United States District Court, N.D. California
PRETRIAL ORDER RE: DOC. NOS. 348, 358, 368, 334, 357,
382, 385, 388, 392, 401
PHYLLIS J. HAMILTON United States District Judge.
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.
Motions in Limine
Government's Motions in Limine (doc. no. 358)
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withdrawn three shooting incidents in June 2014 and two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withdrawn robberies by Daniels on October 9-10, 2013, from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.
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.
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
(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
(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.
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.
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).
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.
Defendant's Motions in Limine (doc. no. 368)
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).
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
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.
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).
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.
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.
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.
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.
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.
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.
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.
Coconspirator Statements (doc. no. 357)
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.
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.
court rules on Daniels's objections to the coconspirator
statements proffered by the government as follows:
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 ...