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U.S. v. ZAPATA

February 8, 2005.

UNITED STATES
v.
INGRID ZAPATA, Defendant.



The opinion of the court was delivered by: VICTOR MARRERO, District Judge

DECISION AND ORDER

The United States Attorney's Office for the Southern District of New York (the "Government") filed a motion in limine by letter dated January 21, 2005 to preclude the admission of a post-arrest statement made by Fabian Londono ("Londono"), an alleged co-conspirator of the defendant, Ingrid Zapata ("Zapata"). Zapata replied to the Government's motion by letter dated February 2, 2005 arguing that the statement was admissible under general principles of a defendant's right to a fair trial and Federal Rule of Evidence 807, the residual hearsay exception.

Zapata filed a motion in limine by letter dated January 28, 2005 seeking to prevent the Government from admitting into evidence certain records of a Western Union wire transfer. The Government responded to Zapata's motion by letters dated February 2, 2005 and February 4, 2005 asserting the admissibility of the documents under Federal Rule of Evidence 803(6), the so-called business records exception to the hearsay rule. The Court heard oral argument on the matter of the admissibility of the Western Union records on Page 2 February 4, 2005. For the reasons set forth in the statement made by the Court on the record at the February 4, 2005 Hearing, and prior to the commencement of the trial on February 7, 2005, as further elaborated upon in the Statement of the Court which is attached hereto and incorporated herein, the Court grants the Government's motion to preclude the post-arrest statement of Londono and grants in part and denies in part Zapata's motion to prevent the admission of the Western Union records. Accordingly, it is hereby

  ORDERED that the motion of the United States Attorney's Office for the Southern District of New York (the "Government") to preclude the admission by defendant Ingrid Zapata ("Zapata") of the post-arrest statement of Fabian Londono is GRANTED; and it is further

  ORDERED that the motion of Zapata to prevent the Government from admitting into evidence certain Western Union records is GRANTED IN PART, and is DENIED IN PART, in that the Western Union records may be admitted as non-hearsay, subject to a limiting instruction, not for the truth of the matters stated therein linking the wire transfer to defendant Ingrid Zapata, but rather for the limited purpose of showing that the recorded transaction occurred, and that it involved a person identified on the document as "Ingrid Zapata." Page 3

  SO ORDERED. Page 4

  Statement of the Court Regarding Motions In Limine

  February 4 and February 7, 2005

  VICTOR MARRERO, United States District Judge.

  The Court has received two in limine motions in the matter of United States v. Zapata. The first motion, brought by the United States Attorney's Office for the Southern District of New York (the "Government"), seeks to preclude the admission of a certain post-arrest statement made by an alleged co-conspirator of the defendant, Ingrid Zapata ("Zapata"). The second motion, brought by Zapata, seeks to prevent the admission of Western Union wire transfer documents. The first motion should be granted, as the post-arrest statements are inadmissible hearsay. The second motion should be granted in part, as the Western Union documents are admissible as non-hearsay, subject to a limiting instruction, for the limited purpose of showing that the alleged Western Union wire transfer took place and that it was made by an individual claiming to be "Ingrid Zapata."

  I. STATEMENT OF FACTS

  Zapata is charged with conspiring to distribute and possess with intent to distribute certain quantities of heroin. Her alleged role in the conspiracy was to transfer money for a drug transaction by (1) sending about $1,000 by wire transfer to Miami and (2) flying approximately $16,500 to Miami with her cousin, Page 5 Carolina Rios ("Rios") who was also a co-conspirator.

  When one of Zapata's alleged co-conspirators was arrested, he explained that he was involved in a narcotics transaction, but disclaimed any involvement by Zapata and Rios in the conspiracy. Zapata seeks to admit this statement under general principles governing a defendant's right to a fair trial and Federal Rule of Evidence 807, the so-called residual exception. Zapata has also indicated that she subpoenaed the co-conspirator who made the statement, Fabian Londono ("Londono"), and that he will testify at trial and be subject to cross-examination.

  The Western Union records that the Government seeks to admit purport to show that an individual identified in a Western Union central document as "Ingrid Zapata" sent a wire transfer from Corona, New York on November 26, 2002 to "Pedro Duran" in "Any Where," Florida. The records that the Government seeks to admit are not the actual Western Union forms that it alleges Zapata filled out, but rather consist of a composite record created from the central Western Union computer system and copies of the front and back of the cancelled Western Union check issued in the alleged transaction made from "Ingrid Zapata" to "Pedro Duran" (the "Western Union evidence").*fn1 The Government will seek to admit the records through the testimony of a records custodian from the Page 6 Western Union headquarters. This custodian was not present when Zapata allegedly filled out ...


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