United States v. Baires-Reyes

          FINAL PRETRIAL CONFERENCE ORDER DOCKET NOS. 107, 115, 125, 126

          EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

         On January 20, 2015, Defendants Jonathan Flores-Ayar and Kevin Baires-Reyes allegedly committed an armed robbery of a Quick Pick Market in Daly City. Docket No. 1 (Compl.) at ¶ 9. Flores-Ayar allegedly pointed a gun at the Quick Pick Market employee, and demanded money and a bottle of Hennessy cognac liquor, which the employee gave him. Id. The two then fled on foot. Id. As reflected in the superseding indictment, Baires-Reyes has been charged with: (1) conspiracy to commit robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951(a); (2) robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951(a); and (3) use, possession, or brandishing of a firearm during and in relation to and in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). Docket No. 88 (Superseding Indictment).

         I. TRIAL DATE & LENGTH OF TRIAL

         Jury selection shall be held on July 29, 2016 at 8:30 a.m. July 29, 2016 is set for a full day, from 8:30 a.m. to 4:30 p.m. If time permits following jury selection, the trial shall begin immediately thereafter, with opening statements and presentment of evidence. Unless the Court orders otherwise, trial days shall last from 8:30 a.m. to 2:00 p.m., with one 15-minute break and one 30-minute lunch break. The parties shall be prepared to go for full days on August 1st and 5th. Thursdays are dark. 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 is to conclude no later than August 5, 2016 (including closing arguments).

         II. STIPULATIONS

         The Court is informed that the parties have yet to reach any stipulations of relevant facts. See Docket No. 102 (Government Trial Brief) at 6. At the pretrial conference, the parties stated that they will work on obtaining stipulations regarding authenticity and chain of custody. The Court expects the parties to stipulate to those matters over which there is no reasonable basis for dispute. Accordingly, the parties shall file a joint statement with the Court as to what stipulations they have reached and what stipulations they have tried but not reached by Wednesday, July 20, 2016

         III. WITNESSES

         A. Government's Witnesses

         The Government anticipates that presentation of its case-in-chief will take two or three days. Government Pretrial Memo. at 4. The Government has identified the following individuals as witnesses it may call in its case-in-chief Docket No. 112 (Government Witness List).

         Law Enforcement Witnesses

         1. Officer Dan Brown, South San Francisco Police Department (SSFPD) (investigation of the Quick Pick Market robbery, and prior contacts with Baires-Reyes and Flores Ayar)

         2. Sergeant Dave Keenan, S SPD (investigation of the Quick Pick Market robbery, and interaction with Nora Flores)

         3. Detective William Tone, Daly City Police Department (DCPD) (investigation of the Quick Pick Market robbery)

         4. Officer Angelo Garcia Hamilton, DCPD (investigation of the Quick Pick Market robbery)

         5. Officer Joshua Moala, DCPD (investigation of the Quick Pick Market robbery)

         6. Detective Francis Mangan, DCPD (investigation of the Quick Pick Market robbery)

         7. Detective Andre Bray, DCPD (investigation of the Quick Pick Market robbery)

         8. Officer Joseph Bocci, DCPD (investigation of the Quick Pick Market robbery)

         9. Special Agent James W. Chen, Homeland Security Investigations (HSI) (subsequent federal investigation of the Quick Pick Market robbery, summary witness, chain of custody)

         10. Special Agent Calvin Wong, HSI (subsequent federal investigation of the Quick Pick Market robbery, summary witness, chain of custody)

         The Court cautioned the Government against duplicative testimony.

         Civilian Witnesses

         1. Victim 1 (Quick Pick Market robbery, business of the Quick Pick Market)

         2. Victim 2 (Quick Pick Market robbery)

         3. Nora Flores-Ayar (identification of Jonathan Flores-Ayar and her interaction with law enforcement)

         4. Cesar Ortiz (events at 651 Hickey Boulevard, Daly City)

         Expert Witnesses

         1. Andrea L. Weidemann, Criminalist II, San Mateo County Sheriff s Office Forensic Laboratory (SMSO) (DNA analysis)

         2. Sally E. Gustavson, Criminalist II, SMSO (latent fingerprint identification and analysis)

         3. Amy S. Lee, Technical Leader and Forensic Serologist III, Serological Research Institute (SERI) (DNA analysis)

         4. Special Agent David Kimball, HSI (cell phone data analysis)^[1]

         5. Potential Unidentified Expert (cellular telephone data and location information) (subject to exclusion by the Court if based on records and exhibits not already produced)

         Custodian of Records

         1. Custodian of Records, San Mateo County Superior Court (certified conviction documents regarding Baires-Reyes's 2014 conviction for carrying a loaded firearm in public and 2014 conviction for possession of a controlled substance)

         2. Custodian of Records, Seniore's Pizza (business records and regular business practices, e.g., with regard to pizza delivery orders and receipts issued to delivery customers)

         3. Chain of Custody Witnesses (surveillance video) B. Baires-Reyes's Witnesses Baires-Reyes asserts his right to determine what witnesses and evidence, if any, he will introduce as part of his defense case-in-chief once the Government closes its evidence for its casein-chief. Docket No. 108 (Baires-Reyes Witness List) at 1-2. In the meantime, he has identified the following individual as a witness.

         1. Marc Scott Taylor, President and Lab Director of Technical Associates, Inc. (DNA analysis and DNA transfer)

         IV. GOVERNMENT'S MOTIONS IN LIMINE

         A. Government's Motion in Limine No. 1: Inextricably Intertwined Evidence

         The Government's first motion in limine seeks to admit evidence regarding Flores-Ayar's gang affiliation. Docket No. 107 (Gov. Mots. in Limine) at 6. The Government contends that information about Flores-Ayar's gang affiliation, the significance of the Cincinnati Reds hat, and Officer Dan Brown's prior contacts with Flores-Ayar are inextricably linked to the investigation, as it allowed the officers to identify Flores-Ayar. Id. at 4-5. Baires-Reyes does not oppose a brief description of the police investigative actions following the robbery to identify Flores-Ayar as a possible suspect and their locating him at the Ortiz residence, but argues that extensive testimony is not required. Docket No. 127 (Baires-Reyes Opp.) at 1.

         In general, Federal Rule of Evidence 404(b) renders inadmissible "[e]vidence of a crime, wrong, or other act" to prove the character or criminal propensity of a defendant. United States v. Lillard, 354 F.3d 850, 854 (9th Cir. 2003). However, Rule 404(b) is inapplicable "where the evidence the government seeks to introduce is directly related to, or inextricably intertwined with, the crime charged in the indictment." Id. For example, evidence is inextricably intertwined when it is necessary "to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime; it is obviously necessary in certain cases for the government to explain either the circumstances under which particular evidence was obtained or the events surrounding the commission of the crime." United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012-13 (9th Cir. 1995); see United States v. Farley, Case No. 15-cr-0092-THE, 2015 U.S. Dist. LEXIS 152631, at *17 (N.D. Cal. Nov. 9, 2015) (allowing testimony of prior burglary because it explained how the officer identified the defendant, and that absent such context, the jury "would be left to speculate as to how [the officer] was able to identify Defendant after the case after presumably only seeing him for a few seconds in the living room of the residence, which would invite skepticism about the SFPD officers' motives"); see also United States v. Fagan, 996 F.2d 1009, 1015 (9th Cir. 1993) (finding admissible the officer's ...