United States v. Montilla

UNITED STATES OF AMERICA v. ABEL MONTILLA, a/k/a “Coche Bomba,” Defendant.

No. S9 19 Cr. 536 (PKC)

United States District Court, S.D. New York

February 15, 2023

DAMIAN WILLIAMS United States Attorney

Juliana N. Murray Ryan B. Finkel Assistant United States Attorneys Of Counsel

TERMINATED AS MOOT.

P KEVIN CASTEL UNITED STATES DISTRICT JUDGE

SO ORDERED.

THE GOVERNMENT’S MOTIONS IN LIMINE

TABLE OF CONTENTS

PRELIMINARY STATEMENT

BACKGROUND

A. The Robbery

B. The Investigation

C. The Charges

ARGUMENT

I. The Court Should Admit Montilla’s Own Statements and Co-Conspirator Statements

A. Applicable Law

B. Discussion

II. Evidence Concerning Montilla’s Prior Narcotics Conviction Should Be Admitted If He Testifies

A. Applicable Law

B. Discussion

III. The Court Should Impose Reasonable Limits on Cross-Examination of CW-1

A. Applicable Law

B. Discussion

IV. Evidence or Argument Concerning the Consequences the Defendant Faces if Convicted Should be Precluded

CONCLUSION

i

TABLE OF AUTHORITIES

Bourjaily v. United States, 483 U.S. 171 (1987)

Brown v. United States, 356 U.S. 148 (1958)

Delaware v. Van Arsdall, 475 U.S. 673 (1986)

Shannon v. United States, 512 U.S. 573 (1994)

United States v. Beverly, 5 F.3d 633 (2d Cir. 1993)

United States v. DiLapi, 651 F.2d 140 (2d Cir. 1981)

United States v. Dupre, 462 F.3d 137 (2d Cir. )

United States v. Estrada, 430 F.3d 606, 617 (2d Cir. 2005)

United States v. Ferguson, 758 F.2d 843 (2d Cir. 1985)

United States v. Gambino, 951 F.2d 498 (2d Cir. 1991)

United States v. Garcia, 936 F.2d 648 (2d Cir. 1991)

United States v. Harvey, 991 F.2d 981 (2d Cir. 1993)

United States v. Havens, 446 U.S. 620 (1980)

United States v. Hayes, 553 F.2d 824 (2d Cir. 1977)

United States v. Huddleston, 485 U.S. 681, 685 (1988)

United States v. Keats, 937 F.2d 58 (2d Cir. 1991)

United States v. Maldonado-Rivera, 922 F.2d 934 (2d Cir. 1990)

United States v. Marin, 669 F.2d 73 (2d Cir. 1982)

United States v. Matlock, 415 U.S. 164 (1974)

United States v. Pabon-Cruz, 391 F.3d 86 (2d Cir. 2004)

United States v. Paone, 782 F.2d 386 (2d Cir. 1986)

United States v. Payton, 159 F.3d 49 (2d Cir. 1998)

United States v. Roldan-Zapata, 916 F.2d 795 (2d Cir. 1990)

United States v. Russo, 302 F.3d 37 (2d Cir. 2002)

United States v. Sasso, 59 F.3d 341 (2d Cir. 1995)

United States v. Scarpa, 913 F.2d 993 (2d Cir. 1990)

ii

United States v. Simmons, 923 F.2d 934 (2d Cir. 1988)

United States v. Sorrentino, 72 F.3d 294 (2d Cir. 1995)

United States v. Ulloa, 942 F.Supp. 2d 202 (D.N.H. 2013)

United States v. Urena, 11 Cr. 1032 (PAE), 2014 WL 1303114 (S.D.N.Y. Apr. 1, 2014)

United States v. Vega, 589 F.2d 1147 (2d Cir. 1978)

iii PRELIMINARY STATEMENT

The Government respectfully seeks rulings in limine on certain evidentiary issues in advance of the trial currently scheduled for September 26, 2022. First, the Court should admit statements made by co-conspirators in furtherance of the scheme under Rule 801(d)(2)(E). Second, evidence of the defendant’s history of criminal conduct should be admitted for impeachment purposes, under certain circumstances. Third, the Court should preclude cross examination of CW-1 regarding an instance in which CW-1 was involved in domestic violence. Finally, the defendant should be precluded from making arguments that are not properly presented to the jury and are simply a guise for jury nullification.

BACKGROUND

A. The Robbery

Since in or about May 2019, the Drug Enforcement Administration (“DEA”), Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), and United States Postal Inspection Service (“USPIS”) have been investigating a drug trafficking organization (the “Puerto Rico DTO”) that is alleged to have shipped approximately 4,500 kilograms of cocaine from Puerto Rico into the continental United States, including certain addresses in New York, Florida, Connecticut, and Massachusetts, for subsequent distribution.

The investigation was initiated following a gunpoint robbery in the Bronx, New York on or about May 29, 2019 targeting more than approximately 150 kilograms of Puerto Rico DTO cocaine (the “Robbery”). Law enforcement responded to the scene of the Robbery and recovered, among other items, two cellphones, broken wooden tables and crates (in which the Puerto Rico DTO cocaine had been concealed and shipped), orange plastic wrapping, shipping labels, and an approximately one-kilogram brick of cocaine. The recovered shipping labels indicated that the packages concealing the tables that held the Puerto Rico DTO cocaine (the “Bronx DTO Packages”) had been shipped from a particular Puerto Rico-based sender (the “Sender”).

B. The Investigation

In or about early June 2019, law enforcement traced the Puerto Rico-based sender listed on the shipping labels (the “Sender”) and identified approximately 70 packages of similar size, weight, and description that had been sent by the Sender from Puerto Rico to the continental United States since in or about October 2018 (the “DTO Packages”)-all of which are believed to have contained cocaine.

On or about June 5, 2019, law enforcement learned that three additional packages from the Sender (the “Florida DTO Packages”) were out for delivery in Orlando, Florida. Law enforcement called the Florida DTO Packages back to the shipping facility, secured judicially authorized search warrants, and searched one of the Florida DTO Packages. In that first Florida DTO Package, law enforcement recovered a hollowed-out wooden table (of similar appearance to the wooden tables that were found destroyed in the Bronx robbery apartment) that contained approximately 65 kilograms of cocaine. Law enforcement conducted a controlled delivery of the remaining two Florida DTO Packages the following day and arrested the recipient.^[1] In total, the three Florida DTO Packages contained approximately 192 kilograms of Puerto Rico DTO cocaine.

During the investigation, law enforcement determined (through, among other connections, cellphone records, IP addresses, email accounts, and money orders paying for the shipment of DTO Packages) that the Sender was a false name that was, in fact, associated with a Puerto Rico logistics and shipping company named Back on Track Services and its principals. A superseding indictment on October 22, 2019 charged the Back on Track Services principals and the recipient of the Bronx DTO Packages with narcotics conspiracy. Several further superseding indictments have been filed in this case, bringing Robbery-related charges against two Bronx-based individuals who planned the Robbery, as well as other members of the Puerto Rico DTO.

C. The Charges

On July 8, 2021, the defendant was charged in Indictment S9 19 Cr. 536 (the “Indictment”) with conspiring to distribute and possess with intent to distribute five kilograms and more of cocaine, in violation of 21 U.S.C. § 846. The defendant was arrested on July 22, 2021 in Massachusetts, presented before this Court, and, following argument, ordered detained. The Government expects that the evidence presented at trial will establish the following facts, in substance and in part:

From at least in or about October 2018 through at least in or about June 2019, Montilla operated as a coordinator of the DTO Packages and was known among certain members of the DTO as “Coche Bomba.” In particular, Montilla traveled around the continental United States in a pattern consistent with many of the shipments of the DTO Packages and communicated with (and often traveled with) various named recipients of DTO Packages. In addition, various DTO Packages were sent to addresses associated with Montilla. For example, approximately six DTO Packages that were addressed to a “Juan Carlos Otero” were sent to the Springfield, MA address listed on Montilla’s girlfriend’s driver’s license as her home address.

Law enforcement identified a particular phone number (“Montilla Number-1”) that communicated with approximately seven phone numbers that were listed as recipient contact phone numbers on the waybills of DTO Packages that were sent to Florida and Massachusetts in or around the time that DTO Packages were sent and/or delivered. Based on subscriber records, from at least August 2016 until on or about November 23, 2019, the listed subscriber of Montilla Number-1 was “Richard Rivera,” which is a variation on Montilla’s full name (Abel Ricardo Montilla Rivera), and Montilla’s girlfriend was listed as the billing name for Montilla Number-1. On or about November 23, 2019, the listed subscriber and billing name of Montilla Number-1 were changed to “BMWF BMWL,” the listed address was changed to a certain address in New Jersey (the “New Jersey Address”), and the contact phone number for the account was changed to (123) 456-7890. Open-source information revealed that the New Jersey Address was the address of a BMW dealership; however, between at least in or about November 2019 and July 2020, call detail records reflect that the calling activity for Montilla Number-1 remained generally consistent with the prior calling activity of Montilla Number-1.

Records, including historical cellsite location records for Montilla Number-1 and airline records, reflect that between at least in or about October 2018 and June 2019, Montilla traveled to locations where DTO Packages were shipped around the dates of DTO Package deliveries. Montilla (using Montilla Number-1) also communicated directly with various DTO Package recipients. Those communications include WhatsApp messages between Montilla and a particular uncharged co-conspirator who received DTO Packages sent to Florida (“CC-1”) in furtherance of the narcotics conspiracy; for example:

■ On or about January

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