United States District Court, N.D. California
ORDER RE: MOTIONS IN LIMINE RE: DKT. NOS. 27,
S. HIXSON UNITED STATES MAGISTRATE JUDGE.
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.). 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.
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
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
matter is set to proceed to trial on July 8, 2019.
THE GOVERNMENT'S MOTIONS IN LIMINE
Number 1: De Anda's Emails and Voicemails
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.
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
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.
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.
Numbers 2 & 3: Emails and Phone Calls Before and After
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.
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.
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.”
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.
Inextricably Intertwined (MIL #2)
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).
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.
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.
Rule 404(b)(2) (MIL #3)
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
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.
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 ...