Case 1:09-cr-00466-BMC-RLM Document 523 Filed 01/03/19 Page 1 of 5 PageID #: 6568 U.S. Department of Justice United States Attorney Eastern District of New York GMP:BCR/AG F. #2009R01065 271 Cadman Plaza East Brooklyn, New York 11201 January 3, 2019 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. The government hereby moves in limine to preclude crossexamination regarding mental health issues related to a cooperating witness who has not yet testified. These issues do not bear on to the witness’s ability to recall events or testify accurately. In light of these reasons and the Court’s previous order granting the government’s motion to preclude cross-examination of past mental health issues as to another witness, see Dkt. No. 415 at 6-7, the government respectfully requests that the Court preclude crossexamination on this topic. 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). 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 Case Document 523 Filed 01/03/19 Page 2 of 5 PageID 6569 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 011 the subjects that may be inquired into 011 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?). With respect to mental health issues. in particular, the Second Circuit has held that evidence related to a witness?s history may properly be limited on Rule 403 grounds even where the issues in question overlapped with the time about which the witness was to testify. See United States v. Sasso. 59 F.3d 341. 348 (2d Cir. 1995) (?In assessing the probative value of evidence. the court should consider such factors as the nature of the 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) (af?rming district court ruling that evidence of the plaintiff?s institutionalization 15 years prior should be excluded under Rule 403). II. Discussion The witness for whom the government now seeks to reclude cross-examination of re'udicial detail related to his mental health treatment is rerea er. egan cooperatrng Wit 1 1e government?s investigation into 1e endant. In 2013, -suffered a mental breakdown. Case Document 523 Filed 01/03/19 Page 3 of 5 PageID 6570 doctors diagnosed . During medication and he underwent to lose short-term memory; specr 1ca y, ost ecr 1c memory of the events 1e ays preceding treatment and a few days after receiving the treatment itself. but it did not affect an other 1011 -ternr memories or his recollection of his work for the defendant. After he fell into a debilitating depression that prevented him rom wor ng He remains on medication and receives therapy to this ay. attributes his nervous breakdown to the stress associated with his work for the defendant, his cooperation with the US. government. and the fact that the Cartel suspected cooperation and attem ted to locate him. Additionall . ex erienced stress due to the fact that he wa current treatments and his past do not affect his memory. The government intends to elicit only the fact that previously suffered a nervous breakdown after leaving the defendant?s employ and learning that the organization suspected he was cooperating with the government. and that he has been successfully treated for his mental health issues. loss-examination as to the speci?c details of the depth of his illness and his former and current treatment should be precluded, as his illness in no way affected his ability to perceive events at the time he was working for the defendant or cooperating with the govermnent, and did not affect his memory of those events. The probative value of the particular treatments he received in the past or the therapy he continues to receive today have no meaningful probative value, particularly in light of the fact that the overnrnent intends to elicit the fact of his illness and treatment. In addition, the- i did not have any impact on his long-term memory or his ability to recollect clearly the events surrounding his work with the defendant and his cooperation with the and therefore has little to no probative value. Sasso. 59 F.3d at 348. This is particularly true when. as here. the illness and treatment have not impacted the witness?s ability to recall events, the witness did not suffer from the problem at the time of the events to which he is to testify, and the periods during which the witness suffered the worst of his illness are relatively remote in time from the time he was interacting with the defendant. Conclusion For the foregoing reasons. the Court should preclude cross-examination of as to his mental health issues. Case 1:09-cr-00466-BMC-RLM Document 523 Filed 01/03/19 Page 4 of 5 PageID #: 6571 IV. Partial Sealing is Appropriate Pursuant to the protective order in this case, the government respectfully requests permission to submit this letter partially under seal. See Dkt. No. 57 ¶ 8. The description of the witness’s role and responsibilities, as well as particularized details as to his mental health and treatment, could lead the defendant’s criminal associates to identify him in advance of his testimony. 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 motion describe the sealed information in question with particularity, rather than 4 Case 1:09-cr-00466-BMC-RLM Document 523 Filed 01/03/19 Page 5 of 5 PageID #: 6572 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) 5