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Case 2:11-cr-00424-CLS-MHH Document 133 Filed 07/25/13 Page 1 of 24


2013 Jul-25 PM 04:16







also known as

)Case No.: 2:11-cr-0424-CLS-MHH


Comes now the United States of America by and through its counsel, Joyce

White Vance, United States Attorney for the Northern District of Alabama and

Gregory R. Dimler and William R. Chambers, Jr., Assistant United States

Attorneys, and files this Trial Memorandum to assist the Court in preparing for

trial and to identify issues that may require particular attention during the course of

the trial.


Count One of the indictment charges the defendant with conspiracy to

distribute and to possess with the intent to distribute five kilograms or more of

cocaine hydrochloride, in violation of Title 21, United States Code, Sections 846,

841(a)(1) and (b)(1)(A). The charge alleges that the conspiracy occurred from in

or about August 2011, and continued until on or about October 5, 2011. The


Case 2:11-cr-00424-CLS-MHH Document 133 Filed 07/25/13 Page 2 of 24

charge includes co-defendant DONALDO FIGUEROA CRUZ as well as alleging

that the defendant conspired with others “known and unknown to the Grand Jury.”

Stemming from events that took place on or about October 5, 2011, the

defendant is also charged with possession with the intent to distribute 500 grams or

more of cocaine hydrochloride (Count Two) and twenty-eight grams or more of

cocaine base (“crack” cocaine), 100 grams or more of heroin, and an amount of

marijuana (Count Four).

The indictment also contains a notice of the government’s intent to seek an

order of forfeiture in the form of a money judgment. In criminal forfeiture cases,

the proceedings are bifurcated, and the asset forfeiture allegation is not raised

during the guilt phase of the trial. The asset forfeiture is presented to the jury in a

separate proceeding upon a finding of guilt. Often, the parties merely argue the

asset forfeiture allegation and the Court then instructs the jury on the standard they

are to apply in determining whether there will be an order of forfeiture and, if so, in

what amount. The government anticipates that this will be the process in the case

if the defendant is found guilty, although there may be a need to call a limited

number of additional witnesses during this second proceeding.


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Summary of Facts to be Adduced at Trial

The government summarizes the anticipated evidence to be presented during

its case-in-chief as follows:

DEA agents in Austin, Texas received information from a reliable

confidential source, who had acted as a drug courier for an Austin-based drug

trafficking organization, that multiple loads of cocaine and heroin were being

delivered to the Birmingham area in several different “load” vehicles. The source

provided detailed descriptions regarding the trips, including details of who he/she

would meet with, where these meetings would take place, and the length of time

involved in the transactions. The source also gave detailed descriptions of the load

vehicles and other vehicles used by the organization. The source provided a

detailed description of a green Volkswagen Jetta that the source explained was

used by organization members to meet up with load cars. He/she also described a

gray Lexus that he/she had driven from Austin to Birmingham. The source

explained that he/she was in this vehicle when pulled over by the Texas

Department of Public Safety for which he/she received a citation. Based upon this

information, DEA agents found a record of the stop, confirming the information

provided by the source. Through these records, they learned the tag number of the



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Austin DEA agents passed the information provided by the CS to allow

Birmingham agents to locate the vehicle. The green Jetta was found several days

later. On September 20, 2011, while the Jetta was parked in a public parking lot

for an apartment complex, DEA agents placed a self-powered GPS tracking device

on the undercarriage of the Jetta.

Over the course of several days, agents followed the Jetta using the GPS

device and actual physical surveillance. On October 4, 2011, after monitoring the

GPS device, DEA agents located the Jetta (unoccupied at the time) in a Wal-Mart

parking lot in Homewood, Alabama. During physical surveillance at the Wal-

Mart, agents saw, for the first time, a heavy-set Hispanic male, who they later

learned was co-defendant Donaldo Figueroa Cruz. Agents followed Figueroa

throughout the store and watched as he purchased multiple boxes of Food Saver

vacuum seal bags. This heightened the agents suspicion since Food Saver vacuum

sealers are a commonly used drug and currency packaging mechanism. Agents

followed Figueroa as he left the Wal-Mart, got into the Jetta, and drove to an Auto

Zone store in Hoover, Alabama. He was later followed to a Habanero’s restaurant,

and ultimately, the same apartment complex in Hoover, Alabama, where the GPS

was originally installed, and where agents later learned Figueroa was living.


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The next day, while monitoring the GPS device, DEA agents learned that the

Jetta had moved to the Howard Johnson hotel on Oxmoor Road in Homewood.

Agents traveled to the hotel where they saw the green Jetta parked outside of a

room. They also saw a 2001 gray Lexus parked outside the hotel room. This

Lexus matched the description and had the same tag number as the “load” vehicle

identified by the source in Austin, Texas. Later, agents saw Figueroa – whose

identity was not yet confirmed – leave the hotel and travel to the same apartment

building where he was staying in Hoover. After a short time, agents saw Figueroa

leave the apartment building with a box full of supplies and return to the Howard

Johnson hotel and enter the hotel room. Shortly thereafter, Figueroa left in the

gray Lexus. Two Hispanic males – who were unidentified at the time – were seen

leaving the hotel and getting into the green Jetta. The men were followed to a local

restaurant after which surveillance on the Jetta ended.

DEA agents followed Figueroa, who was driving the same grey Lexus that

had been identified earlier in the investigation as possible drug “load” vehicle, to a

home located at 1156 Skyline Drive in Birmingham, Alabama. Figueroa arrived at

the home and parked in front of the garage. Due to difficulty in maintaining

physical surveillance, agents were not able to sit directly in front of the home

without being spotted. During one of several drive-by surveillance efforts, agents


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saw that the Lexus was no longer in front of the garage. Since all avenues of

ingress and egress from the home were under constant surveillance and agents had

not seen the Lexus depart, agents concluded that the car had been pulled into the

garage. Agents watched the house for hours; they saw numerous individuals and

vehicles come and go. At one point, agents observed a white Toyota FJ Cruiser

arrive at the home. One of the agents identified an occupant of the vehicle to be

James Harris. A traffic stop was performed on Harris and he was positively

identified. Surveillance was maintained on Harris as agents watched him switch

vehicles, get into a tan Chevrolet Avalanche and head back to 1156 Skyline Drive.

Another vehicle that arrived at 1156 Skyline Drive was a black Jeep that was

later determined to be driven by the defendant Artavis McGowan. Later, he was

seen leaving the house in a black Jeep with two black males.

Believing that drug evidence was likely inside the home, agents feared that

the black Jeep might contain drugs. Accordingly, DEA agents on the scene

directed Jefferson County Sheriff’s Deputy Michael Schuelly to attempt to perform

a traffic stop on the vehicle to identify its occupants. In accordance with the orders

he had been given, Deputy Schuelly clocked the vehicle as it passed his location.

The Deputy estimated the car was traveling at 15 miles per hour over the posted

speed limit. After pulling out, Deputy Schuelly found the Jeep, which was being


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tailed by a DEA agent, and after passing several cars, got behind the Jeep. While

Deputy Schuelly was tailing the car, he clocked its rate of travel at over 50 miles

per hour in a 35 mile per hour zone. Accordingly, he initiated lights and sirens

pulling the vehicle over.

Upon approaching the passenger window of the vehicle, Deputy Schuelly

smelled a strong odor of raw marijuana. As part of the traffic stop, he asked for

identification from each of its three occupants. The driver was identified as

Artavis Desmond McGowan. One of the other two men identified himself as

Traniel Golden. The other man, later identified as Biniam Ashgedom, provided a

fictitious name. A records check on Traniel Golden caused deputies to suspect that

his actual name was Traniel Clark, which was confirmed by one of the vehicles


While deputies were still working to confirm the identity of Traniel Clark,

Deputy Schuelly asked Artavis McGowan to exit the vehicle and speak with him.

The conversation that ensued, which was captured on Deputy Schuelly’s patrol car

video, clearly shows McGowan offering to allow deputies to search the vehicle.

Initially, Deputy Schuelly does not take McGowan up on the offer, however,

several minutes later, after speaking with DEA agents, Deputy Schuelly advises

McGowan that he would like to search the Jeep, to which McGowan responds, “no


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problem.” Additionally, the video makes clear that McGowan was not in custody

at the time, with Deputy Schuelly telling him there is no need to put his hands on

the car and be searched.

While the traffic stop was underway, agents with the DEA were preparing a

State of Alabama search warrant to be presented to a Jefferson County Circuit

Court Judge. Agents at the scene of the search were radioing information to agents

preparing the warrant. At a point at which it appeared that there was no additional

reason to continue the traffic stop, Special Agent Sean Stephen with the DEA gave

the order to enter the home on Skyline Drive and secure the residence to ensure

that its occupants were not tipped off regarding the stop of McGowan by law

enforcement, which might lead to flight or to the destruction of evidence.

Accordingly, agents entered the home and secured its only occupant, Donaldo

Figueroa, who was found in the basement of the home where the garage is located

in the process of concealing $110,000 in cash in a hidden compartment of the

Lexus. Figueroa had just unpacked approximately 5 kilos of cocaine from the

same compartment where agents could see it in plain view on the kitchen counter.

Figueroa was placed under arrest and the scene was secured while agents waited on

the search warrant to be signed by the Judge.


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After obtaining consent from McGowan, the Jeep was searched. The search

resulted in the recovery of a Food Saver box and over $4,000 in cash. A large

bundle of cash was found in the center console of the vehicle. A black briefcase in

the back seat contained more cash, and the vehicles occupants together had nearly

$9,000 on their person. This information was relayed to TFA Gentry, who added a

paragraph to that effect to the search warrant.

Thereafter, agents at the house radioed the scene of the traffic stop advising

that large amounts of cocaine were seen at the home. Accordingly, McGowan and

his companions were detained and brought back to the house.

DEA agents commenced the search of the house when TFA Gentry notified

them that the search warrant had been signed. Upon executing the search warrant,

in the garage of the home, agents discovered the grey Lexus that Figueroa had

driven there earlier that day. The rear bumper of the Lexus was removed exposing

two compartments where narcotics and money could be secreted. On the passenger

seat of the car agents found four bundles wrapped in black electrical tape that were

later discovered to each contain more than $10,000 of U.S. currency. From a

counter top in the basement kitchen of the home, near where Figueroa was

apprehended, agents seized six compressed bricks of suspected powder cocaine.

From a white garbage bag on the kitchen floor, agents recovered several Food


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Saver vacuum seal shrink bags wrapped in black electrical tape and forty-six

kilogram sized cocaine wrappers.1 From the kitchen area of the basement, agents

also recovered approximately 613 grams of suspected heroin and 170 grams of

suspected cocaine base.

Agents also discovered a bedroom in the basement. While searching the top

drawer of a dresser in the bedroom, agents found documents and photos associated

with Artavis McGowen, including greeting cards addressed to him. In the

basement bedroom closet, agents found a black bag containing four bags of

marijuana. Further into the closet, and behind a sheet rock wall, agents recovered a

black backpack containing money packaged in ziplock bags. And at the foot of the

bed, agents found a white bucket with a large sum of cash inside.

Agents also searched the upstairs area of the home, which contained a

bedroom and kitchen, among other areas. From the upstairs bedroom dresser

chest, agents seized an amount of U.S. currency, the driver’s license of Anthony

McGowan, and a loaded Taurus 9mm pistol with one round in the chamber. Near

the bed, agents discovered a safe which contained additional cash. From the

upstairs kitchen area, agents seized a bag containing marijuana. From the white

Acura, registered in the name of Anthony McGowan, which was parked in front of

1Agents later performed chemical testing on the kilogram sized wrappers confirming the
presence of cocaine residue.


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the home, agents recovered the lease agreement for 1156 Skyline Drive. The lease

was in the name of his girlfriend, Princess Quintella Floyd, who was also at the

house that day.

Throughout the house, agents recovered other amounts of drugs, as well as

digital scales and other items of drug paraphernalia, including a Food Saver

vacuum seal machine and a money counting machine. From the house, agents

recovered a total of $341,679.

The drugs recovered from the house that day were submitted to the DEA

laboratory for testing. The suspected powder cocaine recovered from basement

kitchen counter was confirmed to be cocaine hydrochloride with a net weight of

4,371 grams. Also from the basement, inside a small black box, agents recovered

another smaller quantity of cocaine hydrochloride with a net weight of 23.5 grams

and a small quantity of marijuana. The suspected heroin seized from a kitchen

cabinet in the basement kitchen was confirmed to be heroin with net weights of 55

and 68.8 grams. From the basement kitchen freezer, agents recovered suspected

ecstasy pills, heroin, and “crack” cocaine. The substances were confirmed to be

ecstasy, heroin (with a net weight of 368.2 grams), and cocaine base (with a net

weight of 115.2 grams). The large amount of marijuana seized from the basement


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bedroom, where Artavis McGowan resided, was confirmed to be marijuana with a

net weight of 905.3 grams.

Evidentiary and Other Issues


the government cannot anticipate all of

the evidentiary,

procedural, and housekeeping issues which may arise during the course of the trial

or all of the objections which may be raised by the defendant, the government

hereinafter discusses, with reference to appropriate authority, some of the issues

which it does anticipate may require particular rulings by the Court or generally

require the Court’s attention.

1. Apprendi and Alleyne

The United States Supreme in Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348 (2000) held that any factor which increases the penalty for a crime

beyond the prescribed statutory maximum penalty must be submitted to a jury and

established with proof beyond a reasonable doubt. In Counts One, Two and Four,

the defendant is charged with offenses that includes a factor which increases the

statutory maximum sentence. The amount of drugs also increases the defendant’s

statutory minimum sentence, a factor which must be proven to the jury beyond a

reasonable doubt. Alleyne v. United States, 133 S. Ct. 2151 (2013). The

Government must prove beyond a reasonable doubt that the defendant conspired to


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distribute and possess with the intent to distribute cocaine hydrochloride.

Additionally, Apprendi and Alleyne require that the Government also prove to the

jury beyond a reasonable doubt that the conspiracy involved over five kilograms of

cocaine hydrochloride in order to establish the charged penalty section,

841(b)(1)(A). In a similar manner, the jury will have to use a special verdict form

on Counts Two and Four.

Therefore, the jury will have to find and indicate with a special verdict form

the amounts of cocaine hydrochloride, cocaine base, and heroin to be attributed to

the defendant.

2. Co-conspirator Statements

The government anticipates that the evidence at trial will include up to three

witnesses who are unindicted co-conspirators in the case who will testify regarding

their knowledge of the events surrounding a conspiracy that involved the two

defendants charged in this case, an unindicted co-conspirator whose identity is

known to the United States (J.H.), and others. This evidence will include

statements made to these witnesses by McGowan, J.H., and others. These

statements were made in furtherance of an ongoing conspiracy involving

McGowan, J.H., and others. Some of these statements were made after the events

of October 5, 2011. The evidence will show that despite McGowan’s arrest on


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state charges stemming from the events of October 5, 2011, and his ultimate

indictment in this case, his involvement in the conspiracy with J.H. and others

continued. These statements made by McGowan and J.H. are admissible as non-

hearsay under Federal Rule of Evidence 801(d)(2)(E).

In order for one conspirator’s statement to be admissible against other

conspirators, the Court must find (1) that a conspiracy existed, (2) that the

declarant was a member of the conspiracy, (3) that the defendant was a member of

the conspiracy, (4) that the statement was made in furtherance of the conspiracy,

and (5) that the statement was made during the course of the conspiracy. Bourjaily

v. United States, 483 U.S. 171 (1987). In considering the admissibility of such

statements, the Court may consider, among other things, the statement itself.

Bourjaily, 483 U.S. at 180-181. Furthermore, once the Court is satisfied that such

a statement is admissible as a co-conspirator’s statement, the Court need not

address Confrontation Clause issues. Bourjaily, 483 U.S. at 181-183. See also

United States v. Lampley, 68 F.3d 1296 (11th Cir. 1995) (co-conspirator statements

admissible against defendant who joined conspiracy after statements were made)

and United States v. Archbold-Newball, 554 F.2d 665 (5th Cir. 1977).

Although the witnesses the Government expects to call were also co-

conspirators at the time the statements were made, there is no requirement that the


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statement be made to a co-conspirator. The Eleventh Circuit addressed this issue

in United States v. Thompson, 976 F.2d 666 (11th Cir. 1992), rejecting the notion

that Rule 801(d)(2)(E) required that a statement be made by a co-conspirator to a

co-conspirator to qualify for admission under the rule, the Court stated:

For a coconspirator’s statement to be admissible
under Rule 801(d)(2)(E), it need not be made by a
coconspirator to a coconspirator. Rather, a conspiracy
must have existed involving the declarant and the
defendant, and the statement must have been made
‘during the course and in furtherance of the

Thompson, 976 F.2d at 670, quoting, Fed.R.Evid. 801(d)(2)(E). See also United

States v. Williamson, 53 F.3d 1500, 1519 (10th Cir. 1995) (801(d)(2)(E) does not

“embody” a requirement that a statement be made by co-conspirator to co-

conspirator to qualify) and United States v. Molina, 75 F.3d 600 (10th Cir. 1996).

In addition, the fact that McGowan was arrested on state charges on October

5, 2011, did not terminate his membership in the conspiracy, nor did the

conspiracy as a whole end. Indeed, the evidence at trial will show that the

conspiracy continued, its purpose still in full effect and its goals continuing to be

met. A co-conspirator’s arrest does not in itself terminate a conspiracy as a matter

of law, for the conspirators may remain fully capable of carrying out their purpose,

notwithstanding the arrest of one of their cohorts. United States v. Richardson,


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532 F.3d 1279, 1286 (11th Cir. 2008); United States v. Grubb, 527 F.2d 1107,

1109 (4th Cir. 1975); United States v. Thompson, 476 F.2d 1196, 1200-01 (7th

Cir.), cert. denied, 414 U.S. 918, 94 S.Ct. 214, 38 L.Ed.2d 154 (1973); United

States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir. 1991) (“[N]either arrest nor

incarceration automatically triggers withdrawal from a conspiracy.”). In United

States v. Casamayor, 837 F.2d 1509, 1513 (11th Cir. 1998), the Court held,

the taped statements of some of the co-defendants,
obtained with a body bug on a co-conspirator who began
to cooperate with the Government, were admissible as
statements made in furtherance of the conspiracy, even
though some co-conspirators had been arrested. The
district court correctly found that this was an on-going
conspiracy which did not end upon the arrest of some of
the co-conspirators. See United States v. Papia, 560 F.2d
827, 835-37 (7th Cir. 1977).

Among the statements that the Government expects the co-conspirators to

testify to, which were made by McGowan and J.H., detail their efforts to conceal or

“cover up” the events that took place on October 5, 2011, at 1156 Skyline Drive.

These statements are admissible as statements by a co-conspirator made in

furtherance of the conspiracy. See United States v. Del Valle, 587 F.2d 699 (5th

Cir.), cert. denied, 442 U.S. 909, 99 S.Ct. 2822 (1979)(concealment is sometimes a

necessary part of a conspiracy, so that statements made solely to aid concealment

are in fact made during and in furtherance of the charged conspiracy). Such a


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statement need not be necessary to the conspiracy, it must only further the

conspiracy. See United States v. Caraza, 843 F.2d 432 (11th Cir. 1988). A

“liberal standard” is applied in determining whether a statement is made in

furtherance of a conspiracy. United States v. Miles, 290 F.3d 1341, 1351 (11th Cir.

2002). Statements alerting co-conspirators of police activity in hopes of

continuing or salvaging the conspiracy are widely recognized as statements in

furtherance of a conspiracy. United States v. Carmichael, 379 F.Supp.2d 1299,

1302 (M.D.Ala. 2005)(statements to perpetuate conspiracy by warning of police

raid admissible as statement of co-conspirator); United States v. Quinones-Cedeno,

51 Fed.Appx. 558, 559 (6th Cir.2002) (anonymous note to assist co-conspirator in

avoiding detection and warning of law enforcement activity admissible under Rule

801(d)(2)(E)); United States v. Skidmore, 254 F.3d 635, 638 (7th Cir.2001)

(statements to control damage to or detection of the conspiracy are in furtherance);

United States v. Jackson, 67 F.3d 1359, 1364 (8th Cir.1995) (statements

concerning efforts to avoid police detection of conspiracy admissible pursuant to

Rule 801(d)(2)(E) because they “were made pursuant to an attempt to keep the

conspiracy going”); United States v. Garcia, 893 F.2d 188, 190 (8th Cir.1990)

(statements made in effort to delay or prevent coconspirator’s arrest were made “in

furtherance” of conspiracy).


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3. Inextricably Intertwined Evidence

During the trial, the government will introduce evidence of the defendant’s

involvement in trafficking cocaine, cocaine base and heroin. The conspiracy that

existed in this case involved the trafficking of all three substances, although the

conspiracy alleged in Count One charges only cocaine hydrochloride. Since

quantities of cocaine base, heroin and marijuana were all found in the basement

area of 1156 Skyline Drive, evidence regarding trafficking in these substances is

highly relevant to Counts Two and Four and otherwise admissible under Count

One as direct and circumstantial evidence of the defendant’s involvement in the

charged offenses. To the extent that any of this evidence is challenged, the

government also submits that the evidence is intrinsic evidence as well.

[e]vidence of criminal activity other than the charged offense is not
extrinsic under Rule 404(b) if it is (1) an uncharged offense which
arose out of the same transaction or series of transactions as the
charged offense, (2) necessary to complete the story of the crime, or
(3) inextricably intertwined with the evidence regarding the charged

United States v. Ramsdale, 61 F.3d 825, 829 (11th Cir.1995).

“Evidence, not part of the crime charged but pertaining to the chain of
events explaining the context, motive and set-up of the crime, is
properly admitted if linked in time and circumstances with the
charged crime, or forms an integral and natural part of an account of


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the crime, or is necessary to complete the story of the crime for the
jury.” United States v. Williford, 764 F.2d 1493, 1499 (11th Cir.1985).

United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998).

The government submits that all of the above-described evidence is properly

admissible under this standard as inextricably intertwined or intrinsic evidence.

4. Chain of Custody

To avoid unnecessary delay and reduce the number of chain of custody

witnesses, the United States does not anticipate calling every witness included in

the chain of custody with each item of evidence. The witnesses who will testify in

the government's case-in-chief regarding the recovery of evidence will be able to

testify as to the chain of custody. The United States would note, however, that any

breaks in the chain of custody merely go to the weight of the evidence rather than

to its admissibility. See United States v. Roberson, 897 F.2d 1092 (11th Cir. 1990)

and United States v. Lopez, 758 F.2d 1517, 1521 (11th Cir.1985), cert. denied, 474

U.S. 1054, 106 S.Ct. 789 (1986).


Summary and Pedagogical Devices

The Government’s intends to offer a summary exhibit in the form of

diagram of telephone contacts between McGowan, Jose Tavera Ugarte (the

organization’s source of supply), another co-conspirator, and Figueroa. This


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exhibit will be based upon four sets of telephone records. The summary exhibit

was created to assist the jury in reviewing the hundreds of pages of telephone

records that include thousands of telephone contacts that would not be relevant to

their determination in this case. The jury could, of course, review the telephone

records which will have been admitted in the case should the defense choose to

challenge the accuracy of the summary exhibit.

Federal Rule of Evidence 611(a) permits the use of charts and diagrams as

summary evidence. The proponent of the Rule 611(a) chart can use reasonable

assumptions or conclusions in creating it. See United States v. Richardson, 233

F.3d 1285, 1293-94 (11th Cir. 2000)(headings reflecting expert's opinions on

summary charts permitted); United States v. Johnson, 54 F.3d at 1157-59

(organizational chart summarizing witness testimony in light most favorable to

government permissible where jury properly instructed and chart maker subject to

cross examination); United States v. Norton, 867 F.2d 1354, 362-63 (11th Cir.

1989) (“the essential requirement is not that [summary] charts be free from reliance

on any assumptions, but that these assumptions be supported by the evidence in the

record”); United States v. Stephens, 779 F.2d 232, 238-39 (5th Cir. 1985) (use of

characterizations in chart permissible if jury properly instructed); United States v.

Bertoli, 854 F.Supp. at 1056 (assumptions in chart allowed where supported by


Case 2:11-cr-00424-CLS-MHH Document 133 Filed 07/25/13 Page 21 of 24

underlying evidence); see also United States v. Diez, 515 F.2d 892, 905 (5th Cir.

1975) (use of descriptive headings in chart). There is also no requirement that the

summary exhibit contain the defendant’s version or theory. See United States v.

Radseck, 718 F.2d at 239; United States v. Ambrosiani, 610 F.2d 658 n.2 (1st Cir.


There is a danger that assumptions or conclusions implicit in a Rule 611(a)

demonstrative exhibit will cause the exhibit to be impermissibly argumentative,

misleading, or otherwise unfair. If assumptions or conclusions are important to the

understanding of the exhibit, it is imperative that the exhibit preparer be made

available for cross examination. See, e.g., United States v. Salerno, 108 F.3d 730,

745 (7th Cir. 1997); United States v. Paulino, 935 F.2d at 753; United States v.

Radseck, 718 F.2d at 239. See also United States v. Drougas, 748 F.2d at 25-26

(summary chart admissible after argumentative entries deleted).

With such an instruction, such summary evidence is not only permissible,

but also will facilitate the jury’s work in this case.


Forfeiture Principles

If the defendant is convicted during the guilt-innocence portion of this case,

the Court must move “[a]s soon as practicable . . . to determine what property is

subject to forfeiture under the applicable statute.” Fed. R. Crim. P. 32.2(b)(1).


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“Upon a party’s request in a case” where the finding of guilty is made by a jury,

“the jury must determine whether the government has established the requisite

nexus between the property and the offense committed by the defendant.” Fed. R.

Crim. P. 32.2(b)(4).

In deciding forfeiture issues, the jury or the judge can rely both on evidence

presented during the guilt-innocence phase and any additional evidence presented

during the forfeiture phase. See Fed. R. Crim P. 32.2(b)(1).

The standard of proof during the forfeiture phase is preponderance of the

evidence because “forfeiture is part of sentencing and not an element of the

offense.” Moreover, “[b]ecause forfeiture is a punishment and not an element of

the offense, it does not fall within the reach of Apprendi.” United States v. Cabeza,

258 F.3d 1256, 1257 (11th Cir. 2001). Thus, the Eleventh Circuit’s pre-Apprendi

decisions “on the burden of proof in such proceedings remain good law.” Id. at



Spanish speaking witnesses

The Government expects to call one or more witnesses whose native

language is Spanish. While these witnesses speak some English, their ability to

speak English is limited, they speak with thick accents that makes them hard to

understand at times, and are more comfortable and conversant in Spanish. Due to


Case 2:11-cr-00424-CLS-MHH Document 133 Filed 07/25/13 Page 23 of 24

this potential barrier, the United States has secured the services of Ms. Heather L.

Hayes, a Certified Federal Court Interpreter and a Certified Interpreter in the State

of Alabama, to interpret for these witnesses on direct and during any cross

examination. Ms. Hayes frequently acts as an interpreter for this Court at trials and

preliminary hearings. The United States respectfully submits that the use of Ms.

Hayes as an interpreter for these witnesses will substantially aid the jury in

receiving and understanding their testimony.

Exhibit List

The government has provided opposing counsel with a list of proposed

exhibits under separate cover. The government will provide the Court with a list of

exhibits under separate cover as well.

Respectfully submitted on this the 25th day of July, 2013.

United States Attorney

/s/ Gregory R. Dimler
Assistant United States Attorney

/s/ William R. Chambers, Jr.
Assistant United States Attorney


Case 2:11-cr-00424-CLS-MHH Document 133 Filed 07/25/13 Page 24 of 24


I hereby certify that on the 25th day of July, 2013, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system which will send

notification of such filing to the following:

Mr. James W. Parkman, III
Mr. Clayton R. Tartt
Mr. Justin M. Taylor
Mr. William C. White, II
1929 3rd Avenue North, Ste. 700
Birmingham, Alabama 35203

Respectfully submitted,

//s// Gregory R. Dimler
Assistant United States Attorney