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United States v. Matsura

United States District Court, S.D. California

August 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE SUSUMO AZANO MATSURA (1), Defendant.

          ORDER RE: UNITED STATES' MOTIONS IN LIMINE [DOC. NO. 773].

          HON. MICHAEL M. ANELLO United States District Judge.

         On August 28, 2017, the parties in this action appeared before the Court for a hearing on the government's pretrial motions in limine. Having considered the parties' submissions and the oral arguments of counsel, the Court issues the following rulings:

         1. The Court GRANTS the government's motion to preclude Defendant Jose Susumo Azano Matsura (“Azano”) from raising affirmative defenses for which he is unable to make a prima facie showing prior to trial. Evidence relating to an affirmative defense is properly excluded via a pretrial ruling when the defendant is unable to demonstrate that the evidence is sufficient as a matter of law to satisfy the elements of the affirmative defense. See, e.g., United States v. Alexander, 287 F.3d 811, 817-18 (9th Cir. 2002) (holding that the defendant “failed to demonstrate that the district court erred in granting the motion in limine” to exclude evidence of affirmative defenses, including selective prosecution, vindictive prosecution, duress, and justification); United States v. Mack, 164 F.3d 467, 471 (9th Cir. 1999) (defenses of public authority and entrapment by estoppel ruled inadmissible prior to trial); United States v. Shapiro, 669 F.2d 593, 596 (9th Cir. 1982) (“If the evidence as described in Shapiro's offer of proof was insufficient as a matter of law to support a duress defense the trial court was correct in excluding that evidence.”).

         2. The Court GRANTS the government's motion to preclude Azano from raising entrapment by estoppel as an affirmative defense. To establish a prima facie case of entrapment by estoppel, Azano must show, inter alia, “that the government affirmatively told him the proscribed conduct was permissible.” United States v. Batterjee, 361 F.3d 1210, 1216 (9th Cir. 2004) (quoting United States v. Ramirez-Valencia, 202 F.3d 1106, 1109 (9th Cir. 2000) (the defendant “must show that the government affirmatively told him the pro-scribed conduct was permissible”)); see also Raley v. Ohio, 360 U.S. 423, 438 (1959) (finding entrapment where state engaged in “active misleading”); Lavin v. Marsh, 644 F.2d 1378, 1382 (9th Cir. 1981) (“To invoke estoppel against the government, the party claiming estoppel must show ‘affirmative misconduct' as opposed to mere failure to inform or assist.”); United States v. Brebner, 951 F.2d 1017, 1024 (9th Cir. 1991) (“The entrapment by estoppel defense applies when an authorized government official tells the defendant that certain conduct is legal and the defendant believes the official.”). Azano's proffer of anticipated testimony from a federal law enforcement officer who gifted him the firearm in question is insufficient to establish a viable theory of entrapment by estoppel. The proffer is silent as to whether the officer advised Azano that receiving the firearm was legal, whether Azano relied on that advice, whether that reliance was reasonable, and whether, given that reliance, prosecution of Azano offends due process.

         3. The Court GRANTS the government's motion to preclude Azano from raising affirmative defenses under 18 U.S.C. § 922(y)(2). Azano's proffer of anticipated testimony from an immigration expert is insufficient to establish that he qualifies for the exception set forth in Section 922(y)(2)(A) that has was “admitted to the United States for lawful hunting or sporting purposes.” 18 U.S.C. § 922(y)(2)(A). The testimony establishes the unremarkable proposition that an individual who wishes to enter the United States in order to hunt or engage in sport does so on a visitor visa. Even assuming that a person seeking admission “for lawful hunting or sporting purposes” need not declare or document that intention at the time of entry, Azano must still demonstrate that he was admitted to the United States for such purpose in order to establish an affirmative defense to the charge against him. Azano has not shown that he can do so.[1]

         Nor has Azano made a prima facie showing that he qualifies as “a foreign law enforcement officer of a friendly foreign government entering the United States on official law enforcement business” under the exception set forth in Section 922(y)(2)(D). 18 U.S.C. § 922(y)(2)(D). Azano's proffer regarding his work providing technical assistance to Mexican law enforcement, his meetings with federal agencies, and his provision of resources to law enforcement, fails to establish that this exception applies to him. The exception has two requirements, that (1) the individual is a “foreign law enforcement officer, ” (2) entering the country on “official law enforcement business.” Id. Azano's proffer is relevant only to the second requirement. Azano fails to present any evidence to show that he qualified as a “foreign law enforcement officer” when he entered the United States.

         4. The Court GRANTS the government's motion to admit evidence that the search warrant was executed at Azano's home for “unrelated matters.”

         5. The Court GRANTS the government's motion to preclude cross-examination of witnesses regarding any investigation into Sempra Energy, or as to the factors set forth under United States v. Craighead, 539 F.3d 1073 (9th Cir. 2008).[2]Unless a government witness testifies on direct examination regarding a matter related to or involving an investigation into Sempra Energy, Azano may not raise the issue during cross-examination. See Fed. R. Evid. 402 (“Irrelevant evidence is not admissible.”); Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (“[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, . . . confusion of the issues, . . . or interrogation that is . . . only marginally relevant.”). The Court previously determined that Azano was not subject to a “police dominated atmosphere” during the search of his residence. The admission of evidence to demonstrate otherwise would run afoul of the Court's determination. As such, Azano may not argue, or suggest during cross-examination, that he was subjected to a “police dominated atmosphere” during the search of his residence.

         6. The Court GRANTS the government's motion to preclude hearsay from Azano's wife absent an applicable exception to the hearsay rule. See Fed. R. Evid. 802.

         7. The Court GRANTS the government's motion to admit the expert testimony of ATF Special Agent Matthew Beals, as well as the testimony of an A-File custodian/DHS witness and a State Department witness.

         8. The Court GRANTS the government's motion to allow impeachment of Azano with his felony convictions. In the event that Azano testifies, he may be impeached based on his prior convictions in this case despite the fact that judgment is not yet final. See United States v. Smith, 623 F.2d 627, 630 (9th Cir. 1980) (finding “we and other circuits have held that, when a conviction of felony is used to impeach, a verdict of conviction is just as relevant as a judgment of conviction.”); United States v. Canaday, 466 F.2d 1191 (9th Cir. 1972) (holding that a witness could be impeached with a conviction that the witness had sustained the previous day in another case). Azano's convictions on Counts 1 and 5-37 are admissible for impeachment purposes under Federal Rule of Evidence 609(a)(2), regardless of their prejudicial effect. See United States v. Cuozzo, 962 F.2d 945, 948 (9th Cir. 1992) (“[P]assing counterfeit money is a crime involving dishonesty and fraud. It follows that a conviction for conspiracy and aiding and abetting the dealing of counterfeit obligations or securities likewise demonstrates a propensity towards testimonial dishonesty.”); United States v. Brashier, 548 F.2d 1315, 1326-1327 (9th Cir. 1976) (prior conviction for conspiracy to issue unauthorized securities and mail fraud admissible under Rule 609(a)(2)). Azano may also be impeached based on his convictions on Counts 3 and 4, as their probative value regarding his credibility outweigh their prejudicial effect. See Fed. R. Evid. 609(a)(1)(B).

         9. The Court GRANTS the government's motion to allow cross-examination of character witnesses with Azano's felony convictions. Once a witness has testified about a defendant's good character, cross-examination is allowed as to whether the witness has heard of particular instances of conduct relevant to the trait of the defendant in question. See Michelson v. United States, 335 U.S. 469, 479. Here, if that trait is law-abidingness, then the government may cross-examine the witness regarding their knowledge of Azano's felony convictions. See Fed. R. Evid. 405(a).

         10. The Court DENIES the government's motion to allow evidence that other firearms that did not belong to Azano were found in Azano's home pursuant to Federal Rule of Evidence 403.

         11. The Court GRANTS the government's motion for leave to use the six specified ...


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