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Case 1:15-cr-00765-PAC Document 163 Filed 02/14/17 Page 1 of 55

TO BE FILED UNDER SEAL

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
:
UNITED STATES OF AMERICA, :
:
- v. - : S5 15 Cr. 765 (PAC)
:
EFRAIN ANTONIO CAMPO FLORES and :
FRANQUI FRANCISCO FLORES DE FREITAS, :
:
Defendants. :
:
---------------------------------------------------------------X

DEFENDANTS OPPOSITION TO THE


GOVERNMENTS MOTIONS IN LIMINE
Case 1:15-cr-00765-PAC Document 163 Filed 02/14/17 Page 2 of 55
TO BE FILED UNDER SEAL

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .....................................................................................................1

ARGUMENT ...................................................................................................................................1

I. The Government Should Not Be Permitted To Offer Aspects Of The Testimony That It
Argues Are Admissible Regarding The October 3, 2015 Meeting Between CW-1 and The
Defendants In Honduras. .....................................................................................................1

II. The Government Has Failed To Demonstrate That CS-1 And CS-2 Should Be Permitted
To Testify That The White Powdery Substance At The October 27, 2015 Meeting Was
Cocaine. ...............................................................................................................................6

III. Alleged Evidence Of Efforts To Obtain And Smuggle Weapons Is Inadmissible and Not
Offered For Any Proper Purpose. ......................................................................................10

IV. The Governments Extraordinary Request For Preclusion Of Any Self-Serving


Exculpatory Statements, Irrespective Of The Context Of Those Statements, Is Without
Legal Basis and Would Be Fundamentally Unfair. ...........................................................32

V. The Governments Courtroom Security Arguments Miss The Mark. ...............................37

VI. The Defendants Are Entitled To Present An Entrapment Defense At Trial. .....................39

CONCLUSION ..............................................................................................................................46

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TO BE FILED UNDER SEAL

TABLE OF AUTHORITIES

Page(s)

Cases

24/7 Records, Inc. v. Sony Music Entmt, Inc.,


514 F. Supp. 2d 571 (S.D.N.Y. 2007)........................................................................................6

Amorgianos v. Natl R.R. Passenger Corp.,


303 F.3d 256 (2d Cir. 2002).......................................................................................................7

Astra Aktiebolag v. Andrx Pharm., Inc.,


222 F. Supp. 2d 423 (S.D.N.Y. 2002)........................................................................................6

Beech Aircraft Corp. v. Rainey,


488 U.S. 153 (1988) .................................................................................................................34

Berk v. St. Vincents Hosp. & Med. Ctr.,


380 F. Supp. 2d 334 (S.D.N.Y. 2005)........................................................................................7

Carver v. United States,


164 U.S. 694 (1897) .................................................................................................................34

Crawford v. Washington,
541 U.S. 36 (2004) ...................................................................................................................24

Daubert v. Merrell Dow Pharmaceuticals, Inc.,


509 U.S. 579 (1993) .....................................................................................................6, 7, 9, 10

Davis v. Alaska,
415 U.S. 308 (1974) ...........................................................................................................24, 25

Henry v. Speckard,
22 F.3d 1209 (2d. Cir. 1994)....................................................................................................24

Huddleston v. United States,


485 U.S. 681 (1988) .................................................................................................................23

Hughes v. United States,


427 F.2d 66 (9th Cir. 1970) .....................................................................................................46

Jacobson v. United States,


503 U.S. 540 (1992) .....................................................................................................20, 21, 45

Knoller v. Miller,
No. 12-CV-0996-JST, 2014 WL 3107770 (N.D. Cal. July 3, 2014) .......................................24

ii
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Koppell v. N.Y. State Bd. of Elections,


97 F. Supp. 2d 477 (S.D.N.Y. 2000)..........................................................................................7

Kumho Tire Co. v. Carmichael,


526 U.S. 137 (1999) ...................................................................................................................6

Mathews v. United States,


485 U.S. 58 (1988) ...................................................................................................................39

Melendez-Diaz v. Massachusetts,
557 U.S. 305 (2009) .................................................................................................................10

Nimely v. City of N.Y.,


414 F.3d 381 (2d Cir. 2005).......................................................................................................7

Ross v. State,
528 So. 2d 1237 (Fla. Dist. Ct. App. 1988) ...............................................................................7

United States v. Al-Moayad,


545 F.3d 139 (2d Cir. 2008).....................................................................................................22

United States v. Alvarado,


882 F.2d 645 (2d Cir. 1989).....................................................................................................34

United States v. Anglada,


524 F.2d 296 (2d Cir. 1975).....................................................................................................42

United States v. Anzalone,


626 F.2d 239 (2d Cir. 1980).....................................................................................................17

United States v. Becerra,


97 F.3d 669 (2d Cir. 1996).......................................................................................................11

United States v. Blackwood,


456 F.2d 526 (2d Cir. 1972).....................................................................................................26

United States v. Brand,


467 F.3d 179 (2d Cir. 2006)............................................................................................. passim

United States v. Brown,


43 F.3d 618 (11th Cir. 1995) ...................................................................................................45

United States v. Bryce,


208 F.3d 346 (2d Cir. 1999).....................................................................................................10

United States v. Coplan,


703 F.3d 46 (2d Cir. 2012).......................................................................................................35

iii
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United States v. Cromitie,


727 F.3d 194 (2d Cir. 2013)...............................................................................................19, 45

United States v. Demma,


523 F.2d 981 (9th Cir. 1975) .............................................................................................21, 22

United States v. Durham,


464 F.3d 976 (9th Cir. 2006) .....................................................................................................9

United States v. Erickson,


794 F. Supp. 273 (N.D. Ill. 1992) ............................................................................................12

United States v. Fadel,


844 F.2d 1425 (10th Cir. 1988) ...................................................................................39, 40, 41

United States v. Feilbogen,


494 F. Supp. 806 (S.D.N.Y. 1980) ..........................................................................................25

United States v. Fernandez,


829 F.2d 363 (2d Cir. 1987).....................................................................................................11

United States v. Gagliardi,


506 F.3d 140 (2d Cir. 2007).....................................................................................................40

United States v. Gaskin,


364 F.3d 438 (2d Cir. 2004).....................................................................................................10

United States v. Glover,


153 F.3d 749 (D.C. Cir. 1998) .................................................................................................44

United States v. Gordon,


987 F.2d 902 (2d Cir. 1993).....................................................................................................15

United States v. Hurn,


368 F.3d 1359 (11th Cir. 2004) ...............................................................................................39

United States v. Ienco,


92 F.3d 564 (7th Cir. 1996) .....................................................................................................23

United States v. Kopstein,


759 F.3d 168 (2d Cir. 2014).....................................................................................................39

United States v. Marin,


669 F.2d 73 (2d Cir. 1982).......................................................................................................33

United States v. Martin,


328 F.3d 77 (2d Cir. 2003).......................................................................................................11

iv
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United States v. Mayfield,


771 F.3d 417 (7th Cir. 2014) .............................................................................................40, 42

United States v. McDarrah,


No. 05-cr-1182 (PAC), 2007 WL 273799 (S.D.N.Y. Jan. 31, 2007) ......................................34

United States v. Mercado,


573 F.3d 138 (2d Cir. 2009).....................................................................................................13

United States v. Montgomery,


676 F. Supp. 2d 1218 (D. Kan. 2009) ......................................................................................25

United States v. Muntslag,


No. 13 Cr. 635 (SAS) (S.D.N.Y. 2016) ...................................................................................38

United States v. Mussaleen,


35 F.3d 692 (2d Cir. 1994).......................................................................................................33

United States v. Myers,


527 F. Supp. 1206 (E.D.N.Y. 1981) ........................................................................................40

United States v. Naseer,


No. 10 Cr. 19 (E.D.N.Y. 2015) ................................................................................................38

United States v. Pagan,


721 F.2d 24 (2d Cir. 1983).......................................................................................................17

United States v. Pugh,


162 F. Supp. 3d 97 (E.D.N.Y. 2016) .......................................................................................36

United States v. Reyes,


18 F.3d 65 (2d Cir. 1994)...............................................................................................2, 4, 5, 6

United States v. Riley,


363 F.2d 955 (2d Cir. 1966).....................................................................................................42

United States v. Robinson,


583 F.3d 1265 (10th Cir. 2009) ...............................................................................................26

United States v. Salerno,


66 F.3d 544 (2d Cir. 1995).......................................................................................................40

United States v. Scott,


725 F.2d 43 (4th Cir. 1984) ...............................................................................................7, 8, 9

United States v. Sherman,


200 F.2d 880 (2d Cir. 1952)...............................................................................................17, 43

v
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United States v. Smith,


794 F.2d 1333 (8th Cir. 1986) .................................................................................................34

United States v. Terry,


702 F.2d 299 (2d Cir. 1983).....................................................................................................35

United States v. Walia,


No. 14-cr-213 (MKB), 2014 WL 3734522 (E.D.N.Y. July 25, 2014) ....................................36

United States v. Westbrook,


896 F.2d 330 (8th Cir. 1990) .....................................................................................................9

United States v. Wiener,


534 F.2d 15 (2d Cir. 1976).................................................................................................11, 12

United States v. Young,


78 F.3d 758 (1st Cir. 1996) ......................................................................................................44

United States v. Yousef,


327 F.3d 56 (2d Cir. 2003).......................................................................................................34

Constitutional Provisions, Statutes, and Rules

U.S. Const., Sixth Amendment .............................................................................................. passim

Federal Rule of Evidence 106 ............................................................................................33, 34, 35

Federal Rule of Evidence 403 ........................................................................................................22

Federal Rule of Evidence 404(b) .......................................................................................13, 17, 23

Federal Rule of Evidence 611 ......................................................................................23, 27, 29, 33

Federal Rule of Evidence 701 ..........................................................................................................9

Federal Rule of Evidence 702 ..................................................................................................6, 7, 9

U.S.S.G. 2K2.1(b)(5) ..................................................................................................................11

Other Authorities

1 Kenneth S. Broun et al., McCormick on Evidence 56 (7th ed. 2013) ......................................35

Danae VanSickle Grace, The Sky Is Not Falling: How the Anticlimactic
Application of Melendez-Diaz v. Massachusetts to Oklahomas Laboratory
Report Procedures Allows Room for Improvement, 63 OKLA. L. REV. 383
(2011) .........................................................................................................................................7

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Robert B. Sykes, Abusive Deposition Objections and TacticsIn Search of a


Standing Order, 11 UTAH B.J. 8, 20 (1998) ............................................................................30

United States Department of State Bureau of Consular Affairs,


https://travel.state.gov/content/passports/en/alertswarnings/venezuela-travel-
warning.html ............................................................................................................................12

4 Weinsteins Federal Evidence 701.03[4][b] ............................................................................10

1 Whartons Criminal Evidence 4:10 (15th ed.) ...................................................................33, 35

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PRELIMINARY STATEMENT

The Defendants herein respectfully submit their responses to the Governments omnibus

motions in limine document. There is substantial overlap between certain of the Governments

applications and the Defendants simultaneously-filed motions in limine. The Defendants have

endeavored not to repeat the arguments pressed in their motions. The arguments below are

responsive to the arguments pressed by the Government. For these reasons, as well as the

reasons set out in the Defendants principal motions, the Defendants respectfully submit that the

Governments applications should largely be denied.

The Defendants also submit that this Opposition should be filed under seal, as it is

responsive to the Governments sealed application and addresses a number of the sensitive issues

that the parties have previously described as warranting temporary sealing.

ARGUMENT

I. The Government Should Not Be Permitted To Offer Aspects Of The Testimony


That It Argues Are Admissible Regarding The October 3, 2015 Meeting Between
CW-1 And The Defendants In Honduras.

In Section I of its Brief, the Government argues that it should be permitted to elicit from

Agent Gonzalez testimony regarding certain statements of CW-1, which are admissible as non-

hearsay, limited background evidence to explain the initiation of the investigation and

subsequent steps by Agent Gonzalez and others. (Br. 5). The Government further argues that it

should be permitted to admit a photograph from the initial meeting between CW-1 and the

defendants as well as testimony from Agent Gonzalez regarding certain investigative decisions

and instructions [Agent Gonzalez] gave to CW-1 with respect to the meeting. (Br. 5). As a

preliminary matter, the Defendants do not oppose the admission of the photograph and Agent

Gonzalezs instructions to CW-1.


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The Defendants do oppose, however, the admission of any of the remaining statements,

namely, Agent Gonzalezs testimony about CW-1s statements. The Government cannot

circumvent the Rules of Evidence governing hearsay and the Sixth Amendment by simply

labeling improper, out of court statements made by CW-1 as limited background. For all of

the reasons set out in the Defendants Motion in Limine No. 3 on this subject, CW-1s hearsay

statements regarding the beginning of his interactions with the Defendants are entirely

inadmissible. Attempts by the Government to admit this hearsay through the backdoor by

eliciting testimony about the investigative decisions of Agent Gonzalez are also improper. The

Defendants will not restate all of their arguments regarding the inadmissibility of this evidence as

set out in their Motion in Limine No. 3. Nevertheless, several aspects of the Governments

argument on this point are factually and legally unsound and should be rejected by the Court.

First, while the Government is correct that the courts have permitted background

testimony in a very limited set of circumstances where hearsay is implicated, courts explicitly

reject the notion that the background justification can be used to admit any hearsay the

Government wishes to inject into the case. See, e.g., United States v. Reyes, 18 F.3d 65, 70 (2d

Cir. 1994) (reversing as a result of the Governments improper elicitation of hearsay proffered as

background).

The cases upon which the Government relies do not stand for this point and are dissimilar

in critical ways from the instant case. For example, in the Second Circuits unpublished

summary order in United States v. Roy, a felon-in-possession prosecution, the Government posed

a single question, to which the defendant failed to object at trial, concerning what led the

detectives to begin looking into the defendant. 444 F. Appx 480, 481 (2d Cir. 2011) (The

government asked Warner the following question: Could you tell us, Detective, what was the

2
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general nature of the investigation as it was conveyed to you on March 9th of 2007? Warner

responded: As it was conveyed to me, an individual had come forward and indicated that a John

Roy living at 60 Church Street might be in possession of numerous handguns and assault-type

weapons.).

Applying the lenient plain error standard of review, the court affirmed the conviction,

finding no plain error because the statement was limited by the use of the word might, which

not only softened the impact of the statement but also underscored that the statement was being

used to provide background information explaining the impetus for and the sequence of the

investigation. Id. at 482. But here, in contrast to the situation in Roy, the Court is not faced

with a simple gun possession charge stemming from a vague but typical informant tip. Instead,

the Government is attempting to prove the Defendants intent in the context of a complex sting

operation in which the Defendants are specifically challenging the Governments version of

events, including the Governments account of the early interactions between the informants and

the Defendants, andmost criticallyincluding whether it was the Government, through El

Sentado, or the Defendants who first initiated contact and broached the alleged conspiracy. Roy

in no way demonstrates that the testimony the Government seeks to elicit here is appropriate.

The Governments additional authority is similarly inapposite. 1 (Br. 7). United States v.

Regan dealt with a perjury charge against a corrupt police officer in which the court admitted

background information of the mere generalized allegation of corruption that had triggered the

investigation. 103 F.3d 1072, 1082-83 (2d Cir. 1997). Again, as in Roy, Regan did not present a

1
United States v. Tracy cannot lend any support to the Government. 12 F.3d 1186 (2d Cir. 1993). Tracy provides
almost no substantive information about the nature of the hearsay objections that the court allowed, but rather
features a summary rejection of the various hearsay protestations of a defendant who proceeded pro se at trial and
apparently did not understand the rules of evidence. Id. at 1201. Tracy in no way demonstrates that the type of rank
hearsay the Government seeks to admit here is appropriate.

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situation where the out-of-court statement implicated the central defense and highly contested

issues of intent. The out-of-court statements in Regan had no real potential to influence the fact

finder with regard to the central question of whether the defendant had perjured himself. See id.

Importantly, the court in Regan based its ruling, in part, on the fact that [i]t [was] obvious from

the record that the government respected the courts instructions and did not attempt to convince

the jury that the allegations were true. Id. Here, by contrast, the Government necessarily

expects and wants the jury to accept these out-of-court statements for their truththey are

otherwise irrelevant.

Indeed, the closest analogue and most fulsome analysis of this type of proffered

background evidence in the Second Circuit is unquestionably Reyes, where the Second Circuit

reversed the defendants conviction on the basis of the erroneous admission of supposed

background that was, in reality, improper hearsay. See Reyes, 18 F.3d at 70-72. In Reyes, the

Government elicited testimony that was substantially less problematic than the testimony that the

Government seeks to elicit here:

Q. Yes. As a result of your further conversations, did you come to


a conclusion that there were other individuals involved in this
criminal enterprise?
A. Yes, I did.
Q. And who were those other individuals?
A. Rafael Reyes and Jeffrey Stein.
Then after testifying about the discovery of the scuba gear and the
tools in the Reyeses car, Caggiano testified as follows:
Q. After you made those observations, did you have any further
discussions with these two individuals?
A. Yes.
Q. And as a result of those discussions, did you learn whether Mr.
Stein had been in Connecticut?
A. Yes, I did.

Id. at 67-68. In reversing, the court emphasized that contrary to the governments contention,

the mere identification of a relevant non-hearsay use of such evidence is insufficient to justify its

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admission if the jury is likely to consider the statement for the truth of what was stated with

significant resultant prejudice. Id. at 70 (emphasis added). The court made clear that the

general limit of appropriate background testimony was clarifying noncontroversial matter

and noted that the Government had exceeded these boundaries. See id. The court described a

number of questions that should be addressed in assessing the potential admissibility of

background evidence and, after applying these tests to the background admitted in that case,

reversed the defendants conviction. Id. at 71-72.

Here, the Government cannot claim that it is not offering the hearsay statements of CW-1

for the truth when the statements go directly to critical issues and they are unnecessary to

explain the nature of the investigation. Specifically, the Government has failed to explain why it

is necessary to introduce more information than the fact that CW-1 contacted Gonzalez plus the

facts regarding the instructions that Gonzalez provided. Everything else the Government

proposes constitutes a transparent attempt to expose the jury to the hearsay assertions of CW-1

for their truth. The Government proffers that it seeks to elicit:

(i) [I]n early October 2015, CW-1 reported to Agent Gonzalez via
BBM that CW-1 had been contacted regarding potential cocaine
transations [sic] involving Venezuelan nationals; (ii) on October 3,
2015, CW-1 reported to Agent Gonzalez via BBM that one or
more Venezuelans were coming to meet with him that day, near
Lago de Yojoa, about a drug-trafficking venture; (iii) CW-1
informed Agent Gonzalez that the Venezuleans [sic] with whom he
met had requested that he send representatives to Venezeula; and
(iv) CW-1 informed Agent Gonzalez that he did not record the
meeting but had obtained multiple photographs of it.

(Br. 7). The Defendants will not object to testimony regarding CW-1s statement to Agent

Gonzalez that he did not record the meeting. The other statements, however, are plainly hearsay:

The Government is attempting to admitfor their truth and through the back doorCW-1s

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statements that the Defendants and their family members contacted him and requested that he

send individuals to Venezuela.

These hearsay statements are highly contested and go to certain of the critical issues at

trial as they relate to intent and entrapment. These statements constitute inadmissible hearsay

that is significantly more problematic than the hearsay erroneously admitted in Reyes.

Moreover, the Government cannot sidestep this inadmissibility with a generalized claim that the

hearsay is responsive to attacks on the investigation. The Second Circuit in Reyes described

limited situations where the admission of such hearsay is necessary to respond to a claim that a

special agent, for example, had fabricated evidence. See Reyes, 18 F.3d at 70. This does not and

cannot mean that any hearsay can come in as background if the defendant asserts any defense.

Like the argument of the prosecutors in Reyes, this argument evidences an egregious []

misunderstanding of the circumstances that will justify such evidence. See id. The Court

should reject it.

II. The Government Has Failed To Demonstrate That CS-1 and CS-2 Should Be
Permitted To Testify That The White Powdery Substance At The October 27, 2015
Meeting Was Cocaine.

In Section II of its Brief, the Government argues that the informants known as CS-1 and

CS-2 should be permitted to testify to their opinion that the substance at the October 27, 2015

meeting was cocaine. (Br. 10). Again, the Defendants will not reiterate all of the arguments

advanced in their Daubert Motion in Limine No. 2 on this issue demonstrating that this testimony

is inadmissible and highly improper expert testimony. 2 There are several errors, however, in the

Governments reasoning that the Defendants address below.

2
Rule 702 of the Federal Rules of Evidence requires the district court to ensure that expert testimony is reliable.
24/7 Records, Inc. v. Sony Music Entmt, Inc., 514 F. Supp. 2d 571, 574 (S.D.N.Y. 2007). The Rule codifies the
holdings of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999), and subsequent decisions. See, e.g., Astra Aktiebolag v. Andrx Pharm., Inc., 222 F. Supp. 2d

6
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First, the Government is wrong that testimony from the informants that the substance in

question was cocaine would constitute proper lay opinion testimony. (Br. 10). To be clear, the

Defendants do not dispute that there are situations in which lay opinion testimony can be

properly admitted as to the identity of a controlled substance. This is not one of them. As the

Defendants set out in their Daubert motion, the paradigmatic situation where such lay testimony

is appropriate occurs when a user familiar with the effect of the drug ingests the cocaine and

experiences the chemical effect associated with the substance. See, e.g., United States v. Scott,

725 F.2d 43, 46 (4th Cir. 1984) (affirming admission of lay testimony where several experienced

cocaine users had ingested the drugs in question and confirmed that it was cocaine).

Here, both informants have testified explicitly that they did not ingest the substance and

indeed CS-2 apparently did not even touch it. (E.g., Tr. 427). 3 It is a matter of common sense

that cocaine cannot be identified by sight or feelthere are innumerable white powders of every

conceivable texture available. See, e.g., Ross v. State, 528 So. 2d 1237, 1239 (Fla. Dist. Ct. App.

1988) (the white powder contained therein may be milk sugar or any one of a vast variety of

other white powdery chemical compounds not containing cocaine); Danae VanSickle Grace,

The Sky Is Not Falling: How the Anticlimactic Application of Melendez-Diaz v. Massachusetts

to Oklahomas Laboratory Report Procedures Allows Room for Improvement, 63 OKLA. L. REV.

383, 414 (2011) ([T]he accurate visual identification of certain narcotics, like cocaine and

423, 486-88 (S.D.N.Y. 2002). Under Rule 702, the proponent of expert testimony bears the burden of satisfying
each step of a three-part inquiry. Berk v. St. Vincents Hosp. & Med. Ctr., 380 F. Supp. 2d 334, 349 (S.D.N.Y.
2005). First, the proponent must show that the witness is qualified as an expert to testify as to a particular matter.
Nimely v. City of N.Y., 414 F.3d 381, 397 (2d Cir. 2005). Second, the proponent must show that an experts
reasoning or methodology is reliable. Koppell v. N.Y. State Bd. of Elections, 97 F. Supp. 2d 477, 479 (S.D.N.Y.
2000). To warrant admissibility . . . it is critical that an experts analysis be reliable at every step. Amorgianos v.
Natl R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002). [W]hen an expert opinion is based on data, a
methodology, or studies that are simply inadequate to support the conclusions reached, Daubert and Rule 702
mandate the exclusion of that unreliable opinion testimony. Berk, 380 F. Supp. 2d at 350, 355 (quoting
Amorgianos, 303 F.3d at 266).
3
Tr. refers to the transcript of the September 8-9, 2016 suppression hearing.

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heroin, is nearly impossible due to the millions of chemicals that can be made into white powder.

Furthermore, imitation drugs complicate sole reliance on lay testimony and circumstantial

evidence because the circumstances surrounding a sale of real drugs are strikingly similar to a

sale of imitation drugs.) (footnote omitted). This is the reason, of course, why in nearly every

responsibly conducted investigation an actual sample of the cocaine is taken and a qualified

scientist offers reliable, scientific testimony regarding the identification of the substance in

question as cocaine. The Government has failed to identify a single case where lay opinion

testimony on the identity of a substance as cocaine was admitted in a trial on narcotics charges

without ingestion by a knowledgeable user or the introduction of other reliable corroborating

information.

The first case cited by the Government, United States v. Moon, is entirely dissimilar from

the situation presented by the Governments instant proffer of evidence. 802 F.3d 135, 148 (1st

Cir. 2015). Critically, the defendant in Moon was not even tried on a controlled substance

violation; rather, he was convicted of having possessed a firearm as a felon. See id. Indeed, in

Moon, the primary case cited by the Government on this point, the court observed that while the

defendant was initially also charged with narcotics violations, [t]he government voluntarily

dismissed the drug trafficking counts after learning that the substances had been tested by a state

laboratory chemist who had used improper techniques. Id. at 141 (emphasis added). The

question of the identity of the controlled substance was therefore tangential to the central issues

in the casethe district judge gave limiting instructions reflecting this very different reality. See

id. at 144-45 (the court reminded the jury that Moon was not charged with any drug offense,

and stated that the testimony was being admitted for a limited purpose related to the firearms

charge.).

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Moreover, in Moon, the testimony in question was not given by an informant who

conducted a quasi-scientific test highly likely to mislead the jury about its reliability and

significance. Instead, it was testimony from a police officer who described the identification of

the controlled substances largely on the basis of their shape, size, and the way in which they are

packaged as observed during his twenty-seven years on the police force. Id. at 142, 147-48.

There is almost no similarity between this testimony and the testimony that the Government

suggests CS-1 should be permitted to offer, which is clearly Rule 702 testimony and is plainly

inadmissible.

The second case cited by the Government, United States v. Durham, 464 F.3d 976, 982-

83 (9th Cir. 2006), explicitly makes the point that the Defendants have asserted above and in

their Daubert motionRule 701 drug identification testimony is permissible where the person

has ingested the drug in question. See id. at 982 (Ms. Nicholss testimony was thus based upon

her personal knowledge, and her first-hand, multi-sensory interaction with the substance in

question: Ms. Nichols viewed the contents of the water pipe used by Michala, and Ms. Nichols

then smoked from the pipe, which afforded her the opportunity to smell, taste, and experience the

effects of its contents.) (emphasis added). Conveniently, the Government leaves this part of the

Ninth Circuits opinion out of their parenthetical citation. (Br. 11). For this portion of its

opinion, the Ninth Circuit cited the Eighth Circuits decision in United States v. Westbrook, 896

F.2d 330 (8th Cir. 1990), in which the Eighth Circuit similarly indicated that the admission of lay

testimony on the identity of a controlled substance was appropriate only where a user had

ingested the substance. See id. at 335 (Both witnesses stated that they had used the substance,

described its effects, and said that it was amphetamine.). The same is true of each and every

one of the other cases cited by the Government in their motion in liminenone of them indicate

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that lay opinion testimony in a narcotics case can be properly admitted on the identity of a

controlled substance where it has not been ingested by the witness. 4 (Br. 11). As described in

the Governments Daubert motion, this is unreliable expert testimony that is not of a type that

courts or commentators suggest is appropriate. 5

In short, the Government has failed to cite even a single case indicating that the drug

identification opinions of CS-1 and CS-2 should be admitted. The authorities are quite to the

contrary. The Court should reject the Governments application.

III. Alleged Evidence Of Efforts To Obtain and Smuggle Weapons Is Inadmissible and
Not Offered For Any Proper Purpose.

A. Alleged Firearm Evidence Is Not Admissible As Background Evidence.

The Government seeks to introduce evidence relating to the defendants efforts to obtain

weapons from the United States and smuggle them into Venezuela between May and August

2015. (Br. 12). This evidence should not be admitted because it is entirely irrelevant, it is not

being offered for any proper purpose, and its probative value is far outweighed by its prejudicial

effect. Indeed, the evidence that the Government is seeking to introduce has almost no probative

value. It consists of a series of text messages allegedly discussing the shipment of firearms into

Venezuela and various photographs of guns. But, as the Government admits, there is no

evidence that these firearms were ever actually sent to Venezuela, much less used in connection

4
See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009) (reversing and finding violation of Confrontation
Clause where the State of Massachusetts used affidavits from qualified chemists to identify cocaine without live
testimony from a qualified expert); United States v. Gaskin, 364 F.3d 438, 460 (2d Cir. 2004) (observing that [t]he
parties . . . stipulated to the testimony of a forensic chemist that she had personally tested the drug exhibits and
found all to contain marijuana and offering no comment on the admission of lay drug identification testimony);
United States v. Bryce, 208 F.3d 346, 353-54 (2d Cir. 1999) (reversing drug conviction where Government failed to
offer any corroborating information to recordings implicating defendant on wiretap and no actual drug evidence was
offered.). None of these cases suggest in even the slightest way that the Government can offer CS-1s lay testimony
based on his observation and feel of the substance.
5
See 4 Jack B. Weinstein & Margaret A. Burger, Weinsteins Federal Evidence 701.03[4][b] (Matthew Bender 2d
ed. 2002) (courts should not permit lay witness[es] to give what is essentially expert opinion testimony.).

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with the conspiracy charged in this case. (Id. 12-14). Most critically, the Government has

pointed to no evidence demonstrating that the firearms were even intended to be used in

connection with the charged conspiracy. Accordingly, for the reasons set forth below, this

evidence is inadmissible.

As its primary argument for the admissibility of this evidence, the Government simply

declares that firearms are tools of the trade in narcotics cases and, therefore, admissible at trial.

(See id. 15). That is not the law. In this Circuit, courts have approved the admission of firearms

as evidence of narcotics conspiracies where they are being used to protect stash houses or other

drug distribution centers because drug dealers commonly keep firearms on their premises as

tools of the trade. See United States v. Wiener, 534 F.2d 15, 18 (2d Cir. 1976); see also United

States v. Fernandez, 829 F.2d 363, 367 (2d Cir. 1987) (Even if the fully loaded gun did not

belong to appellant, it did belong to a named coconspirator and it was seized from the scene of

the drug transaction.). For example, in one of the cases cited by the Government, United States

v. Becerra, 97 F.3d 669 (2d Cir. 1996), law enforcement agents executed a search warrant on an

apartment where a package containing 730 grams of cocaine was meant to be delivered.

Becerra, 97 F.3d at 670. Inside the apartment, customs agents found all of the makings of a

stash house: four scales (three of which had cocaine residue on them), 90 grams of heroin, and a

bag containing various types of ammunition, which were admitted at trial as tools of the trade.

Id. at 670-72. 6 It is clear that firearms and ammunition are admissible when they are seized at

stash houses because they constitute tools of the trade that are similar to scales, glassine

6
The Government also cites United States v. Mitchell, 328 F.3d 77 (2d Cir. 2003), which is wholly inapplicable as it
related to whether certain sentencing enhancement apply under U.S.S.G. 2K2.1(b)(5). Mitchell, 328 F.3d at 83.
That enhancement applies if a defendant transferred any firearm or ammunition with knowledge, intent or reason to
believe that it would be used or possessed in connection with another felony offense. Id. That determination
obviously utilizes a legal standard entirely different from the applicable standard for background or 404(b)
evidence. Presumably the Government cited this case only for the language from the Becerra decision, which is
distinguished above.

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bags, cutting equipment and other narcotics equipment kept at those types of locations. See

Wiener, 534 F.2d at 18.

In this case, there was no seizure of any firearms from a stash house or any other

location where narcotics, scales, glassine bags, or other tools of the trade were kept. Similarly,

there is not even evidence that the Defendants operated or had access to any such stash house

or drug spot from which narcotics were sold. The Government, in its motion, offers no proof

that any of the firearms pictured on the phone were used in any way in connection with the

charged conspiracy and, therefore, they should not be admitted. See, e.g., United States v.

Erickson, 794 F. Supp. 273 (N.D. Ill. 1992) (admission of multiple firearms that had not been

identified as being used in any of the crimes charged in the superseding indictment [would be]

unduly prejudicial). This is clear from the other case that the Government relies on, United

States v. Santillan, 13 Cr. 138 (RWS), 2015 WL 6444628, at *2 (S.D.N.Y. 2015). In that case,

the defendant was a passenger in a car from which police seized cocaine that had been hidden

away. At trial, Santillan argued that the he was merely a passenger in the car, with no

knowledge of the cocaine and no connection to any drug conspiracy. Id. Given that defense,

Judge Sweet admitted the firearms evidence because Santillan received the rifle from a

coconspirator and used in it the course of the conspiracy. Id. (emphasis added). The

Government cannot simply offer photographs of firearms when they have established no

connection at all between the guns and the charged conspiracy. 7

7
In a footnote, the Government states that it will establish that the defendants employed armed security personnel
and will introduce pictures of those armed guards. (Br. 15, n.11). They should not be permitted to do so. The
Defendants are both related to senior officials in the Venezuelan government and both had security measures in
place to protect their personal safety. This is not surprising. The United States Department of State has noted that
Venezuela has one of the worlds highest crime rates . . . [including] the second highest homicide rate [and that]
[v]iolent crime - including murder, armed robbery, kidnapping, and carjacking - is endemic throughout the country.
Venezuela Travel Warning, United States Department of State Bureau of Consular Affairs, available at
https://travel.state.gov/content/passports/en/alertswarnings/venezuela-travel-warning.html. There can be no serious

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Similarly, the Government argues that the firearms evidence is necessary to establish the

relationship between the Defendants. This is one of two additional arguments in which the

Government attempts to offer prejudicial 404(b) evidence in response to issues that are not

presently in dispute. There is no dispute that the Defendants had a relationship of trust. Nor is it

disputed that they were close and trusting friends with Gilson. Moreover, it is not even clear

why the relationship of trust between Gilson and the Defendants is relevant, since Gilson is not a

charged co-conspirator and has not otherwise been identified as a co-conspirator. Regardless, as

the Governments own cases make clear, admission of this type of evidence to prove such a

relationship is only permissible where there is an actual dispute. See United States v. Mercado,

573 F.3d 138, 141 (2d Cir. 2009) (permitting introduction of Rule 404(b) evidence where it was

relevant and highly probative as to knowledge and intent, both of which were disputed and

where Defendant strenuously argue[d] some of the observed conduct might be nothing more

than innocent acts of a friend.). There is no dispute over these matters and, therefore, the

evidence is unnecessary.

In the alternative, the Government contends that the efforts to obtain weapons from the

United States are probative of Campos belief that he could easily transport contraband over

the Venezuelan border because of his political access and connections. (Br. 16). Here, as an

initial matter, the evidence proffered by the Government appears to demonstrate the opposite of

what it is trying to establish because the Defendants were not able to actually bring the firearms

into Venezuela. (See id. at 13 (I told him to take the mini uzi on the plane and the fucker didnt

bring it.)). Moreover, the ability to transport other types of small items is not probative of the

dispute that both Defendants, by virtue of their familial status and the ongoing tumult in their country, faced a high
risk of being assaulted, kidnapped, or even murdered.

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ability to transport hundreds of kilograms of cocaine. Indeed, the conduct at issue revolves

around bringing an item into Venezuela, which is an entirely different activity from smuggling

contraband out of Venezuela and into the United States.

In any event, the probative value of the firearms evidence is vastly outweighed by its

prejudicial effect. To reiterate, the Government characterizes the evidence as demonstrating

efforts to obtain weapons. The Government offers no proof that the firearms were purchased

illegally in the United States or that they were ever actually sent to Venezuela. Most

importantly, they also offer no proof that these firearms were used in any way in connection with

the charged conspiracy.

To emphasize, the tools of the trade basis for offering firearms evidence in narcotics

cases does not extend to circumstances in which the Government can offer no evidence that the

firearms had, or were intended to have, any connection to the trade. Rule 404(b) provides that

evidence of other acts beyond the charged crime is not admissible to prove a persons

character in order to show that on a particular occasion the person acted in accordance with the

character. United States v. Scott, 677 F.3d 72, 77 n.4 (2d Cir. 2012); see id. (reversing

conviction because of improper admission of other acts evidence in narcotics distribution trial);

see also United States v. Garcia, 291 F.3d 127, 137 (2d Cir. 2002) (Government may not invoke

Rule 404(b) and proceed to offer, carte blanche, any prior act of the defendant in the same

category of crime.). Thus, [i]n the Rule 404(b) context, similar act evidence is relevant only if

the jury can reasonably conclude that the act occurred and that the defendant was the actor.

Huddleston v. United States, 485 U.S. 681, 689 (1988). The Government must identify a

similarity or connection between the two acts that makes the prior act relevant to establishing

knowledge of the current actwithout a connection between the two acts, the prior act is not

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relevant or probative and is inadmissible. Garcia, 291 F.3d 127 at 137-38. The Second Circuit

has frowned upon less problematic 404(b) evidence in the context of narcotics cases. 8

On the other hand, the prejudicial effect of such evidence is obvious and immense. The

Government is seeking to show out-of-context text messages and pictures of dangerous looking

firearms to the jury to make the Defendants appear like dangerous and violent thugs. They

should not permitted to do so because that evidence is not relevant to any issue in this case. As

the Government is well aware, there are no allegations of violence or of the use of firearms in the

Indictment or in any of the expected testimony.

The Governments own citations support this conclusion. In United States v. Ulbricht,

which the Government cites in arguing that the firearms evidence is not unduly prejudicial, (Br.

17), the defendant was charged with having designed, launched, and supervised the

administration of Silk Roada sprawling online marketplace for illicit goods and services and

the Government alleged in the indictment that the Defendant was wiling to resort to violence to

protect silk road. 79 F. Supp. 3d 466, 472 (S.D.N.Y. 2015). In this context, the court admitted

evidence that the defendant participated in murder-for-hire related to his protection of Silk Road.

The evidence was therefore highly probative as it served as direct evidence of the crimes

charged, making the connection between the other act and an element of a charged offense

manifest. Id at 480. Here there is no such connection whatsoever and it is therefore not

probative and inadmissible. See also United States v. Gordon, 987 F.2d 902, 908 (2d Cir. 1993)

(explaining that probative value depends largely on whether or not there is a close parallel

between the crime charged and the acts shown.).

8
In a prosecution for drug trafficking, a prior drug conviction was not sufficiently similar to be probative where the
prior drug conviction involved two grams of cocaine and the charged crime involved between three and eleven
kilograms of cocaine. Id at 138. The prior drug transaction in Garcia was the same kind of offense and yet the
Second Circuit held that it was not similar enough in degree to serve as other act evidence. Id.

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B. None of The Governments Proffered Evidence Goes To Predisposition and Must


Therefore Be Excluded Even If Defendants Present An Entrapment Defense.

For the reasons addressed in Part VII of this Opposition, infra, the Defendants are

permitted to present an entrapment defense and intend to do so. Yet the Defendants anticipated

entrapment defense does not, as the Government apparently claims, mean that the Government

can seek to admit any evidence whatsoever by claiming that the evidence demonstrates

predisposition. The Government asserts that it may offer [additional 404(b)] evidence if the

Defendants present an entrapment defense or in the event of testimony by defense witnesses.

(Br. 17, n. 12). Here, the Government is conflating two entirely separate contingencies. First, if

the Defendants or other potential defense witnesses testify, the range of information with which

the Government could confront the Defendants is certainly expanded substantially. The analysis

that applies to entrapment, however, is not the same analysis that applies to defendant testimony.

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IV. The Court Should Reject The Governments Attempt To Improperly Limit The
Defendants Cross Examination Of Witnesses Regarding DOJ Policy Concerning
Recording Of Custodial Interviews.

In Section IV of its Motions in Limine, the Government argues that the Court should

preclude references to the [DOJ Custodial Interview] Recording Policy at trial. (Br. 18). This

application is not based in law and reflects a misunderstanding of both the Rules of Evidence and

the Sixth Amendment. For several reasons, this application must be rejected.

A. Applicable Law

Federal Rule of Evidence 611 states that a litigant is permitted to conduct an examination

through the use of leading questions on cross-examination or when a party calls a hostile

witness, an adverse party, or a witness identified with an adverse party. Fed. R. Evid. 611.

Even in the context of direct examination at mere suppression hearings, courts have found

reversible error in restrictions on the right to examine witnesses with appropriate leading

questions. See, e.g., United States v. Ienco, 92 F.3d 564, 568 (7th Cir. 1996) (Posner, J.)

(reversing conviction on basis of district courts improper restriction of defendants use of

leading questions during examination of adverse witness during suppression hearing).

The Sixth Amendment provides, in relevant part, that [i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for

his defense. U.S. CONST. amend. VI. The Second Circuit has explained the implication of this

language as follows:

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The Confrontation Clause of the Sixth Amendment, which applies


to the states through the Fourteenth Amendment, see Pointer v.
Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965),
guarantees the defendant in a criminal prosecution the right to
confront the witnesses against him. This means more than being
allowed to confront the witness physically, for [t]he main and
essential purpose of confrontation is to secure for the opponent the
opportunity of cross-examination. Davis v. Alaska, 415 U.S.
308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (quoting
5 J. Wigmore, Evidence 1395, p. 123 (3d ed. 1940) (emphasis in
Wigmore)); see Delaware v. Van Arsdall, 475 U.S. 673, 678, 106
S.Ct. 1431, 1434-35, 89 L.Ed.2d 674 (1986).

Henry v. Speckard, 22 F.3d 1209, 1214 (2d. Cir. 1994). The Clauses ultimate goal is to ensure

reliability of evidence, but it is a procedural rather than a substantive guarantee. Crawford v.

Washington, 541 U.S. 36, 61 (2004). It commands not that evidence be reliable, but that

reliability be assessed in a particular manner: by testing in the crucible of cross-examination.

Knoller v. Miller, No. 12-cv-0996 (JST), 2014 WL 3107770, at *23 (N.D. Cal. July 3, 2014),

affd, 633 F. Appx 418 (9th Cir. 2016).

B. Discussion

First, the Government has improperly based its application on the subjective view of

certain of its agents that the policy did not apply. (Br. 18-20). The Defendants disagree with this

interpretation, which hinges on whether the airplane where the defendants were housed after

their arrests constituted a place of detention under the policy. But whether the Defendants or the

Government is correct does not matter. The bottom line is that, pursuant to this policy read as a

whole, the default presumption of the Department of Justice is that post-arrest interviews should

be recorded. Indeed, the case agent, Agent Gonzalez, explicitly testified, under oath, at the

suppression hearing in this case to this fact:

20 Q. You are aware of DOJ policy that indicates there is a


21 presumption that a postarrest interview should be recorded
22 except in certain limited exceptional situations, right?
23 A. Yes.

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(Tr. 126.) Thus, the case agents understanding of the policy, as explained in his testimony, is in

conflict with the Governments interpretation of the policy. The remainder of the Governments

application is an assortment of buzzwords like mini-trial with no clear connection to any

coherent argument for the preclusion of cross-examination on this subject.

As is obvious, cross-examination of federal agents on their compliance with policies and

procedures is a regular feature of appropriate cross-examination. See, e.g., United States v.

Montgomery, 676 F. Supp. 2d 1218, 1232 (D. Kan. 2009) (Carillo testified that he had followed

DEA policy regarding taking samples from the plants, see Jury Trial (Doc. # 71-1) at 156:5-12,

but did not testify whether he followed DEA policy regarding photographing and/or destroying

the plants.); United States v. Feilbogen, 494 F. Supp. 806, 810 (S.D.N.Y. 1980) (Cavuto

testified at trial that prior to April 18, 1980, it was his understanding that DEAs policy required

retention of all rough notes of interviews and did not require retention of the rough notes of

surveillances.). This, of course, makes sense, because compliance with policy is always

relevant to questions of motive and questions about the integrity of the investigation.

The Supreme Court has held that defendants have a right to cross-examination directed

toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate

directly to issues or personalities in the case at hand. The partiality of a witness is subject to

exploration at trial, and is always relevant as discrediting the witness and affecting the weight of

his testimony. Davis, 415 U.S. at 315-17 (reversing conviction where defendant was not

permitted to cross-examine witnesses on factual bases for potential bias because to make any

such inquiry effective, defense counsel should have been permitted to expose to the jury the facts

from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences

relating to the reliability of the witness). As the Second Circuit has explained, a defendants

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major weapon when faced with the inculpatory testimony of an accusing witness often is to

discredit such testimony by proof of bias or motive to falsify. Evidence of such matters is never

collateral. United States v. Blackwood, 456 F.2d 526, 530 (2d Cir. 1972). Moreover, because

Agent Gonzalez is the sole witness who can testify to the post-arrest statements, as a result of the

failure to record these statements, full cross-examination is imperative. United States v.

Robinson, 583 F.3d 1265, 1273-74 (10th Cir. 2009) (reversing conviction on basis of improper

limitation of cross of key Government witness and observing that, [w]here the witness the

accused seeks to cross-examine is the star government witness, providing an essential link in

the prosecutions case, the importance of full cross-examination to disclose possible bias is

necessarily increased).

The exact nature of the policy is relevant here because it will be important for the

Defendants to point out that the agents had the discretion under the policy to record the post-

arrest interview and chose not to record it. For numerous reasons, this bears on important,

contested issues in the case. The only case the Government cites in support of is application has

nothing to do with the DOJ recording policy. In United States v. Bruce, the Seventh Circuit

affirmed a federal conviction where the district judge had precluded cross-examination of

witnesses about a Wisconsin state law that mandated recording of interviews. 550 F.3d 668 (7th

Cir. 2008). The entire basis of the decision was merely that [a]ssuming that Detective Rietzler

violated state law by turning off the recorder, that violation was irrelevant in this federal case.

Id. at 673.

Here, the defense intends to cross-examine federal agents about federal policy, the policy

of their agency specifically. The Government has not identified any authority that suggests that

such cross can be appropriately precluded.

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Indeed, the Governments attempts to preclude cross on this subject are an extension of

an apparent pattern of disregard for the Confrontation Clause rights of the Defendants and for the

Federal Rules of the Evidence. The Defendants are concerned that the prosecutors practices

with respect to objections have the potential to poison the presentation of evidence at trial. At

the suppression hearing in this case, the Government interjected during cross-examination with

numerous objections alleging that certain questions mischaracterized the testimony, lacked

foundation, or were asked and answered. Like the request to preclude cross on a subject as

fundamental as the circumstances surrounding the post-arrest statement, these objections were in

conflict with the Rules of Evidence, the rights of the Defendants under Rule 611, and the

Defendants constitutional rights to confront the witnesses against them pursuant to the Sixth

Amendment.

1. The Governments Mischaracterizes the Testimony Objections

Given the Governments attempt to improperly preclude cross examination, it bears

mention that at the suppression hearing, the Government offered a number of other improper

objections, including on the basis of questions on cross-examination that supposedly

mischaracterized the testimony. For example, during the cross-examination of Agent

Gonzalez, the Government offered the following objection:

4 Q. Well, its true, isnt it, that one of the things that you
5 talked about on direct examination is the idea that there were
6 concerns about CW-1s status as a person who had a disability?
7 A. Yes.
8 Q. And that is not something that gave you any concern in
9 terms of his ability to record this meeting, right?
10 MR. BOVE: Objection.
11 Mischaracterizes the testimony.
12 THE COURT: Sustained.
13 Q. Did CW-1s status as a person with a disability pose any
14 concerns for you in terms of his ability to record the meeting?
15 A. Yes.

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(Tr. 92) (emphasis added). Later, during the cross-examination of Agent Gonzalez, the

Government offered the mischaracterizes the testimony objection again:

22 Q. There were times when CS-1 was in Caracas when you


were
23 communicating with him on BlackBerry messenger, correct?
24 A. Yes.
25 Q. And lets face it, thats the only way you communicated
1 with that guy, right?
2 A. Pretty much.
3 Q. You didnt meet with him in person to check up on him,
4 did you?
5 A. When he was in Caracas?
6 Q. No, ever.
7 MR. BOVE: Objection, mischaracterizes the testimony.
8 THE COURT: Sustained.

(Tr. 167-68). The following day, during the testimony of Agent Zachariasiewicz, the

Government again interjected with this objection during cross-examination:

8 Q. You would agree with me, sir, that one of the priorities if
9 you have someone that was recently arrested and that you
wanted
10 to proactively cooperate, would be an actual supplier of
11 cocaine, right?
12 A. I just said that might be one of the things we would look
13 at.
14 Q. In this case you determined there was no actual supplier
15 that you had access to, right?
16 MR. QUIGLEY: Objection.
17 Mischaracterizes his testimony.
18 THE COURT: Sustained.

(Tr. 340). At most other times in the suppression hearing, the Government made this objection

and the Court appropriately overruled the objection. Regardless, the Governments objections of

this type were almost entirely improper and demonstrated confusion on the part of the

prosecutors as to the appropriate limits of such an objection.

First, even assuming mischaracterizes the testimony is an appropriate objection, in

order for such an objection to be appropriately made, the question has to at least explicitly

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reference prior testimony and misstate what that prior testimony was. In each of the three

examples cited above, the question did not reference prior testimony, but rather simply asked, in

a leading manner: (1) whether Agent Gonzalez had concerns about CW-1s ability to record a

meeting; (2) whether Agent Gonzalez met with CW-1 in Caracas; and (3) whether Agent

Zachariasiewicz had determined that there was no actual supplier of the supposed cocaine that

the DEA could access.

Under Rule 611, the Defendants were explicitly authorized to ask these questions in a

leading fashionnothing about the leading form of the question implicated prior testimony on

the subject. Most critically, the Governments objections appear erroneously to be based on the

idea that if a witness has previously testified on a subject, the Defendants are prohibited from

asking a leading question that suggests a different answer on the same subject. This runs entirely

counter to the most fundamental rights of the Defendants to cross-examine the witnesses against

them. The Defendants cannot be limited to the answers that the Government elicited on direct

to the contrary, the Defendants are permitted to probe the same areas and suggest different

answers.

Second, although this objection may be made at times by inexperienced attorneys, it is

not even an appropriate trial objection during testimony. While an argument regarding

mischaracterizing the testimony during summation or in briefing is evaluated differently, there is

no component of the Federal Rules or any case that the Government can identify supporting the

idea that an objection is appropriately made during witness testimony for mischaracterizing the

testimony. If a witness disagrees with a questioners characterization of what he said, it is up to

the witness to disagree. The Government is not authorized by the Rules of Evidence to make its

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own determination of whether a question hews closely enough to the answer a witness previously

gave in order to constitute an appropriate question.

If this type of objection were permissible, a defendant would have no ability to quibble

with the characterizations of the Governments witnesses. This, however, is obviously one of the

most important functions of cross-examination. The entire dispute of many trials is over the

appropriate characterization of events. Indeed, a number of commentators have discussed how

this particular objection is abused in depositions and trials. See, e.g., Robert B. Sykes, Abusive

Deposition Objections and TacticsIn Search of a Standing Order, 11 UTAH B.J. 8, 20 (1998)

(This objection is also often used abusively . . . . Obviously, counsel has the right to probe the

witness knowledge and motives, particularly where the witness is hostile or evasive. This

doesnt mean that deposing counsel must accept a witnesss first, evasive answer, just because it

is first. It is therefore hard to see how a follow-up question, by itself, can mischaracterize prior

testimony when it is not characterizing testimony at all. It is simply asking about the same

matter from a different perspective, perhaps one that is unhelpful to opposing counsels case.).

In sum, the Court should reject the very concept of this objection. Even if the Court

deems the objection conceptually permissible, the Court should prohibit the Government from

using this objection in the manner that it did at the suppression hearingas a tool to prevent

entirely permissible cross-examination.

2. The Governments Foundation Objections

The Court appropriately rejected nearly all of the Governments numerous foundation

objections during cross-examination. Nevertheless, these objections were without evidentiary

basis and the Governments repeated use of such objections, even where they were obviously

baseless, raises the possibility of intentional disruption or improper signaling to witnesses. For

example, during the cross-examination of CS-1, the following exchange occurred:

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16 Q. The first thing I want to ask you about, sir, is your


17 communications with the person known as El Sentado.
18 A. Yes, sir.
19 Q. Do you know who Im talking about?
20 A. Yes.
21 Q. This is an individual also known as CW-1, correct?
22 MR. QUIGLEY: Objection. Foundation.
23 THE COURT: Overruled.
24 A. I dont know that. I dont know that. I only know him as
25 Sentado.

(Tr. 417). The apparent basis for the Governments objection was the idea that the question

could not be posed without establishing a foundation that CS-1 was familiar with this identifier

for El Sentado. But in the context of cross-examination, such an objection is entirely improper.

The Government cannot identify any authority demonstrating that such a foundation must be

laid on cross-examination. The Court should preclude the Government from using this type of

meritless objection to unnecessarily disrupt appropriate questioning.

3. The Governments Asked and Answered Objections

Finally, the Government made a number of objections to questions as asked and

answered on cross-examination. See, e.g., (Tr. 111) (Q. Certainly, it would not have been

impossible for someone from the Venezuela office to meet with CS-1? MR. BOVE: Objection.

Asked and answered. THE COURT: Sustained. Q. Why would it have been impossible for

someone from the Venezuela office to meet with CS-1 after the meeting? A. They dont have

contact with informants in Venezuela.); see also (Tr. at 189, 194, 372, 463). This is a generally

improper objection on cross-examination, with the possible exception of the most extreme

situations of repeated questions. See, e.g., F. Lee Bailey & Kenneth J. Fishman, 2 Criminal Trial

Techniques 57:30 (May 2016 Update). Bailey and Fishman write:

A frequently heard objection during cross-examination is that the


question has been asked and answered. This basis is not a
proper objection. The cross-examiner must be permitted sufficient
freedom to test the witness veracity and reliability. Although the

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scope of such cross-examination lies within the discretion of the


trial court, a serious abuse of that discretion can be reversible error.
The fact that a question has been asked and answered is an
improper objection because, unlike direct examination, cross-
examination is not designed solely to elicit information about the
objective facts. Without sufficient freedom to probe and search, an
examiner cannot successfully impeach a witness. Impeachment
may require putting a question to the witness on multiple
occasions.

Id. The Court appropriately rejected many of these objections, yet none of them should have

been made. Such objections were yet another prong in what was either a willful attempt by the

Government to frustrate legitimate, constitutionally protected cross-examination, or a reflection

of the prosecutors misunderstanding as to the limits of appropriate objection on cross-

examination. Either way, the Government should not be permitted to flood the Court with

baseless objections and frustrate the Defendants Sixth Amendment rights in this manner.

In sum, the Government has not come close to demonstrating that cross-examination on

the topic of DOJ policy regarding recordings should be precluded. The Court should reject this

argument and the other attempts of the Government to frustrate the defendants rights to

appropriately cross-examine the witnesses at trial.

IV. The Governments Extraordinary Request For Preclusion Of Any Self-Serving


Exculpatory Statements, Irrespective Of The Context Of Those Statements, Is
Without Legal Basis And Would Be Fundamentally Unfair.

While acknowledging that [t]he Governments proof at trial will consist, in large

measure, of the defendants [sic] . . . statements, (Br. 21), the Government, remarkably, now

seeks to preclude the Defendants from providing the jury with the full context in which those

very statements were made. The Governments broad request in its motion in liminethat the

Defendants be categorically precluded from eliciting any self-serving exculpatory statements

made during recorded conversations, text message exchanges, or during their post-arrest

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interviews with law enforcement to the extent they would not otherwise be admissible pursuant

to a hearsay exception, (Br. 23) (emphasis added)cannot be squared with the law of this

Circuit or with fundamental considerations of fairness.

At the outset, the Defendants submit that, to the extent the Government seeks to introduce

selected portions of Mr. Campo Floress or Mr. Flores de Freitass statements through testimony

or otherwise, the rule of completeness will permit the Defendants to admit the entirety of those

statements. As codified in part in Federal Rule of Evidence 106, the rule of completeness

provides that [i]f a party introduces all or part of a writing or recorded statement, an adverse

party may require the introduction, at that time, of any other partor any other writing or

recorded statementthat in fairness ought to be considered at the same time. 11

Here, as one of the very cases relied upon by the Government, United States v. Marin,

669 F.2d 73 (2d Cir. 1982), makes clear, the [the Second Circuit] ha[s] interpreted [Rule 106] to

require that a statement be admitted in its entirety when this is necessary [1] to explain the

admitted portion, [2] to place it in context, . . . [3] to avoid misleading the trier of fact . . . , or [4]

to ensure a fair and impartial understanding of the admitted portion. Id. at 84 (citing United

States v. Rubin, 609 F.2d 51, 63 (2d Cir. 1979); United States v. Mulligan, 573 F.2d 775, 778 (2d

Cir. 1978); United States v. Jamar, 561 F.2d 1103, 1108 (2d Cir. 1977); United States v.

Capaldo, 402 F.2d 821, 824 (2d Cir. 1968); Fed. R. Evid. 106, advisory committees note). 12 In

11
The purpose of the completeness rule is to ensure that a misleading impression created by taking matters out of
context is corrected on the spot, because of the inadequacy of repair work when delayed to a point later in the trial.
Therefore, the rule of completeness protects litigants from the twin pitfalls of creative excerpting and manipulative
timing. 1 Whartons Criminal Evidence 4:10 (15th ed.). While Rule 106 applies only to writings, [the Second
Circuit] ha[s] previously explained that the rule of completeness is substantially applicable to oral testimony, as
well by virtue of Fed. R. Evid. 611(a), which obligates the court to make the interrogation and presentation
effective for the ascertainment of the truth. United States v. Mussaleen, 35 F.3d 692, 696 (2d Cir. 1994)
(quotation and internal citation marks omitted).
12
Cf. United States v. McDarrah, No. 05-cr-1182 (PAC), 2007 WL 273799, at *9 (S.D.N.Y. Jan. 31, 2007) (Crotty,
J.) (The Second Circuit has repeatedly held that when a party has made use of a portion of a document, Rule 106

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addition, and pertinent here, the Second Circuit has held that the rule of completeness is

violated . . . where admission of the statement in redacted form . . . excludes information

substantially exculpatory of the declarant. United States v. Yousef, 327 F.3d 56, 154 (2d Cir.

2003).

As the Supreme Court has held, the rule of completeness requires that the opponent,

against whom a part of an utterance has been put in, may in his turn complement it by putting in

the remainder, in order to secure for the tribunal a complete understanding of the total tenor and

effect of the utterance. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171 (1988); see also

Carver v. United States, 164 U.S. 694, 697 (1897) (where the whole or a part of a conversation

has been put in evidence by one party, the other party is entitled to explain, vary, or contradict

it); cf. United States v. Smith, 794 F.2d 1333, 1335 (8th Cir. 1986) (Generally, when part of a

defendants post-arrest statement is introduced into evidence, the defendant has the right to have

the entire statement introduced.).

Consequently, as discussed above, the Defendants submit that the rule of completeness

requires that the jury be given the full context of any inculpatory snippets of statements offered

by the Government at trial. This will be especially important if the snippets offered by the

Government distort the statements meaning or exclude substantially exculpatory

information. Yousef, 327 F.3d at 150; accord United States v. Alvarado, 882 F.2d 645, 651 (2d

Cir. 1989) (rule of completeness is violated where admission of the statement in redacted form

distorts its meaning or excludes information substantially exculpatory of the declarant),

overruled on other grounds by Bailey v. United States, 516 U.S. 137 (1995).

requires the introduction of the entire or a related document when necessary to explain the admitted portion, to place
it in context, or to avoid misleading the trier of fact. Similarly, such documents must be admitted when necessary to
ensure a fair and impartial understanding of the admitted portion.).

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But even if, arguendo, the rule of completeness does not sweep so broadly as to require

admission of the entire statements, at a minimum, the Governments invitation to this Court to

rule that all non-inculpatory evidence must be precluded is wholly premature and inappropriate.

It is well established that, under the rule of completeness, even though a statement may be

hearsay, an omitted portion of the statement 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. Coplan, 703

F.3d 46, 85 (2d Cir. 2012) (emphasis added) (quoting United States v. Kopp, 562 F.3d 141, 144

(2d Cir. 2009)). 13 Consequently, the Governments request to exclude any . . . statements . . . to

the extent they would not otherwise be admissible pursuant to a hearsay exception, (Br. 23), is

an invitation to this Court to misapply the controlling law. If adopted, moreover, the position

advanced by the Government would render the rule of completeness a dead letter.

Critically, the Governments motion does not even identify which statements by Mr.

Campo Flores and/or Mr. Flores de Freitas it intends to offer as evidence. This fact alone makes

it impossible, at this stage, for the Defendants or the Court to undertake the necessary, context-

dependent inquiry regarding precisely what additional statements must be admitted in order to

ensure that the sections of statements offered by the Government are not misleading, taken out of

context, or unfair (whether due to the failure to include substantially exculpatory information,

13
Contra United States v. Terry, 702 F.2d 299, 314 (2d Cir. 1983) (suggesting, in dicta, that Rule 106 does not
render admissible evidence that is otherwise inadmissible). This stray dictum, upon which the Government
prominently relies, is of questionable validity today because it has been flatly and repeatedly contradicted by
subsequent Second Circuit decisions. See, e.g., Coplan, 703 F.3d at 85 (rule of completeness requires that even
though a statement may be hearsay, an omitted portion of the statement 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) (emphasis added); see generally 1 Whartons Criminal
Evidence 4:10 (15th ed.) (Even evidence that is not otherwise admissible, however, sometimes gets admitted
pursuant to the rule of completeness.); 1 Kenneth S. Broun et al., McCormick on Evidence 56 (7th ed. 2013)
(stating that the claim that the rule of completeness only allows otherwise admissible evidence is unsound,
particularly as applied to hearsay law).

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or otherwise). District courts properly and routinely deny government motions in limine on this

basis, as the Government surely is aware. For example, in United States v. Walia, No. 14-cr-213

(MKB), 2014 WL 3734522, at *8 (E.D.N.Y. July 25, 2014), the district court properly denied the

governments motion in limine as premature, reasoning as follows:

The Court cannot anticipate whether the governments witnesses


will introduce partial statements by Defendant that require the
remaining statements to be introduced to prevent distortion.
Accordingly, the Court reserves decision as to whether the listed
statements, or any other exculpatory statements by Defendant, are
admissible under the doctrine of completeness. The Court notes,
however, that to the extent the government is seeking to introduce
statements made by Defendant to law enforcement admitting his
involvement in, or knowledge of, drug trafficking, Defendants
statements to law enforcement during the same interview denying
any knowledge and involvement in drug trafficking are admissible.

Id. at *8. So too here.

It is well established that [t]he trial court should exclude evidence on a motion in limine

only when the evidence is clearly inadmissible on all potential grounds. United States v. Pugh,

162 F. Supp. 3d 97, 100-01 (E.D.N.Y. 2016) (citing authorities). Here, the broad remedy the

Government seeks (preclusion of any self-serving exculpatory statements) is clearly

inappropriate and, at a minimum, premature. Limiting the introduction of the Defendants

statements to those the Government proposes would deprive the jury of a clear and complete

understanding of what was said. Moreover, the Government has not yet identified precisely what

specific statements the Government seeks to admitmaking it impossible for the Government to

establish that taking those statements out of context would not be misleading or unfair.

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V. The Governments Courtroom Security Arguments Miss The Mark.

The Government, in its motion in limine, reiterates its requests for, inter alia, heightened

courtroom security measures and to permit certain of its witnesses to testify using pseudonyms.

But the Defendants submit that the Government has failed to make the necessary showing as to

why standard courtroom security procedures are insufficient here. For example, spectators and

other courtroom participants are already prohibited from recording witnesses, and all entrants

to the courthouse are already obligated to strip off all coats, belts, and shoes, pass through a

magnetometer, and have all bags and briefcases x-rayed. Indeed, the court just completed the

installation of a new, state-of-the-art, security pavilion entrance for the Daniel Patrick Moynihan

United States Courthouse, where the trial will be held. 14 One of the express purposes of the

renovation was to assure that appropriate screening could be efficiently conducted of all

individuals entering the courthouse given the number of significant high profile trials held at

500 Pearl Street. 15 The Government has simply failed to demonstrate why the specific,

incremental security measures they seekwhich are, indeed, merely a subset of the identical

measures already in place in the courthouseare, in fact, necessary or even useful here.

Although the Defendants appreciate the Governments representations that any

additional Deputy U.S. Marshals assigned to the courtroom will be in plainclothes and that none

of the Marshals or Court Security Officers will be openly carrying firearms, (Br. 25), the

Defendants are skeptical that a second magnetometer could practically be placed in such a way

as to be not visible to members of the jury. Moreover, the cases cited by the Government to

support its position are, in large measure, inapposite, either because in those cases the defendants
14
Notice to the Bar, Office of the District Court Executive, Aug. 31, 2016,
http://www.nysd.uscourts.gov/cases/show.php?db=notice_bar&id=418.
15
E.g., Daniel Patrick Moynihan U.S. Federal Courthouse Ribbon Cutting Ceremony,
http://www.gsa.gov/portal/content/130414.

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agreed to the heightened security measures, see, e.g., United States v. Muntslag, No. 13 Cr. 635

(SAS) (Dkt. No. 78) (S.D.N.Y. 2016) (Defendant does not oppose these requested measures . . .

.), or because the law enforcement interests implicated are materially different, see, e.g., United

States v. Naseer, No. 10 Cr. 19 (RJD) (Dkt. No. 382) (E.D.N.Y. 2015 (finding the use of a

pseudonym appropriate where [t]he officers continue to work in undercover capacities on

sensitive investigations, many of which involve national security matters and where

[d]isclosing their identities would jeopardize these covert operations and where [t]he

government has shown that terrorist organizations, such as al-Qaeda, seek out the true identities

of MI-5 agents as they view them as attractive targets). Indeed, the Government has failed to

identify any narcotics importation case of this type where these types of elevated security

procedures have been utilized.

In any event, the comparative intrusiveness of the security measures should not matter

unless and until the Government has justified their need relative to the tremendous risk of

prejudice that they would cause to the Defendants. The Defendants take security issues

extremely seriously

. The defense teams are comprised in part of multiple former federal prosecutors, all

of whom have worked with witness security issues in the past and understand the gravity of even

a minimal concern about the safety of witnesses.

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The blunt

application of the measures that the Government proposesnumerous additional security

personnel and a redundant magnetometer screeningwould have that very effect. For these

reasons, the Court should not employ them here.

VI. The Defendants Are Entitled To Present An Entrapment Defense At Trial.

A. Entrapment is a Jury Question.

As the Supreme Court has made clear, the question of entrapment is generally one for

the jury, rather than the Court. Mathews v. United States, 485 U.S. 58, 63 (1988); see also

United States v. Kopstein, 759 F.3d 168, 181 (2d Cir. 2014) (same); id. (reversing conviction for

district courts failure to give proper and fulsome entrapment instruction). The issue of whether

there is a factual dispute relating to entrapment sufficient to submit the issue to the jury typically

arises at the conclusion of a trial, when a district judge must decide if adequate evidence has

been presented to warrant an entrapment instruction. United States v. Fadel, 844 F.2d 1425,

1430 (10th Cir. 1988).

The Governments motion in limine improperly requests that this Court find, as a matter

of law, prior to the Defendants presentation of evidence, that the Defendants cannot

demonstrate entrapment. Such a request is unsupported by case law and granting it would

constitute reversible error. The most obvious component of a defendants Fifth and Sixth

Amendment right to present evidence in his favor is to present evidence that has a direct bearing

on a formal element of the charged offense and this reasoning applies with equal force to

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directly proving the existence of an element of an affirmative defense. United States v. Hurn,

368 F.3d 1359, 1363-64 (11th Cir. 2004) (collecting cases reversing convictions where defendant

was prevented from presenting evidence related to affirmative defenses, including the

entrapment defense).

Thus, perhaps unsurprisingly, the Government does not cite any authority in which a

court precluded the defendant from presenting an entrapment defense before trial. (Br. 38-42).

Rather, in nearly all of the authority cited by the Government, the district court instructed the

jury on the entrapment defense, the jury rejected the entrapment defense, and the defendant later

appealed, taking issue with the substance of the jury instruction on entrapment or the sufficiency

of the evidence. 16 The Government has cited no such authority because, as explained by the

Tenth Circuit, the vast majority of courts which have considered the issue have not favored the

pretrial resolution of entrapment defense motions. Fadel, 844 F.2d at 1430 (collecting cases)

(emphasis in original). See also United States v. Mayfield, 771 F.3d 417, 420 (7th Cir. 2014)

(Procedurally, the entrapment defense is an issue of fact for the jury.); United States v. Myers,

527 F. Supp. 1206, 1224 (E.D.N.Y. 1981), affd, 692 F.2d 823 (2d Cir. 1982) (Predisposition is

generally a question of fact to be determined by the jury.); 2A Fed. Prac. & Pro. Crim. 495

(4th ed.) (explaining that entrapment is generally question for jury); id. (inappropriate for court,

in deciding a motion in limine to preclude an entrapment instruction and thereby balance the

defendants evidence against the governments, invading the province of the jury). The

reasons for such a preference are grounded in the fact that the defense of entrapment is

16
See, e.g., United States v. Gagliardi, 506 F.3d 140, 145 (2d Cir. 2007) (appealing based on sufficiency of the
evidence where defendant argued that evidence at trial was insufficient to support a conviction for attempted
enticement or to defeat his entrapment defense); United States v. Brand, 467 F.3d at 190 (attacking sufficiency of
evidence on appeal after jury rejected entrapment defense); United States v. Salerno, 66 F.3d 544, 547 (2d Cir.
1995) (appealing based on erroneous entrapment instructions and insufficiency of evidence).

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intertwined with the issue of intent and is typically based upon credibility determinations, an area

traditionally reserved for jury resolution. Fadel, 844 F.2d at 1430.

[E]ven when inducement has been shown, submission to the jury is


not required if uncontradicted proof has established that the
accused was ready and willing without persuasion and to have
been awaiting any propitious opportunity to commit the offense.

17
Part II of this Opposition opposes the admissibility of this evidence in total for the reasons stated therein.

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In such cases there is no real issue for the jury even though in strict
theory it might create one by speculating that the agents had found
the defendant less willing than they said. On the other hand, the
production of any evidence negating propensity, whether in cross-
examination or otherwise, requires submission to the jury, however
unreasonable the judge would consider a verdict in favor of the
defendant to be.

United States v. Riley, 363 F.2d 955, 959 (2d Cir. 1966) (Friendly, J.) (emphasis added)

(reversing conviction and ordering new trial where district court precluded defendant from

arguing entrapment defense to the jury).

No such situation exists here, given thatfar from uncontradicted proofthe

Government has presented nothing more than speculation. Serious factual disputes exist

concerning both inducement and predisposition that must be heard and decided by a jury. See,

e.g., United States v. Anglada, 524 F.2d 296 (2d Cir. 1975) (explaining that cases involving an

entrapment defense frequently present an issue of credibility as between the agent and the

defendant and the resolution of such an issue is peculiarly within the jurys province)

(internal quotations and citations omitted). The Seventh Circuit has further instructed that in

ruling on a pretrial motion to preclude the entrapment defense, the court must accept the

defendants proffered evidence as true and not weigh the governments evidence against it. This

important point is sometimes obscured, subtly raising the bar for presenting entrapment evidence

at trial. Mayfield, 771 F.3d at 431.

B. The Defendants Will Present Evidence of Inducement At Trial.

With respect to government inducement, a defendants evidentiary burden is relatively

slight requiring only that the government initiated the crime. United States v. Brand, 467

F.3d at190. Inducement includes soliciting, proposing, initiating, broaching or suggesting the

commission of the offense charged. Or, put another way, a defendant must establish that [it was]

the prosecution [that] set the accused in motion . . . . Id. (internal quotations and citations

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omitted). The Defendants burden of proof on inducement may be relatively easily satisfied.

Id.

Here, the Defendants vigorously dispute the Governments alleged predisposition

evidence, as the defense will argue that the very same evidence constitutes inducement. In

particular, the Defendants dispute the Governments claim that the Defendants initiated contact

with El Sentado, the cooperating witness who first met with the Defendants in October 2015.

Indeed, the Defendants will demonstrate through evidence and argument that it was El Sentado

who initiated contact with the Defendants, thus showing that the Government, through El

Sentado, is responsible for soliciting, proposing, initiating, broaching or suggesting the

commission of the charged offense. United States v. Sherman, 200 F.2d 880, 883 (2d Cir.

1952). The testimony at the suppression hearing shows that the only evidence concerning the

Governments claim that the Defendants reached out to El Sentado is Agent Gonzalezs

recollection; Agent Gonzalez failed to preserve communications between himself and El Sentado

and failed to take contemporaneous notes of his multiple telephone conversations with El

Sentado about the Defendants in violation of the DEA Manual. (Tr. 85-86 (Q: So at this point,

we have no indication of what the communication was between you and CW-1, right? A: Other

than my recollection.)). Agent Gonzalez further testified that his recollection of his

communications with El Sentado was incomplete. Id. The Defendants thus dispute the factual

issue asserted by the Government that it was the Defendants who initially reached out to El

Sentado; and therefore this factual issue must be resolved by the jury. Moreover, the

Defendants version of the facts would constitute inducement and shift the burden to the

Government to demonstrate predisposition.

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The defense will also show that the Defendants were induced through the promise of a

very large sum of money disproportionate to their contribution to the alleged conspiracy. The

Defendants will show that they were promised $20 million to do nothing more than provide

access to Venezuelan airports by leveraging their alleged political connections. Such a huge sum

of money for such minimal effort can, in and of itself, constitute inducement. On this point as

well, the Government misstates the law when it asserts that the terms of the alleged conspiracy,

themselves, cannot constitute inducement. (Br. 41-42). The cases cited by the Government

stand for the mundane proposition that the normal profit expected through the individual sale of

small amounts of narcotics in undercover sales and purchases cannot constitute inducement.19

The Governments own authority, however, supports the Defendants argument that where the

benefit or profit of the crime is disproportionately large or unusual, or profit of an unusually

advantageous rate, courts do not foreclose the possibility that such an atypical benefit could

serve as inducement. 20 United States v. Glover, 153 F.3d 749, 755 (D.C. Cir. 1998). Glover also

noted that both inducement and predisposition are normally matters for the jury. Id. Thus

multiple avenues exist through which the Defendants will demonstrate inducement at trial.

19
In these cases, individuals were apprehended after selling small amounts of narcotics to an undercover officer or
informant and argued that the offer to purchase drugs was, in and of itself, inducement. In United States v.
McKinley, for example, the defendant himself testified to previous involvement in the drug trade and prior drug
related convictions for cocaine. 70 F.3d 1307, 1312 (D.C. Cir. 1995). In that context, the D.C. Circuit remarked, in
dicta, that because the financial gain from the proposed drug transaction was the market rate or the typical benefit
contemplated in such drug transactions, the mere expectation of profit could not constitute inducement per se. This
was especially the case because the defendant had manifested a willingness to facilitate the drug transaction
before the promise of reward. Id. at 1312.
20
The remaining two cases cited by the Government in supposed support of this point are wholly inapposite. United
States v. Young rejected the entrapment theory after defendant waived his right to a jury at the close of evidence
because the only form of inducement offered was the friendship of the government informant. United States v.
Young, 78 F.3d 758, 762 (1st Cir. 1996). In United States v. Mendoz-Salgado, the jury was presented with and
instructed on the entrapment defense and rejected it, a finding that defendant later challenged arguing that the court
should find entrapment as a matter of law. 964 F.2d 993, 1004 (10th Cir. 1992). Mendoz-Salgado does not discuss
monetary compensation nor did the defendant argue that an atypical monetary award constituted inducement. Id.

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The Defendants will also establish that it was the Government and the Governments

agents who proposed that any alleged drug conspiracy would result in the importation of drugs

into the United States. The testimony at the suppression hearing demonstrated that the

confidential sources were instructed by DEA Agents to mention the United States in

conversation with the Defendants. (Tr. at 378-79). Thus, the Defendants will show at trial that it

was the prosecution that set the accused in motion and induced the Defendants to agree to an

alleged conspiracy to import drugs into the United States. 21 Brand, 467 F.3d at 190. That the

Government does not find this evidence persuasive, (Br. 40), is obviously not dispositive, nor

can its rhetorical argument that, according to the Government, the Defendants did not bristle[]

at the express indication that the cocaine would be imported to this country, serve to preclude

the entrapment defense as a matter of law. Id.

C. The Government Has Not Cited Any Admissible Predisposition Evidence.

The Governments argument that the alleged immediate acceptance of the confidential

sources October 23 proposal also demonstrates their predisposition, (Br. 41), misunderstands

and misstates the law of entrapment. Predisposition evidence must be presented from the time

period prior to the first contact with the government agent. United States v. Cromitie, 727 F.3d

at 204. As the Supreme Court has explained, the Government must show that the defendant

was disposed to commit the criminal act prior to first being approached by government agents.

Jacobson v. United States, 503 U.S. at 549; see also United States v. Brown, 43 F.3d 618, 627

21
The Governments argument that Government agents did not initiate those negotiations or the defendants trip to
Honduras, and the defendants did not suggest in their pretrial motions that there was any evidence to the contrary,
(Br. 39), is a puzzling non-sequitur. The Defendants were under no obligation at the suppression hearing or in the
related briefing to present any part of their entrapment defenseindeed, the presentation of such evidence would
have transgressed the scope of the hearing. The Defendants simply have no obligation to pre-litigate their
entrapment defense. This is why courts decline to preclude entrapment defenses on the basis of motions in limine.
Doing so would require a mini-trial before the trial which would involve the repetition between the proof at such
motion hearings and the proof at trial. Fadel, 844 F.2d at 1430-31.

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(11th Cir. 1995) (explaining that predisposition has a definite temporal reference: the inquiry

must focus on a defendants predisposition before contact with government officers or agents)

(emphasis in original).

Here, the Government attempts to cite highly disputed evidence concerning the

Defendants alleged acceptance of the invitation to join the conspiracy that occurred a full three

weeks after the initial contact by the Government agent, El Sentado, occurred on October 3,

2015. Such evidence cannot properly constitute predisposition evidence. The evidence at the

suppression hearing demonstrated that El Sentado was instructed to record the meeting with the

Defendants and elected not to record this meeting. (Tr. at 89-90). This failure to record means

that the Government has no evidence, whatsoever, of the Defendants reaction to the initial

invitation to participate in the alleged conspiracy and cannot demonstrate, as a matter of law, that

the Defendants were predisposed to commit the crime charged because the Government cannot

present any undisputed evidence of the Defendants first interaction with El Sentado. 22

CONCLUSION

For the reasons given above, as well as the reasons set out in the Defendants principal

motions in limine, the Defendants respectfully submit that the Governments applications should,

in large part, be denied.

22
It is also important to note and reject the Governments tacit argument that an entrapment defense cannot be
presented through cross-examination of Government witnesses. The Government has cited no authority for this
implicit proposition, nor could it. See, e.g., Hughes v. United States, 427 F.2d 66, 67-68 (9th Cir. 1970) (reversing
conviction for limiting cross-examination of DEA Agent because that limitation hamstrung defendants ability to
present his entrapment defense by preventing him from evincing the informants incentive to deliver a subject for
prosecution by cross-examination of the government agents who worked with the informant on the case).

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Case 1:15-cr-00765-PAC Document 163 Filed 02/14/17 Page 55 of 55

Dated: October 26, 2016


New York, New York
Respectfully Submitted,

/s/ Randall W. Jackson


______________________________
Randall W. Jackson
John T. Zach
Joanna C. Wright
BOIES, SCHILLER & FLEXNER LLP
575 Lexington Avenue
New York, New York 10022
Telephone: (212) 446-2300
Facsimile: (212) 446-2350

Attorneys for Defendant Efrain Antonio


Campo Flores

/s/ David M. Rody


______________________________
David M. Rody
Michael D. Mann
Elizabeth A. Espinosa
SIDLEY AUSTIN LLP
787 Seventh Avenue
New York, New York 10019
Telephone: (212) 839-5300
Facsimile: (212) 839-5599

Attorneys for Defendant Franqui Francisco


Flores de Freitas

47