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United States District Court, S.D. California

September 16, 2005.


The opinion of the court was delivered by: M. JAMES LORENZ, District Judge

Mr. Martinez hereby incorporates his previously submitted statement of facts in this case.



  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 forth below.

  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 articulated theory.

  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. 1995),


"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 actually happened.'"

  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 therefore immaterial.

  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. Id.

  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 609(2).



  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).



  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.



  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.



  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



  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.



  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 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 Its Unreliability.

  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.



  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 narrow standard."
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 assessing reliability.
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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