United States District Court, S.D. California
September 16, 2005.
UNITED STATES OF AMERICA, Plaintiff,
ELIAS MARTINEZ, Defendant.
The opinion of the court was delivered by: M. JAMES LORENZ, District Judge
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S
MOTIONS IN LIMINE AND OTHER TRIAL MOTIONS.
STATEMENT OF FACTS
Mr. Martinez hereby incorporates his previously submitted
statement of facts in this case.
THE COURT SHOULD BAR THE GOVERNMENT FROM INTRODUCING EVIDENCE OF
OTHER CRIMES, WRONGS, OR BAD ACTS
The government has not given notice of whether it will attempt
to introduce in its case-in-chief any of the prior convictions or
other acts of Mr. Martinez. If in the course of events, the
government does attempt to introduce the above evidence in its
case-in-chief, three reasons preclude such admission. First, the
government did not give notice. Second, it is inadmissable under
rule 404(b) as it does not meet the four requirements. Finally,
admission of any of the above evidence is unduly prejudicial
under Federal Rules of Evidence 403. The authorities are set
A. Government Has Not Given Notice The government has not given notice that it intends to
introduce any evidence pursuant to Rule 404(b). Specifically, the
government has not notified the defense that it intends to
introduce evidence of any of Mr. Matinez' prior convictions. Not
only must the government provide defense notice of the use of the
above mentioned evidence in its case-in-chief, the government
must also provide notice which is "complete." See United
States v. Vega, 188 F.3d 1150, 1152 (9th Cir. 1999). A complete
notice is one which states the basis for the introduction of the
evidence as the Rule requires. See United States v.
Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982); see also
United States v. Brooke, 4 F.3d 1480, 1483 (9th Cir. 1993)
(reaffirming Mehrmanesh and reversing convictions). In other
words, "the government `must articulate precisely the evidential
hypothesis by which a fact of consequence may be inferred from
the other acts evidence.'" United States v. Mayans,
17 F.3d at 1181. The government has the burden of demonstrating how the
proffered evidence is relevant to one or more issues in the case.
Mehrmanesh, 689 F.2d at 830 (9th Cir. 1982).
Here, the government fails to meet the requirements of 404(b)
it fails to provide defense with proper notice failing to state
on what grounds within the Rule it believes this generally
inadmissible propensity evidence can be introduced in this case.
It fails to state how and why Mr. Martinez' convictions are
relevant to any of the issues presented in this case. Without
notice of the manner in which the government intended to offer
the prior act evidence the defense cannot challenge the
B. The Government Cannot Satisfy the Strictures for
Admissibility under Rule 404(b)
Federal Rule of Evidence 404(b) states:
"evidence of other crimes wrongs or acts is not
admissible to prove the character of a person in
order to show action in conformity therewith." The
evidence may be admissible, however, for other
purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. . . ."
Fed. Rule of Evid. 404(b). This Court has repeatedly recognized
the danger of admitting other act evidence. See, e.g. United
States v. Vizcarra-Martinez, 66 F.3d 1006
, 1013-1014 (9th Cir.
"Extrinsic act evidence is not looked upon with favor
. . . `our reluctance to sanction the use of evidence
of other crimes stems from the underlying premise of
our criminal system, that the defendant must be tried
for what he did, not for who he is.' Thus, `guilt or
innocence of the accused must be established by
evidence relevant to the particular offense being
tried, not by showing that the defendant has engaged in other acts of wrongdoing."
(citation omitted). The government has the burden of
demonstrating how the proffered evidence is relevant to one or
more issues in the case. United States v. Mehrmanesh,
689 F.2d at 830 (9th Cir. 1982).
The Supreme Court has also recognized that evidence of
defendants' prior bad acts "only tend[s] to prejudice the
defendants with the jurors, to draw their minds away from the
real issue, and to produce the impression that [the defendants]
were wretches whose lives were of no value to the community, and
who were not entitled to the full benefit of the rules prescribed
by law for the trial of human beings." Boyd v. United States,
142 U.S. 450, 458 (1892). The drafters of the Federal Rules of
Evidence likewise recognized the powerful tendency of character
evidence to shift jurors' focus from defendants' actions to their
character, noting that it "`subtly permits the trier of fact to
reward the good man and to punish the bad man because of their
respective characters despite what the evidence in the case shows
Because of the great risks associated with admitting prior act
evidence, the admissibility of prior act evidence is determined
through a four-part test examining whether: (1) the evidence
tends to prove a material point; (2) the prior act is not too
remote in time; (3) the evidence is sufficient to support a
finding that the defendant committed the other act; and (4) the
act is similar to the offense charged (for cases where knowledge
and intent are at issue). Mayans, 181 F.3d at 1181. Mr.
Martinez challenges the admission of his prior convictions,
evidence of the accident scene, and property taken from the
vehicles involved in the accident because the first and fourth
factors require exclusion of this evidence.
First, it should be noted that the first and fourth prongs of
the test are related: this Circuit has noted that: "the greater
is the dissimilarity of the two offenses, the more tenuous is the
relevance." United States v. Hernandez-Miranda, 601 F.2d 1104,
1109 (9th Cir. 1979). Mr. Martinez has sustained a number of
convictions, none of which are relevant to the instant offense.
The prior convictions cannot be introduced to demonstrate
knowledge, intent or motive or any of the other grounds specified
in Rule 404(b). These prior convictions are completely unrelated to the
offenses charged in the present case. The elements of the
previous convictions in no way help the government prove a
material element of the offenses charged in this case and are
C. Even if Relevant, Evidence of Other Crimes, Wrongs, or
Acts Must Still Be Excluded Under Fed. Rule Evid. 403.
If a court determines that prior bad act evidence is admissible
under FED. R EVID. 404(b), the Court must then determine whether
the evidence will be unduly prejudicial. "[B]ad act evidence that
admittedly is probative of one of the issues listed in Rule
404(b) may nevertheless be excluded." Additionally, "Rule 404(b)
does not offer a `mechanical solution,' but provides, by its very
terms, only that such evidence `may' be admissible." Id.
(quoting the Advisory Committee's Note to Rule 404.) Thus, even
if a court finds that the prior bad act evidence is admissible it
must consider the prejudicial effect of such evidence:
The determination must be made whether the danger of
undue prejudice outweighs the probative value of the
evidence in view of the availability of other means
of proof and other factors appropriate for making
decisions of this kind under Rule 404.
Therefore, if the bad act evidence has only a slight tendency
to make the existence of any fact that is of consequence more
probable and the introduction of this evidence makes conviction
more likely because it provokes an emotional response in the jury
or otherwise adversely affects the jury's attitude toward the
defendant, apart from the guilt or innocence of the crime
charged, the court should weigh the balance in favor of excluding
the bad act evidence. United States v. Bailleaux,
685 F.2d 1105, 1110-11 (9th Cir. 1982). In Foskey the court held that
the prior arrest of the defendant for possession of phenmetrazine
and dilaudid should have been excluded from the prosecution for
possession of the same drug. The court stated: [r]ule 403 and 404(b) are not obstacles to be cleared at all
costs, even by cutting around corners whenever it is possible to
do so. These rules were designed to ensure the defendant a fair
and just trial based upon the evidence presented, not upon
impermissible inferences of criminal predisposition by confusion
of the issues.
United States v. Foskey, 636 F.2d 517, 525 (D.C. Cir. 1980).
Again, in United States v. Aims Back, 588 F.2d 1283 (9th Cir.
1979), the Ninth Circuit reversed a conviction due to the
admission of prior bad act evidence which, although relevant, was
unduly prejudicial. Evidence that the defendant had previously
assaulted a female was admitted against the defendant in the
trial on rape charges. The court found that the evidence was
highly prejudicial and "had very little, if any, probative
value." Id. at 1287. Consequently, the admission of such
evidence, especially in light of the trial court's failure to
give a limiting instruction, was reversible error. Id.
Likewise, when a trial court admitted evidence of an alleged
extortion attempt to prove the defendant was aware of the illegal
nature of a loan operation, the Ninth Circuit found the evidence
more prejudicial than probative. United States v. Hodges,
770 F.2d 1475, 1479 (9th Cir. 1985). The court held that the evidence
was so prejudicial that it required reversal of the conviction.
Thus, Mr. Martinez submits that admission of any alleged bad
act evidence, pursuant to Rule 404(b), would be unduly
prejudicial and should be barred accordingly. Admitting evidence
of Mr. Martinez' convictions would unduly inflame the emotions of
the jury without providing the jury with any probative or
material information in judging whether the government has proved
the offenses charged beyond a reasonable.
D. The Court Should Preclude the Use of Any Prior
Convictions Under Rule 609.
Federal Rule of Evidence 609 provides that:
[f]or the purpose of attacking the credibility of a
witness, evidence that he has been convicted of a
crime shall be admitted if elicited from him or
established by public record during cross-examination
but only if the crime (1) was punishable by death or
imprisonment in excess of one year under the law
under which he was convicted, and the court
determines that the probative value of admitting this evidence outweighs its prejudicial
effect to the defendant or (2) involved dishonesty or
false statement, regardless of the punishment.
Where a prior conviction was not punishable by death or
imprisonment in excess of one year, and was not a crime involving
dishonesty or false statement, it is not admissible under FRE
609. FRE 609(a)(1) requires the trial judge to balance probative
evidence against prejudicial effect before admitting crimes
punishable by death or imprisonment in excess of one year which
do not involve dishonesty or false statement. FED. R. EVID.
609(a). In this case, Mr. Martinez has not been convicted of a
crime involving dishonesty or false statement. Therefore, Mr.
Martinez objects to the admission of his prior convictions under
MOTION FOR GRAND JURY TRANSCRIPTS
The Court should make Grand Jury transcripts available when the
defense can show a particularized need. The particularized need
is present in this case. The government must produce a transcript
of a witness' testimony before the Grand Jury following the
direct examination of the witness at trial. 18 U.S.C. § 3500;
Dennis v. United States, 384 U.S. 855 (1966); Fed.R.Crim.P.
26.2(f)(3). The defense requests that the government make such
transcripts available in advance of trial to facilitate the
orderly presentation of evidence and to remove any need for a
recess in the proceedings for defense counsel to examine the
statement pursuant to Fed.R.Crim.P. 26.2(d).
EACH JUROR TO HAVE A SEPARATE COPY OF THE APPROVED JURY
Juries consist of lay people who are required to follow the
law. Their responsibility becomes more difficult when all twelve
jurors have access to only one copy of instructions. Often each
juror does not have an opportunity to even read or understand the
critical instructions. Consequently, jurors fail to understand
the government's burden of proving a case beyond a reasonable
doubt. In this case, there are many elements the government must prove
in order to convict Mr. Martinez of an actual and/or attempted
violation of 8 U.S.C. 1324. The Court will instruct the jury on
each of these elements. However, in order for the jury to
properly, effectively, and efficiently perform its function of
determining whether the government has proven each element
beyond a reasonable doubt, each juror also should be provided a
written copy of the jury instructions.
MR. MARTINEZ' COUNSEL SHOULD HAVE THE OPPORTUNITY TO VOIR DIRE
Pursuant to Fed.R.Crim.P. 24(a), to provide effective
assistance of counsel and to exercise Mr. Martinez' right to
trial by an impartial jury, defense counsel requests the
opportunity to personally voir dire the prospective members
of the jury.
THE COURT SHOULD NOT SEND THE INDICTMENT INTO THE JURY ROOM
In the commentary to Model instruction 3.2.1, "Charge Against
Defendant Not Evidence," the Committee on Model Jury
Instructions, in the Ninth Circuit Manual of Model Jury
Instructions, strongly recommends that the Indictment not be sent
into the jury room during deliberations. The commentary observed
that neither the Federal Rules of Criminal Procedure nor case law
require sending a copy of the indictment to the jury room because
the indictment is not evidence.
Mr. Martinez urges this Court to follow the Committee's
guidance. The language in the instant Indictment intentionally
mirrors the language of the charged statutes. Accordingly, jurors
could be improperly persuaded by the similarities between the
Indictment allegations and the elements of the crime. Because the
Indictment is not evidence, but could potentially be mistaken for
such, this document should not be permitted into the jury room during deliberations.*fn1
INTRODUCTION OF "MUG SHOTS" OF MR. MARTINEZ ARE HIGHLY
PREJUDICIAL WITHOUT ADDING ANY PROBATIVE VALUE TO THIS TRIAL, THUS
MERITING EXCLUSION UNDER FRE 403
There were "mug shot"-style pictures of Mr. Martinez taken
while he was in custody. These pictures have no place at this
trial. This is not an identity case: Mr. Martinez does not
dispute that he is the individual arrested at the border.
Accordingly, these pictures have no probative value. In contrast,
however, their appearance automatically puts one in mind of a
criminal, and is not unlike forcing a defendant to wear
jail-issued clothing while in trial. Under FRE 403, these
pictures are highly prejudicial and devoid of probative value.
They should be excluded from trial as a result.
ANY PROPOSED EXPERT TESTIMONY SHOULD BE EXCLUDED.
Mr. Martinez objects to any expert testimony absent proper
notice and compliance with discovery obligations. If the
Government should attempt to enter expert testimony then, Mr.
Martinez requests full compliance with Fed.R.Crim.P. 16 and
discovery of the basis of the purported experts' opinions.
United States v. Zanfordino, 833 F.Supp. 429, 432-33 (S.D.N.Y.
1993); Fed.R.Crim.P. 16, Fed.R.Evid. 612 and 705;
18 U.S.C. § 3500. This includes all detailed information that the "expert"
relied upon when determining his opinion. This is required under
the rules of discovery so that the defense can adequately prepare
a cross examination. Here, the defense has received no indication
that an expert will be called. Disclosure is required. See
id.; Fed R. Crim. P. 16; 705. IX.
THE TECS INFORMATION IS INADMISSIBLE AS IT IS BOTH IRRELEVANT &
The defense objects to admission of the TECS information in any
format as inadmissible Rule 404(b) and without evidentiary basis
for admission. Not only is it irrelevant, it is overly
prejudicial under Rule 403 and it should be excluded. The
government has not provided the defense with any TECS records, or
indicated that it intends to introduce the evidence at trial.
However in the event that the government should seek to introduce
this evidence in its case-in-chief or in rebuttal Mr. Martinez
objects on the following grounds.
A. The TECS Information Is Inadmissible
TECS information is inadmissible in the government's
case-in-chief. Moreover, because Mr. Martinez did not own the car
he was driving, the TECS evidence should also be precluded from
use as impeachment evidence.
In order to admit this evidence, the government would have to
lay the proper foundation under Federal Rule of Criminal
Procedure 16, Federal Rules of Evidence 404(b), 702, the hearsay
rules and the Confrontation Clause of the Sixth Amendment. The
defense position is that in either case-in-chief or in rebuttal,
it is inadmissible because: 1) it is undisclosed Rule 404(b)
evidence; 2) it is undisclosed expert testimony; and 3) there is
no hearsay exception which should be available to the government:
it cannot rely upon Federal Rule of Evidence 803(6). See
United States v. Orozco, 590 F.2d 789, 793 (9th Cir. 1979)
(TECS are not admissible under rule 803(6)). In order to admit
these documents under Rule 803(8), which the Orozco case
permits under some circumstances;*fn2 the foundational
requirements of Orozco, which includes a reliability inquiry, must be
satisfied. Id. at 792.
B. The TECS Testimony Is Undisclosed Rule 404(b) Evidence.
This Circuit clearly recognizes that prior border crossings are
considered prior act evidence and subject to Rule 404(b)
analysis. United States v. Vega, 188 F.3d 1150, 1153 (9th Cir.
1999) ("evidence of Vega's prior border crossings and bank
deposits is "other acts" evidence subject to the provisions of
Rule 404(b)"). The Court noted that "[a]s an initial matter, we
note that this rule applies to all "other acts," not just bad
acts. Thus, despite the fact that there is nothing intrinsically
improper about Vega's prior border crossings . . . they are
nonetheless subject to 404(b)." Id. Since the prosecutor has
not indicated that he intends on introducing any Rule 404(b)
evidence, he should be bound by his lack of notice. If he now
wishes to introduce this as some sort of Rule 404(b) in her case,
he must establish the link to Mr. Martinez and the relevance to
his theory of prosecution as well as satisfy the strictures of
Rule 404(b). He has provided no indication that either exists and
no notice of same has been given to the defense.
C. The TECS Testimony is Undisclosed Expert Testimony.
Simply because the proposed witness is not rendering any
"opinions" does not remove this testimony from the realm of
"expert testimony." In fact, the law provides to the contrary.
According to Federal Rule of Criminal Procedure 702, the
assumption that "experts testify only in the form of opinions. . . . is logically unfounded." Fed.R.Crim.P. 702 advisory
committee's note. Rule 702 similarly provides that the expert
testimony can be based on "specialized knowledge," and cases
indicate that the amendments to Rules 701 and 702 were made so as
to prevent litigants from avoiding the expert witness disclosure
requirements by labeling individuals as fact or laywitnesses and
not soliciting "opinion" testimony. In re Matter of the
Complaint Illusions Holdings, Inc., 189 F.R.D. 316 (S.D.N.Y.
1999). The Complaint Illusions case involved a negligence claim
surrounding a scuba diving accident. Defendants listed two
witnesses who knew nothing about the facts and circumstances of
the case but purported to know much about scuba diving. Plaintiff
argued that their testimony was expert testimony and sought to
exclude it. Even though it was factually based and the witnesses
would merely describe things related to scuba diving, the court
held that it was expert testimony because it was based upon the
specialized knowledge related to scuba diving, testified to by
individuals, who otherwise had no connection to the case. Id.;
see also Giles v. Rhodes, 2000 WL 1425046 (S.D.N.Y., Sep 27,
2000) (NO. 94 CIV. 6385 (CSH)) (even though witness was not to
give any opinions whatsoever, testimony was based on specialized
knowledge and not on any personal involvement in the case, thus
was inadmissible as undisclosed).*fn3
It is anticipated that this proposed testimony will be based
upon the expert's "specialized knowledge," received by virtue of
his position as a Customs Agent, the fact that he received
training as a customs inspector on how to use the TECS system,
that such training was multi-month formal training, including
"on-the-job training." See United States v. Oceguerra, 01 Cr
2388-(BTM) at RTIII: 314-315. It is undisputed that the proposed
TECS expert witness has no personal involvement with or knowledge
of the facts of this particular case.
All of these facts clearly establish that this is heretofore
undisclosed expert testimony, prejudicial to the defense, the reliability of which has never
been properly litigated and the defense apparently will not be
permitted a pre-trial opportunity to voir dire and seek to
exclude or controvert the expert's opinion, pursuant to Federal
Rule of Criminal Procedure 16 and Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999).
D. No Hearsay Exception Permits This Testimony In Light Of
In Orozco, this Circuit expressly conditioned its admission
of the TECS documents on the testimony of the TECS custodian that
when an individual inputs the data, the machine has a mechanism
permitting any mistakes to be viewed and corrected. See
Orozco, 590 F.2d at 792. In this case, no TECS have been
provided thus it appears none exist. However, in anticipation
that the government discovers TECS, they should also be precluded
as they have not been turned.
EXCLUDE INADMISSIBLE MATERIAL WITNESS HEARSAY STATEMENTS
The Supreme Court's recent decision Crawford v. Washington,
124 S.Ct. 1354 (2004), squarely holds, pursuant to the Sixth
Amendment, that pre-trial, testimonial statements may not be
admitted against a defendant at trial where the defendant has not
had a chance to cross examine the declarant. Crawford, at 2956.
This is true even where the statements fall within a "firmly
rooted hearsay exception" or bear "particularized guarantees of
trustworthiness." Id. at 2954. As such, this case overturns the
Supreme Court's own precedent in Ohio v. Roberts, 448 U.S. 56
(1980). Similarly, it squarely overturns the Ninth Circuit's
precedent, United States v. Winn, 767 F.2d 527 (9th Cir. 1985),
upon which the Government may rely.*fn4 In Crawford, the petitioner was tried for assault and
attempted murder. Crawford at 2949. The State sought to
introduce a recorded statement that petitioner's wife Sylvia had
made during police interrogation, as evidence that the stabbing
was not in self-defense. Id. at 2949. Sylvia did not testify at
trial because of Washington's marital privilege. Id. at 2949.
Petitioner argued that admitting the evidence would violate his
Sixth Amendment right to be "confronted with the witnesses
against him." Under Ohio v. Roberts, 448 U.S. 56, that right
did not bar admission of an unreliable witness's statement
against a criminal defendant if the statement bore "adequate
`indicia of reliability,'" a test that was met when the evidence
either fell within a "firmly rooted hearsay exception" or bore
"particularized guarantees of trustworthiness." Id. at 66. The
trial court admitted the statement on the latter ground. The
State Supreme Court upheld the conviction, deeming the statement
reliable because it was nearly identical to, i.e., interlocked
with, petitioner's own statement to the police, in that both were
ambiguous as to whether the victim had drawn a weapon before
petitioner assaulted him. Crawford at 2949. The Supreme Court
overturned the conviction holding that the State's use of
Sylvia's statement violated the Confrontation Clause of the Sixth
Amendment because, Sylvia's statements were testimonial in nature
and where such testimonial statements are at issue, the only
indicium of reliability sufficient to satisfy constitutional
demands is confrontation, i.e., cross examination by the
defendant. Id. at 2956.
The Supreme Court reasoned, after a lengthy discussion of the
historical context of the Confrontation Clause, that the Sixth
Amendment was drafted in order to protect against the "civil-law
mode of criminal procedure" and "its use of ex parte
examinations as evidence against the accused." Id. at 2953.
Such ex parte examinations run into Sixth Amendment concerns
because they are "testimonial" in nature. The "text of the
Confrontation Clause reflects this focus." Id. at 2953. It
applies to "witnesses against the accused in other words, those
who bear testimony." Id. at 2953 (internal quotations omitted).
Thus, the Sixth Amendment is concerned with "testimonial"
statements. Id. at 2953. "Various formulations of this core
class of `testimonial' statements exist:
ex parte in-court testimony or its functional
equivalent that is, material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to
cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used
prosecutorially . . . extrajudicial statements . . .
contained in formalized testimonial materials, such
as affidavits, depositions, prior testimony, or
confessions . . . statements that were made under
circumstances which would lead an objective witness
reasonably to believe that the statement would be
available for use at a later trial . . . Statements
taken by police officers in the course of
interrogations are also testimonial under even a
Id. at 2953 (internal citations and quotations omitted).
The Court went on that:
"[w]here testimonial statements are involved, we do
not think the Framers meant to leave the Sixth
Amendment's protection to the vagaries of the rules
of evidence, much less to amorphous notions of
`reliability . . .' The Roberts test allows a jury
to hear evidence, untested by the adversary process,
based on a mere judicial determination of
reliability. It thus replaces the constitutionally
prescribed method of assessing reliability with a
wholly foreign one. In this respect, it is very
different from exceptions to the Confrontation Clause
that make no claim to be a surrogate means of
Id. at 2954, 2955.
Thus, the Confrontation Clause does not permit testimonial
statements to be admitted at trial without the "constitutionally
prescribed method of determining reliability," i.e.,
confrontation. Id. at 2955. In other words, [w]here testimonial
evidence is at issue . . . the Sixth Amendment demands . . .
unreliability [of the declarant] and a prior opportunity for
cross-examination." Id. at 2956. In this case, if the material
witnesses do not testify at trial Mr. Martinez moves to exclude
any statements that the material witnesses made on the day of
this apprehension or the prior apprehensions alleged in the
indictment. These statements include all biographical information
and all statements relating to the personal history of the
material witnesses. The identification and alienage of the
material witnesses is the key issue at this trial, therefore the
statements made by those witnesses regarding their names and
biographical information are critical proof of the allegations
against Mr. Martinez. Any of the statements made regarding
identification and personal history were necessarily taken while
the material witnesses were in the custody of the border patrol and the government will
seek to introduce this evidence at trial without granting Mr.
Martinez the right to cross-examination. All of the information
including the names and any derivative information from the
material witnesses names must be precluded as a violation of Mr.
Martinez' Sixth Amendment rights. This information is testimonial
because of the nature of the allegations against Mr. Martinez.
Mr. Martinez' request is also consistent with United States v.
Gonzalez-Marichal, 2004 WL 1089250 (March 30, 2004 D.Ct. S.D.
Ca.) (Miller, J.), where it was held that disclosure of Mexican
nationality, made by an illegal alien during interrogation by an
immigration agent, was a testimonial statement and inadmissible
under the Sixth Amendment.
Mr. Martinez also moves to preclude any statements that were
made to the material witness, by family or other persons
concerning any arrangements with an unknown alien smuggler. In
particular, Mr. Martinez moves to preclude any statements by
other people to an unknown alien smuggler relating to the
existence of any financial arrangements negotiated or agreed
upon. The material witness lacks personal knowledge of any such
arrangements and any other persons with knowledge are not
available. Accordingly, admission of these second and third hand
statements would be hearsay and in violation of the Federal Rules
of Evidence. Further, any attempt to backdoor these unreliable
witnesses' statements through the material witness would violate
Mr. Martinez' Sixth Amendment right to cross examination and
would be contrary to the Supreme Court's ruling in Crawford.
For the foregoing reasons, Mr. Martinez respectfully requests
that this Court grant these motions in limine.
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