United States District Court, D. Nevada
OMNIBUS ORDER RE
VARIOUS MOTIONS IN LIMINE [## 92, 96, 99, 112, 113, 118, 122, AND 123]
JENNIFER A. DORSEY, District Judge.
Alexander Del Valle-Garcia, Julio De Armas Diaz, and Alex Torres Simon are jointly charged with various conspiracy and theft-related offenses. Their joint trial is scheduled to begin on April 28, 2014.
In anticipation of trial, the parties have filed several motions seeking various evidentiary rulings. Although the Federal Rules of Evidence do not explicitly authorize motions in limine, the trial courts' general authority to manage trials permits trial judges to rule on evidentiary issues before the start of trial. Pretrial consideration of evidentiary issues serves to avoid the futile attempt of "unring[ing] the bell" when jurors have seen or heard inadmissible evidence, even when stricken from the record. Motions in limine may also save expensive trial time because ruling on evidentiary disputes in advance minimizes side-bar conferences and other disruptions at trial, and potentially obviates the need to call certain witnesses.
Of course, these policy considerations must be weighed against the loss of the court's ability to consider evidence in the context of the trial when the court is "better situated... to assess the value and utility of evidence." Limine rulings are provisional; they are "not binding on the trial judge [who] may always change [her] mind during the course of a trial." "Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded."
With these principles in mind, the Court addresses each of the currently ripe motions in limine in turn.
I. Motion Regarding Admissibility of English Translation Transcripts and Countermotion to Preclude Source's Statements (Docs. 92, 112)
The Government moves for the pretrial admission of the English-language translations of five Spanish-language recordings of conversations between a confidential human source and Defendants Julio de Armas Diaz and Alexis Torres Simon. Defendant Julio De Armas Diaz opposes the motion on the basis that the conversations transpired in a Cuban dialect, and the court-certified translator who performed these translations lacks sufficient familiarity with this dialect to ensure the accuracy of these translations. Defendant identifies a number of "critical discrepanc[ies]" between the government's translation and defense counsel's initial review of the recordings themselves and asks for an opportunity to present a competing translation. He also questions whether a proper chain of custody for the recordings was maintained. Finally, Defendant countermoves to exclude the Source's out-of-court statements as hearsay, irrelevant, and rife with other unindicted crimes, wrongs, or acts independently excludable under FRE 404(b). By its amended reply,  the Government acknowledges that Diaz should be permitted to present his own translations to the jury to the extent he disputes the accuracy of the Government's.
The Ninth Circuit established the proper procedure for introducing foreign-language recordings in United States v. Franco.  Both sides should have the opportunity to produce competing transcripts to the jury and argue about the meaning of the conversations. Whether a transcript is an accurate translation, whole or in part, is for the jury to decide considering the knowledge, training, and experience of the translator, the audibility of the recordings, and the reasonableness of the translation in light of the circumstances and other evidence.
The Government concedes that its request essentially presumes that the defendants do not dispute the accuracy of the translations. And the Government acknowledges that the defendants should have the opportunity to offer their own translations in the event of a dispute. Defendant Diaz's request for an opportunity to have an independent translator listen to the recordings and prepare a competing translation transcript (to the extent there is a true discrepancy) is granted. The Court reserves all other rulings with respect tot he admissibility of these recordings for a later date when (1) the parties have determined whether there is any true dispute as to the accuracy of the Government's translations, (2) the chain of custody evidence has been established and a proper foundation for the recordings and transcripts has been laid; and (3) the Court has greater context in which to evaluate the admissibility of the source's statements.
Accordingly, the Government's Motion in Limine Regarding the Admissibility of English-Translation Transcripts (Doc. 92) is DENIED without prejudice. Defendant De Armas Diaz's counter-request for the opportunity to have the conversations translated and transcribed by an independent translation is GRANTED, but his Motion in Limine to Exclude the Confidential Human Source's Statements (Doc. 112) is DENIED as premature and without prejudice.
II. Motion to Exclude Cellular Tower "Ping" Evidence and Joinder Therein (Docs. 96, 99)
Defendant De Armas Diaz moves to preclude the admission of cellular tower "ping" evidence to establish his location in the general vicinity of a theft at the Smith's on N. Rainbow Avenue on November 14, 2012. He disputes the "methodology" of the "ping" technology for accurately determining a cell phone's location and suggests that the premise of the technology-that a defendant's location can be determined based on a ping from a single cellular tower-is unreliable. He requests a Daubert hearing before trial. The Government responds that no Daubert hearing is necessary because the reliability of this methodology "cannot reasonably be disputed." Defendant Del Valle Garcia moves to join in this motion and offers no additional substance in its support.
Courts recently considering similar Daubert challenges to cellular tower ping evidence have overwhelmingly found this methodology reliable. It appears that the crux of Defendant's argument against the admission of this evidence is lifted verbatim from the 2012 Northern District of Illinois decision, United States v. Evans .  But Evans is distinguishable because the methodology it rejected was a "granulation theory" and there is no indication this theory is being espoused in the instant case. Thus, to the extent that Defendants' lone objection to this evidence is the suggestion (based on a law journal article cited by the Evans court) that the methodology is unreliable, this contention is rejected, and the Court declines the request for a Daubert hearing on this lone point of challenge.
However, that does not mean that the evidence will necessarily be admitted at trial. The Government still must establish the admissibility of this evidence before the Court can exercise its gatekeeping discretion. The record is too undeveloped at this point for the Court to perform any meaningful Daubert analysis. It remains unclear how this evidence will be presented: Defendant's motion states merely that "discovery purportedly suggests" such evidence will be offered,  no expert through whom this evidence will be introduced has been identified in the briefing on this motion so this court can consider expert qualifications, and no context for this evidence has been established. As neither party has provided the Court with the information it needs to do anything more than answer the narrow methodology question, the Court reserves any further determination on the admissibility of this "ping" evidence for a later date ...