United States District Court, S.D. California
September 9, 2005.
UNITED STATES OF AMERICA, Plaintiff,
JESUS HERALDEZ-MARTINEZ, Defendant.
The opinion of the court was delivered by: DANA M. SABRAW, District Judge
STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTIONS
STATEMENT OF FACTS
For purposes of these motions and pre-trial court proceedings,
Mr. Heraldez-Martinez proceeds as charged under the name Jesus
Heraldez-Martinez. Nothing stated by counsel or in these
pleadings should be used as any sort of admission against the
defendant in this case.
Mr. Heraldez-Martinez is charged with knowingly and willfully
making a false statement, by representing that his name was
Estevan Herrera Holguin to Customs and Border Protection Officer
M. Cadena on May 6, 2005.
Mr. Heraldez-Martinez has had a number of deportation
proceedings where he is charged via notices to appear and
referred to by various names and has criminal convictions under
different names. He has also been charged as Jesus
Heraldez-Martinez in federal court on August 20, 2004 with
attempted illegal reentry. There are trial transcripts of Mr.
Heraldez's testimony from that trial. After this conviction, he was brought into INS custody where he
was also charged with a notice to appear as Jesus
Heraldez-Martinez and ordered deported. There are tapes of this
proceeding which defense counsel have not yet received.
Defense counsel has received 600 pages of discovery which
include these various criminal convictions, deportation documents
dating back more than twenty years, transcripts from a federal
prosecution from Colorado, and many other documents contained in
Mr. Heraldez-Martinez's A-file. The government has not yet
identified, in spite of defense requests made in the first set of
motions filed in this case, the prior acts and prior statements
which it would seek to introduce in this upcoming trial.
The defense is also still litigating the issue of the ex parte
motion which was filed publicly, contrary to Mr. Heraldez's
intent and common practice and motions regarding sealing that ex
parte filing remain pending with Judge Moskowitz.*fn1
IN LIMINE MOTION
A. Motion to Exclude All Reference To Prior Criminal
Convictions, Deportation Proceedings & Deportation Documents As
Irrelevant, Overly Prejudicial, Likely to Confuse and Mislead the
Jury and Prolong the Trial as well as in Some Instance Barred
Under Collateral Estoppel Principles.
This case is a very simple one. The government has accused Mr.
Heraldez-Martinez of making a false representation about his name
to a federal officer on May 6, 2005. That he may have signed
documents referred to himself under other names in the past when
he was charged under those other names and/or was referred to by
notices to appear, immigration documents, state court criminal
charging documents and federal criminal charging documents, is
not at all relevant to this case.*fn2 For example, the
government has indicated that it will definitively introduce a
notice to appear which is a document charging Mr. Heraldez with
begin an alien and verifying that he was removed from the United
States. It contains Mr. Heraldez's photo and fingerprint but it
states: "Alien's full name: Heraldez-Martinez, Jesus, aka
Soto-Mejorado, Rafael." Because the document refers to Mr. Heraldez-Martinez as Mr.
Heraldez-Martinez, it does not leave him the option of signing as
anyone else. It also does not provide a space for any explanation
regarding a name. There are also a number of other documents in
the A-file which indicate that Mr. Heraldez is also referred to
as Mr. Estevan Herrera Holguin, thus, this document would require
the defense to introduce a host of other documents to rebut this
one, all of which are truly irrelevant to the charge in this
In addition, the issue of the validity of Mr.
Heraldez-Martinez's alienage and deportation was already
litigated and the government is collaterally estopped from
relitigating those issues in this case. Principles of collateral
estoppel are incorporated into criminal prosecutions via the Due
Process Clause. United States v. Ford, 371 F.3d 550, 554 (9th
Cir. 2004). The three elements of collateral estoppel are: (1)
are the issues in the two actions identified so that the court
can determine whether they are sufficiently similar and material;
(2) second, were the issues fully litigated and; (3) whether the
similar issue(s) were necessarily decided. Id. In fact, in
United States v. Barragan-Cepeda, 29 F.3d 1378, 1381-82 (9th
Cir. 1994), this test was applied in a section 1326 case. There,
this Circuit held that the issue of the defendant's alienage was
necessarily litigated and determined favorably to the defendant.
Id. Thus, the government was collaterally estopped from
attempting to relitigate the issue in subsequent proceedings.
Id. The government is trying to relitigate this issue by
introducing these documents which suggest to the jury that Mr.
Heraldez-Martinez is an undocumented alien. They are collaterally
estopped from doing so.
The government should be precluded from admitting any documents
suggesting that Mr. Heraldez is an alien under Federal Rule of
Evidence 403. It will unduly prejudice him, it will mislead the
jury, confuse the simple issues in this case and waste time.
Introducing these documents will force the defense to relitigate
the entire prior trial at a minimum the defense would have to
introduce certified copies of the charging document, the judgment
of acquittal and perhaps transcripts of certain portions of
testimony simply to rebut the unfair and inaccurate inference
that Mr. Heraldez-Martinez is an undocumented alien in this false
statement case. Introducing these documents to the jury will also
mislead jurors into believing that Mr. Heraldez-Martinez is an
undocumented alien who should not be attempting to enter this
country when in fact, the federal government has not charged him
with making a false representation as to his citizenship nor have
they charged him with attempted unlawful entry. See Indictment.
The government is clearly barred under both collateral estoppel
principles and this Court should apply Federal Rule of Evidence
403 to prohibit introduction of any documents or exhibits suggesting
that Mr. Heraldez is an undocumented alien.*fn3
Similarly, that Mr. Heraldez-Martinez has criminal convictions
under the name of Jesus Heraldez-Martinez is not probative of any
point because he also has criminal convictions under the name of
Estevan Herrera Holguin. It would be overly prejudicial for the
jury to learn that he has multiple (or even one for that matter)
criminal convictions. In addition, these convictions in most
instances years before the instant prosecution, thus lack all
temporal relevancy. Under Fed.R.Evid. 403, this evidence lacks
sufficient probative value and is unduly prejudicial.
Finally, to the extent that these documents contain statements
by immigration officials, i.e., law enforcement officers, they
should not be admitted absent unavailability and the prior
opportunity for confrontation. See Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354 (2004).*fn4
B. No Proper Notice Has Been Given Regarding Prior Act
Evidence, Thus, the Proper Inquiry Under The Rule Cannot Be
The defense has requested in its previously-filed motions
proper notice under Federal Rule of Evidence 404(b) of any prior
act evidence sought to be introduced. This would include prior
statements made by Mr. Heraldez-Martinez, at times other than
those pertinent to this single-count non-conspiracy charge. No
such notice has been provided. The government must provide
"reasonable notice in advance of trial" of any evidence of "other
crimes, wrongs, or acts" it plans to introduce. Fed.R.Evid.
404(b); United States v. Vega, 188 F.3d 1150, 1154 (9th Cir.
1999). "Complete" notice is required, see Vega,
188 F.3d at 1152, meaning it must states the basis for the introduction of
the evidence. See United States v. Mehrmanesh, 689 F.2d 822,
830 (9th Cir. 1982); see also United States v. Mayans,
17 F.3d 1181 (9th Cir. 1994) ("[T]he government `must articulate
precisely the evidential hypothesis by which a fact of
consequence may be inferred from the other acts evidence'"). While Mr. Heraldez can only speculate as to what the government
may introduce, he believes they may seek to introduce tapes of
deportation hearings which it has not produced to the defense and
a tape and/or transcript of an arraignment which it has yet to
produce. Proper Rule 404(b) notice has not been given in order to
admit testimony regarding either, Rule 404(b)'s requirements are
not satisfied and the admission of this evidence is overly
Here, the government must demonstrate how the proffered
evidence is relevant to one or more issues in the case.
Mehrmanesh, 689 F.2d at 830 (9th Cir. 1982). Absent this, the
evidence should be excluded. Once again, since Mr.
Heraldez-Martinez is referred to by that name and charged under
that name, introduction of these documents lacks sufficient
relevance. Also, it would force the defense to explain by
introducing the myriad of other immigration documents under the
Herrera Holguin name and various transcripts from the first trial
to explain and put into context the immigration tapes. Under
Federal Rule of Evidence 404(b), all such evidence cannot be
admitted absent proper notice and an evidentiary basis for its
admission. Under Rule 403, its admission would unduly confuse,
mislead and waste the jury's time as well as unduly prejudice Mr.
Heraldez-Martinez.*fn5 C. Motion To Require Advance Notice of Government Exhibits
In Light Of The Voluminous Discovery in This Case.
As noted above, this request may become moot as the parties are
meeting during the week of September 12 to discuss these matters.
However, if necessary, the government should be ordered to
provide an advance exhibit list, to which they are bound, so that
time is not wasted at trial with the defense ensuring that they
have and can properly address the proposed exhibits. This request
is made because of the extremely voluminous nature of the
discovery which for the most part, does not relate temporally or
in terms of subject matter to this case.
For the foregoing reasons, Mr. Heraldez-Martinez respectfully
requests that the Court grant the above motions.
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