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United States v. Flores

United States District Court, N.D. California

June 16, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
VICTOR FLORES, et al., Defendants.

ORDER RE MOTIONS IN LIMINE (Docket Nos. 951, 1026, 1058)

SUSAN ILLSTON, District Judge.

Now before the Court are several motions in limine brought by defendants Mario Bergren, [1] Benjamin Campos-Gonzalez, and Victor Flores. On June 13, 2014, the Court heard oral argument on these motions. Having considered the arguments of counsel and the papers submitted, the Court rules as follows:

1. Motion to Exclude or Limit Gang Expert Testimony (Dkt. No. 951).

The defendants move to exclude or limit the testimony of government gang expert Detective Fukushima, or in the alternative, for a Daubert hearing.[2] On March 21, 2014, the government provided an updated expert disclosure as to this witness. The government proposes that Detective Fukushima will testify as to:

a. street gangs that operate in the Bay Area, with an emphasis on South San Francisco;
b. how these street gangs fall under the umbrella of the Nuestra Familia prison gang;
c. the gangs' origins, structure, signs, graffiti, tattoos, colors and symbols, areas of influence, rules, and expected contributions from members;
d. how acts of violence by members enhance the standing of the gang, as well as the internal standing of the members who committed the violent acts;
e. how rival street gangs act to preserve standing and territory;
f. retaliatory killings and the gang "code of silence."

Federal Rule of Evidence 702 permits expert opinion testimony only where it assists the jury in understanding evidence or determining a fact at issue. Much of Detective Fukushima's proposed testimony would more properly be elicited from percipient witnesses and should therefore be excluded. For example, the government can call current or former gang members to testify that certain gangs operate in South San Francisco. Likewise, percipient witnesses can testify that they committed acts of violence to enhance the gang's standing, and their standing within the gang. Additionally, most lay jurors will know - whether from television or movies, or from reading news reports - that rival gangs fight and engage in retaliatory killings, and that they dislike "snitches." Accordingly, to the extent the government proposes that Detective Fukushima present expert testimony about any of these issues, the defendants' motion is GRANTED.

However, there are certain aspects of Detective Fukushima's proposed testimony that would be helpful to the jury because they are outside the sphere of expertise of the typical juror. For example, a lay juror would probably not know much, if anything, about the colors and symbols related to the various gangs in the Bay Area. Similarly, a juror would probably not understand the significance of specific gang tattoos or gang graffiti. Additionally, a juror might not know the meaning of certain terms such as to "put in work" for or be "jumped in" to a gang, or what a "kite" is. As a gang expert, Detective Fukushima could clarify for the jury the meanings of these various terms and symbols. Accordingly, to the extent the government proposes that Detective Fukushima testify about these issues, the defendants' motion is DENIED.

In addition to the scope of Detective Fukushima's testimony, there is an issue regarding the disclosure the government has provided defendants. At the motion hearing, defendants noted that is nearly impossible to discern both the opinions he will offer, and the bases for those opinions, from the government's disclosure. The Court agrees. Although it may be possible to piece this information together from a detailed analysis of the reports provided, the defendants should not be required to undertake this additional task. Therefore, the Court ORDERS the government to provide the defendants with a list of the opinions Detective Fukushima will offer, with reference to the limited scope of testimony the Court will permit, outlined above.

Finally, the Court finds that a Daubert hearing is not necessary, and therefore DENIES ...


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