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Case 1:09-cr-00466-BMC-RLM Document 569 Filed 02/01/19 Page 1 of 2 PageID #: 6873

U.S. Department of Justice

United States Attorney


Eastern District of New York
GMP:BCR 271 Cadman Plaza East
F. #2009R01065 Brooklyn, New York 11201

February 1, 2019

By ECF

The Honorable Brian M. Cogan


United States District Judge
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201

Re: United States v. Joaquin Archivaldo Guzman Loera


Criminal Docket No. 09-466 (S-4) (BMC)

Dear Judge Cogan:

Pursuant to the Court’s order adopting the parties’ joint proposal for review of
sealed and redacted documents entered on the docket in this case, see Dkt. No. 557, the
government has reviewed the government filings identified with specificity in the letter of the
New York Times (Dkt. No. 536).

First, the government has determined that the considerations that previously
justified sealing docket entries 413, 421, 504, and 506 no longer apply – generally because the
cooperating witnesses identified or referenced in those entries have now been publicly revealed
– and those documents may therefore be unsealed in their entirety. The government asks the
Court to direct the clerk to unseal them and enter them on the public docket.

Second, with respect to docket entries 350, 354, 375, 396, 460, and 494, the
government hereby attaches those documents with partial redactions. These limited redactions
are necessary (1) to protect ongoing government investigations; (2) to protect operational
details about law enforcement operations and techniques, including details about witness
security programs; and (3) to protect cooperating witnesses who, although they testified
publicly at trial, have nonetheless taken steps to conceal their whereabouts and identities in
other parts of their lives. The government has previously set forth the legal bases for partial
sealing of these and other categories of information, and incorporates that discussion by
reference here. See Dkt. Nos. 404, 549. 1

1
With respect to docket entry 354, in particular, the government’s redactions are
consistent with the position the government previously articulated regarding redactions to that
Case 1:09-cr-00466-BMC-RLM Document 569 Filed 02/01/19 Page 2 of 2 PageID #: 6874

For the reasons set forth in the government’s prior submissions as well as in the
underlying documents themselves, the government submits that there is sufficient rationale for
the narrowly-tailored redactions to the docket entries attached hereto.

Respectfully submitted,

RICHARD P. DONOGHUE
UNITED STATES ATTORNEY
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201

ARTHUR G. WYATT, CHIEF


Narcotic and Dangerous Drug Section
Criminal Division,
U.S. Department of Justice

OF COUNSEL:

ARIANA FAJARDO ORSHAN


UNITED STATES ATTORNEY
Southern District of Florida

cc: Clerk of Court (BMC) (via ECF)


Defense Counsel (via Email)

motion. See Dkt. No. 549 at 5-6. The government additionally notes that many of the
witnesses referenced in docket entry 354 did not ultimately testify at trial.

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U.S. Department of Justice

United States Attorney


Eastern District of New York
GMP:BCR 271 Cadman Plaza East
F. #2009R01065 Brooklyn, New York 11201

October 9, 2018

TO BE FILED UNDER SEAL

By ECF

The Honorable Brian M. Cogan


United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11217

Re: United States v. Joaquin Archivaldo Guzman Loera


Criminal Docket No. 09-466 (S-4) (BMC)

Dear Judge Cogan:

Pursuant to its obligations under Giglio v. United States, 405 U.S. 150 (1972),
on October 5, 2018, the government disclosed information relating to the majority of its
cooperating witnesses. The government respectfully moves in limine to preclude cross-
examination of certain of the government’s witnesses as detailed below. 1

I. Legal Standard

The scope and extent of cross-examination is committed to the sound discretion


of the district court. See United States v. Wilkerson, 361 F.3d 717, 734 (2d Cir. 2004). A
court may properly bar cross-examination that is only marginally relevant to a defendant’s
guilt or other issues before the court. See United States v. Maldonado-Rivera, 922 F3d. 934,
956 (2d Cir. 1990); see also Fed. R. Evid. 611 (stating that “court should exercise reasonable

1
The government anticipates that it may file additional motions to preclude
cross-examination of certain witnesses pursuant to Federal Rules of Evidence 608 and 609 in
advance of their testimony, including the witnesses for whom the government has delayed
disclosure of 18 U.S.C. § 3500 material until two weeks prior to their testimony.
Case 1:09-cr-00466-BMC-RLM Document 569-1 Filed 02/01/19 Page 2 of 13 PageID #: 6876

control . . . so as to . . . avoid wasting time[] and protect witnesses from harassment or undue
embarrassment”).

A “decision to restrict cross-examination will not be reversed absent an abuse


of discretion.” United States v. Lawes, 292 F.3d 123, 131 (2d Cir. 2002) (citing United States
v. Rosa, 11 F.3d 315, 335 (2d Cir. 1993)). The Second Circuit has repeatedly upheld district
courts’ exercise of discretion in imposing reasonable limits on the subjects that may be
inquired into on cross-examination. See United States v. Rivera, 971 F.2d 876, 886 (2d Cir.
1992) (“The court is accorded broad discretion in controlling the scope and extent of cross-
examination.”); Rosa, 11 F.3d at 336 (holding that district court properly precluded cross-
examination on alleged rape and burglary by witness because conduct did not bear directly on
witness’s credibility and allegations were unsubstantiated).

Federal Rule of Evidence 608(b) governs where a party seeks to elicit testimony
regarding specific instances of a witness’s conduct to attack the witness’s character for
truthfulness. See United States v. Peterson, 808 F.2d 969, 973-74 (2d Cir. 1987); see also
United States v. Cruz, 894 F.2d 41, 43 (2d Cir. 1990) (“Under Rule 608(b), the court has
discretion to permit or deny a line of inquiry on cross-examination.”). Rule 608(b) provides
in pertinent part:

Except for a criminal conviction under Rule 609, extrinsic


evidence is not admissible to prove specific instances of a
witness’s conduct in order to attack or support the witness’s
character for truthfulness. But the court may, on cross-
examination, allow them to be inquired into if they are probative
of the character for truthfulness or untruthfulness of . . . the
witness.

Fed. R. Evid. 608(b). The advisory committee’s note to Rule 608(b) also notes that because
the “possibilities of abuse are substantial” in cross-examination, specific instances may only
be inquired into if they are probative of truthfulness, “not remote in time,” and not “outweighed
by danger of unfair prejudice, confusion of issues, or misleading the jury.” Fed. R. Evid. 608
advisory committee’s note.

Rule 609(a)(1)(A) provides that evidence of a witness’s conviction for a felony


offense “must be admitted, subject to Rule 403” and that evidence “for any crime regardless
of the punishment . . . must be admitted if the court can readily determine that establishing the
elements of the crime required proving—or the witness’s admitting—a dishonest act or false
statement.” Fed. R. Evid. 609(a)(2). Moreover, if more than 10 years have passed since the
witness’s conviction or release from confinement, whichever is later, evidence of a conviction
is “admissible only if its probative value, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect.” Fed. R. Evid. 609(b).

Admission of such evidence is further limited by Federal Rules of Evidence 402


and 403, which exclude otherwise relevant evidence if its “probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues . . . , or by considerations

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of undue delay, waste of time, or needless presentation of cumulative evidence.” United States
v. Figueroa, 548 F.3d 222, 229 (2d Cir. 2008); United States v. Devery, 935 F. Supp. 939, 407-
08 (S.D.N.Y. 1996) (“[E]ven if the prior act does concern the witness’s character for
truthfulness under Rule 608(b), its probative value must not be substantially outweighed by its
unfairly prejudicial effect under Rule 403.”); United States v. Brown, No. 07-CR-874 (KAM),
2009 WL 497606, at *4 (E.D.N.Y. Feb. 26, 2009).

In evaluating the probity of specific instances of conduct, courts


consider numerous factors, including “whether the testimony of
the witness in question is crucial or unimportant, the extent to
which the evidence is probative of truthfulness or untruthfulness,
the extent to which the evidence is also probative of other relevant
matters, the extent to which the circumstances surrounding the
specific instances of conduct are similar to the circumstances
surrounding the giving of the witness’s testimony, [and] the
nearness or remoteness in time of the specific instances to trial.”

United States v. Nelson, 365 F. Supp. 2d 381, 390 (S.D.N.Y. 2005) (quoting John W. Strong,
McCormick on Evidence § 41). As another court in this district has previously explained, “[i]f
all that can be said about behavior is that it might be called improper, immoral, or
unlawful . . . asking about it can not be justified under Fed. R. Evid. 608.” United States v.
Stone, No. 05-CR-401 (ILG), 2007 WL 4410054, at *1 (E.D.N.Y. Dec. 14, 2007) (internal
quotation marks and citation omitted).

Similarly, Federal Rule of Evidence 611 requires district courts to exercise


“reasonable control” over the mode of interrogating witnesses so as to avoid “needless
consumption of time” and to “protect witnesses from harassment or undue embarrassment.”
Fed. R. Evid. 611(a). Thus, when considering the admission under Rule 608(b) of specific
instances of conduct that the court finds probative of truthfulness, the court must balance the
probative nature of the conduct against the Rule 403 and Rule 611 factors. See Brown, 2009
WL 497606 at *4. Moreover, pursuant to Rule 608(b), extrinsic evidence of a witness’s prior
conduct may not be admitted to attack his truthfulness. Peterson, 808 F.2d at 973-74; Brown,
2009 WL 497606 at *3.

II. Discussion

A. Domestic Violence Allegations

The government seeks to preclude cross-examination related to allegations of


domestic violence by three cooperating witnesses.

Cooperating Witness No. 1 (“CW1”) was involved in several domestic disputes


with his wife, one of which resulted in his arrest in or about 2005 or 2006 in Mexico. CW1
and his girlfriend (later and now wife) were intoxicated; she hit him, which caused him to fall
down the stairs, but the police arrested him. Subsequent to that arrest, CW1 paid his girlfriend

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to return to her home country and bribed a police official with $10,000 for his release. Mexican
authorities did not pursue charges.

Later, after CW1 reunited with his girlfriend (now wife), in or about 2009, she
became pregnant. When she stated that she intended to abort the pregnancy, CW1 threatened
to dissuade her by telling her that if she pursued an abortion she should consider herself dead.
Around the same time, CW1 sent BlackBerry Messenger messages to an associate stating that
he wanted to kill his wife after she gave birth over this issue. After one fight with his wife
related to this issue, CW1 asked the defendant for one of the defendant’s handguns. CW1
insists, however, that he was never serious about killing his wife. Eventually, CW1 sought
permission from the defendant to move to where his wife was living in Mexico to watch over
her to ensure that she did not terminate the pregnancy. His wife gave birth to the child and he
never attempted to harm her afterward.

After the birth of his child, CW1 had an argument with his wife (they had by
then been married) because he had sexually harassed the child’s babysitter. When confronted
by his wife, CW1 became upset and stopped talking to her.

Cooperating Witness No. 2 (“CW2”) was involved in two domestic disputes,


both of which resulted in his arrest, even though legal charges were subsequently dismissed.
Specifically, in December 2014, CW2 had an argument with his wife that resulted in his arrest,
and in February 2015, CW2 was involved in a fight with his adult stepson, for which he was
arrested. Both charges were dismissed.

Cooperating Witness No. 3 (“CW3”) has told the government that at one point
in approximately 1998-2000, he hit his then-wife in an argument and broke her cheekbone,
and that he had previously broken her nose during an altercation in approximately 1995-96.
Later, in approximately 2006 or 2007, he was involved in an altercation with a different wife
when he pulled her hair and grabbed her arm. The government has no indication that legal
charges were ever filed in relation to these incidents.

Cross-examination into these instances of domestic violence should be


precluded under Rules 608, 403, and 611. No criminal convictions resulted from any of these
instances, so Rule 609 does not apply. Cross-examination concerning them could therefore
only be permitted pursuant to Rule 608(b). But as noted above, a district court nonetheless
enjoys “broad discretion” to impose limits on cross-examination. Rivera, 971 F.2d at 886.
Rule 608(b), moreover, is “intended to be restrictive” and “does not authorize inquiry on
cross-examination into instances of conduct that do not actually indicate a lack of
truthfulness.” United States v. Nelson, 365 F. Supp. 2d 381, 386 (S.D.N.Y. 2005). Applying
these principles, courts in this circuit have previously prohibited defendants from inquiring
about instances of domestic violence on cross-examination. See, e.g., United States v. Fama,
No. 12-CR-186 (WFK), 2012 WL 6094135, *1 (E.D.N.Y. Dec. 7, 2012) (precluding cross-
examination as to domestic violence allegations, noting that there is not “anything inherent in
the nature of such acts that would directly involve truthfulness”); United States v.

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Gambardella, No. 10-CR-674 (KBF), 2011 WL 6314198, at *1 n.1 (S.D.N.Y. Dec. 15, 2011)
(witness’s past domestic abuse is not probative of character for truthfulness).

Even if admissible under Rule 608(b), these instances of domestic violence


should also be excluded under Rules 403 and 611. Details of abuse could mislead and confuse
the jury, and risk unfair prejudice by inviting the jury to improperly judge the witnesses’
credibility based on the jurors’ views of domestic violence rather than a proper assessment of
the witnesses’ truthfulness. See Fama, 2012 WL 6094135 at *1 (holding that domestic
violence allegations against witness are excludable in Rule 403 analysis because any probative
value is outweighed by “unfair prejudice that could result if the jury were to focus on the
purported instances of abuse rather than [the witness’s] testimony about the bank robbery”).
See also United States v. Jeffers, 402 Fed. App’x. 601, 603 (2d Cir. 2010) (“Moreover, even
if the alleged abuse was somehow relevant to Hick’s motivation for testifying, which is not
clear, the district court did not abuse its discretion in concluding that any probative value was
substantially outweighed by unfair prejudice and the need for a mini-trial on domestic
disputes.”). The court should therefore preclude cross-examination on the incidents described
above.

B. Sexual Activities With Underage Partners

The government seeks to preclude cross-examination regarding one cooperating


witness’s sexual activities with minors. Specifically, CW1 lived with the defendant from
approximately 2007-2008, during which time both he and the defendant engaged in sexual acts
with girls under the age of eighteen. CW1 will generally testify about drug trafficking
activities and related crimes, such as murder conspiracies, that he undertook while working
with the defendant from approximately 2007 to 2014. The defense should be precluded from
eliciting evidence or pursuing cross-examination of the witness about this sexual activity,
because it is not probative of CW1’s truthfulness pursuant to Rule 608, and because any slight
probative value is outweighed by the danger of unfair prejudice and confusion of the issues,
pursuant to Rules 403 and 611.

Specifically, CW1 has indicated that an associate of the defendant known as


“Commadre Maria” would regularly send photographs of girls as young as thirteen years old
to the defendant. For approximately $5,000, the defendant or one of his associates could have
the girl of his choice brought to one of the defendant’s ranches for sexual intercourse. CW1
availed himself of this service on 3-4 occasions with girls as young as fifteen years old, and he
witnessed the defendant do the same on multiple occasions, with girls as young as thirteen
years old. 2 Additionally, CW1 assisted the defendant in drugging the girls with whom the
defendant intended to have sex by placing a powdery substance into their drinks at the
defendant’s direction. CW1 did not drug his own sexual partners. CW1 recalls that the
defendant called the youngest of the girls his “vitamins” because he believed that sexual

2
Other cooperating witnesses corroborate the defendant’s actions in this regard.

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activity with young girls gave him “life.” The government does not plan to elicit or introduce
testimony related to these events.

Testimony about these sexual activities is not relevant to any fact of


consequence in this action. See Fed. R. Evid. 401. They simply do not bear on and are not
probative of the defendant’s drug trafficking activities or CW1’s relationship with the
defendant’s drug trafficking organization. Because a district court has “wide latitude . . . to
impose reasonable limits on . . . cross-examination,” Maldonado-Rivera, 922 F.2d at 956, the
Court may therefore preclude cross-examination into these sexual activities. See, e.g., United
States v. Stewart, 433 F.3d 273, 313 (2d Cir. 2006) (affirming district court ruling preventing
defense counsel from examining prosecution witness about his views of legality of his own
conduct); United States v. Thomas, 377 F.3d 232, 241 (2d Cir. 2004) (holding no abuse of
discretion where district court restricts cross-examination into irrelevant matters).

Even if relevant, cross-examination of CW1 as to these sexual activities would


be unfairly prejudicial and would unnecessarily harass the witness; it is therefore appropriately
limited under Rules 403 and 611. Salacious testimony about a witness’s sexual activity with
minors is likely to be highly inflammatory, and it would invite the jury to improperly discount
CW1’s testimony by “suggest[ing] decision on an improper bias, commonly, though not
necessarily, an emotional one.” Fed. R. Evid. 403 advisory committee’s note. Any testimony
about CW1’s sexual activities would be of only marginal relevance, as well, given that they
do not bear on the drug trafficking crimes in which he and the defendant engaged. The limited
relevance of the testimony would not therefore outweigh its prejudicial effect. Other courts
have precluded similar lines of examination for precisely these reasons. See United States v.
Darui, 545 F. Supp. 2d 108, 111-12 (D.D.C. 2008) (precluding defendant in fraud case from
inquiring as to witness’s adulterous sexual relations with two women because defendant had
not demonstrated how “marital fidelity is relevant to the charges in the indictment,” and
“evidence of polygamous activity is clearly so inflammatory in nature that . . . the evidence is
not admissible under Federal Rule of Evidence 403”); see also United States v. Bittner, 728
F.2d 1038, 1042 (8th Cir. 1984) (affirming district court’s ruling preventing defendant from
cross-examining victim-witness in kidnapping case about witness’s sexual history with
previous boyfriend as irrelevant and more prejudicial than probative).

Finally, CW1 was neither charged nor convicted with a crime in relation to this
sexual conduct, so Fed. R. Evid. 609—which allows, in certain circumstances, impeachment
of a witness by evidence of a criminal conviction—does not apply. Fed. R. Evid. 608(b), in
turn, would therefore only permit cross-examination into CW1’s sexual conduct if it is
“probative of [his] character for truthfulness or untruthfulness.” But the Second Circuit has
long held that past sexual misconduct, standing alone, does not bear on a witness’s propensity
to tell the truth. See United States v. Rodriguez, 648 Fed. Appx. 9, 11 (2d Cir. 2016) (“[T]his
Court has found that it is not an abuse of discretion to preclude questioning of prosecution
witnesses regarding sex crimes because such evidence has insufficient bearing on the witness’s
credibility.”); see also United States v. Rabinowitz, 578 F.2d 910, 912 (2d Cir. 1978)
(affirming trial court’s preclusion of cross-examination as to witness’s sexual acts with young

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children, noting that there was no “logical relevance” of those acts to the witness’s credibility).
The Court should therefore preclude the defense from cross-examining CW1 in this regard. 3

C. Unorthodox Interests

The government seeks to preclude cross-examination regarding one cooperating


witness’s unorthodox interests, and religious and spiritual beliefs. CW1’s BlackBerry
Messenger communications were intercepted by several law enforcement agencies pursuant to
judicially authorized Title III wiretaps, and a confidential source consensually recorded such
communications. In those communications, CW1 communicated with a close associate about
some of his interests in the Illuminati, Freemasonry, other planets, other galaxies, UFOs and
the idea that there was an impending apocalypse in 2012. CW1 generally learned about these
matters from internet videos and the Discovery Channel. When questioned by the government
about these interests, CW1 states that while he is interested in reading about and watching
videos about these topics, he does not believe that they are real or accurate.

CW1 also has an interest in astrology and witch doctors. He has personally
availed himself of the services of a witch doctor on several occasions. On one occasion, CW1
observed the defendant consulting with a witch doctor from whom he obtained snake oils. The
government does not intend to elicit testimony about these topics.

These unorthodox interests and beliefs are not relevant and do not bear on either
the defendant’s guilt or innocence or on CW1’s veracity and credibility. They do not,
therefore, have any probative value, or at most only very slight value. Moreover, the only
conceivable purpose in eliciting testimony on these subjects would be to invite the jury to
improperly judge the witness based on his spiritual beliefs and interests. That invitation would
risk unfair prejudice, confusion of the issues, and unnecessary delay should the government
need to rehabilitate CW1 from the embarrassment caused by inquiring into these matters.
Given that the defense will be free to cross-examine CW1 about his involvement in the drug
trafficking and murder conspiracies in which he was involved with the defendant, the risk of
prejudice greatly outweighs any possible probative value. Cross-examination should therefore
be limited under Rules 401, 403, and 611. Moreover, to the extent that these interests reflect

3
If the Court should find that cross-examination of CW1 on this topic is proper,
the government submits that it should be permitted to elicit testimony from CW1 about his
involvement in this activity with the defendant, specifically. Omitting such a critical fact from
CW1’s testimony would be misleading to the jury, and such testimony is arguably probative
of the relationship of trust between the defendant and CW1. United States v. Kalaydijian, 784
F.2d 53, 56 n.3 (2d Cir. 1986) (evidence of defendant’s prior meeting with cooperating witness,
at which plan to purchase heroin was discussed, was properly admitted “to establish the basis
of the trust relationship between [cooperating witness] and [defendant]”); see also, Old Chief
v. United States, 519 U.S. 172, 183 (1997) (analyzing the admissibility of evidence and finding
the trial court should make its determinations “with an appreciation of the offering party’s need
for evidentiary richness and narrative integrity in presenting a case”).

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CW1’s religious beliefs, cross-examination is prohibited pursuant to Fed. R. Evid. 610, which
states that “evidence of a witness’s religious beliefs or opinions is not admissible to attack or
support the witness’s credibility.” The Court thus should grant the government’s motion to
limit cross-examination on these grounds.

D. Previous Civil and Criminal Legal Issues

The government seeks to preclude cross-examination related to three witnesses’


prior civil and minor criminal legal issues.

First, the government expects that Cooperating Witness No. 4 (“CW4”) will
generally testify regarding his assistance in storing cocaine and marijuana for the Sinaloa
Cartel during the late 2000s. The government has disclosed a number of minor prior criminal
charges and convictions related to CW4 to the defense. Specifically, CW4 was arrested in
Texas in 1994 and charged with misdemeanor disorderly conduct, a charge to which he pleaded
guilty, after being arrested for running away from the police in a stolen vehicle. See Tex. Pen.
Code § 42.01 (disorderly conduct). CW4 was 17 years old at the time. CW4 was judged guilty
of a number of misdemeanor motor vehicle violations in 1999, including having an expired
license, an expired registration sticker, speeding, failure to maintain financial responsibility,
and failure to yield right of way. CW4 was 21 years old at the time, and was sentenced to five
days in jail (which amounted to time served). In 2007, CW4 was judged guilty of misdemeanor
public intoxication and ordered to pay a $101 cash bond. In 2010, CW4 pleaded guilty to a
charge of criminal nonsupport of his children. He owed his children’s mother $12,000, but
because he could only pay approximately half of that amount at the time, he spent
approximately six months in custody. In Texas, criminal nonsupport is a felony. Tex. Pen.
Code § 25.05.

Second, CW1 was involved in an incident in 1994 where he set fire to an area
behind a discotheque. Specifically, CW1 and a friend were denied entry to a discotheque
because the bouncer thought they were too intoxicated. In retaliation, CW1 and his friend
purchased gasoline and set a fire behind the building. No one was harmed, and no criminal
charges or civil claims were ever brought in relation to the incident.

Third, the government expects that Cooperating Witness No. 5 (“CW5”) will
generally testify at trial about his interactions with the defendant and his drug trafficking
activities on behalf of the defendant’s organization, which occurred from the mid-2000s
through the mid-2010s. The government has disclosed to the defense that in 2006 or 2007,
CW5 was involved in a motor vehicle accident in Mexico while operating a vehicle under the
influence of alcohol and cocaine. As a result of that incident, a civil judgment was entered
against CW5. CW5 was delinquent in the satisfaction of that civil judgment, although it was
eventually satisfied.

With respect to CW4’s criminal charges, the elements of the crimes of


disorderly conduct, the motor vehicle violations, and public intoxication do not require
proving—or CW4 admitting—a dishonest act or false statement. As a consequence, those
convictions cannot be used to impeach CW4 pursuant to Rule 609(a)(2). See Fed. R. Evid.

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609(a)(2) (“[F]or any crime regardless of the punishment, the evidence must be admitted if the
court can readily determine that establishing the elements of the crime required proving—or
the witness admitting—a dishonest act or false statement.”); see also United States v. Ashburn,
No. 11-CR-303 (NGG), 2015 WL 5098607, *24 (E.D.N.Y. Aug. 31, 2015) (granting
government motion to preclude cross-examination into misdemeanor convictions of witness)
(citing United States v. Hayes, 553 F.2d 824, 827 (2d. Cir. 1977) (“Congress emphasized that
[Rule 609(a)(2)] was meant to refer to convictions peculiarly probative of credibility, such as
those for perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or
false pretense, or any other offense in the nature of crimen falsi, the commission of which
involves some element of deceit, untruthfulness, or falsification bearing on the accused’s
propensity to testify truthfully.”)).

CW4’s felony conviction for criminal nonsupport of his children could only be
admissible pursuant to Rule 609(a)(1), which subjects its potential admission to a Rule 403
analysis. Rule 403 provides that the Court may exclude relevant evidence where its “probative
value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Here, given that his expected testimony is that he arranged for the
storage of drugs and weapons on behalf of the Sinaloa Cartel, and will undoubtedly be cross-
examined extensively regarding his criminal activity related to drug trafficking, the probative
value of CW4’s failure to pay child support is minimal. However, given that the offense
involved CW4’s own children, the risk of unfair prejudice is high. A number of district courts
have excluded evidence of a witness’s or a party’s failure to pay child support on similar
grounds. See, e.g., Watkins v. Genesee, No. 13-cv-13678, 2016 WL 727855, *5 (E.D. Mich.
Feb. 24, 2016) (granting motion in limine to exclude evidence of plaintiff’s failure to pay child
support where “relevance of such evidence to the issues to be tried is, at most, minimal and
the unfair prejudicial value of such evidence would be substantial”); Lauhoff v. Quality Corr.
Health Care, Inc., No. 5:14-cv-00614, 2016 WL 3618361, *4 (N.D. Ala. Jul. 6, 2016) (granting
motion in limine to exclude evidence of failure to pay child support); Perkins v. Fed. Fruit &
Produce Co., Inc., 945 F. Supp. 2d 1225, 1271 n.35 (D. Col. 2013) (same).

As for CW1’s 1994 act of arson behind a discotheque, Rule 609 does not apply
because it only applies to impeachment by evidence of a criminal conviction. CW1 was never
convicted or even charged in relation to the arson attempt. Thus, CW1 could be impeached
with the arson only pursuant to Rule 608(b). But Rule 608(b) permits cross-examination only
where instances of a witness’s conduct is probative of the witness’s character for truthfulness
or untruthfulness. See Fed. R. Evid. 608(b). Because an arson attempt is not probative of
truthfulness, cross examination should be limited. See Cruz, 894 F.2d at 43. Additionally, the
“remote[ness] in time” (i.e., 23 years ago) and the “danger of unfair prejudice [and] confusion
of issues” also merit limiting cross-examination on this topic. Fed. R. Evid. 608, advisory
committee’s note.

With respect to the civil judgment entered against CW5, Rule 609 does not apply
because the civil judgment is not a criminal conviction. Thus, pursuant to Rule 608, it may be
inquired into only if “probative of the character for truthfulness or untruthfulness of the

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witness.” But the civil judgment against CW5 related to a motor vehicle accident and CW5’s
consumption of alcohol and cocaine; it is not a judgment stemming from fraud or other acts of
dishonesty. See Fed. R. Evid. 608 advisory committee’s note (noting that “possibilities of
abuse are substantial” with respect to cross-examination on particular instances of conduct,
and that “consequently safeguards are erected in the form of specific requirements that the
instances inquired into be probative of truthfulness or its opposite and not remote in time”);
see also Nibbs v. Goulart, 822 F. Supp. 2d 339, 341 (S.D.N.Y. 2011) (granting motion in limine
to preclude plaintiff from inquiring into or offering into evidence unrelated, prior lawsuits
against defendants, pursuant to Rules 402, 403, 404(b), 608 and 611). CW5’s civil judgment
should also be excluded on Rule 403 grounds, as the civil judgment is only marginally
probative at best of CW5’s credibility or the issues about which he will testify at trial, but risks
an “undue tendency to suggest decision on an improper basis” by inviting the jury to assess
CW5 based on a motor vehicle accident which occurred while he was under the influence.
Fed. R. Evid. 403, advisory committee’s note.

E. Attempted Murder of Coconspirator

The government expects that the defense will cross-examine a number of the
government’s cooperating witnesses about murders and other acts of violence with which they
were involved during the time that they worked with the defendant and the Sinaloa Cartel. In
general, the government will not seek to preclude cross-examination as to these acts. The
government does seek to preclude cross-examination as to one attempted murder, however, in
order to minimize the risk of harm and retribution to a cooperating witness’s family, and to
limit the presentation of needlessly cumulative evidence pursuant to Rules 611 and 403.

Specifically, the government anticipates that at trial,


will generally testify about drug trafficking activities and related crimes that he
undertook while working with the defendant from approximately . The
government has previously disclosed to the defendant that ordered the murders of a
number of individuals, some of whom were in fact killed, and that in approximately
he hired an individual to kill

The government seeks to preclude cross-examination as to this one attempted


murder The potential relevance and probative value
is minimal, at best. But should the attempted murder become public, the risk of harm to
family and close associates is substantial.

In light of the fact that the defense will be free to cross-


examine about a number of other murders, as well has his involvement in criminal drug
trafficking more generally, this increased risk of danger far outweighs any probative value in
cross-examining him as to the specific attempted murder The Court should

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therefore limit cross-examination pursuant to Rules 611 and 403. See Locascio, 6 F.3d at 949
(holding, in Brady/Giglio context, that where witness had “already confessed to numerous
crimes, including murders,” and was subject to cross-examination about them, there was no
error where defense was unable to cross-examine witness about additional murders); see also
Fed. R. Evid. 611(a)(3) (court may limit cross-examination to “protect witnesses from
harassment”).

F. Movie/Television Production Contract

The government anticipates that Cooperating Witness No. 7 (“CW7”) will


testify at trial about the drug trafficking activities that he undertook with the defendant between
2002 and 2008. The government has previously disclosed to the defendant that CW7’s wife
has co-written a book, Cartel Wives, about her experiences as the wife of a large-scale narco-
trafficker. She has also sold the rights to her story to a movie and television production
company, which the government has disclosed to the defendant, but the details of that
transaction are protected by a nondisclosure agreement.

The defense should be precluded from asking CW7 about the details of this
transaction, as any details are of only marginal relevance and slight probative value, at best.
The government does not object to defense cross-examining CW7 about the fact that his wife
received payment for writing Cartel Wives, and that she stands to make more money through
the sale of rights to the book for movie and television production. But inquiry into the specific
details of the sale of the rights to the production company would be protected by the
nondisclosure agreement, and it therefore would harm the contractual rights of both parties to
the nondisclosure agreement. Cross-examination could either lead CW7 to inadvertently
provide details in violation of the agreement, or require him to attempt to decline to answer
questions on that basis. In either case, there is a substantial risk of undue harassment of the
witness, which the Court may decline to permit pursuant to Rule 611, or misleading or
confusing the issues before the jury, which permits the Court to preclude the questioning under
Rule 403’s balancing test.

As for the other side of the Rule 403 balancing test, disclosure of details of the
sale of the rights to Cartel Wives would not advance any claim or argument of bias or
untruthfulness by CW7, as the defense will already be free to cross-examine CW7 about the
book itself and the potential for selling the rights to the story. The needless presentation of
cumulative evidence provides an additional reason to preclude cross-examination as to the
specific details of the sale of the rights to Cartel Wives. See Fama, 2012 WL 6094135 at *1.

G. Irrelevant Messages and Communications

A number of messages sent by cooperating witnesses, Cooperating Witness No.


8 (“CW8”) and CW1, were intercepted pursuant to court-authorized Title III wiretap
investigations and/or consensually recorded, and have been produced to the defense. Some of
the messages sent by CW8 and CW1 are not related to drug trafficking. Some of CW8’s
messages are memes, GIFs, cartoons, images, and inside jokes, many of a politically incorrect
or ribald nature. Some of CW1’s messages constitute banter with his friends and associates

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about non-relevant issues, such as his romantic interests. Cross-examination as to these


messages not related to drug trafficking should be precluded as not relevant, and more
prejudicial than probative. See Fed. R. Evid. 402, 403. Their introduction into evidence would
risk inviting the jury to assess the issues before it and CW8 and CW1’s testimony based on
their jokes and banter with friends and associates rather than on their credibility. See Thomas,
377 F.3d at 241 (holding that there is no abuse of discretion where district court restricts cross-
examination into irrelevant matters).

H. Cumulative Evidence

In addition to the reasons set forth above, the Court should preclude
cross-examination regarding the categories of evidence discussed herein because cross-
examination on these subjects would be cumulative of other impeachment evidence that the
defense is free to use in examining the credibility of the government’s witnesses. The Second
Circuit has repeatedly held that evidence offered to further impeach a “witness whose character
was already challenged at trial” is considered “cumulative” and may be excluded or otherwise
limited. United States v. Damblu, 134 F.3d 490, 494 (2d Cir. 1998); see also Locascio, 6 F.3d
at 949 (holding that new allegations involving credibility of government witness, which were
cumulative of information about which the witness was subject to cross-examination, would
not have materially affected the outcome of the case and did not warrant a new trial); Shabazz
v. Artuz, 336 F.3d 154, 166 (2d Cir. 2003) (“[W]here the undisclosed evidence merely
furnishes an additional basis on which to challenge a witness whose credibility has already
been shown to be questionable or who is subject to extensive attack by reason of other
evidence, the undisclosed evidence may be cumulative, and hence not material.”). In this case,
the government’s cooperating witnesses are likely to be cross-examined on a variety of topics,
including their own involvement with the defendant’s criminal enterprise, so the limits on
cross-examination that the government seeks in this motion relate to evidence which would
merely be cumulative, and granting the government’s motion will not materially limit the
defendant’s ability to cross-examine government witnesses.

III. Conclusion

For the foregoing reasons, the government respectfully moves under Rules 402,
403, 608, 609 and 611 to preclude various lines of cross-examination as detailed herein.

IV. Sealing is Appropriate

Pursuant to the protective order in this case, the government respectfully


requests permission to submit this brief under seal. See Dkt. No. 57 ¶ 8. This brief details
information regarding the government’s cooperating witnesses. Although the cooperating
witnesses are not identified by name herein, the defendant’s criminal associates likely could
use the information described herein to identify that witness. Moreover, the information
discussed herein is sensitive information about which the government seeks to preclude public
questioning.

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Thus, sealing is warranted because of the concerns regarding the safety of


potential witnesses and their families, and the danger posed by disclosing the potential
witnesses’ identities and their cooperation with the government. Sealing is further warranted
to protect the disclosure of sensitive information regarding the government’s witnesses. See
United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995) (need to protect integrity of ongoing
investigation, including safety of witnesses and identities of cooperating witnesses, and to
prevent interference, flight and other obstruction, may be compelling reason justifying
sealing); see Feb. 5, 2018 Mem. & Order Granting Gov’t Mot. for Anonymous and Partially
Sequestered Jury, Dkt. No. 187 at 2-3 (concluding that defendant’s actions could pose risk of
harm to cooperating witnesses). As the facts set forth herein provide ample support for the
“specific, on the record findings” necessary to support partial sealing, Lugosch v. Pyramid Co.,
435 F.3d 110, 120 (2d. Cir. 2006), the government respectfully requests that the Court permit
the government to file this motion to limit cross-examination under seal. Should any order of
the Court regarding this application describe the sealed information in question with
particularity, rather than in general, the government likewise requests that those portions of
the order be filed under seal.

Respectfully submitted,

RICHARD P. DONOGHUE
United States Attorney
Eastern District of New York

ARTHUR G. WYATT, CHIEF


Narcotic and Dangerous Drug Section
Criminal Division,
U.S. Department of Justice

OF COUNSEL:

ARIANA FAJARDO ORSHAN


United States Attorney
Southern District of Florida

cc: Clerk of Court (BMC) (by ECF)


Defense Counsel (by ECF and E-mail)

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U.S. Department of Justice

United States Attorney


Eastern District of New York
GMP:PEN 271 Cadman Plaza East
F. #2009R01065 Brooklyn, New York 11201

October 9, 2018

TO BE FILED UNDER SEAL

By ECF

The Honorable Brian M. Cogan


United States District Judge
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201

Re: United States v. Joaquin Archivaldo Guzman Loera


Criminal Docket No. 09-466 (S-4) (BMC)

Dear Judge Cogan:

The government respectfully submits this letter in connection with the trial in
the above-referenced matter. At trial, the government anticipates calling the following law
enforcement witnesses, among others: (1) Customs and Border Protection (“CBP”) Officer
; (2) Drug Enforcement Administration (“DEA”) Special Agent (“SA”)
Jr.; (3) DEA SA (4) Chicago Police Officer (5) DEA Senior
Forensic Chemist (6) CBP Officer (7) DEA Supervisory
Intelligence Research Specialist (“SIRS”) (8) CBP Officer
(9) SA of the Federal Bureau of Investigation (“FBI”); (10) FBI Evidence
Custodian ; and (11) DEA Special Agent Pursuant to its
obligations under Giglio v. United States, 405 U.S. 150 (1972), the government hereby notifies
the defendant of the incidents detailed below, for which certain of the witnesses received a
reprimand and/or disciplinary action. The government moves in limine to preclude
cross-examination about all of the disclosed incidents.
Case 1:09-cr-00466-BMC-RLM Document 569-2 Filed 02/01/19 Page 2 of 11 PageID #: 6889

I. Anticipated Testimony and Disclosures by the Government

A. CBP Officer

The government anticipates that, at trial, Officer would testify


regarding his involvement in the seizure of Officer
was previously involved in a motor vehicle accident while he was driving a
government vehicle. An investigation of the accident determined that Officer failed
to exercise caution. He received a one- day suspension.

B. DEA Special Agent

The government anticipates that, at trial, SA would testify to being part


of the chain of custody for a quantity of heroin that was seized in Chicago on November 13,
2008. SA put the seized heroin in a locker, removed it the next day it and gave it to
another officer. On December 16, 2008, after SA and other law enforcement
officers executed a search warrant at a defendant’s home, the defendant alleged that certain
personal property had gone missing from the home. Although an Office of the Inspector
General (“OIG”) investigation determined that no evidence of theft could be attributed to any
personnel that participated in the execution of the search warrant, the investigation did
conclude that, as the primary case agent, SA failed to ensure that all of the seized
evidence was properly documented, inventoried and secured. As a consequence, OIG
recommended that SA be issued a letter of caution for failing to follow written
instructions.

C. Retired DEA SA

The government anticipates that, at trial, SA would testify regarding a


meeting he had with the defendant at the Puente Grande prison in Mexico in March 1998. In
2009, SA was suspended for 45 days without pay for conduct occurring between 2005
and 2007, to include: (1) four instances of being under the influence of alcohol on duty, (2)
two instances of unauthorized use of a government vehicle after consuming alcohol, and (3)
two instances of using poor judgment. One incident of poor judgment involved SA
carrying his DEA issued weapon into a foreign country without authorization. The other
involved consuming alcohol and allowing his staff to consume alcohol during office lunches.

D. Retired Police Officer

The government anticipates that, at trial, Officer would testify


about the seizure of

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Officer advised the government that he was involved in the arrest of a distraught woman in
his precinct in the 1970s. After several warnings about the disruptive nature of her conduct,
officers in the precinct arrested the woman. The woman ultimately filed a civil suit against the
arresting officers. Officer states the civil suit was resolved when a jury found in Officer
favor. It should be noted that, in corroboration of Officer statements, there is no
mention of this incident in Officer’s police file.

E. DEA Senior Forensic Chemist

The government anticipates that, at trial, Forensic Chemist will testify


regarding findings he made on February 29, 2016, when he tested cocaine that was related to
a previous cocaine seizure. On August 26, 2009, while on temporary duty status, after
consuming an alcoholic beverage, Forensic Chemist operated a rental vehicle, which
he had rented with his government travel card. On January 7, 2011, Forensic Chemist
was suspended without pay for 30 days based on the charge of unauthorized use of
an official government vehicle.

F. DEA Supervisory Intelligence Research Specialist

DEA SIRS is expected to testify regarding the chain of custody of a


seized In 1990, SIRS was charged
with being a minor in possession and paid a fine. In 1991, SIRS was charged with
public intoxication and again paid a fine. Both incidents preceded employment with DEA.

G. CBP Officer

The government anticipates that, at trial, Officer would testify to his


involvement in the seizure of Prior to joining
CBP, in approximately 2000, Officer was issued two tickets for being a minor in
possession of alcohol. In approximately 2003 or 2004, while Officer was in college, he
was arrested for drinking during prohibited hours and ordered to pay a $25 fine. In March
2018, Officer vehicle was broken into and his badge was stolen out of the vehicle. He
reported the incident within 24 hours and there is currently an investigation open about this
incident.

H. CBP Officer

The government anticipates that, at trial, Officer would testify to


authenticate images that were taken
. Prior to becoming a CBP officer, was an

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officer with the New York City Police Department (“NYPD”). In 1988, while an NYPD
officer, was on foot patrol when a man attempted to run over with his car.
A foot chase ensued between and the man, during which the man jumped into the
river and never came out. No charges were filed against and no grand jury was ever
convened to investigate the matter. A civil suit was filed against but it was
dismissed in 1994.

I. FBI SA

The government anticipates that, at trial, SA will testify regarding


support he, in his official capacity, provided to Mexican law enforcement in an attempted
capture operation of the defendant in Cabo San Lucas, Baja California, Mexico, on February
22, 2012. SA will testify about observations made on that day, as well as about
evidence he collected at the site of the attempted capture. In a report dated March 1, 2012, SA
described the events leading up to the February 22, 2012 capture operation, and the
operation itself. At the end of this twelve-page report, SA wrote two paragraphs
(attached as Exhibit A) opining on the amount of vigor and competence the Mexican
government applied in its efforts to capture the defendant. He also opined about the fact that
the Mexican government’s lack of effort may be due to the defendant’s ties with high-level
officials.

J. FBI Evidence Custodian

is expected to testify at trial regarding the chain of custody of


discs containing intercepted communications, which he removed from evidence in 2017. Prior
to his employment with the FBI, in 2012, received a ticket for underage alcohol
drinking. pleaded no contest, and he paid a fine

K. DEA Agent

The government anticipates that, at trial, SA will authenticate a wiretap


that was administered in 1994 in Chicago. In an abundance of caution, SA provided
the government with a myriad of notes from the case file, all of which the government turned
over § 3500 material. Upon further examination and discussion with SA the
government realized that many of those notes were not prepared or adopted by SA
(the “unrelated notes”) and were mistakenly provided to the defendant as SA § 3500
material. (The government recently specifically identified to the defendant which of the notes
were SA § 3500 material and which notes were unrelated notes).

4
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II. Relevant Law

Trial courts have broad “discretion to permit or deny a line of inquiry on cross-
examination.” United States v. Cruz, 894 F.2d 41, 43 (2d Cir. 1990); see also United States v.
Lawes, 292 F.3d 123, 131 (2d Cir. 2002); Fed. R. Evid. 611(a) (“The court shall exercise
reasonable control over the mode and order of interrogating witnesses . . . .”). Pursuant to
Federal Rule of Evidence 608(b),

Specific instances of the conduct of a witness . . . may not be


proved by extrinsic evidence . . . . [but] may, however, in the
discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the
witness (1) concerning the witness’ character or untruthfulness,
or (2) concerning the character for truthfulness or untruthfulness
of another witness . . . .

“Rule 608(b) is intended to be restrictive. . . . The rule does not authorize inquiry on cross-
examination into instances of conduct that do not actually indicate a lack of truthfulness.”
United States v. Nelson, 365 F. Supp. 2d 381, 386 (S.D.N.Y. 2005) (citing Jack B. Weinstein
& Margaret A. Berger, Weinstein’s Federal Evidence 608.22[2][c][1] (2d ed. 1997)). “[E]ven
if the prior act does concern the witness’s character for truthfulness under Rule 608(b), its
probative value must not be substantially outweighed by its unfairly prejudicial effect under
Rule 403.” United States v. Devery, 935 F. Supp. 393, 407-08 (S.D.N.Y. 1996); see also Fed.
R. Evid. 401 (“Evidence is relevant if: (a) it has a tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in determining the
action”); Fed. R. Evid. 403 (“Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless preparation
of cumulative evidence.”).

Courts in this Circuit have consistently precluded cross-examination of


government witnesses concerning substantiated complaints about a law enforcement
witnesses’ conduct in the line of duty where the alleged conduct is not related to the witness’s
character for truthfulness. See, e.g., United States v. Lawes, 292 F.3d 123, 131-32 (2d Cir.
2002) (affirming district court’s decision to bar defense from cross-examining officer about a
CCRB finding in an unrelated case that the officer used excessive force against an arrestee as
it “provides nothing of value with respect to [the officer’s] motivation to lie about the
circumstances of appellant’s arrest in the present case”); United States v. Lights, No. 15 CR.
721, 2016 WL 7098633, at *3-4 (S.D.N.Y. Dec. 5, 2016) (precluding cross-examination about
substantiated allegations that law enforcement witness abused his authority by questioning
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individual during traffic stop and not preparing required stop and frisk report, because such
allegations did not bear on witness’s credibility); United States v. Stone, No. 05 CR 401 (ILG),
2007 WL 4410054, at *1 (E.D.N.Y. Dec. 14, 2007) (precluding cross-examination concerning
a substantiated CCRB complaint regarding assault allegations because it was not “probative
of truthfulness or untruthfulness”); United States v. Laster, No. S1 06 CR 1064 (JFK), 2007
WL 2872678, *2 (S.D.N.Y. Sep. 28, 2007) (finding “no basis under Rule 608(b) for the
defense to cross-examine [government witness] regarding the CCRB complaint, the findings
of the CCRB, or the events that underlay the CCRB proceedings” where three-year-old
allegations were not relevant to instant case or to witness’s credibility).

III. Cross-Examination and Argument Should Be Precluded

As explained further below, the matters outlined above do not constitute proper
impeachment material pursuant to Federal Rule of Evidence 608(b) because none of them
relate to any of the issues to be resolved at trial, and they are not relevant to the witnesses’
capacity for truthfulness; and the prejudice to the witnesses outweighs the minimal probative
value of the evidence. Alternatively, even if the Court were to conclude there was some
relevance to these matters, they should nevertheless be excluded because their probative value
is substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403.
Therefore, the government respectfully moves for an order precluding defense counsel from
raising these matters on cross-examination or in argument.

A. CBP Officer

Officer disciplinary action for his failure to exercise caution while


using an official government vehicle does not constitute proper impeachment material, because
it bears no connection to his capacity for truthfulness. It also does it bear any relevance to his
testimony in this case. Thus, any questioning on this topic should be precluded pursuant to
Rules 608, 401 and 403.

B. DEA Special Agent

SA should not be questioned about the matter for which he received a


letter of reprimand—failure to ensure that all of the evidence seized during the execution of a
search warrant was properly documented, inventoried and secured—under Rule 608, because
his conduct does not bear on his capacity for truthfulness. In fact, SA was cleared of
the underlying allegation, namely that property was stolen from a defendant during an arrest.
Thus, questioning of Officer should also be precluded under Rules 401 and 403. The
execution of the search warrant took place a month after the drug seizure that is the subject of
SA testimony in this case, and therefore is not relevant to SA actions related
6
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to the drug seizure that is the subject of his testimony. Therefore, the Court should also
preclude questioning about the reprimand under Rules 401 and 403.

C. Retired DEA SA

The matter for which SA was disciplined—namely, his being under the
influence of alcohol on duty, his unauthorized use of a government vehicle after consuming
alcohol, and his exercising poor judgment—do not constitute proper impeachment material.
First, this conduct post-dated the interaction that SA had with the defendant by
approximately seven years, and therefore his improper conduct is irrelevant to the instant case.
Thus, the Court should preclude questioning of SA concerning these actions under Rule
401. Second, the Court should not permit SA to be questioned about his actions, because
they do not relate to SA capacity for truthfulness and should be precluded under Rule
608. Moreover, his disciplinary records have little probative value of SA interaction
with the defendant, yet it would be overly prejudicial to the witness. Thus, Rule 403 justifies
preclusion of cross-examination.

D. Retired Police Officer

The Court should preclude questioning of Officer about the incident with
the distraught woman under Rule 403, as being overly prejudicial. There was never a
determination that Officer engaged in any inappropriate conduct and the only reason to
raise the issue would be to embarrass the witness and prejudice the jury against him. This line
of questioning would be unfair to Officer and it would require a trial within a trial to
explain the appropriateness of his conduct. See Rickets 74 F.3d 1414. Moreover, the incident
occurred at least two decades before the seizure at issue in this case. Therefore, the incident
has no relevance to the officer’s testimony in this case and questioning should be precluded
under Rules 401 and 403. Finally, the arrest incident does not relate to Officer capacity
for truthfulness, and the Court therefore should preclude questioning under Rule 608.

E. Forensic Chemist

The matter for which Forensic Chemist was disciplined—namely, his


unauthorized use of an official government vehicle after having had alcohol—occurred
approximately seven years prior to his examination of the evidence relevant to this case. Thus,
this event does not constitute proper impeachment material pursuant to Rule 608, because it
bears no relation to Forensic Chemist capacity for truthfulness. Moreover, under
Rule 401 and 403, the matter bears no relation to his testimony in the instant case. Thus, any
questioning on this topic should be precluded as irrelevant and overly prejudicial.

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F. DEA Supervisory Intelligence Research Specialist

As with Officer the matters for which DEA SIRS was charged—
namely, being a minor in possession of alcohol—does not constitute proper impeachment
material, because it bears no relation to capacity for truthfulness. Also, these events
do not bear any relevance to testimony in this case, as these incidents occurred prior
to him ever becoming a DEA SIRS. Thus, the Court should preclude any questioning on this
topic under Rules 608, 401 and 403.
G. CBP Officer

The matters for which Officer received tickets and/or arrested—namely,


being a minor in possession of alcohol and drinking during prohibited hours—do not constitute
proper impeachment material, because they bear no relation to Officer capacity for
truthfulness. Also, these events do not bear any relevance to Officer’s testimony in
this case, as these incidents occurred 12 years prior to Officer ever becoming a CBP
Officer. Thus, the Court should preclude any questioning on this topic under Rules 608, 401
and 403.

Additionally, the open investigation into Officer badge being stolen from
his vehicle should also be precluded as there have been no substantiated charges arising from
this alleged conduct. See United States v. Stone, 2007 WL 4410054, at *1 (E.D.N.Y. Dec. 14,
2007) (holding that unsubstantiated CCRB complaints in which the testifying NYPD witness
was accused of conducting an unauthorized search, being rude, and punching an individual
were not “probative or truthfulness or untruthfulness”).

H. CBP Officer

The Court should preclude questioning of CBP Officer about the


unfortunate incident of the man who jumped into the water under Rule 403, as being overly
prejudicial. There was never a determination that Officer engaged in inappropriate
conduct, and the only reason to raise the issue would be to embarrass the witness and prejudice
the jury against him. Not only would this be unfair to the witness, but the government would
need to conduct a trial within a trial to explain the appropriateness of Officer
conduct. Rickets, 74 F.3d at 1414. Moreover, the incident occurred over a decade before the
CBP images were taken that are the subject of the Officer testimony. Therefore,
the incident has no relevance to the instant case or Officer testimony and the Court
should preclude questioning under Rule 401. Finally, the incident does not bear on Officer
capacity for truthfulness, and the Court therefore should preclude it under Rule 608.

8
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I. FBI SA

SA comments at the end of his report represent his personal opinions


regarding the conduct of Mexican law enforcement during an unsuccessful attempt to capture
the defendant. These opinions, which expressed SA frustration with Mexican law
enforcement, do not bear on his credibility about the matters to which is will testify. See
United States v. Estrada, 430 F. 3d 606, 617-618 (2nd Cir. 2005) (distinguishing between
“crimes that reflect adversely on a person’s integrity, and which therefore bear on honesty—
such as those involving deceit, fraud, and theft—and acts of violence, which may result from
a short temper, a combative nature, extreme provocation, or other causes, and generally have
little or no direct bearing on honesty and veracity”).

Moreover, the subject of the Mexican government’s lack of motivation for


supporting the operation to capture the defendant, and the author’s speculation about what fate
the defendant could possibly meet, would create a sensational distraction from SA
testimony, thereby misleading and causing confusion with the jury. The government would
be forced to litigate the issue before the jury causing undue delay to an already lengthy trial
and creating a “trial within a trial,” as the government attempted to provide the jury with a
proper context for the statements. See Ricketts v. City of Hartford, 74 F.3d 1397, 1414 (2d
Cir. 1996), as amended on reh’g in part (Feb. 14, 1996) (district court did not abuse its broad
discretion in determining that trial within a trial concerning a police officer’s interaction with
a bystander would have been more confusing than helpfully probative).

J. FBI Evidence Custodian

As with Officer and SIRS the matters for which FBI employee
received a ticket—namely, being a minor in possession of alcohol—does not
constitute proper impeachment material, because it bears no relation to capacity for
truthfulness. Also, these events do not bear any relevance to testimony in this case,
as these incidents occurred prior to him ever becoming a CBP Officer. Thus, the Court should
preclude any questioning on this topic under Rules 608, 401 and 403.
K. SA

The government moves pursuant to Rules 403 to preclude cross-examination of


concerning statements contained in the unrelated notes. To allow such cross-
examination would mislead and confuse the jury. It would be overly prejudicial and outright
unfair to SA given that the statements were neither prepared nor adopted by him. Thus,
the Court should preclude this line of cross-examination under Rules 401 and 403. Moreover,
the unrelated notes do not relate to SA capacity to be truthful. Therefore, the Court
should preclude cross-examination of SA using the unrelated notes under Rule 608.
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IV. Conclusion

For the foregoing reasons, the Court should preclude argument and cross-
examination of the above-listed witnesses, on the topics described above.

V. Sealing is Appropriate

Pursuant to the protective order in this case, the government respectfully


requests permission to submit this brief under seal. See Dkt. No. 57 ¶ 8. This brief details
information regarding the government’s law enforcement witnesses. Moreover, the
information discussed herein is sensitive information about which the government seeks to
preclude public questioning.

Thus, sealing is warranted because of the concerns regarding the safety of


potential witnesses and their families, and the danger posed by disclosing the potential
witnesses’ identities. Sealing is further warranted to protect the disclosure of sensitive
information regarding the government’s witnesses. See United States v. Preldakaj, 456 Fed.
Appx. 56, 59 (2d Cir. 2012) (noting “government’s legitimate right to protect the
confidentiality of its agents’ records”); United States v. Amodeo, 44 F.3d 141, 147 (2d Cir.
1995) (need to protect integrity of ongoing investigation, including safety of witnesses and
identities of cooperating witnesses, and to prevent interference, flight and other obstruction,
may be compelling reason justifying sealing); Feb. 5, 2018 Mem. & Order Granting Gov’t
Mot. for Anonymous and Partially Sequestered Jury, Dkt. No. 187 at 2-3 (concluding that
defendant’s actions could pose risk of harm to witnesses). As the facts set forth herein provide
ample support for the “specific, on the record findings” necessary to support partial sealing,
Lugosch v. Pyramid Co., 435 F.3d 110, 120 (2d. Cir. 2006), the government respectfully
requests that the Court permit the government to file this motion to preclude cross-examination
under seal. Should any order of the Court regarding this

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6898

application describe the sealed information in question with particularity, rather than in
general, the government likewise requests that those portions of the order be filed under seal.

Respectfully submitted,

RICHARD P. DONOGHUE
UNITED STATES ATTORNEY
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201

ARTHUR G. WYATT, CHIEF


Narcotic and Dangerous Drug Section
Criminal Division,
U.S. Department of Justice

OF COUNSEL:

ARIANA FAJARDO ORSHAN


UNITED STATES ATTORNEY
Southern District of Florida

cc: Clerk of Court (BMC) (via ECF)


Defense Counsel (via Email)

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U.S. Department of Justice

United States Attorney


Eastern District of New York
GMP:MPR 271 Cadman Plaza East
F. #2009R01065 Brooklyn, New York 11201

October 19, 2018

TO BE FILED UNDER SEAL

By ECF

The Honorable Brian M. Cogan


United States District Judge
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201

Re: United States v. Joaquin Archivaldo Guzman Loera


Criminal Docket No. 09-466 (S-4) (BMC)

Dear Judge Cogan:

The government respectfully submits this letter in connection with the trial in
the above-referenced matter. Concurrently with this letter, and pursuant to its obligations
under Giglio v. United States, 405 U.S. 150 (1972), the government has notified the defendant
by separate letter of information related to certain potential government witnesses. In this
letter, the government moves in limine to preclude cross-examination about certain of the
disclosed information and for a limiting instruction related to court-imposed sentences on the
government’s cooperators. Additionally, for purposes of streamlining its case, the government
has elected not to proceed on certain violations charged in Count One of the Indictment as well
as several additional counts in the Indictment, which are outlined below.

I. Motion to Limit Cross-Examination

A. Legal Standard

The scope and extent of cross-examination is committed to the sound discretion


of the district court. See United States v. Wilkerson, 361 F.3d 717, 734 (2d Cir. 2004). The
court may properly bar cross-examination that is only marginally relevant to a defendant’s
guilt or other issues before the court. See United States v. Maldonado-Rivera, 922 F3d. 934,
956 (2d Cir. 1990); see also Fed. R. Evid. 611 (stating that “court should exercise reasonable
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control . . . so as to . . . avoid wasting time[] and protect witnesses from harassment or undue
embarrassment”).

A “decision to restrict cross-examination will not be reversed absent an abuse


of discretion.” United States v. Lawes, 292 F.3d 123, 131 (2d Cir. 2002) (citing United States
v. Rosa, 11 F.3d 315, 335 (2d Cir. 1993)). The Second Circuit has repeatedly upheld district
courts’ exercise of discretion in imposing reasonable limits on the subjects that may be
inquired into on cross-examination. See United States v. Rivera, 971 F.2d 876, 886 (2d Cir.
1992) (“The court is accorded broad discretion in controlling the scope and extent of cross-
examination.”); Rosa, 11 F.3d at 336 (holding that district court properly precluded cross-
examination on alleged rape and burglary by witness because conduct did not bear directly on
witness’s credibility and allegations were unsubstantiated).

Where a party seeks to elicit testimony regarding specific instances of a


witness’s conduct to attack the witness’s character for truthfulness, the admission of that
testimony is governed by Federal Rule of Evidence 608(b). See United States v. Peterson, 808
F.2d 969, 973-74 (2d Cir. 1987); see also United States v. Cruz, 894 F.2d 41, 43 (2d Cir. 1990)
(“Under Rule 608(b), the court has discretion to permit or deny a line of inquiry on cross-
examination.”). Rule 608(b) provides in pertinent part:

Except for a criminal conviction under Rule 609, extrinsic


evidence is not admissible to prove specific instances of a
witness’s conduct in order to attack or support the witness’s
character for truthfulness. But the court may, on cross-
examination, allow them to be inquired into if they are probative
of the character for truthfulness or untruthfulness of . . . the
witness.

Fed. R. Evid. 608(b). The advisory committee’s note to Rule 608(b) also notes that because
the “possibilities of abuse are substantial” in cross-examination, specific instances may only
be inquired into if they are probative of truthfulness, “not remote in time,” and not “outweighed
by danger of unfair prejudice, confusion of issues, or misleading the jury.” Fed. R. Evid. 608
ad. comm. note.

Rule 609(a)(1)(A) provides that evidence of a witness’s conviction for a felony


offense “must be admitted, subject to Rule 403” and that evidence “for any crime regardless
of the punishment . . . must be admitted if the court can readily determine that establishing the
elements of the crime required proving—or the witness’s admitting—a dishonest act or false
statement.” Fed. R. Evid. 609(a)(2). Moreover, if more than 10 years have passed since the
witness’s conviction or release from confinement, whichever is later, evidence of a conviction

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is “admissible only if its probative value, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect.” Fed. R. Evid. 609(b).

Admission of such evidence is further limited by Federal Rules of Evidence 402


and 403, which exclude otherwise relevant evidence if its “probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues . . . , or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.” United States
v. Figueroa, 548 F.3d 222, 229 (2d Cir. 2008); United States v. Devery, 935 F. Supp. 939, 407-
08 (S.D.N.Y. 1996) (“[E]ven if the prior act does concern the witness’s character for
truthfulness under Rule 608(b), its probative value must not be substantially outweighed by its
unfairly prejudicial effect under Rule 403.”); United States v. Brown, No. 07-CR-874 (KAM),
2009 WL 497606, at *4 (E.D.N.Y. Feb. 26, 2009). “In evaluating the probity of specific
instances of conduct, courts consider numerous factors, including ‘whether the testimony of
the witness in question is crucial or unimportant, the extent to which the evidence is probative
of truthfulness or untruthfulness, the extent to which the evidence is also probative of other
relevant matters, the extent to which the circumstances surrounding the specific instances of
conduct are similar to the circumstances surrounding the giving of the witness’s testimony,
[and] the nearness or remoteness in time of the specific instances to trial . . . .’” United States
v. Nelson, 365 F. Supp. 2d 381, 390 (S.D.N.Y. 2005) (quoting John W. Strong, McCormick
on Evidence § 41).

Likewise, Federal Rule of Evidence 611 requires district courts to exercise


“reasonable control” over the mode of interrogating witnesses so as to avoid “needless
consumption of time” and to “protect witnesses from harassment or undue embarrassment.”
Fed. R. Evid. 611(a). Thus, when considering the admission under Rule 608(b) of specific
instances of conduct that the court finds probative of truthfulness, the court must balance the
probative nature of the conduct against the Rule 403 and Rule 611 factors. See Brown, 2009
WL 497606 at *4. Moreover, pursuant to Rule 608(b), extrinsic evidence of a witness’s prior
conduct may not be admitted to attack his truthfulness. Peterson, 808 F.2d at 973-74; Brown,
2009 WL 497606 at *3.

Additional legal standards that specifically relate to the particular items of


evidence or lines of questioning that the government seeks to preclude are referenced below.

B. Discussion

1. Domestic Violence Allegations

The government seeks to preclude cross-examination related to allegations of


domestic violence by two cooperating witnesses.

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Cooperating Witness No. 9 (“CW9”) 1 was involved in two domestic disputes,


both of which resulted in his arrest, even though legal charges were subsequently dismissed.
Specifically, in December 2014, CW9 had an argument with his wife that resulted in his arrest,
and in February 2015, CW9 was involved in a fight with his adult stepson, for which he was
arrested. Both charges were subsequently dismissed.

Cooperating Witness No. 10 (“CW10”) recalls one occasion, in approximately


1996-97, on which he slapped his then-wife. He recalls that he felt jealous about an issue that
he cannot recall with specificity, and that he slapped her with an open hand. He recalls
physically pushing her away on another occasion, and that he had frequent verbal arguments
with her in which he threatened her with violence, although such violence never materialized.
They were divorced in approximately 1997.

The Court should preclude cross-examination into these instances of domestic


violence under Rules 608, 403, and 611. No criminal convictions resulted from any of these
instances, so Rule 609 does not apply. Cross-examination concerning them could therefore
only be permitted pursuant to Rule 608(b). But, as noted above, a district court nonetheless
enjoys “broad discretion” to impose limits on cross-examination. Rivera, 971 F.2d at 886.
Rule 608(b), moreover, is “intended to be restrictive” and “does not authorize inquiry on cross-
examination into instances of conduct that do not actually indicate a lack of truthfulness.”
Nelson, 365 F. Supp. 2d at 386. Applying these principles, this district has previously
prohibited defendants from inquiring about instances of domestic violence on cross-
examination. See United States v. Fama, No. 12-CR-186 (WFK), 2012 WL 6094135, *1
(E.D.N.Y. Dec. 7, 2012) (precluding cross-examination as to domestic violence allegations,
noting that there is not “anything inherent in the nature of such acts that would directly involve
truthfulness”).

Even if admissible under Rule 608(b), domestic violence instances should also
be excluded under Rules 403 and 611. The instances of abuse could mislead and confuse the
jury, and risk unfair prejudice by inviting the jury improperly to judge the witnesses’ credibility
based on the jurors’ views of domestic violence rather than a proper assessment of the
witnesses’ truthfulness. See Fama, 2012 WL 6094135 at *1 (holding that domestic violence
allegations against witness are excludable in Rule 403 analysis because any probative value is
outweighed by “unfair prejudice that could result if the jury were to focus on the purported
instances of abuse rather than [the witness’s] testimony about the bank robbery”); see also
United States v. Jeffers, 402 Fed. Appx. 601, 603 (2d Cir. 2010) (“Moreover, even if the

1
The government continues sequentially here the numbering of cooperating
witnesses from its first motion to preclude cross-examination of cooperating witnesses. See
Dkt. No. 350.

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alleged abuse was somehow relevant to Hick’s motivation for testifying, which is not clear,
the district court did not abuse its discretion in concluding that any probative value was
substantially outweighed by unfair prejudice and the need for a mini-trial on domestic
disputes.”).

2. Prior Arrests

The government previously disclosed to the defendant that CW7 was arrested
in 1999 for misdemeanor criminal trespass of a vehicle and in 2000 for misdemeanor domestic
battery/bodily harm. In the former arrest, CW7 was operating a family member’s vehicle with
that family member’s consent when he was pulled over and arrested for driving what the police
initially believed had been a stolen vehicle. The charges were ultimately dropped. In the latter,
CW7 was attacked by a family member in a shopping mall, then pushed the family member
away to escape from the situation, and did not learn until some time later when the family
member decided to press charges and accuse him of domestic battery. This charge was also
dropped. As CW7 was not convicted of either crime, Rule 609 does not apply, and extrinsic
evidence of the crimes cannot be admitted. Nor should the defendant be allowed to cross
examine the witness about the conduct under Rule 608, as the conduct underlying the two
arrests is not “probative of the character for truthfulness or untruthfulness of . . . the
witness.” Fed. R. Evid. 608. This is particularly the case given the fact that 19 and 18 years,
respectively, have passed since the arrests. See Fed. R. Evid. 608 advisory committee’s
note. The Court should preclude the defendant from questioning CW7 about these two arrests.

The government previously disclosed to the defendant that CW3 was arrested
for drunk driving in Mexico. In approximately 1988-1990, CW3 got into a car accident, while
he was high on cocaine and drunk. The defendant’s girlfriend suffered a minor head injury
after the car spun out of control. CW3 was arrested, but the case was dismissed. He believes
that his mother may have paid the prosecutor a bribe, but does not recall for certain. In
approximately 1990 to 1993, as CW 3 was driving home, he was drunk and high on cocaine.
He ran multiple red lights and a pickup truck crashed into his car. The man driving the pickup
truck fractured his arm. CW3 was arrested, but the case was dismissed after he paid the
prosecutor a bribe of approximately $300 to $500. Pursuant to Rule 608, the nature of these
arrests may be inquired into only if “probative of the character for truthfulness or
untruthfulness of the witness.” But CW3’s consumption of alcohol and cocaine is not a bad
act related to fraud or other acts of dishonesty, and conduct related thereto should be excluded.
See Fed. R. Evid. 608 advisory committee’s note (noting that “possibilities of abuse are
substantial” with respect to cross-examination on particular instances of conduct, and that
“consequently safeguards are erected in the form of specific requirements that the instances
inquired into be probative of truthfulness or its opposite and not remote in time”). The arrests
also should also be excluded on Rule 403 grounds, as they do not bear on CW3’s credibility
or the issues about which he will testify at trial, but risk an “undue tendency to suggest decision
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on an improper basis” by inviting the jury to assess CW3 based on the accidents which
occurred while he was under the influence of drugs and alcohol. Fed. R. Evid. 403 advisory
committee’s note.

Similarly, the government previously disclosed that CW1 was arrested for
assaulting a cab driver in the early 2000’s. Specifically, when CW1 realized that his cab driver
was driving in the wrong direction, CW1 choked the driver to make him pull over. As a result,
several of the cab driver’s friends appeared and beat up CW1; they all ended up in jail.
Subsequently, CW1’s brother’s partner arranged for CW1 to be released from jail. Because
CW1 was not convicted of a crime arising from this incident, it is not admissible under Rule
609. Pursuant to Rule 608, the nature of these arrests may be inquired into only if “probative
of the character for truthfulness or untruthfulness of the witness.” Similarly, because it
involves an act of violence, it does not bear on CW1’s character for truthfulness and thus
should not be a basis for cross-examination under Rule 608(b). See Brown, 2009 WL 497606,
at *3 (citing United States v. Flaharty, 295 F.3d 182, 191 (2d Cir. 2002); United States v.
Turcotte, 515 F.2d 145, 151 (2d Cir. 1975)).

3. Collection of a Personal Loan

Between 2001 and 2005, CW9 made a $3.5 million personal loan to one of his
friends from his teenage years, who had also worked with him in the drug trafficking business
in the past. The friend had not yet fully repaid CW9 when he was arrested and sent to prison
in the United States. The friend continued to promise CW9 that he would repay this loan, even
after CW9 had surrendered to authorities in the United States and was living here. However,
CW9’s friend fell ill with leukemia without completing repayment of the loan. Prior to dying,
CW9’s friend promised to repay the loan because he knew it was personal money CW9 had
saved for his family. After his friend’s death, CW9 approached his friend’s widow about
repaying the loan, because he was in need of the money to support his family in the United
States. CW9’s Colombian defense attorney at the time was dating CW9’s widow. 2 CW9’s
attorney tried to avoid having the widow repay the loan by complaining to CW9’s handling
agent. Around the same period, CW9’s new U.S. based attorney contacted CW9’s handling
agent to alert him to this situation. CW9’s handling agent looked into the matter and
determined that CW9 had not done anything improper and, in fact, the loan was personal in
nature.

The Court should preclude cross-examination into CW9’s efforts to collect this
personal loan because it is not probative of truthfulness under Rule 608, and does not relate to

2
Notably, CW9’s Colombian defense attorney had represented himself to be a
U.S.-qualified attorney; that was not true.

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drug trafficking, and thus is not relevant to the defendant’s guilt or other issues before the
court, see Maldonado-Rivera, 922 F3d. at 956; see also Fed. R. Evid. 611. Furthermore,
because this instance of conduct involves CW9 continuing to collect a loan from a friend after
he passed away, some jurors may find this off-putting; it thus should be precluded under Rule
403. Given that the probative value of this instance of conduct is virtually non-existent, its
“probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues . . . , or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Figueroa, 548 F.3d at 229.

4. Accidental Death

In 1986 in Colombia, CW1 was in a vehicular accident after he had been


speeding. He drove away from the scene. A 10-year-old girl died as a result of the incident.
CW1’s family sent an attorney to seek out the girl’s family while they were still in the hospital
and paid them a large settlement on CW1’s behalf. No criminal charges or civil suits were
ever brought against CW1. 3

Cross-examination into this incident should be precluded under Rules 608, 403,
and 611. No criminal conviction resulted from this instance, so Rule 609 does not apply.
Cross-examination about this incident could therefore only be permitted pursuant to Rule
608(b). But as noted above, a district court nonetheless enjoys “broad discretion” to impose
limits on cross-examination. Rivera, 971 F.2d at 886. Rule 608(b), moreover, is “intended to
be restrictive” and “does not authorize inquiry on cross-examination into instances of conduct
that do not actually indicate a lack of truthfulness.” Nelson, 365 F. Supp. 2d at 386. Here,
although CW1 left the scene of the accident, he nonetheless sought out the family of the victim
and took financial responsibility for the accident. Testimony about CW1’s involvement in the
death of a 10-year-old girl is highly inflammatory, and it would invite the jury to improperly
discount CW1’s testimony by “suggest[ing] decision on an improper bias, commonly, though
not necessarily, an emotional one.” Fed. R. Evid. 403 advisory committee’s note. The highly
prejudicial nature of this testimony far outweighs the marginal probative value that CW1’s
accidental killing of a young girl in a car accident could possibly have. Additionally, this
incident occurred 32 years ago. Considering the “remote[ness] in time” and the “danger of

3
The government did not know about this incident until CW1 disclosed it to the
government on April 13, 2016, almost two years prior to his guilty plea. A report dated April
13, 2016, notes that the defendant’s family paid officials in connection with this incident. CW1
subsequently clarified that this was incorrect—it was the victim’s family who received a
payment from his family, not officials.

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unfair prejudice [and] confusion of issues” that is likely to result, cross-examination on this
topic should be limited. Fed. R. Evid. 608, advisory committee’s note.

To the extent the Court views CW1’s payment to the victim’s family as a
payment to avoid liability, whether it be civil or criminal, the Court should nonetheless
preclude cross-examination regarding this incident. Cross-examination on this particular
subject would be cumulative of other impeachment evidence that the defense is free to use in
examining the credibility of CW1. For example, the government anticipates that CW1 will
testify about multiple instances in which he either assisted in bribing government officials, or
government officials were bribed on his behalf. United States v. Damblu, 134 F.3d 490, 494
(2d Cir. 1998); see also United States v. Locascio, 6 F.3d at 949 (holding that new allegations
involving credibility of government witness, which were cumulative of information about
which the witness was subject to cross-examination, would not have materially affected the
outcome of the case and did not warrant a new trial); Shabazz v. Artuz, 336 F.3d 154, 166 (2d
Cir. 2003) (“[W]here the undisclosed evidence merely furnishes an additional basis on which
to challenge a witness whose credibility has already been shown to be questionable or who is
subject to extensive attack by reason of other evidence, the undisclosed evidence may be
cumulative, and hence not material.”). Therefore, given the highly prejudicial and cumulative
nature of this testimony, the Court should preclude it from cross-examination.

5. Mental Health

CW10 is presently in therapy related to anxiety and sleep deprivation.


Additionally, the government has information that while held in solitary confinement in 2002,
following his extradition to the United States, CW10 stated to a jail chaplain that he was having
thoughts of taking his own life and that he had attempted to hang himself. CW10 later denied
reporting to the chaplain that he was having such thoughts or that he had any intention to harm
himself. On another occasion, while in solitary confinement in 2001, CW10 reported hearing
voices. Additionally, during a medical evaluation while in custody in 2002, CW10 denied a
history of using drugs, although he has admitted a history of drug use in subsequent
evaluations. Today, CW10 admits to having psychological issues while in solitary
confinement in the early 2000s, but does not recall ever denying his history of drug use.
CW10’s mental health issues all arose well after he was arrested in Mexico in 1998.

Permitting the defense to cross-examine this witness in detail about his mental
health issues could only serve to unfairly prejudice the jury and risk confusing the issues.
When weighed against the minimal probative value of mental health issues that did not exist
during the time of the witnesses’ interactions with the defendant, these risks justify limiting
inquiry on these subjects pursuant to Rule 403. Indeed, the Second Circuit has held that
evidence related to a witness’s psychological history may properly be limited on Rule 403
grounds even where the issues in question overlapped with the time about which the witness
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was to testify. See United States v. Sasso, 59 F.3d 341, 348 (2d Cir. 1995) (“In assessing the
probative value of [psychological] evidence, the court should consider such factors as the
nature of the psychological problem, the temporal recency or remoteness of the history, and
whether the witness suffered from the problem at the time of the events to which she is to
testify . . .”); Davidson v. Smith, 9 F.3d 4, 7 (2d Cir. 1993) (affirming district court ruling that
evidence of the plaintiff’s psychiatric institutionalization 15 years prior should be excluded
under Rule 403). In this case, the witness’s mental health issues did not occur during the time
of the events about which he will testify, they are not of a nature that would call into question
the veracity of his testimony and are temporally remote. The Court thus should preclude cross-
examination on these topics.

6. Cooperating Witness’s Concerns with

These details are not relevant to the jury’s assessment of CW10’s


credibility or the defendant’s guilt, risk confusing the issues before the jury or needlessly
wasting time, and risk revealing details about a sensitive government program without any
probative value. The Court should therefore preclude the defense from eliciting testimony
about them on cross-examination of CW10.

Specifically, the government has disclosed to the defendant that more than six
years ago, CW10
As a result of his
frustration, CW10 stated the that he wanted to contact 60 Minutes, Univision and anyone else
he could reach to detail his complaints about He also indicated that he intended
to provide all of the contact numbers and details that he had, as well as information
about his to the Sinaloa Cartel so that they could compromise the
operations of the CW10 believed that if he provided this information to the cartel,
he would no longer be a target for killing or other retribution. He also indicated that he no
longer intended to cooperate with the government in ongoing cases. More than two years later,
largely the same issue reoccurred.

Additionally, the government has information that, when CW10

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The government also has information that a has


written that CW10 misrepresented some of his experiences to his lawyer and
prosecutor and misrepresented to them that he was in immediate danger. The government also
has information that in 2008, CW10 notified that he wanted to
so that he could obtain employment that would make it
possible for him to travel outside of the United States.

Cross-examination into these topics may properly be limited because they are
not legally relevant to the issues before the jury. See Thomas, 377 F.3d at 241. Additionally,
any slight probative value inherent in examination of CW10’s frustrations with
and the conclusions of that CW10 had been deceptive is outweighed by
the danger of unfair prejudice, unnecessary delay and confusing the issues before the jury. See
Fed. R. Evid. 403. In particular, the jury may interpret CW10’s actions as

The jury may also give undue weight to CW10’s threats, never carried out, to
provide information about to the Sinaloa Cartel. The risk of confusion on this
front justifies precluding cross-examination into these matters under Rules 403 and 611. See
Figueroa, 538 F.3d at 229.

7. Identifying Details and Witness’s Obfuscation Necessary to Protect His


Identity

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II. Motion for Limiting Instruction Regarding Court-Imposed Sentences

CW10, like two other cooperating witnesses who are expected to testify
following him at trial, already has been sentenced. Because sentencing is a judicial
determination based on many factors, the defendant’s questions and arguments based on a
cooperating witness’s sentence may mislead the jury into believing that the government
selected and imposed a cooperating witness’s sentence. To avoid any such confusion, the
government therefore moves for a limiting instruction following CW10’s testimony regarding
judicially imposed sentences.
The government requests that the Court give the same instruction that it gave in
United States v. Cacace, No. 08-CR-240 (S-7)(BMC). There, the Court instructed the jury as
follows:
Ladies and gentlemen, let me explain to you a little bit about how
federal sentencing works, particularly with regard to cooperating
witnesses. When someone cooperates with the government the
government does not determine what sentence they are going to
get. Nor does the government [typically] make a recommendation
to the sentencing judge as to how much time they’re going to get.
What the government will do, if it is satisfied with the level of
cooperation, is write to the sentencing judge what is known as a
5k1 letter. That sets forth the nature of the crimes that the
defendant has committed and all the cooperation that the
defendant has undertaken. The judge takes that letter, together
with a lot of other information about the defendant and all of the
crimes that he’s committed, and it is the judge exclusively that
decides upon the appropriate sentence; not the government.
So all that a cooperating witness gets from the government, if the
government is satisfied with their cooperation, is this 5k1 letter.
I won’t tell you that the 5k1 letters aren’t important to sentencing
judges, they generally are, but it is the judge’s decision and only
the judge’s decision as to what the sentence should be.
Trial Tr. dated Mar. 20, 2012 at 327:15-328:12.

III. Counts and Violations at Trial

In an effort to streamline its case, the government has determined that it will not
proceed on the following violations charged in Count One and listed in its bill of particulars
11
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6910

dated May 11, 2018, see Dkt. No. 227: Violations 13-69, 71, 73-75, 79-80, 90, 92, 94. The
government also will not proceed on Counts Five through Nine and Eleven of the Indictment.
For ease of reference for the jury, should the Court elect to send the Indictment to the jury
during its deliberations, the government requests that the Court submit the Indictment with the
Counts and violations re-numbered without altering the substance of the violations and Counts
themselves. The government further requests that the Court consecutively number the Counts
and violations in the verdict sheet.

“[N]arrowing the scope of an indictment, whether through proof of a lesser


offense offered at trial, or by redaction, does not offend the notice and review functions served
by a grand jury’s issuance of an indictment. United States v. Smith, 918 F.2d 1032, 1037 (2d
Cir. 1990) (citing United States v. Miller, 471 U.S. 130, 135 (1985) (“As long as the crime and
the elements of the offense that sustain the conviction are fully and clearly set out in the
indictment, the right to a grand jury is not normally violated by the fact that the indictment
alleged more crimes or other means of committing the same crime.”)). The Second Circuit in
Smith further noted that “those sections which will not be part of the proof at trial are treated
as ‘useless averment’ that can be ‘ignored,’ or simply redacted.” Smith, 918 F.2d at 1036
(citation omitted). Further, it is well settled that a “district court or the prosecutor may make
‘ministerial change[s]’ to the indictment, such as to correct a misnomer or typographical
errors.” United States v. Dhinsa, 243 F.3d 635 (2d Cir. 2001) (quoting United States v.
McGrath, 558 F.2d 1102, 1105 (2d Cir.1977) (collecting cases)); see United States v. Levy,
440 F. Supp. 2d 162, 164 (E.D.N.Y. 2006) (allowing alteration of the name of the ammunition
charged in the indictment without resubmission to the grand jury); United States v. Lorefice,
192 F.3d 647, 653 (7th Cir. 1999) (“An indictment may be altered without resubmission to the
grand jury as long as the alteration makes no material change and there is no prejudice to the
defendant.”).

Here, renumbering the Indictment would not constitute the government is not
making changes to any factual allegations or altering the substance of any of the charges on
which it will proceed; rather, it would involve deleting and re-numbering portions of the
Indictment in order to prevent confusion for the jury. None of these alterations affects the
charging language of the Indictment and none of the changes alters the essential elements of
the charged offenses. Moreover, since the defendant is receiving notice of the deletions and
renumbering in advance of the trial, he cannot claim surprise or unfair prejudice.
IV. Conclusion

For the foregoing reasons, the Court should preclude argument and cross-
examination of the above-listed witnesses, on the topics described above.

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6911

V. Partial Sealing is Appropriate

Pursuant to the protective order in this case, the government respectfully


requests permission to submit this brief partially under seal. See Dkt. No. 57 ¶ 8. Portions of
this brief refer to the government’s cooperating witnesses. The defendant’s criminal associates
could use the information described herein to identify those witnesses.

Thus, partial sealing is warranted because of the concerns regarding the safety
of potential witnesses and their families, and the danger posed by disclosing the potential
witnesses’ identities and their cooperation with the government. See United States v. Amodeo,
44 F.3d 141, 147 (2d Cir. 1995) (need to protect integrity of ongoing investigation, including
safety of witnesses and the identities of cooperating witnesses, and to prevent interference,
flight and other obstruction, may be a compelling reason justifying sealing); see Feb. 5, 2018
Mem. & Order Granting Gov’t Mot. for Anonymous and Partially Sequestered Jury, Dkt. No.
187 at 2-3 (concluding that defendant’s actions could pose risk of harm to cooperating
witnesses). As the facts set forth herein provide ample support for the “specific, on the record
findings” necessary to support partial sealing, Lugosch v. Pyramid Co., 435 F.3d 110, 120 (2d.
Cir. 2006), the government respectfully requests that the Court permit the government to file
this motion to limit cross-examination partially under seal. Should any order of the Court
regarding this application describe the sealed information in question with particularity, rather

13
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6912

than in general, the government likewise requests that those portions of the order be filed
under seal.

Respectfully submitted,

RICHARD P. DONOGHUE
UNITED STATES ATTORNEY
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201

ARTHUR G. WYATT, CHIEF


Narcotic and Dangerous Drug Section
Criminal Division,
U.S. Department of Justice

OF COUNSEL:

ARIANA FAJARDO ORSHAN


UNITED STATES ATTORNEY
Southern District of Florida

cc: Clerk of Court (BMC) (via ECF)


Defense Counsel (via Email)

14
Case 1:09-cr-00466-BMC-RLM Document 569-4 Filed 02/01/19 Page 1 of 9 PageID #: 6913
U.S. Department of Justice

United States Attorney


Eastern District of New York
GMP:BCR 271 Cadman Plaza East
F. #2009R01065 Brooklyn, New York 11201

October 27, 2018

TO BE FILED UNDER SEAL

By ECF

The Honorable Brian M. Cogan


United States District Judge
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201

Re: United States v. Joaquin Archivaldo Guzman Loera


Criminal Docket No. 09-466 (S-4) (BMC)

Dear Judge Cogan:

The government respectfully submits this letter in response to the Court’s order,
see Dkt. No. 390 (the “Order”), granting and denying certain of the government’s second set
of motions in limine, see Dkt. No. 326, to proffer additional factual detail to the court in regard
to several issues.

I. Evidence of the Defendant’s 2001 Prison Escape

The Court granted the government’s motion to admit evidence of the


defendant’s escapes and/or flights from justice in 2012, 2014, 2015 and 2016/17. See Order
at 6. The Court denied, however, the government’s motion to admit evidence of the
defendant’s 2001 escape from prison. See id. at 7. The Court explained that, based on the
government’s proffer, the 2001 escape was “not sophisticated,” did not “depend[] on a network
of co-conspirators,” did not require “significant resources” or the “bribe[ry of] many officials,”
and so was not direct evidence of the “substantial income” prong of the charged Continuing
Criminal Enterprise (“CCE”). Id. The Court also found that the 2001 escape, like the other
instances of flight from justice, did not demonstrate consciousness of guilt. See id.
Case 1:09-cr-00466-BMC-RLM Document 569-4 Filed 02/01/19 Page 2 of 9 PageID #: 6914

A. Factual Background

The government provides the following additional factual proffer regarding the
2001 escape. Although perhaps not as technologically sophisticated as the 2015 escape, which
involved a mile-long tunnel dug directly to the defendant’s prison cell, the 2001 escape
nonetheless relied upon a willing network of co-conspirators and substantial advance planning
to aid the defendant’s efforts to escape from prison. The escape was not one of chance or spur-
of-the-moment opportunity, but was planned and aided by the defendant’s associates.

Specifically, according to Cooperating Witness No. 9 (“CW9”), 1 who had been


a high-level official at the Puente Grande prison where the defendant was held, the defendant
had by the time of his escape corrupted a substantial portion of the prison staff through a web
of bribery. As a result, the defendant enjoyed unprecedented privileges that permitted him a
greater ability than most other prisoners to communicate with the outside world, both via
telephone and in writing (both handwritten and email). In particular, the bribed prison officials
permitted the defendant to freely communicate with family members, including his brother
Arturo Guzman and his brother-in-law Marcelo, both of whom were the defendant’s criminal
associates. CW9 will also testify that the defendant had his own cellular telephone while in
custody, which he used to communicate with a corrupt attorney and family members. The
defendant’s bribes also gave him access to more favorable prison housing conditions and
allowed him visits from both of his wives and their children.

Once CW9 began working at the prison, the defendant paid him bribes to
persuade CW9 to keep corrupt guards in place so that the defendant could continue reaping
the benefits of his corrupt bargain. To that end, the defendant gifted CW9 a house in
Guadalajara, which he later sold for just under 2 million pesos (approximately $102,000 U.S.
dollars), and approximately 200,000 to 300,000 pesos in cash (approximately $10,000 to
$15,000 U.S. dollars).

With respect to the escape itself, the defendant bribed several people on the
inside of the prison to facilitate elements of the escape. CW9 and Cooperating Witness No. 6
(“CW6”) will testify that the defendant bribed the guards who controlled the doors, the guard
who controlled the security cameras, the guard who lifted the barrier leading to the outside of
the prison, and “Chito,” the maintenance worker who pushed the laundry cart. The government
expects CW9 to testify that these bribes were payed “outside” of the prison by an attorney for
the defendant, further demonstrating the defendant’s network of corrupt associates.

1
The government continues its numbering sequentially from the second set of
motions in limine.

2
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Even once outside of the prison walls, the defendant’s escape was not yet
complete. The defendant required the assistance of additional coconspirators and substantial
resources to fully escape the reach of law enforcement. According to CW6, the defendant’s
co-conspirator Mayo Zambada orchestrated the delivery of an armored Volkswagen Jetta near
to the prison, which was driven by another criminal associate of the defendant, to permit the
defendant to drive or be driven under the cover of night to Tepic, Nayarit, the state adjacent to
Jalisco, where the prison was located. According to Cooperating Witness No. 10 (“CW10”),
once the defendant was in Nayarit, the defendant’s criminal associates, including Mayo
Zambada, learned that law enforcement was closing in on the defendant and recognized that
he needed another means to continue his flight from justice. The government expects CW10
to testify that Mayo Zambada sent his helicopter pilot, Patricio Estolano, to fly to the mountains
of Nayarit to help the defendant evade law enforcement capture. CW10 will further testify
that when the helicopter landed, Mayo Zambada, CW10 and a small security detail drove the
defendant to Mexico City, where he hid for a period of time. This particular event was the
occasion on which CW10 first met the defendant face-to-face. The government anticipates
that CW10 will also testify that in the immediate aftermath of the defendant’s escape from
Puente Grande, CW10 and Mayo Zambada used their corrupt connections at all levels of
government to receive information about planned capture operations against the defendant,
who was now a fugitive from justice.

Immediately after the escape, the defendant began contracting military


personnel to provide security for him. Indeed, his security detail grew to as large as 50 heavily-
armed “pistoleros” within weeks of his escape from prison. Additionally, the defendant
continued to travel via small private airplane and helicopter to different locations within
Mexico in order to avoid apprehension.

All of these events took place within days of the laundry cart incident, and were
critical in ensuring that the defendant could continue his criminal activity by avoiding further
incarceration and the possibility of extradition to the United States. Additionally, testimony
from several cooperating witnesses will show the means by which Mayo Zambada was able to
mobilize the cartel’s resources to assist the defendant in escaping the prison, and cooperating
witnesses will testify that within a few weeks of the escape, the full partnership between the
defendant and Zambada—which characterized their relationship throughout the 2001 to 2016
period—took root. The escape and Zambada’s efforts to assist the defendant, therefore, were
instrumental in cementing the relationship of trust and mutual reliance between the defendant
and Zambada, and allowed the enterprise to flourish to unprecedented heights from 2001 until
the defendant’s ultimate re-capture in 2016.

3
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The significant import of the 2001 escape is additionally corroborated by the


fact that, according to CW9, approximately 70 prison guards were arrested by Mexican
authorities in the wake of the escape. CW9 will testify that the defendant told CW9 that the
defendant was helping to pay for attorneys for many of them. Finally, CW6 and CW9 will
testify that the defendant told each of them, separately, that he undertook the 2001 escape
because he believed that he was likely to be extradited to the United States.

B. Analysis

The fact that the defendant was able to make these arrangements to escape and
avoid re-capture by law enforcement in its immediate aftermath is probative of the substantial
income derived from the charged CCE. See Order at 6. As courts across the country have
held, there is no threshold amount required to establish the “substantial income” prong of CCE.
See, e.g., United States v. Losada, 674 F.2d 167, 173 (2d Cir. 1982) (concluding that even a
net income of $2,000 could suffice on particular facts of case, as “neither the statute nor the
cases establish a minimum amount of ‘income or resources’ required to make [21 U.S.C. §]
848 applicable”). Additionally, the “substantial income” prong may be established
circumstantially, as by evidence of a defendant’s “position” in an enterprise, and by the
defendant’s “level of operation.” United States v. Ayala, 769 F.2d 98, 102 (2d Cir. 1985).

The above-proffered facts relating to the 2001 escape—the defendant’s ability


to bribe prison officials following eight years in custody, the ready aid of his associates once
he escaped, his prompt return to a top position in an ongoing drug cartel—are highly probative
of the “substantial income” that the defendant derived from the enterprise. See Order at 6. His
escape was not one of chance, and his subsequent re-installation as a leader of the cartel was
not a promotion; rather, his ability to bribe prison officials, and the assistance provided to him
by his co-conspirators in escaping and returning to a top role in the cartel demonstrate his
position as a leader who derived substantial income. 2 Evidence and testimony related to the
2001 escape should therefore be admissible as direct evidence of the charged CCE.

Additionally, in light of the fact that the government will, pursuant to the Court’s
ruling, introduce evidence of the defendant’s ongoing drug trafficking while in prison from
1993-2001, evidence of the 2001 escape is “necessary to complete the story of the crime on
trial” and is therefore alternatively admissible as “inextricably intertwined” with evidence of

2
The fact that the defendant received aid from and promptly returned to work
with other co-conspirators following his escape is also probative of the CCE element that he
worked “in concert” with five or more other persons in relation to the continuing series of
violations which comprise the defendant’s CCE. 21 U.S.C. § 848(c)(2)(A).

4
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his crimes. United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (internal quotation marks
and citation omitted). See also Dkt. No. 213 at 31-33. Without evidence of the 2001 escape,
the jury will have no context for understanding how the defendant went from drug trafficking
while in prison, to expanded trafficking outside of prison in the 2000s, to being the subject of
fugitive capture operations in 2012 and 2014. And, in particular, the jury would not hear
evidence explaining the genesis of the defendant’s significant relationship with Mayo
Zambada, whose efforts to assist the defendant in escaping and whose role in helping the
defendant return to the cartel were crucial in establishing the defendant’s position as a principal
leader of the Sinaloa Cartel and major trafficker. See also United States v. Escalera, 536 Fed.
App’x 27 (2d Cir. 2013) (even where not “inextricably intertwined,” a district court has
discretion to admit uncharged conduct as “background to the conspiracy, helping the jury
understand how the illegal relationship among the participants developed, and how [a
defendant’s] role in the conspiracy evolved”).

Finally, as set forth in the government’s prior briefing, evidence of the 2001
escape demonstrates the defendant’s consciousness of guilt of the crimes charged. As the
government expects CW6 and CW9 to testify, the defendant himself told his associates that he
had been motivated to escape because he believed he would be extradited to the United States
to face charges here. As the government has explained in previous briefing, evidence of flight
that demonstrates consciousness of guilt can be admissible as direct evidence of the crimes
charged. See Dkt. No. 213 at 34-36. See also United States v. DeSimone, 699 F.3d 113, 125
(1st Cir. 2012) (admitting evidence of escape as probative of consciousness of guilt where
defendant escaped prison after learning that he was under investigation for separate, previously
uncharged offenses). 3

II. Dissemination of Photographs and Sketches of Cooperating Witnesses

In its Order, the Court denied without prejudice to renewal the government’s
motion to limit dissemination of photographs and sketches of cooperating witnesses. See
Order at 13-14. The Court explained that, with respect to photographs, the government must
identify the specific photographs and exhibits at issue before the Court can make a ruling. See
id. at 14. With respect to courtroom sketches, the Court explained that the government would
be permitted to make a factual proffer to the Court prior to a particular witness taking the stand

3
The escape is alternatively admissible as Rule 404(b) evidence to show the
defendant’s “opportunity, intent, preparation, [and] plan” to commit the charged CCE. See
Dkt. No. 213 at 36-38; see also Order at 6 (“[E]vidence of these three events is admissible
under FRE 404(b) to show defendant’s opportunity to commit the charged crimes.”).

5
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to explain the specific safety concerns faced by that witness, in order to determine whether to
prohibit sketching of that witness. See id.

The government may raise additional factual proffers during trial as necessary,
but provides additional factual detail here for two cooperating witnesses in order to permit the
Court to make an advance ruling. In light of the unique security concerns associated with these
witnesses, which the government has detailed for the Court in a separate ex parte submission
submitted simultaneous with this briefing (the “Fifteenth Ex Parte Submission”), the
government requests a pretrial ruling from the Court that it may redact or pixilate eight
photographs that the government intends to introduce as evidence at trial. It further requests a
pretrial ruling that courtroom sketch artists may not draw and disseminate the faces of these
two witnesses.

Specifically, with respect to Cooperating Witness No. 5 (“CW5”), the


government requests a ruling that permits the government to pixilate seven photographs that it
intends to introduce at trial. See Ex. A. The government took five of the photographs earlier
this year; those photographs show the scars that the defendant has on his body, including one
photograph of a scar on his face, from the multiple stabbing attacks directed by the defendant
against him. The government will introduce these photographs at trial to corroborate CW5’s
testimony regarding the multiple attacks against him while he was incarcerated in Mexico.
The sixth photograph is a headshot of CW5 from the early 1990s, which the government
expects one or more other cooperating witnesses to identify at trial to corroborate testimony
regarding the past drug trafficking relationship between the cooperating witness, CW5 and the
defendant. Finally, the seventh photograph that the government intends to introduce is a
photograph from the early 1990s showing CW5 sitting next to the defendant at a restaurant
along with other persons. The government will introduce this photograph to corroborate his
testimony regarding his drug trafficking relationship with the defendant.

The government is not aware of any recent photographs of CW5 that are public,
and CW5 has no social media presence. The government is aware that the seventh photograph
described above has been published on the internet by at least one foreign internet site;
however, the photograph was not linked to CW5’s name, and it has not been widely circulated.
For the reasons discussed in the government’s Fifteenth Ex Parte Submission, the broad
dissemination of CW5’s photograph or sketch in the media would raise significant security
concerns. Moreover, the possibility that CW5’s photograph or sketch may be circulated
following CW5’s testimony would put undue stress on CW5 and CW5’s family members
leading up to CW5’s testimony in light of the security risks that they would face if CW5’s
image is disseminated. The government thus requests that the Court issue a pretrial ruling
permitting the government to pixilate or redact the photographs in which CW5 is depicted and
prohibiting CW5’s sketch from being drawn during trial.
6
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With respect to Cooperating Witness No. 11 (“CW11”), the government seeks


to introduce a headshot of CW11 from the period about which CW11 will testify. CW11’s
identity is subject to the Court’s delayed disclosure order; thus, the government has attached
CW11’s photographs as Exhibit 1 to the government’s Fifteenth Ex Parte Submission.

See Dkt. No. 240 at 11. The government is not aware of any
public photographs of CW11. Indeed, given the security risks that he faces, CW11 has no
social media presence. Thus, the broad dissemination of CW11’s image would
likely permitting members of the
press, the public and the Sinaloa Cartel to discover his true identity. Moreover, as with CW5,
the possibility that CW11’s photograph or sketch may be circulated following CW11’s
testimony would put undue stress on CW11 and CW11’s family members leading up to
CW11’s testimony in light of the security risks that they would face if CW11’s image is
disseminated. In light of the security concerns discussed in the government’s Fifteenth Ex
Parte Submission, the government requests that the Court issue a pretrial ruling permitting the
government to pixilate or redact the photographs in which CW11 is depicted and prohibiting
CW11’s sketch from being drawn during trial.

III. Present Sense Impressions and Excited Utterances in 2015 Prison Surveillance Video

The Court has ruled that the statements of law enforcement officers and
journalists in several of the videos that the government intends to introduce at trial are not
admissible as “present sense impressions” or “excited utterances.” See Order at 12. The Court,
however, did not issue a ruling with respect to the statements made by prison officials during
surveillance footage of the defendant’s escape from prison. As described below, those
statements qualify as excited utterances and present sense impressions. The government thus
requests that the Court rule these statements are admissible.

As set forth in Exhibit G-1 to the government’s second motions in limine, see
Dkt. No. 326, the audio in the video contains a conversation between a prison guard and a
supervisor or chief. 4 As the guard and other prison staff are scrambling to determine why the
defendant’s cell is empty, the guard—in real time and as he observes it—calls out the
defendant’s name to determine if he is in the cell and then reports to his chief that there was a
“hole in the shower,” that the hole is “big,” and that the “person” is not present in the cell.

4
Since filing its second motions in limine, the government has finalized the
transcription and translation of the video. That transcript is attached hereto as Exhibit B.

7
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The statements of the first guards to arrive at the defendant’s empty cell,
describing the “event or condition [] while the declarant was perceiving the event or
condition.” Order at 12 (citing Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004)). These
contemporaneous statements of the guards are the first observations of the defendant’s startling
and dramatic escape. They should therefore be admissible under the present sense impression
and excited utterance exceptions to the rule against hearsay.

IV. Rule 403 Preclusion of Rape Allegation

The government acknowledges that the Court has ruled that evidence that the
defendant raped a cooperating witness, thereafter beginning a romantic relationship with her
and drawing her into his criminal enterprise, is precluded pursuant to Rule 403. See Order at
4. The government asks that the Court confirm that the defendant will also not be permitted
to elicit testimony or otherwise introduce evidence of the rapes, which he might do in an
attempt to show bias on the part of the cooperating witness.

V. Conclusion

For the foregoing reasons, the Court should grant the government’s motions in
limine with respect to the evidence described above.

VI. Partial Sealing is Appropriate

Pursuant to the protective order in this case, the government respectfully


requests permission to submit this brief under seal. See Dkt. No. 57 ¶ 8. This brief details
information regarding the government’s cooperating witnesses. Although the cooperating
witnesses are not identified by name herein, the defendant’s criminal associates likely could
use the information described herein to identify that witness. Moreover, the information
discussed herein is sensitive information about which the government seeks to preclude public
questioning.

Thus, sealing is warranted because of the concerns regarding the safety of


potential witnesses and their families, and the danger posed by disclosing the potential
witnesses’ identities and their cooperation with the government. Sealing is further warranted
to protect the disclosure of sensitive information regarding the government’s witnesses. See
United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995) (need to protect integrity of ongoing
investigation, including safety of witnesses and identities of cooperating witnesses, and to
prevent interference, flight and other obstruction, may be compelling reason justifying
sealing); see Feb. 5, 2018 Mem. & Order Granting Gov’t Mot. for Anonymous and Partially
Sequestered Jury, Dkt. No. 187 at 2-3 (concluding that defendant’s actions could pose risk of

8
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harm to cooperating witnesses). As the facts set forth herein provide ample support for the
“specific, on the record findings” necessary to support partial sealing, Lugosch v. Pyramid Co.,
435 F.3d 110, 120 (2d. Cir. 2006), the government respectfully requests that the Court permit
the government to file these motions in limine under seal. Should any order of the Court
regarding this application describe the sealed information in question with particularity, rather
than in general, the government likewise requests that those portions of the order be filed under
seal. 5

Respectfully submitted,

RICHARD P. DONOGHUE
UNITED STATES ATTORNEY
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201

ARTHUR G. WYATT, CHIEF


Narcotic and Dangerous Drug Section
Criminal Division,
U.S. Department of Justice

OF COUNSEL:

ARIANA FAJARDO ORSHAN


UNITED STATES ATTORNEY
Southern District of Florida

cc: Clerk of Court (BMC) (via ECF)


Defense Counsel (via Email)

5
The government will publicly file a redacted copy of this motion, once the
Court unseals the Order. See Dkt. No. 390.

9
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GMP:BCR
F.#2009R01065/OCDETF# NY-NYE-616

UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF NEW YORK
----------------------------------X

UNITED STATES OF AMERICA


TO BE FILED UNDER SEAL
- against -
Docket No. 09-CR-466(S-4)(BMC)
JOAQUIN ARCHIVALDO GUZMAN LOERA,
also known as “El Chapo,” “El Rapido,”
“Chapo Guzman,” “Shorty,” “El Senor,”
“El Jefe,” “Nana,” “Apa,” “Papa,” “Inge”
and “El Viejo,”

Defendant.

----------------------------------X

MEMORANDUM OF LAW IN SUPPORT OF THE GOVERNMENT’S


TRIAL MOTIONS IN LIMINE

RICHARD P. DONOGHUE
UNITED STATES ATTORNEY
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201

ARTHUR G. WYATT, CHIEF


Narcotic and Dangerous Drug Section
Criminal Division
U.S. Department of Justice

OF COUNSEL:
ARIANA FAJARDO ORSHAN
United States Attorney
Southern District of Florida
Case 1:09-cr-00466-BMC-RLM Document 569-5 Filed 02/01/19 Page 2 of 20 PageID #: 6923

PRELIMINARY STATEMENT

The government respectfully submits this memorandum of law in support of

additional motions in limine to (1) preclude cross-examination or the introduction of evidence

related to a government agent’s email describing his personal opinions and characterization of

the defendant; (2) preclude the defense from introducing irrelevant, self-serving portions of

the defendant’s statements made in 1998 to United States law enforcement agents; (3) preclude

cross-examination or the introduction of evidence related to a cooperating witness’s

unsuccessful public authority defense in his own case; (4) preclude the introduction of

evidence related to cooperation with the government by a non-testifying coconspirator; (5)

preclude cross-examination of a cooperating witness regarding a racially-tinged conversation

he had with a family member; (6) preclude cross-examination of a cooperating witness

regarding information that the government was obliged to provide to him by the government

in light of the defendant’s opening statement.

These motions relate to issues that the defendant raised in his opening statement,

have arisen during the course of trial so far, or were only recently discovered by the

government in the course of preparing for trial. They could not, therefore, have reasonably

been raised before trial.

For the reasons set forth herein, the Court should grant the government’s

motions in limine.

2
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ARGUMENT

Motion to Preclude Admission of and Cross-Examination Regarding a Government


Agent’s Email Describing His Personal Opinions and Characterization of the
Defendant

In opening statements, defense counsel read in a portion of an email written by

a Homeland Security Investigations (“HSI”) agent offering his personal opinions and

characterizations about the defendant and a year-long wiretap investigation in which the agent

participated. See 11/13/18 Tr. 597:11-16. During the break in the opening statement, the

government objected that this was inadmissible hearsay. See id. at 593:14-17. As the Court

explained in providing its initial view of the issue at that time, “if an agent says, ‘I believe this

guy,’ or ‘I don’t believe this guy,’ that’s not admissible evidence.” Id. at 594:10-12.

During a sidebar the next day, the Court commented that it would be “absolutely

impermissible to put in an email from an agent opining on the culpability of the defendant.

That’s none of the agent’s business. He has no ability to form that.” 11/14/18 Tr. 611:11-14.

Counsel for the defendant suggested that such statements might be admissible as nonhearsay

pursuant to Fed. R. Evid. 801(d)(2)(D), which provides that a statement “made by a party’s

agent or employee on a matter within the scope of that relationship and while it existed” is not

hearsay within the general prohibition of the Federal Rules of Evidence. See id. at 611:20-

612:2. The Court indicated that it would take argument and briefing on the issue. The next

day, the Court provided case citations that the Court understood as standing for the proposition

that out-of-court statements of government agents do not fall within the ambit of Rule

801(d)(2)(D). See 11/15/18 Tr. 804:8-14 (citing United States v. Yildiz, 355 F.3d 80 (2d Cir.

2004); United States v. Santos, 372 F.2d 177 (2d Cir. 1967)).

3
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By way of background, the email that defense counsel quoted in his opening

statement was produced by the government as part of the Section 3500 materials relating to an

HSI Special Agent (the “HSI Agent”). See JJZ0000002172. The government anticipates

calling the HSI Agent to introduce the evidence from a Title III wiretap investigation

conducted from February 14, 2013 through August 21, 2014. The HSI Agent’s testimony will

lay the foundation for admission of the Title III intercepts of BlackBerry Messenger (“BBM”)

communications involving the defendant and his associates during that time period. 1 The

government expects the HSI Agent will testify to the mechanics of the wiretap investigation

and to what he learned about the structure of the defendant’s communication systems based

upon his observations. The HSI Agent’s testimony will be limited to his observations of the

communication systems that were the subject of the wiretap investigation in which he

participated. While the government intends to elicit some general testimony regarding the

methods and means of communication and communication patterns the HSI Agent observed,

it is wholly distinct from testimony regarding the HSI Agent’s personal opinions and

impressions of the defendant. The government cannot, under the Rules of Evidence, and will

not elicit testimony regarding the HSI Agent’s personal opinions and impressions about the

defendant, the defendant’s guilt or the Sinaloa Cartel more generally. The defense is not

entitled to do so either. Such opinion testimony would not be the proper subject of examination

of a government agent.

1
Other case agents may also be able to provide testimony sufficient to admit
intercepts from this particular Title III investigation into evidence. As such, it is not a certainty
that the HSI Agent will be called at all.
4
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The email from the HSI Agent quoted by defense counsel was a response to an

email from another federal law enforcement agent. The other agent, who was not involved in

the investigation into the defendant, wrote to the HSI Agent, knowing that the HSI Agent had

been involved in investigating the Sinaloa Cartel and the defendant, to congratulate the HSI

Agent on the defendant’s capture a few days earlier, on February 21, 2014. See

JJZ0000002173-74. In response, the HSI Agent criticized the press coverage relating to the

defendant, and noted that only a so-called “roving” wiretap had been sufficient to aid law

enforcement in locating the defendant, whose complicated communications systems, network

of tunnels beneath safe houses and public corruption had enhanced his ability to evade capture.

See JJZ0000002172. It was in that context, responding to press coverage of the defendant and

his notoriety, that the HSI Agent offered the opinions and characterization defense counsel

quoted in opening statements.

This email is, on its face, hearsay, and the defendant’s opening statement

indicates that the defense intends to introduce it for the truth of the matter asserted. As defense

counsel explained in introducing the email, “their own witnesses think that he is not who the

prosecutors claim he is.” 11/13/18 Tr. 579:9-10. Thus, it is clear that the defense intends to

use the opinion offered in the email to rebut evidence of the defendant’s drug trafficking.

Because the defense intends to introduce the email for its truth, it is admissible

only if it is nonhearsay pursuant to Rule 801, or falls within the ambit of an exception to the

rule against hearsay pursuant to Rules 803 or 804. The defense has argued, at the sidebars

quoted above, that the HSI Agent’s email is nonhearsay pursuant to Rule 801(d)(2)(D) as the

statement of an agent of an opposing party. As the Second Circuit has explained, however, a

“government agent’s out-of-court statements are not admissible for their truth in a criminal
5
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prosecution as admissions by a party opponent.” Yildiz, 355 F.3d at 80. The Yildiz court

allowed that statements or filings by government attorneys that bind the government,

statements about which a party has “manifested an adoption or belief in its truth,” and sworn

statements submitted to a court might be nonhearsay, but emphasized that statements by agents

outside of court and which the government has not adopted and which do not bind the

government are distinguishable. See id. at 82.

The HSI Agent’s email falls clearly within the latter category. It is a conclusory

opinion offered outside of court in a casual message to an acquaintance, it has not been adopted

by the government, and it does not legally bind the government in any way. Pursuant to Yildiz,

it is inadmissible here.

Furthermore, because the HSI Agent’s email is inadmissible hearsay, it may not

be used in cross-examination to probe any alleged inconsistency pursuant to Rule 613(b). Rule

613(b) permits extrinsic evidence of a witness’s prior inconsistent statement to be used in

certain circumstances where a witness is given an opportunity to explain or deny the

inconsistency. As this Court has already ruled, however, in adopting former Judge Forrest’s

Guidelines Regarding Appropriate Use of 302 Forms in Criminal Trials, see Nov. 2, 2018

Order, “Rule 613(b) does not itself provide a separate, stand-alone basis for the admissibility

of such extrinsic evidence—it only governs the proper use of otherwise admissible evidence.

In other words, if the underlying extrinsic evidence is inadmissible (because, for instance, it is

hearsay), it cannot come in under rule 613(b).” See Case No. 17-cv-350 (S.D.N.Y.), Dkt. No.

819 at 3.

Because the HSI Agent’s email is hearsay and does not fall within the scope of

Rule 801(d)(2)(D), it is inadmissible. Because it is inadmissible, it may not be introduced at


6
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trial either for its truth or as extrinsic evidence of a prior inconsistent statement under Rule

613(b) should the HSI Agent allegedly testify inconsistently at trial. 2

Motion to Preclude the Defense from Introducing Irrelevant, Self-Serving Portions of


Defendant’s Statements to United States Law Enforcement

The government intends to call a retired Drug Enforcement Administration

(“DEA”) special agent (“retired DEA agent”) who conducted an interview of the defendant in

1998 (“the 1998 Statement”) while the defendant was being housed at the Puente Grande

prison in Mexico. During that interview, the defendant made the following statements that the

government intends to elicit at trial:

• The defendant acknowledged that he knew several individuals involved


in drug trafficking such as Juan Jose Esparragoza “El Azul”.

• The defendant acknowledged that Ismael Zambada Garcia (“Mayo


Zambada”) was fighting the Arellano Felix Organization because the
Arellano Felix Organization killed a drug trafficker named “Chapo
Caro.”

• The defendant acknowledged that he had charges pending in the United


States and requested assistance in avoiding extradition to the United
States to face those charges.

• The defendant admitted an alliance with a drug trafficker named Hector


“Guero” Palma Salazar.

2
The defense should also not be permitted to attempt to elicit testimony in an
effort to create an inconsistency with the email so that they can argue for the admission of the
email pursuant to Rule 613(b). It is dubious, under former Judge Forrest’s ruling, that Rule
613(b) provides a path to admissibility for otherwise inadmissible evidence, see supra. But in
any event, the HSI Agent’s opinions about the defendant and his personal reactions to the Title
III investigation—such as whether he was “impressed” or not by the defendant—are irrelevant
to the defendant’s actual guilt or innocence, and risk confusing the jury as to the issues properly
before it. Any attempt to elicit the HSI Agent’s personal opinions to generate an inconsistency
should therefore be prohibited pursuant to Federal Rules of Evidence 402, 403, and 611(a).
7
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• The defendant offered to provide information to the DEA about the


Arellano Felix Organization’s routes and locations; as well as those of
Guero Palma’s workers.

• The defendant stated he had met with other drug traffickers in the early
1990s in Mexico City to form an alliance. This alliance was later broken
when Ramon Arellano tried to kill the defendant.

• The defendant acknowledged his brother, Arturo Guzman Loera, had


legal problem in the United States as well.

For the reasons set forth below, the Court should preclude the defendant from

admitting any portion of the defendant’s statements to this retired DEA agent at trial. Because

the defendant would not be offering any such statements against an opposing party, and there

are no other hearsay exceptions that apply, the other statements in the report would be

inadmissible hearsay. Additionally, as the Court previously noted in the Memorandum

Decision and Order (June 7, 2018 Order, Dkt No. 240 at 9-10), the Rule of Completeness does

not compel introduction of the other portions of the defendant’s statement not offered into

evidence by the government.

As previously argued in the Government’s Motion in Limine to Admit Portions

of the 2015 Interview Video and Preclude the Defense from Introducing Irrelevant, Self-

Serving Portions (See Dkt No. 213, incorporated by reference), Rule 801(d)(2) provides in part

that a statement is not hearsay when it is “(a) offered against an opposing party and (b) the

statement was made by a party in an individual capacity.” See Fed. R. Evid. 801(d)(2)(A).

Thus, a defendant’s statement may be admissible against him even as it is impermissible for

the defendant to offer the same statement.

As articulated by Federal Rule of Evidence 106, the doctrine of completeness

provides that “even though a statement may be hearsay, an omitted portion of the statement

8
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must be placed in evidence if necessary to explain the admitted portion, to place the admitted

portion in context, to avoid misleading the jury, or to ensure fair and impartial understanding

of the admitted portion.” United States v. Johnson, 507 F.3d 793, 796 (2d Cir. 2007) (alteration

and internal quotation marks omitted).

However, the Second Circuit has explained, while the rule of completeness may

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

admitted portion, to place it in context, or to avoid misleading the trier of fact,” it does not

require the “introduction of portions of a statement that are neither explanatory of nor relevant

to the admitted passages.” United States v. Marin, 669 F.2d 73, 84 (1982) (internal citations

omitted); see United States v. Jackson, 180 F.3d 55, 73 (2d Cir. 1999) (“The completeness

doctrine does not, however, require the admission of portions of a statement that are neither

explanatory of nor relevant to the admitted passages.”).

The 1998 Statement, which the defendant made in an interview setting while he

was housed in a Mexican prison, is hearsay if offered by the defendant and, therefore, the Court

should bar the defendant from offering these statements into evidence. The government seeks

to admit only portions of the 1998 Statement that are relevant to the charged offenses as

admissions of a party opponent pursuant to Federal Rule of Evidence 801(d)(2)(A). The

limited portions of the interview that the government proposes to introduce are highlighted in

the report attached as Exhibit A.

The 1998 Statement was documented in a DEA-6 which includes a summary of

the information the defendant provided to both Mexican and U.S. law enforcement. As seen

in Exhibit A, the limited statements that the government seeks to introduce are severable from

others so the doctrine of completeness is not a consideration here. See Marin, 669 F.2d at 82
9
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6931

(“The completeness doctrine does not, however, require introduction of portions of a statement

that are neither explanatory of nor relevant to the admitted passages.”)

Further, in the 1998 Statement, the defendant made multiple statements that

were purely self-serving and designed to further focus law enforcement attention on the

activities of his enemies – the Arellano-Felixes. These statements do not relate to, or provide

any, additional context to the portion of the interview the government intends to elicit –

namely, the defendant’s statements that shed light on his own culpability and the culpability

of his co-conspirators. In sum, the Court should preclude the defense from eliciting statements

outside the scope of those the government has noted above.

Motion to Preclude Cross-Examination Regarding Cooperating Witness’s Previous,


Unsuccessful Public Authority Defense in His Own Case

One of the government’s cooperating witnesses previously advanced an

unsuccessful public authority defense in his own case. Although the cooperating witness’s

argument was unsuccessful, as set forth in further detail below, should the defendant here be

permitted to cross-examine the cooperating witness about it, the cross-examination risks

suggesting to the jury that the cooperating witness engaged in drug trafficking with the assent

of the United States government. Because the cooperating witness was a high-ranking member

of the Sinaloa Cartel, eliciting detail about the cooperating witness’s public authority defense

strategy could, in turn, improperly suggest to the jury that the defendant himself, as the leader

of the Sinaloa Cartel, was likewise operating with some level of assent or approval by the

government. As the Court is aware, however, the defendant has not filed a notice of public

authority defense as required by Fed. R. Crim. P. 12.3, and repeatedly has indicated to the

Court that the defense does not intend to pursue such a defense strategy. See 11/13/18 Tr.

10
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6932

593:22-23; 11/14/18 Tr. 600:19-22. Because the defendant cannot now advance a public

authority defense of his own, he should not be able to imply one through the questioning of a

cooperating witness who was his close associate and coconspirator.

On February 18, 2010, Vicente Zambada Niebla was extradited to the United

States to stand trial in the Northern District of Illinois, where he had been indicted on April

23, 2009. See United States v. Zambada Niebla, Case No. 1:09-cr-00383 (N.D. Ill.), Dkt. No.

1. (Superseding indictments against Zambada Niebla added the defendant, Ismael Zambada-

Garcia, and others as Zambada Niebla’s co-defendants. See id., Dkt. No. 7.) On April 3, 2013,

Zambada Niebla pleaded guilty to the Third Superseding Indictment against him and agreed

to cooperate with the government. See id. Dkt. No. 217.

Before pleading guilty, however, Zambada Niebla’s attorneys provided notice

pursuant to Rule 12.3 and filed a number of motions in which his defense counsel advanced a

public authority defense, asserting that the United States government had “conferred

immunity” on him. See id., Dkt. Nos. 85, 94, 95, 108, 109, 128. As the government explained

in opposition to Zambada Niebla’s motions in his case in the Northern District of Illinois,

Zambada Niebla’s public authority theory “rest[ed] on the premise that another criminal

defendant, Humberto Loya-Castro, indicted in San Diego in 1995 and alleged to be an attorney

for and member of the Sinaloa Cartel, entered into a cooperation agreement with DEA agents

and the U.S. Attorney’s Office in San Diego in an effort to gain a sentencing benefit in his

criminal case. After a period of cooperation, Loya-Castro’s pending indictment was dismissed

in 2008 upon an application to the court by the U.S. Attorney in San Diego.” See id., Dkt. No.

109 at 1-2.

11
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6933

Zambada Niebla’s public authority arguments derived from the fact that Loya-

Castro met with Zambada Niebla while Loya-Castro was cooperating with the DEA and

convinced Zambada Niebla to meet with the DEA as well. 3 Zambada Niebla thereafter met

with DEA agents in Mexico City in March 2009. Shortly after leaving that meeting, however,

Zambada Niebla was arrested by Mexican law enforcement authorities. At no time prior to

that meeting, or during the meeting, did the DEA or any other entity of the U.S. government

confer any immunity or authorization for Zambada Niebla or the defendant to engage in

narcotics trafficking. Nevertheless, Zambada Niebla’s attorneys advanced three theories of

public authority or immunity: first, that he had a valid immunity agreement with the United

States government; second, that the United States government granted the Sinaloa Cartel full

immunity from prosecution in Loya-Castro’s cooperation agreement with the DEA; and third,

that Zambada Niebla detrimentally relied on assurances from the United States government

that he was immune from prosecution.

The district court in the Northern District of Illinois rejected all of these

arguments. See id., Dkt. No. 170. As that court noted, the only evidence provided by Zambada

Niebla’s attorneys in support of these arguments was an affidavit by his own attorney. See id.

at 3-4. Additionally, Loya-Castro’s own cooperation agreement indicated Loya-Castro’s

understanding that he would “not be promised any benefits…for [his] ongoing cooperation,”

and several DEA Confidential Source Agreements that Loya-Castro signed also indicated that

the DEA provided “no immunity or protection from investigation, arrest, or prosecution,” and

3
Loya-Castro and Zambada Niebla informed both the defendant and his co-
defendant (and Zambada Niebla’s father) Mayo Zambada about this meeting. The defendant
and Mayo Zambada permitted Zambada Niebla to attend the meeting.

12
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6934

that the DEA did not “promise or agree to any consideration by a prosecutor or a court in

exchange for cooperation.” Id. at 5. With those agreements, as well as additional evidence

offered by the government, see id. at 7, the court concluded that there were “no material issues

in dispute regarding Zambada [Niebla]’s claim of immunity from prosecution,” and therefore

rejected the public authority and immunity arguments. Id. at 11. As noted above, Zambada

Niebla thereafter pleaded guilty, and has been cooperating with the government since that

point. The government anticipates calling Zambada Niebla to testify against the defendant in

this trial and does not anticipate eliciting any testimony regarding Zambada Niebla’s

interactions with Loya-Castro.

The scope and extent of cross-examination is committed to the sound discretion

of the district court. See United States v. Wilkerson, 361 F.3d 717, 734 (2d Cir. 2004). A

court may properly bar cross-examination that is only marginally relevant to a defendant’s

guilt or other issues before the court. See United States v. Maldonado-Rivera, 922 F3d. 934,

956 (2d Cir. 1990); see also Fed. R. Evid. 611 (stating that “court should exercise reasonable

control . . . so as to . . . avoid wasting time[] and protect witnesses from harassment or undue

embarrassment”). A “decision to restrict cross-examination will not be reversed absent an

abuse of discretion.” United States v. Lawes, 292 F.3d 123, 131 (2d Cir. 2002) (citing United

States v. Rosa, 11 F.3d 315, 335 (2d Cir. 1993)). The Second Circuit has repeatedly upheld

district courts’ exercise of discretion in imposing reasonable limits on the subjects that may be

inquired into on cross-examination. See United States v. Rivera, 971 F.2d 876, 886 (2d Cir.

1992) (“The court is accorded broad discretion in controlling the scope and extent of cross-

examination.”). Additionally, admission of all evidence is limited by Federal Rules of

Evidence 402 and 403, which exclude otherwise relevant evidence if its “probative value is
13
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6935

substantially outweighed by the danger of unfair prejudice, confusion of the issues . . . , or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” United States v. Figueroa, 548 F.3d 222, 229 (2d Cir. 2008).

In this case, to permit cross-examination as to Zambada Niebla’s unsuccessful

public authority defense in his own case would provide the jury with no additional facts or

evidence from which it could draw any conclusion as to the defendant’s guilt or innocence,

nor would it be probative of Zambada Niebla’s credibility. The fact that Zambada Niebla’s

defense counsel made various arguments in his own case and prior to his agreement to

cooperate with the government simply do not bear on the defendant’s drug trafficking or

Zambada Niebla’s role in the defendant’s organization. Such cross-examination would,

however, have an unfairly prejudicial and confusing effect, as it would suggest to the jury that

the United States government granted Zambada Niebla “immunity” or authorization to engage

in drug trafficking, from which the jury might improperly and incorrectly infer that the

government extended some form of assent to the broader drug trafficking activities of the

Sinaloa Cartel as a whole, and to the defendant. Lengthy redirect testimony and rebuttal

witnesses might then be required to rebut this suggestion of public authority—which, as noted

above, is not a defense noticed by the defendant. The Court should exercise its discretion to

preclude cross-examination into this irrelevant issue and avoid an unnecessary mini-trial on

the defenses raised in Zambada Niebla’s own case. See Fed. R. Evid. 611.

Motion to Preclude Introduction of Evidence Related to Cooperation of Non-Testifying


Coconspirator

The Court should also preclude cross-examination and the introduction of

evidence related to Humberto Loya-Castro’s cooperation with the United States government.

14
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6936

As noted above, Loya-Castro was indicted in the Southern District of California

in 1995, and subsequently cooperated with the United States government. Loya-Castro’s

cooperation with the DEA spanned from 2005 to 2015, and the government voluntarily

dismissed his indictment in 2008, in part because of his cooperation. Loya-Castro will not be

called by the government to testify in this trial. (Indeed, he has not been actively cooperating

with the government for some time.) He is, however, a former associate of the Sinaloa Cartel

and coconspirator of the defendant. The government intends to elicit testimony from one

cooperating witness that from approximately 1987 to 1993, Loya-Castro was responsible for

making corrupt payments to police on behalf of the defendant and the Sinaloa Cartel. Loya-

Castro made those payments at the direction of the defendant. A second cooperating witness

will corroborate that Loya-Castro served this role for the Sinaloa Cartel prior to 2003.

The government does not intend to elicit testimony from other cooperating

witnesses about Loya-Castro; although in light of Loya-Castro’s role in the cartel and as one

of the defendant’s coconspirators, the government is aware that other of its cooperating

witnesses knew Loya-Castro and are familiar with the activities he undertook in support of the

Sinaloa Cartel. Specifically, that Loya-Castro would meet with the defendant and his partner,

Mayo Zambada to gather information about rivals of the Sinaloa Cartel and provide this

information to the DEA during the 2005 to 2015 period. The government also does not intend

to elicit testimony about Loya-Castro’s cooperation with the government. That cooperation

occurred many years after the activities for which the government intends to elicit testimony

relating to Loya-Castro, and does not bear on Loya-Castro’s role from 1987 to 1993 as being

responsible for corruption payments to police on behalf of the defendant and the Sinaloa Cartel.

15
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6937

As set forth in Section III above, the Court has broad latitude to limit the scope

of cross-examination and may properly bar cross-examination that is only marginally relevant

to a defendant’s guilt or other issues before the court. See Maldonado-Rivera, 922 F.3d at 956;

see also Fed. R. Evid. 611 (stating that “court should exercise reasonable control . . . so as

to . . . avoid wasting time[] and protect witnesses from harassment or undue embarrassment”).

Cross-examination of the government’s cooperating witnesses regarding Loya-

Castro’s cooperation would not be relevant to the issues before the jury: the fact that Loya-

Castro cooperated with the government many years after making payments to police on behalf

of the Sinaloa Cartel does not relate to the defendant’s guilt or the credibility of the testifying

witnesses. Such cross-examination would only serve to waste time and confuse the issues. As

with cross-examination regarding Zambada Niebla’s unsuccessful public authority defense,

moreover, cross-examination of other cooperating witnesses regarding Loya-Castro’s

cooperation would risk unfair prejudice to the government and the specter of an impermissible

public authority defense by insinuating that the government “immunized” Loya-Castro or

otherwise assented to his conduct on behalf of the defendant and the Sinaloa Cartel. 4 Cross-

examination into Loya-Castro’s cooperation should therefore be precluded. It has virtually no

probative value, and would risk confusion of the issues, wasting time, and unfair prejudice to

the government. See Fed. R. Evid. 611.

4
Were Loya-Castro to testify for the government, the defense would of course
be permitted to cross-examine him as to the benefits he received or hoped to receive for his
cooperation. But as noted above, Loya-Castro is no longer cooperating with the government
and the government will not be calling him to testify in this trial. The purpose of cross-
examining testifying witnesses about their plea agreements and cooperation is to aid the jury
in assessing their credibility. Here, however, cross-examining other witnesses about Loya-
Castro’s cooperation would not aid the jury, as Loya-Castro’s credibility is not at issue because
he is not testifying.
16
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6938

Motion to Preclude Cross-Examination on Racially-Tinged Conversation Between


Cooperating Witness and His Family Member

Among the draft transcripts produced to the defense was a transcript of a January

20, 2010 telephone call between cooperating witness Jorge Milton Cifuentes-Villa (J.

Cifuentes-Villa) and his mother. In this transcript, Bates 332073-332109, J. Cifuentes-Villa

discussed how a Bolivian man named Don Chucho refused to provide cocaine the defendant

had paid for through J. Cifuentes-Villa. After J. Cifuentes-Villa’s mother urged J. Cifuentes-

Villa to talk to Don Chucho to convince him to provide the cocaine, J. Cifuentes-Villa pointed

out that any further discussion would be pointless, because Don Chucho was a liar. Then, on

pages 17-18 of the transcript, J. Cifuentes-Villa continues: “Anyone can talk, any black man

who sweet talks anyone and then he’ll say that he loves you a lot. . . . So what he is looking

for there, more money is what he is looking for . . . Because I was the fool that gave him the

money.” Bates 332088-89.

The defendant should not be allowed to cross-examine J. Cifuentes-Villa about

this racially-tinged conversation with his mother. J. Cifuentes-Villa’s comments relating to

Don Chucho are not relevant in any way. They are not, for example, probative of truthfulness

or any other issues in the case, and are therefore presumptively inadmissible.

Even assuming they were relevant, any potential relevance would be

substantially outweighed by the unfair prejudice and misleading of the jury that would likely

result from cross-examination on J. Cifuentes-Villa’s comment. The only possible reason to

cross-examine J. Cifuentes-Villa about this comment is to inflame the jury’s passions. As a

consequence, pursuant to Federal Rules of Evidence 401 and 403, the defendant should be

precluded from questioning J. Cifuentes-Villa about these comments. For the same reason,

17
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6939

the government seeks to preclude the defendant from introducing this portion of the transcript

into evidence.

Motion to Preclude Cross-Examination on Information Provided By the Government


to Cooperating Witness Following Opening Statement

As the Court recalls,

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6940

Partial Sealing is Appropriate

Pursuant to the protective order in this case, the government respectfully

requests permission to submit this brief partially under seal. See Dkt. No. 57 ¶ 8. Portions of

this brief refer to the government’s cooperating witnesses. The government has identified two

of them by their full names for the convenience of the Court and in light of the fact that

reference to the district in which one of the cooperating witnesses was charged and pleaded

guilty would likely reveal him to many observers even if the government used a code number

or pseudonym.

Thus, partial sealing is warranted because of the concerns regarding the safety

of potential witnesses and their families, and the danger posed by disclosing the potential

witnesses’ identities and their cooperation with the government prior to their testimony in this

case. See United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995) (need to protect integrity

of ongoing investigation, including safety of witnesses and the identities of cooperating

witnesses, and to prevent interference, flight and other obstruction, may be a compelling reason

justifying sealing); see Feb. 5, 2018 Mem. & Order Granting Gov’t Mot. for Anonymous and

Partially Sequestered Jury, Dkt. No. 187 at 2-3 (concluding that defendant’s actions could pose

risk of harm to cooperating witnesses). As the facts set forth herein provide ample support for

the “specific, on the record findings” necessary to support partial sealing, Lugosch v. Pyramid

Co., 435 F.3d 110, 120 (2d. Cir. 2006), the government respectfully requests that the Court

permit the government to file this motion partially under seal. Should any order of the Court

regarding this application describe the sealed information in question with particularity, rather

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6941

than in general, the government likewise requests that those portions of the order be filed under

seal.

CONCLUSION

For the foregoing reasons, the Court should grant the government’s motions in

limine in their entirety.

Dated: Brooklyn, New York


November 25, 2018
Respectfully submitted,

RICHARD P. DONOGHUE
United States Attorney
Eastern District of New York

ARTHUR G. WYATT, CHIEF


Narcotic and Dangerous Drug Section
Criminal Division
U.S. Department of Justice

OF COUNSEL:
ARIANA FAJARDO ORSHAN
United States Attorney
Southern District of Florida

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U.S. Department of Justice

United States Attorney


Eastern District of New York
GMP:ASF 271 Cadman Plaza East
F. #2009R01065 Brooklyn, New York 11201

December 9, 2018

TO BE FILED UNDER SEAL

By ECF

The Honorable Brian M. Cogan


United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201

Re: United States v. Joaquin Archivaldo Guzman Loera


Criminal Docket No. 09 CR 466 (S-4) (BMC )

Dear Judge Cogan:

The government submits this letter pursuant to its obligations under Giglio v.
United States, 405 U.S. 150 (1972), and respectfully moves the Court for a ruling precluding
cross-examination on potential Giglio information related to one of its cooperating witnesses.

I. Facts

The allegations relate to a cooperating defendant named Pedro Flores


(hereinafter “Flores”), whom the government anticipates will testify at trial in the above-styled
matter on December 17, 2018. Pursuant to its obligations under Giglio, the government has
already turned over to the defense a substantial amount of material which the defendant can
use to cross-examine Flores on a variety of topics, including, but not limited to, information
that Flores: 1) engaged in unauthorized drug trafficking ventures while cooperating with the
DEA; 2) impregnated his wife while in DEA custody; 3) arranged for his family members to
collect drug debts while cooperating with the DEA, then minimized some of his family
members’ involvement in the collection efforts to interviewing agents; 4) believed that the
Sinaloa Cartel killed his father in Mexico, and believes that the defendant may have played a
role in his father’s death; 5) still owed the defendant approximately $12.7 million dollars in
drug debts; and 6) violated a number of prison rules by, among other things, arranging for
family members to place money in other inmates’ commissary accounts to circumvent prison
regulations.
Case 1:09-cr-00466-BMC-RLM Document 569-6 Filed 02/01/19 Page 2 of 6 PageID #: 6943

Several years ago, the government received an allegation from a fellow inmate
from the federal prison system that Flores and his twin brother Margarito had withheld $20
million dollars in drug proceeds from U.S. Government, and that their lawyer was helping to
pay out this money to family. The source of the allegation correctly identified where the
brothers had been housed and had some other information about the brothers’ family members'
whereabouts, and alleged that the brothers carried AK-47s in Mexico for protection. Upon
receiving the allegation, the DEA conducted an investigation into the claims about the
withholding of money and could not substantiate the claims. For his part, Flores denied
withholding any drug proceeds from the government and denied that his lawyer was helping
to pay out any money to the family (although he did acknowledge that he did carry an AK-47
in Mexico for protection).

The government recently received an allegation from the facility where Flores
is currently housed. On September 22, 2018, another inmate in the prison facility provided a
statement to his prison counselor about activities in the unit. Among the allegations made by
the inmate was

The prison counselor noted that, while the informant


was obligated to report the accusations, through the counselor’s observation, the counselor did
not believe any of the allegations to be true.

Following the interview,

That investigation is currently underway; however, none of the inmate’s allegations regarding
has been substantiated. Prison officials confronted Flores with the allegation
that he was using his family members to send money to other inmates’ commissary accounts,
and he acknowledged that he had done so. Accordingly, the facility handed out disciplinary
punishment: Flores lost his phone privileges for 180 days because of his involvement in
sending money to other inmates’ commissary accounts.

On October 12, 2018, a DEA agent and prosecutor confronted Flores with the
allegation of the inmate commissary account scheme, and Flores acknowledged his

2
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participation in the scheme. The agent and prosecutor asked Flores whether he had engaged
in any other inappropriate conduct while in prison over the last few months, and Flores
volunteered that he, along with other inmates in his unit, had discovered that a “regular”
telephone in the unit could be used to make unauthorized outside calls, and that he had used
this phone to call his wife on a number of occasions. Flores also explained to the agent and
prosecutor that he was aware that another inmate in the unit with whom he had an ongoing
dispute was making false accusations about him involving pills and cell phones. Flores pointed
out that because he had access to the phone in his unit, he would have no need to have a cell
phone. Flores also denied making any payments to any prison officials.

Because the Bureau of Prison investigation has not substantiated the allegation
that Flores

the
government seeks to preclude cross-examination of Flores as to the allegations under Federal
Rule of Evidence 403, because they would be cumulative of other impeachment material and
would unfairly inflame the passions of the jury by raising an uncorroborated suggestion of
government misconduct or neglect.

II. Legal Standards

At the outset, it is not even clear that the government was obligated to provide
the defendant with such unsubstantiated allegations of misconduct. Although the Second
Circuit does not appear to have directly considered the issue, other courts have declined to
hold that a defendant is entitled to potential Brady and Giglio information where that
information is related to unsupported and unsubstantiated allegations about government
witnesses. See, e.g., United States v. Agurs, 427 U.S. 97, 109 n.16 (1976) (“It is not to say that
the State has an obligation to communicate preliminary, challenged, or speculative
information.”) (internal citation and quotation marks omitted)); United States v. Bulger, 816
F.3d 137, 155 (1st Cir. 2016) (upholding finding that there was no Brady violation where
government did not turn over unsubstantiated allegations about government witness); United
States v. Fernandez, No. 09-CR-1049, 2009 WL 10637246 (S.D.N.Y. 2009) (holding that
evidence related to unsubstantiated claims about police witnesses did not fall within the ambit
of Giglio, because “‘unsubstantiated’ claims are simply allegations of wrongdoing that were
withdrawn or abandoned, or allegations about which there was insufficient information to
proceed any further”); Bonfilio v. United States, No. 15-CV-1015, 2016 WL 6124487 (W.D.
Pa. Nov. 10, 2016) (agreeing with Bulger court that unsubstantiated allegations generally need
not be disclosed); United States v. Dabney, 498 F.3d 455 (7th Cir. 2007) (holding that there
had been no error in trial court’s refusal to order production of unsubstantiated complaints filed
with police department against testifying officer).

Even when the government provides information and evidence to the defense,
courts have held that it is appropriate to limit cross-examination into unproven and
unsubstantiated allegations concerning testifying witnesses. As the Southern District of New
York explained in rejecting a claim that the government violated Brady by failing to disclose

3
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a transcript of a DEA agent’s testimony in an unrelated case that was rooted in an internal
investigation, “cross-examination on this subject would not have been admissible at trial. This
Court precluded all cross-examination of the DEA agent on the subject matter of the [Office
of Professional Responsibility] investigation, as the investigation had ultimately been found to
be unsubstantiated.” United States v. Akefe, No. 09-CR-196, 2013 WL 4729174 (S.D.N.Y.
2013). Other courts, too, have limited cross-examination into unsubstantiated allegations
pursuant to Rules 608, 609, and 611. See United States v. Novaton, 271 F.3d 968, 1004-07
(11th Cir. 2001) (excluding cross-examination of officer’s involvement in prior complaint
because it was unproven and pending, and would therefore be more prejudicial than probative);
United States v. Wilson, 303 Fed. Appx. 350 (7th Cir. 2008) (“[A]ccusations that [witnesses]
engaged in misconduct were merely that: accusations, and offered little indicia of reliability.
Thus the district court, acting within its discretion, was free to determine that cross
examination into the specific instances of misconduct would have been of limited probative
value.”); United States v. Innamoranti, 996 F.2d 456, 478-79 (1st Cir. 1993) (holding that
district court properly restricted cross examination of DEA agent concerning unsubstantiated
claim that he had erased part of an audio tape in an unrelated case).

III. Discussion

As the government has explained in its separate filings seeking rulings limiting
cross-examination of witnesses on various topics, a court enjoys “wide latitude . . . to impose
limits on . . . cross-examination.” United States v. Maldonado-Rivera, 922 F.2d 934, 956 (2d
Cir. 1990). Specifically, a court should “exercise reasonable control” so as to “avoid wasting
time[] and protect witnesses from harassment or undue embarrassment.” Id. Even where
topics of cross-examination are probative of truthfulness and veracity, a district court may limit
cross-examination where the probative value is “outweighed by danger of unfair prejudice,
confusion of issues, or misleading the jury.” Fed. R. Evid. 608 ad. comm. note. See also Fed.
R. Evid. 403. 1

As noted above, the DEA and the Bureau of Prisons has been unable to
substantiate the claims that Flores either withheld 20 million dollars from the government,
or Accordingly, the
Court should follow the precedent set by other courts that have prohibited cross-examination
about unsubstantiated allegations.

The Second Circuit has repeatedly observed that evidence of prior arrests or
charges that have not resulted in convictions generally cannot be used to impeach the
credibility of a witness. See United States v. Salameh, 152 F.3d 88, 131-32 (2d Cir. 1998);
United States v. Semensohn, 421 F.2d 1206, 1208 (2d Cir. 1970) (“It is settled that in a trial a

1
The government previously moved the Court to preclude cross-examination on
a variety of topics related to the government’s cooperating witnesses and law enforcement
witnesses, and respectfully refers the Court to those briefs for a more detailed discussion of
the legal standards related to limits on cross-examination.

4
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witness’s acts of misconduct are not admissible to impeach his credibility unless the acts
resulted in the obtaining of a conviction.”); United States v. Acarino, 408 F.2d 512, 514 (2d
Cir. 1969) (“The prosecuting attorney was correct in his apparent assumption that such
evidence of misconduct as an indictment is not normally admissible for impeachment
purpose.”). In Akefe, for instance, the Southern District of New York precluded cross-
examination related to a DEA Office of Professional Responsibility investigation where the
allegations were ultimately found to be unsubstantiated. See Akefe, 2013 WL 472174 at *6.
Here, too, an investigation has determined that the “accusations that [the witness] engaged in
misconduct [are] merely that: accusations . . . .” Wilson, 303 Fed. Appx. at 355. Here, the
allegations regarding hiding of assets, bribery and introduction of contraband are
unsubstantiated, and are not appropriate for use in cross-examining Flores.

Finally, granting the government’s instant motion will in no way deprive the
defendant of a meaningful opportunity to cross-examine Flores. The defendant will be able to
cross-examine Flores as to the matters set forth above (see supra, p.1) his extensive history of
drug trafficking, his motivations for cooperating with the government in the expectation of a
sentence reduction, and various other topics which have been or will be revealed to the defense
in Rule 16 and § 3500 discovery. See United States v. Locasio, 6 F.3d 924, 949 (2d Cir. 1993)
(“However, as the district court found, these reports would have had no effect on Gravano’s
credibility, not only because they were untrustworthy, but also because they would merely
have been cumulative. Gravano confessed to numerous crimes, including murders, and was
subject to withering cross examination for those actions. The addition of a few more
allegations would not have materially affected the defense’s cross examination of him.”). The
fact that cross-examination as to the unsubstantiated allegations would be needlessly
cumulative offers an additional reason why should be s appropriately precluded in the face of
its marginal probative value. See United States v. Figueroa, 548 F.3d 222, 229 (2d Cir. 2008)
(noting that cross-examination may be properly limited where “unduly prejudicial, confusing
or misleading to the jury, or cumulative”).

IV. Conclusion

For the foregoing reasons, the government respectfully moves the Court to
determine that the defendant not be allowed to preclude cross-examination of Flores as to the
unsubstantiated allegations.

V. Sealing is Appropriate

Pursuant to the protective order in this case, the government respectfully


requests permission to submit this brief under seal. See Dkt. No. 57 ¶ 8. This brief details
information regarding the government’s cooperating witnesses. Moreover, the information
discussed herein is sensitive information about which the government seeks to preclude
questioning.

Thus, sealing is warranted because of the concerns regarding the safety of


potential witnesses and their families, and the danger posed by disclosing the potential

5
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witnesses’ identities and their cooperation with the government. Sealing is further warranted
to protect the disclosure of sensitive information regarding the government’s witnesses. See
United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995) (need to protect integrity of ongoing
investigation, including safety of witnesses and identities of cooperating witnesses, and to
prevent interference, flight and other obstruction, may be compelling reason justifying
sealing); see Feb. 5, 2018 Mem. & Order Granting Gov’t Mot. for Anonymous and Partially
Sequestered Jury, Dkt. No. 187 at 2-3 (concluding that defendant’s actions could pose risk of
harm to cooperating witnesses). As the facts set forth herein provide ample support for the
“specific, on the record findings” necessary to support partial sealing, Lugosch v. Pyramid Co.,
435 F.3d 110, 120 (2d. Cir. 2006), the government respectfully requests that the Court permit
the government to file this motion under seal and that any resulting order by the Court also be
filed under seal.

Respectfully submitted,

RICHARD DONOGHUE
United States Attorney
Eastern District of New York

ARTHUR G. WYATT, CHIEF


Narcotic and Dangerous Drug Section
Criminal Division,
U.S. Department of Justice

OF COUNSEL:

ARIANA FAJARDO ORSHAN


United States Attorney
Southern District of Florida