Opinion
No. 2:16-cr-14-GEB
04-04-2017
UNITED STATES OF AMERICA, Plaintiff, v. WILLIE MCNEAL, Defendant.
ORDER
The United States of America (the "Government") and defendant Willie McNeal ("Defendant" or "McNeal") each filed in limine motions, including evidence, concerning the impending jury trial scheduled to commence on April 18, 2017.
McNeal has been indicted by a grand jury with one count of assaulting a person within the territorial jurisdiction of the United States, under Title 18, United States Code, Section 118(a)(6). Indictment 1:19-22, 2:1-2, ECF No. 1.
Self-Defense Issue
Defendant moves in limine for an order ruling that Defendant is allowed to produce evidence at trial that he acted in self-defense when he fought the victim. Def.'s Mot. in Lim. ("Def.'s Mot.") 5:2-3, ECF No. 27. The Government seeks an in limine order that would preclude Defendant from proffering both self-defense evidence and justification defense evidence. Pl.'s Mot. in Lim. ("Pl.'s Mot.") 1:19-22, ECF No. 28.
Defendant bears the burden of proving a prima facie case of self-defense on two elements: "(1) [that he had] a reasonable belief that the use of force was necessary to defend himself ... against the immediate use of unlawful force and (2) [that he] use[d] ... no more force than was reasonably necessary in the circumstances." United States v. Biggs, 441 F.3d 1069, 1071 (9th Cir. 2006)(citing United States v. Keiser, 57 F.3d 847, 851 (9th Cir. 1995); see generally, United States v. Cramer, 532 Fed. Appx. 789, 791 (9th Cir. 2013) (unpublished) (defendant seeking to pursue any affirmative defense must proffer "legally sufficient evidence of each element" of the defense). Defendant's justification defense includes the elements of the self-defense prima facie standard and the following two additional elements: the defendant had no reasonable opportunity to escape the harm and he had not recklessly placed himself in a dangerous situation. Biggs, 441 F.3d at 1071 (citing United States v. Nolan, 700 F.2d 479, 484 (9th Cir. 1983)).
Defendant argues in his motion the evidence on which he relies for his assertion that he assaulted the victim in self-defense:
[He] will testify that the alleged victim made a threatening gesture toward [him]; surprised and met Defendant on the first floor of the central area of the cell pod in the prison; the victim told Defendant that victim and Defendant should go to the laundry room to fight; and Defendant recognized that this would be a trap where other inmates sympathetic to the victim would be waiting to join the alleged victim in the fight. Rather than let a group of inmates punch, kick and injure him, and while walking in the direction of the laundry room, Defendant struck the alleged victim in the face knocking the alleged victim to the ground.
While on the alleged victim was on the ground, Defendant struck the alleged victim at least twice.Def.'s Mot., 3:16-24. Defendant argues further:
[T]he FBI reports of the alleged victim's statement, Defendant's statement and the video recording of the fight ... are sufficient to demonstrate that Defendant struck the alleged victim with a bare fist just prior to entering the laundry room where the alleged victim's confederates waited. Defendant used no more force than was necessary to disable the alleged victim. Essentially, Defendant has made by FBI report and video a prima facie case of self-defense and is entitled to present such evidence to the jury.Def.'s Opp'n ("Def.'s Opp'n") 2:18-19, 3:1-5, ECF No. 29. However, FBI reports have not been made part of the in limine motion record.
The Government counters, arguing:
Taken as true, McNeal's sworn declaration tells the Court that (1) he believed he would be attacked at an unknown point in the future, and (2) he believed he would be attacked if he entered the laundry room when invited by [alleged victim Timothy] Jackson on May 25. These representations do not show the required 'immediate threat of unlawful force,' [citing] Urena, 659 F.3d at 907, but rather a concern either that McNeal would be attacked in the future, and then only if he chose to enter the laundry room when invited by Jackson. In either instance, McNeal's sworn declaration shows that his attack was preemptive, not in response to an immediate threat. McNeal's declaration undermines his purported defense.(footnote omitted) Pl.'s Opp'n ("Pl.'s Opp'n") 3:18-24, ECF No. 31.
Defendant has not satisfied his burden of producing prima facie proof on the first element of the self-defense standard. Specifically, the evidence on which Defendant relies in support of his motion shows that he suddenly punched the victim without any apparent justification. This evidence indicates that Defendant's punch was a sneak attack. "How can a sneak attack be self-defense?" United States. v. Haynes, 143 F.3d 1089, 1089 (7th Cir. 1998). However, Defendant argues the punch was reasonable because the victim made a threatening gesture at him hours before the punch, and Defendant assumed that the victim had made arrangements with other prisoners to attack him in the laundry room. "What [Defendant's] claim of self-defense comes down to is the proposition that an inmate is entitled to attack [a fellow prisoner] even if there is ample time to report the [perceived] threats and obtain protection from the guards." Id. at 1090. Defendant's proof is woefully deficient and does not "conform[] to the normal understanding of self-defense: a use of force necessary to defend against an imminent use of unlawful force." Id. Therefore, the Government's in limine motion on the self-defense and justification issues is granted.
Expert Witness Testimony Issue
The parties also dispute in limine whether Defendant's expert, Dr. Jesse de la Cruz, should be allowed to testify at the impending trial. The Government argues: "Even if the Court does permit the [self-defense or justification] defense, it should preclude McNeal from offering his anticipated expert ... because Dr. De La Cruz's opinion is based on mere speculation and assumes the jury's role as the assessor of witness credibility." Pl.'s Opp'n, 1:21-23. Defendant argues Dr. de la Cruz will testify that "the incident between Defendant and Jackson" occurring hours before Defendant's first punch to the victim's head was in response to "Jackson's swinging of the sock with the lock inside the sock on the night before the incident[, or when Defendant punched the victim,] in sight of Defendant[, and the swinging of the sock] was clearly a threat to injure or beat Defendant." Def.'s Opp'n, 3:12-14. Defendant further argues:
[Dr.] De la Cruz further stated that Jackson's stop to talk to the inmate seated on the first floor just prior to the incident was likely a check with an inmate who was a gang member in power within the inmate living area, and in the higher echelon of a gang in power in the cell block. Such stop was in connection with the fight and to get the gang' s okay to proceed with the fight in the laundry room. De La Cruz stated that Jackson was checking if it was acceptable to that gang if Jackson fought Defendant in the Laundry Room. De la Cruz stated that it is required for Jackson to seek approval for the fight because gang members could have other illegal acts scheduled for the time of the fight; the fight could induce a search of gang members and other inmates which could lead to the discovery of contraband drugs or weapons. As to Defendant's need for self-defense, da la Cruz stated that if Jackson suggested to McNeal that they fight in the fight in the laundry room as stated by McNeal in McNeal's statement, that Jackson undoubtedly had additional friends in the laundry room to back him up and essentially guarantee that Jackson did not lose the fight and that McNeal would be injured. De la Cruz stated that McNeal would have been "jumped" as soon as he entered the laundry room.Def.'s Opp'n, 3:15-29. Those proffered expert opinions concern Defendant's self-defense and justification defense, which have been disallowed. Further, in light of the in limine evidentiary record, the proffered expert opinions are unsupported speculation about what other individuals thought and did. Therefore, the Government's motion to disallow this expert from testifying at trial is granted.
Victim's Prior Criminal Record Issue
The United States also moves for an order limiting the victim's impeachment convictions, should he testify, to a 2009 felony insurance fraud, a 2014 felony worker's compensation fraud, and a 2014 felony possession of a firearm. Pl.'s Mot., 6:12-16. The United States argues the victim's conviction for a 2014 misdemeanor assault is inadmissible and that the victim's remaining convictions are more than ten years old and Defendant has not provided the required notice of his intention to impeach with the use of those older convictions. Defendant has not responded to the motion and that failure to respond is deemed acquiescence in having the motion granted, in light of the briefing schedule on in limine motion in the Trial Confirmation Order. Therefore, this motion is granted.
Third-Party Assault Issue
The United States also moves for an order excluding evidence that Defendant was assaulted by another inmate two months after Defendant punched the victim with the indicted charges in the instant case. Pl.'s Mot., 1:26-28. Specifically, the Government argues McNeal, himself, was the victim of an assault by his then-cellmate. Defendant has not responded to the motion or otherwise shown that this subsequent assault has any probative value on the indicted charges. Therefore, this motion is granted.
Medical Report and Testimony Issue
The Government moves in limine for an order admitting the following evidence concerning the alleged victim's injuries: the medical evaluation report prepared by the prison nurse who initially questioned and evaluated the alleged victim, and the nurse's testimony about the victim's injuries. Pl.'s Mot., 1:24-26. Defendant has not opposed this motion.
However, the Government has not shown this portion of its motion presents a controversy necessitating an in limine ruling. Therefore, this motion is disregarded.
Possible Penalties in Jury Instructions Issue
The Government moves in limine for an order precluding Defendant from informing the jury of possible penalties he faces upon conviction of the charge. Pl.'s Mot., 1:28-2:1-2. Defendant has not opposed this motion.
The Government has not shown that the risk of this occurrence presents a controversy justifying an in limine ruling. Therefore, this motion is disregarded.
For the stated reasons, the motions have been granted or denied, and two motions have been disregarded. In light of this decision on the motions, the scheduled April 7, 2017 hearing on the motions is vacated. Dated: April 4, 2017
/s/_________
GARLAND E. BURRELL, JR.
Senior United States District Judge