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Case 1:09-cr-00466-BMC-RLM Document 453 Filed 11/20/18 Page 1 of 2 PageID #: 5643


----------------------------------------------------------- X
- against - : ORDER
Defendant. :
----------------------------------------------------------- X
COGAN, District Judge.

This order addresses the Court’s November 8, 2018 order to show cause why the Court

should not publicly file its proposed redacted version of its October 30, 2018 order granting in

part and denying in part the Government’s motions in limine concerning cooperating and law

enforcement witnesses. Defendant opposes the Court’s redactions to the extent they differ from

his own minimal proposed redactions. The Government is amenable to the Court’s version of

the order but requests two additional redactions.

The Court issues the attached public version of its October 30, 2018 order with limited

redactions based on the following findings:

1. The redacted information could lead to the identification of the Government’s

cooperating and law enforcement witnesses because the redacted information is
sufficiently specific to reveal the witnesses’ identities to anyone who knows about the
redacted facts.
2. These redactions only cover information that might lead to an actual identification of
the witnesses; information that might lead to mere “speculation” about the witnesses’
identities is not redacted.
3. Some of information about witnesses’ prior acts is redacted because of a risk that
others might retaliate against the witnesses if the others about them.
4. The redacted information is unrelated to defendant’s guilt or innocence or the
witnesses’ veracity.
Case 1:09-cr-00466-BMC-RLM Document 453 Filed 11/20/18 Page 2 of 2 PageID #: 5644

5. As for the law enforcement witnesses identified on pages 7 and 8 of the order (whose
names are currently redacted), the Government is ordered to show cause within two
days after those officers testify why their names cannot be made public.

Although defense counsel is correct that this Court’s rulings in its October 30, 2018 order

are based “on the Rules of Evidence that govern what evidence can be presented at trial, not what

can [be] publicly filed on the Court’s docket,” the Government has made a sufficient showing

that most – but not all – of its proposed redactions are essential to preserve the higher value of

protecting the cooperating and law enforcement witnesses and their families from identification,

harm, and embarrassment. The redactions are narrowly tailored to achieve that objective.

Indeed, some of the redactions that defendant proposed for this order cover information

that is potentially embarrassing for or prejudicial to defendant and which the Court ruled is

inadmissible because it is irrelevant or unduly prejudicial. Defendant previously asked the Court

to redact similar information about defendant that the Court determined should not be presented

as evidence during trial, when that information appeared in the Government’s opening brief for

its second tranche of motions in limine. For the same reason that the Court agreed with and

applied defendant’s proposed redactions, it agrees with the Government’s proposed redactions

here: this information is both identifying and inflammatory, and the witnesses should not be

judged in the court of public opinion on information that this Court has determined is too

prejudicial or unrelated to defendant’s guilt or innocence to be admitted at trial.


Digitally signed by
Brian M. Cogan

Dated: Brooklyn, New York

November 20, 2018

Case 1:09-cr-00466-BMC-RLM Document 453-1 Filed 11/20/18 Page 1 of 9 PageID #: 5645


----------------------------------------------------------- X
- against - : AND ORDER
Defendant. :
----------------------------------------------------------- X
COGAN, District Judge.

This order addresses the Government’s motions in limine seeking to preclude cross-

examination of certain cooperating and law enforcement witnesses. The motions [350], [354]

are granted in part and denied in part.

This order assumes familiarity with the facts.

Cooperating Witnesses

1. The Government moves to preclude cross-examination of CW1 on six topics: threats to

; an incident where CW1 ; an incident

where CW1 paid a $10,000 bribe to get out of jail after being arrested for

; and CW1’s unorthodox interests in

. The Government’s motion

is granted in all respects as to CW1.

2. The only topic that appears relevant to CW1’s character for truthfulness is the incident in

which paid a $10,000 bribe to get out of jail after was arrested for

However, this incident is no more probative than other examples of bribery

Case 1:09-cr-00466-BMC-RLM Document 453-1 Filed 11/20/18 Page 2 of 9 PageID #: 5646

that the Government cites from CW1’s § 3500 materials. This particular bribe’s

connection to makes it prejudicial in a way that the other

examples of CW1 bribing a public official are not. Even “quintessential impeachment

evidence” can be immaterial to the defense if there is significant other, worse

impeachment material, see United States v. Avellino, 136 F.3d 249, 257 (2d Cir. 1998)

(Brady context), and impeachment evidence may be properly excluded if it is harassing

or repetitive, see Fed. R. Evid. 611; United States v. Maldonado-Rivera, 922 F.3d 934,

956 (2d Cir. 1990). Here, defendant can cross-examine CW1 about the other times

bribed public officials without discussing the potentially inflammatory

, including one instance the Government cites when CW1 bribed officials

quantities of


3. Defendant argues that CW1’s threats and attempted arson are

relevant impeachment because they contradict CW1’s statement to the Government that

is not a violent person. As a preliminary matter, it is not clear exactly what CW1 said

(unlike some of CW1’s other statements, defendant did not quote this one). More

importantly, the assertion that someone is not a violent person is an opinion, not a factual

statement. Whether engaging in one act of violence (or ten or fifty) makes someone a

violent person is not a factual question, it is a moral or philosophical one. Furthermore,

even if the alleged statement about not being a violent person was probative of the

CW1’s character for truthfulness, the Government concedes that defendant will have a

wealth of bad acts with which to cross-examine CW1, including involvement in at

least eight murder conspiracies while was a member of the Sinaloa Cartel. That

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involvement and CW1’s desire to avoid punishment for it will be rich fodder for cross-

examination in response to any statement CW1 made about not being a violent person;

the probative value of these two incidents would be substantially outweighed by the

danger of presenting needlessly cumulative evidence and undue prejudice.

4. Nor has defendant shown how CW1

are probative of CW1’s character for truthfulness,

relationship with defendant, or defendant’s guilt or innocence of the drug-trafficking

activities. 1 Furthermore, whatever miniscule relevance CW1’s

may have is entirely outweighed by inflammatory nature of this evidence; it

would add nothing and only distract the jury.

5. Finally, cross-examination about CW1’s unorthodox interests is also precluded. CW1’s

interests may be eccentric, but unusual beliefs or views (unless they are about the nature

of truth or honesty) are not probative of character for truthfulness. This Court is in no

position to assess which beliefs about the universe are correct or even plausible. See also

Fed. R. Evid. 610 (“Evidence of a witness’s religious beliefs or opinions is not admissible

to attack or support the witness’s credibility.”). Defendant argues that these beliefs

“clearly suggest mental illness . . . or at the very least, that [CW1] is delusional,” but

points to no other evidence of mental illness besides the implausibility of CW1’s

professed interests and beliefs. All of the cases defendant cites to support his argument

involved evidence of a medically diagnosed mental impairment; none has not been

As far as the Court can tell, the only way this evidence could be probative of CW1’s relationship with defendant is
that CW1’s knowledge of defendant’s demonstrates that defendant trusted CW1.
However, the Court will exclude all evidence ,
because whatever miniscule probative value it may have is completely outweighed by the undue prejudice it would
cause to either the defendant or CW1.

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presented here. Moreover, three out of four of those appellate courts upheld the district

court’s decision to preclude cross-examination on this subject despite significantly

stronger evidence of mental illness. See United States v. Butt, 955 F.2d 77, 82-83 (1st

Cir. 1992); United States v. Moore, 923 F.2d 910, 913 (1st Cir. 1991); United States v.

Bari, 750 F.2d 1169, 1179 (2d Cir. 1984). Should defendant uncover evidence of CW1’s

mental instability, that might be proper impeachment material if it impaired CW1’s

ability to perceive the events at the time they occurred or to tell the truth at trial. CW1’s

unconventional beliefs, however, do not fall into that category.

6. Defendant does not oppose the Government’s motion to preclude

allegations against CW2 and CW3 (none of which resulted in a criminal conviction).

These allegations are not probative of the witnesses’ character for truthfulness or their

relationships with or potential bias against defendant. The Government’s motion in

limine is granted as to CW2 and CW3.

7. Under FRE 609(a)(1), CW4’s 2010 felony conviction for

must be admitted unless its probative value is substantially outweighed by the

risk of undue prejudice, confusing the issues, or the other factors listed in FRE 403. This

conviction is not particularly probative of CW4’s lack of truthfulness, nor is it

particularly prejudicial, and so under FRE 403, whatever probative value it has is not

substantially outweighed by the risk of undue prejudice. However, the Government has

stated in its motion that defendant will have ample evidence of CW4’s participation in the

cartel with which to impeach . The Court will exclude evidence of CW4’s

if it becomes apparent at trial that its probative value is

substantially outweighed by the danger of needlessly presenting cumulative evidence.

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8. CW4’s misdemeanor convictions for (in ), minor

(in ), and ( ) also have very little probative value

for the witness’s character for truthfulness. Under the reverse-FRE 403 test of FRE

609(b)(1), whatever minimal probative value they have does not substantially outweigh

their prejudicial effect. 2

9. The civil judgments against CW5 for and for a

are not

“specific instances of conduct” that may be inquired into under Rule 608(b). They are

not probative of CW5’s character for truthfulness. Defendant argues that CW5’s failure

to promptly pay the civil judgment “calls into question his veracity as a witness” because

he “disobey[ed] a court order.” Defendant may inquire into CW5’s failure to pay the

civil judgment against , but the impetus for the civil judgment is irrelevant to CW5’s

failure to pay it, so defendant may not refer to the underlying conduct that led to that civil

judgment during cross-examination.

10. The Government’s motion is also granted as to evidence of CW6’s

. Defendant argues that evidence

that CW6 , is

“hugely important to establishing his lack of loyalty to the defendant, and possible bias

against him.” As the Government points out, CW6

The Government has not clarified the potential punishment CW4 faced for these three misdemeanors (whether it
was more than one year or less than or equal to one year). Even if these crimes were punishable by more than one
year in prison, their age (the , the
) and their minor nature ( reflects a lack of judgment but not a lack of truthfulness)
would render their probative value so minimal it would be substantially outweighed by the waste of time from
admitting them. Therefore, even if these convictions fell under FRE 609(a)(1)(A), the Court would exclude them
under FRE 403.

Case 1:09-cr-00466-BMC-RLM Document 453-1 Filed 11/20/18 Page 6 of 9 PageID #: 5650

after . CW6 will testify that did not meet

defendant until

. Against the backdrop of at least some other murder conspiracies the

Government admits CW6 participated in, the minimal probative value of

is substantially outweighed by the danger of presenting cumulative evidence

and by the security risk to . Cross-

examination of CW6 on this topic is therefore excluded under FRE 403.

11. The Government’s motion to preclude cross-examination of CW7 about details of

. However, this is relevant impeachment

of CW7’s potential bias:

. If CW7 is

defendant may cross-examine CW7

on .

12. Finally, the Government moves to preclude cross-examination based on “irrelevant text

messages and other communications” from CW1 and CW8, which are “banter . . . about

non-relevant issues” as to the former and “of a politically incorrect or ribald nature” as to

the latter. The Government does not identify the particular messages it seeks to preclude,

so the Court does not have enough information to decide now whether they are proper

impeachment material.

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Law-Enforcement Witnesses

1. The Government’s motion to exclude cross-examination of law enforcement witnesses on

certain topics is granted except as to the open investigation involving .

2. Nearly all of the topics addressed in the Government’s motion fall into two categories:

internal discipline the witnesses received for failure to follow their agency’s rules (mostly

for consuming alcohol on duty or improper use of a government vehicle) and tickets the

witnesses received for underage drinking or public intoxication. 3

3. Defendant objects to certain topics relating to six witnesses. Most of his objections

concern conduct that falls into the first category: suspensions for “failing to exercise

caution while driving a government vehicle,” “being under the influence of alcohol on

duty,” “operating a vehicle rented by the Government after consuming alcohol,” and

similar violations. Defendant argues that these are proper subjects of cross-examination

because they demonstrate the witnesses’ “poor judgment.” Defendant is correct in his

assessment of the witnesses’ behavior, but wrong about the Federal Rules of Evidence:

these instances do show poor judgment, but they do not show bias or a lack of

truthfulness that would make them proper cross-examination. See United States v.

Lawes, 292 F.3d 123, 131 (2d Cir. 2002).

4. Defendant argues that a disciplinary “letter of caution” that another law enforcement

witness received for is proper cross-examination

The Government also moved in limine to preclude cross-examination about another unrelated matter that does not
fall into those categories: two paragraphs in a report written by about the events leading up to
defendant’s 2012 capture operation in Mexico. As proffered by the Government, those two paragraphs “opin[e] on
the amount of vigor and competence the Mexican government applied in its efforts to capture the defendant” and
opine that its “lack of effort may be due to the defendant’s ties to high-level officials.” Defendant has not objected
to this portion of the motion in limine and the Court does not see how it would be proper impeachment. The motion
is therefore granted as to this topic.

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because he received the letter for

. The same witness will testify at trial

about the chain of custody for heroin seized . Contrary to

defendant’s view, the witness’s on one occasion

does not diminish character for truthfulness or show bias against defendant. 4

5. The Government’s motion in limine is denied, however, as to the investigation into

. As defendant correctly points out, the ongoing investigation

into this incident – however minor it appears – could create an incentive for that officer to

testify in a certain way to please superiors. The underlying incident itself is not

inflammatory or unduly prejudicial, so defendant may properly inquire on how the open

investigation affects incentive to testify favorably for the Government.

However, defendant is cautioned not to turn cross-examination into a mini trial on

whether and how

6. Finally, defendant objects to the Government’s motion as to a sixth law enforcement

witness who inadvertently produced to defendant notes that were not prepared or adopted

by and which defendant concede are irrelevant to this case. Defendant cites no

reason why the production of these notes or their contents bear on the witness’s

credibility or bias and therefore no reason why they should be permitted as impeachment


Indeed, the Federal Rules of Evidence generally preclude evidence to show that “he’s done it before, he did it
again here.” See generally Fed. R. Civ. P. 404(b).

Case 1:09-cr-00466-BMC-RLM Document 453-1 Filed 11/20/18 Page 9 of 9 PageID #: 5653

Digitally signed by
Brian M. Cogan

Dated: Brooklyn, New York

November 7, 2018