Case Information
*2 at 20; see also Gov’t Reply, Dkt. 181,
renew at trial his contention that the government at 7. cannot meet its burden to show, by a preponderance
of the evidence, that venue is proper. See Order, Dkt. 154, at 4. Indeed, such inquiry is within the province of the jury. See United States v. Griffith , No. 20-CR-15 (PKC), 2020 WL 4369650, at *3 (S.D.N.Y. July 29, 2020). Buoyed by the fact that its gravamen has essentially been met with defendant’s silence, this in limine request seeking to preclude Aguilar from making the broader argument that none of the counts should have been charged in the Eastern District of New York, see Mot. at 18, is granted.
(B) The government seeks preclusion of (B) As conditioned by its motion papers, see Mot. evidence or argument that paying bribes at 21 n.3, the government’s request is granted as was common practice in Ecuador, unopposed. Mexico, or the petroleum industry generally. Mot. at 20–24. Specifically, the government seeks to preclude as irrelevant evidence and argument that other Vitol employees and competitors of Vitol paid bribes to foreign officials as an “everybody-was-doing-it defense.” Id. *3 at 20–21. The government notes, however, that it expects testimony from cooperating witnesses as to their roles in other bribery schemes involving Vitol’s competitors, and does not seek to preclude cross-examination of such witnesses on that topic. Id. at 21 n.3. (C) The government asks the Court to (C) In response, Aguilar agrees with the preclude evidence or argument that government that the court should follow the defendant was extorted into paying bribes, reasoning of Kozeny . His interpretation of that because there is no evidence that case, however, leads to a different result. extortion [2] occurred here. Mot. at 24–25.
Concisely, Aguilar contends that Kozeny held that, The government argues that since there is under the FCPA, a defense of lack of corrupt intent no evidence that Aguilar or Vitol was due to extortion is distinct from the affirmative threatened with physical harm if they did defense of duress, the latter of which he concededly not participate in the alleged bribery, any does not intend to raise. Def.’s Opp. at 12. extortion augment or evidence would be A careful review of the Kozeny opinion irrelevant. Id. at 24–25 (citing United confirms that the only way to disprove corrupt States v. Kozeny , 582 F. Supp. 2d 535, 540 intent due to extortion is by showing “true n.31 (S.D.N.Y. 2008)). extortion.” Kozeny , 582 F. Supp. 2d at 540. The
Kozeny court explained that a defense of true *4 extortion does not apply when “payment [is] demanded on the part of a government official as a price for gaining entry into a market or to obtain a contract,” but does apply where payment is made “to keep an oil rig from being dynamited.” Id. Thus, the court concluded that “if [the defendant] provides an evidentiary foundation for the claim that she was a victim of ‘true extortion,’” the court would “instruct the jury on what constitutes a situation of ‘true extortion’ such that [the defendant] would not be found to have possessed the ‘corrupt’ intent required for a violation under the FCPA.” Id.
Therefore, consistent with Kozeny , and as the FCPA’s legislative history confirms, a defendant may argue that he lacked a corrupt intent because he was the victim of true extortion only where he is able to lay the necessary evidentiary foundation for such a defense. Id. ; S. Rep. No. 95– 114, at 10–11 (1977), reprinted in 1977
U.S.C.C.A.N. 4098, 4108.
To that end, Aguilar will be required to make an offer of proof as to how he can satisfy *5 those conditions and, if satisfactory to the Court, he will be permitted to introduce such evidence of true extortion. [3] Kozeny , 582 F. Supp. 2d at 540.
(D) As narrowed by its reply papers, in (D) Aguilar does not dispute that actually obtaining this request the government seeks to an improper advantage is not an element of a FCPA preclude Aguilar “from arguing or offense. Def.’s Opp. at 14; see also Kozeny , 582 F. suggesting to the jury that his failure to Supp. 2d at 541 (“[T]he proper focus is on [the obtain an improper advantage (or any defendant’s] intent and . . . the [g]overnment is not other particular result) is a defense to required to show that ‘the official accepted the liability under the FCPA.” Gov’t Reply bribe,’ that the ‘official [ ] had the power or at 11. The government argues that “what authority to perform the act [ ] sought’ or that the matters under the FCPA” is the ‘defendant intended to influence an official act defendant’s intent, and not whether the which was lawful.’”). He does, however, oppose “bribe payment did not have its intended the government’s request to the extent it seeks to result,” i.e. , to secure an improper bar him from introducing evidence that he did not business advantage. Mot. at 26. As a secure an improper advantage as such evidence is result, the government seeks to bar as probative circumstantial evidence of the absence of irrelevant and unduly prejudicial any corrupt intent. Id. at 15–16. Stated differently, on argument that foreign officials did not the absence of proof by the government that he *6 provide Aguilar or Vitol with a business obtained an improper benefit, such evidence is advantage, or that any “assistance or probative, circumstantially, of whether any alleged information that they provided was minor payments were made to foreign officials “‘for or insignificant.” Id. at 26–27. purposes of’ obtaining such a benefit.” Id. at 15.
At any rate, there appears to be a meeting of the minds. In its reply, the government does not contest that Aguilar may put on circumstantial evidence of his intent, “provided he does not imply or argue to the jury that actually obtaining an improper advantage is a necessary element of the offense.” Gov’t Reply at 11. On that basis, this request is granted.
(E) At its essence, in this request the (E) Declaring that he had no intent to do so government seeks to preclude defendant anyway, Aguilar effectively concedes that he is from relitigating his motion to suppress barred by 18 U.S.C. § 3501 from relitigating the statements made to FBI agents at George Court’s earlier finding that the statements made in Bush Intercontinental Airport (“IAH”) a non-custodial setting at IAH were voluntary. that were subject to a prior motion to Def.’s Opp. at 17. The government correctly points suppress and found by the Court to have out, see Gov’t Reply at 12–13, that “evidence been made voluntarily in a non-custodial concerning the voluntariness of a statement may setting. Mot. at 27–29; see also Order, only be admitted under 18 U.S.C. § 3501(a) where Dkt. 106, at 9. The admissibility of such the statement was made ‘during interrogation statements, the government contends, is a following arrest or detention.’” United States v. *7 matter of law reserved to the Court under Ramsey , No. 21-CR-495 (ARR), 2023 WL Rule 104 [4] and are inappropriate for the 2523193, at *8 (E.D.N.Y. Mar. 15, 2023). To the jury’s consideration. Mot. at 28. To that extent that this in limine request seeks to bar that end, the government seeks to preclude argument or inquiry, it is granted. This includes Aguilar from arguing or suggesting that argument about or inquiry into what Aguilar deems the government obtained those statements to be “coercive circumstances surrounding his through any illegal, improper, or encounter with federal agents.” Def.’s Opp. at 18; unconstitutional means. The government United States v. Morel , 751 F. Supp. 2d 423, 429 also argues that evidence of any claimed (E.D.N.Y. 2010). impropriety by government agents in Aguilar does, however, seek to trim what he seeking the statements is irrelevant at trial believes is the excess reach of the government’s and is barred by Rule 401. Id. at 29. request. He argues that, not withstanding any
inability to contest the voluntariness of his statements, he is free to attack and impeach the trustworthiness of the testimony of the agents who secured Aguilar’s statements at the IAH interview. And he is. While Aguilar may not contest the voluntariness of his confession at trial, he is not precluded from offering evidence concerning the credibility of the statements made at IAH. See Ramsey , 2023 WL 2523193, at *8 (“Although the *8 government argues that ‘the circumstances of the defendant’s statements . . . are irrelevant to the limited factual questions for the jury,’ if [the defendant] admits competent evidence that impeaches the credibility of her inculpatory statements, that evidence is plainly relevant.” (internal citations omitted)); see also Morel , 751 F. Supp. 2d at 429 (“[T]he requirement that the court make a pretrial voluntariness determination does not undercut the defendant’s traditional prerogative to challenge the confession’s reliability during the course of the trial.” (emphases in original) (citing Crane v. Kentucky , 476 U.S. 683, 688, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986))).
Of course, as suggested in the reply papers, the lines of inquiry Aguilar might intend to pursue remain subject to a traditional Rule 401 and Rule 403 balancing test, considering the relevancy of the inquiry against the harms Rule 403 seeks to avoid. For example, Aguilar asserts that he intends to question the agents about inconsistencies surrounding the agents’ testimony about COVID- 19 prevention and their decision to interrogate *9 Aguilar at an international airport. See Def.’s Opp. at 18; see also Suppression Hr’g Tr., Dkt. 94, at 84– 91, 108–90, 129, 206. Such statements carry some—albeit minimal—probative value of the agents’ credibility with respect to the interview at IAH. The inconsistencies also contain a risk of misleading or confusing the jury or wasting time under Rule 403. At this juncture, however, any potential prejudicial effect does not “substantially outweigh” the probative value of the evidence as to the agents’ credibility.
Aguilar likewise intends to argue that “an FBI case agent who did not participate in the interrogation improperly influenced the contents of the Form 302 memorializing that encounter, and thus also improperly influenced the interrogating agents’ after-the-fact testimony about that encounter.” Def.’s Opp. at 19; see also Suppression Hr’g Tr. at 183–194. This proposed line of questioning, like the previous one previewed by Aguilar, has some probative value for the agents’ credibility and the credibility of the statements made at IAH. And like the previous *10 line, there is a similar potential to mislead or confuse the jury or waste time that does not, at this point, substantially outweigh the probative value of the agents’ testimony. Of course, the context of trial may tilt the scales toward exclusion, and the government may renew any objection accordingly.
(F) The government seeks to bar (F) In response, Aguilar requests that the Court defendant from introducing previous out- defer ruling on the admissibility of any statements of-court exculpatory or self-serving made at IAH, because he will not know what, if any, statements made at IAH and otherwise, statements he may introduce until the government despite the government’s stated intention presents its case-in-chief. Def.’s Opp. at 20. of offering some such statements in its Since neither side has identified a single case-in-chief. Mot. at 30–31. out-of-court statement made by Aguilar that it
intends to offer into evidence, the Court construes this request as one to set forth the Court’s legal parameters for assessing a request if and when one is made. First, should the government seek to offer such a statement (and regardless when or where prior to trial it was made), if otherwise admissible under a Rule 401/403 balancing analysis, it would be admissible as a party opponent statement under Rule 801(d)(2)(A). As for Aguilar seeking to admit his own out-of-court statements, he would be *11 subject to the general rule that “[w]hen the defendant seeks to introduce his own prior statement for the truth of the matter asserted, it is hearsay, and it is not admissible.” United States v. Marin , 669 F.2d 73, 84 (2d Cir. 1982). Defendant, however, may overcome this rule through some exception to the hearsay rule or via the rule of completeness, provided he establishes the admissibility of such statement. See Fed. R. Evid. 106. Beyond that, a specific ruling with respect to an individual statement or group of statements must abide the offer of any such statement at trial within the circumstances existing at the time of the proffer. See Moore v. Rubin , No. 17-CV-6404 (BMC), 2020 WL 13573582, at *2 (E.D.N.Y. Jan. 31, 2020).
(G) The government seeks preclusion of (G) The Court assumes for purposes of this request evidence of defendant’s family that pedigree information regarding Aguilar’s background, nationality, health nationality, family, education, work history, and the conditions, and age. Mot. at 32–33. like would be elicited from Aguilar himself should
Aguilar contends that “evidence he take the stand. In such instances, the Court about his nationality, education, or other accords greater latitude for simple inquiries on background facts about his life” may still these subjects. As a result, the Court is also in be relevant and admissible, and requests accord with defendant’s view that final ruling on *12 that the Court defer ruling on the motion such matters should abide the event at trial. until trial. Def.’s Opp. at 23. Extrinsic evidence, on the other hand, will not be
accorded such latitude. Such evidence, generally, is not relevant to the issue of guilt or innocence and can inject matters that inflame sympathies, biases, or passions. Ordinarily, as a consequence, such evidence is found to be inadmissible. United States v. Watts , 934 F. Supp. 2d 451, 481 (E.D.N.Y. 2013) (citing United States v. Paccione , 949 F.2d 1183, 1201 (2d Cir. 1991)); see also United States v. Kaufman , No. 19-cr-0504 (LAK), 2021 WL 51521, at *2 (S.D.N.Y. Jan. 6, 2021) (precluding evidence of defendant’s family background, health conditions, or other personal factors as “not relevant to guilt or innocence”). Of course, the government may in its case-in-chief open the door to the admission of such evidence on some or all of the topics that might otherwise have been foreclosed to the defense. That too must abide the trial.
(H) The government requests that the (H) The government’s request is unopposed and is Court preclude defendant from offering granted. evidence or argument regarding potential *13 consequences of a conviction. Mot. at 34–35. (I) The government seeks to preclude (I) The government’s request is granted without defendant from offering evidence or opposition and with the understanding that this argument related to the government’s ruling in no way restricts defendant’s right to cross- charging decisions in this case or related examine government witnesses who have received cases. Mot. at 35–37. The government a benefit as a result of their cooperation with the specifically seeks to preclude “improper prosecution. arguments” concerning the government’s decision to enter into plea agreements with several individuals who will testify at trial and enter into a deferred prosecution agreement with Vitol. Id. at 35. The government further asks the Court to preclude “evidence or argument about the charges that were dismissed in this Court for lack of venue or the pending indictment against him in the Southern District of Texas to elicit sympathy from the jury or to portray the government as vindictive.” Id. (J) The government seeks to preclude (J) In this request designed to quell any argument defendant from introducing evidence or or proffer of evidence by Aguilar as to what is *14 argument regarding his lack of criminal otherwise a presumably crime free and positive life, history and specific instances of good the government somewhat massages and reasserts character under Rule 405(a). Mot. at 37– matters subsumed in a prior request: the propriety 39. Specifically, the government seeks to of any offer of such evidence by Aguilar, and of preclude evidence or argument about argument based on it, is controlled by Rules 404(a) defendant’s lack of a felony criminal and 405. Under Rule 404(a), “[e]vidence of a history unless he chooses to testify, as person’s character or character trait is not well as “details of Aguilar’s background” admissible to prove that on a particular occasion the such as “whether [he] is a good family person acted in accordance with the character or member” or “has otherwise demonstrated trait.” Thus, “[e]vidence that a defendant engaged good character in certain instances.” Id. in prior good acts, when the defendant has not been at 38. charged with ‘ceaseless’ criminal conduct is
generally irrelevant and inadmissible [at trial].” United States v. Rivera , No. 13-CR-149 (KAM), 2015 WL 1725991, at *2 (E.D.N.Y. Apr. 15, 2015).
Certainly, this does not mean a defendant is precluded from offering character testimony that is otherwise admissible under Rules 404(a) and 405(a). For example, “[a]lthough a character witness may give general testimony concerning the defendant’s reputation for a ‘pertinent trait of character’ or the witness’s opinion of the defendant with regard to that trait,” such evidence is “not *15 admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” United States v. Inniss , No. 18-CR-134 (KAM) 2019 WL 6999912, at *7 (E.D.N.Y. Dec. 20, 2019).
However, and as the parties acknowledge, see Mot. at 37, Def.’s Opp. at 26, evidence of a lack of criminal record is admissible, albeit with “low probative value,” for the purpose of “gauging the credibility of a testifying witness.” See United States v. Blackwell , 853 F.2d 86, 88 (2d Cir. 1988). Consequently, if Aguilar takes the stand, he may establish the absence of any criminal record.
To the extent the government’s request also seeks preclusion of other details of Aguilar’s background, such as whether “he is a good family member,” see Mot. at 38, this request is addressed under request (G) above and the ruling there is reiterated here.
(K) The government seeks to preclude (K) Rule 608(a) permits, on cross-examination defendant from cross-examining five inquiry into a witness’s specific instances of cooperating witnesses concerning prior conduct “if they are probative of the character for bad acts under Rule 608. Mot. at 39–45. truthfulness or untruthfulness” of the witness. A *16 With respect to Antonio Pere Ycaza (“A. district court has broad latitude, even “[w]ithin the Pere”), the government seeks to preclude mandates of the Confrontation Clause,” to “impose cross-examination about reasonable limits on such cross-examination based
on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is . . . only marginally relevant.” United States v. Daniels , 566 F. Supp.
. Id. at 41. 3d 191, 193 (E.D.N.Y. 2021) (quoting United The government further seeks to preclude States v. Figueroa, 548 F.3d 222, 227 (2d Cir. evidence that on October 6, 2020, after A. 2008)). Even where a prior act may bear on a Pere entered into a cooperation agreement witness’s character for truthfulness, it is still subject with the government but before his waiver to Rule 403’s balancing test. Id. at 194. of indictment and entry of guilty plea, use I. Solicitation of Prostitutes of cocaine at a social event. Id. at 42. With respect to the solicitation of prostitutes
With respect to Enrique Pere by certain of the government witnesses— Ycaza (“E. Pere”), the government seeks preclusion of, —the probative value of any
such evidence for the witnesses’ veracity for truthfulness is low. See United States v. Nosov , 221
Id. With F. Supp. 2d 445, 449 (S.D.N.Y. 2002), aff’d , 119 F. respect to Nilsen Giordano Arias App’x 311 (2d Cir. 2004) (“In general, ‘[c]ross- Sandoval (“Arias”), the government seeks examination concerning immoral acts and acts of preclusion of sexual perversion may be properly excluded by a
*17 . Id. at 44. For trial judge who determines they are not probative of Carlos Espinosa Barba (“Barba”), the the witness’s veracity.’” (quoting United States v. government seeks preclusion of Devery, 935 F. Supp. 393, 408 (S.D.N.Y.1996))).
The Court struggles to find a sufficient nexus between these incidents and the witnesses’
, id. , and for Gonzalo Guzman truthfulness when testifying about the charged Manzanilla (“Guzman”), the government bribery and money laundering schemes to justify seeks to preclude such inquiry on cross-examination. This is
particularly so where some of the witnesses engaged in such acts as a teenager or on one
, id. at 45. occasion in the 1980s . Indeed, the Second Defendant asks that, at minimum, Circuit has found sexual acts properly excluded the Court defer ruling on this motion until under Rule 608 as not bearing on the witness’s after the government’s disclosure of propensity for truth-telling. See United States v. Section 3500 and Giglio materials. Def.’s Rabinowitz , 578 F.2d 910, 912 (2d Cir. 1978) Opp. at 27. (affirming district judge’s exclusion, under Rule
608, of witness’s “prior acts of sodomy upon young children and consequent psychiatric treatment therefore” as not “logical[ly] relevan[t]” to witness’s credibility).
Aguilar argues, however, that for the witnesses who engaged prostitutes during their marriages (although it is unclear to which witnesses *18 that applies), such infidelity bears on their characters for truthfulness, particularly where the infidelity concerned prostitution. See Def.’s Opp. at 32–33. The added factor of infidelity does little, if anything, to alter the balancing equation for admissibility. Indeed, the Second Circuit found evidence of a witness’s solicitation of prostitutes and marriage infidelity properly excluded on cross- examination. United States v. Amato , 540 F.3d 153, 165 (2d Cir. 2008), abrogated on other grounds by Lagos v. United States, 138 S. Ct. 1684, 201 L. Ed. 2d 1 (2018).
Contrary to the low probative value for truthfulness of such evidence, the prejudicial effect is significant. But, as Aguilar would have it, the Court should permit cross-examination on this topic, as “patronizing prostitutes promotes human trafficking and violence against women.” Def.’s Opp. at 33. But “[i]f all that can be said about behavior is that it might be called improper, immoral, or unlawful . . . asking about it cannot be justified under Fed. R. Ev[id]. 608.” United States v. Stone , No. 05-CR-401 (ILG), 2007 WL 4410054, *19 at *1 (E.D.N.Y. Dec. 14, 2007). Aguilar’s argument, in fact, not only illustrates the highly inflammatory nature of the evidence, but also the potential inference the jury will draw from such evidence, which has little—if anything—to do with the witnesses’ truthfulness. See United States v. Pena , 978 F. Supp. 2d 254, 266 (S.D.N.Y. 2013) (excluding cross-examination of three cooperating witnesses who engaged in “varying degrees of violent acts toward women,” as not speaking to witnesses’ reliability or credibility). Accordingly, the government’s motion is granted, and Aguilar may not cross-examine the cooperating witnesses about their past acts of soliciting prostitutes or paying for sexual acts.
II. Uncharged Drug Use With respect to past, uncharged drug use of (use of marijuana products), (use of
marijuana products), and (marijuana use once, when he was forty), these acts have little bearing, if any, on the witnesses’ character for truthfulness. See United States v. Krug , No. 1:15- CR-00157 (RJA), 2019 WL 3162091, at *6 *20 (W.D.N.Y. July 16, 2019). But Aguilar also argues that, beyond any bearing on truthfulness, the witnesses’ past drug use is probative of the witnesses’ “memories and perceptions,” and whether they “can recall accurately the key events that they likely will testify to at trial.” Def.’s Opp. at 27. According to the government, used marijuana in or about September 2019 and, prior to that, last used it in 2009. used marijuana oil for medicinal purposes, and used marijuana once in 2015. Gov’t Reply at 18. To what amounts to defense speculation, there is no showing that these relatively isolated instances might have any bearing on the witnesses’ memory or perception of the charged schemes, which occurred from 2015 to July 2020. Accordingly, the impeachment value of such evidence for the witnesses’ truthfulness, perception, or memory is low. Instead, such evidence carries a substantially greater risk of undue prejudice.
*21 Leading up to and during the charged period, however, A. Pere admitted to having used cocaine between four and six times per year. Such evidence may be probative of A. Pere’s perception *22 and memory as to events occurring during formation of the alleged scheme and during the charged period. See id. (“[D]rug or alcohol use at the time of the events in question is relevant to a witness’s credibility, since it effects their ability to perceive the events and to recount them accurately.”). Accordingly, the government’s motion with respect to A. Pere’s drug use during the charged scheme is denied, and Aguilar may inquire into it on cross-examination. Additionally, to the extent the government intends to introduce evidence preceding the charged period, see infra request (L), Aguilar may cross-examine A. Pere about his drug use during that period. The same goes for inquiry into A. Pere’s medical marijuana prescription. Of course, the government is free to reassert its objection at trial if Aguilar seeks to introduce this evidence for an improper or different purpose at trial.
Finally, with respect to the one instance of cocaine use in August 2020, after A. Pere entered into the cooperation agreement, such use occurred after the charged period, and therefore has no *23 bearing on A. Pere’s perception of the scheme. See Krug , 2019 WL 3162091, at *5. However, the evidence may be probative of A. Pere’s bias. United States v. Atherton , 936 F.2d 728, 733 (2d Cir. 1991) (“In a limited sense, any illegal conduct of a government witness can be considered probative of bias, on the theory that the witness is likely to curry the favor of government attorneys in order to avoid prosecution.” (emphasis in original)). In accordance with the Court’s holding under request (I), Aguilar may cross-examine A. Pere about his cocaine use in August 2020 to show bias and incentive to testify in a manner consistent with the government’s position. Id. (“The probative value of such evidence [ ] depends in large measure on some showing that the government was . . . aware[] of the illegality.”).
Finally, to the extent that the government has produced under any category of production documents or other evidence following the submission of the defense memorandum in opposition to the government’s in limine motion that suggests a good-faith basis to seek *24 reconsideration of any of the specific rulings made on this request, defendant is granted leave to seek such reconsideration.
(L) The government seeks admission of (L) Aguilar requests that the Court defer ruling on evidence related to the charged schemes the admissibility of evidence outside the charged preceding the charged period, including period until trial, Def.’s Opp. at 35, to which the statements made by defendant, by others government does not object, Gov’t Reply at 23. at Vitol, and by co-conspirators. Mot. Accordingly, the admissibility of such evidence at 45–52. Specifically, the government will be determined at trial. anticipates “introduc[ing] evidence about events related to [the endeavor to look for additional opportunities for business and bribery in Ecuador] that took place before the charged scheme, including testimony regarding how the co-conspirators and foreign officials met, the type of business the co-conspirators were originally trying to win, and how those plans eventually [led] to the acts comprising the charged schemed.” Id. at 46. (M) Pursuant to Rule 16(b) of the Federal (M) The parties do not dispute that Rule 16(b) of Rules of Criminal Procedure, the the Federal Rules of Criminal Procedure requires a government requests an order requiring defendant to produce all documents and other *25 defendant to disclose (i) documents and tangible evidence that the defense intends to use in evidence he intends to use in his case-in- its case-in-chief. See Mot. at 52; Def.’s Opp. at 36. chief no later than two weeks before the Aguilar contends, however, that, notwithstanding trial date; and (ii) statements of any his intent to use such evidence in his case-in-chief, defense witness other than the defendant that he is free to withhold it from the government if himself no later than two days before the he intends to use such evidence for impeachment witness testifies. Mot. at 52–54. purposes on his cross-examination of a government
witness. The government does not disagree provided that the withheld evidence is used solely for impeachment purposes and not additionally in the presentation of the defense’s case-in-chief through cross-examination of a government witness. See United States v. Hatfield , No. 06-CR- 0550, 2009 WL 10673619, at *2 (E.D.N.Y. Apr. 22, 2009).
The point advanced by the government is in harmony with the holdings of courts in this district on this issue. In accord with those holdings, Aguilar is ordered to disclose any documents he intends to use in his case-in-chief, including any exhibit that he intends to use during cross- examination of a government witness, where such exhibit will not be used solely for impeachment, no *26 later than two weeks prior to the start of trial. United States v. Smothers , 652 F. Supp. 3d 271, 308 (E.D.N.Y. 2023); United States v. Napout , No. 15- CR-252 (PKC), 2017 WL 6375729, at *7 (E.D.N.Y. Dec. 12, 2017). Aguilar must do so without regard to whether the exhibit was produced by the government in discovery. Smothers , 652 F. Supp. 3d at 308.
Additionally, the Court orders disclosure of any material pursuant to Federal Rule of Criminal Procedure 26.2 with respect to any defense witness other than defendant that the defense intends to call no later than two days before the witness testifies. See id.
So Ordered. Dated: Brooklyn, New York December 11, 2023 /s/ Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge
NOTES
[2] The government uses the terms “duress” and “extortion” interchangeably in its motion. Mot. at 24–25.
[3] In his response, Aguilar also seeks to safeguard his right to cross-examine cooperators “whether (or to what extent) those cooperators revealed their extortion of Mr. Aguilar to the government during their proffer session to impeach their testimony.” Def.’s Opp. at 13. The government conceded Aguilar’s right to do so, “provided it is . . . not used as a backdoor attempt to assert a defense of extortion without laying the necessary evidentiary foundation.” Gov’t Reply at 10. The Court’s conclusion with respect to the evidentiary foundation needed to raise a defense of true extortion applies equally to evidence to be produced on direct and cross-examination.
[4] All references to rules, unless otherwise indicated, are references to the Federal Rules of Evidence.