The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
Following extensive briefing and oral argument, the Court took under submission several issues raised by Defendant Kellie Shaver ("Defendant" or "Ms. Shaver") in her Motion for a Judgment of Acquittal or, alternatively, Motion for a New Trial. The Court, having fully considered the submissions and argument of the parties, as well as the applicable authorities, concludes that a new trial is indeed warranted. Accordingly, Defendant's Motion for a New Trial is GRANTED.
The Court harbors serious concerns regarding the overall fairness of Ms. Shaver's trial due to the introduction of prejudicial evidence, namely the alleged "bricks/blocks" evidence that was referenced in recorded "jailhouse" telephone calls made subsequent to Defendant's arrest. The Court's concerns first arose when it learned that the Government failed to disclose to the Court material testimony that the "bricks/blocks" were potentially marijuana, not methamphetamine. A series of actions later taken by the Government now leads to the conclusion that admission of the testimony that the "bricks/blocks" evidence as methamphetamine was in error.
On June 8, 2007, Ms. Shaver drove a vehicle to the San Ysidro Port of Entry. Defendant was accompanied by her friend, Michael Mallory.*fn1 In pre-primary, a narcotic detector dog was alerted to the passenger side rear door of the vehicle. While still in pre-primary, Customs and Border Protection Officer J. Hicks asked Ms. Shaver and Mr. Mallory if they had "anything" to declare. Both individuals gave negative customs declarations. Ms. Shaver explained that she and Mr. Mallory were returning to Defendant's home in El Cajon, California. Officer Hicks questioned Ms. Shaver about the ownership of the vehicle, and he was told by Mr. Mallory that they were driving the vehicle for a friend (who was later determined to be Gabriel Medrano Gonzalez, aka Carlos Medrano Gonzalez, aka "Cholo").
Officer Hicks inspected the car and found some packages within the rear seat. Defendant was instructed to proceed to secondary inspection. Once there, inspection of the car revealed additional packages. A total of four packages, with a gross weight of 5.5 kilograms, were found on that date. A presumptive test of one of the packages revealed a positive reaction to the presence of methamphetamine. The packages were wrapped in tupperware, tape, and cellophane wrapping. On July 31, 2007, an additional package of methamphetamine, weighing approximately 1.25 kilograms, was later found concealed within the vehicle.
On June 20, 2007, a federal grand jury returned a two-count Indictment charging both Defendant and Michael Mallory with: 1) Importation of Methamphetamine in violation of 21 U.S.C. §§ 952 and 960; and 2) Possession of Methamphetamine with Intent to Distribute in violation of 21 U.S.C. § 841(a)(1). Defendant was arraigned on the Indictment on June 21, 2007, and pleaded not guilty.
After her arrest, Ms. Shaver made several phone calls while still in custody. The "jailhouse" phone calls pertinent to the Court's discussion consisted of a series of recorded phone calls between:
(1) Ms. Shaver and her friend Lisa Garibay ("Ms. Garibay"); and (2) Ms. Shaver and her then boyfriend Gabriel Medrano Gonzalez, aka Carlos Medrano Gonzalez, aka "Cholo" ("Cholo").*fn2 The relevant telephone calls took place between June 18-19, 2007. During these telephone calls, Ms. Shaver discussed with both Cholo and Ms. Garibay two "bricks" or "blocks" that were apparently found by Cholo in the attic of Ms. Shaver's then residence. The "bricks/blocks" were purportedly narcotics of some kind. In a motion in limine, the defense moved to exclude the introduction of all of the jailhouse telephone calls as irrelevant. (Doc. 59 at 3-4, Doc. 87 at 10-12).
The Government sought to introduce the telephone calls as "other act" evidence under Rule 404(b) of the Federal Rules of Evidence ("Rule 404(b)"). (Doc. 54 at 4, Doc. 109 at 1-3). The Government argued that Ms. Shaver "supervised and brokered another methamphetamine distribution" from jail and "requested both the proceeds of [the] sale and . . . a portion of the methamphetamine be saved so that she could use it when she was released on bond." (Doc. 54 at 4). Ms. Shaver, however, never discussed the actual type of drugs involved in the jailhouse telephone calls when discussing the "bricks/blocks."
The Government proffered that both the terms "bricks" and "blocks" are specific narcotic slang terms. (Doc. 90 at 4-5). The Government sought to introduce the testimony of Immigration and Customs Enforcement Special Agent Carol Bracamonte to testify that, in her opinion, Defendant was "discussing another car load when she [was] discussing the roof." (Doc. 65 at 5). Agent Bracamonte would also explain that Ms. Shaver was talking about "distributable amounts of narcotics when she discusses 'two bricks.'" Id. Agent Bracamonte would further testify that the narcotics discussed within the jailhouse telephone calls were likely methamphetamine based on their description during the telephone calls. Id.
On November 26, 2007, the Government stated that their expert, Agent Bracamonte, was unavailable for trial. (Doc. 110 at 5). On December 7, 2007, the Government designated Immigration and Customs Enforcement Special Agent Chris Lindung ("Agent Lindung") as their replacement expert. (Doc. 111 at 2). Agent Lindung's expected testimony was consistent with the previously proffered testimony of Agent Bracamonte, and no change in the substance of that testimony was expected. The Government also intended to present expert testimony as to the terms in the jailhouse telephone calls referring to narcotics smuggling, precisely discussing the terms "blocks," "bricks," "tubs," and "stuffing loads." (Doc. 111 at 2).
Throughout the pendency of this case, the Government maintained that the "bricks" and "blocks" were inextricably intertwined with the present offense, as an ongoing methamphetamine transaction. (Doc. 109 at 2; Doc. 111 at 2). The Government contended the jailhouse telephone calls "corroborat[ed] the fact that [Ms.] Shaver was involved in drug trafficking and/or drug smuggling activities.*fn3 (Doc. 122 at 5). The Government argued that Defendant's "statements that she 'looked' for the blocks, that she underst[ood] which 'blocks' and 'bricks' [were] being discussed, that she indicate[d] it is 'good for me' that the blocks of narcotics were found, and that she clearly asked and understood that Cholo was making money from these blocks and bricks" translated that the "bricks/blocks" were methamphetamine. (Doc. 122 at 5). The Government also maintained that the substance of the telephone calls made "it clear that a 'tub' was found, which [was] exactly what was found in [Ms.] Shaver's car on the day of her arrest." (Doc. 109 at 3).
The Court was persuaded by these arguments, and accepted as true the Government's assertion that the "bricks/blocks" were methamphetamine. Accordingly, Defendant's motion in limine to exclude the jailhouse telephone phone calls was granted in part and denied in part. The Court admitted redacted portions of the June 18-19, 2007, jailhouse telephone calls (under the guise that the "bricks/blocks" were methamphetamine) as part in parcel of the same transaction or occurrence as well as pursuant to Rule 404(b). Based on the Government's proffer, the Court also allowed Agent Lindung's (the Government's expert) proposed testimony at trial.
The Government also filed a motion in limine invoking Rule 615 of the Federal Rules of Evidence, and requested that Immigration and Customs Enforcement Special Agent Robert Kearney ("Agent Kearney") remain present during trial as the Government's designated officer (or case agent). (Doc. 38-2 at 20). The Court granted the Government's request, and allowed Agent Kearney to remain present for the entire trial.
Defendant's jury trial began on December 11, 2007. The Government's non-expert witnesses testified consistent with the factual details above. The Government's expert, Agent Lindung explained that the various terms used in the jailhouse telephone calls, including "blocks", "bricks", "tubs", and stuffing loads had specific meaning to narcotics smuggling. Agent Lindung opined that based ...