Opinion
NO. CR 05-0546 RB.
August 8, 2005
ORDER
THIS MATTER came before the Court on Defendant's (Hernandez-Bautista's) Motion in Limine, Second Motion in Limine, Third Motion in Motion, and Fourth Motion in Limine, filed on June 3, 2005. The Government filed responses and I heard argument on these motions. Having considered the submissions, arguments of counsel, and being otherwise fully advised, I rule on these motions as follows.
Defendant's Motion in Limine.
The Government witness may testify on direct examination that a concerned citizen reported possible illegal activity involving two vehicles. The agent may testify that he was on his way to investigate the tip when he encountered Hernandez-Bautista and the co-defendant on the road traveling away from the suspicious area in two vehicles. Direct examination concerning the details of the tip, such as the report that a van and sedan were involved, that persons appearing to be illegal aliens were picked up, and the location on Rockhound Road, will be excluded because the jury might rely on such evidence for the truth of the statements with significant resultant prejudice. See Crawford v. Washington, 541 U.S. 36 (2004); United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004). The Government will instruct its witness accordingly.
Defendant's Second Motion in Limine.
Hernandez-Bautista moves to exclude evidence of his 1998 conviction for alien smuggling. Hernandez-Bautista concedes that this evidence is admissible if he testifies. If Hernandez-Bautista does not testify, the prior conviction will not be admitted.
Hernandez-Bautista moves to exclude evidence that he was charged with transporting illegal aliens on June 4, 2004, and that he was investigated for alien smuggling on April 19, 2004. The 2004 investigation was closed and the charge was dismissed after the material witnesses fled to Mexico. The Government intends to seek admission of the 2004 investigation and charge under FED. R. EVID. 404(b). The circumstances of the prior investigation and charge are sufficiently similar to the present charge to be relevant to motive, opportunity, or absence of mistake or accident. However, I find that the evidence should be excluded under FED. R. EVID. 403.
The probative value of evidence concerning the 2004 investigation and charge is low because the Government may link Hernandez-Bautista to the crime through alternate evidence, such as the testimony of the co-defendant and testimony concerning similarities observed in the tire tracks at the scene and at Hernandez-Bautista's house. The danger of unfair prejudice is extremely high because the charges are similar. I find that the probative value is substantially outweighed by the danger of unfair prejudice. Evidence of the 2004 investigation and charge will not be admitted.
Defendant's Third Motion in Limine.
Hernandez-Bautista moves to exclude testimony that an agent recognized Hernandez-Bautista from a previous investigation. The Government states that it will not solicit such information and will caution all witnesses not to address that topic on direct examination. Testimony on direct examination that an agent recognized Hernandez-Bautista will be excluded.
Defendant's Fourth Motion in Limine.
Hernandez-Bautista moves to exclude the agent's testimony concerning tire tracks and footprints at the staging area on Rockhound Road on the ground that the agent is not an expert witness. If the Government establishes a proper foundation that the agent personally observed the tire tracks and footprints, the agent may testify as to what he saw without being qualified as an expert witness.
IT IS SO ORDERED.