pointed
out that because he had access to the phone in his unit, he would have no need to have a cell
phone. Flores also denied making any payments to any prison officials.
Because the Bureau of Prison investigation has not substantiated the allegation
that Flores
the
government seeks to preclude cross-examination of Flores as to the allegations under Federal
Rule of Evidence 403, because they would be cumulative of other impeachment material and
would unfairly inflame the passions of the jury by raising an uncorroborated suggestion of
government misconduct or neglect.
At the outset, it is not even clear that the government was obligated to provide
the defendant with such unsubstantiated allegations of misconduct. Although the Second
Circuit does not appear to have directly considered the issue, other courts have declined to
hold that a defendant is entitled to potential Brady and Giglio information where that
information is related to unsupported and unsubstantiated allegations about government
witnesses. See, e.g., United States v. Agurs, 427 U.S. 97, 109 n.16 (1976) (“It is not to say that
the State has an obligation to communicate preliminary, challenged, or speculative
information.”) (internal citation and quotation marks omitted)); United States v. Bulger, 816
F.3d 137, 155 (1st Cir. 2016) (upholding finding that there was no Brady violation where
government did not turn over unsubstantiated allegations about government witness); United
States v. Fernandez, No. 09-CR-1049, 2009 WL 10637246 (S.D.N.Y. 2009) (holding that
evidence related to unsubstantiated claims about police witnesses did not fall within the ambit
of Giglio, because “‘unsubstantiated’ claims are simply allegations of wrongdoing that were
withdrawn or abandoned, or allegations about which there was insufficient information to
proceed any further”); Bonfilio v. United States, No. 15-CV-1015, 2016 WL 6124487 (W.D.
Pa. Nov. 10, 2016) (agreeing with Bulger court that unsubstantiated allegations generally need
not be disclosed); United States v. Dabney, 498 F.3d 455 (7th Cir. 2007) (holding that there
had been no error in trial court’s refusal to order production of unsubstantiated complaints filed
with police department against testifying officer).
Even when the government provides information and evidence to the defense,
courts have held that it is appropriate to limit cross-examination into unproven and
unsubstantiated allegations concerning testifying witnesses. As the Southern District of New
York explained in rejecting a claim that the government violated Brady by failing to disclose
3
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a transcript of a DEA agent’s testimony in an unrelated case that was rooted in an internal
investigation, “cross-examination on this subject would not have been admissible at trial. This
Court precluded all cross-examination of the DEA agent on the subject matter of the [Office
of Professional Responsibility] investigation, as the investigation had ultimately been found to
be unsubstantiated.” United States v. Akefe, No. 09-CR-196, 2013 WL 4729174 (S.D.N.Y.
2013). Other courts, too, have limited cross-examination into unsubstantiated allegations
pursuant to Rules 608, 609, and 611. See United States v. Novaton, 271 F.3d 968, 1004-07
(11th Cir. 2001) (excluding cross-examination of officer’s involvement in prior complaint
because it was unproven and pending, and would therefore be more prejudicial than probative);
United States v. Wilson, 303 Fed. Appx. 350 (7th Cir. 2008) (“[A]ccusations that [witnesses]
engaged in misconduct were merely that: accusations, and offered little indicia of reliability.
Thus the district court, acting within its discretion, was free to determine that cross
examination into the specific instances of misconduct would have been of limited probative
value.”); United States v. Innamoranti, 996 F.2d 456, 478-79 (1st Cir. 1993) (holding that
district court properly restricted cross examination of DEA agent concerning unsubstantiated
claim that he had erased part of an audio tape in an unrelated case).
III. Discussion
As the government has explained in its separate filings seeking rulings limiting
cross-examination of witnesses on various topics, a court enjoys “wide latitude . . . to impose
limits on . . . cross-examination.” United States v. Maldonado-Rivera, 922 F.2d 934, 956 (2d
Cir. 1990). Specifically, a court should “exercise reasonable control” so as to “avoid wasting
time[] and protect witnesses from harassment or undue embarrassment.” Id. Even where
topics of cross-examination are probative of truthfulness and veracity, a district court may limit
cross-examination where the probative value is “outweighed by danger of unfair prejudice,
confusion of issues, or misleading the jury.” Fed. R. Evid. 608 ad. comm. note. See also Fed.
R. Evid. 403. 1
As noted above, the DEA and the Bureau of Prisons has been unable to
substantiate the claims that Flores either withheld 20 million dollars from the government,
or Accordingly, the
Court should follow the precedent set by other courts that have prohibited cross-examination
about unsubstantiated allegations.
The Second Circuit has repeatedly observed that evidence of prior arrests or
charges that have not resulted in convictions generally cannot be used to impeach the
credibility of a witness. See United States v. Salameh, 152 F.3d 88, 131-32 (2d Cir. 1998);
United States v. Semensohn, 421 F.2d 1206, 1208 (2d Cir. 1970) (“It is settled that in a trial a
1
The government previously moved the Court to preclude cross-examination on
a variety of topics related to the government’s cooperating witnesses and law enforcement
witnesses, and respectfully refers the Court to those briefs for a more detailed discussion of
the legal standards related to limits on cross-examination.
4
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witness’s acts of misconduct are not admissible to impeach his credibility unless the acts
resulted in the obtaining of a conviction.”); United States v. Acarino, 408 F.2d 512, 514 (2d
Cir. 1969) (“The prosecuting attorney was correct in his apparent assumption that such
evidence of misconduct as an indictment is not normally admissible for impeachment
purpose.”). In Akefe, for instance, the Southern District of New York precluded cross-
examination related to a DEA Office of Professional Responsibility investigation where the
allegations were ultimately found to be unsubstantiated. See Akefe, 2013 WL 472174 at *6.
Here, too, an investigation has determined that the “accusations that [the witness] engaged in
misconduct [are] merely that: accusations . . . .” Wilson, 303 Fed. Appx. at 355. Here, the
allegations regarding hiding of assets, bribery and introduction of contraband are
unsubstantiated, and are not appropriate for use in cross-examining Flores.
Finally, granting the government’s instant motion will in no way deprive the
defendant of a meaningful opportunity to cross-examine Flores. The defendant will be able to
cross-examine Flores as to the matters set forth above (see supra, p.1) his extensive history of
drug trafficking, his motivations for cooperating with the government in the expectation of a
sentence reduction, and various other topics which have been or will be revealed to the defense
in Rule 16 and § 3500 discovery. See United States v. Locasio, 6 F.3d 924, 949 (2d Cir. 1993)
(“However, as the district court found, these reports would have had no effect on Gravano’s
credibility, not only because they were untrustworthy, but also because they would merely
have been cumulative. Gravano confessed to numerous crimes, including murders, and was
subject to withering cross examination for those actions. The addition of a few more
allegations would not have materially affected the defense’s cross examination of him.”). The
fact that cross-examination as to the unsubstantiated allegations would be needlessly
cumulative offers an additional reason why should be s appropriately precluded in the face of
its marginal probative value. See United States v. Figueroa, 548 F.3d 222, 229 (2d Cir. 2008)
(noting that cross-examination may be properly limited where “unduly prejudicial, confusing
or misleading to the jury, or cumulative”).
IV. Conclusion
For the foregoing reasons, the government respectfully moves the Court to
determine that the defendant not be allowed to preclude cross-examination of Flores as to the
unsubstantiated allegations.
V. Sealing is Appropriate
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witnesses’ identities and their cooperation with the government. Sealing is further warranted
to protect the disclosure of sensitive information regarding the government’s witnesses. See
United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995) (need to protect integrity of ongoing
investigation, including safety of witnesses and identities of cooperating witnesses, and to
prevent interference, flight and other obstruction, may be compelling reason justifying
sealing); see Feb. 5, 2018 Mem. & Order Granting Gov’t Mot. for Anonymous and Partially
Sequestered Jury, Dkt. No. 187 at 2-3 (concluding that defendant’s actions could pose risk of
harm to cooperating witnesses). As the facts set forth herein provide ample support for the
“specific, on the record findings” necessary to support partial sealing, Lugosch v. Pyramid Co.,
435 F.3d 110, 120 (2d. Cir. 2006), the government respectfully requests that the Court permit
the government to file this motion under seal and that any resulting order by the Court also be
filed under seal.
Respectfully submitted,
RICHARD DONOGHUE
United States Attorney
Eastern District of New York
OF COUNSEL: