EDWARD M. CHEN, District Judge.
Jury completion of questionnaire shall occur on
A. No later than the end of each trial day, counsel shall inform opposing counsel of which exhibits (including demonstrative evidence), if any, he or she intends to introduce during the next trial day and, if necessary, with respect to which sponsoring witness. If any such exhibits are objected to, both counsel shall notify the Court after the jury is excused for the day, and shall identify the exhibits at issue and the objections. The Court will then schedule a conference that afternoon or the following morning before trial to resolve the dispute.
B. At the end of each trial day, counsel shall also provide opposing counsel with a tentative preview of the exhibits he or she intends to introduce during the trial the day after next. Parties are directed to make a good faith effort to ensure such previews are as accurate as possible.
C. With respect to exhibits or demonstratives to be used on the first day of trial, counsel shall inform opposing counsel of which exhibits or demonstratives, if any, he or she intends to introduce by
D. If a party intends to use a projector or other equipment to show an exhibit (or demonstrative) to the jury, that equipment shall be set up and ready for use by 8:30 a.m. each day. The parties should immediately file with the Court, if necessary, administrative requests to bring projectors and/or other equipment to the courthouse for use at trial.
A. Each party shall be prepared, during its case in chief or any rebuttal, to present its next witness. At any time, if the party whose case is being presented is not prepared to present its next witness, that party shall be deemed to have rested that portion of its case. No further witnesses shall be permitted by the party who has so rested in that portion of the case (e.g., case in chief or rebuttal).
B. Counsel are expected to cooperate with each other in the scheduling and production of witnesses, including informing one another of witness order. At the end of each trial day, counsel shall give opposing counsel notice of which witnesses will be testifying on the following day. At that time, counsel shall also provide a tentative preview of witnesses who are expected to testify the day after next. Witnesses may be taken out of order if necessary. Every effort shall be made to avoid calling a witness twice (as an adverse witness and later as a party's witness).
C. Only one lawyer for each party may examine or cross-examine any single witness.
D. If a witness is testifying at the time of a recess or adjournment and has not been excused, the witness shall be seated back on the stand when the Court reconvenes. If a new witness is to be called immediately following recess or adjournment, the witness should be seated in the front row, ready to be sworn in.
E. Counsel shall refrain from eliciting testimony regarding any undisputed facts as set forth in any stipulation filed with the Court. The Court may read to the jury such undisputed facts at appropriate points in the trial.
F. Witnesses shall be excluded from the courtroom until the total completion of their testimony, including rebuttal testimony, if any.
A. To make an objection, counsel shall rise, say "objection," and briefly state the legal ground (e.g., hearsay or relevancy). There shall be no speaking objections or argument from either counsel unless requested by the Court.
B. Bench conferences, or the equivalent of sidebars, will not be permitted absent truly extenuating circumstances. Disputes regarding exhibits shall be resolved as set forth in Part II, supra. Any other disputes or problems should be addressed either before the trial day commences, at the end of the trial day, or during a recess, if necessary.
The Court is informed that the parties have yet to reach any stipulations of fact. The Government has further represented that defense counsel "has stated that they will not be stipulating to any facts for this trial." Government's Trial Brief at 6 (Docket No. 118); see also Defendant's Trial Brief at 1 (Docket No. 130). Defense counsel informed the Court at the hearing that it is not currently prepared to enter into any stipulations. However, Defense counsel agreed to further meet and confer with the Government regarding possible stipulations.
As stated at the pretrial conference, the Court expects the parties to stipulate to those matters (including authenticity and chain of custody) over which there is no reasonable basis for dispute. Accordingly, the parties are
In its first motion in limine, the Government seeks to prohibit Defendant Wilde from introducing into evidence his own out-of-court statements, which the Government contends are inadmissible hearsay. According to the Government, Defendant Wilde "may have made a number of statements setting forth his defense in this case," for instance during jail calls or in statements made to other witnesses. The Government contends that while the Government may permissibly offer such out-of-court statements into evidence pursuant to the Federal Rules of Evidence — namely, Rule 801(d)(2)(A), which provides that out-of-court statements offered against a party opponent are not hearsay — Defendant Wilde may not. Moreover, the Government argues that if it chooses to introduce just portions of certain of Defendant Wilde's out-of-court statements (presumably the inculpatory portions), Defendant Wilde may not introduce other portions of those same statements (presumably the exculpatory ones), even for completeness.
The Government correctly notes that the statements of an opposing party are typically admissible against that party pursuant to Federal Rule of Evidence 801(d)(2)(A). See Fed. R. Evid. 801(d)(2)(A). The Government is also correct that Defendant Wilde may not generally seek admission of his own hearsay statements, even if the Government chooses to admit just portions of those same statements. As the Ninth Circuit has explained, a criminal defendant's "non-self-inculpatory statements are inadmissible even if they were made contemporaneously with other self-inculpatory statements" admitted by the Government. United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (citing Williamson v. United States, 512 U.S. 594, 599 (1994)). "The self-inculpatory statements, when offered by the government, are admissions by a party-opponent and are therefore not hearsay . . . but the non-self-inculpatory statements are inadmissible hearsay." Id.; see also United States v. Nakai, 413 F.3d 1019, 1022 (9th Cir. 2005) (holding that defendant may not introduce by cross-examination of a government witness the defendant's own exculpatory out-of-court statement).
Defendant Wilde opposes the Government's motion in part. Defendant Wilde concedes that he may not introduce his own unrecorded out-of-court statements, but argues that Federal Rule of Evidence 106 — often referred to as the rule of completeness — would permit him to admit additional relevant portions of his recorded out-of-court statements to the extent those portions "in fairness ought to be considered at the same time" as the Government's evidence. Fed. R. Evid. 106; see also United States v. Collicott, 92 F.3d 973, 982-83 (9th Cir. 1996) (describing Rule 106 as the "rule of completeness" and explaining that the rule allows a party to introduce additional portions of a document or recording when her adversary admits only a portion of the document or recording). Defendant Wilde's position has some merit.
In general, the Ninth Circuit has expressed the view that even where the rule of completeness would apply, exclusion of a defendant's exculpatory statements is appropriate where those statements "would still have constituted inadmissible hearsay." Ortega, 203 F.3d at 682 (citation omitted). Or, put more directly, "Rule 106 does not compel admission of otherwise inadmissable hearsay evidence.'" Collicott, 92 F.3d at 983 (quoting Phoenix Associates III v. Stone, 60 F.3d 95, 103 (2d Cir. 1995); see also United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir. 1981) (holding that district court properly exercised its discretion to exclude inadmissible hearsay where defendant had requested that such hearsay be admitted pursuant to Rule 106).
However, at least one district court in this Circuit—citing Ortega and Collicott—has noted that while the "Rule of Completeness cannot serve as an end run around the prohibition on inadmissible hearsay, this principle does not allow the Government to offer abridged portions of statements that distort the meaning of a statement." United States v. Castro-Cabrera, 534 F.Supp.2d 1156, 1161 n. 6 (C.D. Cal. 2008). As the Castro-Cabrera court explained, "the Rule of Completeness was designed to prevent the Government from offering a `misleading-tailored snippet'" of testimony. Id. at 1160 (quoting Collicott, 92 F.3d at 983). Thus, as the court found, the "Rule of Completeness warrants admission of statements in their entirety when the Government introduces only a portion of inextricably intertwined statements." Id. (emphasis added).
Thus, while it is true that Rule 106 "cannot be used to trump the normal rules concerning the admissibility of evidence," id. at 1161, the Federal Rules of Evidence will not allow the Government to admit misleading snippets of Defendant Wilde's out-of-court statements as party admissions, while excluding other out-of-court statements that provide context to the Government's evidence. Accordingly, to the extent the Government seeks to admit a "misleadingly-tailored snippet" of Defendant Wilde's out-of-court statements, the Court will allow Defendant Wilde to present the statement in greater context "in order to avoid the injustice of having the meaning of [his] statement distorted by its lack of context." Castro-Cabrera, 534 F. Supp. 2d at 1161. Because such "analysis must be done on a case-by-case basis," id., the Court reserves ruling on the Government's motion in limine at this time.
As the Court stated at the pre-trial hearing, the Government must inform the defense at least one day in advance if it intends to introduce Defendant Wilde's out-of-court statements. See Part II.A, supra. If there is a dispute regarding whether the Government's proposed statement(s) requires further context in order to be properly introduced, such a dispute will be raised with the Court at 8:00 a.m. before the start of the relevant trial day, as required by the general trial procedures set out in this Order.
The Government's second motion in limine seeks to preclude Defendant from making any reference to the potential sentence Defendant Wilde might face if convicted. The Government correctly notes the general rule that "it is inappropriate for a jury to consider or be informed of the consequences of their verdict." United States v. Frank, 956 F.2d 872, 879 (9th Cir. 1992).
Defendant Wilde does not oppose the Government's motion. Accordingly, the Court
In its third motion in limine, the Government argues that Defendant Wilde should be prohibited from questioning any law enforcement officer about matters contained in his or her personnel file and/or relating to officer disciplinary matters unless Defendant Wilde first files an appropriate motion in limine seeking admission of such information. The Government cites this Court's General Orders, and specifically General Order 69, in support of its motion. See N.D. Cal. General Order No. 69 (Process for Subpoenaing & Using Personnel or Complaint Records of State Law Enforcement Officers Testifying in Federal Court).
General Order 69 provides that if a criminal defendant wishes to admit information from a state law enforcement officer's personnel or disciplinary file, "the defendant shall make an appropriate in limine motion seeking admission of the records at issue." See id. General Order 69 further requires that any such motion in limine be filed "no fewer that 14 days before the pretrial conference." Id. Because Defendant Wilde did not file any such motion in limine, and because he does not oppose the Government's motion, the Court
In its fourth motion in limine, the Government seeks to preclude the Defendants from admitting extrinsic evidence for the purpose of impeaching Government witnesses' character for truthfulness or untruthfulness. The Government correctly notes that extrinsic act evidence is typically inadmissible to prove a witness's character for truthfulness under Federal Rule of Evidence 608(b), subject to certain exceptions.
Defendant responds that the Government has not "defined what it means by `extrinsic evidence' or noted any specific instances in this case in which it anticipates" Defendant Wilde will attempt to admit such evidence. Docket No. 129 at 2. Given that a number of context-specific exceptions apply to Rule 608(b), and given that the Government has not provided the Court with any concrete examples where Defendant Wilde may attempt to admit extrinsic evidence for impeachment of a witnesses' character for truthfulness, the Court declines to rule on the Government's motion at this time. To the extent the Government believes Defendant Wilde is attempting to introduce extrinsic acts evidence in violation of Rule 608, the Government should object contemporaneously.
In its final motion in limine, the Government seeks to prevent Defendant Wilde from introducing evidence of specific violent acts taken by any victim, where that evidence is being used to show that the victim has (or had) a violent character. The Government is concerned that Defendant Wilde may argue self-defense, and then attempt to prove by way of specific acts of violence that one or more of his alleged victims has/had a propensity towards violence.
The Government is correct that the Ninth Circuit does not typically permit "a defendant claiming self-defense to introduce specific acts demonstrating his victim's propensity for violence."
In his response to the Government's motion, Defendant Wilde states that "[a]t this juncture, the defense does not anticipate, under the prosecution's theory of the case, this issue [of specific violent acts of victim] being raised." Docket No. 129 at 2. Defendant Wilde further notes that "should acts of violence by a victim become relevant from the perspective of the defense, the defense will request a hearing on such an issue." Id. The Court will defer ruling on this issue at this time. Defendant is reminded that he must disclose any intention to seek admission of evidence of specific acts of violence by a victim at least one trial day before he attempts to introduce such evidence. If the Government objects to such evidence, the parties will raise their objections to the Court at 8:00 a.m. on the relevant day outside the presence of the jury pursuant to this Court's trial procedures. See Part II.A, supra.
In his first motion in limine, Defendant Wilde asks this Court permit him to introduce records showing that one of his alleged victims, Mr. Lopez-Paz, was previously convicted of bribery in his home country of Guatemala. Mr. Lopez-Paz is expected to testify as a witness at trial.
Defendant Wilde spends a great deal of effort arguing in his motion why Mr. Lopez-Paz's foreign conviction records are admissible and not hearsay. The Government candidly agrees that foreign conviction records are admissible, and that "in the event that defendant can produce a legitimate copy of a conviction document, then the government would not contest its admissibility, so long as defendant can show a legitimate purpose for its admission." Docket No. 123 at 3. As the Government concedes, such an admissible purpose would be to undermine Mr. Lopez-Paz's credibility as a witness. See Fed. R. Evid. 609(a) (allowing impeachment by evidence of a criminal conviction in order to "attack[] a witness's character for truthfulness"). The Government does not dispute that Rule 609(a) applies to foreign convictions.
Where the Government and Defendant Wilde part ways is whether Defendant Wilde has presented sufficient evidence that Mr. Lopez-Paz was actually convicted of a crime in Guatemala. Having reviewed Defendant Wilde's evidentiary submissions made in connection with his motion in limine, the Court recognized the Government's concerns. Defendant Wilde submitted no authenticating declaration or affidavit with his materials, submitted copious translations (of non-authenticated documents) without including the originals, and did not make clear to the Court precisely where in his submissions he contends that the fact of Mr. Lopez-Paz's conviction is proved. Consequently, the Court ordered Defendant Wilde to submit a more fulsome evidentiary proffer aimed at curing these defects. See Docket No. 128.
The Court has now throughly reviewed Defendant's evidentiary proffer. See Docket Nos. 132-33. As stated on the record at the pre-trial conference, the Court is of the initial view that Defendant Wilde has sufficiently established that Mr. Lopez-Paz was convicted in Guatemala of the offense of "passive bribery."
In his second and final motion in limine, Defendant Wilde argues that the Government should be prohibited from informing the jury of his prior arrest and conviction for illegally possessing and transporting marijuana. Defendant Wilde argues that such prior "bad acts" evidence is inadmissible under Federal Rule of Evidence 404(b), which provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed. R. Evid. 404(b)(1).
While Rule 404(b)(1) prohibits the use of "bad acts" evidence to prove action in conformance with character, Rule 404(b)(2) provides, in relevant part, that such evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2). Thus, for example, should Defendant Wilde argue that he did not know that the marijuana allegedly grown on his property was, in fact, marijuana, the Government might seek admission of Defendant Wilde's prior conviction to prove Defendant Wilde's knowledge of what marijuana looks or smells like. See id. Of course, as Defendant Wilde correctly points out in his motion in limine, even if evidence of prior bad acts is admissible under Rule 404(b)(2), the Court may nevertheless exclude it under Federal Rule of Evidence 403, which gives the Court discretion to "exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403.
At this juncture, the Court cannot rule on Defendant Wilde's motion because neither the Defendant nor Government know whether (or for what purpose) Defendant Wilde's past conviction might be used during his upcoming trial. Consequently, the Court defers ruling on the motion at this time. Again, counsel for the Government is reminded that should it seek to obtain admission of Defendant Wilde's prior conviction, such intent shall be disclosed to Defendant Wilde at least one trial day in advance, and any objections properly raised with the Court before the start of the trial day.
Below is a list of the witnesses the Government and Defendant currently intend to call or may call as the need arises. The parties shall not offer any witness other than those identified on the below final witness lists absent good cause and express leave of the Court. The parties are further
The parties shall meet and confer in advance (prior to the date of demonstration) and exchange demonstratives to avoid objections. Any objections shall be brought to the Court's attention before 4:00 p.m. the day prior to being exhibited.
The Court has reviewed the parties' jointly proposed jury questionnaire and has approved it, subject to the Court's modifications to be provided to the parties. The parties may wish to work towards further shortening the questionnaire. Any suggested changes to the questionnaire shall be submitted to the Court by January 22, 2015. The Court will issue the final form prior to January 29, 2015. The Government will be responsible for making 100 copies and delivering them to the Jury Administrator by 4:00 p.m., January 29, 2015. The Government shall retrieve the completed questionnaires on Monday, February 2, and promptly deliver one (1) copy set to Defendant's counsel and two (2) sets to the Court. The Court shall give each party a brief opportunity (e.g., 30 minutes each) to voir dire orally the potential jurors after questioning by the Court.
The Government filed proposed jury instructions on December 30, 2014. Docket No. 119. Defendant Wilde "adopts the government's proposed jury instructions," but seeks to reserve the right to "request changes as the circumstances of the trial may dictate." Docket No. 125 at 2. Given Defendant Wilde's concession that he has adopted the government's instructions, the Court will not permit Defendant Wilde to later argue against any of the Government's proposed instructions. To the extent Defendant Wilde wishes to request that additional or different instructions be given, any such request must be made to the Court by formal motion filed no later than the close of Defendant's case.
The Court will issue a proposed set of final instructions to the parties and give the parties sufficient time to comment on, or object to (subject to the limitation discussed above), the Court's proposed final instructions before the instructions are read to the jury.
The Court will review the proposed verdict forms and provide a final verdict form before the close of evidence.
IT IS SO ORDERED.
