United States District Court, N.D. California
ORDER ON GILTON AND MERCADO MOTIONS IN LIMINE RE:
DKT. NOS. 2209, 2210
William H. Orrick, United States District Judge.
Of the
eleven defendants indicted in this case, two remain. Barry
Gilton and Lupe Mercado are charged with murder in aid of
racketeering for the 2012 murder of Calvin Sneed, their
underage daughter's pimp, and related crimes. Gilton
alone is charged with count one, racketeering for his alleged
activities as part of a San Francisco gang known as the
Central Divisadero Playas (“CDP”). Before me are
the defendants' motions in limine; I resolve them as set
forth below.
I.
GILTON'S MOTIONS
I ruled
on several motions in limine filed by Gilton prior to the
second trial in this case, which was scheduled to begin on
May 6, 2019. See generally Group 2 Motions in Limine
[Dkt. No. 2081]. The parties do not raise any new arguments
on the matters discussed therein, and those rulings stand.
A.
MiL No. 1: Pleas and Convictions
Gilton
first moves to prevent the government from making references
to codefendants' guilty pleas and convictions as evidence
of his guilt. The government agrees while noting that such
evidence would be admissible for impeachment in the event
that the codefendants testify. The motion is GRANTED with
this caveat.
B.
MiL No. 2: Witness Safety
Next
Gilton moves for an order preventing the government from
alluding to concerns over witness safety because such
references could lead the jury to believe Gilton presents a
danger to witnesses. The government objects on the grounds
that the request is overbroad, especially given that one of
the overt acts attributed to CDP is witness intimidation. I
agree with Gilton's motion in principle; in the presence
of the jury, the government shall refrain from referring to
concerns about the safety of witnesses who are testifying
during this trial. This order does not exclude evidence
related to overt act j (witness intimidation) as introduced
in the first trial. To the extent the government believes
that this order would exclude other relevant evidence, it is
free to raise that concern outside the presence of the jury
during any 7:30 AM attorney conference. The motion is GRANTED
as set forth above.
II.
MERCADO'S MOTIONS
A.
MiL No. 1: Severance
Mercado
first renews her motion to sever her trial from Gilton's,
a request I denied on August 4, 2014. Dkt. No. 120. She
raises the same arguments in support of her motion, namely
that she is not charged in the RICO conspiracy but rather
only with counts related to the Sneed murder. Mercado asserts
that limiting instructions will be insufficient to cure the
prejudice she will suffer from evidence related to count one.
Not only will the frequency of such instructions dull their
impact, but the sheer volume of CDP-related evidence will
make it difficult for the jury to differentiate Mercado's
actions from her various codefendants' actions.
I deny
the motion for the same reasons articulated in my prior
Order.[1] With the aid of limiting instructions,
jurors will be able to understand that Mercado is not charged
with count one. In addition, given that Mercado is charged
with VICAR murder, the government would have to present
evidence of the existence of the RICO enterprise even if
Mercado was tried alone. The motion to sever is DENIED.
B.
MiL No. 2: Evidence Related to Count One
Mercado
next argues that no evidence related to count one-other than
the murder of Calvin Sneed-is admissible against her because
she is not charged with being a member of CDP. She asks that
I admonish the jury throughout the trial that the evidence
related “only” to count one should not be
considered against her. According to Mercado, there is the
following distinction between count one and count two: the
first requires the government to prove “a pattern of
racketeering” with “voluminous evidence, ”
whereas the second requires the government to prove only that
“an enterprise (CDP) affecting interstate commerce
existed and that one racketeering ...