Opinion
18-cr-00466-BLF
10-06-2021
UNITED STATES OF AMERICA, Plaintiff, v. VINCENT GERALD GARCIA and JORGE JASSO, Defendants.
ORDER ON MOTIONS IN LIMINE [RE: ECF NOS. 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 612, 613, 614, 615, 616, 617, 618, 619, 620]
BETH LAB SON FREEMAN UNITED STATES DISTRICT JUDGE
Vincent Gerald Garcia and Jorge Jasso, the two remaining Defendants in this case, are each charged with one count of racketeering conspiracy under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d); one count of conspiracy to commit murder in air of racketeering, 18 U.S.C. § 1959(a)(5); and one count of conspiracy to commit assault with a dangerous weapon in aid of racketeering, 18 U.S.C. § 1959(a)(6). See ECF No. 1 (“Indictment”) at Counts 1-3. The Court held a Final Pretrial Conference on October 5, 2021, during which it issued oral rulings on the Parties' motions in limine. The Court's rulings on the Parties' motions in limine are summarized as follows:
The Government has indicated that it no longer intends to proceed to trial on four additional counts in the Indictment asserted against Defendant Garcia only. See ECF No. 644 at 1; see also Indictment at Counts 4-5, 8-9 (two violations of 18 U.S.C. § 1959(a)(5) and two violations of 18 U.S.C. § 1959(a)(3)).
• Government's MIL No. 1, ECF No. 601 (“Gov't MIL 1”): GRANTED
• Government's MIL No. 2, ECF No. 602 (“Gov't MIL 2”): GRANTED
• Government's MIL No. 3, ECF No. 603 (“Gov't MIL 3”): GRANTED
• Government's MIL No. 4, ECF No. 604 (“Gov't MIL 4”): GRANTED
• Government's MIL No. 5, ECF No. 605 (“Gov't MIL 5”): GRANTED
• Government's MIL No. 6, ECF No. 606 (“Gov't MIL 6”): DEFERRED
• Government's MIL No. 7, ECF No. 607 (“Gov't MIL 7”): GRANTED
• Defendants' MIL No. 1, ECF Nos. 608, 615 (“Defs.' MIL 1”): see other order
• Defendants' MIL No. 2, ECF Nos. 609, 616 (“Defs.' MIL 2”): DEFERRED
• Defendants' MIL No. 3, ECF Nos. 613, 617 (“Defs.' MIL 3”): GRANTED IN PART AND DENIED IN PART
• Defendants' MIL No. 4, ECF Nos. 610, 618 (“Defs.' MIL 4”): GRANTED
• Defendants' MIL No. 5, ECF Nos. 611, 619 (“Defs.' MIL 5”): GRANTED
• Defendants' MIL No. 6, ECF Nos. 612, 620 (“Defs.' MIL 6”): DENIED AS MOOT
• Jasso's MIL No. 7, ECF No. 614 (“Jasso MIL 7”): DENIED
I. GOVERNMENT'S MOTIONS IN LIMINE
The Government filed seven motions in limine. Defendant Jasso filed a response stating that he “submits to the Court's ruling[s]” on the Government's motions. See ECF No. 640. Defendant Garcia did not file any responses. The Court considers each motion in limine in turn.
A. Government's Motion in Limine No. 1 to Exclude References to Punishment
In its first motion in limine, the Government moves to preclude “any reference by the defense to Defendants' potential sentence in front of the jury during all phases of trial.” Gov't MIL 1 at 4. The Government argues that any reference to Defendants' potential sentence would be “irrelevant and prejudicial, ” and that references to punishment could be both overt (“[Y]ou understand the defendant is facing at least a decade in prison if convicted.”) and “subtle” (“[Y]our decision will have consequences for a long time to come.”). Id.
“It has long been the law that it is inappropriate for a jury to consider or be informed of the consequences of their verdict.” United States v. Frank, 956 F.2d 872, 879 (9th Cir. 1992); see also Rogers v. United States, 422 U.S. 35, 40 (1975) (jury should have been admonished that it “had no sentencing function and should reach its verdict without regard to what sentence might be imposed”).
The Court GRANTS the Government's Motion in Limine No. 1.
B. Government's Motion in Limine No. 2 to Preclude Use of Certain Impeachment Materials
In its second motion in limine, the Government moves to preclude reference for impeachment purposes to one of its law enforcement witness's 2013 nolo contendere plea to DUI and corresponding 80-hour disciplinary suspension. Gov't MIL 2 at 2. The law enforcement witness lied to the officer who arrested him about how long he had slept, how long he had drank, and where he had drank prior to the arrest, and later admitted those lies to the Sheriff's Office. Id. At the hearing, Defendants contended that evidence of the witness's untruthfulness to the arresting officer (separate from the underlying act and any statements of minimization) may always be used for impeachment.
A party may impeach a witness with a prior conviction if that conviction was punishable by death or imprisonment for more than one year or is a crime of dishonesty. Fed.R.Evid. 609(a). Separately, a court has the discretion on cross-examination to allow admission of extrinsic evidence to prove specific instances of a witness's conduct to attack or support that witness's character for truthfulness. Id. R. 608(b). “[O]fficers' misdemeanor DUI convictions are simply irrelevant to their creditability, ” and false statements given to law enforcement during questioning about that offense usually have only “marginal relevance to the officer's credibility, at best.” United States v. Edwards, 156 Fed.Appx. 954, 956 (9th Cir. 2005) (no abuse of discretion where district court excluded evidence of officer's DUI and false statement about his drinking prior to the DUI).
The Court finds that the probative value of the law enforcement witness's plea, corresponding suspension, and other conduct is minimal. Admitting this information would run the risk of creating a mini-trial on the officer's conduct and would be unduly consumptive of the jury's time. The Government has also represented that the law enforcement witness in question is not a primary witness in the case. Accordingly, the officer's conduct has only “marginal relevance” and will be excluded. Edwards, 156 Fed.Appx. at 956.
The Court GRANTS the Government's Motion in Limine No. 2.
C. Government's Motion in Limine No. 3 to Admit Cooperator's Plea Agreement
In its third motion in limine, the Government seeks permission to admit the plea agreements of its cooperating witnesses in the event that Defendants attack the credibility of those witnesses. Gov't MIL 3 at 2. The Government recognizes that it is prohibited from affirmatively introducing the plea agreements or discussing their provisions requiring truthful testimony, Id. at 3 (citing United States v. Dorsey, 677 F.3d 944, 953 (9th Cir. 2012)), but seeks permission to do so if and when the credibility of those witnesses is attacked. See id.
The Court GRANTS the Government's Motion in Limine No. 3 without prejudice to Defendants raising objections during trial. As the Government recognizes, the contents of the plea agreements are only admissible if Defendants attack the credibility of the cooperating witness who pleaded guilty. If the Government intends to introduce a cooperator's plea agreement in its casein-chief or its rebuttal case because it believes Defendants have opened the door, it SHALL inform Defendants and raise the issue at ¶ 8:30 a.m. morning conference prior to introducing the plea agreement.
D. Government's Motion in Limine No. 4 to Exclude Evidence of Affirmative Defense Lacking Pretrial Offer of Proof
In its fourth motion in limine, the Government moves to require Defendants to make an offer of proof to the Court of any affirmative defense they intend to offer, including that Defendants acted in self-defense or under duress in committing the crimes alleged in the Indictment. See Gov't MIL 4 at 2. The Government argues that Defendants, should they testify in their own defense, are not allowed to testify about an alleged affirmative defense that is not supported by a pre-trial offer of proof. Id. The Government asserts that if no such pre-trial proffer is made, then the Court should order the Defendants not to make such arguments at trial. Id. at 3.
Defendants stated at the pretrial conference that they are not intending to assert any affirmative defenses. Upon this understanding, the Court GRANTS the Government's Motion in Limine No. 4.
E. Government's Motion in Limine No. 5 to Preclude Defendants from Introducing Evidence or Argument About Charging Decisions
In its fifth motion in limine, the Government asks the Court to prohibit Defendants from questioning witnesses or making any reference at trial to charging decisions in this case or other cases involving Defendants. Gov't MIL 5 at 2. The Government says that “[a] prosecutor's decision to pursue and resolve certain charges and not others is completely irrelevant to guilt or innocence, ” and that allowing such evidence or argument would confuse and mislead the jury, cause delay, and waste time. Id.
The Government's charging decisions are irrelevant to the charged conduct in this case, and introduction of such evidence would confuse and mislead the jury. United States v. Farley, 2015 WL 6871920, at *9 (N.D. Cal. Nov. 9, 2015). Additionally, separation of powers concerns would be raised if the Court allowed Defendants to introduce evidence of charging decisions or make arguments about them. See United States v. Armstrong, 517 U.S. 456, 464 (1996) (outlining the executive's “special province” of enforcing the nation's criminal laws). Accordingly, the Court GRANTS the Government's Motion in Limine No. 5.
F. Government's Motion in Limine No. 6 to Consider Entire Record When Deciding Whether to Admit Co-Conspirator Statements or Other Evidence
In its sixth motion in limine, the Government asks the Court to consider “the entire record” in determining the admissibility of evidence at trial. Gov't MIL 6 at 2. The Government claims that the Court has before it a “fairly comprehensive record establishing the existence of the charged conspiracy, ” including guilty pleas from “over a dozen co-defendants[, ] each of whom admitted to participating in a conspiracy.” Id. at 3. The Government says that the Court should consider that evidence, and the whole pre-trial record, when evaluating whether evidence such as co-conspirator statements is admissible in this case under Federal Rule of Evidence 104(a). Id.
The Court DEFERS ruling on this motion in limine. The Government has correctly cited the standard under Rule 104(a): the Court is not bound by evidence rules when making admissibility determinations. To the extent the Government intends to rely on co-conspirator statements, the Court will determine if a given co-conspirator statement is admissible after the Government makes a written proffer of the statement. The Government SHALL make such a written proffer, which may be filed under seal and marked as Attorneys' Eyes Only, for any co-conspirator statements no later than February 27, 2022.
G. Government's Motion in Limine No. 7 to Preclude Defendants from Admitting Self-Serving Hearsay
In its seventh and final motion in limine, the Government moves the Court to preclude Defendants from offering in their own defense at trial their own statements or those of their alleged co-conspirators. Gov't MIL 7 at 2. The Government argues that Federal Rule of Evidence 802(d)(2) allows the Government to admit Defendants' or co-conspirator's statements in its case-in-chief, but that the same rule does not permit Defendants to do the same. Id. at 2.
The Court agrees with the Government that allowing Defendants to offer their own statements would allow them to “place [their] arguably exculpatory hearsay statements before the jury without taking the witness stand and subjecting [themselves] to cross-examination.” United States v. Fernandez, 839 F.2d 639, 640 (9th Cir. 1988). Accordingly, the Court GRANTS the Government's Motion in Limine No. 7, but defers ruling on specific hearsay statements until they are raised at trial because no specific statements have been raised at this time.
II. DEFENDANTS' MOTIONS IN LIMINE
Each Defendant filed separate motions in limine, but except for Jasso's seventh motion in limine, they request the same relief. Compare, e.g., ECF No. 608 (Jasso's Motion in Limine No. 1), with ECF No. 615 (Garcia's Motion in Limine No. 1). Accordingly, except for Jasso's seventh motion in limine, the Court analyses Jasso and Garcia's motions together.
A. Defendants' Motions in Limine No. 1 to Exclude Testimony by Government's Proposed Expert Witnesses
In their first motions in limine, Defendants ask the Court to exclude testimony by two law enforcement officers who the Government seeks to call as experts on Nuestra Familia: Special Agent Edgar Ramos and Investigator Nicholas Reyes. Defs.' MIL 1 at 2. Defendants argue that neither Ramos nor Reyes would offer testimony that would assist the jury and that their testimony would be unreliable and “substantially more prejudicial than probative.” The Government opposes the motions, saying that the expert's opinions will assist the jury in understanding the alleged RICO enterprise and that the opinions are not substantially more prejudicial than probative. See ECF No. 638.
As all Parties point out, these motions in limine raise issues that were the subject of separate pre-trial briefing and arguments. See ECF Nos. 536, 537, 552, 553, 573. The Court will issue a separate order fully addressing Defendants' objections to the Government's gang expert testimony.
B. Defendants' Motions in Limine No. 2 to Exclude Evidence Offered by the Government Not Produced Prior to Trial
In their second motions in limine, Defendants request the Court to exclude evidence offered by the Government that was not produced prior to trial pursuant to Federal Rule of Criminal Procedure 16. Defs.' MIL 2 at 2. Defendants further request that the Court order the Government to provide them with written notice of its “intention to use any discoverable evidence in its case-in-chief” pursuant to Rule 12(b)(4). Id. The Government opposes the motions as unnecessary because the Government says it is following its ongoing discovery obligations and that it will “expeditiously disclosure any further relevant items of which it becomes aware.” See ECF No. 632 at 2-3.
Based on the discussion at the pretrial conference, the Court DEFERS ruling on Defendants' Motion in Limine No. 2, and leaves it to the Parties to work out a protocol for identification of evidence that the Government intends to offer at trial.
C. Defendants' Motions in Limine No. 3 to Exclude Witnesses and to Order the Government's Case Agent to Testify First
In their third motions in limine, Defendants move the Court to exclude non-exempt witnesses so that they cannot hear the testimony of other fact witnesses. Defs.' MIL 3 at 2. Defendants propose that the Government's case agent be exempted and argue that he or she be required to testify first before non-exempt Government witnesses. Id. at 2-3. Defendants further request that if a government expert is permitted to testify, that Defendants' own experts be permitted to view his or her testimony. Id. at 2. Finally, Defendants ask the Court to direct witnesses not to discuss the case or their testimony with anyone other than trial counsel. Id. at 3-4. The Government does not object to excluding non-exempt witnesses from trial under Federal Rule of Evidence 615 and says that the exclusion order should also apply to defense witnesses. See ECF No. 633. The Government says that Government and defense experts should be able to attend any portion of trial or the entirety of trial. Id. at 2. The Government opposes an order compelling its case agent to testify first, asserting that there is no such legal requirement. Id. at 2-3.
Fed. R. Evid. 615 provides that “[a]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses.” Rule 615 is intended to ensure a fair trial by preventing collusion of witnesses and fabrication of testimony, and by helping reveal instances where such fabrication or collusion actually occurs. See Geders v. United States, 425 U.S. 80, 87 (1976) (observing that the rule “exercises a restraint of witnesses ‘tailoring' their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid”); see also Taylor v. United States, 388 F.2d 786, 788 (9th Cir. 1967) (stating that exclusion is designed to “prevent the shaping of testimony by hearing what other witnesses say”).
Rule 615 makes the exclusion of witnesses mandatory upon request. United States v. Ell¸718 F.2d 291, 292 (9th Cir. 1983) (“The rule makes the exclusion of witnesses a matter of right and the decision is no longer committed to the court's discretion as it once was.”); United States v. Brewer, 947 F.2d 404, 407-11 (9th Cir. 1991) (“The use of the word ‘shall' makes it clear that a district court must comply with a request for exclusion.”). A federal agent, or a local law enforcement officer working with federal agents, qualifies for exemption from an exclusion order. See Fed. R. Evid. 615(b); see also United States v. Thomas, 835 F.2d 219, 222-23 (9th Cir. 1987) (trial court did not err in allowing FBI agent who also testified to sit at counsel table throughout trial, since agent qualified as officer representing the government).
The Court GRANTS IN PART and DENIES IN PART Defendants' Motion in Limine No. 3. The Court adopts the Parties' agreement that non-exempt witnesses for both Parties should be excluded under Rule 615 and that both Parties' expert witnesses and the Government's case agent should be exempt from the exclusion order. However, based on the Government's representation that Investigator Nicolas Reyes is a fact witness in this case, he is subject to the exclusion order (notwithstanding the fact that he may also serve as an expert witness for the Government). Finally, the Court declines to order the Government's case agent to testify first. As Thomas holds, the Government's case agent is an exempt witness who may sit in the courtroom throughout the trial, notwithstanding the fact that he may serve as a fact witness later in the trial. 835 F.2d at 222-23.
D. Defendants' Motions in Limine No. 4 to Order All Government Witnesses as Under Defense Subpoena Unless Released
In their fourth motions in limine, Defendants request that the Court designate all Government witnesses as under a defense subpoena unless specifically released. Defs.' MIL 4 at 1-2. Defendants argue that occasionally Government witnesses are released without notice to Defendants, and that designating those witnesses as under defense subpoena would prevent the witness' unavailability after their testimony for the Government. Id. at 2. The Government does not oppose these motions, except to the extent they apply to a potential federal agent witness, in which case the Government argues that Defendants must comply with applicable Touhy obligations. See ECF No. 634 (citing Touhy v. Ragan, 340 U.S. 462 (1951)). Defendants do not dispute that they must comply with Touhy obligations for federal agent witnesses. Accordingly, the Court GRANTS Defendants' Motion in Limine No. 4, provided that Defendants comply with Touhy as necssary.
E. Defendants' Motions in Limine No. 5 to Preclude the Government and Its Witnesses from Vouching
In their fifth motions in limine, Defendants move the Court to preclude the Government and its witnesses from vouching, or personally assuring or suggesting the veracity of a witness's testimony. Defs.' MIL 5 at 1-2. The Government states that there is no need for an order from the Court on these motions because the Government “acknowledges its legal obligation to refrain from vouching.” ECF No. 635. Because this motion in limine merely seeks an order for the Government to comply with its legal obligation to refrain from vouching, the Court GRANTS Defendants' Motion in Limine No. 5.
F. Defendants' Motions in Limine No. 6 to Order the Government to Produce All Grand Jury Testimony
In their sixth motions in limine, Defendants seek an order directing the Government to produce in advance of trial all Grand Jury transcripts in this case for any witness who testified before the Grand Jury and is likely to testify at trial. Defs.' MIL 6 at 102. The Government says these motions are moot because it has already produced all of the grand jury transcripts in this case. See ECF No. 636. Accordingly, Defendants' Motion in Limine No. 6 is DENIED AS MOOT without prejudice to Defendants reasserting this issue, if necessary and after meeting-and-conferring with the Government.
G. Jasso's Motion in Limine No. 7 to Exclude Evidence Related to the Bail Jumping Case from the Instant Case at Trial
In his seventh motion in limine, Defendant Jasso requests the Court to exclude from this trial any evidence related to his related bail-jumping case. Jasso MIL 7 at 1-2; see United States v. Jasso, No. 19-cr-35-BLF-2 (N.D. Cal.). Jasso argues that introduction of this evidence, which he presumes would be offered for “demonstrating a consciousness of guilt in [this] case, ” would violate Rule 403 because the “alleged flight could have alternative explanations and inferences besides consciousness of guilt.” See Jasso MIL 7 at 2 (citing United States v. Myers, 550 F.2d 1036 (5th Cir. 1977)). The Government opposes this motion, asserting that evidence of both Jasso's bail jumping and his later flight from officers are admissible as evidence of consciousness of guilt for the charges in the Indictment. See ECF No. 637 at 3-4 (citing, inter alia, United States v. Harris, 792 F.2d 866, 869 (9th Cir. 1986)).
“Evidence of flight is generally admissible as evidence of consciousness of guilt and of guilt itself.” United States v. Harris, 792 F.2d 866, 869 (9th Cir. 1986). But “evidence of flight can be consistent with innocence” too. United States v. Dixon, 201 F.3d 1223, 1232 (9th Cir. 2000). The probative value of flight thus “depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.” United States v. Felix-Gutierrez, 940 F.2d 1200, 1207 (9th Cir. 1991). Courts often give a limiting instruction admonishing the jury about evidence of flight. See United States v. Hernandez-Miranda, 601 F.2d 1104, 1106 n.3 (9th Cir. 1979) (affirming limiting instruction regarding evidence of flight, which stated that “[w]hether or not this flight, if you find it in fact to be flight, shows a consciousness of guilt” was for the jury to determine and that the jury “can consider that there may be many reasons for this defendant's failure to appear for his trial in this matter as originally scheduled, totally consistent with innocence”).
The Court finds that the jury could draw the four inferences from the evidence. Prior to the alleged flight, Defendant Jasso had already appeared before Magistrate Judge DeMarchi to be arraigned on the charges in this case, so he was aware of the charges asserted against him. On the same day that he was to appear before Magistrate Judge DeMarchi for a bond hearing, he cut his GPS monitoring bracelet, invented a kidnapping story, and told his girlfriend to call 911 after he fled their house. When law enforcement located him, Defendant Jasso fled from law enforcement again before being apprehended. This is more than sufficient evidence for the jury to draw the four inferences linking Defendant Jasso's flight to his guilt of the crimes charged here.
The jury may, of course, decline to draw those inferences and decide that Defendant Jasso's flight is consistent with innocence. Defendant Jasso is free to make that argument to the jury, but an innocent “explanation affect[s] the weight of the evidence rather than its admissibility.” United States v. Nelson, 15 F.3d 1093, at *2 (9th Cir. 1994) (unpublished).
Accordingly, the Court DENIES Defendant Jasso's Motion in Limine No. 7. The Court will give a limiting instruction similar to that given in Hernandez-Miranda.
IT IS SO ORDERED.