UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 22-20423-CR-SCOLA/GOODMAN

UNITED STATES OF AMERICA, 

Plaintiff,

v. 

NEPMAR JESUS ESCALONA, 

Defendant.

_____________________________/ 

ORDER DENYING DEFENDANT’S MOTION IN LIMINE

Nepmar Jesus Escalona (“Escalona” or “Defendant”) is charged by indictment 

with one count of conspiracy to launder monetary instruments, in violation of Title 18, 

United States Code, Section 1956(h). [ECF No. 10]. The conspiracy charged in the 

Indictment spans “[f]rom in and around January 2010, through on or about September 

18, 2017.” Id. at 1. The Government describes “the crux of the charged scheme” as “an 

agreement by [ ] [D]efendant and at least six government witnesses to fraudulently obtain 

permits from the Venezuelan government to wire transfer over $116 million to the United 

States, Switzerland, and Hong Kong under the guise of being payments for food imports 

to Venezuela that in reality, rarely took place.” [ECF No. 36, p. 2]. 

The Government intends to “introduce evidence at trial demonstrating that [ ] 

[D]efendant had accepted bribes from co-conspirators for approximately ten years prior 

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to the charged conspiracy” and “evidence . . . that . . . [D]efendant committed separate, 

uncharged acts of fraud and money laundering during and after the conspiracy period.” 

Id. at 1. The Government filed a “notice of its intent, pursuant to Federal Rule of Evidence 

404(b) and Local Rule 88.10(h), to introduce evidence of other crimes, wrongs, or acts by 

[ ] [D]efendant that are [purportedly] relevant in this case as proof of motive, opportunity, 

intent, plan, knowledge, identity, absence of mistake or lack of accident[.]” Id.

Escalona filed the instant motion in limine, seeking to exclude evidence of 

approximately ten years of uncharged conduct (i.e., evidence offered under Federal Rule 

of Evidence 404(b)). [ECF No. 38].

United States District Judge Robert N. Scola, Jr. referred the instant motion to the 

Undersigned. [ECF No. 41]. The Undersigned held a hearing on April 11, 2023 and the 

parties filed post-hearing legal memoranda. [ECF Nos. 50–51].

For the reasons outlined below, the Undersigned denies Defendant’s motion. 

However, these rulings are not automatically binding on Judge Scola, who, as the trial 

judge, has the discretion to rule differently, especially if the evidence presented at trial 

appears to be different from the manner in which the parties have portrayed it here.

Moreover, although the Undersigned is denying the motion, this Order also 

provides some potential relief concerning the United States’ Brady1 obligations. More on 

that later.

1 Brady v. Maryland, 373 U.S. 83 (1963).

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I. Evidence of Uncharged Criminal Conduct

The Government intends to introduce “evidence that prior to the conspiracy’s 

commencement in and around January of 2010, [ ] [Escalona] had already been organizing 

and receiving bribes from Co-conspirators # 1 and # 2 and others in exchange for 

facilitating the smuggling of untaxed goods into and around Venezuela.” [ECF No. 36, p. 

3]. Specifically, the United States intends to offer evidence that: (1) “for approximately 

ten years immediately prior to the conspiracy, [ ] Co-conspirators # 1 and # 2 [ ] paid and 

relied upon [ ] [D]efendant to arrange for textile goods to move via truck, train, and air 

transportation without proper customs and other government inspection”; (2) “that 

payments were often delivered to [ ] [D]efendant and his associates in person and in 

cash”; and (3) that Defendant’s family “commit[ed] bank fraud, wire fraud, and money 

laundering” in order “to move, conceal, and spend the proceeds of the charged money 

laundering conspiracy” by “transfer[ring] of millions of dollars to bank accounts in 

Switzerland and the United States, as well as . . . purchas[ing] [ ]real estate in the Southern 

District of Florida.” Id. at 4.

In its post-hearing memorandum [ECF No. 50], the Government provided 

additional details about the evidence it intends to introduce at trial:

The Government asserts that Co-conspirator # 1, Co-conspirator # 2, and Coconspirator # 3 “will testify about their initial introduction to [Escalona] and the 

development of their corrupt business relationships.” Id. at 1.

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Co-conspirator # 2 will testify about his business in Venezuela, that in 

approximately 2002, Escalona used his position as a Venezuelan public official to seize a 

shipping container intended for Co-conspirator # 2’s business, that Co-conspirator # 2

made a cash payment to Escalona in exchange for the release of the goods in the shipping 

container, and that Co-conspirator # 2 continued to make payments to Escalona to ensure 

the delivery of subsequent shipments. Id. at 2. Co-conspirator # 2 will also testify about

“[D]efendant [becoming] an investor and partner in Co-conspirator #2’s shipments in lieu 

of receiving bribes” and how “[D]efendant protected the goods from being inspected by 

other [Venezuelan] government officials while no proper taxes or levies were paid on the 

goods” and “split the illicit profits evenly from these imports.” Id. at 2-3.

Co-conspirator # 1 will testify that in or about 2005, Co-conspirator # 2 introduced 

Escalona to him/her “as someone in the National Guard who would accept, and had 

already accepted, bribes in exchange for helping to import and protect goods.” Id. at 3.2

The Government intends to introduce this testimony and other evidence to show 

“that three of the conspirators came to know [ ] [D]efendant through [ ] [D]efendant’s 

abuse of authority as a member of the Venezuelan National Guard.” Id. at 4.

2 The Government’s post-hearing memorandum also discusses Co-conspirator # 3’s

anticipated testimony, which concerns events occurring in approximately 2012, during

the period charged in the Indictment. [ECF No. 50, p. 3].

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II. The Parties’ Contentions

The Government’s position is that this evidence is “‘inextricably intertwined’

intrinsic evidence that is relevant to the determination of [ ] [D]efendant’s participation 

in the charged conspiracy.” [ECF No. 36 at 3 n.1]. It argues that this “evidence is relevant 

to the charged scheme and should be allowed at trial because it completes the picture of 

how the conspiracy began.” [ECF No. 50, p. 4].

Alternatively, and “in an abundance of caution,” the Government asserts that this 

evidence “could [also] be admitted” under the exceptions listed in Rule 404(b) “as 

extrinsic acts of wrongdoing” to “illustrate proof of motive, opportunity, intent, plan, 

knowledge, identity, absence of mistake, and lack of accident.” [ECF No. 36 at 3 n.1].

In his post-hearing memoranda, Escalona argues that neither he nor the Court has 

“received proper 404(b) notice.” [ECF No. 51, p. 4]. He notes that a local rule in another 

district (the Southern District of Georgia) requires the Government to provide “written 

notice of any direct or circumstantial evidence of other crimes, wrongs, or acts of the

defendant” no later than 20 days after the arraignment. Id. at 3 (citing L.R. S.D. Ga. 16.2).

Escalona also takes issue with the lack of detail provided by the Government.

He notes that, in the instant case, the Government filed its notice of intent almost 

six months after the Indictment and did not discuss “specific instances of conduct” until 

the April 11, 2023 hearing. Id. at 4. Escalona also argues that “[i]t is unrealistic, and unfair 

to the defense investigation or preparation, to allow introduction of material that it [sic] 

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not detailed in date or action.” Id. at 5. 

III. Analysis

The Eleventh Circuit has explained that: 

evidence of criminal activity other than the charged offense is not 

“extrinsic” under Rule 404(b), and thus falls outside the scope of the Rule, 

when 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 offense.” United States v. Baker, 432 F.3d 

1189, 1205 n. 9 (11th Cir. 2005) (quoting United States v. Veltmann, 6 F.3d 

1483, 1498 (11th Cir. 1993)). “Evidence, not part of the crime charged but 

pertaining to the chain of events explaining the context, motive[,] and setup 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 the crime, or is necessary to complete the story of the crime for 

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

evidence is inextricably intertwined with the evidence regarding the 

charged offense if it forms an “integral and natural part of the witness’s 

accounts of the circumstances surrounding the offenses for which the 

defendant was indicted.” United States v. Foster, 889 F.2d 1049, 1053 (11th 

Cir. 1989). 

United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (emphasis added). 

Here, evidence that Escalona accepted bribes from Co-conspirator # 2 in exchange 

for ensuring that shipments would not be seized by Venezuelan authorities and that 

Escalona was introduced to Co-conspirator # 1 as someone who had accepted bribes and 

would accept bribes in order for goods to reach their destination “is necessary to complete 

the story of the crime for the jury and forms an integral and natural part of an account of 

the crime.” United States v. Trujillo, No. 21-CR-20303-DPG, 2023 WL 2989085, at *2 (S.D. 

Fla. Apr. 18, 2023) (finding evidence of a defendant’s earlier participation in an insurance 

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fraud scheme to be admissible as “inextricably intertwined with the evidence regarding 

the charged Medicare bust-out and money laundering schemes” and also admissible 

under Rule 404(b)).

At bottom, the evidence shows how and why Defendant became involved in 

bribery concerning port shipments. It provides a logical backdrop about how and why 

the United States believes Defendant became involved in the charged conduct. Therefore, 

the evidence at issue is intrinsic to the charged offense.

Assuming, for the sake of argument, that the evidence is extrinsic (and the 

Undersigned does not believe that it is, for the reasons discussed above), the evidence is 

nonetheless admissible under Rule 404(b). The admissibility of acts unrelated to the 

present litigation hinges on three factors: the evidence must (1) be relevant to one of the 

enumerated issues and not to the defendant’s character; (2) the evidence must be proved 

sufficiently to permit a jury determination that the defendant committed the extrinsic act; 

and (3) the evidence’s probative value cannot be substantially outweighed by its undue 

prejudice, and the evidence must satisfy Rule 403. Edouard, 485 F.3d at 1344.

All three prongs are met here. The uncharged conduct is relevant to the issues in 

this case. At the very least, it explains how and why Escalona became involved in the

bribery scheme and is relevant to show his knowledge, motive, and intent.

The second prong is satisfied if “a jury could find by a preponderance of the 

evidence that the defendant committed the act.” United States v. Griffin, 783 F. App’x 881, 

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884 (11th Cir. 2019) (citing Edouard, 485 F.3d at 1345). Here, the Government intends to 

introduce testimony from “at least three co-conspirators” and “[a] federal officer from the 

United States Drug Enforcement Administration (‘DEA’) will testify that [ ] [D]efendant 

corroborated certain details during voluntary interviews with the DEA.” [ECF No. 50, 

pp. 1-2]. Based on this proffered evidence, the second prong is satisfied.

“Under the third prong, [the Court] conduct[s] a Rule 403 analysis to determine 

whether the probative value of the evidence is substantially outweighed by the danger of 

unfair prejudice.” Griffin, 783 F. App’x at 884 (citing United States v. Barron-Soto, 820 F.3d 

409, 417 (11th Cir. 2016)).

Escalona argues that “[t]his evidence will be substantially more prejudicial than 

probative, and risks converting what would otherwise be a relatively short trial into a 

confusing trial about numerous uncharged wrongful acts.” [ECF No. 38, p. 3]. But the 

evidence the Government seeks to introduce will not result in a side trial or divert the 

issues. It will help fill in the gaps and paint a more-complete picture for the jury of 

Escalona’s relationship with the co-conspirators. And, the details provided by the 

Government (including in its post-hearing memorandum, ECF No. 50) are sufficient to 

provide notice to Escalona under Rule 404(b). See United States v. Lampley, 68 F.3d 1296, 

1300 n. 4 (11th Cir. 1995) (“The [G]overnment must only provide notice of the ‘general 

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nature’ of the extrinsic act evidence.” (citing Fed. R. Evid. 404(b) (emphasis supplied)).3

Lastly, the evidence of uncharged criminal conduct is not too remote in time. The 

Eleventh Circuit has “rejected attempts to draw a bright line establishing when prior bad 

acts are too remote to be probative.” United States v. Louijuste, 517 F. App’x 916, 919 (11th 

Cir. 2013). The appellate court has found no abuse of discretion in admitting past conduct 

which exceeds ten years. See, e.g., Lampley, 68 F.3d at 1300 (finding no abuse of discretion 

in admitting evidence which was approximately 15 years old); United States v. James, 147 

F. App’x 76, 81 (11th Cir. 2005) (finding no abuse of discretion in admitting into evidence 

conviction which was approximately 16 years old). Moreover, some of the evidence the 

Government seeks to introduce is more recent. Co-conspirator # 1 intents to testify about 

events which occurred in approximately 2005 (five years before the start of the charged 

conspiracy) and Co-conspirator # 2 is expected to testify about events in approximately 

2002 (eight years before the charged conspiracy). See, e.g., United States v. Pessefall, 27 F.3d 

511, 516 (11th Cir. 1994) (finding no abuse of discretion in admitting act which occurred 

3 Although the United States sometimes makes Rule 404(b) disclosures with 

information about specific dates and names, especially if the prior act is a one-time event 

at a specific location, this level of detail is not required. See United States v. Stoecker, 920 F.

Supp. 876, 882–83 (N.D. Ill. 1996) (Rule requiring prosecution to provide defendant with 

reasonable notice of general nature of “other crimes” evidence it intends to introduce 

does not require such specificity as disclosure of exact dates, times, places, and persons

involved in acts, statements of persons involved, or all documentary evidence related to 

other acts); United States v. Jackson, 850 F. Supp. 1481, 1493 (D. Kan. 1994) (Notice of intent 

to use prior bad acts evidence need not provide precise details regarding date, time, and 

place of prior bad acts, but it must characterize prior conduct to degree that fairly 

apprises defendant of its general nature).

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approximately eight years before the charged offense).

Defendant cites United States v. Sanders, 668 F.3d 1298, 1315 (11th Cir. 2012) to

support his view that the uncharged acts are too old and concern an overly lengthy time 

span. But Sanders is factually distinguishable and therefore not particularly helpful.

Sanders involved a 22-year-old, 1.4 gram marijuana conviction used in a prosecution 

involving an international narcotics conspiracy to traffic 153 kilograms of cocaine. As the 

appellate court explained, the Rule 404(b) evidence of the minor marijuana conviction 

involved a “lengthy time span” (i.e., 22 years), “extremely disparate amounts of different

drugs” and “materially different roles in the offense.” Id.

In Escalona’s case, there is a more-modest time span, the same type of criminal 

activity, the same role in the offense and myriad transactions (as opposed to one minor, 

isolated event). Based on the circumstances of this case, and in light of the evidence the 

Government seeks to introduce, the Undersigned does not find evidence stemming as far 

back as ten years from the charged conspiracy to be too remote.

In sum, the evidence the Government seeks to introduce is intrinsic evidence. It is 

also admissible under Rule 404(b). Defendant’s motion in limine is denied.4

Nonetheless, the Undersigned agrees with Defendant’s position concerning the 

4 The Undersigned notes that Judge Scola is not bound by this in limine ruling and 

may revisit it at trial. See Ohler v. United States, 529 U.S. 753, 758 n.3 (2000) (noting that in 

limine rulings are “not binding on the trial judge, and the judge may always change his 

mind during the course of the trial”).

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United States’ discovery obligations arising from its concession that some of the prior 

shipments, not involved in the charged offense, were valid. To be sure, the United States 

describes the valid transactions as “rare,” but these valid transactions must be disclosed 

to Defendant by May 1, 2023 as part of the Government’s Brady obligations. If the United 

States knows only some of the circumstances of the valid transactions, then it shall 

disclose the specifics of what it knows and note that certain aspects are not known. The 

mere fact that the legitimate shipments may be atypical or rare does not render 

inapplicable the Brady requirement. 

DONE AND ORDERED in Chambers, in Miami, Florida, on April 25, 2023. 

Copies furnished to: 

The Honorable Robert N. Scola, Jr. 

All counsel of record

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