United States District Court, N.D. California
FINAL PRETRIAL CONFERENCE ORDER
EDWARD M. CHEN, District Judge.
I. TRIAL DATE & LENGTH OF TRIAL
Jury completion of questionnaire shall occur on February 2, 2015. Jury voir dire and trial will commence on February 3, 2015 at 8:30 a.m. in Courtroom 5, 17th Floor. (Note: Jury questionnaires will not be filled out on January 30, 2015 as discussed at the January 12, 2015 pretrial conference because a jury pool has already been subpoenaed for February 2). The parties expect the trial to last roughly four, possibly five, weeks, including opening statements and closing arguments. Trial shall be conducted from 8:30 a.m. to 2:00 p.m. (or slightly longer to finish a witness), with one 15-minute break and one 30-minute lunch break. If necessary, the Court may extend any trial day. Parties must arrive by 8:00 a.m., or earlier as needed for any matters to be heard out of the presence of the jury. The jury shall be called at 8:30 a.m. The trial week is Monday through Friday, excluding holidays. Thursdays are dark, absent further order. Trial will not be held February 16, 2015.
II. PROCEDURE FOR EXHIBITS AT/DURING TRIAL
A. No later than the end of each trial day, counsel shall inform opposing counsel of which exhibits (including demonstrative evidence), if any, he or she intends to introduce during the next trial day and, if necessary, with respect to which sponsoring witness. If any such exhibits are objected to, both counsel shall notify the Court after the jury is excused for the day, and shall identify the exhibits at issue and the objections. The Court will then schedule a conference that afternoon or the following morning before trial to resolve the dispute.
B. At the end of each trial day, counsel shall also provide opposing counsel with a tentative preview of the exhibits he or she intends to introduce during the trial the day after next. Parties are directed to make a good faith effort to ensure such previews are as accurate as possible.
C. With respect to exhibits or demonstratives to be used on the first day of trial, counsel shall inform opposing counsel of which exhibits or demonstratives, if any, he or she intends to introduce by Thursday, January 29, 2015, at 5:00 p.m. If any such materials are objected to, both counsel shall notify the Court by January 30, at 2:00 p.m., and shall identify the materials at issue and the objections. The Court will then address the dispute on the first day of trial, at 1:00 p.m., February 2, 2015 when the Court will hold a final pretrial conference to discuss any last minute issues.
D. If a party intends to use a projector or other equipment to show an exhibit (or demonstrative) to the jury, that equipment shall be set up and ready for use by 8:30 a.m. each day. The parties should immediately file with the Court, if necessary, administrative requests to bring projectors and/or other equipment to the courthouse for use at trial.
III. PROCEDURE FOR WITNESSES AT/DURING TRIAL
A. Each party shall be prepared, during its case in chief or any rebuttal, to present its next witness. At any time, if the party whose case is being presented is not prepared to present its next witness, that party shall be deemed to have rested that portion of its case. No further witnesses shall be permitted by the party who has so rested in that portion of the case ( e.g., case in chief or rebuttal).
B. Counsel are expected to cooperate with each other in the scheduling and production of witnesses, including informing one another of witness order. At the end of each trial day, counsel shall give opposing counsel notice of which witnesses will be testifying on the following day. At that time, counsel shall also provide a tentative preview of witnesses who are expected to testify the day after next. Witnesses may be taken out of order if necessary. Every effort shall be made to avoid calling a witness twice (as an adverse witness and later as a party's witness).
C. Only one lawyer for each party may examine or cross-examine any single witness.
D. If a witness is testifying at the time of a recess or adjournment and has not been excused, the witness shall be seated back on the stand when the Court reconvenes. If a new witness is to be called immediately following recess or adjournment, the witness should be seated in the front row, ready to be sworn in.
E. Counsel shall refrain from eliciting testimony regarding any undisputed facts as set forth in any stipulation filed with the Court. The Court may read to the jury such undisputed facts at appropriate points in the trial.
F. Witnesses shall be excluded from the courtroom until the total completion of their testimony, including rebuttal testimony, if any.
IV. OTHER PROCEDURES AT TRIAL
A. To make an objection, counsel shall rise, say "objection, " and briefly state the legal ground ( e.g., hearsay or relevancy). There shall be no speaking objections or argument from either counsel unless requested by the Court.
B. Bench conferences, or the equivalent of sidebars, will not be permitted absent truly extenuating circumstances. Disputes regarding exhibits shall be resolved as set forth in Part II, supra. Any other disputes or problems should be addressed either before the trial day commences, at the end of the trial day, or during a recess, if necessary.
V. STIPULATIONS OF FACT
The Court is informed that the parties have yet to reach any stipulations of fact. The Government has further represented that defense counsel "has stated that they will not be stipulating to any facts for this trial." Government's Trial Brief at 6 (Docket No. 118); see also Defendant's Trial Brief at 1 (Docket No. 130). Defense counsel informed the Court at the hearing that it is not currently prepared to enter into any stipulations. However, Defense counsel agreed to further meet and confer with the Government regarding possible stipulations.
As stated at the pretrial conference, the Court expects the parties to stipulate to those matters (including authenticity and chain of custody) over which there is no reasonable basis for dispute. Accordingly, the parties are ORDERED to continue to meet and confer regarding possible stipulations. The parties are further ORDERED to file a joint statement no later than Friday, January 23, 2015, addressing those facts to which the parties have stipulated. If a dispute remains as to such issues, they shall specify each such dispute on said date; the joint filing shall state, with particularity, the basis for disputing the matter.
VI. GOVERNMENT'S MOTIONS IN LIMINE
A. Government's Motion in Limine No. 1 (Docket No. 117): Defendant May Not Introduce His Own Prior Statements
In its first motion in limine, the Government seeks to prohibit Defendant Wilde from introducing into evidence his own out-of-court statements, which the Government contends are inadmissible hearsay. According to the Government, Defendant Wilde "may have made a number of statements setting forth his defense in this case, " for instance during jail calls or in statements made to other witnesses. The Government contends that while the Government may permissibly offer such out-of-court statements into evidence pursuant to the Federal Rules of Evidence - namely, Rule 801(d)(2)(A), which provides that out-of-court statements offered against a party opponent are not hearsay - Defendant Wilde may not. Moreover, the Government argues that if it chooses to introduce just portions of certain of Defendant Wilde's out-of-court statements (presumably the inculpatory portions), Defendant Wilde may not introduce other portions of those same statements (presumably the exculpatory ones), even for completeness.
The Government correctly notes that the statements of an opposing party are typically admissible against that party pursuant to Federal Rule of Evidence 801(d)(2)(A). See Fed.R.Evid. 801(d)(2)(A). The Government is also correct that Defendant Wilde may not generally seek admission of his own hearsay statements, even if the Government chooses to admit just portions of those same statements. As the Ninth Circuit has explained, a criminal defendant's "non-self-inculpatory statements are inadmissible even if they were made contemporaneously with other self-inculpatory statements" admitted by the Government. United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (citing Williamson v. United States, 512 U.S. 594, 599 (1994)). "The self-inculpatory statements, when offered by the government, are admissions by a party-opponent and are therefore not hearsay... but the non-self-inculpatory statements are inadmissible hearsay." Id .; see also United States v. Nakai, 413 F.3d 1019, 1022 (9th Cir. 2005) (holding that defendant may not introduce by cross-examination of a government witness the defendant's own exculpatory out-of-court statement).
Defendant Wilde opposes the Government's motion in part. Defendant Wilde concedes that he may not introduce his own unrecorded out-of-court statements, but argues that Federal Rule of Evidence 106 - often referred to as the rule of completeness - would permit him to admit additional relevant portions of his recorded out-of-court statements to the extent those portions "in fairness ought to be considered at the same time" as the Government's evidence. Fed.R.Evid. 106; see also United States v. Collicott, 92 F.3d 973, 982-83 (9th Cir. 1996) (describing Rule 106 as the "rule of completeness" and explaining that the rule allows a party to introduce additional portions of a document or recording when her adversary admits only a portion of the document or recording). Defendant Wilde's position has some merit.
In general, the Ninth Circuit has expressed the view that even where the rule of completeness would apply, exclusion of a defendant's exculpatory statements is appropriate where those statements "would still have constituted inadmissible hearsay." Ortega, 203 F.3d at 682 (citation omitted). Or, put more directly, "Rule 106 does not compel admission of otherwise inadmissable hearsay evidence.'" Collicott, 92 F.3d at 983 (quoting Phoenix Associates III v. Stone, 60 F.3d 95, 103 (2d Cir. 1995); see also United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir. 1981) (holding that district court properly exercised its discretion to exclude inadmissible hearsay where defendant had requested that such hearsay be admitted pursuant to Rule 106).
However, at least one district court in this Circuit-citing Ortega and Collicott -has noted that while the "Rule of Completeness cannot serve as an end run around the prohibition on inadmissible hearsay, this principle does not allow the Government to offer abridged portions of statements that distort the meaning of a statement." United States v. Castro-Cabrera, 534 F.Supp.2d 1156, 1161 n. 6 (C.D. Cal. 2008). As the Castro-Cabrera court explained, "the Rule of Completeness was designed to prevent the Government from offering a misleading-tailored snippet'" of testimony. Id. at 1160 (quoting Collicott, 92 F.3d at 983). Thus, as the court found, the "Rule of Completeness warrants admission of statements in their entirety when the Government introduces only a portion of inextricably intertwined statements." Id. (emphasis added).
Thus, while it is true that Rule 106 "cannot be used to trump the normal rules concerning the admissibility of evidence, " id. at 1161, the Federal Rules of Evidence will not allow the Government to admit misleading snippets of Defendant Wilde's out-of-court statements as party admissions, while excluding other out-of-court statements that provide context to the Government's evidence. Accordingly, to the extent the Government seeks to admit a "misleadingly-tailored snippet" of Defendant Wilde's out-of-court statements, the Court will allow Defendant Wilde to present the statement in greater context "in order to avoid the injustice of having the meaning of [his] statement distorted by its lack of context." Castro-Cabrera, 534 F.Supp.2d at 1161. Because such "analysis must be done on a case-by-case basis, " id., the Court reserves ruling on the Government's motion in limine at this time.
As the Court stated at the pre-trial hearing, the Government must inform the defense at least one day in advance if it intends to introduce Defendant Wilde's out-of-court statements. See Part II.A, supra. If there is a dispute regarding whether the Government's proposed statement(s) requires further context in order to be properly introduced, such a dispute will be raised with the Court at 8:00 a.m. before the start of the relevant trial day, as required by the general trial procedures set out in this Order.
B. Government's Motion in Limine No. 2 (Docket No. 117): Punishment
The Government's second motion in limine seeks to preclude Defendant from making any reference to the potential sentence Defendant Wilde might face if convicted. The Government correctly notes the general rule that "it is inappropriate for a jury to consider or be informed of the consequences of their verdict." United States v. Frank, 956 F.2d 872, 879 (9th Cir. 1992).
Defendant Wilde does not oppose the Government's motion. Accordingly, the Court GRANTS the Government's second motion in limine.
C. Government's Motion in Limine No. 3 (Docket No. 117): Use of State Law Enforcement Personnel or Complaint Records
In its third motion in limine, the Government argues that Defendant Wilde should be prohibited from questioning any law enforcement officer about matters contained in his or her personnel file and/or relating to officer disciplinary matters unless Defendant Wilde first files an appropriate motion in limine seeking admission of such information. The Government cites this Court's General Orders, and specifically General Order 69, in support of its motion. See N.D. Cal. General Order No. 69 (Process for Subpoenaing & Using Personnel or Complaint Records of State Law Enforcement Officers Testifying in Federal Court).
General Order 69 provides that if a criminal defendant wishes to admit information from a state law enforcement officer's personnel or disciplinary file, "the defendant shall make an appropriate in limine motion seeking admission of the records at issue." See id. General Order 69 further requires that any such motion in limine be filed "no fewer that 14 days before the pretrial conference." Id. Because Defendant Wilde did not file any such motion in limine, and because he does not oppose the Government's motion, the Court GRANTS the Government's third motion in limine.
D. Government's Motion in Limine No. 4 (Docket No. 117): Extrinsic Evidence for Impeachment
In its fourth motion in limine, the Government seeks to preclude the Defendants from admitting extrinsic evidence for the purpose of impeaching Government witnesses' character for truthfulness or untruthfulness. The Government correctly notes that extrinsic act evidence is typically inadmissible to prove a witness's character for truthfulness under Federal Rule of Evidence 608(b), subject to certain exceptions.
Defendant responds that the Government has not "defined what it means by extrinsic evidence' or noted any specific instances in this case in which it anticipates" Defendant Wilde will attempt to admit such evidence. Docket No. 129 at 2. Given that a number of context-specific exceptions apply to Rule 608(b), and given that the Government has not provided the Court with any concrete examples where Defendant Wilde may attempt to admit extrinsic evidence for impeachment of a witnesses' character for truthfulness, the Court declines to rule on the Government's motion at this time. To the extent the ...