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United States v. Anda

United States District Court, N.D. California

July 2, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SOPHIA DE ANDA, Defendant.

          ORDER RE: MOTIONS IN LIMINE RE: DKT. NOS. 27, 29.

          THOMAS S. HIXSON UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court are the government's and Defendant Sophia De Anda's motions in limine. ECF Nos. 27 (Gov't Mot.), 29 (Def.'s Mot.), 33 (Gov't Sealed Mot.).[1] On July 2, 2019, the Court held a pretrial conference in this matter, at which time it heard oral argument on the motions. After carefully considering the parties' arguments and the relevant legal authority, the Court rules as follows.

         I. BACKGROUND

         On November 2, 2018, the government filed an information against Sophia De Anda charging her with one count of violating 18 U.S.C. § 13, assimilating California Penal Code section 653m(b) - Making Telephone Calls or Contact by Electronic Communication Device with Intent to Annoy, a Class B misdemeanor. ECF No. 1. Section 653m(b) provides:

Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

         On May 10, 2019, the government filed a superseding information in which it alleges that between September 6 and September 24, 2018, De Anda “made repeated telephone calls and repeated contact to employees of the Veteran's Affairs Office in Menlo Park, by means of an electronic device, . . . whether or not conversation ensued from making the telephone call and contact by means of an electronic communication device, with intent to annoy and harass.” ECF No. 22 at 1-2.

         The matter is set to proceed to trial on July 8, 2019.

         II. THE GOVERNMENT'S MOTIONS IN LIMINE

         A. Number 1: De Anda's Emails and Voicemails

         The government seeks to prohibit De Anda from offering portions of her emails and phone calls through any witness other than through her direct testimony. Gov't Mot. at 4-5. The government contends it may offer De Anda's statements as non-hearsay admissions by a party-opponent, but De Anda may not use her own prior statements even if the government introduces only incriminating portions of them. Id. at 4.

         In response, De Anda argues her communications are admissible non-hearsay evidence because they are introduced not for the truth of the matters they assert, but because they are probative of her subjective intent and good faith. Def.'s Opp'n at 1, ECF No. 38. She also argues they are admissible under Federal Rule of Evidence 106, the rule of completeness. Id.

         Evidence is inadmissible under the hearsay rule if it is a statement made outside of court that is offered to prove the truth of the matter asserted. Fed.R.Evid. 801(c). However, a statement offered against a defendant that was made in the defendant's individual capacity is not hearsay. Fed.R.Evid. 801(d)(2)(A); see United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (“[S]elf-inculpatory statements, when offered by the government, are admissions by a party-opponent and are therefore not hearsay.”). Thus, to the extent the government seeks to introduce De Anda's prior statements, the motion is GRANTED.

         However, as to the government's position that only it should be able to introduce De Anda's out of court statements, the Court finds such a decision premature. The Court agrees that Rule 801(d)(2) would not allow De Anda to introduce her own out of court hearsay statements if offered to prove the truth of the matter asserted, see Ortega, 203 F.3d at 682 (non-self-inculpatory statements are inadmissible hearsay), but it declines to broadly rule that all of her out of court statements are inadmissible when introduced by her. “The admissibility of particular statements depends on the statement at issue, the purpose of the statements' introduction into evidence, and whether any of the exceptions to the rule against hearsay apply to those statements.” United States v. Aiyaswamy, 2017 WL 1365228, at *3 (N.D. Cal. Apr. 14, 2017) (declining to preclude defendant from introducing any out of court statements at the motion in limine stage). Accordingly, the motion is DENIED without prejudice to the extent the government seeks to preclude De Anda from introducing any of her out of court statements. “Such a decision is better made when the Court has before it the hearsay statements, if any, that Defendant seeks to introduce.” Id.

         B. Numbers 2 & 3: Emails and Phone Calls Before and After Charged Conduct

         In addition to the charged conduct between September 6 and September 24, 2018, the government seeks to introduce evidence of De Anda's communications between July 10 and August 29, 2018, and October 11 and November 16, 2018. Gov't Mot. at 5-6; Gov't Ex. List at 2-5(list of emails with subject lines), ECF No. 25. It moves for admission of these additional communications on two bases: they are “inextricably intertwined” and, alternatively, they are admissible under Federal Rule of Evidence 404(b). Gov't Mot. at 5-6.

         1. Timeliness

         As a preliminary matter, De Anda moves in her second motion in limine to exclude some of these communications as untimely disclosed. Def.'s Mot. at 4. She notes the government provided her with two lists of emails, one on May 29, 2019 (id., Ex. A) and the second on June 3, 2009 (id., Ex. B), and argues that any emails in the June 3 disclosure should be excluded because they were disclosed after the deadline in the Court's April 18, 2019 Case Management Order, which required disclosure by May 29, 2019. Id. at 4; see also ECF No. 21 (Case Management Order). The government acknowledges the June 3 letter was sent after the deadline set by the Court, but maintains it did not change the general nature of the evidence to be used at trial, which is to “demonstrate the progression, length, and gravity of harassment that took place leading up to and after the charged conduct.” Gov't Opp'n at 6, ECF No. 36.

         Federal Rule of Evidence 404(b)(2)(A) provides that the government must give notice of any acts it intends to admit for a non-propensity purpose. “Failure to provide notice or obtain an excuse from the district court, renders the other acts evidence inadmissible, whether the evidence is used in the prosecution's case-in-chief or for impeachment.” United States v. Vega, 188 F.3d 1150, 1153 (9th Cir. 1999); Fed.R.Evid. 404(b) (adv. comm. notes 1991 amendments) (“Because the notice requirement serves as condition precedent to admissibility of 404(b) evidence, the offered evidence is inadmissible if the court decides that the notice requirement has not been met.” The Advisory Committee Notes to the 1991 Amendments that added the notice requirement to Rule 404(b) indicate that: “Other than requiring pretrial notice, no specific time limits are stated in recognition that what constitutes a reasonable request or disclosure will depend largely on the circumstances of each case.”

         Here, although the government disclosed the emails five days after the deadline, disclosure was still over four weeks before trial. Three weeks has been found to be reasonable. See United States v. Benvin, 2013 WL 2154390, at *3 (D. Nev. May 17, 2013); United States v. Martin, 2009 WL 997396, at *4 (C.D. Cal. April 14, 2009). As the reasonable notice requirement “is designed to reduce surprise and promote early resolution of admissibility issues, ” Vega, 188 F.3d at 1153, the Court finds four weeks is a reasonable time and therefore declines to exclude these emails on timeliness grounds.

         2. Inextricably Intertwined (MIL #2)

         Federal Rule of Evidence Rule 404(b) “provides that evidence of ‘other crimes, wrongs, or acts' is inadmissible to prove character or criminal propensity but is admissible for other purposes, such as proof of intent, plan, or knowledge.” United States v. Rizk, 660 F.3d 1125, 1131 (9th Cir. 2011) (quoting Fed.R.Civ.P. 404(b)). However, “evidence of “other acts” is not subject to Rule 404(b) analysis if it is “inextricably intertwined” with the charged offense.” United States v. Wells, 879 F.3d 900, 928 (9th Cir. 2018) (quoting United States v. Beckman, 298 F.3d 788, 793 (9th Cir. 2002) (internal quotations omitted). The Ninth Circuit recognizes two categories of “inextricably intertwined” evidence, which may be admitted without regard to Rule 404(b): (1) if “the particular acts of the defendant are part of . . . a single criminal transaction”; or (2) where it is necessary for “the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime.” Id. (citation and quotations omitted).

         The government argues that records of De Anda's communications transmitted before and after the charged conduct should be admitted under the second category of the inextricably intertwined doctrine because they “demonstrate the progression, length, and gravity of harassment that took place leading up to it.” Gov't Mot. at 5. It notes that the communications at issue in the information took place after she received a request from the VA to “cease unwanted communication.” Id. In response, De Anda argues the government has failed to show that evidence of contacts made before and after the charged crime are “necessary” because the government fails to show it would encounter difficulty in proving the elements of its case without it. Def.'s Opp'n at 4.

         The Court finds the evidence is not inextricably intertwined with the charged conduct in this case. Although the evidence may assist the government's narrative regarding the progression of the nature and duration of the communication, it is not necessary to provide a “coherent and comprehensible story” regarding the offense for which De Anda is currently charged. See United States v. Peyton, 28 Fed.Appx. 655, 658 (9th Cir. 2002) (Where defendant convicted of credit card fraud, the Ninth Circuit affirmed the district court's decision to include fraudulent credit card transactions that were not charged under Rule 404(b), but found they were not inextricably intertwined as such “records recount the details of transactions that were wholly separable from the transactions that are the basis of the criminal charge.”) (citing United States v. Williams, 989 F.2d 1061, 1070 (9th Cir. 1993) (holding that offenses committed as part of a “single criminal episode” do not become other acts simply because the defendant is “indicted for less than all of his actions”). While the non-charged communications may be similar, they are separate incidents that are not necessary for the government to establish a narrative. Accordingly, the Court DENIES the government's second motion in limine.

         3. Rule 404(b)(2) (MIL #3)

         The government argues De Anda's communications before and after the charged conduct help establish they were “part of a pattern of intentional annoyance that persisted for many months.” Def.'s Mot. at 6. It notes the communications took place prior to a VA request for her to stop and continued even after she was charged. Id. The government further argues “the communication is not only similar, but identical to the communication that forms the basis of the criminal charge.” Id.

         In response, De Anda argues that “[i]ntroducing evidence that Ms. De Anda engaged in near-identical conduct over a longer period of time than charged in the Superseding Information does not bear on any material point before the Court” because “[t]he material issues of Ms. De Anda's intent and good faith cannot be clarified by looking at similar emails sent over a longer period of time.” Def.'s Opp'n at 6. She further argues the government's “proffer as to the intended use of the emails assumes that the emails themselves are sufficient to establish that Ms. De Anda had the required intent to annoy or harass when she sent them but that proffer is subject to the same defenses as the government's evidence at trial.” Id. at 7. Finally, De Anda argues the communications should be excluded under Federal Rule of Evidence 403 “because any probative value is outweighed by the needless presentation of cumulative evidence. The 404(b) communications are nearly identical to the charged communications and offer no further insight into the elements at issue.” Id.

         Rule 404(b) “provides that evidence of ‘other crimes, wrongs, or acts' is inadmissible to prove character or criminal propensity but is admissible for other purposes, such as proof of intent, plan, or knowledge.” Rizk, 660 F.3d at 1131 (quoting Fed.R.Civ.P. 404(b)). “Rule 404(b) is a rule of inclusion-not exclusion-which references at least three categories of other ‘acts' encompassing the inner workings of the mind: motive, intent, and knowledge.” United States v. Curtin, 489 F.3d 935, 944 (9th Cir. 2007). Such evidence is therefore admissible if: “(1) the evidence tends to prove a material point; (2) the prior act is not too remote in time; (3) the evidence is sufficient to support a finding that the defendant committed the other act; and (4) (in cases where knowledge and intent are at issue) the act is similar to the offense charged.” United States v. Verduzco, 373 F.3d 1022, 1027 (9th Cir. 2004). “The use of evidence pursuant to this rule ‘must be narrowly circumscribed and limited' and ...


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