United States District Court, S.D. California
ORDER REGARDING MOTIONS IN LIMINE AND DEFENDANT'S
MARILYN L. HUFF, UNITED STATES DISTRICT JUDGE
1, 2017, the Clerk's Office received a letter from
Defendant Martel Valencia-Cortez (“Defendant”)
concerning this case. (Doc. No. 84.) The letter was address
to Chief Judge Barry Ted Moskowitz. (Id.) On May 2,
2017, the Clerk's Office submitted the Defendant's
letter to this Court to determine whether or not the letter
should be filed despite the noted discrepancies. (Doc. No.
83.) The Court ordered the letter be filed nunc pro tunc to
the date. (Id.)
to the Court receiving the Defendant's letter, the Court
held a motions in limine hearing on May 1, 2017. (Doc. No.
81.) At the motions in limine hearing, Assistant United
States Attorneys Timothy D. Coughlin and Carlos Arguello
appeared on behalf of the United States. Michael J. Messina
appeared on behalf of the Defendant. (Id.) The Defendant
is charged in a multiple-count Superseding Indictment with
assault on a federal officer in violation of Title 18, U.S.C.
§ 111(a)(1) and (b), bringing in aliens for financial
gain in in violation of Title 8, U.S.C. §
1324(a)(2)(B)(ii), and attempted reentry of a removed alien
in violation of Title 8, U.S.C. § 1326(a) and (b). (Doc.
No. 68.) Prior to the motions in limine hearing, the Court
granted the Government's motion to dismiss without
prejudice counts 2, 3, 4, 5, 6, 9, and 10 of the Superseding
Indictment and, in order to avoid potential prejudice to the
Defendant, granted the Defendant's motion to sever count
12, charging the Defendant with attempted reentry of a
removed alien. (Doc. No. 70.) The Government has moved to
dismiss without prejudice the counts involving the October
21, 2015 incident and has elected to proceed to trial on
certain counts involving the alleged November 15, 2015
incident. (Id.) The jury trial was set to
begin on May 2, 2017 on counts 1, 7, 8, and 11 of the
Superseding Indictment. (Id.) However, at the
defense's request, the Court continued the jury trial to
May 9, 2017, to allow defense counsel sufficient time to meet
with the Defendant and further prepare for trial. (Doc. No.
letter, the Defendant, a Mexican citizen, contends that he
was brought illegally to the United States by Mexican
authorities to face criminal charges. (Doc. No. 84.) The
Court addressed this issue at the May 1, 2017 motions in
limine hearing. (See Government's motions in
limine no. 5, Doc. No. 74 at 24 and Doc. No. 81.) The
Defendant was arrested on or about March 10, 2016. (Doc. No.
11.) U.S. agents arrested the Defendant when Mexican
authorities escorted him to the San Ysidro Port of Entry.
(Doc. No. 80 at 5.)
Government contends that on November 15, 2015, the Defendant
re-entered the United States guiding a large group of
undocumented aliens. (Doc. No. 80 at 5.) The Government
further contends that during the smuggling event, the
Defendant threw a soft-ball sized rock from a distance of
approximately 30 feet that hit an agent. (Id.)
Additionally, the Government contends that the Defendant
evaded apprehension for this incident when he ran back in
Mexican authorities brought the Defendant to the San Ysidro
Port of Entry to be arrested by U.S. agents on or about March
10, 2016. (Id.) The Defendant challenges the
legality of these actions and the Government moved to exclude
the post-incident evidence. Given the present state of the
law and the time frame between the alleged incident charged
in the Superseding Indictment and the date of the
Defendant's arrest, the Court concluded that the
circumstances of the Mexican authorities bringing the
Defendant to the San Ysidro Port of Entry did not provide a
defense to the charges absent further evidence of relevance
and considerations under Fed.R.Evid. 403. See United
States v. Alvarez-Machain, 504 U.S. 655 (1992). As a
result, the Court granted the Government's motion in
limine, absent further evidence of relevance. (Doc. No. 81.)
Nonetheless, the Court reminded the Defendant that he had
preserved his objections on the record.
the Court notes that this criminal case is not assigned to
Chief Judge Moskowitz. See United States v. Heath,
103 F.Supp. 1, 2 (D. Haw. 1952) (“No express or implied
power is granted a chief judge to affect administratively,
directly or indirectly, litigation assigned to and pending
before another judge of the court.”); see also
Dhalluin v. McKibben, 682 F.Supp. 1096, 1097 (D. Nev.
1988) (“The structure of the federal courts does not
allow one judge of a district court to rule directly on the
legality of another district judge's judicial acts or to
deny another district judge his or her lawful
 Mr. Messina is the Defendant's
third appointed attorney. Prior to Mr. Messina's
appointment, the Defendant was represented by Gregory T.
Murphy of Federal Defenders and Ezekiel E. Cortez.
 The Government has moved to dismiss
without prejudice the November 15, 2015 incident charged in
counts 5, 6, 9 and 10 of the Superseding Indictment. (Doc.
No. 70.) The trial will proceed with the November 15, 2015
incident charged in counts 1, 7, 8 and 11 of the Superseding
 The parties stipulated that the counts
being tried for the first trial would be re-numbered as
counts 1, 2, 3, and 4 solely for trial purposes to ...