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United States v. Gilton

United States District Court, N.D. California

December 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BARRY GILTON AND LUPE MERCADO, Defendants.

          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 ...


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