United States District Court, D. Nevada
OMNIBUS ORDER RE:
MOTIONS IN LIMINE [## 134, 142, 143, 147 & 161]
JENNIFER A. DORSEY, District Judge.
Defendants Julio De Armas Diaz and Alex Torres Simon are accused of running an organized retail theft crew that carried out a series of large-scale thefts of luxury purses, high-end jeans, shoes, and other items between October 2012 and April 2013. During this alleged crime spree, Diaz and Simon also stole medical supplies from two pharmaceutical vans whose drivers had left the doors unlocked. Simon formulated a plan to rob another pharmaceutical delivery van from the same company and kidnap its driver, and he recruited a confidential human source ("CHS"), along with Diaz and Alexander Del Valle Garcia to join him in the heist planned for the early morning of April 8, 2013.
That morning, Diaz and Simon drove together to a school parking lot near the intended victim's home. Garcia and the CHS arrived together in a separate vehicle at the planned meeting place. Before they could proceed to the target van, federal agents descended upon them, arrested them, and found a gun in Simon's car and a roll of duct tape and three pairs of gloves in Garcia's. Diaz, Simon, and Garcia were indicted for various conspiracy and theft-related offenses, and their joint trial is scheduled to begin on April 28, 2014.
In anticipation of trial, the parties filed numerous motions, including:
Defendant Simon's Motion in Limine to Limit Testimony of Improper "Overview" Witness Special Agent Shay Christensen [Doc. 147];
The United States' First Motion in Limine to Preclude Questioning Regarding Specifics of Recording Device [Doc. 134];
Defendant Diaz's Motion in Limine to Preclude the Admission of Co-Defendant Simon's Statements Against Diaz [Doc. 142]; and
Defendant Garcia's Motion in Limine to Exclude Co-Conspirator Statements [Doc. 143], and Motion for Leave to File Reply to Doc. 143 [Doc. 161].
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.
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 these motions in limine in turn.
A. Defendant Simon's Motion in Limine to Limit Testimony of Improper "Overview" Witness Special Agent Shay Christensen [Doc. 147]
Simon asks the Court to preclude Special Agent Christensen-who was tasked with investigating the conduct of the "retail theft crew" that culminated in its April 8, 2013, attempted robbery of the delivery van-from providing "improper overview'" testimony at trial. Doc. 147. Christensen interviewed many witnesses and relied heavily on information provided to him by the CHS in the course of his investigation of this case. See id. at 2-3. Simon notes that Christensen provided "overview" testimony of the government's entire case to the grand jury, and he seeks to prevent Christensen from offering essentially a second opening statement for the government or testifying about the meaning of any Spanishlanguage conversations that he heard in the course of his investigation. Id. at 3. Simon contends that Christensen's testimony "should be limited to the facts in evidence at the time he testifies, " and the Court should also "limit his ability to bolster or appear to corroborate the Government's case." Id. at 4-5.
Federal Rule of Evidence 701 provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
There is no indication that Christensen, if called, intends to testify as an expert. And the government concedes in its response, "The United States agrees that hearsay evidence is not admissible through overview or summary witnesses." Doc. 148 at 1. However, the government does oppose a general prohibition against overview or summary testimony, which is permissible in many forms and for various purposes. Id. at 2, n. 2-3 (collecting cases). The government concludes, "the United States does not intend to introduce inadmissible hearsay through its Agent Christensen, but reserves the right to elicit relevant testimony as permitted by the Rules of Evidence." Id. at 3.
Although the Court appreciates that some overview evidence may be admissible and some inadmissible, the government appears to acknowledge these boundaries and represents its intention to steer clear of them at trial. Simon's exclusion request lacks the specificity necessary for this Court to make a reasoned and informed analysis of any particular, anticipated testimony such that the Court can determine whether it should be admitted or excluded. Accordingly, this motion is denied without prejudice to Simon's ability to timely object to any specific attempts by the government to elicit such "overview" testimony at trial when the Court can fairly consider this argument in the context of specific questioning.
B. The Government's First Motion in Limine to Preclude Questioning Regarding Specifics of Recording Device [Doc. 134]
The CHS used a recording device to capture a conversation between himself, Diaz, and Simon during a car ride on April 7, 2013. Doc. 134 at 1. The government asks the Court to limit the defense's inquiry into the specifics of this recording device, arguing a lawenforcement-privilege protection: if this recording method becomes public knowledge, future suspects will be able to "search for, detect, and defeat law enforcement surveillance equipment, " and while such inquiries typically require the court to balance protection of law enforcement surveillance techniques against the defendant's need for the evidence in presenting a defense, the CHS's recording method has no relevance to this defense. Id. at 1-3.
In Rovario v. United States , the Supreme Court recognized a limited privilege not to disclose the identity of a confidential government informant. Persuasive authority from other circuits has extended Rovario to recognize "a qualified government privilege not to disclose sensitive investigative techniques, " provided the exclusion of such techniques does not unduly prejudice the defense. This Court need not predict whether the Ninth Circuit would similarly extend Rovario because no defendant has opposed the government's motion. Local Rule 47-9 provides, "The failure of an opposing party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion." By express order, the Court directed that any opposition be filed by Wednesday, April 16, 2014. None of the three defendants filed a response to this motion. The Court construes this silence as defendants' consent to the preclusion of the recording-technique inquiry and, thus, grants the government's motion in this regard.
C. Diaz's Motion in Limine to Preclude Simon's Statements from Being Admitted Against Diaz [Doc. 142]
Diaz argues that there are two categories of hearsay evidence that implicate him: (1) statements made by Simon to the CHS that implicate Diaz in the events of October 15, 2012, November 14, 2012, and March 31, 2013; and (2) an April 7, 2013, recorded conversation between Simon, the CHS, and Diaz regarding past conduct. Doc. 142. Diaz contends that statements in the first category violate his Sixth Amendment confrontation rights under United States v. Bruton  because Simon will not be subject to cross examination at trial, and he asserts that the April 7th conversation is inadmissible hearsay not salvaged by any exception. Id. The government opposes the motion by reiterating its prior representation to the court and Diaz that it "will not seek to introduce statements within the first category that violate Bruton, " Doc. 158 at 2, but also confirming that it does intend to offer the April 7th car-ride conversation, which is admissible as either a coconspirator's statement under FRE 801(d)(2)(E) or an adoptive admission under FRE 801(d)(2)(B).
1. No anticipated Bruton violation
The government's repeated representations that it does not intend to introduce the statements that Diaz contends would violate his Confrontation Clause rights under Bruton demonstrates that there is no evidentiary dispute in this regard for the Court to resolve. Accordingly, the motion is denied in this regard without prejudice to Diaz's right to raise this objection at trial in the event that the government attempts to introduce a facially incriminating confession of one of Diaz's non-testifying co-defendants at this joint trial.
2. Simon's April 7, 2013, statements to the CHS during the car-ride conversation are admissible against Diaz.
Diaz contends that Simon's statements during the April 7th car-ride conversation about past events are inadmissible hearsay not subject to any exception. Doc. 142 at 3. He characterizes Simon's statements as "narrations of past events" that "do not further the conspiracy in any way" and, therefore, are not saved from hearsay exclusion as coconspirator statements. Id. He further contends that these statements are not adoptive admissions because it cannot be conclusively determined based on the transcripts of the translated, carride conversation that "Diaz had the opportunity to hear and understand these statements" over the traffic noise. Id. at 4.
a. Coconspirator Statements Under Rule 801(d)(2)(E)
The government argues that Simon's statements during the April 7th car-ride conversation about past events are admissible as coconspirator statements. FRE 801(d)(2)(E) recognizes that a statement made "by the party's coconspirator during and in furtherance of the conspiracy" qualifies as an exception to the hearsay rule of exclusion and presents no Confrontation Clause issue. A statement "furthers" a conspiracy when it advances the conspiracy's common objectives or sets in motion events integral to the conspiracy. "Narrations of past events are inadmissible, but expressions of future intent or statements that further the common objectives of the conspiracy or set in motion transactions that are an integral part of the under Rule 801(d)(2)(E)." For example, narrative statements designed to prompt additional action among the conspirators, "reassure" coconspirators of the conspiracy's existence, allay a coconspirator's fears, or keep coconspirators abreast of an ongoing conspiracy's activities have been recognized as acts in furtherance of a conspiracy. Although Diaz broadly asks the Court to exclude all past-event statements by Simon in the April 7th car-ride conversation, the government identifies just the three excerpts from that conversation that it intends to present in this regard and argues that each falls within the coconspirator-statement exclusion. The court evaluates each of these three statements in turn.
i. Transcript excerpt pg. 2
The first excerpt the government intends to present discusses the alleged robbery of a pharmaceutical delivery van at Walgreens:
Simon: With just-with just-with just 30 containers-
Source: [Overlapping voices] No, but that is just as good.
Simon: Fuck yeah brother. But then the other guy is complaining saying this and that; and I'm not, not there. I can't because I've given him plenty of time.
Diaz: Since I opened the van, I put 20 boxes in here and they didn't fit in the other car-
Diaz: And the van was left open.
Simon: [Unintelligible] we got a guy from the same company but we ...