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UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF FLORIDA

CASE NO. 17-20300-CR-SCOLA(s)(s)

UNITED STATES OF AMERICA

vs.

MICHAEL MUNDAY,
a/k/a “Mickey,”

Defendant.
________________________________________ /

NOTICE OF INTENT TO OFFER EVIDENCE PURSUANT TO FEDERAL RULE OF


EVIDENCE 404(B)

The United States, by and through the undersigned Assistant United States Attorney,

hereby files this notice of its intent to introduce evidence, pursuant to Federal Rule of Evidence

404(b) (“Rule 404(b)). As described below, the Government’s seeks to introduce at trial

evidence regarding the Defendant’s statements, both to his co-conspirators and the public

regarding his criminal past, including, among other things, his role as a courier for a drug

trafficking organization. The Defendant’s statements to his co-conspirators and to the general

public are relevant for the following two reasons.

First, the Defendant’s prior conduct demonstrates his intent, knowledge and absence of

mistake in the execution of the car title-washing scheme at issue in this case. The Government

anticipates that, at trial, the Defendant will argue that he was unaware that he was, among other

things, the chief courier for the title-washing scheme, and that he lacked knowledge of the illegal

nature of the operation. However, the Defendant’s prior conduct, in what he calls the

“transportation business,” i.e. the smuggling of contraband, directly refutes his argument that he

lacked the requisite knowledge and did not intend to actively take part in a criminal enterprise.

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Indeed, the Defendant has made a career of bragging about his criminal exploits. In particular,

the Defendant has bragged, and continues to brag, about his ability to move contraband,

undetected, through the use of cars and, in some instances, tow trucks. Further, the Defendant

has consistently bragged about his unique ability to evade law enforcement. The Defendant

advertised himself to both his co-conspirators, and the broader public, as a criminal mastermind,

someone who, as the Defendant would have the world believe, allegedly told Pablo Escobar that

he was “stupid.” However, the Defendant now seeks to come into this Court and claim he is

naive, unable to identify the bright flashing lights of his unlawful conduct. If the Defendant puts

knowledge of the criminal nature of his conduct at issue, as the Government anticipates, then the

Government will seek to introduce a plethora of public videos, interviews, and social media posts

in which the Defendant brags about his criminal exploits, his role as a courier for the Medellin

drug cartel, and the methods he used to evade law enforcement.

Second, the Defendant’s prior conduct is inextricably intertwined with his participation in

this conspiracy. The Government intends to offer testimony from Mark David Johnson, who was

an organizer of the title-washing scheme, and the Defendant’s constant companion. Mr. Johnson

will testify that from the beginning of their relationship. the Defendant consistently bragged

about his exploits as a “Cocaine Cowboy” and the “MacGyver” of drug smuggling. Indeed, the

Defendant told Mr. Johnson that “[i]f it flies, rolls, f**ks or floats, I can drive it.” Mr. Johnson

will testify that one of the primary reasons he decided to bring the Defendant into the conspiracy

was because of his reputation as a Cocaine Cowboy and his statements about his prowess as a

criminal and a contraband smuggler. Further, Mr. Johnson will testify that based on the

Defendant’s representations of his prior criminal conduct, Mr. Johnson believed he could trust

the Defendant to keep quiet as to their illegal conduct and, most importantly, to know how to

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behave if he was stopped by police. The testimony of Mr. Johnson is of course corroborated by

the contemporaneous public statements of the Defendant regarding his prior conduct, including

the Defendant’s use of some of the exact phrases described by Johnson and methods of evasion

in smuggling contraband.

The Government does not seek to affirmatively introduce the Defendant’s prior

conviction for drug trafficking at trial. However, should the Defendant testify at trial, the

Government would seek to introduce the prior conviction pursuant to Federal Rule of Evidence

609, for purpose of cross-examination of the Defendant.

RELEVANT FACTS

From 1982 to 1986, the Defendant was a leader of a sophisticated smuggling ring that

imported drugs, specifically cocaine, into the United States from Colombia, the Bahamas, and

Florida. The Defendant, along with members of his smuggling ring, recruited and employed

pilots, boat crews, communications personnel, ground support personnel and others to facilitate

the importation of illegal drugs. On October 28, 1987, a grand jury in the Southern District of

Florida returned a 28-count indictment charging the Defendant and 29 others with, among other

things, engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848 and

importing approximately 380 kilograms of cocaine in to the United States, in violation of 21

U.S.C. §§ 952(a) and 960(a)(1), and 18 U.S.C. § 2. See Attachment A (87-CR-0782-Paine).

On October 4, 1991, the Defendant plead guilty to Counts 1 and 6 of the indictment. See

Attachment B. On November 3, 1991, the Defendant was sentenced to a term of imprisonment

of 25 years as to Count 1 and 15 years as to Count 6, with the terms to run concurrently. See

Attachment C. The court also ordered that the Defendant serve a term of three (3) years special

parole to run consecutively to imprisonment term and any parole or other supervision time. The

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Defendant was released from Federal Custody on September 21, 1999 and his Supervised

Release ended on November 15, 2008.

Since the Defendant’s release from custody, he has not sought to put his past conduct

behind him and quietly return to society. Instead, the Defendant has embraced, highlighted, and

publicized his notorious activities. The Defendant has attempted to profit off his notorious past

by starring in the documentary “Cocaine Cowboys,” building an online presence focusing on his

identity as a “Cocaine Cowboy,” soliciting public appearances, participating in radio and

television interviews, creating a series of audio pod-casts entitled “Tall Tales,” and, allegedly,

selling the rights to his story to Paramount Pictures. According to witnesses that the Government

will call at trial, the Defendant continuously bragged about his exploits in the “transportation”

business.

Indeed, the Defendant quickly used his criminal notoriety and skill to participate in a

title-washing scheme. As described in the indictment in this case, on or about September 9,

2008, through on or about February 10, 2015, the Defendant and his co-conspirators sought to

unjustly enrich themselves by, among other things, (1) obtaining mortgaged automobiles through

various fraudulent methods, including, among other things, the use of straw buyers; (2) preparing

and mailing, via U.S. mail, false and fraudulent lien notices to all interested parties, including the

lender, as required by Florida law; (3) hiding the automobiles at various locations in Miami-

Dade and Broward Counties to avoid repossession by the rightful lienholders; (4) falsely and

fraudulently removing the automobile’s lawful owner from its title; and (5) selling the

automobiles to co-conspirators at prices below market value, so that the co-conspirators could re-

sell the automobiles at a profit. As part of the scheme, the Defendant: (1) paid distressed

loan/lease holders to turn over their vehicle to him at a discounted rate; (2) transported stolen or

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misappropriated cars from, among other places, Missouri to Florida; (3) hid these fraudulently

obtained or stolen vehicles at his residence to prevent the lienholder from being able to locate

and recover the vehicle; (4) attended and ran sham car auctions in order to “comply” with Florida

statutes and obtain “clear” titles; (5) monetized the scheme by delivering the cars to third party

purchasers; and (6) signed over “clean titles” in the name of a tow truck company, which served

as a cover for the illegal activity. In total, the scheme involved over 150 vehicles and over $1.7

million dollars in loss to various financial institutions and other automotive lenders.

On October 24, 2017, a grand jury in the Southern District of Florida returned a second

superseding indictment, charging the Defendant with one count of Conspiracy to Commit Mail

Fraud, in violation of 18 § 1349, and five counts of Mail Fraud, in violation of 18 U.S.C. §§

1341 and 2.

LEGAL STANDARD

Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to

prove a defendant’s character in order to show action in conformity therewith. Fed. R. Evid.

404(b). Such evidence “may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Id. For evidence of other crimes or acts to be admissible under Rule 404(b), (1) it

must be relevant to an issue other than defendant’s character; (2) there must be sufficient proof to

enable a jury to find by a preponderance of the evidence that the defendant committed the act(s)

in question; and (3) the probative value of the evidence cannot be substantially outweighed by

undue prejudice, and the evidence must satisfy Rule 403. United States v. Chavez, 204 F.3d

1305, 1317 (11th Cir. 2000).

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But 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 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. 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). Nonetheless, evidence of criminal activity other than the charged offense,

whether inside or outside the scope of Rule 404(b), must still satisfy the requirements of Rule

403. Baker, 432 F.3d at 1219 n. 36.

ARGUMENT

1. The Defendant’s prior conduct demonstrates his intent, knowledge and the absence
of mistake to engage in illegal conduct in furtherance of the mail fraud scheme.

As stated above, for over ten years the Defendant has openly advertised himself as a

“Cocaine Cowboy,” a criminal mastermind, an expert in moving contraband through the use of

cars and tow trucks, and a master in employing his tradecraft to avoid law enforcement. The

Defendant’s statements about his prior conduct and criminal proficiency demonstrate knowledge

of the illegal nature of his actions as part of the present title-washing scheme, the lack of mistake

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in his participation, and his intent to actively participate in the scheme in among other ways as

the “head of the transportation department” and the “logistics guy.” The Government’s use of

these statements and admissions by the Defendant is critical to the Government’s ability to refute

the Defendant’s anticipated defense that he lacked knowledge of the illegal nature of his

activities and was simply unknowingly and unwillingly caught in the middle of the scheme. For

instance, interviews of and internet postings by the Defendant about his prior work as a

contraband smuggler contain phrases that the Defendant used to describe his work in the present

title-washing scheme. The interviews also contain statements by the Defendant about how, as a

drug smuggler, he sought to limit his liability by positioning himself in the middle of the

scheme’s hierarchy. In these interviews, the Defendant continually states that he was simply the

“transportation guy” or “UPS.” Likewise, in the present title-washing scheme, the Defendant

sought to similarly position himself as the “logistics guy” or “head of the transportation

department.”

In addition, during the interviews and in the postings the Defendant repeatedly discusses

his use of a tow service and a work order to move contraband. He also discusses how it was a

cover for his drug smuggling activities. Similarly, here the Defendant used a tow service as a

front for his illicit activities and used a “dealer tag” in case he was stopped by police while

transporting the car. If the car was stopped by law enforcement while being transported and

found to be stolen, the Defendant had cover to simply say he was transporting the car and had no

other knowledge of the car’s status. Further, the Defendant commonly described his work in the

title-washing scheme as “More work for Munday.” This same phrase is the title of a chapter on

the audio disc “Tall Tales.” In this audio chapter, the Defendant discusses one occasion in which

he smuggled narcotics into the United States. Below, the Government sets forth numerous

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examples of statements and internet postings by the Defendant that establish his knowledge, lack

of mistake and his intent to participate in the scheme.

Cocaine Cowboys

In 2006, the Defendant starred in the documentary film “Cocaine Cowboys.” The

documentary focuses on the importation and trade of drugs in Miami in the 1970s and 1980s.

The Defendant brags about his ability to smuggle drugs and his proficient evasion of law

enforcement. For instance, the Defendant discusses his use of code words, such as “coming in

the front door” or “children in the water,” to evade law enforcement. The Defendant also states

that he would move contraband through the use of a tow truck, a trailer, and a work order.

Further, there is video of the Defendant loading a car onto a trailer.

At trial, the Government intends to offer the testimony of Messrs. Johnson and

Carrington, who will discuss their use of code words with the Defendant as part of the

conspiracy. For instance, if a car were to come up as stolen, the Defendant and his

coconspirators would refer to it as a possible “Signal Ten.” Mr. Johnson will testify that the cars

hidden at the Defendant’s house were referred to as “Orphans” and the Defendant’s house was

referred to as the “Orphanage.” Similarly, if a lienholder were attempting to locate a car, the

Defendant and his conspirators would refer to the car as a “Problem Child.” Here, just as in the

video, the Defendant used a tow service company to serve as a cover for his illicit activity and

allow him to transport contraband while maintaining, at least as to the Defendant, plausible

deniability.

Twitter

Since September 14, 2009, the Defendant has bragged about his exploits through Twitter

postings and publicized public appearances where he labeled himself a “Cocaine Cowboy.” The

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Defendant maintains a Twitter page with the handle @Mickey-Munday, with the header “THE

REAL Mickey Munday Original Cocaine Cowboy.” The Defendant’s branding of himself as a

Cocaine Cowboy and his countless boasts of his criminal prowess were part of the reason that

Mr. Johnson brought the Defendant into the conspiracy. Put another way, the Defendant has not

sought to run away from his past, instead he has used it as an advertisement.

For example, in a December 3, 2011, during the charged conspiracy, the Defendant

promoted his “Tall Tales” CD using Twitter, and labeled himself “THE ORIGINAL COCAINE

COWBOY.”

On December 15, 2011, the Defendant posted an email address to allow interested parties

to book public appearances.

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On January 6, 2012, during the charged conspiracy, the Defendant posted a video

commercial for his “Tall Tales” CD, which shows him operating a tow truck.

Not only did the Defendant use Twitter to promote his identity as a Cocaine Cowboy, he

also used Twitter to promote his prowess as a smuggler and his “tools of the craft,” his methods

for transporting contraband. For example, on March 3 and 31, 2013, during the course of this

conspiracy, the Defendant posted a quote, attributed to himself, on Twitter.

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This quote is nearly identical to statements that the Defendant made to coconspirators about his

ability to complete his tasks in furtherance of the conspiracy, the transportation of contraband, in

this case, cars. The Defendant posted a similar self-attributed quotes on March 4 and 5, 2013.

Indeed, on May 29, 2017, even after the Defendant was indicted and arrested in this case,

the Defendant posted on Twitter an advertisement for signed copies of his “Tale Tales” CD.

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These Twitter postings establish the Defendant’s knowledge and lack of mistake as to his

criminal conduct in the conspiracy and are inextricably intertwined with inclusion in this

conspiracy.

Interviews

For several years, the Defendant has participated in numerous interviews, clips of which

the Government intends to show to the Court during the calendar call on January 2, 2018. In

these interviews, as in his Twitter postings, the Defendant brags about his prior criminal conduct

and his expert knowledge of and methods for smuggling contraband and evading law

enforcement.

For instance, in March 2009, the Defendant was interviewed by Karmaloop TV. During

the interview, the Defendant is asked what his role was as a Cocaine Cowboy, the Defendant

replies “I was the pilot. Actually if it flies, rolls or floats, I was the guy that moved it. I had the

philosophy if you don’t buy it, you don’t sell it and especially don’t use it, and you don’t steal it,

you will never have any problems, you become the UPS of the smuggling industry.” This

statement is notable for two reasons. First, the Defendant used a version of the phrase “flies,

rolls or floats” to describe his abilities to Mr. Johnson. Second, his statement as to being the

UPS of the smuggling industry, describes, in part, the role he played in the title-washing

conspiracy.

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In January 2013, during the course of the present conspiracy, the Defendant was

interviewed by NBC news regarding the “Cocaine Cowboy Era.” In this interview, the

Defendant is referred to as “Escobar’s Smuggler” and he brags about his prior criminal conduct

and his prowess in evading law enforcement. Specifically, the Defendant brags about calling

Pablo Escobar “stupid.” The Defendant also brags about evading law enforcement when they

sought to arrest him.

In April 2015, the Defendant was interviewed by Susana Baker of Art Talk. During the

interview, the Defendant brags about his ability to evade law enforcement. The Defendant states

“I looked at it like the military, know the enemy, know the competition, so don’t let them know

you, so you have to keep a low profile so you can be right in their face and they not see you.”

The Defendant then references using an old family type car used to transport contraband. The

Defendant employed this knowledge to go undetected in the present title-washing scheme.

In May 2015, the Defendant was interviewed by Fray of HipHop Morning. During the

interview, the Defendant remarks “I have never really understood why people think I am a

celebrity. The irony is that when I was doing what I was doing I was a ghost, nobody saw me. I

tried to be there but you never really paid attention to me. I was the tow truck driver.” The

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Defendant, referring to contraband smuggling, brags that “I got away with it for so long and I

was so good at it. You might say I have become an Icon there. People want to know how I did or

why I did it. I am always happy to tell them.” The Defendant further brags that he is “really

good at transportation. If it flies, rolls or floats I turn out to be really good.” The Defendant goes

on to tell the audience that it is important not to be the person at the top of the criminal

organization, and that you want to be the middleman in the conspiracy to limit exposure. The

Defendant states that “God forbid something happens up here, to one, two, or three, I still want

to be, let number six step over me and become number four or number three, I like it right here,

nobody knows who I am.. low-key… low-key.” In that statement, the Defendant sets forth not

only his likely defense, but the reason why he sought out a particular role in the scheme; not as

the figurehead, but as the middleman, the “logistics man,” the head of the “transportation

department.” It should also be noted that, during the interview, the Defendant’s Twitter handle

and “Tale Tales” cd are advertised.

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In September 2016, the Defendant was interviewed on SoFloRadio. During the interview

the Defendant, referring to his role as a drug smuggler for the Medellin Cartel, states that he was

“in the transportation business.” Later in the interview the Defendant states, “I was in the

transportation business, John [Roberts] distributed to the people who purchased… I would go

pick it up with a tow truck.” The Defendant goes on to state that you would not think of him as a

drug dealer because he “drove his tow truck most of the time or my flatbed truck.”

During the trial, the Government will offer testimony from Mr. Johnson that the

Defendant commonly used the phrase “transportation business” to describe his driving of stolen

and misappropriated cars as well as being the designated point of contact during trips to Missouri

when Mr. Johnson was not there. Indeed, Mr. Johnson will testify that the Defendant described

himself as head of the “Transportation Department.” Similarly, just as the Defendant did when

he was a courier for the Medellin drug cartel, the Defendant used his work with a towing

company as cover for his illicit conduct. It should also be noted that in this interview the

Defendant advertises his Instagram account, @theofficialmickeymunday.

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2. The Defendant’s prior conduct is inextricably intertwined with his participation in


this conspiracy.

The Defendant’s notorious past activities in drug trafficking, specifically the transport of

contraband, is directly relevant to his recruitment into, and his statements and activities as part of

the title-washing scheme.

First, since the Defendant’s release from incarceration, the Defendant has bragged about

his prowess evading law enforcement and transporting contraband. Mr. Johnson will testify at

trial that his very first conversations with the Defendant were about his prior history as a cocaine

trafficker. Mr. Johnson will further testify that it was this aspect of the Defendant’s prior history

that made him an attractive person to bring into the conspiracy. Mr. Johnson will testify that the

Defendant’s stories of evading law enforcement reassured Mr. Johnson that the Defendant would

be able to transport the stolen cars back from Missouri and within the state of Florida. Further,

Mr. Johnson will testify that he believed that, based on the Defendant’s statements about his

notorious past, he would be a trusted co-conspirator.

Second, code words and methods used by the Defendant during the title-washing scheme,

are also used by the Defendant in his public postings related to his drug smuggling operation.

Third, because the Defendant believed that he owed the Government money in

connection with his prior criminal conduct, he did not have a bank account and requested that

Mr. Johnson only pay him in cash. Specifically, Mr. Johnson will testify that the Defendant said

that he had a judgment against him and must be paid in cash. This detail is critical to explaining

why there are no bank statements or checks showing payment from Johnson and others to the

Defendant.

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3. Defendant’s prior conviction for drug trafficking is admissible for purpose of


cross examination.

Should the Defendant testify at trial, the Government would seek to introduce his prior

conviction pursuant to Federal Rule of Evidence 609, for the purpose of cross-examination of the

Defendant.

Rule 609 “appl[ies] to attacking a witness’s character for truthfulness by evidence of a

criminal conviction.” Fed. R. Evid. 609(a); see United States v. Preston, 608 F.2d 626, 639 (5th

Cir. 1979) (“[E]vidence of prior convictions is admitted under Rule 609(a)(1) solely for purposes

of attacking credibility.”). Rule 609(b) of the Federal Rules of Evidence prohibits the admission

of evidence of past convictions for impeachment purposes if the convictions are more than ten

years old, “unless the court determines, in the interests of justice, that the probative value of the

conviction supported by specific facts and circumstances substantially outweighs its prejudicial

effect.” Fed. R. Evid. 609(b). In applying this balancing test, courts consider a variety of

factors, such as “(1) The impeachment value of the prior crime; (2) The point in time of the

conviction and the witness’ subsequent history; (3) The similarity between the past crime and the

charged crime; (4) The importance of the defendant's testimony; [and] (5) The centrality of the

credibility issue.” United States v. Pritchard, 973 F.2d 905, 909 (11th Cir. 1992).

“In this circuit, there is a presumption against the use of prior crime impeachment

evidence over ten years old; such convictions ‘will be admitted very rarely and only in

exceptional circumstances.’ ” Id. (quoting United States v. Tisdale, 817 F.2d 1552, 1555 (11th

Cir. 1987)). “The danger in admitting stale convictions is that while their remoteness limits their

probative value, their prejudicial effect remains.” Pritchard, 973 F.2d at 908. “The jury, despite

limiting instructions, can hardly avoid drawing the inference that the past conviction suggests

some probability that defendant committed the similar offense for which he is currently

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charged.” Id. The older the conviction, the less likely it is to be probative. See United States v.

Beahm, 664 F.2d 414, 419 (4th Cir. 1981) (finding that the defendant’s almost-ten-year-old

conviction was inadmissible due, in part, to its temporal remoteness). The proponent seeking to

introduce the conviction must show “exceptional circumstances justifying the use of an over-age

prior conviction.” United States v. Hairston, 627 Fed. Appx. 857, 860 (11th Cir. 2015).

However, while the proponent’s burden is high, it is far from insurmountable. Notably,

where a defendant's credibility is central to the case, this favors admitting evidence of his

convictions. See United States v. Johnson, 302 F.3d 139, 152-53 (3d Cir. 2002) (holding that

evidence of defendant's conviction was properly admitted because his “[c]redibility was a major

issue at trial”); Pritchard, 973 F.2d at 909 (finding that because “[t]he crux of this case was a

credibility issue,... [the defendant's] criminal record ... took on special significance”). Here,

although the Defendant’s prior conviction is more than 10 years old, the Defendant’s anticipated

defense rests squarely on his credibility. Therefore, should the Defendant testify, his prior

conviction would be proper grounds for cross-examination.

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CONCLUSION

For the reasons set forth above, the Government respectfully requests that it be allowed to

affirmatively introduce at trial evidence regarding the Defendant’s statements, to his co-

conspirators and to the general public, of his prior criminal activity. Further, the Government

respectfully requests that if the Defendant testifies at trial, it be able to introduce his prior

conviction for purposes of cross-examination.

Respectfully submitted,
BENJAMIN G. GREENBERG
UNITED STATES ATTORNEY

By: /s/ Joshua S. Rothstein


Joshua S. Rothstein
Assistant United States Attorney
Court ID No. A5502111
99 Northeast 4th Street
Miami, Florida 33132-2111
Tel: (305) 961-9208

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 29, 2017, I filed the foregoing document with

the Clerk of the Court and all counsel of record using CM/ECF.

/s/ Joshua S. Rothstein


Joshua S. Rothstein
Assistant United States Attorney

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