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United States v. Yip

May 10, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MON GEN YIP, DEFENDANT.



The opinion of the court was delivered by: Hon. Barry Ted Moskowitz United States District Judge

ORDER DENYING MOTION FOR NEW TRIAL GERARDO

Defendant Mon Gen Yip has filed a Motion for New Trial. For the reasons discussed below, Defendant's motion is DENIED.

I. BACKGROUND

On February 4, 2006, at approximately 7:00 p.m., Defendant, the driver and sole occupant of a 2000 Ford Taurus, entered the San Ysidro Port of Entry. Defendant was referred to secondary inspection when a narcotic detector dog alerted to the trunk of Defendant's car. At secondary inspection, Customs and Border Protection officers discovered several packages hidden in a non-factory compartment. The packages tested positive for cocaine.

In an Indictment filed on March 1, 2006, Defendant was charged with importation of 16.3 kilograms of cocaine in violation of 21 U.S.C. §§ 952 and 960 and possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1).

Prior to trial, the Government filed a motion in limine to admit Rule 404(b) evidence of Defendant's post-arrest statements to Immigration and Customs Service agents that he had used methamphetamine earlier that day and over the past three days. The Court denied the motion in limine and precluded the Government from introducing evidence of Defendant's admitted methamphetamine use.

On February 13, 2007, the second day of trial, Assistant United States Attorney Neville Hedley called Special Agent Curtis Johnson to the stand. Agent Johnson testified that he and Agent Azzerello were called down to the San Ysidro Port of Entry about 9:00 p.m. on February 4, 2006. (Trial Transcript, 101.) Agents Johnson and Azzerello first came into contact with Defendant in a holding cell. (Trial Transcript, 103.) After determining that a translator was not necessary, the agents transferred him to an interview room. (Id.)

Agent Johnson testified that after Defendant waived his Miranda rights, he told them how the car he was driving had been loaned to him by a man named Jose or Chacho. (Trial Transcript, 106.) Defendant told the agents that he drove the car to the United States on Friday and then came back to Mexico on Saturday morning to "go party" with Jose in Tijuana. (Id.)

At this point in Johnson's testimony, Hedley asked Johnson: "And what did he say after he drove back into Mexico on Saturday morning, February 4th, 2006?" (Trial Transcript, 107.) Agent Johnson responded: "He said he came back in the morning to party and that he had used methamphetamine about eleven o'clock that morning, and then -- ." (Id.)

Defense counsel requested a sidebar and moved for a mistrial. (Trial Transcript, 107.) The Court declined to grant a mistrial at that point in time, but instructed the jury to disregard Agent Johnson's testimony regarding Defendant's use of a controlled substance. (Id. at 110.) Trial proceeded, and Defendant took the stand. Defendant's drug use was not placed at issue.

On February 15, 2007, the Court held an evidentiary hearing regarding Agent Johnson's violation of the Court's order precluding the evidence regarding Defendant's drug use. Johnson testified that a few days prior to his testimony at trial, Hedley instructed him that he was not to bring up Defendant's drug use. (Transcript of 2/15/07 hearing, 17.) He had also been told not to bring up the issue of Defendant's drug use during prior trial preparation. (Id. at 18.) Johnson explained that he inadvertently mentioned the drug use because he was reciting what Defendant had told him in sequence. (Id. at 22.) Johnson also testified that he believed Defendant told them about his drug use before the Miranda warnings based on where in his notes the reference to the drug use appears. (Id. at 13.) Johnson testified that he didn't recall if Defendant reiterated his statements about his drug use after the Miranda warnings, but suspects he may have. (Id.)

The Court found that Hedley had told Johnson not to mention Defendant's drug use and that Johnson inadvertently revealed the information. (Id. at 31-32.) The Court concluded that there was no intentional misconduct. (Id. at 33.) The Court explained that it was still denying a mistrial on the ground that it was more probable than not that the erroneous admission of the evidence did not affect the jury's verdict. (Id. at 37-38.) However, the Court also explained that if there was a constitutional violation -- i.e., if Defendant's statements about his drug use were obtained in violation of Miranda -- the applicable test would be whether the erroneous admission of the evidence was harmless beyond a reasonable doubt. (Id. at 38.) Because the Miranda issue was not the subject of the hearing and was not addressed by the parties, the Court made it clear that it was not ruling on the issue and was not ruling on whether the admission of the evidence was harmless beyond a reasonable doubt. (Id. at 38-39.)

On the same day as the evidentiary hearing, the jury returned a verdict of guilty on both counts. Subsequently, Defendant ...


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