Case 1:09-cr-00466-BMC-RLM Document 505 Filed 12/13/18 Page 1 of 4 PageID #: 6470
U.S. Department of Justice

United States Attorney
Eastern District of New York
GMP:ANL/BCR
F. #2009R01065

271 Cadman Plaza East
Brooklyn, New York 11201

December 13, 2018
By Hand and 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 opposition to the defendant’s motion
to reconsider the Court’s order granting the government’s motion in limine to preclude crossexamination of
See Dkt. No. 496 (“Def.
Br.”). The defendant’s analysis is unavailing, and does not reach the high bar for
reconsideration of the Court’s previous ruling.
A. Background
The government moved to preclude cross-examination of
in his own case. See Dkt.
No. 460 at 10-14. As the government explained in that motion,
had, through
counsel, argued that
See id. at 12. The
legal argument, finding that based on the lack of evidence put forth by
his attorneys, there were “no material issues in dispute” as to
No. 484 at 8. With the court having rejected the legal theory that he advanced,
pleaded guilty to the charges against him. See United States v.
.

rejected the
through
See Dkt.
Case No.

The defendant opposed the government’s motion, asserting that because the
court rejected
’s legal argument,
must have been “lying” to
the court in advancing the defense. See Dkt. No. 477 at 3. As the government pointed out in

 Case 1:09-cr-00466-BMC-RLM Document 505 Filed 12/13/18 Page 2 of 4 PageID #: 6471

its reply, however,
did not sign any affidavits, give testimony, or otherwise
subscribe to factual assertions regarding the legal defense. See Dkt. No. 484 at 7-8. There is
therefore no basis to cross-examine him as to the alleged inconsistency. See id. at 8-9.
The Court granted the government’s motion. As the Court explained, “the fact
that another court rejected this witness’s legal argument does not mean it concluded that the
witness was lying.” Dkt. No. 486 at 7. Because
would not therefore be “probative of the witness’s credibility or bias,” the Court concluded
that the defense had not advanced a basis for examining
about it. See id.
Now, the defendant moves for reconsideration of the Court’s order. Apart from
a few general citations about the Confrontation Clause and the general admissibility of
testimony relating to a witness’s credibility, the defendant offers no new legal authority not
previously contained in the prior briefing. The defendant does offer for the first time direct
quotations from the Proffer of Facts from
’s plea agreement, but the alleged
inconsistency between that proffer and
’s unsuccessful legal arguments does
not have the import that the defendant alleges.
B. Analysis
First, as an initial matter, the Statement of Facts offered by the defendant in
support of the alleged inconsistency between
’s plea and his public authority
defense arises from charges brought against
in
See
Def. Br. Exh. 1 at 1; see also United States v.
But
did not argue
in relation to the
Case. His counsel only advanced that defense in
relation to the charges brought against him in
(the
Case” or the
Charges”). Although the defendant may argue that the
Case and
the
Case involve overlapping conspiracies, the Proffer of Facts in relation to the
Case was not made in connection with the
Case in which
1
.
Second, even assuming that the Proffer of Facts in the
Case is relevant
to the defenses asserted by
in the
Case,
signed the
Proffer of Facts after the
rejected his
By that time, it was wholly accurate for
to assert that the offenses
to which he was pleading guilty were
Case could be considered
See Def. Br. Exh. 1 ¶ 8. 2 Even if the legal arguments in the
1

did not argue

2

2

in the

Case.

 Case 1:09-cr-00466-BMC-RLM Document 505 Filed 12/13/18 Page 3 of 4 PageID #: 6472

statements attributed to
there is no inconsistency. The legal pleading
advancing
amounts to an assertion that the facts proffered in the
pleading comprise a legally cognizable defense.
later plea, in turn, is not a
statement about the underlying facts themselves, but an acknowledgement that
does not apply in the wake of the
rejection of
the legal argument. Nowhere in the plea does
repudiate any prior statement
or change his view of the underlying facts, as opposed to the legal consequences of those facts. 3
Third, the defendant’s argument that entry of a guilty plea after an unsuccessful
threshold legal argument means that the legal argument was a “lie” risks chilling zealous
advocacy. Any criminal defendant is entitled to advance legal defenses such as
It would be
perverse if a court’s rejection of such defenses on purely legal grounds could then be used
against the defendant as substantive evidence of untruthfulness – particularly where, as here,
the assertion of the legal defense did not rely on any affidavit or testimony by the defendant.
Fourth, the defendant has not addressed what the government pointed out in its
reply in support of its previous motion: that there is no evidentiary basis for admission of the
Rule 613(b) only applies to statements made by the witness (and
did not sign an affidavit or give testimony in relation to
, and Rule 801(d)(2)(D) permits introduction of a statement of an agent only against a
party. See Dkt. No. 484 at 8-9.
Finally, the defendant’s motion for reconsideration effectively concedes that
what the defendant envisions is a mini-trial on this collateral issue. As the defendant explains,
if
testifies that he
“the government can put forth its own witnesses to rebut that testimony.” Def. Br.
at 3. The Court should use its discretion to preclude such cross-examination, which would
only waste time, risk unfair prejudice, and confuse the issues where the defendant himself has
not
. See Fed. R. Evid. 611.
Ultimately, the defendant’s motion does not meet the high bar for
reconsideration in this court and this circuit, under which the standard for reconsideration is

3

Because there is no actual inconsistency, the only plausible rationale for the
defendant’s attempt to introduce
is to
imply
to the jury in this case, effectively seeking to put before the
jury a purely legal defense which, as the Court has recognized, the defendant did not raise to
the Court. See Dkt. No. 486 at 6 n.2;
3

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“strict” and should be granted “only if the moving party can point to controlling decisions or
data that the court overlooked” in its original decision. Fan v. United States, 710 Fed. Appx.
23, 24 (2d Cir. 2018) (citing Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)
(internal citation and quotation marks omitted). “Reconsideration is not intended for the court
to reexamine a decision or the party to reframe a failed motion.” Id.
For the reasons set forth above and in the government’s prior briefing, the Court
was correct to preclude
The defendant’s motion should be denied.

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 the Court (BMC) (by ECF)

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