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El Chapo Underage Girls Docs
El Chapo Underage Girls Docs
October 9, 2018
By ECF
Pursuant to its obligations under Giglio v. United States, 405 U.S. 150 (1972),
on October 5, 2018, the government disclosed information relating to the majority of its
cooperating witnesses. The government respectfully moves in limine to preclude cross-
examination of certain of the government’s witnesses as detailed below. 1
I. Legal Standard
1
The government anticipates that it may file additional motions to preclude
cross-examination of certain witnesses pursuant to Federal Rules of Evidence 608 and 609 in
advance of their testimony, including the witnesses for whom the government has delayed
disclosure of 18 U.S.C. § 3500 material until two weeks prior to their testimony.
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control . . . so as to . . . avoid wasting time[] and protect witnesses from harassment or undue
embarrassment”).
Federal Rule of Evidence 608(b) governs where a party seeks to elicit testimony
regarding specific instances of a witness’s conduct to attack the witness’s character for
truthfulness. See United States v. Peterson, 808 F.2d 969, 973-74 (2d Cir. 1987); see also
United States v. Cruz, 894 F.2d 41, 43 (2d Cir. 1990) (“Under Rule 608(b), the court has
discretion to permit or deny a line of inquiry on cross-examination.”). Rule 608(b) provides
in pertinent part:
Fed. R. Evid. 608(b). The advisory committee’s note to Rule 608(b) also notes that because
the “possibilities of abuse are substantial” in cross-examination, specific instances may only
be inquired into if they are probative of truthfulness, “not remote in time,” and not “outweighed
by danger of unfair prejudice, confusion of issues, or misleading the jury.” Fed. R. Evid. 608
advisory committee’s note.
2
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of undue delay, waste of time, or needless presentation of cumulative evidence.” United States
v. Figueroa, 548 F.3d 222, 229 (2d Cir. 2008); United States v. Devery, 935 F. Supp. 939, 407-
08 (S.D.N.Y. 1996) (“[E]ven if the prior act does concern the witness’s character for
truthfulness under Rule 608(b), its probative value must not be substantially outweighed by its
unfairly prejudicial effect under Rule 403.”); United States v. Brown, No. 07-CR-874 (KAM),
2009 WL 497606, at *4 (E.D.N.Y. Feb. 26, 2009).
United States v. Nelson, 365 F. Supp. 2d 381, 390 (S.D.N.Y. 2005) (quoting John W. Strong,
McCormick on Evidence § 41). As another court in this district has previously explained, “[i]f
all that can be said about behavior is that it might be called improper, immoral, or
unlawful . . . asking about it can not be justified under Fed. R. Evid. 608.” United States v.
Stone, No. 05-CR-401 (ILG), 2007 WL 4410054, at *1 (E.D.N.Y. Dec. 14, 2007) (internal
quotation marks and citation omitted).
II. Discussion
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to return to her home country and bribed a police official with $10,000 for his release. Mexican
authorities did not pursue charges.
Later, after CW1 reunited with his girlfriend (now wife), in or about 2009, she
became pregnant. When she stated that she intended to abort the pregnancy, CW1 threatened
to dissuade her by telling her that if she pursued an abortion she should consider herself dead.
Around the same time, CW1 sent BlackBerry Messenger messages to an associate stating that
he wanted to kill his wife after she gave birth over this issue. After one fight with his wife
related to this issue, CW1 asked the defendant for one of the defendant’s handguns. CW1
insists, however, that he was never serious about killing his wife. Eventually, CW1 sought
permission from the defendant to move to where his wife was living in Mexico to watch over
her to ensure that she did not terminate the pregnancy. His wife gave birth to the child and he
never attempted to harm her afterward.
After the birth of his child, CW1 had an argument with his wife (they had by
then been married) because he had sexually harassed the child’s babysitter. When confronted
by his wife, CW1 became upset and stopped talking to her.
Cooperating Witness No. 3 (“CW3”) has told the government that at one point
in approximately 1998-2000, he hit his then-wife in an argument and broke her cheekbone,
and that he had previously broken her nose during an altercation in approximately 1995-96.
Later, in approximately 2006 or 2007, he was involved in an altercation with a different wife
when he pulled her hair and grabbed her arm. The government has no indication that legal
charges were ever filed in relation to these incidents.
4
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Gambardella, No. 10-CR-674 (KBF), 2011 WL 6314198, at *1 n.1 (S.D.N.Y. Dec. 15, 2011)
(witness’s past domestic abuse is not probative of character for truthfulness).
2
Other cooperating witnesses corroborate the defendant’s actions in this regard.
5
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activity with young girls gave him “life.” The government does not plan to elicit or introduce
testimony related to these events.
Finally, CW1 was neither charged nor convicted with a crime in relation to this
sexual conduct, so Fed. R. Evid. 609—which allows, in certain circumstances, impeachment
of a witness by evidence of a criminal conviction—does not apply. Fed. R. Evid. 608(b), in
turn, would therefore only permit cross-examination into CW1’s sexual conduct if it is
“probative of [his] character for truthfulness or untruthfulness.” But the Second Circuit has
long held that past sexual misconduct, standing alone, does not bear on a witness’s propensity
to tell the truth. See United States v. Rodriguez, 648 Fed. Appx. 9, 11 (2d Cir. 2016) (“[T]his
Court has found that it is not an abuse of discretion to preclude questioning of prosecution
witnesses regarding sex crimes because such evidence has insufficient bearing on the witness’s
credibility.”); see also United States v. Rabinowitz, 578 F.2d 910, 912 (2d Cir. 1978)
(affirming trial court’s preclusion of cross-examination as to witness’s sexual acts with young
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children, noting that there was no “logical relevance” of those acts to the witness’s credibility).
The Court should therefore preclude the defense from cross-examining CW1 in this regard. 3
C. Unorthodox Interests
CW1 also has an interest in astrology and witch doctors. He has personally
availed himself of the services of a witch doctor on several occasions. On one occasion, CW1
observed the defendant consulting with a witch doctor from whom he obtained snake oils. The
government does not intend to elicit testimony about these topics.
These unorthodox interests and beliefs are not relevant and do not bear on either
the defendant’s guilt or innocence or on CW1’s veracity and credibility. They do not,
therefore, have any probative value, or at most only very slight value. Moreover, the only
conceivable purpose in eliciting testimony on these subjects would be to invite the jury to
improperly judge the witness based on his spiritual beliefs and interests. That invitation would
risk unfair prejudice, confusion of the issues, and unnecessary delay should the government
need to rehabilitate CW1 from the embarrassment caused by inquiring into these matters.
Given that the defense will be free to cross-examine CW1 about his involvement in the drug
trafficking and murder conspiracies in which he was involved with the defendant, the risk of
prejudice greatly outweighs any possible probative value. Cross-examination should therefore
be limited under Rules 401, 403, and 611. Moreover, to the extent that these interests reflect
3
If the Court should find that cross-examination of CW1 on this topic is proper,
the government submits that it should be permitted to elicit testimony from CW1 about his
involvement in this activity with the defendant, specifically. Omitting such a critical fact from
CW1’s testimony would be misleading to the jury, and such testimony is arguably probative
of the relationship of trust between the defendant and CW1. United States v. Kalaydijian, 784
F.2d 53, 56 n.3 (2d Cir. 1986) (evidence of defendant’s prior meeting with cooperating witness,
at which plan to purchase heroin was discussed, was properly admitted “to establish the basis
of the trust relationship between [cooperating witness] and [defendant]”); see also, Old Chief
v. United States, 519 U.S. 172, 183 (1997) (analyzing the admissibility of evidence and finding
the trial court should make its determinations “with an appreciation of the offering party’s need
for evidentiary richness and narrative integrity in presenting a case”).
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CW1’s religious beliefs, cross-examination is prohibited pursuant to Fed. R. Evid. 610, which
states that “evidence of a witness’s religious beliefs or opinions is not admissible to attack or
support the witness’s credibility.” The Court thus should grant the government’s motion to
limit cross-examination on these grounds.
First, the government expects that Cooperating Witness No. 4 (“CW4”) will
generally testify regarding his assistance in storing cocaine and marijuana for the Sinaloa
Cartel during the late 2000s. The government has disclosed a number of minor prior criminal
charges and convictions related to CW4 to the defense. Specifically, CW4 was arrested in
Texas in 1994 and charged with misdemeanor disorderly conduct, a charge to which he pleaded
guilty, after being arrested for running away from the police in a stolen vehicle. See Tex. Pen.
Code § 42.01 (disorderly conduct). CW4 was 17 years old at the time. CW4 was judged guilty
of a number of misdemeanor motor vehicle violations in 1999, including having an expired
license, an expired registration sticker, speeding, failure to maintain financial responsibility,
and failure to yield right of way. CW4 was 21 years old at the time, and was sentenced to five
days in jail (which amounted to time served). In 2007, CW4 was judged guilty of misdemeanor
public intoxication and ordered to pay a $101 cash bond. In 2010, CW4 pleaded guilty to a
charge of criminal nonsupport of his children. He owed his children’s mother $12,000, but
because he could only pay approximately half of that amount at the time, he spent
approximately six months in custody. In Texas, criminal nonsupport is a felony. Tex. Pen.
Code § 25.05.
Second, CW1 was involved in an incident in 1994 where he set fire to an area
behind a discotheque. Specifically, CW1 and a friend were denied entry to a discotheque
because the bouncer thought they were too intoxicated. In retaliation, CW1 and his friend
purchased gasoline and set a fire behind the building. No one was harmed, and no criminal
charges or civil claims were ever brought in relation to the incident.
Third, the government expects that Cooperating Witness No. 5 (“CW5”) will
generally testify at trial about his interactions with the defendant and his drug trafficking
activities on behalf of the defendant’s organization, which occurred from the mid-2000s
through the mid-2010s. The government has disclosed to the defense that in 2006 or 2007,
CW5 was involved in a motor vehicle accident in Mexico while operating a vehicle under the
influence of alcohol and cocaine. As a result of that incident, a civil judgment was entered
against CW5. CW5 was delinquent in the satisfaction of that civil judgment, although it was
eventually satisfied.
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609(a)(2) (“[F]or any crime regardless of the punishment, the evidence must be admitted if the
court can readily determine that establishing the elements of the crime required proving—or
the witness admitting—a dishonest act or false statement.”); see also United States v. Ashburn,
No. 11-CR-303 (NGG), 2015 WL 5098607, *24 (E.D.N.Y. Aug. 31, 2015) (granting
government motion to preclude cross-examination into misdemeanor convictions of witness)
(citing United States v. Hayes, 553 F.2d 824, 827 (2d. Cir. 1977) (“Congress emphasized that
[Rule 609(a)(2)] was meant to refer to convictions peculiarly probative of credibility, such as
those for perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or
false pretense, or any other offense in the nature of crimen falsi, the commission of which
involves some element of deceit, untruthfulness, or falsification bearing on the accused’s
propensity to testify truthfully.”)).
CW4’s felony conviction for criminal nonsupport of his children could only be
admissible pursuant to Rule 609(a)(1), which subjects its potential admission to a Rule 403
analysis. Rule 403 provides that the Court may exclude relevant evidence where its “probative
value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Here, given that his expected testimony is that he arranged for the
storage of drugs and weapons on behalf of the Sinaloa Cartel, and will undoubtedly be cross-
examined extensively regarding his criminal activity related to drug trafficking, the probative
value of CW4’s failure to pay child support is minimal. However, given that the offense
involved CW4’s own children, the risk of unfair prejudice is high. A number of district courts
have excluded evidence of a witness’s or a party’s failure to pay child support on similar
grounds. See, e.g., Watkins v. Genesee, No. 13-cv-13678, 2016 WL 727855, *5 (E.D. Mich.
Feb. 24, 2016) (granting motion in limine to exclude evidence of plaintiff’s failure to pay child
support where “relevance of such evidence to the issues to be tried is, at most, minimal and
the unfair prejudicial value of such evidence would be substantial”); Lauhoff v. Quality Corr.
Health Care, Inc., No. 5:14-cv-00614, 2016 WL 3618361, *4 (N.D. Ala. Jul. 6, 2016) (granting
motion in limine to exclude evidence of failure to pay child support); Perkins v. Fed. Fruit &
Produce Co., Inc., 945 F. Supp. 2d 1225, 1271 n.35 (D. Col. 2013) (same).
As for CW1’s 1994 act of arson behind a discotheque, Rule 609 does not apply
because it only applies to impeachment by evidence of a criminal conviction. CW1 was never
convicted or even charged in relation to the arson attempt. Thus, CW1 could be impeached
with the arson only pursuant to Rule 608(b). But Rule 608(b) permits cross-examination only
where instances of a witness’s conduct is probative of the witness’s character for truthfulness
or untruthfulness. See Fed. R. Evid. 608(b). Because an arson attempt is not probative of
truthfulness, cross examination should be limited. See Cruz, 894 F.2d at 43. Additionally, the
“remote[ness] in time” (i.e., 23 years ago) and the “danger of unfair prejudice [and] confusion
of issues” also merit limiting cross-examination on this topic. Fed. R. Evid. 608, advisory
committee’s note.
With respect to the civil judgment entered against CW5, Rule 609 does not apply
because the civil judgment is not a criminal conviction. Thus, pursuant to Rule 608, it may be
inquired into only if “probative of the character for truthfulness or untruthfulness of the
9
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witness.” But the civil judgment against CW5 related to a motor vehicle accident and CW5’s
consumption of alcohol and cocaine; it is not a judgment stemming from fraud or other acts of
dishonesty. See Fed. R. Evid. 608 advisory committee’s note (noting that “possibilities of
abuse are substantial” with respect to cross-examination on particular instances of conduct,
and that “consequently safeguards are erected in the form of specific requirements that the
instances inquired into be probative of truthfulness or its opposite and not remote in time”);
see also Nibbs v. Goulart, 822 F. Supp. 2d 339, 341 (S.D.N.Y. 2011) (granting motion in limine
to preclude plaintiff from inquiring into or offering into evidence unrelated, prior lawsuits
against defendants, pursuant to Rules 402, 403, 404(b), 608 and 611). CW5’s civil judgment
should also be excluded on Rule 403 grounds, as the civil judgment is only marginally
probative at best of CW5’s credibility or the issues about which he will testify at trial, but risks
an “undue tendency to suggest decision on an improper basis” by inviting the jury to assess
CW5 based on a motor vehicle accident which occurred while he was under the influence.
Fed. R. Evid. 403, advisory committee’s note.
The government expects that the defense will cross-examine a number of the
government’s cooperating witnesses about murders and other acts of violence with which they
were involved during the time that they worked with the defendant and the Sinaloa Cartel. In
general, the government will not seek to preclude cross-examination as to these acts. The
government does seek to preclude cross-examination as to one attempted murder, however, in
order to minimize the risk of harm and retribution to a cooperating witness’s family, and to
limit the presentation of needlessly cumulative evidence pursuant to Rules 611 and 403.
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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”).
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.
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H. Cumulative Evidence
In addition to the reasons set forth above, the Court should preclude
cross-examination regarding the categories of evidence discussed herein because cross-
examination on these subjects would be cumulative of other impeachment evidence that the
defense is free to use in examining the credibility of the government’s witnesses. The Second
Circuit has repeatedly held that evidence offered to further impeach a “witness whose character
was already challenged at trial” is considered “cumulative” and may be excluded or otherwise
limited. United States v. Damblu, 134 F.3d 490, 494 (2d Cir. 1998); see also Locascio, 6 F.3d
at 949 (holding that new allegations involving credibility of government witness, which were
cumulative of information about which the witness was subject to cross-examination, would
not have materially affected the outcome of the case and did not warrant a new trial); Shabazz
v. Artuz, 336 F.3d 154, 166 (2d Cir. 2003) (“[W]here the undisclosed evidence merely
furnishes an additional basis on which to challenge a witness whose credibility has already
been shown to be questionable or who is subject to extensive attack by reason of other
evidence, the undisclosed evidence may be cumulative, and hence not material.”). In this case,
the government’s cooperating witnesses are likely to be cross-examined on a variety of topics,
including their own involvement with the defendant’s criminal enterprise, so the limits on
cross-examination that the government seeks in this motion relate to evidence which would
merely be cumulative, and granting the government’s motion will not materially limit the
defendant’s ability to cross-examine government witnesses.
III. Conclusion
For the foregoing reasons, the government respectfully moves under Rules 402,
403, 608, 609 and 611 to preclude various lines of cross-examination as detailed herein.
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Respectfully submitted,
RICHARD P. DONOGHUE
United States Attorney
Eastern District of New York
OF COUNSEL:
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