Opinion
1:18-cr-00002-JLT-SKO
03-15-2022
UNITED STATES OF AMERICA, Plaintiff, v. ISRAEL ALBERTO RIVAS GOMEZ and JOHN DOE aka “MARCOS CASTRO”, Defendants.
ORDER RE MOTIONS IN LIMINE (Docs. 211, 215, 224, 226, 352, 327, 363, 382)
INTRODUCTION
Defendants Israel Alberto Rivas Gomez and John Doe aka “Marcos Castro” (“Castro”), as well as the government, have submitted numerous motions in limine for resolution before trial, which is currently scheduled for jury selection to begin on May 31, 2022. (Doc 375.) For the reasons discussed on the record and set forth below, the Court rules on each of the pending motions in limine as follows.
Defendant Rivas Gomez's Motions in Limine \ A. Motion for Advisement to Spectators
The Mara Salvatrucha gang, also known as “MS-13, ” has “zero tolerance” for members and associates who cooperate with law enforcement. (Doc. 13 at 5.) MS-13 is known to monitor law enforcement reports and interviews before giving the “green light” for cooperators to be killed on site. (Id. at 13-14.) Because of this, witnesses crucial to Rivas Gomez's defense have expressed hesitation to testify about Rivas Gomez's history and experiences with MS-13 in both the United States and El Salvador. (Doc. 211 at 2-3.)
To curb the concern that MS-13 may flag these witnesses as “cooperating” with the government, Rivas Gomez has requested that the Court read an advisement on the record clarifying that testimony presented in this trial is only given for the purposes of these proceedings against Marcos Castro and Israel Rivas Gomez. (Doc. 211 at 1.) The government takes no position on this motion and asks only that any advisement be read outside the presence of the jury.
The motion is GRANTED. The parties are ORDERED to confer and provide the Court with a proposed advisement before the start of trial.
B. Motion to Preclude Characterizing “Pirra” as a “Gang Moniker”
The government plans to introduce evidence that MS-13 members knew and referred to Rivas Gomez as “Pirra.” (Doc. 268 at 1-2.) Rivas Gomez admits that “Pirra” is his childhood nickname and that many people, potentially including gang members, have called him “Pirra” throughout his life. (Docs. 215, 320.) Rivas Gomez objects, however, to any suggestion that the nickname was given to him by MS-13 members as part of his membership in the gang. (Doc. 215.)
The government has agreed that it will not introduce evidence that “Pirra” was a moniker given to Rivas Gomez by MS-13 members. However, expert witnesses for the government may provide the jury with information regarding the gang's typical use of nicknames and monikers but may not refer to “Pirra” as a “gang-moniker.” The question of Rivas Gomez'e membership or involvement with MS-13 is a question for the jury. Thus, the motion (Doc. 215) is GRANTED per the parties' agreement.
C. Motion to Translate, Not Summarize, Facebook Texts
Rivas Gomez's moves the Court for an order that when presenting evidence of Spanish language messages found on Rivas Gomez's phone, the government must translate the messages (Doc. 224). The parties agree that any such messages that the government intends to use in its case and chief will be provided to the defense sufficiently in advance of trial to allow him to assess their accuracy and raise further objections as necessary. (Doc. 269.) Thus, the motion is GRANTED.
D. Motion Regarding Government Expert Testimony
The Court reserves ruling on Rivas Gomez's motion regarding the contents of government expert testimony (Doc. 226) until trial.
E. Motion to Authenticate and Correct Undercover Audio English Transcript
The Court reserves ruling on Rivas Gomez's motion to correct an undercover transcript, (Doc. 309), as the parties are negotiating on this matter and may be able to reach resolution.
F. Motion to Introduce 404(b) Evidence
Rivas Gomez seeks to introduce evidence regarding Luis Reyes-Castillo, a participant in A.R.'s murder who is not a co-defendant in this case. (Doc. 352.) Specifically, Rivas Gomez seeks to present evidence about Reyes-Castillo's Facebook messages on the evening of the victim's murder; a 2017 assault in which Reyes-Castillo was a participant; and several murders in Las Vegas in 2018. The Court GRANTS this motion as to Reyes-Castillo's Facebook messages.
In May 2017, Reyes-Castillo and two other MS-13 members attacked victims in Mendota, California with butcher-style knives or meat cleavers. The group retreated back to their vehicle when the victim yelled for a neighbor to call law enforcement. (Doc. 353 at 17-19.) The driver of the vehicle may not have been affiliated with MS-13 and now asserts that he did not know Reyes-Castillo and the other MS-13 members planned to approach the victim. (Doc. 303, n.2.) Even still, after the attack police found a 14” blade under the driver's seat and another under the front passenger's seat. (Doc. 352 at 3) The driver, Nelson Israel Reyes Mendoza, despite claiming that he was not a willing participant in the attack, was charged with assault and conspiracy to assault the victim (Doc. 353 at 23-32) and is pending trial.
From January to March 2018, Reyes-Castillo is alleged to have participated in a number of murders in the Las Vegas area. Only one of these murders-in which Sandoval-Martinez was killed-is similar to the facts alleged in this case. (Doc. 353 at 112-117) In that case, the evidence demonstrates that one of the coparticipants and the victim were “mad-dogging” each other at a nightclub due to a dispute over a woman. Reyes-Castillo and two others tricked the victim into the car. The fourth participant drove the victim and the others to a spot designated by Reyes-Castillo where they killed the victim by shooting him and hacking him with a machete. There is no evidence that the group planned to murder when they arrived at the club-they did not know the victim would be there-but that they targeted the victim due to his interaction with a member of the group. The only indication that all four were not fully on board with the killing was when the driver hesitated before striking the victim, which allowed the victim to try to escape, before all four hacked the victim to death.
To introduce evidence of these violent acts, Rivas Gomez must first offer a “permissible purpose” for the evidence under Federal Rule of Evidence 404(b). See United States v. Espinoza, 880 F.3d 506, 515 (9th Cir. 2018) (holding that Rule 404(b) bars admission of evidence of other crimes where that evidence proves only criminal disposition). Rivas Gomez argues that these instances are evidence of Reyes-Castillo's “motive, preparation, and plan” to orchestrate A.R.'s killing, as well as his modus operandi, which support Rivas Gomez's defense. (Doc. 331 at 3.) Specifically, Rivas Gomez claims that he was dragged into A.R.'s murder as an “unknowing” participant who had no intention of hurting someone when he met Reyes-Castillo that night. (Id. at 2-3.) This defense is strengthened if Rivas Gomez can show that Reyes-Castillo had a pattern of involving unknowing participants into his violent acts.
As an initial matter, the Court is skeptical that Rivas Gomez can offer this modus operandi evidence related to Reyes-Castillo's violent acts for a purpose other than to demonstrate Rivas Gomez's lack of motive. The defense offers little in the way of explanation as to the purpose for this evidence, and the other purposes offered by the defense-including preparation and plan- are not contested in this case and do not aid Rivas Gomez's defense. See United States v. Cruz-Garcia, 344 F.3d 951, 954 (9th Cir. 2003) (evidence of prior crimes can only be admitted under Rule 404(b) where it bears on relevant issues.)
As to demonstrating Rivas Gomez's lack of motive, evidence of Reyes-Castillo's modus operandi is admissible if the evidence tends to prove a material point and the prior acts are sufficiently similar to the act charged. See United States v. Romero, 282 F.3d 683, 688 (9th Cir. 2002) listing the factors for 404(b) admissibility). There appear to be some factual similarities between the 2017 assault and the attack on A.R. Both instances appear to have been premeditated at least to some extent and both involve a participant who now claims he was unaware that his compatriots would initiate a violent attack. (Docs. 353 at 18-21; 303, n.2.) Therefore, the 2017 assault provides some support for Rivas Gomez's defense that Reyes-Castillo included him unknowingly in a violent plot.
In the 2017 assault, three participants of the assault, including Reyes-Castillo, were dressed in dark clothing, wore gloves, and were armed with butcher knives. The driver, Nelson Israel Reyes Mendoza, was wearing a red shirt. (Doc. 353 at 18)
Based upon this analysis, evidence related to the 2017 assault, for the purpose of demonstrating Rivas Gomez's lack of motive in this case, is GRANTED. However, in connection with this order, the Court does not find-one way or the other-that the criminal complaint regarding the 2017 assault alone is admissible. In general, mere accusations of conduct, such as those found in criminal complaints, are not enough to prove that the actor actually committed the prior bad acts. United States v. Bailey, 696 F.3d 794, 801 (9th Cir. 2012). That being said, the Court recognizes that the evidentiary standard when an accused offers this type of evidence as a shield, as opposed to when the government offers it as a sword, is more lenient. United States v. Wright, 625 F.3d 583, 608 (9th Cir. 2010)
For the reasons set forth above, the motion is DENIED without prejudice as to the Las Vegas murders. The defense may renew this motion with respect to the Las Vegas murders if additional evidence comes to light that would support admissibility.
Defendant Castro's Motions in Limine
A. Motions 1-2 to Exclude Certain Pre-Arrest Statements
In the days prior to A.R.'s murder, Castro met with his FBI handler and made several statements about participating in criminal activity on behalf of MS-13 in El Salvador prior to emigrating to the United States in 2014. Castro now seeks to exclude some of these statements on the grounds that they are untrue and/or unduly prejudicial. (Doc. 327 at 4-8.)
The Court reserves ruling on these motions pending the government's submission of proposed evidence regarding these statements.
B. Motion 3 to Exclude Evidence That “Marcos Castro” is not Castro's True Name
During the same meeting where Castro described prior criminal activity in El Salvador, he also told the FBI that “Marcos Castro” is not his real name. He asserted that before he emigrated to the United States, he and his family paid a lawyer $13,000 to change his name and “erase” his real name from systems in El Salvador. (Doc. 298 at 2-3.) Castro asserts now that his story was untrue. His family was too poor to have afforded such a hefty fee, and his mother has confirmed to law enforcement that Castro's name was and always has been Marcos Ernesto Castro. (Doc. 327 at 328, 343.) Castro argues that introducing evidence of this supposed name change would be unduly prejudicial and have little to no probative value. The Court agrees. Castro's motion to exclude evidence of his supposed name change for non-impeachment purposes is GRANTED.
C. Motion 4 to Exclude Evidence of Castro's Undocumented Immigration Status
Shortly after A.R.'s murder, Castro was detained by immigration authorities for being present in the country illegally. It was during this detention that Castro alerted authorities to A.R.'s murder. Castro seeks to prevent the government from informing the jury to the specific facts surrounding his detention by immigration authorities: that he entered the United States illegally in 2014 and was detained for unlawful presence and undocumented status. (Doc. 327 at 8-9.)
The government is free to introduce evidence that Castro was subject to immigration enforcement, but the prejudicial effect of the information that Castro's entered the country in violation of the law or that he is undocumented now or was at the time of the events alleged in the indictment, substantially outweighs whatever probative value this evidence provides. Fed.R.Evid. 403. This ruling does not impact the potential introduction of evidence regarding Castro's immigration status for impeachment purposes. Thus, this motion is GRANTED.
D. Motion 5 to Exclude Evidence of Machete Found in Castro's Home
On or around December 17, 2017, law enforcement executed a search warrant at Castro's residence and seized a machete. Castro argues that the machete should not be entered into evidence because it was not used during A.R.'s murder, and Castro is not alleged to have participated in the murder at all. (Doc. 327 at 9.)
The government counters that the machete is evidence of Castro's membership in MS-13 and it corroborates Castro's own admission to his FBI handlers that he had previously used a machete as part of MS-13's crusade to threaten and scare rival gang members with machetes, which was meant to control MS-13 territory. (Doc. 297 at 1-4.) The existence of the machete may also serve to rebut Castro's defense that he was simply providing information about others to the FBI without participating in the assaults himself. (Id.) The government agrees that it is not suggesting, and will not argue at trial, that the machete found in Castro's residence was used to cause A.R.'s death.
Because evidence of the machete found in Castro's home goes to a direct element of the offense charged, the existence of and Castro's participation in the enterprise, it is admissible. See United States v. Murillo, 11 F.App'x. 901 (9th Cir. 2001) (citing United States v. Bernal, 719 F.2d 1475, 1478 (9th Cir. 1983) (drug distribution paraphernalia and a large amount of cash is not character evidence under Rule 404(b) when it was offered to prove defendant's participation in a drug distribution conspiracy)); see also United States v. Cervantes, 170 F.Supp.3d 1226, 1325 (N.D. Cal. 2016) (holding 404(b) irrelevant to the admissibility of evidence showing the “[t]argeting members of a rival gang” because it was “relevant to prove one of the alleged purposes of the alleged enterprise”-preserving and protecting the power, territory, reputation, and profits of a gang through the use of intimidation, violence, threats of violence, assaults, and murder.) Castro's motion to exclude evidence of the machete is therefore DENIED.
E. Motion 6 to Exclude Photos of the Deceased as to Castro
Castro asserts that photos of the deceased victim in this case would be unduly prejudicial if admitted against him because he did not actually participate in the assault that killed A.R. (Doc. 327 at 10-12.) The Court reserves ruling on this motion until the government specifies the photos of the deceased it intends to present at trial.
F. Motion 8 to Exclude Public Disclosure of the Defendant's Gang Expert
For safety reasons, Castro requests that his gang expert be permitted to testify in open court using a pseudonym. (Doc. 327 at 14.) The parties agree that this is permissible so long as the defense discloses the expert's actual name to the government in advance. See United States v. Machado-Erazo, 951 F.Supp.2d 148, 152-53 (D.D.C. 2013) (allowing an expert witness testifying about MS-13 to use a pseudonym on the stand so long as all parties had access to the witness's true name). The motion is hereby GRANTED provided Castro provides the government with the true name of his expert witness no later than April 15, 2022 .
G. Motions 9-10 to Limit Cross-Examination of Castro's Expert Witness and Compel a Grant of Use Immunity
Castro's motions in limine 9 and 10 (Doc. 327 at 15-16), address potential limitations on the cross-examination of his expert witnesses. The Court reserves ruling on these motions until trial, per the parties' agreement.
H. Motion 11 to Preclude Evidence of “Typical” Admonitions Given to Informants
A key issue in this case is whether Castro was acting as a member of MS-13 or as an FBI informant when he participated in A.R.'s kidnapping and other gang-related activities. As such, the parties have presented conflicting factual evidence regarding what Castro was told and authorized to do by his FBI handlers throughout the course of his cooperation. Castro seeks to preclude evidence of the “typical” admonitions that FBI informants receive and instead argues that the government should only be permitted to introduce evidence of what Castro himself was actually told. (Doc. 327 at 16-18.) However, the information communicated to Castro and what he understood is a factual question appropriate for jury resolution. As such, this motion is DENIED.
I. Motions 13-14 for Extended, Attorney-Conducted Voir Dire and a Jury Questionnaire
Due to the subject matter of the indictment and the involvement of a gang known to be violent, the Court will exercise its discretion to allow the use of a jury questionnaire. As such, the motion for use of a jury questionnaire is GRANTED. The parties are ORDERED to meet and confer regarding the contents of the questionnaire before submitting a proposed questionnaire to this Court. The questionnaire must be finalized on or before May 20, 2022 . (Doc. 375.) The Court reserves ruling on the motion for extended, attorney-conducted voir dire until after the proposed jury questionnaire has been submitted.
J. Motions 15-16 for Exclusion of Non-Essential Persons from Future Proceedings and for a Protective Order Binding Permitted Spectators
At the hearing, counsel discussed whether the trial should be closed to spectators. Undoubtedly, if it is known that Castro acted as confidential informant, his safety is placed at risk. On the other hand, the law presumes that the trial is open and available to the public. The Court is reluctant to close the proceedings, despite that it has acquiesced in allowing portions of the proceedings and certain filings to occur outside of the public view. As of now, the Court does not find that the weighty burden of excluding the public entirely has been met and it is unwilling to consider prior restraints on the media without a clear and narrowly tailored request. Rather, it seems that lesser methods could be employed to provide Castro a greater level of risk-avoidance, but these have not been proposed or thoroughly discussed. Consequently, the motion is DENIED without prejudice to renewing the motion if a greater showing is made.
Presumably, he considered this issue when deciding to act in this role.
K. Motion 18 to Exclude Testimony that Defendant Was a Gang Member Based on Activities He Performed While He Was a Government Informant
The government intends to call an MS-13 member as a witness to testify about conversations the witness had with Castro. These conversations support the government's allegation that Castro was acting as a legitimate member of MS-13, not merely as a government informant. (Doc. 363 at 2.) Castro asserts that this would be unduly prejudicial because he could not have acted as a government informant without asserting himself to other MS-13 members as a legitimate participant in the gang. (Doc. 363 at 3.) However, whether Castro was acting for his own purposes or playing a part to assist the FBI is a factual question for the jury. This motion is DENIED.
L. Motion 19 to Prevent Any Witness with Present or Former Gang Involvement from Being Told that Castro Was an Informant
Ruling on this motion (Doc. 363 at 4) is RESERVED.
M. Motion 20 to Prevent Public Disclosure of Sensitive Details in Deposition
In a deposition earlier this year, Castro's mother revealed information regarding her identity and location, as well as sensitive identifying information about family members and personal threats from MS-13. Castro requests that certain portions of the deposition transcript be sealed. Specifically, Castro asks to seal anything in the deposition transcript that “could help someone find [Ms. Castro] or her family or which would make public her testimony about her and her family's threats from the MS-13.” (Doc. 373 at 6.) Counsel agreed to coordinate to identify the portions of the transcript at issue. To this extent, the motion is GRANTED.
N. Motion 21 for Pretrial Discovery Deadline
Castro requests that the Court impose a pretrial discovery deadline by which Rule 16 and expert disclosures would be provided to the defense. (Doc. 363 at 5.) The government requests that any such deadline apply also to the defense. This motion is GRANTED. All applicable Rule 16 and expert discovery SHALL be exchanged on or before April 15, 2022 .
In issuing this order, the Court recognizes that human error may occur and does not intend this deadline to act as an automatic exclusion as to evidence produced after this deadline. However, to the extent that evidence is produced after this deadline, counsel are advised that they will be required to explain in detail why the error occurred, what was done to prevent the error, why these efforts failed, and the extent to which any prejudice would result if the evidence is excluded, among other relevant information. In short, counsel shall do everything possible to ensure the Rule 16 evidence is produced by the deadline.
O. Motion 22 to Modify the January 31, 2022 Protective Order
On January 31, 2022, the parties stipulated to a protective order regarding the government's production of audio recorded interviews of a witness with MS-13 history, as well as related, sensitive documents from other witness interviews. The protective order notes that if the contents of these interviews or documents were to be disclosed to the defendants or to other MS-13 members, it could place the witnesses at risk of harm to the extent that it appears they cooperated with law enforcement. (Doc. 347 at 1-2.) Per the terms of the protective order, defense counsel agreed not to disseminate copies “nor share with anyone other than designated linguists” the contents or summaries of the contents of the audio recordings of the interviews and sealed pleadings. (Id. at ¶ 4.)
Castro's counsel now requests a revision of the protective order on the grounds that there are more than 40 hours of audio recordings that need to be reviewed and transcribed-a task which he is unable to complete alone, even with the help of the “designated linguists.” (Doc. 363 at 6-7.) The Court agrees that a modification is in order for these purposes. The motion is GRANTED, and the parties are ORDERED to meet and confer before submitting a proposed modification to the protective order.
P. Motion 23 for a Trial Confirmation Order
Defense counsel's motion for a trial confirmation order (Doc. 363 at7) is GRANTED.
Government's Motion in Limine
A. Motion to Preclude Public Authority Defense
The government seeks to preclude Castro from asserting a public authority defense. To raise a public authority defense, Castro has the burden of demonstrating several facts by a preponderance of the evidence, including that a government agent had actual authority to authorize the criminal conduct at issue. United States v. Matta-Ballesteros, 71 F.3d 754, 770 n. 12 (9th Cir. 1995), as amended 98 F.3d 1100 (9th Cir. 1996). Because Castro has made no showing that any government agent had the authority to authorize kidnapping or murder or the aiding and abetting of these crimes, and it is improbable that any showing can be made, the government's motion is GRANTED. The Court will reconsider this order if Castro makes a factual showing demonstrating evidence of each required element of a public authority defense.
CONCLUSION
For all of the reasons explained above:
1. Rivas Gomez's motion for an advisement to spectators (Doc. 211) is GRANTED, and the parties are ORDERED to meet and confer and provide the Court with a proposed advisement before the start of trial.
2. Rivas Gomez's motion to preclude characterizing “Pirra” as a “gang moniker” (Doc. 215) is GRANTED.
3. Rivas Gomez's motion to translate, not summarize, Facebook texts (Doc. 224) is GRANTED.
4. The Court RESERVES ruling on Rivas Gomez's motion to limit the testimony of the government's MS-13 expert (Doc. 226);
5. The Court reserves ruling on Rivas Gomez's motion to authenticate and correct an undercover audio English transcript (Doc. 382).
6. Rivas Gomez's motion to present 404(b) evidence regarding Reyes-Castillo's actions (Doc. 352) is GRANTED as to the Facebook messages and 2017 assault and DENIED as to the Las Vegas murders.
7. The Court RESERVES ruling as to Castro's motions 1 & 2 to exclude certain pre-arrest statements (Doc. 327 at 4-8).
8. Castro's Motion 3 to exclude evidence that “Marcos Castro” is not Castro's true name (Doc. 327 at 8) is GRANTED.
9. Castro's Motion 4 to exclude evidence that he entered the county illegally or was/is undocumented (Doc. 327 at 9) is GRANTED.
10. Castro's Motion 5 to exclude evidence of a machete found in his home (Doc. 327 at 9) is DENIED.
11. The Court RESERVES ruling on Castro's Motion 6 to exclude photos of the deceased as to Castro (Doc. 327 at 10-12).
12. Castro's Motion 8 to allow his gang expert to testify under a pseudonym (Doc. 327 at 14) is GRANTED provided he produces the witness's true name to the government no later than April 15, 2022 .
13. The Court RESERVES ruling on Castro's Motions 9 and 10 (Doc. 327 at 15-16) to limit the cross-examination of his expert witness and compel a grant of use immunity.
14. Castro's Motion 11 to preclude evidence of the “typical” admonitions given to informants (Doc. 327 at 16) is DENIED.
15. The Court RESERVES ruling on Castro's Motion 13 for extended, attorney-conducted voir dire (Doc. 327 at 22).
16. Castro's Motion 14 for use of a jury questionnaire (Doc. 327 at 24) is GRANTED, and the parties shall jointly propose a questionnaire to the Court no later than May 20, 2022 .
17. Castro's Motion 15 regarding exclusion of non-essential persons from future proceedings (Doc. 327 at 25) is DENIED without prejudice.
18. Castro's Motion 16 regarding a protective order for persons permitted to observe future public proceedings (Doc. 327 at 26) is DENIED without prejudice.
19. Castro's Motion 18 to exclude testimony regarding his gang activity while he was a government informant (Doc. 363 at 2) is DENIED.
20. The Court RESERVES ruling on Castro's Motion 19 to prevent disclosure of Castro's informant status to any witness with present or former gang ties (Doc. 363 at 4).
21. Castro's Motion 20 to seal certain portions of his mother's deposition transcript (Doc. 363 at 4-5) is GRANTED.
22. Castro's Motion 21 for a pretrial discovery deadline (Doc. 363 at 5) is GRANTED such that all applicable Rule 16 and expert discovery must be exchanged no later than April 15, 2022
23. Castro's Motion 22 to modify the January 31, 2022 protective order (Doc. 363 at 6) is GRANTED. The parties are ORDERED to meet and confer and submit a proposed modification to the Court.
24. Castro's Motion 23 (Doc. 363 at 7) for a trial confirmation order is GRANTED; and
25. The government's motion to preclude Castro from asserting a public authority defense is GRANTED
IT IS SO ORDERED.