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United States v. Daniels

United States District Court, N.D. California

May 4, 2018


          PRETRIAL ORDER RE: DOC. NOS. 348, 358, 368, 334, 357, 382, 385, 388, 392, 401

          PHYLLIS J. HAMILTON United States District Judge.

         On May 2, 2018, this matter came on for pretrial conference and for hearing on the parties' motions in limine and objections jointly filed by defendants John Devalier Daniels and Jermaine Earnest to the government's notice of coconspirator statements. Defendant Earnest having entered a guilty plea pursuant to a Rule 11(c)(1)(C) plea agreement, the court rules on the motions in limine, admissibility of coconspirator statements and other disputed pretrial matters with respect to defendant Daniels for the reasons stated on the record and summarized below.

         I. Motions in Limine

         A. Government's Motions in Limine (doc. no. 358)

         1. In light of Earnest's change of plea, the government has withdrawn three shooting incidents in June 2014 and two firearm possessions by Earnest, in addition to the previously withdrawn robberies by Daniels on October 9-10, 2013, from the list of predicate and non-predicate acts that it will seek to prove. Subject to this modification, Gov't MIL No. 1 to admit evidence of predicate and non-predicate acts as directly related to or “inextricably intertwined” with the crimes charged in the indictment, and to allow the government to impeach Daniels with prior convictions if he testifies pursuant to FRE 609, is GRANTED.

         2. Gov't MIL No. 2 to admit evidence of defendant's statements on recorded jail calls, social media posts, text messages and verbal statements to police officers as party admissions pursuant to FRE 801(d)(2)(A) or as non-hearsay, as modified to withdraw statements by Earnest, is GRANTED. The government request for a ruling that defendant may not offer his own prior statements at trial, unless he testifies, is DENIED IN PART as to Daniels's statements that the court finds admissible in its ruling on defendant's MIL No. 11, and GRANTED IN REMAINING PART.

         3. Gov't MIL No. 3 to admit the plea agreements made by cooperating witnesses in anticipation of attacks on their credibility by the defense is GRANTED subject to the following limitations:

(a) The truthfulness provisions of the plea agreements must remain redacted, unless the witness's credibility is attacked. See U.S. v. Monroe, 943 F.2d 1007, 1013 (9th Cir. 1991) (“a reference to the ‘truthful testimony' provisions of a witness's agreement with the government does not constitute vouching if it is made in response to an attack on the witness's credibility because of his plea bargain”).
(b) The government's questioning during its case-in-chief is limited to the existence and terms of the guilty pleas and plea agreements, including the factual basis of the plea, the fact that the cooperator has yet to be sentenced, and the hope of receiving a reduced sentence partly due to their testimony at trial.
(c) References to the potential sentence or potential maximum statutory sentence that the cooperator could receive must be redacted because it may signal to the jury the punishment that defendant is facing, which is a prohibited consideration; however, the court will permit evidence of a mandatory minimum sentence that a witness faces. See U.S. v. Larson, 495 F.3d 1094, 1106 (9th Cir. 2007) (en banc) (district court may prohibit cross-examination regarding the potential maximum statutory sentence that the witness faces, which lacks significant probative force because a defendant seldom receives the maximum penalty permissible under the statute of conviction; by contrast, the mandatory minimum sentence that a witness will receive in the absence of a government motion is “highly relevant to the witness' credibility”).
(d) To minimize the risk of undue prejudice to defendant by introducing evidence of the cooperating witnesses' plea agreements, the court will give limiting instructions based on Ninth Circuit Model Criminal Jury Instruction 4.9, as proposed by the parties.

         Defendant's objection to admitting the factual summary in each plea agreement is OVERRULED because the summary of the conduct that the cooperating witness admitted to committing is not unduly prejudicial and the cooperating witnesses will be subject to cross examination at trial.

         4. Gov't MIL No. 4 to require that defendant may not assert that a specific third party is guilty without some showing of admissible evidence to support that defense theory, pursuant to FRE 402 or FRE 403, is DENIED. See United States v. Espinoza, 880 F.3d 506, 514 (9th Cir. 2018).

         5. Gov't MIL No. 5 to require defendant to make an offer of proof and offer of relevance of any alleged misconduct by law enforcement officers, including citizen complaints or news reports, prior to introducing such evidence to the jury is DENIED AS PREMATURE, given that the Giglio materials were produced in court on the day of the pretrial conference. With respect to such evidence, the court provides the following guidance: any unsubstantiated claims, complaints or reports against an officer that did not result in judgments, findings of liability, relevant admissions, or potential inconsistent statements would not be relevant and would be unduly prejudicial, and would therefore be inadmissible, unless evidence at trial provides a foundation for cross-examination under FRE 608(b). Following the production of Giglio materials, defendants' joint motion for issuance of subpoenas is hereby TERMINATED as moot. Doc. no. 348.

         B. Defendant's Motions in Limine (doc. no. 368)

         1. Def. MIL No. 1 to require the government to make an affirmative showing that the predicate acts and uncharged acts constitute proof of the conspiracy before trial is DENIED. As the court determined in granting Gov't MIL No. 1 to admit predicate and non-predicate acts without requiring FRE 404(b) analysis, the acts identified by the government have a contextual or substantive nexus to the alleged purposes of the charged racketeering enterprise and fall within the scope of the manner and means of the conspiracy alleged in the Second Superseding Indictment (“2SI”), and are therefore inextricably intertwined or connected with the charged conspiracy. See United States v. Vizcarra-Martinez, 66 F.3d 1006, 1013 (9th Cir. 1995).

         2. Def. MIL No. 2 to exclude prior acts pursuant to FRE 403 as unduly prejudicial and cumulative is DENIED in light of the government's representation that it will present limited evidence about the November 28, 2011 shooting, as stated on the record. With respect to evidence of the six prior robberies by Daniels, the court determines that this evidence is not unduly prejudicial and will give a limiting instruction, to be requested by the defense, to minimize the risk that the robberies would be considered as evidence of criminal propensity.

         3. Def. MIL No. 3 to exclude evidence that Daniels and Earnest were the victims of a shooting by an unknown assailant on August 28, 2013, as irrelevant, unduly prejudicial, and as hearsay, is DENIED, in light of the government's concession that the statement by the refused citizen to the police is inadmissible. The parties are instructed to propose a limiting instruction to clarify that Daniels was not charged in that shooting.

         4. Def. MIL No. 4 to exclude lay witness testimony referring to the term “gang” is DENIED. See United States v. Fernandez, 388 F.3d 1199, 1215 (9th Cir. 2004), modified by 425 F.3d 1248 (9th Cir. 2005).

         5. Def. MIL No. 5 to exclude evidence of a letter received by Cooperator B in jail on July 28, 2015, and of an assault on Cooperator B in jail on October 10, 2015, is DENIED. Defendant's motion to exclude evidence that Cooperators A and B are in protective custody as unduly prejudicial is GRANTED, except that the government may introduce rebuttal evidence that Earnest was moved after Cooperator B complained about threats, but not during its case in chief.

         6. Def. MIL No. 6 to exclude defendants' booking photos and jail records, except as directly relevant to an issue at trial, as unduly prejudicial is GRANTED, subject to exceptions for the limited uses proffered by the government: booking photos will be limited to photo lineups that were shown to witnesses and jail housing records may be used only on rebuttal.

         7. Def. MIL No. 7 to exclude surveillance footage on April 16, 2014, depicting the victim M.F. from inside the store where he ran inside after being shot and collapsed, photographs of the crime scene that include pictures of the victim after the shooting and autopsy pictures, and photos of the November 6, 2011 shooting victim, as lacking probative value and being unduly prejudicial, is DENIED on the ground that the photos are highly probative and not unfairly or unduly prejudicial.

         8. Def. MIL No. 8 to exclude Daniels's references to Ghost Town, the Ceasefire program, and stopping violence as inviting speculation and being unduly prejudicial is DENIED.

         9. Def. MIL No. 9 to exclude Cooperator B's testimony that others told him that Earnest had bragged about a shooting as hearsay is GRANTED as unopposed.

         10. Def. MIL No. 10 to exclude Daniels's prior felony convictions for impeachment purposes if he testifies at trial is DENIED pursuant to FRE 609(a)(1)(B). See United States v. Martinez-Martinez, 369 F.3d 1076, 1088 (9th Cir. 2004) (citing United States v. Cook, 608 F.2d 1175, 1185 n. 8 (9th Cir. 1979) (en banc), overruled on other grounds, Luce v. United States, 469 U.S. 38 (1984)); United States v. Givens, 767 F.2d 574, 580 (9th Cir. 1985). The court determines that the probative value of the prior convictions outweighs their prejudicial effect under the five Cook factors, in light of the government's agreement to elicit only the fact that Daniels was convicted of felonies on three occasions, and not to elicit the nature of the prior convictions unless he opens the door by denying them.

         11. Def. MIL No. 11 to exclude jail calls that lack probative value and are outweighed by undue prejudice pursuant to FRE 403 and to include portions of jail calls under the Rule of Completeness is GRANTED IN PART as to Daniels's statements to his wife about getting shot at during a 12/5/14 jail call, 1417623740195.wav. Accordingly, the government must include the statements preceding the designated excerpt, starting from page 9, line 12 of the transcript. Def. MILs, Ex. A at 18-19; also submitted as Gov't MILs, Ex. 4 Tab 10). Def. MIL No. 11 is DENIED IN REMAINING PART.

         II. Coconspirator Statements (doc. no. 357)

         Following the protocol set forth in the court's revised order for pretrial preparation, doc. no. 309, the government filed a notice as to each coconspirator statement that it seeks to introduce at trial. Doc. no. 334 (“Not. Coconsp. St.”). Defendants Daniels and Earnest filed objections to the government's notice of coconspirator statements, doc. no. 357, to which the government filed responses, doc. no. 388.

         As stated on the record, the court determines that the government has demonstrated, by a preponderance of the evidence, two of the three prongs required for admissibility of the proffered coconspirator statements: (1) the conspiracy existed when the statement was made, and (2) the defendant had knowledge of, and participated in, the conspiracy. United States v. Larson, 460 F.3d 1200, 1212 (9th Cir. 2006), adopted in relevant part on reh'g en banc, 495 F.3d 1094, 1096 n.4 (9th Cir. 2007). The court will determine the third Larson prong, whether the statement was made “in furtherance” of the conspiracy, after the witness testifies and/or the documentary evidence containing the particular coconspirator statement is introduced. The government's preliminary showing is sufficient for conditional admission of the proffered coconspirator statements, except for those which the court determines are inadmissible pursuant to FRE 802(d)(2)(E) as set forth below.

         The court rules on Daniels's objections to the coconspirator statements proffered by the government as follows:

         A. Defendant's objection on the ground that the declarant is unknown is SUSTAINED as to (1) the Facebook message from “Strip Stxt” to Earnest dated 10/11/2011; and (2) statements by Unidentified Males in the jail calls to Earnest. Defendant's objection is OVERRULED as to the “paperwork” statement ...

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