UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-20340-CR-WILLIAMS/REID

UNITED STATES OF AMERICA,

vs. 

MASPHAL KRY,

 Defendant.

________________________________/ 

RESPONSE IN OPPOSITION TO DEFENDANT KRY’S MOTION IN LIMINE TO 

EXCLUDE EVIDENCE OR, IN THE ALTERNATIVE, TO CONDUCT AN 

EVIDENTIARY HEARING UNDER RULE 104(A)

The United States of America hereby responds in opposition to Defendant Masphal Kry’s 

motion in limine and request, in the alternative, for a hearing under Federal Rule of Evidence 

104(a) (DE 201). Kry asks this Court for (1) an order excluding all coconspirator statements or, 

alternatively, a pretrial hearing to determine the admissibility of any such statements and (2) an 

order excluding all evidence related to conduct undertaken by “black market suppliers” or, 

alternatively, a pretrial hearing to determine the admissibility of such evidence. 

This Court should deny Kry’s motion for several reasons. First, Kry overstates the 

government’s burden under Federal Rule of Evidence 801(d)(2)(E). Kry claims the government 

cannot show the existence of a conspiracy that included him, as Rule 801(d)(2)(E) requires, 

because the government lacks sufficient proof of his knowledge. But conspiracy as a matter of 

substantive criminal law differs from conspiracy as part of the Rule 801(d)(2)(E) principle. And 

though the former requires the government to prove, as an element, the defendant’s guilty 

knowledge, the latter does not. Indeed, a Rule 801(d)(2)(E) “conspiracy” does not have to be 

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charged and need not even be criminal. See, e.g., United States v. Monaco, 702 F.2d 860, 880 n.35 

(11th Cir. 1983). 

 Second, Kry fails to explain the need for a pretrial James hearing at this stage. That 

procedure is not mandatory. To the contrary, courts in the interest of judicial economy, and 

consistent with the explicit language of Rule 104(b), regularly admit coconspirator statements 

conditionally, subject to the later marshaling of sufficient proof (either in the form of trial evidence 

or inadmissible evidence proffered outside the presence of the jury) to make the required showing. 

Herein, the government expects to introduce ample independent evidence at trial showing Kry’s 

participation in and knowledge of the conspiracy. Indeed, this Court has already seen some of that 

evidence, including a video introduced by the government at the suppression hearing during which 

Kry evidences a concern over concealing the ongoing criminal conduct from observers in 

Cambodia and makes open reference to the monkey “smuggling” operation in which he and the 

other coconspirators were engaged. 

Third, Kry identifies only two coconspirator statements upon which he believes the 

government will rely at trial, despite asking for a blanket exclusion of all others. That disconnect 

speaks for itself: this Court should not make an evidentiary ruling on evidence not yet placed 

before it. Nor should this Court accept Kry’s promise of an “unwieldy procedure” at trial. This 

Court is well-equipped to rule on Kry’s anticipated objections to “each extrajudicial statement that 

the government attempts to admit through the confidential informant” as they arise throughout 

trial. 

 Finally, this Court should deny as well Kry’s request for a blanket exclusion of all evidence 

of “black market suppliers.” The pending indictment appropriately alleges that the government 

agency of which Kry was a senior employee was one of the “black market suppliers,” and Kry 

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offers no creditable basis why the government should not be permitted to prove that allegation at 

trial. Nor is a pretrial hearing necessary for this Court to determine the relevance or admissibility 

of evidence of other suppliers. 

Background 

On November 3, 2022, a federal grand jury returned a superseding indictment charging 

Kry with conspiracy to import and smuggle wildlife in violation of 18 U.S.C. § 371 (Count 1) and 

smuggling in violation of 18 U.S.C. § 545 (Counts 2-8) (DE 9). As alleged in the superseding 

indictment, Kry and multiple coconspirators, charged and uncharged, sought to illegally smuggle 

long-tailed macaques into the United States for financial gain (DE 9:7). 

To do so, they (1) utilized various facilities, including VBRC in Cambodia, purportedly to 

breed and supply long-tailed macaques for sale, (2) contracted with customers in the United States 

to sell and export purportedly captive-bred macaques from Cambodia to the United States, (3) 

illegally purchased long-tailed macaques from black market suppliers, including the Ministry of 

Agriculture, Forestry and Fisheries (MAFF), and (4) used MAFF to secure CITES export permits 

falsely identifying wild-caught macaques as captive bred, all to act as a source for wild-caught 

macaques, and to provide permits to transport captive-bred macaques unsuitable for trade to a 

facility to be euthanized, allowing their identification tags to be transferred to wild-caught 

macaques and thereby “launder” them, to make them appear captive bred (DE 9:8). 

In furtherance of the conspiracy, the superseding indictment additionally alleged among its 

overt acts, that Kry made four specific deliveries of 13, 24, 20, and 35 wild-caught long-tailed 

macaques to the VBRC facility (DE 9:13-15). These deliveries were electronically recorded. 

Additional wild-caught macaques came from other “black market suppliers” (id.). For example, 

about a week after Kry personally made a delivery of wild-caught long-tailed macaques to the

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VBRC facility, “Black Market Supplier A was paid approximately $4,840 for the delivery of 

approximately 22 wild-caught long-tailed macaques to the VBRC facility at Pursat” (DE 9:15). 

The superseding indictment additionally alleged that one of the named coconspirators, 

Raphael Cheung Man, wrote two emails to several other coconspirators in which he described 

meetings with Kry. In the first email, Cheung Man reported that he met with MAFF officials, 

including Kry, and had discussed a price for “official” and “unofficial” quotas (DE 9:11).1 In the 

second, Cheung Man reported that he met with the MAFF collection team leader, Kry, and 

advanced him $10,000 to ensure he would collect the wild-caught long-tailed macaques (DE 9:12). 

They agreed that MAFF would collect and deliver 300 macaques weighing between 2 to 4 

kilograms within the month, and that VBRC would reject any inferior animal (id.). 

The full contents of these two emails were turned over in discovery and form the basis of 

Kry’s motion in limine. 

Argument

I. This Court should deny Kry’s request for a blanket exclusion of all coconspirator 

statements and request, in the alternative, to hold a pretrial James hearing. 

Under the Federal Rules of Evidence, a statement is not hearsay if the proponent offers it 

“against an opposing party” and it “was made by the party’s coconspirator during and in 

furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). Rule 801(d)(2)(E) requires the 

proponent to prove, by a preponderance of the evidence, that “(1) a conspiracy existed; (2) the 

conspiracy included the declarant and the defendant against whom the statement is offered; and 

(3) the statement was made during the course and in furtherance of the conspiracy.” United States 

v. Harris, 886 F.3d 1120, 1130 (11th Cir. 2018) (quotation marks omitted). 

1 The United States expects that evidence will be adduced at trial establishing the “unofficial quotas” 

referenced in the indictment have no support in relevant Cambodian law and existed only in the lexicon of 

the coconspirators.

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To make this finding, the district court “may rely on information provided by the 

coconspirator’s proffered statement as well as independent external evidence.” United States v. 

Miles, 290 F.3d 1341, 1351 (11th Cir. 2002). But the information from a coconspirator’s proffered 

statement cannot on its own establish the existence of a conspiracy or the defendant’s participation 

in it. Fed. R. Evid. 801(d)(2) (“The statement must be considered but does not by itself establish . 

. . the existence of the conspiracy or participation in it under (E).”). Instead, the proponent must 

produce some independent evidence of a conspiracy. United States v. Hough, 803 F.3d 1181, 1193 

(11th Cir. 2015). 

A conspiracy under Rule 801(d)(2)(E), however, is not the same as a conspiracy as a matter 

of substantive criminal law. In fact, a Rule 801(d)(2)(E) conspiracy need not even be criminal. 

Instead, the rule “allows for admission of statements by individuals acting in furtherance of a 

lawful joint enterprise.” United States v. Brockenborrugh, 575 F.3d 726, 735 (D.C. Cir. 2009); see 

also Monaco, 702 F.2d at 880 n.35 (Rule 801(d)(2)(E) “‘is meant to carry forward the universally 

accepted doctrine that a joint venturer is considered as a co-conspirator for the purposes of this 

rule even though no conspiracy has been charged’”) (quoting S.Rep. No. 1277, 93rd Cong., 2d 

Sess., 26–27 (1974)). 

In this case, that means the government need not make a preliminary showing, as Kry 

insists, that Kry knew “that the monkeys he delivered to VBRC would be exported . . . to the 

United States under false CITES permits” (DE 201:6). At this stage, the government need merely 

show that Kry was engaged in some joint enterprise (criminal or not) with Raphael Cheung Man, 

the author of the two emails Kry challenges on motion, and that Cheung Man sent the emails in 

furtherance of that enterprise. See Harris, 886 F.3d at 1130. It is the jury, after all, that will 

determine whether Kry’s participation in that enterprise was a crime. 

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 Even assuming Rule 801(d)(2)(E) requires the government to show Kry’s guilty knowledge 

by a preponderance of the evidence, Kry fails to show the need for this Court to hold a pretrial 

hearing to make that determination. Kry relies almost exclusively on the case of United States v. 

James, 590 F.2d 575 (5th Cir. 1979), to support his demand for a hearing.2 Post-James, the 

Eleventh Circuit has held repeatedly and explicitly that a pretrial hearing is not mandatory. See, 

e.g., United States v. Van Hemelryck, 945 F.2d 1493, 1498 (11th Cir. 1991) (determination of 

admissibility of co-conspirator statements under Fed. R. Evid. 801 (d)(2)(E) “need not be made 

prior to trial”); United States v. Allison, 908 F.2d 1531, 1534 n.2 (11th Cir. 1990) (“[Defendant] 

claims he was entitled to a James hearing prior to admission of the offending statement. This is 

not true.”); United States v. Norton, 755 F.2d 1428, 1431 (11th Cir. 1985) (same); United States 

v. Lippner, 676 F.2d 456, 464 (11th Cir. 1982) (“We have never mandated such a hearing ...”); 

see also United States v. Burke, 673 F.2d 1574, 1579 (N.D. Ga. 1986) (a James hearing “is most 

appropriately held at the time of trial”), aff’d, 856 F.2d 1492 (11th Cir. 1988). 

And courts regularly admit coconspirator statements “subject to the government later 

connecting them up with sufficient evidence.” Allison, 908 F.2d at 1534 n.2 (internal quotation 

marks omitted); see also United States v. Fernandez, 797 F.2d 943, 945-46 (11th Cir. 1986) (no 

error in district court’s decision to admit coconspirator statements during trial and then rule on the 

applicability of the 801(d)(2)(E) exclusion after the government’s case in chief, because a district 

court may “admit these statements subject to proof of the [rule’s requirements] during the course 

of trial”); Norton, 755 F.2d at 1431 (“[I]t is acceptable for the trial court to permit the evidence to 

2 Two other cases cited by Kry in support of a preliminary hearing relate to the admissibility of a prior 

conviction and the admissibility of polygraph evidence – bear scant relevance to the facts and circumstances 

of the coconspirators statements herein. See D.E. 201: 6. 

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proceed chronologically, without holding a James hearing, relying upon the government to 

‘connect up’ the co-conspiratorial statement”).

 That process makes sense in a conspiracy case like the instant matter, because the evidence 

required to lay a foundation for the admission of any coconspirator statements will involve much 

of the same evidence that the government will offer during its case-in-chief to prove the conspiracy 

and substantive . In other words, a pretrial James hearing—especially as Kry views it—would 

require the government to essentially try its case twice. Cf. Lippner, 676 F.2d at 464 (no error in 

denying pretrial hearing where “a James hearing would in essence have required trying the case 

twice to show the admissibility of [the co-conspirator’s] statements, and would itself have wasted 

the judicial resources James was designed to conserve”). 

Kry urges this Court to deviate from normal practice and conduct a wasteful minitrial 

regarding the conspiracy because of the possible danger of unfair prejudice presented by this

Court’s conditional admission of the two coconspirator emails he identifies in his motion. But Kry 

has several remedies at his disposal if this Court finds the government fails to make the required 

connection. For one, Kry could move for a directed verdict under Rule 29 of the Federal Rules of 

Criminal Procedure. For another, this Court could instruct the jury to disregard the statements. And 

though Kry discounts the effect of such an instruction, the Eleventh Circuit has “repeatedly said 

that a jury is presumed to follow the instructions given to it by the district judge.” United States v. 

Mosquera, 886 F.3d 1032, 1042 (11th Cir. 2018) (internal quotation marks omitted). 

In any event, the government anticipates introducing ample evidence to lay the proper 

foundation for any coconspirator statements and establishing Kry as a knowing member, complicit 

in the illegal export of wild caught macaques. The government’s cooperating individual, as Kry 

well knows, functioned in a management role at the VBRC facilities in Cambodia, including the 

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location where Kry delivered wild-caught monkeys in exchange for money. In his Motion (D.E.-

201:3), with the doubly dramatic emphasis of boldfaced and italicized type, Kry asserts that:

“Nowhere in the Indictment (a) is Mr. Kry alleged to have known that the monkeys he 

delivered to VBRC would be exported to the United States, or (b) are facts alleged to 

support the theory that Mr. Kry agreed to participate in a conspiracy to export long-tailed 

macaques to the United States under false CITES permits.”

This statement is belied by the allegations set forth in the Overt Acts of the conspiracy, D.E.- 9:8 

at paragraphs 12 (Kry agreeing to payment schedules for both “official” and “unofficial” quotas 

of wild-caught monkeys, and assuring that the “unofficial” monkeys would be concealed from the 

local officials of MAFF), 15 (wherein cash was advanced to Kry as “team leader” and agreement 

struck to deliver 300 monkeys within the month), 20, 24, and 32 (reflecting deliveries by Kry of 

wild-caught macaques). The accuracy of the claim on Motion is rendered almost ludicrous in light 

of Overt Act paragraph 21, another delivery meeting, caught on video, during which Kry advised 

the witness that they could make the “smuggling” enterprise safer by creating a back road to the 

facility. That video, in English, is already in the Court’s record as Exhibit 5A-B to the Hearing on 

Motion To Suppress, held by Magistrate Jude Lissette Reid. See D.E.-104 [exhibits filed 

conventionally with the Clerk of the Court per Local Rules]. 

By any reasonable interpretation, Kry’s references to the safety of the illegal operation and 

the smuggling venture are manifestly probative of his knowledge of the nature of his conduct and 

his willful participation in the conspiracy. Since the cooperating individual was a direct participant 

in the exchange, the admissibility of the evidence should pose little problem and its relevance to 

the issues at bar obvious.3

3 On Motion at 7, Kry asserts that document certified by the Kingdom of Cambodia “. . . support the position 

that Mr. Kry understood that the wild-caught monkeys would become breeding stock at VBR.” This 

argument is deficient for several reasons. First, there is no evidence of record that Kry was aware of the

language in the government documents. His witness depositions are silent on the subject and there are no 

documents produced in discovery indicating any such knowledge on his part. Second, assuming arguendo, 

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II. This Court should deny Kry’s request for a blanket order excluding evidence of 

“black market suppliers.” 

The government is mindful of this Honorable Court’s comments at the status conference 

held on December 18, 2023, regarding the need to focus the trial proceedings on the conduct of 

defendant Kry and to limit the scope of evidence of extensive activities on the part of the other 

coconspirators to only that necessary and sufficient to provide “context” to the jury. The 

government has no wish to needlessly prolong the trial proceedings beyond the evidentiary 

presentation necessary to acquaint the jury with the breadth of the criminal conduct of the 

coconspirators, whose activities in conjunction with Kry are set forth in the indictment. 

As the indictment makes clear, Kry, his superior at MAFF, Keo, and the other directly 

charged defendants are not the sole coconspirators. The “black market suppliers” were individuals 

known to the Grand Jury as recited in the “Purpose of the Conspiracy.” D.E.-9:7 ¶ 3. The 

indictment makes further specific allegations that the “black market suppliers” including through 

the actions of the MAFF employees recited in the indictment, were illegally providing long-tailed 

macaques primarily delivered to the Pursat VBRC facility. Id.:7-8 ¶¶ 7-8. Thus, proof of the 

existence and operation of the other suppliers is relevant in establishing the conspiracy as charged 

by the Grand Jury. With respect to the conspiracy charge, evidence of the conduct of the other 

suppliers is also inextricably intertwined, despite there being no substantive offenses charged with 

respect to the un-named marketers. See United States v. McLean, 138 F.3d 1398, 1403 (11th 

Cir.1998) (evidence of an uncharged criminal act is intrinsic if it is “(1) an uncharged offense 

which arose out of the same transaction or series of transactions as the charged offense, (2) 

that Kry was aware of the language of the documents, he clearly knew otherwise since he discussed the 

smuggling of the macaques with the cooperating individual, thereby demonstrating his knowledge of the 

intended illegal export of the macaques and his willingness to violate the restrictions placed by the Kingdom 

of Cambodia on the employment and use of the macaques he was delivering to VBRC.

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necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence 

regarding the charged offense.”). The Eleventh Circuit has explained that “[e]vidence, 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 the crime, or is necessary to complete the story 

of the crime for the jury.” United States v. Holt, 777 F.3d 1234, 1262 (11th Cir. 2015) (citing 

United States v. McLean, 138 F.3d 1398, 1403 (11th Cir. 1998)). The government need not 

prove that Kry had knowledge of all details and phases of the conspiracy. United States v. Moran, 

778 F.3d 942, 960 (11th Cir. 2015); United States v. Guerra, 293 F.3d 1279 (11th Cir. 2002). The 

government’s evidence will demonstrate that Kry knew the essential nature of the conspiracy as 

described in the Purpose and Manner and Means statements, in part through the matters discussed, 

supra, including his personal delivery activities, his comments, and the materials reflected in the 

communications amongst the named coconspirators. It is clear that Kry need not have been privy 

to all aspects of the on-going conspiracy, nor that he agreed to commit or facilitate each and every 

part of the substantive offenses charged. Salinas v. United States, 522 U.S. 52 (1997). 

The evidence intended to be presented in this matter will establish that Kry’s actions 

contributing to the conspiracy were contemporaneous to the conduct of the other black-market 

suppliers, that they shared in all critical particulars a modus operandi, and were coordinated in 

their activities by one or more of the named coconspirators. Further, the evidence will demonstrate 

that all the suppliers of wild-caught long-tailed macaques were paid by the VBRC coconspirators 

and records maintained reflecting the amounts paid based on the number of specimens provided. 

Taken collectively, their joint activity will present the complete picture of the conspirators actions 

to the jury. The government does not, however, intend to produce before the jury the dozens of 

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videotapes and related items of evidence that document the conduct of the other suppliers, but will 

establish the necessary facts in a more summary fashion through witness testimony and the 

production of a limited number of exhibits. 

Conclusion 

Based upon the foregoing arguments and authorities, the United States respectfully 

requests this Honorable Court deny at this time Defendant Masphal Kry’s motion in limine and 

request, in the alternative, for a hearing under Federal Rule of Evidence 104(a), and address such 

evidentiary issues as may arise at the time of trial. 

Respectfully submitted,

MARKENZY LAPOINTE

 UNITED STATES ATTORNEY

By: /s/ Thomas A. Watts-FitzGerald 

Assistant United States Attorney

Florida Bar No. 0273538 

99 Northeast 4th Street

Miami, Florida 33132-2111 

Tel: (305) 961-9413 

By: /s/ Emily R. Stone 

Assistant United States Attorney

Florida Bar No. 92077 

99 Northeast 4th Street 

Miami, Florida 33132-2111 

Tel. 305-961-9407

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CERTIFICATE OF SERVICE

 I hereby certify that on December 29th , 2023 I electronically filed the foregoing 

with the Clerk of the Court using CM/ECF. 

 By: /s/ Thomas A. Watts-FitzGerald

 Assistant U.S. Attorney 

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