WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Defendant Blas Aleman's ("Defendant") motions in limine [230], [307] - [311], [342] ("Defendant's Motions") and the Government's motions in limine [317] - [319] ("Government's Motions").
On March 8, 2017, Defendant filed his Motions. Defendant seeks to exclude the following categories of evidence: (1) testimony or evidence concerning alleged drug activity by Defendant in 2005 or at any other time; (2) deposition testimony of Filiberto Alanis-Soto; (3) testimony by others concerning Alanis-Soto's identification of Defendant by photograph or at deposition; and (4) testimony concerning the circumstances under which Defendant was in Mexican custody and extradited to the United States. Defendant also seeks to admit documents corroborating his alibi defense, including (a) medical prescriptions [253.7] and (b) utility bills that were the subject of Sara Cruz Garcia's ("Ms. Cruz") January 10, 2017, deposition testimony.
On March 9, 2017, the Government filed its Motions. The Government seeks to exclude the following categories of evidence: (1) exhibits and testimony from Ms. Cruz's deposition; and (2) evidence regarding Alanis-Soto's sentence reduction. The Government also seeks to allow evidence of Defendant's alleged 2005 drug activity under Federal Rule of Evidence 404(b) or as intrinsic evidence.
On March 21, 2017, the Government filed its reply brief regarding its Rule 404(b) motion, indicating that it no longer intends to introduce evidence of Defendant's prior drug trafficking activity. Instead, the Government intends to present evidence that Defendant took precautions to conceal his presence in the Atlanta area, and seeks to introduce the outstanding warrant from his 2005 arrest to explain that conduct. In response to this change in position, on March 22, 2017, Defendant filed his supplemental reply [342], arguing that the 2005 warrant is improper 404(b) evidence and is irrelevant and prejudicial character evidence.
The Court first considers the parties' motions that relate to the testimony of Alanis-Soto. Defendant seeks to exclude (1) the deposition testimony of Filiberto Alanis-Soto; and (2) testimony by others concerning Alanis-Soto's identification of Aleman. The Government seeks to preclude evidence of Alanis-Soto's sentence reduction. On March 27, 2017, the Court issued an order requiring Alanis-Soto's release from detention, by releasing him to the custody of immigration officials for further immigration processing, including removal if appropriate. ([347]). It is unclear, at this time, whether Alanis-Soto will be available and called at trial.
In 2010, Alanis-Soto was sentenced to a term of 117 months. In March 2015, the Court reduced his sentence by nine (9) months, after the United States Sentencing Commission issued an amendment that lowered the offense levels ascribed to drug quantities in the Sentencing Guidelines Manual. The Government seeks to preclude Defendant from introducing evidence of the sentence reduction, arguing it is irrelevant and prejudicial. The Court agrees. Alanis-Soto's sentence reduction based on the 2014 amendment to the Sentencing Guidelines is not relevant to any issue, including Alanis-Soto's credibility, because the sentence reduction was not connected to Alanis-Soto's cooperation or any other conduct in which he engaged in this action after he was convicted. Evidence of the sentence reduction is not admissible and the Government's motion is granted.
In June 2009, Alanis-Soto pleaded guilty to conspiracy to possess with intent to distribute cocaine and methamphetamine. ([95]). In 2010, the Court sentenced him to a term of 117 months, which was later reduced, pursuant to 18 U.S.C. § 2582(c)(2), to 108 months. ([138], [139], [199]). On August 26, 2013, the Government showed Alanis-Soto a six-photograph lineup, and Alanis-Soto identified Defendant's photograph. On August 13, 2014, the Government showed Alanis-Soto a separate six-photograph lineup, and Alanis-Soto again identified Defendant's photograph. Alanis-Soto signed and dated each lineup.
After Alanis-Soto served his term, the Government arrested him on a material witness warrant in connection with the trial of his alleged co-conspirator, Defendant Blas Aleman. On June 23, 2016, the Government deposed Alanis-Soto. Defendant and his counsel were present at the deposition, and Defendant's counsel cross-examined Alanis-Soto during the deposition.
Defendant first argues that admitting the deposition at trial requires that the Government show exceptional circumstances to do so. Defendant's argument misconstrues the applicable standard. Rule 15 of the Federal Rules of Criminal Procedure provides that a court may grant a motion for a pretrial deposition because of "exceptional circumstances and in the interest of justice." Fed. R. Crim. P. 15(a)(1). The question here is not whether a deposition should be taken. Rather, the question is whether the deposition may be used at trial. In
The question remains whether Alanis-Soto will be unavailable to testify at trial. The burden of proof rests with the Government.
In the event the Government meets its burden to show unavailability, the Government will be entitled to use Alanis-Soto's deposition at trial. If the deposition is introduced at trial, Defendant seeks to exclude the following testimony by Alanis-Soto: (a) the identification of Defendant, because Defendant was wearing prison clothes; (b) testimony regarding statements Defendant made to Alanis-Soto related to Defendant's prior drug trafficking in Florida; (c) testimony regarding a recorded conversation between him and alleged co-conspirator "El Gordo" discussing an overt act by Defendant in furtherance of the conspiracy; (d) Alanis-Soto's testimony that Defendant is the person in the photographs he identified at the 2013 and 2014 lineups; and (e) several exhibits which are discussed below. Defendant also seeks to preclude the Government agents who showed Alanis-Soto the lineups in 2013 and 2014 from testifying about Alanis-Soto's identification of Defendant, in the event that (1) Alanis-Soto does not testify at the trial and (2) the Court does not permit the Government to play Alanis-Soto's deposition at the trial.
During the deposition, Alanis-Soto identified Defendant by pointing at him. The Government then instructed the videographer to record Defendant seated at the defense table. Defendant's counsel objected because Defendant was wearing prison clothes. Defendant now seeks to exclude the identification testimony because the video shows Defendant in prison clothes. A defendant's wearing jail clothes serves as a "constant reminder of the accused's condition" that may skew a juror's view.
Defendant seeks to exclude Alanis-Soto's testimony regarding statements Defendant made to him related to Defendant's prior drug-trafficking activity in Florida. The Government indicates that it no longer intends to introduce evidence of Defendant's prior drug trafficking activity. Accordingly, the Government may not introduce Alanis-Soto's testimony regarding this drug trafficking activity, and Defendant's motion to exclude this evidence is granted.
After Alanis-Soto was arrested in 2008, he participated in recorded telephone calls between him and an alleged co-conspirator nicknamed "El Gordo." The Government played one of the recorded calls at Alanis-Soto's deposition, and he testified that (1) he was asking El Gordo where to deliver drugs, (2) the two discussed "Blas," meaning Defendant, having only given Alanis-Soto $100, which Alanis-Soto explained was money he received from Defendant to purchase gasoline during his drive from Mexico to Atlanta with the drugs. Defendant seeks to exclude this testimony, stating that the recording of the call "speaks for itself." Defendant argues that Alanis-Soto cannot testify about what El Gordo was thinking, and that such testimony would be speculative and lacking in foundation.
The Court, having reviewed the deposition, denies Defendant's motion in limine to exclude testimony regarding the El Gordo call. Contrary to Defendant's characterization, Alanis-Soto testified regarding what he discussed with El Gordo, not what El Gordo was thinking. (
During his deposition, Alanis-Soto stated the individual in the photographs he identified in the 2013 and 2014 six-photograph lineups is Defendant, and he verified he signed and dated the lineups. (Tr. 84-86). Defendant argues this deposition testimony is hearsay. He also argues that Alanis-Soto's testimony shows only that he identified Aleman from the picture, not that Alanis-Soto identified Aleman in 2013 and 2014. The Court finds the testimony is not hearsay, because the statements were made while Alanis-Soto was testifying.
Defendant next moves to exclude the Government's Exhibits 1-6, 6A, 10, 10A, 13, 14A-14E. These exhibits were shown to Alanis-Soto at his deposition. The Government argues these exhibits are admissible at trial if properly authenticated under the Federal Rules of Evidence, and that the Court should reserve its ruling on the admissibility question until the Government has an opportunity to authenticate them. Defendant, in reply, states that the "parties apparently do not disagree that the various photos shown to Alanis-Soto must be properly authenticated to be admitted." ([336] at 2). Accordingly, Defendant's motion in limine is denied as moot but without prejudice to the Government seeking to establish admissibility at trial.
Finally, in the event that (1) Alanis-Soto does not testify at the trial and (2) the Court does not permit the Government to play Alanis-Soto's deposition at the trial, Defendant seeks to preclude the Government agents who showed Alanis-Soto the lineups in 2013 and 2014 from testifying about Alanis-Soto's identification of Defendant. The Court denies the motion as moot, but without prejudice to objection at trial if Alanis-Soto does not testify at trial and the Court excludes his deposition at trial.
Defendant seeks to exclude the following categories of evidence: (1) testimony or evidence concerning alleged drug activity by Defendant in 2005 or at any other time; and (2) testimony concerning the circumstances under which Defendant was in Mexican custody and extradited to the United States. Defendant also seeks to allow admission of documents corroborating his alibi defense, including (a) medical prescriptions [253.7] and (b) utility bills that were the subject of Sara Cruz Garcia's ("Ms. Cruz") January 10, 2017, deposition testimony.
The Government seeks to admit evidence of Defendant's 2005 arrest and flight from Florida. The Government also seeks to exclude exhibits and testimony from Ms. Cruz's deposition.
The evidence at issue here stems from a 2004 investigation by local police in Wauchula, Florida, into Defendant's alleged methamphetamine distribution activities. On May 25, 2005, Detective Nicholson arrested Defendant for methamphetamine trafficking. Defendant's ex-wife, Victoria Aviles, bailed Defendant out of jail, after which Defendant left Wauchula and did not return. After Defendant failed to appear at his June 7, 2005, arraignment, a warrant was issued on June 8, 2005, for Defendant's arrest for failure to appear. In 2008, a confidential source informed Detective Nicholson that Defendant was in the Atlanta area and was involved in drug trafficking. On May 12, 2008, a vehicle driven by co-defendant Alanis-Soto was stopped and police found approximately 10 kilograms of cocaine and 1 kilogram of methamphetamine.
The Government indicates that it no longer intends to introduce evidence of Defendant's 2005 drug trafficking activity. The Government, however, intends to present evidence that Defendant took precautions to conceal his presence in the Atlanta area, and seeks to introduce evidence of Defendant's 2005 arrest, bond, and failure to appear to explain, in part, Defendant's motivation to avoid detection. The Government states that it will redact any reference to the drug charges from the bond and the failure to appear warrant. It argues that, by avoiding any reference to the underlying drug charge, the evidence avoids any implication that Defendant had a propensity to commit a drug crime, thus Rule 404 is not implicated. Defendant argues that the 2005 arrest evidence is improper 404(b) evidence and is irrelevant and prejudicial character evidence.
Rule 404(b) of the Federal Rules of Evidence provides:
Fed. R. Evid. 404(b).
The Court finds that the 2005 arrest evidence is intrinsic, rather than extrinsic, evidence, and thus is not subject to Rule 404(b). Evidence is intrinsic when it is "(1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense."
The Court finds that the 2005 arrest evidence is not character evidence, particularly because the Government states it will redact any reference to the charged crime. Rather, the evidence is offered to explain Defendant's secretive conduct in Atlanta during the time period of the charged offense. The fact that Defendant was arrested and fled is intrinsic evidence because it explains, in part, why Defendant was careful to avoid identification in Atlanta during the alleged conspiracy. The Court finds the probative value of this evidence is not substantially outweighed by unfair prejudice. For these reasons, the Government may introduce the redacted 2005 arrest and flight evidence. The Court also determines that the jury should be instructed on the limited reason for which the arrest and flight are allowed to be introduced.
Defendant seeks to admit documents corroborating his alibi defense, including (a) medical prescriptions [253.7] purportedly written by Dr. Carbajal and (b) utility bills [317.1] that were the subject of Ms. Cruz's January 10, 2017, deposition testimony.
Regarding the medical prescriptions purportedly written by Dr. Carbajal, because Dr. Carbajal did not appear to be deposed regarding the prescriptions, there currently is no foundation for the prescriptions to be entered into evidence. Defendant makes a passing argument that the prescriptions can be authenticated because "[t]here is no genuine dispute that the prescriptions . . . are what they appear to be, so the foundation should be considered sufficiently laid." ([335] at 2). To be admitted, documents must be properly authenticated "by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). A document may be authenticated by appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances."
With respect to the utility bills, Ms. Cruz, whom Defendant married in 2012, testified that, before her deposition, she looked for papers from Defendant's house that related to the period around 2008, that is the subject of this case. She brought a number of such papers to the deposition, including utility bills purportedly paid in 2006-2008. She testified that, based on her experience, paying these bills required the customer to appear at the utility company in person and to receive proof of payment in the form of a stamp placed on the invoice.
The Government argues that the bills are hearsay and do not fall within any exception. Defendant argues the receipts are "probative just because they exist, not because their content is in dispute" and that they are not hearsay. The Court finds the bills are hearsay for which there is no admissibility exception. The matter asserted in the bills is that a payment for utilities was made on certain dates. This is the assertion for which the bills are offered—to show that Defendant personally paid the bills on certain dates to show he was in Mexico on those dates.
Defendant argues that, if they are hearsay, the bills fall under the business records exception. The Court disagrees. The business records exception to hearsay provides:
Fed. R. Evid. 803(6). Here, there is no evidence to meet the requirements of the business records exception. As the Government points out, Ms. Cruz is not qualified to authenticate the bills, including because there is nothing to support that she ever worked at any of the utility companies that purportedly generated the bill, did not live with Defendant from 2006-2008 when the bills purportedly were generated, and did not testify that a person during the relvant time period had to pay a bill personally for payment to be accepted. There does not appear to be any evidence to establish the record-keeping procedures of any of the companies or people that purportedly generated the bills. That Ms. Cruz testified that Defendant regularly maintained the bills and documents similar to them is insufficient under subsection (B), because Ms. Cruz failed to show that the bills were kept "in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit." Fed. R. Civ. P. 803(6)(B) (emphasis added). The Court finds that the bills do not fall under the business records exception.
Defendant next argues the bills should be admitted under the residual hearsay exception because the bills have circumstantial guarantees of trustworthiness. The residual hearsay exception under Rule 807 provides an exception where:
Fed. R. Civ. P. 807. The Court finds the bills do not have circumstantial guarantees of trustworthiness. The water bill receipts ([317.1] at 1-2) are handwritten and the electricity bills ([317.1] at 4-7) contain stamps indicating they were paid in person, but there is nothing to support when the bills were paid, who paid them, or that the stamps are authentic. The Court also finds that the bills are not more probative on the point for which they are offered than any other evidence Defendant can obtain through reasonable efforts. Defendant has obtained deposition testimony from five witnesses who testified that Defendant was in Mexico in 2008. This evidence is more probative of Defendant's argument that he was in Mexico than these few unauthenticated bills. The regularity of the bills or that they were issued is not the question here, it is whether Defendant paid them or they were paid because he was living in this particular building. Because the bills are hearsay and do not fall under any exception, Defendant's motion to exclude them is granted.
Finally, the Government seeks to exclude Ms. Cruz's testimony regarding the bills, including because (1) her testimony that she found the bills in a closet in Defendant's house is irrelevant and (2) her testimony regarding the process for paying bills is irrelevant, because she lacks knowledge to testify as to how or whether Defendant paid bills in the 2006-2008 period, or who, if anyone, lived in the house during the period for which the bills were issued. Defendant does not appear to contest these points, and Ms. Cruz's testimony regarding the bills is excluded.
Defendant seeks to exclude testimony and evidence regarding his arrest in Mexico on charges of cocaine trafficking, and his subsequent extradition to the United States. The Government agrees not to introduce evidence of Defendant's prior cocaine trafficking arrest in Mexico, but it argues that the fact of extradition is relevant and admissible, because (1) it makes it more likely than not that Defendant, having been arrested and conscious of his guilt, fled Florida and remained a fugitive from 2005 onward to avoid prosecution in the United States, and (2) the Government may, depending on its strategy, also seek to introduce extradition evidence to explain the investigation and processing of Defendant's prosecution. To this, Defendant "replies only to object to any attempt to tie the circumstances of extradition to anything involving allegations of prior bad acts in Florida in 2004."
The Court understands that the Government does not intend to use the fact of extradition to show consciousness of guilt regarding the charges brought against Defendant in Florida and intends to use it only to show the processing of the charges against Defendant.
Accordingly, and the foregoing reasons,
