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granting motion in limine to exclude statements encouraging jury nullification
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Case No. 14-CR-00010-LHK-1
06-28-2016
UNITED STATES OF AMERICA, Plaintiff, v. DANIEL ASA HITESMAN, Defendant.
ORDER ADDRESSING THE GOVERNMENT'S MOTIONS IN LIMINE NOS. 1 (AS IT PERTAINS TO EVIDENCE OF IDENTITY), 2, 3, 4, 5, 6 & 7 AND ORDER ADDRESSING DEFENDANT'S MOTIONS IN LIMINE NOS. 1, 2, 3 (AS IT PERTAINS TO EVIDENCE OF IDENTITY), 4, 5, 7, 8, 9, 10, 11, 12, 13 & 14 Re: Dkt. Nos. 44, 75
Defendant Daniel Hitesman ("Defendant") has been charged with committing attempted bank robbery in violation of 18 U.S.C. § 2113(a). A jury trial is set to begin on July 25, 2016, at 9:00 a.m. This Order addresses the Government's Motions in Limine Nos. 1 (as it pertains to evidence of identity), 2, 3, 4, 5, 6, and 7, and Defendant's Motions in Limine Nos. 1, 2, 3 (as it pertains to evidence of identity), 4, 5, 7, 8, 9, 10, 11, 12, 13 & 14. ECF No. 44 ("Def. Mot."); ECF No. 75 ("Gov. Mot."). Defendant's Motion in Limine No. 6, which addresses prior law enforcement interactions with Defendant, and the Government's Motion in Limine No. 1 and Defendant's Motion in Limine No. 3, as these motions pertain to evidence of knowledge, shall be addressed separately.
I. PROCEDURAL HISTORY
On January 8, 2014, a federal grand jury returned a one count indictment charging Defendant with committing attempted bank robbery in violation of 18 U.S.C. § 2113(a), on or about July 23, 2013. ECF No. 1. Defendant made an initial appearance on January 22, 2014, and was appointed counsel on February 5, 2014. ECF Nos. 4 & 7. On March 4, 2015, Defendant filed a motion to suppress historical cell site information. ECF No. 26. The Court denied this motion on the record on March 25, 2015. ECF No. 35. Although the Court recognized that Defendant's motion had raised "important" issues, the Court concluded that the "motion to suppress should be denied [because] the good faith exception to the exclusionary rule applies." Id. at 31, 33.
The parties initially filed motions in limine on June 3 and 4, 2015, in advance of the June 18, 2015 pretrial conference and the June 22, 2015 trial. ECF Nos. 24, 44 & 45. At a June 8, 2015 status hearing, however, counsel for both parties agreed "that sufficient evidence exist[ed] to question the competency of [Defendant] to stand trial." ECF No. 50 at 1. Thus, pursuant to the parties' stipulation, the Court vacated the June 18, 2015 pretrial conference and June 22, 2015 trial, and ordered that Defendant undergo a competency examination. Defendant later requested simultaneous testing for his chest pain and follow-up cardiologist appointments at the Metropolitan Detention Center in Los Angeles, California. After the competency examination and cardiology testing and treatment were completed, Defendant was returned to the Northern District of California.
At a status hearing on April 6, 2016, pursuant to the parties' stipulation, the Court found Defendant competent to stand trial. ECF No. 72. Accordingly, the Court scheduled a pretrial conference for June 29, 2016, and a jury trial to begin on July 25, 2016. Id.
On June 15, 2016, the Government filed a new set of motions in limine in advance of the June 29, 2016 pretrial conference. Defendant, on the other hand, renewed the motions in limine that Defendant had filed a year ago on June 4, 2015. On June 22, 2016, each party filed their respective oppositions to the other parties' motions in limine. ECF No. 81 ("Def. Opp'n"); ECF No. 87 ("Gov. Opp'n").
II. LEGAL STANDARD
"Motions in limine are procedural devices to obtain an early and preliminary ruling on the admissibility of evidence." BNSF Ry. Co. v. Quad City Testing Lab., Inc., 2010 WL 4337827, *1 (D. Mont. Oct. 26, 2010). A district court's evidentiary rulings, including its rulings on motions in limine, are "reviewed for an abuse of discretion and should not be reversed absent some prejudice." E.E.O.C. v. Pape Lift, Inc., 115 F.3d 676, 680 (9th Cir. 1997).
"To exclude evidence on a motion in limine[,] the evidence must be inadmissible on all potential grounds." McConnell v. Wal-Mart Stores, Inc., 995 F. Supp. 2d 1164, 1167 (D. Nev. 2014) (internal quotation marks omitted). "Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." Id. "Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to [sic] trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded." Id. at 1168.
III. DISCUSSION
A. Government's Motions in Limine
1. Defendant's Prior Convictions
The Government's Motion in Limine No.1 seeks to introduce evidence of Defendant's prior bank robbery convictions pursuant to Federal Rule of Evidence 404(b). In particular, the Government contends that "there are six prior bad acts that should be admitted under Rule 404(b): [Defendant's] conviction on one count of bank robbery in 1992, his conviction on four counts of bank robbery in 1993, and his conviction on one count of bank robbery in 2003." Gov. Mot. at 2. In addition, if Defendant chooses to testify, the Government's Motion in Limine No. 2 seeks to introduce evidence of Defendant's 2003 bank robbery conviction pursuant to Federal Rule of Evidence 609. Conversely, Defendant's Motion in Limine No. 3 seeks to exclude evidence of Defendant's prior convictions under Rule 404(b), and Defendant's Motion in Limine No. 4 seeks to exclude evidence of Defendant's prior convictions under Rule 609. In the instant Order, the Court examines these four motions in limine together. The Court turns first to the parties' arguments regarding Rule 404(b).
a. Rule 404(b)
Rule 404(b) states as follows:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
Fed. R. Evid. 404(b). A district court "may admit evidence of prior bad acts [under Rule 404(b)] if it (1) tends to prove a material point; (2) is not too remote in time; (3) is based upon sufficient evidence; and, (4) in some cases, is similar to the offense charged." United States v. Lozano, 623 F.3d 1055, 1059 (9th Cir. 2010). "If the evidence in question satisfies these [four] requirements, the [district] court must then apply [Federal Rule of Evidence] 403" as a separate test of the evidence's admissibility. United States v. Luna, 21 F.3d 874, 878 (9th Cir. 1994). Federal Rule of Evidence 403 allows courts to "exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403.(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial—or during trial if the court, for good cause, excuses lack of pretrial notice.
With this legal framework in mind, the Court turns to the first Rule 404(b) factor— materiality. As to materiality, the Government argues that admitting Defendant's prior bank robbery convictions would be probative of Defendant's identity. Gov. Mot. at 2 ("[T]hese acts are relevant because they tend to prove a central point in this case: [Defendant's] identity as the individual who committed the charged offense.").
The Court disagrees. On identity, the Ninth Circuit has held that, "[w]hen . . . other acts evidence is introduced to prove identity [under Rule 404(b)]," the "characteristics of the other crime or act must be sufficiently distinctive to warrant an inference that the person who committed the act also committed the offense at issue." Luna, 21 F.3d at 878-89 (alteration omitted). "[I]f the characteristics of both the prior offense and the charged offense are not in any way distinctive, but are similar to numerous other crimes committed by persons other than the defendant, no inference of identity can arise." Id. at 879. Thus, prior convictions have generally been found to be inadmissible where the "common features" behind these convictions and the crime at issue are "largely generic." United States v. Mota, 2015 WL 580816, *5 (N.D. Cal. Feb. 11, 2015).
In the instant case, the Government identifies four common features amongst Defendant's prior convictions: "[i]n each of the earlier robberies, as in [the instant robbery], [D]efendant [1] entered the bank alone; [2] did not wear a mask; [3] walked up to a bank teller and showed a demand note; and [4] told the bank teller that he had a gun, but never actually showed a gun." Gov. Mot. at 2. As discussed, the Ninth Circuit has determined that these four features are insufficiently distinctive for purposes of Rule 404(b), and are instead generic features prevalent in many bank robberies.
In United States v. Luna, for instance, the prosecution attempted to introduce prior bad acts evidence by providing the following summary of factors running through a string of four robberies:
(1) they are all take-over robberies; (2) at least one or more robbers wore white surgical gloves, which is [allegedly] very unusual; (3) a white pillow case was used to take the money; (4) one robber stayed in the lobby area and was armed with a handgun; (5) the second robber was the counter jumper who removed
money from multiple drawers; (6) the counter jumper grabbed the hair of the tellers in order to force them to the ground and to move them about; (7) the robbers wore long sleeve sweatshirts and sweatpants; (8) one or more of the robbers wore dark women's nylon stockings over their face; (9) the robbers wore baseball caps; (10) the robbers spoke with a Hispanic accent; (11) the robbers appeared to be between 20-30 years old; (12) a car was usually found abandoned with its engine running near the scene of the robbery; (13) the robbers used an excessive amount of profanity to intimidate and take control of the employees and customers; and (14) the robberies all occurred between 10:30 a.m. and 11:30 a.m.21 F.3d at 879 (internal quotation marks omitted). The Ninth Circuit, however, found the prosecution's arguments unavailing and "conclude[d] that the[se] common features . . . were largely generic." Id. at 881. As the Ninth Circuit explained, the prosecution sought to rely upon certain common components—"guns, masks, gloves, bags"—that were insufficiently distinctive for purposes of establishing identity under Rule 404(b). Id.
Consistent with Luna, in United States v. Perkins, 937 F.2d 1397, 1400 (9th Cir. 1991), the Ninth Circuit rejected an attempt to introduce prior bad acts evidence where "[t]he robberies all involved a man supposedly wearing various disguises (fake moustache, beard, glasses, etc.), approaching the teller with something to carry away money, handing the teller a note or making a statement requesting money, and warning the teller not to push any buttons." Such robberies, the Perkins court explained, do "not involve any peculiar, unique, or bizarre conduct so as to constitute a personal signature." Id. at 1400-01 (internal quotation marks omitted). Rather, the "points of similarity between the . . . robberies were ones which are so common to most bank robberies as to be entirely unhelpful." Id. at 1401.
Finally, in United States v. Webb, 466 F.2d 1352, 1353 (9th Cir. 1972), the Ninth Circuit rejected the government's attempt to admit into evidence an uncharged second bank robbery. As the Ninth Circuit noted, "[t]he [second] robbery resembled the [charged robbery] in two respects only: (1) in the [charged robbery], both robbers wore dark blue ski masks; in the second, [defendant] wore a mask, apparently of a different type; (2) in the [charged robbery], one robber used a pistol; in the second, [defendant] used a similar pistol." Id. "Neither singly nor together are these elements sufficiently distinctive to warrant an inference that [defendant] was one of the robbers in the [charged robbery]. Many robbers use masks and guns; many guns look alike." Id.
Ninth Circuit precedent, as delineated in Luna, Perkins, and Webb, compels the exclusion of Defendant's prior bank robbery convictions in the instant case for purposes of establishing identity under Rule 404(b). First, as in Perkins, Defendant entered the banks alone. Second, Defendant did not wear a mask, and under Luna, Perkins, and Webb, the decision to use or not to use a mask or disguise is not necessarily sufficiently distinctive for Rule 404(b). Next, Defendant provided the bank teller a demand note, another feature found in Perkins to be insufficiently distinctive under Rule 404(b). Finally, Defendant threatened the bank teller by stating that he had a gun. The mere threat or even use of force, however, is also not sufficiently distinctive for Rule 404(b), as determined by the Ninth Circuit in Luna, Perkins, and Webb.
As an additional point, the Court notes more generally that attempts to introduce "extrinsic acts evidence [are] not looked upon with favor, and . . . [their] use must be narrowly circumscribed and limited." United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir. 1985) (internal quotation marks and citation omitted). As the Ninth Circuit has explained, "[o]ur reluctance to sanction the use of evidence of other crimes stems from the underlying premise of our criminal justice system, that the defendant must be tried for what he did, not for who he is." Id. The Government has cited no authority to suggest that the four specific features identified here—that Defendant went into the bank alone, did not wear a mask, used a demand note, and stated that he had a gun—warrant admissibility under Rule 404(b) as evidence of identity.
The Government's reliance upon United States v. Johnson, 820 F.2d 1065 (9th Cir. 1987), does not compel a contrary result. In Johnson, the robber approached the bank teller in multiple robberies to ask for "the same amount of change": quarters for a $5 bill. 21 F.3d at 882 n.7 (citing 820 F.2d at 1069-70). Unlike the more generic features at issue in Luna, Perkins, Webb, and in the instant case, the Ninth Circuit found a request for $5 worth of quarters to be a distinctive signature. Id.
The Government also cites, without additional analysis, the Ninth Circuit's decisions in United States v. Rrapi, 175 F.3d 742 (9th Cir. 1999), United States v. Crenshaw, 698 F.2d 1060 (9th Cir. 1983), United States v. Scheets, 940 F.2d 670 (9th Cir. 1991) (Table), United States v. Quinn, 18 F.3d 1461 (9th Cir. 1994), and Parker v. United States, 400 F.2d 248 (9th Cir. 1968). As with Johnson, the circumstances in these cases are inapposite to the facts of the instant case.
In Rrapi, the burglaries at issue were committed using a unique set of devices and methods: "[t]hese burglaries involved using crowbars and climbing on the roof," with "an accomplice wait[ing] outside" and a third individual "break[ing] into [the] safe[]." Rrapi, 175 F.3d at 750. In Crenshaw, the prior bank robberies were admitted where "defendant aided and abetted the bank robbery by piloting [a] getaway plane." Crenshaw, 698 F.2d at 1065 n.7 (emphasis removed). In Scheets, defendant's prior bank robberies all involved "the robber limp[ing] and us[ing] a cane." Scheets, 940 F.2d at 670, *1. In Quinn, the robber used a weapon that was "specially modified" and which was "found at the home at which [defendant] was arrested." Quinn, 18 F.3d at 1466. Finally, in Parker, "[t]he method common to all the robberies was that the robber, posing as a hitch-hiker, kidnapped the 'Good Samaritan' who offered him a ride and, at gunpoint, required the hostage to drive him to and to accompany him into a bank, and, having supplied him with a pillow case, directed him to fill it with money from the tellers' cages." Parker, 400 F.2d at 253 (Thompson, J., concurring).
None of these unique and signature features are present in the instant case. The robber did not, in Defendant's prior bank robberies or in the instant attempted robbery, use a crowbar or climb onto the roof (Rrapi), did not use a getaway plane (Crenshaw), did not limp or use a cane (Scheets), did not use a specially modified weapon (Quinn), and did not pose as a hitchhiker and force a hostage at gunpoint to collect money from the tellers' cages into a pillow case (Parker). Instead, the only features uniting Defendant's prior bank robberies are generic in nature, and do not suggest a level of distinctiveness necessary for admission under Rule 404(b).
In sum, Defendant's prior convictions do not satisfy materiality, the first Rule 404(b) factor for admitting identity evidence under Rule 404(b). As such, the Court need not address the remaining three Rule 404(b) factors: whether the prior convictions are sufficiently close in time, whether the convictions are based upon sufficient evidence, and whether the convictions are similar to the offense charged. Lozano, 623 F.3d at 1059. The Court also need not engage in a separate Rule 403 analysis.
Accordingly, the Government's Motion in Limine No. 1 is DENIED as it pertains to evidence of identity, and Defendant's Motion in Limine No. 3 is GRANTED as it pertains to evidence of identity. The Court will rule separately on whether the use of dye packs in one of Defendant's prior bank robberies may be admitted under Rule 404(b) as evidence of knowledge.
b. Rule 609
The parties also request guidance from the Court on whether Defendant's 2003 bank robbery conviction may be admitted into evidence pursuant to Federal Rule of Evidence 609. This Rule, which addresses the use of impeachment evidence, provides as follows:
At this time, the Government has not yet decided whether it intends to introduce evidence of Defendant's 1992 and 1993 bank robbery convictions. Gov. Mot. at 3 n.1.
(a) In General. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness's admitting—a dishonest act or false statement.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the
Fed. R. Evid. 609. In interpreting Rule 609, the Ninth Circuit has "outlined five factors that a district court should consider in balancing the probative value of evidence of a defendant's prior convictions against that evidence's prejudicial effect." United States v. Hursh, 217 F.3d 761, 768 (9th Cir. 2000). Those factors, commonly referred to as the Hursh factors, are: "(1) the impeachment value of the prior crime; (2) the point in time of the conviction and [defendant's] subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of defendant's testimony; and (5) the centrality of defendant's credibility." Id.intent to use it so that the party has a fair opportunity to contest its use.
The Hursh factors do not compel a finding in favor of either party at this time. As to the first Hursh factor, the impeachment value of the prior crime, the Ninth Circuit has held that "prior convictions for robbery are probative of veracity." United States v. Alexander, 48 F.3d 1477, 1488 (9th Cir. 1995). This factor thus weighs in the Government's favor. The second Hursh factor, the time of the conviction at issue, also tips in the Government's favor. Defendant was in prison from 2002 to 2013 for his 2003 bank robbery conviction. The attempted bank robbery at issue occurred only a few weeks after Defendant's release from prison.
However, the third Hursh factor, the similarity between the past crime and the charged crime, weighs in Defendant's favor. As the Ninth Circuit noted in United States v. Bagley, 772 F.2d 482, 486 (9th Cir. 1985), another case where defendant was charged with bank robbery and had prior bank robbery convictions, "where . . . the prior conviction is sufficiently similar to the crime charged, there is a substantial risk that all exculpatory evidence will be overwhelmed by a jury's fixation on the human tendency to draw a conclusion which is impermissible in law: because he did it before, he must have done it again." Accordingly, the Bagley court held that introducing defendant's prior bank robbery conviction could "plant in the minds of the jury the spectre that [defendant] did it before and he did it again." Id. Bagley governs the instant case because, as in Bagley, there is a risk that the jury will draw improper conclusions about Defendant's character given the similarity between Defendant's prior conviction and the attempted bank robbery at issue.
Finally, the fourth and fifth Hursh factors—the importance of Defendant's testimony and the centrality of Defendant's credibility—will depend upon whether Defendant actually testifies. The Court can not therefore determine at this time whether the fourth or fifth factors weigh in favor of admissibility or exclusion. See, e.g., United States v. Farley, 2015 WL 6871920, *13 (N.D. Cal. Nov. 9, 2015) ("If [the defendant] does choose to testify, the Court cannot weigh Hursh factors four and five until that testimony is offered."),
In sum, two Hursh factors point in the Government's favor, one Hursh factor weighs in Defendant's favor, and it is unclear, before Defendant testifies, whether the remaining Hursh factors weigh in the Government's favor or in Defendant's favor. Under similar circumstances, district courts have denied the parties' motions in limine as premature and have invited the parties to re-raise their objections at trial. Id. (denying motion in limine and stating that "the Court will determine the admissibility of [d]efendant's criminal history as impeachment evidence if and when it is offered at trial"). The Court shall do the same. Both the Government's Motion in Limine No. 2 and Defendant's Motion in Limine No. 4 are therefore DENIED without prejudice.
2. Reference to Punishment and Jury Nullification
The Government's Motion in Limine No. 3 seeks "to preclude, as irrelevant and prejudicial, any reference by the defense to [Defendant's] potential sentence during any phase of the trial." Gov. Mot. at 4. The Government also seeks to preclude reference to statements encouraging jury nullification. Defendant does not oppose the Government's requests. Def. Opp'n at 5. Moreover, these requests comport with Ninth Circuit precedent. See United States v. Frank, 956 F.2d 872, 879 (9th Cir. 1991) ("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. Powell, 955 F.2d 1206, 1213 (9th Cir. 1992) ("Our circuit's precedent indicates that [defendants] are not entitled to jury nullification instructions."). Accordingly, the Government's Motion in Limine No. 3 is GRANTED.
3. Law Enforcement Personnel and Disciplinary Records
The Government's Motion in Limine No. 4 states that "[a]ny effort to question . . . a law enforcement officer regarding disciplinary matters or matters from his or her personnel file should first be raised by [D]efendant with the Court and the [G]overnment." Gov. Mot. at 5. Defendant does not oppose the Government's request, and does not "intend[] to admit" at trial any "law enforcement personnel or disciplinary records." Def. Opp'n at 5. Accordingly, the Government's Motion in Limine No. 4 is GRANTED.
4. Use of Negative Inference and Burden of Proof
The Government's Motion in Limine No. 5 contends that Defendant "should not be permitted to make 'missing evidence' arguments, i.e., to argue that a particular type of evidence is required in order to convict or that the jury cannot convict without a particular type of evidence." Gov. Mot. at 5. The Government does not identify or describe any such "missing evidence" arguments. Instead, the Government cites, without explanation, the following passage from United States v. Florez, 447 F.3d 145 (2d Cir. 2006): "The law is well established that a federal conviction may be supported by the uncorroborated testimony of even a single accomplice witness if that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt." Id. at 155 (internal quotation marks omitted).
Florez is not relevant to the issues presented in the instant case. First, the holding in Florez applies to the uncorroborated testimony of an accomplice witness. The Government, however, does not contend that Defendant acted with the help of an accomplice. Second, the Florez court addressed a sufficiency of the evidence challenge, brought by a defendant after a jury had found the defendant guilty of participating in two narcotics conspiracies. Id. at 148. That is not the procedural or substantive posture of this case. Third, Florez is a Second Circuit case, and no court within the Ninth Circuit has adopted the holding in Florez.
Having found Florez to be irrelevant, the Court notes that, as a general matter, "[t]he [G]overnment must prove beyond a reasonable doubt each and every element of a charged offense." Victor v. Nebraska, 511 U.S. 1, 5 (1994). The natural extension of this rule is that a defendant may challenge whether the government has carried its burden as to each element of the charged crime. Thus, although Defendant may not argue that the Government must present a particular type of evidence, Defendant may point to the Government's lack of evidence to argue that the Government has failed to carry its burden. The Government's Motion in Limine No. 5 is DENIED.
5. Use of Evidence Not Produced and Defenses Without Notice
The Government's Motion in Limine No. 6 seeks to preclude Defendant from presenting at trial any evidence that was not produced during discovery, and the Government's Motion in Limine No. 7 seeks to preclude Defendant from presenting at trial any affirmative defenses that were not properly noticed. These Motions mirror Defendant's Motions in Limine Nos. 2 and 10, which seek to exclude at trial evidence not previously disclosed; and Defendant's Motion in Limine No. 9, which seeks to exclude at trial exhibits not on the Government's exhibit list.
In response to the Government's motions, Defendant acknowledges that it has a continuing obligation to produce discoverable material and to provide notice of any affirmative defenses, and that Defendant "has nothing to notice at this time." Def. Opp'n at 6. Likewise, the Government does not oppose Defendant's requests to exclude exhibits and evidence not previously disclosed. Gov. Opp'n at 2, 5. Given the parties' positions, the Government's Motions in Limine Nos. 6 and 7 are GRANTED. Defendant's Motions in Limine Nos. 2, 9, and 10 are also GRANTED.
B. Defendant's Motions in Limine
1. Cell Site Location Data
Defendant's Motion in Limine No. 1 seeks to preclude FBI Officer Hector Luna ("Luna") from using Defendant's "cell site location data to offer [expert] testimony/opinions regarding" Defendant's geographic location via a "granulization" or a "fanning" theory. Def. Mot. at 4.
The Government does not intend to introduce granulization theory testimony and does not intend to offer testimony regarding Defendant's exact location based on Defendant's cell site data. Thus, Defendant's request that Luna be precluded from relying on granulization theory to identify Defendant's exact geographic location is GRANTED.
However, the Government does intend to introduce evidence regarding a fanning theory. Under a fanning theory, a cell tower's direction and range—as depicted on a map by a shaded fan that emanates from a particular cell tower, ECF No. 44-1 at 19—may be used to predict an individual's general geographic location. The Government intends to offer Luna's expert testimony to predict, under a fanning theory, the general location of Defendant's cell phone on the date of the robbery at issue. Gov. Opp'n at 2. Defendant requests that Luna be precluded from offering any such testimony.
Federal Rule of Evidence 702 allows an expert witness to offer testimony in the form of an opinion or otherwise as long as:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;Fed. R. Evid. 702.
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
In applying Rule 702, district courts within the Northern District of California have "consistently" found that "[h]istorical cell site evidence" is "admissible," so long as the evidence is offered to establish an individual's "general geographic location." United States v. Johnson, 2015 WL 5012949, *6 (N.D. Cal. Aug. 24, 2015); see also Jimenez v. Walker, 2012 WL 4051124, *18 (N.D. Cal. Sept. 13, 2012) (upholding decision to allow testimony regarding general cell phone location); United States v. Martinez, 2015 WL 428314, *1 (N.D. Cal. Jan. 30, 2015) (allowing testimony regarding the general location "of a cellular telephone based on information contained in call detail records, based on the cellsite location accessed for a particular call.").
In response to Johnson, Jimenez, and Martinez, Defendant acknowledges that cell site location data may be used to "suggest that a person was within a range of miles of certain cell site towers." Def. Mot. at 4. Moreover, Defendant does not specifically describe how Luna's testimony about Defendant's general location, based upon a fanning theory, would fail to comport with Rule 702. Instead, Defendant relies upon statements made in a declaration of James Norris ("Norris"), a potential defense expert witness with "extensive experience and knowledge in the area of cell site location technology." ECF No. 44-1 at 1. According to Norris, "cell towers do not have the same dimensioned fan shape range emanating from them as set forth in the [Government's demonstrative.]" Def. Mot. at 6. The "[r]ange of a cell tower will differ based upon several factors such as the terrain surrounding the tower, the height of the antennae, and the tilt of the towers." Id. Additionally, "there are areas and pockets [within a cell tower's range] where, for many reasons, a cell tower is cut off and cannot and will not connect to a cell phone." Id.
Defendant's contentions have been considered and rejected by a number of courts. In United States v. Jones, 918 F. Supp. 2d 1, 4 (D.D.C. 2013), for instance, defendant "assert[ed] that each particular [cell tower] antenna has a unique beamwidth, downward tilt, and angle, such that the specific coverage area for any given antenna cannot be determined." Given such circumstances, defendant in Jones argued that testimony premised on a fanning theory should be excluded.
The Jones court found this argument unpersuasive. Relying upon case law from the Second, Fifth, and Seventh Circuits, the Jones court concluded that "opinions regarding the location and placement of each cell tower sector to which the witnesses' phones connected were based on sufficient facts and data and [we]re based on a reliable methodology." Id. at 5. Such opinions could help determine an individual's general geographic location, even if these opinions could not identify an individual's exact geographic location.
Moreover, any testimony on the "assumptions about the strength of the signal from a given cell tower" go to the "weight of [the agent's] testimony, not its reliability." Id. Consequently, "numerous" courts—including the Jones court—"have concluded that the mere existence of factors affecting cell signal strength that the expert may not have taken into account goes to the weight of the expert's testimony and is properly the subject of cross-examination, but does not render the fundamental methodology of cell site analysis unreliable." Id.
The Jones decision is in accord with the holdings of a number of other courts. See United States v. Banks, 93 F. Supp. 3d 1237, 1254-55 (D. Kan. 2015) (acknowledging that cell site data may be unable "to pinpoint precisely the location of a phone," but upholding admission of testimony regarding cell phone's general location); United States v. Reynolds, 626 F. App'x 610, 617-18 (6th Cir. 2015) (determining that expert testimony could be offered to help narrow an individual's general geographic area). Indeed, Defendant has not identified any case law that has reached a contrary result from Jones, and the Court has found none in its own research. Thus, exclusion of Luna's testimony is unwarranted. Pyramid Technologies, Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 813 (9th Cir. 2014) ("Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion."). Defendant may, if Defendant wishes, attack Luna's conclusions by challenging Luna on cross-examination or by calling Norris, Defendant's expert, to the stand at trial.
Defendant's Motion in Limine No. 1 to exclude testimony regarding Defendant's general geographic location based on a fanning theory is therefore DENIED. Defendant's Motion in Limine No. 1 to exclude testimony regarding Defendant's exact geographic location based on a granulization theory is GRANTED.
2. Defendant's BOP Supervision
Defendant "was under BOP [Bureau of Prisons] supervision at the time of the attempted bank robbery and supervised release short[ly] thereafter." Def. Mot. at 14. Defendant argues that these facts have little probative value, but could result in unfair prejudice to Defendant. Consequently, Defendant's Motion in Limine No. 5 seeks "to exclude any mention that [Defendant] was on supervision at the time of the incident." Id.
The Government "has no objection to excluding explicit references to BOP supervision or supervised release," but contends that "different, sanitized terms" should be allowed to describe Defendant's living circumstances at the time of the robbery. Gov. Opp'n at 4. As the Government points out, "it is important for the jury to know that [Defendant] was living in a residence where he was required to sign in and out, maintain constant accountability of his whereabouts, and report truthfully and accurately or face potential repercussions." Id.
Under Rule 403, the Court must determine if the probative value of relevant evidence "is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. The Court recognizes that there is probative value in establishing that Defendant was in a residential program. Defendant's participation in such a program would, for instance, help explain Defendant's whereabouts at specific times on the date of the robbery. Moreover, as discussed below in regards to Defendant's Motions in Limine Nos. 7 and 8, Defendant's participation in a residential program establishes the foundation necessary for some witnesses—such as Daionne Washington, the program's director—to identify Defendant based upon photographs taken from the robbery.
On the other hand, the Court also recognizes the possibility of unfair prejudice if references are made to Defendant being under BOP supervision or on supervised release. As courts have noted, "evidence of [an individual's] supervised release status may be unfairly prejudicial," United States v. Rodgers, 2009 WL 3498801, *1 (W.D. Mich. Oct. 26, 2009), and could be a back door to introduce evidence otherwise found to be inadmissible under Rule 404(b), United States v. Manarite, 44 F.3d 1407, 1418-19 (9th Cir. 1995).
Under these circumstances, the Court finds instructive the Ninth Circuit's decision in United States v. Neill, 166 F.3d 943 (9th Cir. 1999). In Neill, the district court allowed "witnesses and counsel to refer to the fact that [defendant] was on work release at the time of the [charged] bank robberies." Id. at 946. The Ninth Circuit determined that this decision was in error. As the Ninth Circuit explained, there are "risks associated with allowing into evidence the fact that the defendant was on parole or in a halfway house." Id.; see also id. (citing cases). Although the Ninth Circuit acknowledged the potential probative value of defendant's living circumstances, the court explained that the risk of prejudice "should at least have been minimized by calling the Work Release Center a 'Residential Program.'" Id.
Consistent with Neill, various district courts within the Ninth Circuit have allowed probative evidence to be admitted so long as any reference to an individual's supervised release status is redacted. See, e.g., United States v. Brugnara, 2015 WL 1907513, *7 (N.D. Cal. Apr. 23, 2015) (allowing introduction of a financial statement where defendant's status was redacted). In accord with Neill and Brugnara, the parties at trial shall make no references to Defendant's status on BOP supervision or supervised release. Instead, any references to Defendant's living circumstances at the time of the robbery must be to Defendant's residence at a "residential program." Accordingly, Defendant's Motion in Limine No. 5 is GRANTED.
3. Testimony of Daionne Washington
Daionne Washington ("Washington") serves as the facility director of GEO Reentry Services, the reentry program where Defendant resided at the time of the attempted bank robbery at issue. Defendant's Motion in Limine No. 7 requests that the Government establish sufficient foundation before allowing Washington to testify to the fact that Defendant left GEO Reentry Services to work in San Jose on the date of the robbery at issue. This request comports with Federal Rule of Evidence 602, which states that "[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Fed. R. Evid. 602. The Government does not object to Defendant's Motion in Limine No. 7, and acknowledges that it must establish sufficient foundation for Washington's testimony. Accordingly, Defendant's Motion in Limine No. 7 is GRANTED.
Next, Defendant's Motion in Limine No. 8 seeks to exclude testimony by Washington identifying Defendant as the attempted bank robber. According to Defendant, "investigators presented Ms. Washington with still photos taken from the bank where the robbery was attempted and asked her to affirm that the individual in the photograph was Mr. Hitesman." Def. Mot. at 17. "This evidence," Defendant argues, "should be excluded from trial" because Washington "was not a witness to the attempted bank robbery." Id.
Defendant's argument is not well taken. In the Ninth Circuit, "a lay witness may give an opinion regarding the identity of a person depicted in a photograph [so long as] that witness has had sufficient contact with the defendant to achieve a level of familiarity that renders the lay opinion helpful [to the jury]." United States v. Beck, 418 F.3d 1008, 1014 (9th Cir. 2005) (internal quotation marks omitted). Although the Ninth Circuit has "not provided clear guidance as to the extent of contact sufficient to render lay opinion testimony rationally based and helpful to the jury," id., the court did, in Beck, discuss several examples where the Ninth Circuit had previously upheld identification testimony by a lay witness, see id. n.4.
In United States v. Henderson, 241 F.3d 638, 650-51 (9th Cir. 2000), for instance, the Ninth Circuit "held that there was no abuse of discretion when a lay witness testified to the defendant's identity in surveillance photographs and had known the defendant for more than four years, and had seen him more than 100 times." Beck, 418 F.3d at 1014 n.4 (summarizing Henderson). Likewise, in United States v. Holmes, 229 F.3d 782, 788-89 (9th Cir. 2000), the court "held that there was no abuse of discretion where a lay witness had met the defendant six times for at least thirty minutes each time." Beck, 418 F.3d at 1014 n.4 (summarizing Holmes). Finally, in United States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977), the Ninth Circuit held "admissible the lay opinion identification testimony of two police officers and a probation officer who identified the defendant as the culprit depicted in bank surveillance photographs." Beck, 418 F.3d at 1014 n.4 (summarizing Butcher). "The witnesses had varying levels of prior contacts with the defendant: the first officer had known the defendant for one and a half years and had met the defendant about three times for a total of two and a half hours; the second officer had known the defendant for five months and had observed the defendant for between two and three hours; the probation officer had known the defendant for just over one year, and had met the defendant about twelve times with each meeting lasting between fifteen and thirty minutes." Id.
After examining the reasoning in Henderson, Holmes, and Butcher, the Beck court went on to uphold the district court's decision to permit identification testimony by a witness who had met a defendant "four times in a two-month period, for a total of more than seventy minutes." Id. at 1015. As the Beck court noted, this witness "had sufficient contacts with [defendant] so that [the witness's] perception of the person in the bank surveillance photo was helpful to a clear understanding of . . . the identity of the person in the bank surveillance photo." Id.
Washington's identification of Defendant falls within the purview of the legal authority discussed in Beck. As the Government notes, Defendant resided at the GEO Reentry Services facility for several months. Gov. Opp'n at 5. As the facility director for GEO Reentry Services, Washington had ample opportunity to familiarize herself with Defendant's appearance. Washington's familiarity with Defendant's physical appearance would "render[]" her "opinion helpful" to the jury. Beck, 418 F.3d at 1014. Defendant's Motion in Limine No. 8 to exclude Washington's identification testimony is therefore DENIED.
4. Presenting Indictment to Jury
Next, Defendant's Motion in Limine No. 11 seeks to prevent the Government from showing the indictment to the jury. The Government does not oppose this request. Gov. Opp'n at 5. Accordingly, Defendant's Motion in Limine No. 11 is GRANTED.
5. Dress in Civilian Clothes / Access to Personal Grooming Items
Defendant's Motion in Limine No. 12 requests that Defendant be permitted to attend trial in civilian clothes and to have access to tools for personal grooming. The Government does not oppose this motion. Gov. Opp'n at 6. Accordingly, Defendant's Motion in Limine No. 12 is GRANTED.
6. Witness Exclusion Order
Defendant's Motion in Limine No. 13 seeks to exclude all witnesses from the courtroom when they are not testifying. In response, the Government requests only that Joseph Hyun ("Hyun"), a special agent with the Federal Bureau of Investigation who was assigned to this case and who may testify at trial, be allowed to remain at the Government's counsel table for the duration of the trial. The Government does not otherwise oppose Defendant's request. Gov. Mot. at 6.
Defendant's Motion in Limine No. 13 implicates Federal Rule of Evidence 615, which provides as follows:
At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding:Fed. R. Evid. 615. In interpreting Rule 615, the Ninth Circuit has held that case agents like Hyun may remain in the courtroom pursuant to either Rule 615(b) or Rule 615(c). See United States v. Gonzalez, 221 F.3d 1349, *1 (9th Cir. 2000) (Table) ("DEA Special Agent Hinton, INS Special Agent Nygaard, and Idaho Bureau of Narcotics Special Agent White were all case agents for the Government and were therefore exempted from exclusion under Federal Rule of Evidence 615[b]. Moreover, Agents Hinton, Nygaard and White were all deemed by the district court to be essential to the presentation of the Government's case and were therefore also exempt from exclusion under Federal Rule of Evidence 615[c].") (footnote omitted). Consistent with Gonzalez, the Court finds that, other than Hyun, all witnesses shall be excluded from the courtroom when they are not testifying. Defendant's Motion in Limine No. 13 is thus GRANTED in part and DENIED in part.
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party's claim or defense; or
(d) a person authorized by statute to be present.
7. Informing Witnesses of Pretrial Rulings
Finally, Defendant requests that the Government inform its witnesses of the Court's pretrial rulings, and to confirm that the Government has done so. The Government does not oppose this request. Gov. Opp'n at 6. Accordingly, Defendant's Motion in Limine No. 14 is GRANTED.
IV. CONCLUSION
To summarize, the Court rules on the parties' motions in limine as follows:
1. The Government's Motions in Limine Nos. 3, 4, 6, and 7 are GRANTED.
2. The Government's Motions in Limine Nos. 1 (as it pertains to evidence of identity), 2, and 5 are DENIED.
3. Defendant's Motions in Limine Nos. 2, 3 (as it pertains to evidence of identity), 5, 7, 9, 10, 11, 12, and 14 are GRANTED.
4. Defendant's Motions in Limine Nos. 1 and 13 are GRANTED in part and DENIED in part.
5. Defendant's Motions in Limine Nos. 4 and 8 are DENIED.
Defendant's Motion in Limine No. 6, which addresses prior law enforcement interactions with Defendant, and the Government's Motion in Limine No. 1 and Defendant's Motion in Limine No. 3, as these motions pertain to evidence of knowledge, shall be addressed separately.
IT IS SO ORDERED.
Dated: June 28, 2016
/s/_________
LUCY H. KOH
United States District Judge