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July 12, 2005.


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


Defendant Bienvenido Mejia ("Mejia") moves to exclude at trial evidence of his attempt, on November 4, 2000, to remove approximately $71,000 from the United States without declaring it to the United States Customs Service ("U.S. Customs"). Mejia also moves to exclude the prior trial testimony of co-conspirator Victor Medina ("Medina"), who the Government asserts is unavailable to appear at Mejia's retrial. The Government opposes both motions. For the reasons stated below, the Court denies Mejia's motion to exclude evidence of his attempt to unlawfully remove currency from the United States and reserves judgment on his motion to exclude Medina's prior testimony until a time closer to the commencement of the retrial, so that the Court may consider any changed circumstances.

I. BACKGROUND convicted of this charge after a jury trial, that conviction was vacated on appeal. See United States v. Mejia, 356 F.3d 470 (2d Cir. 2004). A retrial of Mejia is scheduled to commence February 6, 2006.
  At Mejia's first trial, the Government was permitted, over defense counsel's objection, to present evidence that, on November 4, 2000, Mejia had attempted to remove approximately $71,000 in money orders from the United States without declaring that sum to U.S. Customs officials, and that he pleaded guilty in February 2001 to failing to declare the money and making materially false statements to U.S. Customs officials. The Government alleges that the $71,000 represents proceeds from the alleged illegal narcotics conspiracy and seeks to introduce it as evidence of Mejia's participation in that conspiracy.

  Also at Mejia's first trial, the Government presented testimony by Medina, who pleaded guilty to participating with Mejia in the same conspiracy. Medina testified at that trial, pursuant to a cooperation agreement with the Government, regarding his membership in a drug trafficking organization responsible for importing cocaine into the United States from the Dominican Republic, his role in extracting cocaine from the doors of shipping containers allegedly sent to Mejia, Mejia's alleged use of his produce company, Nuevo Renacer, as a front for drug trafficking, and Mejia's alleged personal supervision and knowledge of drug-related activities involving Medina and others. As explained further below, Medina now resides in the Dominican Republic and the Government's attempts to arrange for him to return to the United States to testify at Mejia's retrial have thus far been unsuccessful. For this reason, the Government seeks to introduce Medina's testimony from Mejia's first trial.



  Mejia moved at his first trial to exclude the evidence of his unlawful attempt to remove $71,000 in money orders from the United States. The Court denied the motion on the record. Although the Court affirms its prior ruling for the reasons stated on the record at the first trial (see Trial Tr. at 8-11), the Court will briefly address Mejia's current arguments in favor of preclusion.

  First, Mejia argues that the cases cited by the Government in support of admitting evidence of the existence and attempted transfer of the $71,000 are distinguishable from the instant case because they all included "proof that the defendant possessed or spent a large amount of money coupled with other evidence demonstrating that the money had no legitimate source." (Letter from Lisa Scolari to the Court in Opposition to the Admission of Mr. Mejia's Attempt to Smuggle in Excess of $71,000.00, dated June 13, 2005 ("Scolari June 13 Ltr. re. $71,000") at 1.) As Mejia acknowledges, however, the Second Circuit has also found evidence of unexplained wealth to be relevant on the grounds that "there was no affirmative evidence that the cash was derived from legitimate business." United States v. Viserto, 596 F.2d 531, 536 (2d Cir. 1979) (emphasis added).

  Moreover, the Government has submitted evidence in this case that suggests that the $71,000 did not have a legitimate source. Mejia argues that in fact he "operated a legitimate produce business that generated significant amounts of cash" (Letter from Lisa Scolari to the Court dated June 20, 2005 ("Scolari June 20 Ltr.") at 2), which renders the evidence of the $71,000 inadmissible because it indicates that those funds had a legitimate source. The Government, however, has submitted copies of bank statements for the account that Mejia maintained for his produce business, Nuevo Renacer, which support a finding that that business was not the source of the funds in question. The amount of money contained in and deposited to the Nuevo Renacer bank account during the relevant period of time, July through November 2000, was significantly less than $71,000. The monthly balance did not exceed $20,691.65 and the monthly net credits to the account did not exceed $5,808.46. (See Citibank statements, attached as Exhibit A to the Letter from Scott L. Marrah and Pablo Quiñones to the Court dated June 28, 2005 ("Marrah June 28 Ltr.").)

  In addition, two of Mejia's alleged co-conspirators testified at the first trial that, proximate to the time of Mejia's attempt to remove the $71,000 from the United States, they gave Mejia funds in excess of that sum to compensate him for his alleged participation in the drug conspiracy. (See Letter from Scott L. Marrah to the Court dated June 14, 2005 ("Marrah June 14 Ltr.") at 2 (citing Trial Tr. at 321, 533, 536).) Finally, other than his own statements that he operated a legitimate business, Mejia has not submitted any substantiating evidence to show that the funds in question derived from a lawful source. Accordingly, evidence of the $71,000 is sufficiently probative of the Government's claim that Mejia had an illegitimate source of wealth to be admissible at the retrial.

  Mejia also argues that evidence of the $71,000 should be precluded because the Government's proffered theory of its admissibility — that it is evidence of conduct in furtherance of the crime charged, rather than of "other crimes, wrongs or acts" pursuant to Federal Rule of Evidence 404(b) — does not apply. Mejia states that, at his first trial, the Government offered "no proof that [Mejia] was going to use [the money] for anything other than his own personal needs" and that "there was certainly no proof that he intended to use the money to further the drug operation." (Scolari June 13 Ltr. re. $71,000 at 2.)

  In order for Mejia's attempt to remove undeclared funds from the United States to be deemed "in furtherance of" the drug conspiracy, though, it is not necessary to show that he intended to use those funds to purchase drugs or other items related to the conspiracy. Rather, "acts or statements designed to conceal an ongoing conspiracy are in furtherance of that conspiracy." United States v. Eisen, 974 F.2d 246, 269 n. 8 (2d Cir. 1992) (citing United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1199 (2d Cir. 1989)); see also United States v. Mendoza-Medina, 346 F.3d 121, 131 (5th Cir. 2003) (statements made to conceal source of funds allegedly derived from illegal conspiracy were made in further of the conspiracy because defendant "likely made them to conceal the source of the $368,000 and assure that the conspiracy could continue."). A jury might reasonably infer from Mejia's attempt to conceal the $71,000 from U.S. Customs officials, along with evidence suggesting that those funds derived not from any legitimate business but from the drug conspiracy, that at least one of Mejia's purposes in attempting to unlawfully remove the funds was to conceal his participation in the activities that allegedly produced them. Therefore, evidence of the $71,000 is admissible as evidence of an act done in furtherance of the conspiracy.

  Mejia also argues that the fact that he sought to conceal the $71,000 is not relevant to the source of those funds. Mejia explains that "he could have had any number of reasons to conceal it." (Scolari June 13 Ltr. re. $71,000 at 3.) That a reasonable jury might draw more than one inference from an item of evidence, however, does not make that evidence inadmissible to support one among other possible conclusions. Rather, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Mejia's attempt to secretly remove undeclared cash in money orders of $71,000 from the United States has such a tendency with respect to the crime charged.

  Finally, Mejia argues that the prejudice of the proffered evidence outweighs its probity. As the Court explained at the first trial, "the probative value of the currency violation is high because a juror might infer that Mejia recently received a large cash payment and, two, that the source of the payment was illicit, and three, it might corroborate the expected testimony of Mejia's co-conspirators." (Trial Tr. at 10.) The Court found that evidence of the currency violation was not likely to result in undue prejudice because the violation "is not [so] inherently inflammatory that the jurors would decide Mejia's case on the basis of their emotions that such allegations might [incite]." (Id.) The Court further found that the currency violation is not "so similar [to the alleged narcotics violation] that jurors would confuse" the two. (Id.) In addition, as noted at the first trial, the Court may provide a limiting instruction to the jury to minimize any risk of undue prejudice ...

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