United States District Court, N.D. California
FINAL PRETRIAL CONFERENCE ORDER DOCKET NOS. 107, 115,
M. CHEN UNITED STATES DISTRICT JUDGE
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).
TRIAL DATE & LENGTH OF TRIAL
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).
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
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).
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)
Sergeant Dave Keenan, S SPD (investigation of the Quick Pick
Market robbery, and interaction with Nora Flores)
Detective William Tone, Daly City Police Department (DCPD)
(investigation of the Quick Pick Market robbery)
Officer Angelo Garcia Hamilton, DCPD (investigation of the
Quick Pick Market robbery)
Officer Joshua Moala, DCPD (investigation of the Quick Pick
Detective Francis Mangan, DCPD (investigation of the Quick
Pick Market robbery)
Detective Andre Bray, DCPD (investigation of the Quick Pick
Officer Joseph Bocci, DCPD (investigation of the Quick Pick
Special Agent James W. Chen, Homeland Security Investigations
(HSI) (subsequent federal investigation of the Quick Pick
Market robbery, summary witness, chain of custody)
Special Agent Calvin Wong, HSI (subsequent federal
investigation of the Quick Pick Market robbery, summary
witness, chain of custody)
Court cautioned the Government against duplicative testimony.
Victim 1 (Quick Pick Market robbery, business of the Quick
Victim 2 (Quick Pick Market robbery)
Flores-Ayar (identification of Jonathan Flores-Ayar and her
interaction with law enforcement)
Cesar Ortiz (events at 651 Hickey Boulevard, Daly City)
Andrea L. Weidemann, Criminalist II, San Mateo County Sheriff
s Office Forensic Laboratory (SMSO) (DNA analysis)
Sally E. Gustavson, Criminalist II, SMSO (latent fingerprint
identification and analysis)
S. Lee, Technical Leader and Forensic Serologist III,
Serological Research Institute (SERI) (DNA analysis)
Special Agent David Kimball, HSI (cell phone data
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, 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)
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
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
Scott Taylor, President and Lab Director of Technical
Associates, Inc. (DNA analysis and DNA transfer)
GOVERNMENT'S MOTIONS IN LIMINE
Government's Motion in Limine No. 1: Inextricably
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.
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 ...