USA v. Rodriguez et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------X
UNITED STATES OF AMERICA,
V.
HERBERTH RODRIGUEZ and
ELIAS MARTINEZ VILLANUEVA,
Defendants.
---------------------------------------------X
MEMORANDUM AND ORDER
20-CR-548 (WFK)
WILLIAM F. KUNTZ, II, United States District Judge:
Before the Court are the Government's first and second motions in limine, 1 motion to preclude
cross-examination of certain law enforcement witnesses regarding administrative findings and
civil lawsuits, and motion to preclude references or cross-examination of two civilian witnesses
regarding certain prior arrests, convictions, and other non-criminal conduct. Defendant Herberth
Rodriguez ("Rodriguez") and Defendant Elias Maitinez Villanueva ("Villanueva," together with
Rodriguez, "Defendants") oppose the Government's motions on numerous grounds. For the
reasons set fo1th below, the Government's motions are GRANTED IN PART AND DENIED IN
PART.
I. 	BACKGROUND
The Court assumes the parties' familiarity with the allegations and factual background in
this action. 2
II. MOTION TO ADMIT RACKETEERING EVIDENCE
The Government seeks to admit racketeering evidence concerning: (1) incidents of
violence with rival gang members; and (2) other illegal activity (e.g., production of fraudulent
identification documents, extortion, drug trafficking, and the promotion of prostitution) intended
to emich the 18th Street Gang ("18th Street") and to support financially incarcerated 18th Street
1 The Government's first motion in limine also provides background on the law concerning authentication
of video recordings, although the Government does not move to authenticate any videos. For this reason,
the Court does not address this portion of the Government's motion and reserves decision on any
authentication issues for trial.
2 The Court outlined pertinent allegations and facts in its Memorandum and Order denying Rodriguez's
motions to suppress and to sever and addressing his requests for certain discove1y material. See ECF No.
188.
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members. See Government's Opening Brief in Support of First Motion in Limine (the "First
MIL") at 17-18, ECFNo. 138.3
With respect to the first categ01y of racketeering evidence, the Government proffers the
following specific instances of violence:
• An August 14, 2020 shooting between 18th Street members and a purported rival
gang member. Id. at 23.
• An incident around Halloween 2019 where Rodriguez and other 18th Street
members confronted rival gang members, resulting in the beating of one rival
member and the attempted shooting of another rival member. Id. at 24;
• A mid-2020 incident where Villanueva used a bat to chase and "menace[]" an
individual whom he believed tried to rob a fellow 18th Street member. Id.;
• A mid-August 2020 incident where Rodriguez and other 18th Street members
assaulted a group of black males whom they believed were rival gang members,
resulting in at least one shot being fired at the purp01ied rivals. Id.;
• A September 2020 incident where Rodriguez shot at an individual multiple times
within 18th Street territory near Rodriguez's residence. Id. at 25; and
• An incident on an undisclosed date where Rodriguez fired a gun at members
associated with Vatos Locos, a rival gang. Id.
The Government also intends to introduce evidence of 18th Street members hiding firearms and
other weapons in bags or backpacks within 18th Street territory for purported easy access in the
event rival gang members intruded their territ01y. Id. at 25-26.
With respect to the second category of racketeering evidence, the Government seeks to
admit evidence of the following 18th Street activities:
• The use, attempted use, and conspiracy to use narcotics trafficking of cocaine and
marijuana. Id. at 26.
• Production of fraudulent identification documents such as driver's licenses, green
cards, and Occupational Safety and Health Administration ("OSHA") cards. Id.
• Extortion of brothel owners for cash payments or "rent," for which failure to pay
resulted in violent assault or death. Id. at 26-27.
• Prostitution. Id. at 26.
3 Citations are to the docket in United States v. Rodriguez et al., 20-CR-548. Pincites refer to the ECF
page numbers assigned to a filing, where available, and where no ECF heading is present, to the page
numbers listed in the original filing.
2
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Rodriguez challenges admission of all racketeering evidence outlined above. See
Rodriguez's Brief in Opposition to Government's First Motion in Limine ("Rodriguez's Opp.
Br.") at 6-8, ECF No. 144. Villanueva only challenges the admission of the first three instances
of violence within the first category of racketeering evidence.4 See Villanueva's Brief in
Opposition to Government's First Motion in Limine at 3 ("Villanueva's Opp. Br."), ECF No.
145.5
The Court grants the Government's motion and admits the proffered racketeering
evidence, subject to a limiting instruction directing the jmy to consider the evidence only for the
purpose of evaluating: (1) the existence, organization, or nature of 18th Street as an enterprise;
(2) whether there was a pattern of racketeering activity; (3) whether there was opportunity to
commit the charged offenses; and (4) whether there was motive to commit the offenses.
A. Legal Standards
1. Admissibility of "Other Acts" Evidence Under Rule 404(b)
In general, "[e]vidence of any other crime, wrong, or act is not admissible to prove a
person's character in order to show that on a particular occasion the person acted in accordance
with the character." Fed. R. Evid. 404(b). Yet this evidence of uncharged offenses or other acts
may be admitted for "proving motive, opportunity, intent, preparation, plan, lmowledge, identity,
absence of mistake, or lack of accident." Id.
Despite this restriction Rule 404(b) places on the admission of evidence of uncharged
criminal activity, said evidence "is not considered other crimes evidence under" the rule-and is
4 In his brief, Villanueva expressly opposes the first three acts of violence, although he goes on to argue
the "remaining acts offireann use involving Rodriguez ... should be precluded pursuant to Rule 403."
Villanueva's Opp. Br. at 6. In any event, the Court analyzes all six instances of violence given
Rodriguez's challenge to all the evidence proffered.
5 Villanueva filed a second opposition brief identical to the first. See ECF No. 146.
3
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therefore admissible-"ifit arose out ofthe same transaction or series oftransactions as the
charged offense, ifit is inextricably intertwined with the evidence regarding the charged offense,
or ifit is necessaiy to complete the story ofthe crime on trial." United States v. Carboni, 204
F.3d 39, 44 (2d Cir. 2000) (quoting United States v. Gonzalez, 110 F.3d 936,942 (2d Cir.1997))
(emphasis added).
2. Relationship Between Rule 404(b) and Racketeering Offenses
In the context ofracketeering offenses,the U.S. Court ofAppeals for the Second Circuit
held evidence ofuncharged offenses by members ofthe alleged enterprise may constitute "direct
evidence ofthe charged offense," and therefore does not implicate the restrictions of Rule
404(b). United States v. Mejia, 545 F.3d 179,206 (2d Cir. 2008) (admitting evidence of
uncharged narcotics trafficking to show existence of a racketeering enterprise in which
defendants participated). Rule 404(b) does not apply when direct evidence of an offense is at
issue. See id. Specifically, the Circuit determined it is "well settled that in prosecutions for
racketeering offenses, the government may introduce evidence of uncharged offenses to establish
the existence ofthe criminal enterprise." United States v. Baez, 349 F.3d 90, 93 (2d Cir. 2003).
This is because evidence ofthese uncharged offenses and other acts can provide "evidence ofthe
nature ofthe enterprise, which, in turn, can prove the relatedness and continuity essential to a
pattern, thereby helping to establish that the defendant's own acts constitute a pattern within the
meaning of RICO." United States v. Basciano, 599 F.3d 184, 206-07 (2d Cir. 2010) (quoting
United States v. Indelicato, 865 F.2d 1370, 1384 (2d Cir. 1989)) (internal quotation marks
omitted).
It is irrelevant whether all charged defendants participated in the evidence of uncharged
criminal activity for purposes of admissibility. See Mejia, 545 F.3d at 206 (noting "evidence of
4
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uncharged crimes committed by members of that enterprise, including evidence of uncharged
crimes committed by the defendants themselves, is admissible to prove an essential element of
the RICO crimes charged-the existence of a criminal enterprise in which the defendants
participated") (citing United States v. Matera, 489 F.3d 115, 120 (2d Cir. 2007) (affirming
admission of uncharged murders committed by non-defendant enterprise members)).
3. Exclusion of Prejudicial Evidence Under Rule 403
However, even if this evidence is not precluded under Rule 404(b), it may still be deemed
inadmissible under Rule 403. Rule 403 permits a comt to "exclude relevant evidence if 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." Fed. R. Evid. 403.
When evaluating the application of Rule 403 to racketeering cases, the Second Circuit
recognized, although "a likelihood that evidence proving the existence of the enterprise through
its acts will involve a considerable degree of prejudice, ... the evidence may be of important
probative value in proving the enterprise." Matera, 489 F.3d at 121 (citing United States v.
Coonan, 938 F.2d 1553, 1561 (2d Cir.1991)).
The district court has broad discretion over evidentiary issues, including those under
Rules 404(b) and 403. United States v. Wong, 40 F.3d 1347, 1378 (2d Cir. 1994) ("A district
coutt has broad discretion regarding the admissibility of evidence and its rulings will be
disturbed only for an abuse of that discretion."); United States v. Awadallah, 436 F.3d 125, 134
(2d Cir. 2006) (noting the "broad discretion afforded [to the district comt] on evidentiary
questions").
5
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B. Application
1. Instances of Violence
The uncharged instances of violence are admissible either as direct evidence ofthe
charged racketeering offenses, or as being inextricably intertwined with evidence relating to the
charged racketeering offenses Defendants presently face. Thus, Rule 404(b) does not apply. See
Carboni, 204 F.3d at 44.
Rodriguez is charged with, inter alia, racketeering, conspiracy to distribute and possess
with intent to distribute cocaine and marijuana, conspiracy to commit murder in-aid-of
racketeering, murder in-aid-of racketeering, and possessing, brandishing, and discharging a
firearm during a crime of violence. See Fourth Superseding Indictment (the "Super. Indict") at
,i,i 12-21, ECF No. I 0. Villanueva is charged with, inter alia, conspiracy to commit murder in
aid-ofracketeering, murder in-aid-of racketeering, and possessing, brandishing, and discharging
a firearm during a crime of violence. Id. at ,i,i 17-21.
The uncharged offenses the Government proffers are linked to 18th Street or conduct by
18th Street members, including the gang's goals of promoting and enhancing its prestige,
reputation, and position relative to other rival gangs, preserving 18th Street's ten-itory and
criminal ventures, keeping victims and rivals in fear of 18th Street, and emiching 18th Street and
its members. See id. at ,i 6. Four ofthe six proffered instances of violence concern shootings or
assaults perpetrated by 18th Street members in response to-whether actual or perceived
threats from rival gang members.6 See supra at 2. One ofthe incidents concerned Rodriguez
6 Villanueva argues the jury should not be told one of the incidents occurred on Halloween because it
would have the "tendency to confuse the jury to believe that 18th Street was generally and especially
violent on October 31." Villanueva's Opp. Br. at 5. The Comt disagrees. The Government proffers this
event took place "on or about" Halloween in 2019. First MIL at 24. The general timeframe of the
shooting is impo1tant for the jury to understand the entire chronology of the events at issue Even if the
Government was precluded from mentioning Halloween explicitly and instead stated it was "on or around
6
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shooting at another individual within 18th Street's territory around Halloween, see supra at 2,
which is indicative ofthe gang's purpose ofdefending its territory from perceived threats.
Villanueva argues the Government has not proffered evidence linking the Halloween
shooting to 54 Tiny Locos' territory specifically. Villanueva' s Opp. Br. at 5. This conflates 18th
Street (the actual enterprise with which Defendants are alleged to have associated) with a subset
ofthe enterprise. The Fourth Superseding Indictment's allegations concern Defendants'
association with 18th Street as a whole, see generally Super. Indict., not just the 54 Tiny Locos,
and for this reason, Villanueva's argument is unavailing. As for the separate incident in which
Villanueva chased an individual with a bat after a perceived attempted robbery ofVillanueva's
fellow 18th Street member, see supra at 2, this goes towards the association or close relationship
among and between 18th Street members. These instances ofviolence support the existence ofa
criminal enterprise and a pattern ofracketeering. See Baez, 349 F.3d at 93; Basciano, 599 F.3d
at 206-07.
The same is true ofthe numerous activities the Government purpo1is 18th Street engaged
in to enrich the gang and its members, such as: narcotics trafficking ofcocaine and marijuana,
production offraudulent identification documents, ext01iion, and prostitution. See supra at 2.
This evidence of uncharged criminal activity goes towards the nature and operations of 18th
Street, which bear directly on the enterprise's existence and the elements present in the
racketeering and "in-aid-of-racketeering" offenses Defendants are charged with. Basciano, 599
F.3d at 206-07.
October 31,2019," the jury will know the shooting took place around Halloween. The probative value of
admitting the date of the shooting would not be substantially outweighed by a danger of confusing the
jury.
7
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Moreover, some of the uncharged offenses and activities are inextricably linked to the
narcotics conspiracy and racketeering offenses Rodriguez has been charged with; specifically,
conspiracy to distribute and possess with intent to distribute cocaine and marijuana, and the
predicate narcotics distribution conspiracy underlying his racketeering charge. See Super. Indict.
at ,i,i 11, 16. The Government proffers evidence 18th Street "used, attempted to use and
conspired to use narcotics trafficking" of controlled substances such as cocaine and marijuana.
First MIL at 26. Evidence of an existing conspiracy to distribute-and the actual distribution
of-cocaine and marijuana are inextricably linked to, if not arising out of the same events as, the
narcotics conspiracy charge and predicate RICO charge against Rodriguez.
The same is true of the August 2020 shooting proffered by the Government, see supra at
2, because ballistic evidence linked the firearm utilized in the shooting to the October 10, 2020
shooting Rodriguez is charged with committing in the instant case. Villanueva argues the
ballistic evidence may "well have had nothing to do with the shooting" at issue. Villanueva' s
Opp. Br. at 4. At the very least, this evidence connects a firearm Rodriguez is alleged to have
used in the October 10th shooting with 18th Street. The Court holds this connection sufficient to
demonstrate its admissibility.
To the extent Defendants challenge admission of these uncharged offenses on the
grounds they did not participate in the offenses or acts, see, e.g., Villanueva's Opp. Br. at 3-4
("Neither Rodriguez nor Villanueva were present"), the Second Circuit has held "evidence of
uncharged crimes committed by members of that enterprise, including evidence of uncharged
crimes committed by the defendants themselves, is admissible to prove an essential element of
the RICO crimes charged-the existence of a criminal enterprise in which the defendants
participated." Mejia, 545 F.3d at 206 (internal citation omitted). Mejia makes clear both
8
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uncharged offenses committed by defendants or other members of an enterprise are admissible to
prove essential RICO elements. See also Matera, 489 F.3d at 120 (affirming admission of
uncharged murders committed by non-defendant enterprise members).
Even assuming, arguendo, Rule 404(b) applies, the proffered evidence would still be
admissible for purposes other than to prove propensity. For example, the evidence would be
admissible to prove Defendants' motive7 or opportunity to commit the acts at issue in this action,
e.g., the pmpose of harming rival gang members and the opportunity to do so through access to
firearms and weapons possessed by, or stashed by, 18th Street members in locations throughout
18th Street te1Tit01y. Fed R. Evid. 404(b)(2); see United States v. Castro, 659 F.Supp.2d 415,
421 (E.D.N.Y. 2009) (Spatt, J.) ("Even if this evidence was not relevant to establishing that MS-
13 is an enterprise, it would still be admissible under Fed. R. Evid. 404(b) to show Castro's
motive: in both the Elk Street Shooting and the charged shootings, he sought to harm members
of rival gangs; and proving oppmtunity."); United States v. Lauria, 541 F. Supp. 3d 311, 317
(S.D.N.Y. 2021) (Roman, J.) (noting the Second Circuit has "repeatedly held" "evidence that the
Defendant had the opportunity to access firearms" around the time of the offense is an
"appropriate purpose").
Finally, the Comt finds the probative value of the proffered evidence would not be
"substantially outweighed by a danger" of unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence. See Fed R. Evid.
403. There is no indication the evidence would be so needlessly cumulative or wasteful of time
7 Rodriguez claims the Government must also show the uncharged crimes furthered the racketeering
conspiracy's goals. Rodriguez's Opp. Br. at 7 (citing cases). The cases Rodriguez cites stand for the
proposition that the "furtherance" requirement applies to the instant offenses a defendant has been
charged with. In any event, the Court finds the proffered evidence are sufficiently linked to 18th Street to
show they were committed in fmtherance of the enterprise's purposes as previously determined. See
supra at § II.
9
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as to require exclusion under Rule 403. Trial has not yet begun, and the Court reserves any
further consideration of the extent to which any evidence would be cumulative or waste time.
And although the Court understands there is "a likelihood that evidence proving the existence of
the enterprise through its acts will involve a considerable degree of prejudice," the Court is
reminded by Matera of how, regardless, "the evidence may be of important probative value in
proving the enterprise." See supra at 5 (citing Matera, 489 F.3d at 121). Moreover, given
Defendants are charged with, inter alia, murder in-aid-ofracketeering, the uncharged offenses
and other acts are not "more inflammatory than the charged crime" so as to require exclusion.
Baez, 349 F.3d at 94 (citing United States v. Livoti, 196 F.3d 322,326 (2d Cir.1999)).
For the foregoing reasons, the Court finds the proffered racketeering evidence is
admissible. However, the Court will issue a limiting instruction8 directing the jury to consider
the evidence only for the purpose of evaluating: (1) the existence, organization, or nature of 18th
Street as an enterprise; (2) whether there was a pattern of racketeering activity; (3) whether there
was opportunity to commit the charged offenses; and (4) whether there was motive to commit
the offenses. To the extent the Government seeks to introduce instances of uncharged offenses
or other acts at trial not proffered above, Defendants may raise any additional objections.
III. MOTION TO ADMIT STATEMENTS BY DEFENDANTS AND OTHER 18TH
STREET MEMBERS
The Government also seeks to admit numerous statements made by Defendants and other
alleged 18th Street members. Specifically, the Government intends to introduce statements
regarding the October 10th and November 1st shootings and statements concerning "other
racketeering activity, including but not limited to violent acts, narcotics trafficking, the
8 Rodriguez himself proposed a limiting instruction as a method of limiting prejudice from introducing
the proffered evidence. Rodriguez's Opp. Br. at 7.
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production of fraudulent identifications, extortion, the promotion of prostitution and other
crimes." First MIL at 28.
Villanueva does not substantively respond to the Govermuent's motion except to argue
"[t]o the extent the Court precludes evidence of uncharged acts as per the argument set forth
above as to Motion I, statements regarding those acts should be precluded." Villanueva's Opp.
Br. at 6. Rodriguez raises numerous challenges or limitations on introducing the proffered
statements, including objecting to the statements to the extent: (1) the rule of completeness
requires allowing Defendants to introduce other portions of statements introduced by the
Government; (2) Bruton and Crav.ford issues arise; (3) the co-conspirator requirements of Rule
80!(d)(2)(E) are not met; (4) Rule 403 precludes admission of any statements; or (5) the
Govermuent attempts to use statements it represents are introduced for the effect on the listener,
for the purpose of proving the truth of the matter asserted. See Rodriguez's Opp. Br. at 10-14.
Given the exact statements at issue are not before the Comi, any decision on this issue
would be premature. The Court therefore denies the Govermuent's motion and reserves decision
on this issue until the Govermuent presents the statements at issue, whether prior to or at trial.
A. Legal Standards
Rule 802 prohibits the admission of hearsay evidence unless otherwise provided by
federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court.
Fed R. Evid. 802. Hearsay is defined as an out-of-court statement offered to prove the truth of
the matter asserted in the statement. See Fed R. Evid. 801(c ). By extension, statements not
offered for the truth of the matter asserted are not barred by the rule against hearsay. See United
States v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013). Additionally, Rule 801 expressly designates
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certain categories of statements-which would otherwise fall within the definition ofhearsay
as non-hearsay and thus admissible. See Fed R. Evid. 801(d).
Pertinent to the Government's motion is Rule 80l(d)(2), which provides statements
"offered against an opposing party" are not hearsay. Fed R. Evid. 80l(d)(2). Opposing party
statements include those made by the party themselves or statements made by the "party's
coconspirator during and in fiutherance ofthe conspiracy." Fed. R. Evid. 801(d)(2)(A), (E).
Where part of a statement is introduced by a party, the non-offering party may "require the
introduction, at that time, of any other part-or any other statement-that in fairness ought to be
considered at the same time." Fed. R. Evid. 106. The non-offering party may invoke Rule 106
notwithstanding a hearsay objection. Id.
Ce1tain requirements must be met before co-conspirator statements are admissible under
Rule 801(d)(2)(E). Rule 801(d)(2)(E) requires:(!) the existence ofa conspiracy; (2)
membership in the conspiracy by the defendant and the co-conspirator who made the statement
at issue; and (3) the statement was made during the course of, and in furtherance of, the
conspiracy. See Bourjaily v. United States, 483 U.S. 171, 175 (1987). The offering party-here,
the Government-must establish these requirements by a preponderance of the evidence to admit
co-conspirator statements pursuant to Rule 80l(d)(2)(E). Id. at 176. However, a court may
admit a co-conspirator statement on a conditional basis ifthe foundational requirements are
established by the later submission of the necessary evidence. See Fed R. Evid. 104(b ); United
States v. Romanello, 22-CR-194, 2023 WL 8283435, at *2 (E.D.N.Y. Nov. 27, 2023) (Komitee,
J.) (quoting United States v. Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993)).
Yet even ifproffered statements are admissible under Rule 801, they are still subject to
the same Rule 403 analysis outlined above. See supra at 5.
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Separate from the Federal Rules of Evidence, courts must ensure a defendant's rights
under the Sixth Amendment's Confrontation Clause are not violated. See U.S. Const. amend. VI
("In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the
witnesses against him[.]"). The Confrontation Clause "prohibits the admission of out-of-court
testimonial statements against a criminal defendant, unless the declarant is unavailable and the
defendant had a prior opportunity to cross-examine the declarant." United States v. Williams,
506 F.3d 151,155 (2d Cir. 2007) (citing Crawfordv. Washington, 541 U.S. 36 (2004)) (internal
quotation marks omitted). The Supreme Court, applying Crawford, held confessions made by a
defendant inculpating their non-testifying co-defendant are inadmissible under the Confrontation
Clause notwithstanding a limiting instruction to the jury. See Bruton v. United States, 391 U.S.
123, 137 (1968); see also United States v. Jass, 569 F.3d 47, 55 (2d Cir. 2009) ("[W]here a non
testifying defendant's confession specifically inculpates a co-defendant, the risk that the jury will
not, or cannot, follow instructions to limit its consideration of the evidence only as against the
declarant is so great, and the consequences of failure so vital to the defendant, that the practical
and human limitations of the jury system cannot be ignored.").
However, a Bruton violation can be avoided through "redaction and substitution adequate
to remove the overwhelming probability that a jury will not follow a limiting instruction that
precludes its consideration of a redacted confession against a defendant other than the declarant."
Id. at 60 (internal quotation marks omitted). While neutral references to the defendant may
suffice, redactions in the non-testifying defendant's confession inserting obvious placeholders
for the defendant-such as "deleted," a symbol, or a blank space-will not cure the violation
even when coupled with an appropriate jury instruction. See Gray v. Mmyland, 523 U.S. 185,
194-95 (1998); c.f Richardson v. Marsh, 481 U.S. 200,211 (1987) (No Bruton violation where
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reference to the existence of the defendant was eliminated completely from the admitted
confession of the non-testifying defendant); cf Samia v. United States, 599 U.S. 635, 653 (2023)
("[T]he neutral references to some 'other person' were not akin to an obvious blank or the word
'deleted'" in Gray).
B. Application
The Government's motion on this issue and the challenges raised to the statements are
not readily disposable. Although the Government has described the general topics to which the
statements at issue will relate, the specific statements themselves have not been provided to this
Court. Trial has not yet begun, rendering it inappropriate for the Court to speculate as to the
exact contents of the statements at issue. Thus, it is premature to rule on this issue and so the
Court reserves decision until the Government informs the Court of the statements at issue prior
to or at trial. See United States v. Basciano, 03-CR-929, 2006 WL 385325, at *1 (E.D.N.Y. Feb.
17, 2006) ( Garaufis, J.) (finding issue of admissibility of co-conspirator statements premature on
motions in /imine and reserving decision until statements were introduced at trial); United States
v. Solla, 19-CR-740, 2021 WL 5756394, at *4 (S.D.N.Y. Dec. 2, 2021) (McMahon, J.) (same).
Nevertheless, the Court cautions the Government to avoid issues arising under Bruton or
Crawford when introducing at trial statements made by a non-testifying defendant which
implicate their co-defendant, or testimonial statements made by unavailable witnesses
Defendants have not had the opportunity to examine.
IV. MOTION TO ADMIT CERTAIN YOUTUBE VIDEOS
The Government next seeks to admit three YouTube videos-with accompanying audio
and Spanish-to-English translations-purportedly made by 18th Street members and posted in
March, May, and November of 2020. First MIL at 35-36. These videos allegedly depict, inter
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alia, 18th Street members, some of which include Defendants,9 18th Street territory, and 18th
Street hand signs, tattoos, clothing, and graffiti. Id at 36. The Government argues the videos
describe and depict "18th Street, the role of the members, threats of violence to rivals and others
who start problems with 18th Street, threats of retaliatory violence, and rivalries between 18th
Street and MS-13." Id.
Defendants challenge admission of the videos on the grounds they are i1Televant and run
afoul of Rules 404(b) and 403. See Rodriguez's Opp. Br. at 14-16; Villanueva's Opp. Br. at 7.
The Court has reviewed both the videos and the lyrical translations provided by the
Government. For the reasons described below, the Comt finds portions of the audio and
translations admissible, and other portions of the same inadmissible.
A. Legal Standards
The same legal standards described above with respect to Rules 404(b) and 403, see
supra at 3-5, apply to the proffered music videos. As for relevance, the bar is "very low." See
Belvin v. Electchester Mgmt., LLC, 635 F.Supp.3d 190, 197 (E.D.N.Y. 2022) (Garaufis, J.)
(citing United States v. White, 692 F.3d 235,246 (2d Cir. 2012)). Evidence is relevant as long as
"it has any tendency to make a fact more or less probable than it would be without the evidence"
and "the fact is of consequence in determining the action." Fed R. Evid. 401 (emphasis added).
Various comis in this circuit have had occasion to apply Rules 404(b) and 403 to music
videos. 10 The Second Circuit previously held "[r]ap lyrics and tattoos are properly admitted .. .
9 The Government and Rodriguez disagree as to whether Defendants appear in any of the videos. See
First MIL at 36; Rodriguez's Opp. Br. at 14. This dispute is more appropriately a topic for cross
examination and Defendants are free to inquire at trial as such.
10 In its brief, the Government cites United States v. Miller, 20-CR-331 (E.D.N.Y. May 7, 2024) (DeArcy
Hall, J.). First MIL at 41. Although a motion was made regarding the admission of rap lyrics, this Cami
did not locate a written decision "admitting rap lyrics ... that included 'names, places, and conduct that
tracks the indictment."' See id For this reason, the Court does not factor Miller into its analysis.
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where they are relevant and their probative value is not substantially outweighed by the danger
of unfair prejudice." United States v. Pierce, 785 F.3d 832, 841 (2d Cir. 2015). However,
determining how to strike this balance is not always immediately clear. See United States v.
Jordan, 714 F.Supp.3d 158, 162-63 (E.D.N.Y. 2024) (DeArcy Hall, J.). Importantly, a court
must be "cognizant that hip hop is fundamentally an art form that traffics in hyperbole, parody,
kitsch, dramatic license, double entendres, signification, and other literary and artistic
conventions to get it[s] point across."11 Id. at 163 (citing Michael Eric Dyson, Forward, That's
the Joint!: The Hip-Hop Studies Reader, xii (Forman & Neal eds. 2004)) (internal quotation
marks omitted) (emphasis in original). The Rule 403 analysis is complicated by the general
understanding that rap lyrics expressed in this att form are "likely to be fictional braggadocio,"
containing embellishments, hyperboles, and wholly fabricated iterations of criminal acts. See
United States v. Ayers, 20-CR-239, 2024 WL 1158686, at *7 (E.D.N.Y. Mar. 18, 2024) (Cogan,
J.).
Coutts in this circuit have thus developed a rule-of-thumb for evaluating the admissibility
of rap lyrics and videos, permitting this evidence when there is a "specific factual nexus between
the content of rap music and the crimes alleged." Jordan, 714 F.Supp.3d at 164; see also Ayers,
2024 WL 1158686, at *7.
B. Application
As a threshold matter, the Court finds the videos and lyrics are relevant. The
Government's purposes for introducing the videos are to show the existence of 18th Street and
the association of its members, the methods and means of 18th Street, 18th Street's objectives,
and the pattern of racketeering activity 18th Street is engaged in. Given Defendants are charged
11 For an insightful summaty of the history, content, and cultural impact of rap, refer to the Honorable
LaShann DeArcy Hall's opinion in Jordan, 714 F.Supp.3d at 160-162.
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with committing offenses in connection with 18th Street and its objectives, the videos plainly
clear the low bar ofrelevancy addressed in Belvin. 635 F.Supp.3d at 197.
For related reasons, the Court finds the videos and lyrics do not run afoul ofRule 404(b).
Direct evidence of the existence ofan enterprise and a pattern ofracketeering does not implicate
Rule 404(b). See supra at 3-5. The videos and lyrics go towards establishing both ofthese
essential elements ofthe charges asserted against Defendants. Moreover, even ifthe videos and
lyrics implicated Rule 404(b), the videos would be admissible for other valid purposes such as
showing Defendants' motive and opportunity. See supra at 3-5.
However, many ofthe proffered rap lyrics in this case are ofa generic nature reflecting
the type of"vapid posturing" insufficient to establish the specific factual nexus with the charged
offenses. See Ayers, 2024 WL 1158686, at *7; Jordan, 714 F.Supp.3d at 165-66. For example,
the following proffered lyrics are too general and vague to be admissible under Rule 403:
• "There's no truce here, and definitely no equals. Ifyou cross paths with this
pirate, you're done for." First MIL at 42;
• "I have my scapulary and insane backup for any rival punk who thinks he's too
tough[.]" Id.;
• "Only flow I have for you, I roll up in your hood with a straight out fuck you. I
don't wanna front like I'm cool, 'cause I'm not. But ifl see you on the turf, you
!mow I'm gonna shoot." Id. at 42--43; and
• "[I]fyou shoot, I'm quick with the assist[.]" Id. at 43.
By contrast, the following examples are specific enough in their references to 18th Street
as an enterprise, the gang's pattern ofracketeering, and its rivalry with MS-13 for admissibility:
• "[W]e're not leaving, you already know we rep and die for 82. We multiply. I've
seen big dogs rise up and fall down. Killing MS has become my job." Id. at 42;
• With a .38, I roll solid, reppin' XS, so the whole world !mows 18 is here. My gun
and my balls are ready for my enemy ifhe wants to test me. Pack ofMS
assholes[.]" Id.; and
• "I got into a world ofpussies, fakes, and traitors, 'till I earned my stripes with my
18th street homies." Id. Ex. A-1 at 6, ECF No. 13 8-1.
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As for the video content of the proffered evidence (i.e., separate from the audio lyrics and
translations), the Court finds most of the images sufficiently specific as to 18th Street, its
territ01y, its members and their associations, and the possession of weapons among the gang so
as to be admissible under Rule 403. However, to the extent any inadmissible lyrics such as those
outlined above appear as text in the videos, they too are inadmissible.
The Court has reviewed the parties' other arguments and finds them unpersuasive. For
the foregoing reasons, the Cou1t partially grants the Government's motion with respect to the
YouTube videos and pmtially denies the motion. The Court directs the Government and
Defendants to confer, in light of the above guidance, regarding the appropriate excerpting of any
audio and accompanying translations in accordance with this Court's opinion. Any video clips
in which inadmissible lyrics appear as text are similarly inadmissible. To the extent there are
any disagreements among the patties, Defendants may raise objections at trial.
IV. MOTION TO ADMIT EVIDENCE REGARDING RODRIGUEZ'S
STATEMENTS MADE TO, AND USE OF VIOLENCE AGAINST, CW-1
The Government intends to introduce testimony regarding Rodriguez's alleged physical
and sexual abuse of CW-1, including instances when Rodriguez punished CW-1 by beating her,
and sexually assaulted her. First MIL at 46. Rodriguez opposes introduction of the evidence,
arguing it constitutes impermissible propensity evidence under Rule 404(b) and is too
inflmnmatory and prejudicial under Rule 403. See Rodriguez's Opp. Br. at 17. Villanueva joins
these arguments. Villanueva's Opp. Br. at 11.
The Court grants the Government's motion to allow testimony regarding the physical and
sexual abuse ofCW-1. However, the Court cautions the Government to circumscribe the
testimony so as to not overwhelm the trial with discussion of these instances of violence.
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A. Legal Standards
The principles described above regarding Rules 404(b) and 403 apply with equal force to
this issue. See supra at 3-5.
B. Application
The Government contends, and Defendants agree, CW-!' s testimony will be central at
trial. See First MIL at 36; Government's Reply Brief ("Gov'! Reply Br.") at 9, ECF No. 150;
Rodriguez' Opp. Br. at 17 ("We acknowledge thatCW-1 's credibility will be central (she is a
key cooperating witness))." As a result,CW-1's credibility will be a critical issue. First MIL at
48; Rodriguez' Opp. Br. at 17 ("IfCW-! took part in the murder plot, the defense will likely
question whether she had her own motives or whether she is minimizing her role."). For these
reasons, the Court agrees instances of violence Rodriguez inflicted uponCW-! are imp01iant and
necessary for the jury to hear in order to evalnate whyCW-! "came to conspire with the
defendant in the charged conduct and his reasons for trusting that she would assist him and not
report him to law enforcement." First MIL at 48. GivenCW-1's alleged role in the charged
offenses and the connection between CW-! and Rodriguez's relationship to the same offenses,
the testimony will serve to provide "background of the conspiracy charged, to complete the story
of the crimes charged, and to help explain to the jury how the illegal relationship between
pmiicipants in the crime developed." United States v. Pitre, 960 F.2d 1112, 1119 (2dCir. 1992)
(citing United States v. Roland-Zapata, 916 F.2d 795, 804 (2dCir. 1990)). For this reason, Rule
404(b) does not preclude the testimony.
Neither is the testimony's probative value substantially outweighed by a danger of
prejudice under Rule 403. Given CW-l's testimony is central to the case, the nature ofCW-1
and Rodriguez's relationship and any testimony explaining why CW-! may have assisted
Rodriguez in the charged offenses is substantially probative to understanding how the events
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unfolded. See United States v. Kelly, 07-CR-374, 2008 WL 5068820, at *4 (E.D.N.Y. July 10,
2008) (Johnson, J.) (admitting evidence of the defendant's violence against, and sexual
relationship with, government witnesses to "present evidence that punishments meted out by a
defendant can create a climate of fear that [is) sufficient to cause [the victim) to perform labor or
services against her will") (internal quotation marks omitted).
Rodriguez cites to United States v. Colombo, yet the case is inapposite because evidence
defendants sexually assaulted one of the robbery victims was not being introduced to shed light
on any assistance the victim provided in the charged offenses. 869 F.2d 149, 153 (2d Cir. 1989).
Moreover, the Government represented it will only present "limited evidence" of the physical
and sexual abuse inflicted by Rodriguez, rather than elicit "each and every instance of abuse."
Gov't Reply Br. at 8; see also id. at 9 ("[T]he government intends to elicit only minimal, basic
facts that would assist the jury in understanding the nature of the relationship.").
The Court will also impose a limiting instruction, as Rodriguez suggests, directing the
jury to consider the evidence only for the limited purpose of understanding CW-1 's relationship
with Rodriguez rather than proof of Rodriguez's bad character or propensity to commit the
charged crimes. See Rodriguez's Opp. Br. at 20. If Defendants believe the testimony elicited
goes beyond the limited and circumscribed presentation the Government represents in its
briefing, they are free to object at trial. For the foregoing reasons, the Court grants the
Government's motion on this issue.
V. MOTION TO ADMIT AUTOPSY IMAGES AND BODY-WORN CAMERA
FOOTAGE
The Government next seeks to admit a "limited number of autopsy photographs depicting
the murder victim's wounds, as well as limited body-worn camera footage depicting the crime
scene after the shooting." First MIL at 50. The camera footage captures the scene after Diego
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Vanegas Vasquez's shooting, which depicts the "victim after he was shot and the vehicle that the
victim was traveling in when shot, including damage to the vehicle." Id. at 51. The footage also
captures police officers' discussion of "shell casings recovered at the scene, damage to the
vehicle, and the use of a motorcycle or scooter used by the perpetrator." Id.
Rodriguez argues no "autopsy photographs [should] be shown to the jury unless
absolutely necessary-and even then, only sanitized ones," due to their potential prejudicial
effect. Rodriguez's Opp. Br. at 20. Similarly, Rodriguez requests no body-worn camera footage
be shown or, alternatively, for any footage to "be edited to remove any extreme gore or
distressing audio, and that it be stopped at an appropriate point." Id. at 21. Villanueva raises
similar arguments for limiting the autopsy photographs and camera footage. See Villanueva' s
Opp. Br. at 11-12. However, Villanueva also raises hearsay-and seemingly Confrontation
Clause-objections to the camera footage based on statements purportedly made by an
eyewitness of the shooting and verbally recounted by officers on the footage. Id. at 12.
For the reasons discussed below, the Court grants the Government's motion to the extent
it seeks to admit a limited number of autopsy photographs and body-worn camera footage, but
reserves decision on introducing audio from the footage because the parties have failed to
describe with sufficient specificity the statements at issue.
A. Legal Standards
"[T]he Second Circuit has made clear that the graphic or disturbing nature of a
photograph alone is not enough to render it inadmissible." United States v. Salim, 189 F.Supp.2d
93, 98 (S.D.N.Y. 2002) (Batts, J.) (citing United States v. Velazquez, 246 F.3d 204, 210-211 (2d
Cir. 2001); see also United States v. Osborne, 739 Fed.Appx. 11, 18 (2d Cir. 2018) (summary
order) ("The fact that the photos might have been graphic does not render them unfairly
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prejudicial under Rule 403[.]"). No reason has been raised why this same principle should not
apply to body-worn camera footage.
As for statements contained in body-worn camera footage, the same hearsay principles
discussed above. See supra at 11-13.
B. Application
With respect to the autopsy photographs, the Government has already represented it will
"limit the number of autopsy photographs it intends to offer in order to minimize any potential
prejudice and ensure that the images are not cumulative of one another or other evidence." First
MIL at 50 n.14. The Government intends to use only a small fraction of the 250 autopsy
photographs taken to "corroborate the Medical Examiner's testimony and to aid the jury in
understanding complex medical evidence about the nature and cause of Vanegas Vasquez's
death." Gov't Reply Br. at 10. Similarly, the Government intends to introduce only limited
body-worn camera footage. First MIL at 51. These representations are in line with Defendants'
requests and are sufficient to comply with Rule 403. If Defendants believe the photographs and
videos offered at trial overstep the bounds of Rule 403, they are free to raise appropriate
objections then.
With respect to the body-worn camera footage, the Court is not yet able to evaluate fully
Villanueva's hearsay objections to the statements made, specifically those regarding the alleged
scooter used in the shooting. None of the parties have directed the Court to the specific body
camera footage at issue or the specific statements challenged. It is thus premature to come to a
decision regarding the hearsay issue and so the Court reserves judgment on the Government's
motion to admit the audio from the footage until the Government informs the Court of the
statements at issue prior to or at trial.
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VI. MOTION TO ADMIT ANTICIPATED VIDEO COMPILATIONS
The Government also seeks to use or to admit multiple illustrative aids and video
compilations summarizing hours of video surveillance footage. First MIL at 52, 56. The video
compilations are drawn from hours of underlying surveillance footage. Id. The Government
also anticipates making annotations, including zooms, arrows, circles, insets of publicly available
maps, and real-time clocks to correct underlying time stamps in the videos. Id.
Rodriguez does not object to the use of illustrative aids or video compilations as long as
the Government complies generally with Rules 1006, 107, and 403. Rodriguez's Opp. Br. at 21.
Villanueva objects to the use of annotations in the video compilations as inadmissible hearsay.
Villanueva's Opp. Br. at 12.
A. Legal Standards
The definition of hearsay evidence was previously outlined above "as an out-of-court
statement offered to prove the truth of the matter asserted in the statement." Supra 11-12 (citing
Fed. R. Evid. 80l(c)). In this context, a statement is not required to be an oral assertation to
qualify as hearsay. Instead, the word "statement" also includes any "written assertion[] or
nonverbal [assertive] conduct" made by a person. See Fed. R. Evid. 80l(a). If the statement was
made "out-of-court," it was not made during the trial or any other proceeding within the given
action. See Fed. R. Evid. 801(c)(1).
Rule 1006 permits a court to admit, as evidence, a "summary, chart, or calculation
offered to prove the content of voluminous admissible writings, recordings, or photographs that
cannot be conveniently examined in court, whether or not they have been introduced into
evidence." Fed R. Evid. 1006(a). If a party is permitted to introduce a compilation under Rule
1006, they must "make the underlying originals or duplicates available for examination or
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copying, or both, by other parties at a reasonable time and place." Fed R. Evid. 1006(b). A
court may order the proponent to produce the underlying originals in court. Id
The principles discussed above regarding Rule 403 apply with equal force to this issue.
See supra at 5.
B. Application
The written time stamps, locations, and maps added to the compilation videos qualify as
statements under Rule 801. See Fed. R. Evid. 80l(a); see United States v. Fuller, 761 F.Supp.3d
125, 132 (D.D.C. 2025) (Kollar-Kotelly, J.) (holding time stamps, location stamps, and maps
added to montage exhibits constituted hearsay). Even assuming this evidence initially
constitutes out-of-court statements offered for their tmth, the Government has represented,
"tlu·ough either testimony or stipulation, the locations of the surveillance cameras and any time
discrepancies" will already be in evidence. Gov't Reply Br. at I 0. These specific in-court
statements will thus not qualify as inadmissible hearsay. See Fed R. Evid. 80l(c)(l). It is
unclear whether the Government also intends to add insets of maps to the video compilations; to
the extent it does, these maps must themselves be admissible or otherwise admitted into the
record to be presented in the video compilations.
As for any zooms, arrows, circles, and highlighting, the Court is not persuaded these
constitute "statements" as contemplated by Rule 801. At most, the Court views zooms, arrows,
circles, and highlighting as visual aids for the jury when reviewing the underlying surveillance
video; these visual aids do not constitute any specific asse1tions by the Government or nonverbal
conduct intended as an assertion offered to prove the truth of the matter. Indeed, Villanueva has
not offered any indication of what truth value these visual aids hold. See generally Villanueva's
Opp. Br. Villanueva's reliance on United States v. Fuller is inapposite, given the authors of the
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videos in the case "intended the editorial choices evident in the montages to convey that the
various pieces of media were related" by positioning aerial maps or congressional records
alongside video clips. 761 F.Supp.3d at 133-34.
To the extent Villanueva contends the act of compiling the videos will "favor and
emphasize the government's view of what happened, to the defendants' unfair disadvantage,"
Defendants may raise those concerns on cross-examination. See Linde v. Arab Bank, PLC, 922
F.Supp.2d 316,333 (E.D.N.Y. 2013) (Gershon, J.) ("So long as [the witness's] testimony
accurately describes the limits of his analysis, defendant will be able to explore the scope of his
work on cross-examination,present its own summaty of the evidence it considers relevant, and
direct the jury's attention to other evidence in the record."); Fagiola v. Nat'! Gypsum Co. AC &
S., Inc., 906 F.2d 53, 58 (2d Cir. 1990) ("In sum, the objections that [the witness's] summmy did
not fairly represent the documents and was excessively confusing and misleading go more to its
weight than to its admissibility.").
For the foregoing reasons, the Court admits the video surveillance compilation given the
Government complies with Rule 1006 and ensures any written time stamps, locations, or maps
are in the evidentiaiy record as it has represented. The Court also permits the use of illustrative
aids. To the extent Defendants believe the video surveillance compilation or illustrative aids are
inadmissible for any reasons not discussed here, they may raise such objections at trial.
VII. MOTION TO PRECLUDE EVIDENCE INTRODUCED BY DEFENDANTS
SEEKING TO ELICIT SYMPATHY OR RELATING TO POSSIBLE
PUNISHMENT OR COLLATERAL CONSEQUENCES
The Government moves to preclude Defendants from "commenting on, introducing or
eliciting any evidence that seeks to elicit sympathy from the jury including, but not limited to,
evidence concerning the defendants' personal, health, or family circumstances, or evidence of
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the defendants' good character through specific instances of conduct." First MIL at 60. The
Government also seeks to preclude mention of any "consequences of their convictions at trial."
Id. at 61.
Villanueva does not take a position on these motions. Villanueva's Opp. Br. at 2.
Rodriguez has represented he "has no present intention of introducing evidence or argument
about sympathy for the defendants or potential punishment or collateral consequences."
Rodriguez's Opp. Br. at 23. However, Rodriguez argues the Government's motion is premature
given there may be circumstances when introduction of such evidence is appropriate, such as if
"the government or one of its witnesses suggests or implies that the defendants faces [sic]
minimal or insignificant consequences." Id.
Rodriguez only opposes the motion on the grounds it is premature and overbroad. Given
the evidence may be admissible in certain instances, the Court grants the Government's motion
to the extent it seeks to preclude references to evidence seeking to elicit sympathy or relating to
possible punishment or collateral consequences during opening statements. However,
Defendants may later move to admit such evidence in the event the Government opens the door
to the issue at trial, or if another situation is presented at trial justifying the introduction of such
evidence.
VIII. MOTION PERMITTING THE GOVERNMENT TO RECALL WITNESSES
The Government seeks permission to recall ce1iain law enforcement witnesses throughout
trial to effectively group evidence regarding the separate October 10th and November I st
shootings. First MIL at 62.
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Villanueva takes no position on the motion. Villanueva's Opp. Br. at 2. Rodriguez
defers taking a position until the Government identifies the witnesses and subjects of their
testimony. Rodriguez's Opp. Br. at 23-24.
The Comt has the discretion to determine exceptions to the normal order of presenting
evidence. United States v. DiNapoli, 557 F.2d 962, 965 (2d Cir. 1977); Fed R. Evid. 61 l(a)
("The comt should exercise reasonable control over the mode and order of examining witnesses
and presenting evidence[.]"); United States v. Guerrero, 882 F.Supp.2d 463, 483-84 (S.D.N.Y.
2011) (Sweet, J.). Exercising this discretion, the Court grants the Government's motion.
IX. MOTION FOR DISCLOSURE OF DISCOVERY MATERIALS
The Government has moved for this Court to issue an order requiring Defendants to
"identify any defense exhibits they intend to introduce during the government's case (but not
those documents to be used for impeachment purposes only) or any defense case by February 13,
2026; (ii) both parties to exchange simultaneously Rule 26.2 materials by an agreed-upon date
or, if necessmy, a date set by the Comt; and (iii) the patties to exchange demonstratives, which
should not include exhibits, to be used during opening statements by February 19, 2026." Gov't
Reply Br. at 12. The Government clarified it is not seeking exhibits Defendants are using solely
to impeach government witnesses. Id.
Neither Rodriguez nor Villanueva object to the second and third categmy of discovery
materials requested. Rodriguez's Opp. Br. at 25; Villanueva's Opp. Br. at 13. Thus, there is no
dispute between the parties on this issue.
Accordingly the Court grants the Government's motion and, to the extent they have not
done so already: ( 1) Defendants must identify any defense exhibits they intend to introduce
during the government's case (but not those documents to be used for impeachment purposes
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only) or any defense case; (2) both parties must exchange Rule 26.2 materials; and (3) the parties
must exchange demonstratives to be used during opening statements. Given trial in the above
captioned action is scheduled to commence on Monday, March 2, 2026, the Court directs the
parties, to the extent they have not done so already, to exchange the above materials on or before
Monday, March 2, 2026, at 5:00 P.M.
X. MOTION TO ADMIT VIDEOS AND PHOTOGRAPHS OBTAINED FROM
VILLANUEVA'S CELLPHONE
The Government seeks to admit numerous videos and photographs obtained from
Villanueva's cellphone. See Government's Opening Brief in Support of Second Motion in
Limine (the "Second MIL") at 1-2, ECF No. 159. Specifically, these materials consist of:
• Multiple several-second videos of the defendant holding up gang signs signifying
membership in 18th Street, including at various locations appearing to be in and
around New York City. Id at 2;
• Multiple several-second videos of the defendant wearing 18th Street colors in
locations in New York City, such as on the Staten Island Ferry. Id.;
• An image depicting two armed men holding 18th Street gang signs with the
caption, "Eighteen Street Orale Carnal[.]" Id; and
• Multiple photographs of nearly-naked women appearing to be advertise
prostitution, including with captions such "Open" and "Abierto," which means
"open" in Spanish, as well as the below text. Id
Y60$,
The Government concedes these materials, as far as it can determine, were created "on or
about and between" 2024 and 2025. 12 Gov't Second Reply Br. At 1.
Rodriguez has not moved to oppose the Second MIL. However, Villanueva has raised
objections pursuant to Rules 404(b) and 403. See Villanueva's Brief in Opposition to
Govermnent's Second Motion in Limine at 2, 4 ("Villanueva's Second Opp Br."), ECF No. 167.
12 The Government states it is "unable to determine with cettainty the dates on which the photographs
were created." Gov'! Second Reply Br. At I.
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For the reasons discussed below, the Court grants the Government's motion to admit the
proffered evidence.
A. Legal Standards
The same legal standards outlined above with respect to the admission of the racketeering
evidence under Rule 404(b) applies here. See supra at 3-5. With respect to evidence of
uncharged offenses or other acts occurring subsequent to the charged offense, the Second Circuit
held there is no per se bar to admission of subsequent acts under Rule 404(b). See United States
v. Rutkoske, 506 F.3d 170, 177-78 (2d Cir. 2007). Similarly, the Second Circuit has refused to
"adopt a per se rule that subsequent similar act evidence inherently lacks relevancy[.]." United
States v. Ramirez, 894 F.2d 565,569 (2d Cir. 1990) (emphasis in original); United States v.
Germosen, 139 F.3d 120, 128 (2d Cir. 1998) ("The fact that the evidence involved a subsequent
rather than prior act is of no moment."). The principles discussed above regarding Rule 403
apply with equal force to this issue, as well. See supra at 5.
B. Application
Putting aside for the moment the evidence at issue post-dates the charged offenses by
multiple years, see Villanueva's Second Opp. Br. at 3; Gov't Second Reply Br. at !, the evidence
the Government proffers would be admissible as either direct evidence of the existence of an
enterprise or evidence of a pattern of racketeering. See supra at 3-5. The proffered evidence
largely concerns 18th Street associations, including individuals holding up 18th Street gang
signs, shitis with colors associated with 18th Street, 13 and prostitution activities reflecting one of
the illicit activities the Government intends to link to 18th Street through other evidence at trial.
13 Villanueva contends the colors of the clothing are so exceedingly common as to have no bearing on a
connection to 18th Street. See Villanueva' s Second Opp. Br. at 3. First, this ignores the shitts depict the
number "81" which the Government intends to show is used by 18th Street members to reflect their
association with the gang. Government's Second Reply Brief ("Gov'! Second Reply Br.") at 2, ECF No.
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However, the Court does not agree evidence from four to five years after the charged
offenses demonstrates the existence of an enterprise or a pattern of racketeering nearly half a
decade earlier. Further, the Government does not identify any cases finding such evidence
admissible as direct evidence of RICO offenses. However, even assuming, arguendo, the
proffered photographs and videos are not direct evidence due to their lack of temporal proximity,
the evidence would still be admissible under Rule 404(b).
The Government proffers permissive uses of the evidence under Rule 404(b ), including
to show identity, knowledge, intent, and motive. Second MIL at 4. The fact this evidence post
dates the charged offenses does not change the outcome. Indeed, the Second Circuit in Rutkoske
affitmed the admission of evidence tending to show the existence of a stock manipulation
scheme which occurred four years after the scheme the defendant was charged with committing
because it was used for other proper purposes under Rule 404(b). Rutkoske, 506 F.3d at 174,
178.
To the extent the Government intends to introduce the proffered evidence for the
purposes it outlined under Rule 404(b), the Court admits the evidence. The Court will issue a
limiting instruction directing the jury to consider the evidence only for the purpose of evaluating
Villanueva' s identity, knowledge, intent, and motive.
The Court also rejects any argument that the proffered evidence is precluded under Rule
403. Given the evidence at issue does not involve conduct any more sensational, disturbing, or
187. Second, at most, Villanueva's contention is an issue for cross-examination where he can present his
competing theory of what the evidence represents. The same is true ofVillanueva's argument that he
may have kept the images of purported prostitution for his own "titillation." Villanueva's Second Opp.
Br. at 3. Just because Villanueva disagrees with the characterization of the evidence does not make it
irrelevant. See Belvin, 635 F.Supp.3d at 197 (noting bar for relevance is very low).
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inflammatory than the murder Villanueva is charged with committing, it is not precluded under
Rule 403. See Baez, 349 F.3d at 94.
XI. MOTION TO PRECLUDE CROSS-EXAMINATION OF WITNESSES
REGARDING CERTAIN SUBJECTS
Finally, the Government moves to preclude cross-examination of law enforcement and
civilian witnesses regarding specific subjects. With respect to law enforcement witnesses, the
Government moves to preclude cross-examination concerning administrative findings by the
New York City Civilian Complaint Review Board ("CCRB") and the New York City Internal
Affairs Bureau ("IAB"), as well as unproven allegations in civil lawsuits. See Government's
Second Giglio Letter ("Second Giglio Ltr.") at 3, ECF No. 178. With respect to civilian
witnesses, the Government moves to preclude cross-examination concerning prior convictions.
See Government's Third Giglio Letter ("Third Giglio Ltr.") at 4, ECF No. 186.
Neither Rodriguez nor Villanueva have filed an opposition to the Government's motions
to preclude. The Court grants the Government's motions.
A. 	Legal Standards
A district comi is "accorded broad discretion in controlling the scope and extent of cross-
examination[.]" United States v. Wilkerson, 361 F.3d 717, 734 (2d Cir. 2004) (citing United
States v. Fabian, 312 F.3d 550, 558 (2d Cir. 2002)). Accordingly, a court's decision to limit
cross-examination is subject to an abuse-of-discretion standard. United States v. Horsford, 422
Fed.Appx. 29, 30 (2d Cir. 2011) (summmy order).
Rule 608 imposes ce1iain limitations on introducing evidence regarding a witness's
character for truthfulness or untruthfulness. See Fed R. Evid. 608. Specifically, "extrinsic
evidence is not admissible to prove specific instances of a witness's conduct in order to attack or
support the witness's character for truthfulness." Fed R. Evid. 608(b); see United States v.
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Nelson, 365 F.Supp.2d 381,389 (S.D.N.Y. 2005) (MmTero, J.) (noting extrinsic evidence
encompasses documentary evidence). However, on cross-examination, a court may allow
inquiry into such specific instances if they are probative of the character for truthfulness or
untruthfulness of either "the witness[] or another witness whose character the witness being
cross-examined has testified about." Fed R. Evid. 608(b).
Numerous courts in this circuit have applied Rule 608 to administrative findings and civil
lawsuits. For example,in Horsford, the Second Circuit affirmed the district court's decision to
resh-ict testimony regarding a prior CCRB complaint against an officer because the complaint
"involved no dishonesty." 422 Fed.Appx at 30; see also United States v. Barrett, 10-CR-809,
2012 WL 194992, at *2 (E.D.N.Y. Jan. 23, 2012) (Matsumoto, J.) (collecting cases). With
respect to civil litigation, courts have excluded testimony regarding pending civil suits and suits
which have "ended in settlement without any admission of wrongdoing by the defendant or
adverse credibility finding by the comi." United States v. Jackson, 19-CR-356, 2020 WL
6558215, at *3 (E.D.N.Y. Nov. 9, 2020) (Ross, J.); see also United States v. Clanton, 763
F.Supp.3d 261,270 (E.D.N.Y. 2025) (Matsumoto, J).
Separately,Rule 609 governs when criminal convictions are admissible to attack a
witness's character for truthfulness or untruthfulness. See Fed. R. Evid. 609. For convictions
greater than ten years old, a court must engage in what is effectively a "Reverse-Rule 403"
balancing test requiring the conviction's "probative value, supported by specific facts and
circumstances, [to] substantially outweighs its prejudicial effect." Fed. R. Evid. 609(b)(l);
Zinman v. Black & Decker, Inc., 983 F.2d 431, 434 (2d Cir.1993) ("We have recognized that
Congress intended that convictions over ten years old be admitted ve1y rarely and only in
exceptional circumstances.") (internal quotation marks omitted).
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B. Application
The Comt finds the proffered administrative findings, civil lawsuits, and convictions are
inadmissible at trial.
The Court has reviewed the administrative findings, see Second Giglio Ltr. at 4-8, and
finds none of them bear on the officers' credibility or character for truthfulness. Specifically, the
administrative findings concerned incidents such as an officer's court non-appearance, a physical
altercation between an officer and another individual, missing property claims, and use of
official law enforcement databases for personal reasons. Id at 4, 6. All of the civil lawsuits are
either pending or were settled without credibility determinations. See id. at 4-8. For these
reasons, the Court grants the Government's motion to preclude with respect to the law
enforcement witnesses. 14
The criminal convictions concerning the civilian witnesses who intend to testify are also
inadmissible under Rule 609. Two of the three convictions are greater than ten years old, see
Third Giglio Ltr. at 4, requiring the Comt to analyze the probative and prejudicial value of the
convictions under a Reverse-Rule 403 analysis. Applying this balancing test, the Court finds the
convictions' probative value does not substantially outweigh their prejudicial value. The
criminal convictions concern a forcible touching and violation of a vehicle traffic law, id, both
14 The Government has also previously moved to preclude cross-examination of certain other law
enforcement officers regarding administrative findings and civil lawsuits. See Government's First Giglio
Letter ("First Giglio Ltr.") at 3-6, ECF No. 152. The Government's motion to preclude was submitted in
connection with a suppression hearing at which the law enforcement officers intended to testify (one of
the officers ended up testifying at this hearing). See id at 3 ("The government discloses, and moves to
preclude cross-examination relating to, the following administrative findings and civil lawsuits against
ce1tain law enforcement witnesses the government anticipates calling at the suppression hearing")
(emphasis added). It is unclear whether the Government intended its motion to apply equally with respect
to testimony elicited at trial. In any event, the Court has reviewed the administrative findings and civil
lawsuits described in the First Giglio Letter and finds they would also be inadmissible for the purpose of
attacking the officers' character for truthfulness.
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of which have minimal-to-no probative value regarding the character for truthfulness. Moreover,
one of these convictions is not punishable by death or imprisonment for more than one year, nor
does it involve a dishonest act or false statement, and so Rule 609 does not permit its
introduction. See Fed. R. Evid. 609(a). The third conviction, although not greater than ten years
old, does not fall within the purview of Rule 609. The conviction was for a traffic violation not
punishable by death or imprisonment for one year and did not involve a dishonest act or false
statement. See id.; Third Giglio Ltr. at 4.
The Comt therefore grants the Government's motion to preclude examination on the
administrative findings, civil lawsuits, and prior criminal convictions.
XII. CONCLUSION
For the foregoing reasons, the Comt GRANTS IN PART the Government's motions and
DENIES IN PART the Government's Motions
Dated: February 27, 2026
Brooklyn, New York
SO ORDERED-
HON. WILLIAM F. KUN , II
UNITED STATES DISTRIC
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