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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 22-CR-20423-RNS-1 

UNITED STATES OF AMERICA, 

 Miami, Florida 

 Plaintiff(s), 

 April 11, 2023 

 vs. 

NEPMAR JESUS ESCALONA, 

 

 Defendant(s). Pages 1 - 52 

----------------------------------------------------------- 

MOTION HEARING 

TRANSCRIBED FROM DIGITAL AUDIO RECORDING 

BEFORE THE HONORABLE JONATHAN GOODMAN 

UNITED STATES MAGISTRATE JUDGE 

APPEARANCES: 

FOR THE PLAINTIFF(S): ANDREA GOLDBARG, ESQ. 

 UNITED STATES ATTORNEY'S OFFICE 

 99 NE 4th Street 

 Miami, FL 33132 

 (305) 961-9309 

 andrea.goldbarg@usdoj.gov 

FOR THE DEFENDANT(S): MANUEL J. RETURETA, ESQ. 

 RETURETA & WASSEM, PLLC 

 300 New Jersey Avenue 

 Washington, D.C. 20001 

 (202) 450-6119 

 mjr@returetawassem.com 

 

TRANSCRIBED BY: Joanne Mancari, RPR, CRR, CSR 

 Court Reporter 

 jemancari@gmail.com 

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Thereupon, 

the following proceedings were held via Zoom videoconference: 

THE DEPUTY CLERK: Calling case USA v. Escalona, case

No. 22 20423, criminal, Scola.

THE COURT: Good afternoon, folks. Please be seated.

MS. GOLDBARG: Good afternoon, your Honor.

THE COURT: Make yourself comfortable.

Let's first make sure that the defendant can hear and

understand what I'm saying through the help of the headphones

and the interpreter.

Sir, are you able to hear and understand what I'm

saying?

THE DEFENDANT: Yes, perfectly well.

THE COURT: All right. Thank you.

So let's have appearances, starting with the United

States, please.

MS. GOLDBARG: Good afternoon, your Honor. Andrea

Goldbarg on behalf of the United States.

THE COURT: Thank you.

For the defense.

MR. RETURETA: And good afternoon, your Honor. Manuel

Retureta on behalf of Mr. Escalona.

THE COURT: Good afternoon to you.

I understand from the docket sheet you're from

Washington, D.C.?

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MR. RETURETA: I'm from Washington, D.C. I was moved

in pro hac vice by Mr. Nayib Hassan, who is currently in

Washington, D.C.

(Inaudible) extricate himself from a very long trial

that was supposed to finish in February, and he is still there.

THE COURT: Well, welcome.

MR. RETURETA: Thank you.

THE COURT: The microphone is movable so you can pull

it closer to you and you can also move the wand.

Have the cherry trees started blossoming in

Washington, D.C. yet?

MR. RETURETA: Your Honor, they were early, about two

to three weeks early. They have now lost their blooms.

THE COURT: Is there the kind of philosophy there,

similar to Pennsylvania, where if the groundhog generates a

shadow it means that winter is going to be longer or shorter?

Is there something like that with the cherry trees in

Washington?

MR. RETURETA: It usually ends up that if they bloom

early that means we are going to have to deal with a lot of

tourists for about a few extra weeks than normal.

THE COURT: I guess that's a mixed blessing.

MR. RETURETA: Indeed, your Honor.

THE COURT: Well, folks, welcome.

We are here today on the defendant's motion in limine

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to exclude the government's Rule 404(b) evidence.

I have read the memoranda. So thank you all for your

good work for that.

I always hear from the movant first. So, counsel, you

are the movant. You can either come to the lectern, you can

remain at counsel table. If you stay at the table, you can

either sit or stand. So you have got plenty of options.

MR. RETURETA: With the court's permission, I never

lose an opportunity to get to the lectern against Ms. Goldbarg

here.

THE COURT: All right.

MR. RETURETA: Your Honor, thank you for the

hospitality.

The motion we filed, we filed that because, as we

noted in our pleading, we're a little bit surprised by the

amount of information that the government has suggested that

they want to put on.

I'm not sure if the court is aware, at about the same

time that we filed, at that time it was a notice for 404(b)

evidence, we also filed a motion for a bill of particulars; we

also filed a motion to suppress statements that are alleged to

have been made by my client.

I think the underlying current with what's happening

here is we seem to -- we have been presented with a course of

conduct that I would think would be very definite, would have

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parameters, would be easy to explain to a jury why certain

events constitute a fraud, constitute a bribe, constitute

something illegal that would be subject to the U.S. Code. We

are still kind of perplexed by that.

What we have discovered, and I don't want to rehash

our pleading, but I think what we have discovered is we

continue to hear from the government that all of these things

happened and it is all dependent upon Mr. Escalona just

confessing to everything.

There are references to coconspirators in the

government's pleading. There is a coconspirator one and

coconspirator two. We believe that those two individuals, one

individual is a person by the name of Salomon Bendayan. The

other individual is a person by the name of David Bendayan.

David Bendayan, as far as I know, has not pleaded

guilty to any illegal conduct. That is significant because his

brother, Salomon Bendayan, has pled guilty to illegal conduct,

and the illegal conduct that he has pled guilty to in the

Southern District of Florida is that he is running a money

transferring office without the appropriate documentation.

Now, a quick reading of the government's 404 pleadings

would indicate that Salomon Bendayan is a master coconspirator

along with Mr. Escalona. So we are perplexed by the linkage

with the Bendayans. Our concern then stretches into the world

of 404(b).

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Again, 404(b) in this case, the way it is charged,

there are either bribes, there are either fraudulent transport

documents, because it is alleged that there was some type of

movement of goods, and maybe the goods were not moved or the

goods that were moved were of a different percentage quantity

but import into Venezuela, but there is this type of conduct

that then needs to be bolstered because that is what we're

dealing with here with 404(b); we're dealing with other crimes

that somehow help the government put together motive, conduct,

the whole realm of 404(b). We don't understand why that is

necessary.

Not understanding it is significant because we have

our bill of particulars, but not understanding it then spills

over into the prejudice side of this, because right now a jury

is going to have an alleged conspiracy dating from 2010 to

2017, but then they are supposed to receive, digest, understand

and somehow link up conduct that could be, and we don't know

because we don't know the specifics of it other than the grand

allegation of a decade prior to, the beginning of the alleged

conspiracy.

So the government has proposed to the trial court that

Mr. Escalona's jury be able to hear something that happened in

2002, '3, '4, or '5. As the government's pleading indicates,

it is sufficiently intrinsic or qualifying under 404(b) as

something that a jury can use.

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We have encountered 404(b) with lengthy conduct

before. What is perplexing to us, because we have that problem

with the bill of particulars, we still don't understand what

the government's theory of this case is so that we can defend

it. It only aggravates what is happening with 404(b). We

don't know if 404(b) is that Mr. Escalona sent a package of

Kohler sinks to Venezuela and somehow that's illegal. We don't

understand if Mr. Escalona sent a package of Delta sinks in

2002 would be admissible because that is 404(b), because he is

sending something to Venezuela.

So we're concerned with what the government has

proposed, the expanse, the lack of detail, and we don't know

the particulars of what is being alleged in terms of conduct

for the indictment.

Putting that altogether, we feel like we are going to

be in trial and if this were to be allowed and not scaled back

in some way, we would be popping up every other question saying

objection, relevance, objection, prejudice, objection again and

again and again.

So if the government were to present us with the

specifics of what they want to introduce -- as an example, if

they are to say, well, Mr. Escalona dealt with Salomon Bendayan

in 2004 and they transported a load and that load was supposed

to have a hundred widgets but really only had five widgets,

well, at least we could identify it, at least we could respond

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to it, at least we could argue whether or not it is probative

and not outweighed by some level of prejudice that would affect

Mr. Escalona.

So coming back around, there is confusion as to how

the government is packaging this case; there is confusion as to

what they're looking to present in their case in chief, let

alone an entire decade on conduct which we have nothing further

than their pleading and another series of acts that are not

specified.

THE COURT: Have you received any additional

information from the government which would help you better

understand the 404(b) evidence, or perhaps called the

inextricably intertwined intrinsic evidence?

MR. RETURETA: No.

THE COURT: Let me just finish. Just so we are on the

same page, I'm talking about the evidence which apparently

would concern the years 2000 through 2010.

So you can't see what's going on behind you because

you're looking at me. I have the benefit of sitting up here

looking at the whole courtroom. So I can see you and I can see

the prosecutor. So when I asked has the government given you

anything, any documents to give you some greater understanding,

you nodded no. She vigorously nodded yes. So that is the same

position that they took in their response, both in this motion

and also in the motion for the bill of particulars.

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That motion, the one for the bill of particulars, has

not been referred to me by Judge Scola. But in getting ready

for the hearing I read that motion and the response anyway.

Overall, the government's position is we have given

the defense massive amounts of information, documents,

discovery, and, therefore, it is not simply a matter of them

not understanding what the case is about, it's spelled out in

the documents.

So let's talk about your hypothetical. You said to

me, gee, Judge, what if they say that in the year 2003 my

client was involved in paperwork spelling that five widgets

were shipped but it was actually 25 widgets.

If the government in discovery or otherwise sent you

documents or reports or other information showing the shipping

documents representing X number of widgets and other documents

showing that a different number of widgets was actually

shipped, then you and your client and your team should have a

good idea of at least that one group of events concerning the

widgets.

Now, has the government in fact provided you with that

kind of information, either actual transactional documents,

reports, statements, memoranda, explanations or otherwise, to

help you understand what's going on? Because the impression

that you present to me is, Judge, we have a huge case; it's

enshrouded in a dark curtain; the government hasn't pulled

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aside the curtain; we haven't been able to peek in; we know

nothing, and we can't adequately even begin to prepare our

defense. So those are two completely different perspectives of

what is happening here.

I will hear from the government in a few minutes, but

right now give me a feel for what you have been provided with.

MR. RETURETA: Let me begin by answering the first

question you asked, your Honor. Have they given us something

which shows this. Have they given us documents. Yes. Have

they given us bills of lading. Absolutely. Have they given us

other permissions that are part of the process of importing

goods into Venezuela. Absolutely. Then it stops. It stops

and then there's reliance on two things.

They make reference to cooperating witnesses, which we

have not received any Jencks yet, we have not received anything

that would allow us to get into whatever they're declaring.

Then the other part, which is the basis of our motion to

suppress, there are supposedly alleged confessions by

Mr. Escalona. Those alleged confessions allegedly took place

five times. Those are then the connectors between the nodding

of yes and my denying no, because there is not that linkage.

There is not a document or a photograph which shows a container

leaving Port Everglades and arriving in Caracas, full here,

one-fifth of the way empty in Caracas. There is none of that.

So what we are looking at is, there is not a

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black-and-white basis for them to say, look, here it is, here

it is, it is right there. It is cooperators. The cooperators,

again, I referenced have not pled guilty to a conspiracy, were

a part of an investigation in Boston that suddenly got morphed

into Southern District, and they do not seem to be the most

knowledgeable about what is being alleged here.

But then it gets back to Mr. Escalona and I'm

presented with allegations from two very respected DEA agents,

that I have worked with before, but I've never encountered an

absolute, complete, four-cornered, full-blown confession to

everything.

THE COURT: So these two DEA agents who you mentioned,

are they the ones who purportedly interviewed your client and

obtained the so-called confessions?

MR. RETURETA: Yes.

THE COURT: All right. Have you been provided with

their DEA-6 reports?

MR. RETURETA: I have been provided with reports which

indicate that they have this information and, as is stated in

the reports, he confessed to us. What I have not been provided

and what I am accustomed to with confessions is a statement.

THE COURT: Let's take it just a step at a time.

There are DEA-6 reports and there are DEA-6 reports. You make

it sound -- and I haven't seen the reports. I haven't seen

these reports. I have in my 40-year career seen DEA-6 reports,

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and depending on the author and the circumstances, those

reports could be succinct, conclusory, detail free, and, for

example, hypothetically in this case, the DEA-6 reports could

be two sentences long saying, on March 1st, 9th, and 13th of

2022 we interviewed Mr. Escalona at a Denny's restaurant near

the airport. By the way, it is always a bad thing when you are

meeting somebody at that Denny's restaurant near the airport.

That Denny's restaurant ought to be a museum, as a matter of

fact.

In any event, let's say the report says that, sentence

one. Sentence two, he confessed to bribing myriad Venezuelan

officials from 2000 to 2010, period, end of report. That's one

kind of report.

Another report could say they interviewed Mr. Escalona

five times over a period of six months; the total amount of

interviews was 30 hours; the interview was tape recorded; they

took comprehensive notes, and he provided the following

information, and there may be seven, eight, ten pages of more

specific information, breaking down on a broad-by-broad basis

or a shipment-by-shipment basis or a category of shipment

basis. For example, he shipped widgets, he shipped apples, he

shipped washers used in oil equipment, whatever.

So these reports that you got from the two DEA agents,

which type of report do they fit into, or maybe they are in a

different category?

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MR. RETURETA: The former.

THE COURT: Meaning, very succinct and conclusory?

MR. RETURETA: He met on this day -- one of the early

reports, I think one of the first ones, after we met the first

time, and these are the people that he said he bribed.

THE COURT: OK. So it lists, if we want to use the

old law school phrasing of "or" and "ee," briber, bribee. I

don't know if there is such a word. I know there is mortgagor,

promisee. Let's assume there is a word called bribee.

MR. RETURETA: The bribee.

THE COURT: The bribee. So you could list the names

of the bribees.

MR. RETURETA: Yes. I believe they list six bribees.

THE COURT: OK. Any other details?

MR. RETURETA: We know that they sat on some patio

furniture. We know that they were outside. There is no

mention of a Denny's.

What I'm accustomed to, using your Honor's spectrum

there, that side of the spectrum that is the latter in your

example, that we met for these times, and he detailed one, two,

three, four, five, and he admitted that this was happening.

This was more of a we met, information was given, and, oh, by

the way, he said he bribed these people.

It just doesn't fit into what he was doing because the

defense right now is that those documents that are mentioned

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are pretty much the documents that he gave the agents way back

when. So we're familiar with them because he can detail them

step by step by step.

So as I was getting into this, it is just baffling to

me that this individual, that I have come to know, that is very

well known to those two agents, would say, well, guess what,

you know, I was just doing something illegal. Can that happen?

Absolutely. Is it consistent with what I see in the reports?

Absolutely not. Those reports should be replete with the

amount of information that that person has. They are and then

there is a sentence.

THE COURT: All right. So I take it that, as far as

you know, these meetings where your client supposedly made

statements were not recorded, either audibly or through

videotape, as far as you know.

MR. RETURETA: I have received nothing regarding that,

and as far as I know --

THE COURT: That is a separate issue --

MR. RETURETA: Right.

THE COURT: -- whether you have received anything.

But in conversations with Ms. Goldbarg or the agents,

have you received, one way or another, whether these

conversations were recorded?

MR. RETURETA: No.

THE COURT: And behind you Ms. Goldbarg is shaking her

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head indicating no.

MS. GOLDBARG: Correct.

THE COURT: All right.

MR. RETURETA: What I have heard in addition to and

not in the report is that there were other individuals present.

In fact, I've heard that one of the attorneys of record for the

government, Joseph Palazzo, was at such a meeting and heard. I

heard that former assistant U.S. attorney Michael Nadler was at

another one of these meetings.

Now, if there is a confession, what I have always said

to Mr. Escalona, I would love to see a report which indicates

that on this day a meeting was held at the U.S. Attorney's

Office in Miami and present were the following prosecutors and

following agents and that Mr. Escalona confessed to conduct,

boom. Nothing like that.

THE COURT: Well, that may be because no such report

exists. Gosh, what is the expression. "If wishes we were

horses, beggars would ride."

I mean, yes, as a defense lawyer, of course you'd want

a more detailed report. If there is not one to turn over, you

can't get blood out of a stone.

Let me hear from Ms. Goldbarg and maybe she will have

a little bit of a different take on this.

MR. RETURETA: Thank you, your Honor.

THE COURT: Again, you can sit or stand at the counsel

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table or come to the lectern.

MS. GOLDBARG: I have a lot of paperwork. I'll stand

here.

I think it would be fair to say that Mr. Retureta is

disappointed with the form in which the government has produced

its discovery. He would like something that is replete. Well,

I mean, that is not what we have here, and I think your Honor

picked up on that.

The defendant did meet with the agents, and all the

reports were provided. There were actual meetings that the

government had when Mr. Retureta was retained, with the

defendant present, where we explained what had happened at

those meetings and we provided more context.

Before the defendant was charged, we did provide

documents. Yes, many of them are the documents that the

defendant gave us, but as the reports indicate and as the

agents will testify when there is a hearing in the motion to

suppress, which it seems like he's trying to shoehorn into the

argument here, the agents approached the defendant because they

explained to him that they were investigating this money

laundering scheme of Venezuela and they understood that the

defendant was involved, and the defendant admitted it and then

the defendant proceeded to explain how this scheme worked. In

doing so he provided emails and he provided -- in which he

explained how the fraud worked, including that there were

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various shipments that were purported to be one product and

were in fact not that product, or diluted product, and that is

part of the scheme.

He also provided the justification of the paperwork,

the official paperwork that was signed and approved as in

furtherance of the scheme.

It isn't a simple scheme. I think that we tried to

make this succinct, but it's not easy. It is not easy to

explain how it is that the defendant and the codefendants were

doing arbitrage of the exchange system in Venezuela to make

tens and tens of millions of dollars. It is complicated. And

the defendant was approached so that he could explain and help

the investigators with their investigation into the scheme.

For reasons, that cooperation did not flourish and

this is where we tried to have conversations to resolve the

matter, and the parties just went their separate ways, which is

how we end up here.

The issue here is 404(b), right. We have provided the

defendant statements of what the charged conduct is, the scheme

from 2010 to 2017, how the defendant himself at the beginning

of the charged conspiracy was an officer of the National Guard

for Venezuela, the role that he played, the role that he played

once he left the Venezuelan military, how the scheme worked,

how the invoices were fraudulent, how they paid people bribes,

how they got the money out. All that has been explained, not

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only in the report that we provided, in the documents that we

provided, the emails, the reports, the wire transactions, the

tracing of all the assets. All that has been produced.

Now, the government has --

THE COURT: I'm sorry for interrupting.

MS. GOLDBARG: Yes.

THE COURT: When you say it's been explained, you've

told me that it is not a simple scheme.

MS. GOLDBARG: It's not.

THE COURT: It's complex.

MS. GOLDBARG: Correct.

THE COURT: And the minute you mention the word

arbitrage --

MS. GOLDBARG: Correct.

THE COURT: -- by definition it's going to be a

complicated matter.

MS. GOLDBARG: 100 percent.

THE COURT: So when you say we explained, do you mean

that in addition to turning over reports, in addition to

turning over transactional documents --

MS. GOLDBARG: Correct.

THE COURT: -- you also in some way, form, or fashion

explained, with you or another government representative, in

effect, in the role of a de facto teacher and defense counsel

in the role of the student who is listening, so maybe you sat

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down and just for an hour said, listen, let me tell you what

the case is all about.

MS. GOLDBARG: Correct.

THE COURT: Something like that.

MS. GOLDBARG: Absolutely.

THE COURT: That has happened.

MS. GOLDBARG: Correct.

THE COURT: With defense counsel.

MS. GOLDBARG: With this defense counsel, with myself,

with my cocounsel as well, with the defendant present as well

as the agents.

Now, I think that there is perhaps a conceptual

disagreement, where defense counsel seems to think that all the

invoices and all the receipts justify and show that what the

defendant was doing was legal, at which time we also explained,

with the agents present, the admissions that the defendant

made, and, quite frankly, your Honor, a lot of what the

government learned about how the arbitrage worked, yes, was

through some cooperating witnesses, but it was also the

information that was provided and the insight provided by the

defendant himself. So yes, the defendant provided us with

documentation that helped further explain the complexity of the

scheme.

So I know this kind of bleeds, and I appreciate the

court reading the government's response for the bill of

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particulars, defense counsel made a request of us asking for

more details. We responded in writing. We even

cross-referenced the Bates-stamp numbers that we did. He made

the same request in a filing. We pretty much responded the

same way, and we believe that we have.

Now the only thing that the government hasn't provided

at this point in time is the Jencks material, that we are not

required to at this point in time. I understand that defense

counsel would like it. As we get ready for trial, then the

defense counsel will have it. But it doesn't seem, based on

what the government has disclosed up to this point, that he is

in the dark. He may not like the answers that he's getting or

he may -- look, he can have a field day cross-examining the

agents on what they did and didn't put in their reports, and he

is allowed to do that in front of a jury or in front of whoever

is going to hear the motion to suppress so that they can weigh

the credibility of that information, but him not liking the

tenor or the content or the quantity of information in the

reports doesn't lessen the fact that the government has gone

through and has provided the defendant and his attorney the

information that we are going to proceed on for the charged

conduct.

Why are we here with this motion? The defendant, as I

mentioned before, in 2010 was in the National Guard for

Venezuela. There are witnesses who are going to testify that

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were part of this scheme and this conspiracy with the

defendant, but their relationship did not start in 2010. As we

laid out in our motion, this relationship happened

approximately a decade before, and it started with the

introduction by a broker, a broker who introduced the witnesses

to the defendant, and there started the relationship where the

defendant, in his role as running one of the ports, a very

important port for the import of goods, agreed to and accepted

bribes by the witnesses that are going to testify.

The government's position and my personal opinion

would be that this is inexplicably intertwined. You can't have

witnesses testify how they knew the defendant engaged in the

conduct and how they engaged in the conduct without talking

about how they first met the defendant.

They met the defendant when he was in charge of a port

where this person was smuggling goods into the country and when

one of the containers was seized. Through their broker they

said, what do we do to get this container out, and it was the

defendant -- they were introduced to the defendant. They paid

a cash bribery payment to the defendant so that their goods can

make it into the country. That started the relationship, and

there were bribery payments that were made while he was in this

position as a National Guard with the Venezuelan forces and

these witnesses. That is how it started.

As the reality of the situation changed in Venezuela,

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as there is the formalization of country controls and an entire

institution geared toward controlling the currency and you have

arbitrage, it gets very complicated. These witnesses and the

defendant enter into a business. So it is no longer them

paying him a bribe, they go into business with him. So he is

now partaking in that business. This predates the 2010 start

of the conspiracy.

So the evidence that these witnesses will testify to,

not only does it describe their own criminal conduct but it

also puts into context how it is that they met the defendant,

and it also goes to, if the court were to see this as not

inextricably intertwined, it goes to the permissible arguments

for 404(b), which is absent mistake, motive, etc.

So that is the first part of the evidence that the

government is seeking to introduce via 404(b).

Again, I am going to assume Mr. Retureta would want to

do a wonderful job of cross-examining whoever the government

witnesses are, but it is almost unfair and it leaves a doubt

for the jury to explain, well, how is it that they met the

defendant, because if they can't talk about that period

beforehand as a basis to evaluate their credibility, it's

leaving holes in the story.

So that is number one. There is also the request for

404(b) evidence on the end side of the conspiracy, which is

what did the defendant do with all this money.

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The witnesses will testify about their written

communications where the defendant is instructing other

coconspirators what to do with his proceeds and his profits.

The agents in tracking that information down soon learned that

the defendant involved his family members to assist him in

helping clean or launder the proceeds of his money laundering

activity, and that leads to the financial transactions and wire

transfers to the United States, to Switzerland, and the

purchase of property here in the United States, in the Southern

District of Florida specifically.

So also, under the rule of completeness, it explains

not only things that the defendant said but it is the actions

that the agent took to fully corroborate what the defendant was

telling the agents, and then also follows the money trail in

terms of what actually happened at the end of this money

laundering conspiracy.

So the government would also argue that that evidence

should also be introduced as inextricably intertwined, but in

an abundance of caution it should be admitted under 404(b).

THE COURT: I have a few questions.

MS. GOLDBARG: Yes, sir.

THE COURT: Have you ever worked as a criminal defense

lawyer?

MS. GOLDBARG: I have not.

THE COURT: So you have a limited perspective. I

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don't say that to fault you; I'm just saying you have never

been on the other side of the aisle, so to speak.

MS. GOLDBARG: That's correct.

THE COURT: So let's talk about a more typical 404(b)

scenario. Let's say it's your basic buy/bust and the

government wants to introduce as 404(b) evidence one prior

transaction, and the 404(b) evidence is that a year and a half

ago the defendant sold 2 ounces of cocaine to a guy named Dave

in the parking lot of a shopping center in North Miami for X

dollars.

Now, if you're the defense lawyer, you're going to

fight like all get out to try to exclude that. But if you

can't exclude it as 404(b), you at least have something to work

with. By that I mean, you can investigate that alleged prior

act to see whether or not there is any surveillance footage

from that shopping center; you can try to contact the other

alleged participants to see whether he or she will confirm the

transaction; you can do a records research to find out, gosh,

wouldn't it be a great cross-examination if you could

conclusively determine that the so-called buyer was actually in

a state prison in Mississippi and couldn't have participated at

all.

So the point is from a defense perspective for 404(b)

it is important often to find out the contours of the prior act

so that you can start to probe the legitimacy of the alleged

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prior bad act.

So, yes, the government only needs to prove that by a

preponderance of the evidence, not reasonable doubt, but you at

least don't have to accept at face value the 404(b) notice.

You could probe it, investigate it, look into it.

MS. GOLDBARG: Correct.

THE COURT: Are you with me so far?

MS. GOLDBARG: Yes.

THE COURT: It sounds to me like what we have here is

something completely different. We don't have necessarily --

and I'm saying this because if I'm wrong, I would like you to

tell me. It seems to me what we have here is a more sprawling

allegation of 404(b) evidence, and it is not just one act, it

is many acts.

Now, if I were to ask you can you tell me how many

specific bribes are at issue in the 404(b) evidence, would you

be able to tell me?

MS. GOLDBARG: We would be able to provide an

approximation.

THE COURT: What is that number?

MS. GOLDBARG: It would have been for about one

container a month for probably three, probably about three

years.

THE COURT: All right. So that is about 36 bribes,

more or less.

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MS. GOLDBARG: From what I understand, there is an

agreement between the witness and the defendant where the

witness would just pay more of a salary to the defendant to

cover --

THE COURT: All right. Let's frame it differently

then. Bribes concerning approximately 36 shipments.

MS. GOLDBARG: Correct.

THE COURT: It could have been one huge bribe to cover

all 36 shipments.

MS. GOLDBARG: Correct.

THE COURT: Just like here in Miami if you're a major

law firm, maybe you give the head maitre d' at Joe's Stone Crab

a certain amount at the beginning of the season and that covers

all your lunches and dinner for the season or you could do it a

meal at a time.

MS. GOLDBARG: Correct.

THE COURT: So 36 shipments.

Have you provided in some form or fashion the

identification of the shipments associated with the alleged

404(b) bribes?

MS. GOLDBARG: I believe, your Honor, we have provided

the financial records that show the payments. We have got this

initial payment of these corruption payments and then you have

the transition to the partnership. 

So we provided the name of the broker in the

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pleadings. So they have that information. We also provided

the financial records where I believe the payments are made to

the company controlled by the broker as part of the scheme. I

think the majority of the details of the information would come

from the 3500 material, through Jencks Act.

THE COURT: Do you have any sense now about when you

might be providing the Jencks material? I understand it is not

required at this point.

MS. GOLDBARG: There is a potential that there may be

a request to adjourn the trial. I think the idea would have

been to provide it a few weeks before the beginning of trial.

THE COURT: Say it again.

MS. GOLDBARG: A few weeks before the beginning of

trial.

THE COURT: How would that involve an adjournment of

the trial if it took place before the trial started?

MS. GOLDBARG: No. I'm just saying that I think there

may be a request. Currently we have a May 8th trial date set

forth. So we would produce it approximately two weeks before,

although I believe there may be a request by defense to adjourn

the trial. So regardless of the start of trial, I think it

would be a few weeks before trial to produce the material.

THE COURT: Meaning the Jencks material.

MS. GOLDBARG: Yes, your Honor. Sorry.

THE COURT: And speaking holistically, is it your

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position that once defense counsel obtains this Jencks material

that he, perhaps even in cooperation with his client, would be

able to learn the specifics of the transactions at issue in the

404(b) evidence, regardless of whether it is classified as

intrinsic or extrinsic?

MS. GOLDBARG: To his satisfaction, I'm --

THE COURT: I didn't say to his satisfaction. Would

more details be forthcoming to the extent that it would help

any reasonable person have a feel for the specifics of the

actual shipments?

MS. GOLDBARG: The additional information would

provide specifics in terms of who made the connection,

approximately when the connection was made, what the connection

was, and how the nature of their relationship changed, and this

covers kind of that pre-2010 period. So yes, I believe it

would.

THE COURT: How important to your case in chief is the

404(b) evidence that you'd like to use if it is not admitted

under the theory that it is intrinsic and inextricably

intertwined in the charged conduct?

MS. GOLDBARG: It provides crucial context for the

witnesses' testimony, the existence or the creation or how this

plan evolved, how the defendant became involved in it, how he

grew in it.

A lot of the criminal conduct in 2010 requires

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context. So it would be, I think, extremely confusing to the

jury for them not to understand how it is that it started, how

it evolved from just simply containers being smuggled over the

border to this arbitrage and what role the defendant played in

that, again, absent of mistake or confusion, that this is

purposeful. I think it would hinder, again, given the

complexity of the case, I think it would hinder the jury's

comprehension of the scope.

THE COURT: All right. Mr. Retureta, anything further

from you, sir?

MR. RETURETA: I think we've taken you to what is

happening between defense and government. I will give this

example.

It should be very easy for the government to give me a

document per shipment, a permission for the import of that

shipment into Venezuela, a receipt that verifies the receipt of

that material in Venezuela, and then to tell me that the port

person in Caracas received a bribe from Mr. Escalona and it was

because of that bribe that the locks on that shipping container

were not broken and what was 100 widgets really turned out to

be five widgets. It should be very simple for that to be

presented to the defense.

I have asked since the first moment that I have sat

down with that man of the government, give me an example, give

me one example that would show me that all of the documents

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that he provided to the government somehow or another are

explained as a grand fraud bribery scheme. I have not received

it to this point and we still have not heard it in the answers

provided to the court. That is our frustration. Because then

from there I can tell him, way to go, knucklehead, you just

gave them everything; I can see it right here.

We talked about the complexity. This is not complex.

It should not be complex. It is because we have not been told

what the fraud is. We have not been told who was bribed. We

have not been told how this worked, when it should be very

easy, and that's us. Let's not even think of the poor members

of this community that have to listen to this.

We need to have that. If we can't have it here in

court, I don't know how we are going to explain it to a jury.

My fear, and I think your Honor asked some of the key 

questions, how much do you need of this 404(b), because from 

what I'm hearing it could be as simple as the coconspirator one 

having lunch at Denny's with him twice a week for five years 

prior to. 

THE COURT: Mr. Retureta, here's the rub. Let me just

tell you what I'm thinking and then you will give me your

response.

We don't live in an ideal world created by criminal

defense lawyers. We deal with what the framework is for the

federal criminal prosecution of defendants and the applicable

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rules.

I understand that any defense lawyer in your position 

would want the government to lay everything out on a silver 

platter. Tell me, Ms. Goldbarg, give me an illustrative 

example of one of these transactions so I can understand how 

your theory works and so I can have a meaningful conversation 

with my client. 

If she chooses to give it to you, that's fine, but 

most of the time criminal cases don't unfold that way. It is 

not like you are in a civil lawsuit where you can propound an 

interrogatory to the opposing side, the government, and say, 

please explain in detail how a typical bribe scenario works. 

That is interrogatory one. Interrogatory number two, list the 

dates of each of the shipments at issue in your 404(b) 

evidence. Interrogatory number three, please explain in 

detail, in your own words, exactly what I need to know in order 

to have a candid conversation with my client. 

Now, in a civil case you could propound

interrogatories like that, you could take a deposition. We are

in a criminal case, and the reality is, as you and I both know,

the defense is, under the rules, required to operate with less

discovery tools than in a civil case. That is how it works.

So when you say to me I want the government to explain

these things to me, I want the government to show me the

documents, are you, number one, suggesting, because this is

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what it sounds like to me, are you suggesting that you want

Ms. Goldbarg to create a document, a memorandum, a report,

report from prosecutor to defense counsel, hey, it was great

seeing you the other day in court, in Judge Goodman; let me

reveal to you our theory of the case and explain to you how we

plan on linking all the documents in the case? From a defense

lawyer's perspective, fantastic.

I'm not aware of any statute, rule, or other legal

authority which would require the government to do that. Are

you?

MR. RETURETA: Let me give credit where credit is due.

Palazzo did that. Mr. Palazzo --

THE COURT: Perhaps he was being wonderfully generous

with you. My question is, is there any principle of law that

would require it?

MR. RETURETA: No, absolutely not.

THE COURT: All right.

MR. RETURETA: Absolutely not.

THE COURT: So maybe you earlier in this case

persuaded Mr. Palazzo to go the extra mile and turn over

something that wasn't required, and if so, wonderful for you,

you're a very persuasive lawyer.

Now that Mr. Palazzo did that apparently one time,

maybe you are returning to the well for a second visit, making

another request, and this time he says, nah, I think I'm good,

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I've already given you enough help, quite frankly.

MR. RETURETA: Let me just fill in a little bit more.

THE COURT: Sure.

MR. RETURETA: Like I said, we have always asked, give

us an example, give us an example of the shipment.

THE COURT: Tell me in real life the mechanics, the

logistics.

MR. RETURETA: Because --

THE COURT: When you say to me we want them to tell us

how, tell me specifically the method by which you would like

Ms. Goldbarg to tell you that answer.

MR. RETURETA: Just identify -- for example, they are

going to be in front of this jury and they are going to have to

tell the jury, aside from the allegations of fraud and bribery,

whatever, this is what happened with this shipment. So I asked

the government, can you give me an example of a particular

shipment. Mr. Palazzo was kind enough -- I'm sure in consult

with Ms. Goldbarg, because she would have done it also -- they

provided me and showed me a shipment. I asked, what's wrong

with this shipment. Well, this is an example of what our case

will be, and we will --

THE COURT: Wait, because I need to understand this in

my mind. I want to get a mental image of this.

This didn't happen through a written report that they

gave you or a memo. They sat down with you or over the phone

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or in a Zoom hearing or in person, a good old-fashioned

conversation.

MR. RETURETA: Good old-fashioned conversation.

THE COURT: Words came out of their mouth. You

listened.

MR. RETURETA: With colleagues that have known each

other for a long time.

THE COURT: Sure.

MR. RETURETA: We had the conversation and I said,

give me an example.

THE COURT: And did they have, for example, a bill of

lading and they show it to you and they say, here's one.

MR. RETURETA: We knew of a document that we were both

speaking of.

THE COURT: All right. So they orally volunteered

some information about one transaction.

MR. RETURETA: Right.

THE COURT: All right.

MR. RETURETA: Which then led me to, what is the

illegality here, because what we're looking at here is all in

line with everything that happened. Then we default to what I

continue to hear, which is, well, he just told us that it was.

So our frustration is we have this whole body of

material that pretty much, I'll say 90 percent of it has been

provided from Mr. Escalona to the government, that has been

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passed through brokers, that has been signed off of by

government officials here and in Venezuela, and then we don't

know the other -- how does it get to this point.

Look, if Ms. Goldbarg was to say, look, this is the

way it is, it is what that is, your Honor, and then he said it

was all illegal and then he said that he paid off five

different people, I think that's where we're getting to, but I

can't believe we're getting to that because of what I have in

terms of material. So I'm trying to figure out what else.

In figuring out what else, what are they going to

hear? When they go back to deliberate, the first question I

would think is, does anybody know which semi-truck pulled up to

the port? Does anybody know what container was used, or did he

just -- if that's to everything, then we might as well just

plead and say it's all guilty. If that's it, wow, yes, I've

got a monster case in front of me, but I don't think that

should be it.

Then getting back to why we're here with the 404(b),

if we can't explain what is happening here, how do we then take

that and add more to it?

I think Ms. Goldbarg's suggestion with the background,

I think there is an argument there. How do they know each

other? They didn't just show up at Denny's together. No.

They knew each other from so-and-so. Does it need to get into

illegality? Does it need to get into 36 containers, which is

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the first time I've heard this? How far do we get before we

move into the world of prejudicial?

Look, they knew each other. They knew he was a former

military. They knew that he could get things done. They can

testify to that. What am I going to do, start to open up that

door and explode that? But to have, hey, listen, ladies and

gentlemen, he's a bad guy, there's been a lot of bribes and, by

the way, 36 times before we even decided to charge him, it's

this. Then we don't know. I think the court asked the perfect

question. How do I investigate that?

THE COURT: Well, let's see if we can't find out some

more specifics.

You have something that you wanted to say.

MS. GOLDBARG: I'm sorry, your Honor. He said my name

and I stood up.

I do believe that Mr. Retureta is conflating the

concern that he has with the merits of the case with what we

are here before with the 404(b) motion. I know that you see me

nodding vigorously contrary to whatever assertion Mr. Retureta

is making.

The complaint lays out a perfect example of how it is

that the government explained to the defendant and his attorney

the nature of this case.

While the DEA report may not have been as fulsome as

Mr. Retureta would like, there is clear information in there in

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which case the defendant explained and provided all of the

documentation to make a shipment seem legitimate. It had the

proper paperwork, it had the proper seal, it had the proper

everything that was needed to check all the boxes to make it

look legitimate.

However, what Mr. Retureta has asked is, well, where

is the photo of the empty container. Well, how do you know

that the container didn't make it. First of all, we know it

because the defendant told the agents that it didn't make it.

So that may be something that we have to deal with at the

motion to suppress. So that is the first thing.

There are other additional witnesses, and we have 

indicated this in the pleadings, there are other witnesses who 

will testify that as part of this conspiracy they also were 

assured that this wasn't there. We have included in that email 

communications where the defendant himself has indicated that 

what's going to be in the container isn't what is listed on the 

paperwork, but it doesn't matter. That's the scheme. The 

scheme is on paper. It has to look like a certain product is 

being imported into Venezuela in order for the Venezuelan 

government to allow those U.S. dollars to be exported and wire 

transferred out of Venezuela. That's the scheme. 

So we have told Mr. Retureta that and we have told him

that many times. He filed a motion to suppress, which he has

every right to do, but we've told him. He doesn't like the

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answer. He doesn't like the answer that this is how the scheme

worked. It was made to look perfect. And how do we know it

didn't happen? Because his client told us and other people

told us, and communications not even to us, but emails that the

defendant wrote to his coconspirators show that the content of

the product was either diluted or it contained something else.

That was part of the artifice of the scheme.

THE COURT: So if you had to give me a good-faith

estimate of the amount of time that you and your cocounsel and

your agents have spent explaining things about the case to

defense counsel, what would be a fair estimate? Hours, days?

MS. GOLDBARG: Hours. Over many months. I think that

we had initial meetings where we laid this out. We had

conversations. This was negotiations that took over several, I

would say several months.

I think it's important also -- the government didn't

put it in the motion to suppress because it doesn't need to be

in a public forum, but what is important, the context here is

the agents approached the defendant because they were seeking

his cooperation, and he agreed to cooperate, and that is why he

met and that is why he told the agents everything that he knew

about the scheme that he was being a part of, and that is why

he met with AUSAs and trial attorneys, predating me, and it was

with the goal of having to go out and work proactively for the

DEA agents. Things didn't go well.

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So the government was somewhat perplexed in terms of

why this defendant would want to not plead guilty, which were

the discussions, there were discussions, and proceed to trial.

That is his absolute right and he can. There were attempts --

there was at least one, if not two, in person -- one meeting in

person, maybe another meeting via Zoom, and there had been

other conversations. 

In attempts to try and answer his questions we

produced documents and other items prior to actually getting to

the position of charging the case via complaint, which we filed

in August of 2022.

MR. RETURETA: Your Honor, if I may.

THE COURT: Just one minute, please.

Yes, sir.

THE INTERPRETER: Your Honor -- could you sit down and

get the microphone closer.

I'm sorry, your Honor. I can't hear.

THE COURT: You can probably pull the whole microphone

stand closer. There you go.

MR. RETURETA: Your Honor, there was one instance in

this building, in a meeting room of the U.S. Attorney's Office,

Mr. Palazzo and I discussed a specific document for that. That

was the only time that the government has tried to explain to

me how this fraud worked other than general allegations. My

client said it. Have him tell you. One meeting in this

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building. That is the only time that I have been presented

with an example of what they intend to put in front of the

jury. That's it. I just wanted to make that clear.

THE COURT: When you say to me, Ms. Goldbarg, that

approximately one container per month for three years was

involved in this, that statement alone, would that tell defense

counsel which shipment was at issue or would he need further

information?

So here's what I'm thinking. You know the case far

better than me, obviously, but let's just say there was only

one container shipped per month. Then it would be obvious

which container it was. It was the only one shipped that

month.

On the other hand, if the defendant was involved in

shipping seven or eight containers per month, only one of them

being involved in a fraud, how would his defense counsel know

which one of the eight constitutes the 404(b) evidence? Do you

follow the undercurrent of my question?

MS. GOLDBARG: I do, your Honor. Perhaps --

THE COURT: Is there an answer?

MS. GOLDBARG: There is an answer in that in the

notice we provided the name of the Customs broker. So knowing

who the Customs broker is, that gives the defendant and his

attorney indication, especially with the time frame that we're

dealing with, an indication of what transactions.

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Now, the reason I hesitated, your Honor, is I don't

think it was the government's intention to go into a myriad of

details how many containers, how much money, how to do this,

and it seems as though to find a balance the government just

was providing context for how the witness and the defendant

knew each other without going into making this a sideshow about

what happened before we even charged the case.

The government did anticipate the question to be much

more higher level. Not going into how many shipments, how much

did you pay, but just to provide context that there was a

context for which they met, what was the circumstances of how

they met and how they created the business together.

So we believe with that information, and especially

knowing who the broker is, having put her name in our pleading,

that would be able to provide the defendant and his counsel

with sufficient information.

THE COURT: And is this a Customs broker who was

involved in activities before 2010? In other words, the

404(b)-type scenario?

MS. GOLDBARG: Yes.

THE COURT: Yes.

MS. GOLDBARG: So the broker is the person that

introduced the witness and the defendant at the beginning of

their relationship. So this Customs broker is not charged or

necessarily involved in the charged conspiracy.

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THE COURT: I'm just getting back to the practical

reality of what defense lawyers do. How do they work up a

case, how do they try and defend a case, how do they try and

get their arms around the charges and, in a 404(b) scenario,

how does the defense lawyer get prepared to deal with it.

MS. GOLDBARG: Correct.

THE COURT: As I indicated, one way is to look into

the bona fides of the alleged prior bad act. So is it your

position that defense counsel by knowing the name of the

Customs broker would have enough information to adequately

investigate the transactions to see whether they occurred in

the way that the government claims they occurred?

MS. GOLDBARG: Yes, your Honor.

MR. RETURETA: Your Honor, if I may.

MS. GOLDBARG: Mr. Retureta will not agree with that.

THE COURT: Wait just a minute, please.

MR. RETURETA: Certainly.

(Pause)

THE COURT: Yes, sir.

MR. RETURETA: Your Honor, we received that pleading.

In said pleading was the name of a woman. That woman is

someone who worked with Mr. Escalona. That woman was

immediately contacted. I spoke with her. That woman had never

been introduced by agents or prosecutors for the United States.

I have no idea why her name was included in there (inaudible)

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that it happened. Upon doing --

THE COURT: What type of document was it that the

government filed in which her name is disclosed?

MR. RETURETA: It is one of the 404(b), I believe it

is ECF-36.

THE COURT: All right.

MR. RETURETA: One of the notices of their intent to

introduce 404(b). On page 2 they reference coconspirators one

and two, which I believe are the Bendayans.

THE COURT: Yes.

MR. RETURETA: And they mention this --

THE COURT: Wait just a minute. I'm on page 2 here.

Maybe I'm missing something. I don't see the name of a woman

Customs broker.

MS. GOLDBARG: Page 3, your Honor.

THE COURT: Aha.

MS. GOLDBARG: Summary of Possible Extrinsic Evidence,

second line.

THE COURT: OK. This is a publicly-filed document,

not under seal, correct?

MS. GOLDBARG: Not under seal, your Honor, no.

THE COURT: So we are talking about Grisalda Sampaio.

MS. GOLDBARG: Yes, your Honor.

THE COURT: All right. So you're saying, sir, that

you spoke to Ms. Sampaio and she said she wasn't interviewed by

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prosecutors or agents, denied any wrongdoing, and was offended.

MR. RETURETA: I think the fair thing is, taking the

fact that her name was in a pleading and (inaudible), but that

is her side.

For our side we would love to have that information,

information that is (inaudible).

THE COURT: All right. So, folks, anything further

from either side?

MS. GOLDBARG: With regard to the 404(b), no, your

Honor.

THE COURT: That is the only motion that's been

referred to me. That is all that is on my plate.

MR. RETURETA: No, your Honor.

THE COURT: OK. Fine. So here's what we are going to

do. I am not going to rule today because I am giving each of

you a homework assignment.

You are certainly free to take notes. I see you are

both going for your pads and grabbing your pens, and that's

fine. Just understand that I will be issuing a post-hearing

administrative order specifying in writing precisely the nature

of the homework assignment because right now I am going to be

speaking off the top of my head and it is not going to be quite

as elegant and smooth as a written order. You will at least

hear the gist of what it will be, and then we will talk about

your suggestion on how long each memorandum will be and then we

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will discuss a deadline that makes sense.

I anticipate simultaneous filing. Both the government

and the defense will file this homework assignment memorandum

on the same date.

I would like each side to submit a memorandum of law

discussing the government's ability to introduce Rule

404(b)-type evidence when the government does not pinpoint

specific criminal acts but, instead, refers more generally to

an ongoing course of criminal conduct.

For example, in a garden variety buy-and-bust drug

case, a Rule 404(b) disclosure might pinpoint a specific drug

transaction, probably a named illegal drug, a specific

location, a particular buyer, and a date or an approximate

date.

There might be a situation where the government's Rule

404(b) disclosure is simply the defendant has been a drug

dealer for the past three years in the South Florida area,

period. As you can see, that disclosure doesn't provide any

specifics; it is simply more general. It mentions course of

conduct.

I would like some case law and analysis discussing

that type of more general disclosure because it tends to relate

more to the type of disclosure we have here.

Here, we have a ten-year ongoing course of conduct

without, as best as I can tell, any list of particular

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shipments which were purportedly involved in a fraud.

So that is what I'm looking for.

Now let's talk about how long it should be and when we

should be receiving it.

Remind again of your trial date. 

MS. GOLDBARG: May 8th, your Honor.

THE COURT: May 8th, but you think that that is going

to be continued or you are simply suggesting that somebody

might file a motion but you're not sure how Judge Scola will

respond.

MR. RETURETA: Your Honor, if I may. It will probably

be more likely than not -- (inaudible). We have to resolve

this. We are finalizing (inaudible) those transcripts. So it

will probably be more likely than not.

THE COURT: All right. So how about if I give you a

deadline of Monday, April 24th?

MS. GOLDBARG: Fine for the government, your Honor.

Thank you.

THE COURT: Next we will talk about the number of

pages and, more particularly, double-spaced pages.

Technically under the local rule you submit memos in

one-and-a-half spacing, but with 67-year-old eyes I don't do so

great with one-and-a-half spacing. I prefer double.

Excluding the signature block and certificate of

service, which lawyers are always focused on, give me a feel

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for how many pages you'd like. Don't think that you need to

estimate high because you think we are going to negotiate and I

am going on chop you down. Just tell me really what you think

you would need and how long it would take you to get the job

done for these limited issues.

What do you think?

MS. GOLDBARG: Does that sound (inaudible). Ten or

15.

MR. RETURETA: Ten.

MS. GOLDBARG: I'm looking at our pleadings and none

of our pleadings exceeded nine pages.

MR. RETURETA: Just to be safe.

MS. GOLDBARG: Defense counsel would like to be safe.

The government would defer to defense counsel.

MR. RETURETA: I wouldn't think any more than ten,

your Honor.

THE COURT: All right. So let's make it ten

double-spaced pages.

MR. RETURETA: Century or Times Roman.

THE COURT: Right. I'm not going to get into that

much minutia, but 12-point font, whatever you use.

So May 8th, double spaced. 

MR. RETURETA: I'm sorry, your Honor.

MS. GOLDBARG: April 24th.

MR. RETURETA: April 24th.

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THE COURT: Yes. May 8th is your trial date. I meant

April 24th. Correct.

Are you familiar with former Eleventh Circuit Judge

Stanley Birch?

(Inaudible)

THE COURT: Hopefully you as well.

MS. GOLDBARG: No, your Honor.

THE COURT: So Judge Birch had a favorite saying when

he would discuss the length of briefs, especially if at oral

argument he asked for supplemental briefing. Whenever he would

include the actual page limit, he would say don't treat that as

aspirational.

So yes, you have ten pages, but if you can get it done

in less, that will be fine.

I will share one other comment with you. I believe

this was a comment that Chief Justice Roberts made at the

Eleventh Circuit conference in Atlanta. 

Were you there for that?

MS. GOLDBARG: No, your Honor.

MR. RETURETA: I was not.

THE COURT: Anyway, what he basically said was less is

more, keep it short, and he said, let me tell you what happens.

When we receive the briefs, if we see that your brief is

relatively thin and light, we start to like you right away. So

the entire attitude as we are reading the brief is more

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positive.

So that is on Chief Justice Roberts' comments, and I

look forward to receiving your brief on the issue which will be

articulated in a post-hearing administrative order.

Are you returning to Washington today?

MR. RETURETA: I just took a glance outside and it

looks like the weather is going to be with me, and I will.

THE COURT: You have something to add?

MS. GOLDBARG: I did want to ask one clarification,

your Honor, because I get the impression that some of the

court's concerns is the lack of detail, obviously, in the

motion, in the notice as well as the motion.

Obviously the government could provide much more

detail, and I don't know whether or not it would be -- how the

court would feel about the government providing what it would

expect the actual testimony to be, obviously not at the

30,000-foot view, but what we expect the witness testimony to

be more specifically.

I think that that -- I don't know if that would impact

the legal -- I mean, I don't think it is going to be the exact

date, what the weather was like that day or how many people

were present because we are talking about a large period of

time, but I think that we could get a little bit more granular

and don't know if the court would accept that as an aid to the

court's analysis.

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THE COURT: So it sort of reminds me of the answer to

the question where somebody said is your bank account

authorized to accept deposits. Yes. So I'm sure that I could

benefit from that additional level of detail.

In fairness, if you are going to do that, here's my

suggestion. Whatever you are going to put together, file it on 

CM/ECF -- 

MS. GOLDBARG: Yes.

THE COURT: -- so that defense counsel can see it, so

I can see it. But by filing it before the deadline it will

give defense counsel an opportunity to adjust, if necessary,

his arguments, and it will also help inform your arguments as

well. Depending on what is in the submission, it might have an

impact on the ruling.

At the risk of stating the obvious, the sooner that

the submission is made, the better. 

MS. GOLDBARG: Yes, your Honor.

THE COURT: The more details, the better, obviously.

So if this is due on April 24th, filing something at

ten minutes before midnight on Sunday the 23rd is not what I

have in mind. Yes, it would technically be under the wire, but

it won't give defense counsel any meaningful opportunity to

address it.

You understand my point.

MS. GOLDBARG: I do, your Honor. The only thing that

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I'm going to ask -- I didn't have a chance to consult with

defense counsel -- but since it is going to discuss more

specific information about witness testimony -- I am not sure

yet if we are going to disclose the witness' name at this time,

but in light of some sensitivities the government would ask

that we have the court's permission, and hopefully defense

counsel requests, to file it under seal at this point in time.

THE COURT: Well, let's talk about that for a minute.

If you file it under seal, I can see it.

MS. GOLDBARG: Correct.

THE COURT: Defense counsel could not see it unless

you sent it to him.

MS. GOLDBARG: I absolutely would send it to him.

THE COURT: All right. So if you are going to do

that, file a motion under seal, motion to file under seal.

MS. GOLDBARG: Correct.

THE COURT: And in that motion mention that it was

discussed in court, the judge approved, Judge Goodman approved,

and that you have or will in short order serve defense counsel

with a courtesy copy with the court's blessing.

MS. GOLDBARG: Thank you, your Honor.

THE COURT: Or words to that effect.

MR. RETURETA: (Inaudible) also because I think --

THE INTERPRETER: Microphone, please.

MR. RETURETA: I'm sorry. 

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We have alluded to meetings, and the government has

done a wonderful job of describing those meetings. So I think

the idea is to file it under seal because we can -- there are

little extras that (inaudible).

THE COURT: Well, safe travels.

MR. RETURETA: Thank you, your Honor.

THE COURT: You have a few thousand miles and you have

a few hundred feet.

MS. GOLDBARG: Exactly, your Honor.

THE COURT: Your trip may actually be more dangerous

given the maintenance in this particular building.

MS. GOLDBARG: Yes, your Honor.

THE COURT: All right, folks. We will be in recess.

Take care. Bye now.

MR. RETURETA: Thank you for the hospitality, your

Honor.

THE COURT: You bet. Take care.

(Adjourned) 

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C E R T I F I C A T E 

I hereby certify that the foregoing is an accurate 

transcription to the best of my ability of the digital audio 

recording in the above-entitled matter. 

April 14, 2023 s/ Joanne Mancari 

 Joanne Mancari, RPR, CRR, CSR 

 Court Reporter 

 jemancari@gmail.com 

Case 1:22-cr-20423-RNS Document 55 Entered on FLSD Docket 05/05/2023 Page 53 of 53