JAMES O. BROWNING, District Judge.
The Court has previously explained the facts and circumstances surrounding the United States' arrest of Aranda-Diaz in this case. See United States v. Aranda-Diaz, No. CR 12-2686 JB, Memorandum Opinion and Order at 2-3, 2013 WL 4446793, filed July 11, 2013 (Doc. 56). The Court incorporates those facts here, but
After Aranda-Diaz' October 2, 2012, arrest, Albuquerque, New Mexico Police Department ("APD") officers transferred custody of him to the custody of the Homeland Security Investigations directorate of United States Immigrations and Customs Enforcement. While Aranda-Diaz was in HSI's custody, Aranda-Diaz allegedly made a series of statements to the HSI officers:
Motion in Limine at 2.
On October 23, 2012, a federal grand jury charged Aranda-Diaz with six federal crimes, including: (i) Count 1: a violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2), alien in possession of a firearm and ammunition; (ii) Count 2: a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), felon in possession of a firearm and ammunition; (iii) Count 3: a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), possession with intent to distribute heroin; (iv) Count 4: a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), distribution of heroin; (v) Count 5: a violation of 18 U.S.C. § 924(c), possession and carrying a firearm during and in relation to a drug trafficking crime; and (vi) Count 6: a violation of 8 U.S.C. §§ 1326(a) and (b), reentry of a removed alien. See Indictment, filed October 23, 2013 (Doc. 13).
On July 18, 2013, Aranda-Diaz filed his Motion in Limine, arguing that, "[i]f the HSI agents testify at Mr. Aranda-Diaz's trial, the Government should be precluded from introducing Mr. Aranda-Diaz's alleged statements ...." Motion in Limine at 2. Aranda-Diaz argues that the Court should exclude these statements for two reasons. First, Aranda-Diaz asserts that the Court should exclude the statements under rules 401 and 402, "[b]ecause the above statements make it no more or less probable that Mr. Aranda-Diaz committed the charged offense[s]." Motion in Limine at 3 (citing United States v. Waldrip, 981 F.2d 799, 806 (5th Cir.1993)). Second, he argues that the Court should exclude his statements under rule 403; in his view, admitting "the purported statements allegedly made by Mr. Aranda-Diaz would be unfairly prejudicial because it would `tend[] to affect adversely the jury's attitude toward [Mr. Aranda-Diaz] wholly apart from its judgment as to his guilt or innocence of the crime charged.'" Motion in Limine at 4 (alterations in Motion in Limine, but not in Tenth Circuit's opinion)(quoting United States v. Tan, 254 F.3d 1204, 1212 (10th Cir.2001)). Aranda-Diaz asserts: "For example, admitting statements about Mr. Aranda-Diaz's purported membership in a gang, or his purported intentions upon returning to the U.S. after deportation, would adversely affect the jury's attitude toward Mr. Aranda-Diaz, leading the jury to dislike Mr. Aranda-Diaz independent of the merits of the case against him." Motion in Limine at 4. He also asserts that "there is substantial likelihood that admission of these purported statements would confuse the issues, mislead the jury, and lead to undue delay." Motion in Limine at 4-5 (citing United States v. McVeigh, 153 F.3d 1166, 1191 (10th Cir.1998); United States v. James, 609 F.2d 36, 46 n. 11 (2d Cir.1979)).
MIL Response at 1.
On July 24, 2013, Aranda-Diaz pled guilty to charges 1, 2, and 6 of the Indictment. See Corrected Plea Minute Sheet, filed July 24, 2013 (Doc. 115). Specifically, he pled guilty to being an alien in possession of a firearm, felon in possession of a firearm, and illegal reentry of a removed alien. See Indictment at 1-4.
"The rules of evidence contemplate the admission of relevant evidence, and the exclusion of irrelevant and potentially prejudicial evidence." Train v. City of Albuquerque, 629 F.Supp.2d 1243, 1247 (D.N.M.2009) (Browning, J.)(citing Fed. R.Evid. 401, 402, 403). "Relevant evidence is evidence that has a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." United States v. Gutierrez-Castro, No. CR 10-2072 JB, 2011 WL 3503321, at *3 (D.N.M. Aug. 6, 2011) (Browning, J.) (citing Fed. R.Evid. 401 ("Evidence is relevant if:
Rule 403 provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. Under rule 403, the trial court must weigh the proffered evidence's probative value against its potential for unfair prejudice. See United States v. Record, 873 F.2d 1363, 1375 (10th Cir.1989). "[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403]." United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir.2006) (quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir.1991)) (internal quotation marks omitted). "In performing the 403 balancing, the court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1274 (10th Cir.2000). The "exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly." United States v. Smalls, 605 F.3d 765, 787 (10th Cir.2010).
The decision to admit or exclude evidence pursuant to rule 403 is within the
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008) (citation omitted).
Evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response from the jury, or if the evidence otherwise tends to adversely affect the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged. See United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir. 1999). "Evidence is not unfairly prejudicial simply because it is damaging to an opponent's case." United States v. Caraway, 534 F.3d 1290, 1301 (10th Cir.2008) (quoting United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir.2003)). Rather, "[t]o be unfairly prejudicial, the evidence must have `an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" United States v. Caraway, 534 F.3d at 1301 (quoting Fed.R.Evid. 403 advisory committee note)(emphasis in original).
The Court will exclude Aranda-Diaz' statements. His statements that make more probable his status as a felon or as a previously removed illegal alien are relevant, because they are probative whether he possessed a firearm in relation to a drug crime. His statements that implicate his membership in a gang are relevant as well, because a material issue in this case is whether Aranda-Diaz distributed, or intended to distribute, heroin, and that he is a gang member tends to make more probable that he distributed drugs. See Fed. R.Evid.401. The Court concludes, however, that, because the jury might use gang membership to conclude Aranda-Diaz intended to distribute drugs because of his gang association — rather than consider the United States' evidence against him — the danger of unfair prejudice that this evidence presents to him substantially outweighs its probative value. The Court will, therefore, exclude Aranda-Diaz' statements related to his gang membership. Finally, the Court will also exclude, under rules 401, 402, and 403, his statements to officers about his family's opinions and statements about him, and about his wife's income source, because the statements are irrelevant, and because the evidence's unfairly prejudicial effect substantially outweighs any probative value. The Court will, therefore, grant the Motion in Limine.
Aranda-Diaz argues that the first, second, and fifth statements that he made to
Rule 401 provides: "Evidence is relevant if:
These facts are not entirely irrelevant, however. In United States v. Basham, 268 F.3d 1199 (10th Cir.2001), the Tenth Circuit held that whether a drug trafficker possessed a gun "in furtherance of drug trafficking"
268 F.3d at 1208. Moreover, the Tenth Circuit's Pattern Jury Instructions incorporate substantially the same factors into the following nonexclusive list of eight factors that "may help in determining whether possession of a firearm furthers, advances, or helps advance a" drug trafficking crime:
Tenth Circuit Pattern Jury Instructions § 2.45.1, at 156 (2011).
Aranda-Diaz' status as a felon and as a previously removed alien illegally in the United States is thus relevant to Count 5 of the Indictment, because it makes his possession of the firearm illegal. See 18 U.S.C. §§ 922(g)(5)(A), 922(g)(1), and 924(a)(2). Both his status as a felon and his status as an alien unlawfully in the United States, because they affect the legal status of the possession of the firearm and the circumstances under which the firearm is found, are thus factors that the jury may consider in determining whether, as Count 5 of the Indictment charges, Aranda-Diaz possessed the firearm "during and in relation to, and possessed said firearm in furtherance of a drug trafficking crime." Indictment at 3. Because Aranda-Diaz' first two statements — "(1) Mr. Aranda-Diaz's knowledge of his prior convictions for illegally possessing a firearm; [and] (2) the length of imprisonment Mr. Aranda-Diaz believed he would be facing for the above-referenced charges,"
Aranda-Diaz argues that the danger of unfair prejudice that these statements present substantially outweighs any of these statements' probative value. He notes: "For example, admitting statements about ... his purported intentions upon returning to the U.S. after deportation[] would adversely affect the jury's attitude toward Mr. Aranda-Diaz, leading the jury to dislike Mr. Aranda-Diaz independent of the merits of the case against him." Motion in Limine at 4. The Court concludes that, even giving these statements their maximum reasonable probative value, which — given that Aranda-Diaz' statuses as a felon or as an alien illegally in the country are no longer essential elements in any of the three remaining counts at trial — is not great, the danger of unfair prejudice that these statements present to Aranda-Diaz substantially outweighs their probative value.
These three statements — "(1) Mr. Aranda-Diaz's knowledge of his prior convictions for illegally possessing a firearm; (2) the length of imprisonment Mr. Aranda-Diaz believed he would be facing for the above-referenced charges," and "(5) Mr. Aranda-Diaz's intentions to come back to the United States if deported," Motion in Limine at 2 — if admitted at trial, would indicate to the jury that Aranda-Diaz is a felon and that he is an alien illegally in the country. These statements relate to some of the factors that the Tenth Circuit Pattern Jury Instructions list: for example, his knowledge of his prior convictions for illegally possessing a firearm would be relevant
The danger of unfair prejudice to Aranda-Diaz, however, which inheres in letting the jury hear his statements that he is a convicted felon and an alien illegally in the country who intends to return to the country, even given their minimum reasonable prejudicial value, is substantial. The Supreme Court has held that, when evidence of a previous felony conviction is relevant solely on the basis of the defendant's status as a felon, the general rule is that rule 403 excludes evidence about the felony other than the fact of conviction:
Old Chief v. United States, 519 U.S. 172, 191-92, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Although the narrow rule of Old Chief v. United States does not squarely apply to this case, the policy reasoning that undergirds it applies to Aranda-Diaz' statuses as a convicted felon and as an alien illegally in the country: those facts could support conviction on an improper ground — for example, that, because Aranda-Diaz is a felon and an alien illegally in the country who intends to return if deported, he is a bad person, and the jury should punish him for being a bad person and not for conduct related to the drug trafficking charges against him. Balancing the probative value of these statements as to the remaining charges against him with the substantial danger of unfair prejudice that they present, the Court therefore concludes that rule 403 counsels that the Court exclude these statements.
The Court will also exclude Aranda-Diaz' statement about the length of imprisonment he would face if convicted of these charges. It is true, as the United States argues, that this statement is relevant, because it "shows a consciousness of guilt regarding all of the counts against him." Response at 1. The Court has recognized, however, that the Tenth Circuit's guidance to district courts has been clear that, "`when a jury has no sentencing function, it should be admonished to reach its verdict without regard to what sentence might be imposed.'" United States v. Courtney, 960 F.Supp.2d 1152, 1174 (D.N.M.2013) (Browning, J.)(quoting Shannon v. United States, 512 U.S. 573, 579, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994)). Indeed, the Tenth Circuit has warned that "`[t]he authorities are unequivocal in holding that presenting information to the jury about possible sentencing is prejudicial. Breach of this standard has often been grounds for reversal.'" United States v. Courtney, 2013 WL 2250713, at *27 (quoting United States v. Greer, 620 F.2d 1383, 1384 (10th Cir. 1980)). The animating concern behind this line of cases is that allowing references to sentencing during the guilt-innocence phase of the case will ring a bell that the Court cannot unring: once the jury knows about the length of a sentence that the Court might impose for a given offense, that information might alter the jury's determination
The Court has elsewhere expressed its conviction that "[t]o keep the jury ignorant of sentencing ramifications is not consistent with the concept of a jury trial at the Founders' time." United States v. Courtney, 960 F.Supp.2d at 1188. Thus, the Court, on a clean slate would let this information into the case, because it is probative of Aranda-Diaz' state of mind and not unduly prejudicial. Even still, the Court explained, "the district court is obligated to follow controlling Supreme Court and Tenth Circuit precedent," 960 F.Supp.2d at 1188, which is "very clear about what a trial court should do: the trial court is not to present any information about possible sentencing unless the jury's participation in sentencing is required," 960 F.Supp.2d at 1189. Hence, the Court's following discussion is the Court's attempt to be faithful to Tenth Circuit and Supreme Court precedent, and not what the Court believes is the right evidentiary ruling.
Applying the Tenth Circuit's cases, the Court concludes that, although the evidence is relevant, because it demonstrates consciousness of guilt, allowing the jury to hear about any sentence that Aranda-Diaz faces injects a substantial danger of unfair prejudice and confusion of the issues into the case. It is true that the jury could make this permissible inference:
That permissible inference is not, however, the only inference that it could draw. There is a substantial risk that the jury could use this evidence for a different, impermissible purpose: to influence its decision on Aranda-Diaz' guilt or innocence. For example, the jury could draw this inference, which would favor the United States:
The jury could also make a different inference, one favorable to Aranda-Diaz:
Neither of these last two inferences is permissible. As the Supreme Court has explained:
Shannon v. United States, 512 U.S. at 579, 114 S.Ct. 2419 (footnotes omitted).
In short, there is a substantial risk that the jury could use evidence about the sentence's length, not for the permissible consciousness-of-guilt inference, but for an impermissible inference related to the jury's guilt-innocence determination. Given the Tenth Circuit's strong guidance against allowing possible sentencing information to go to the jury to avoid that risk, the Court concludes that the high dangers of unfair prejudice and confusion of the issues that this statement presents substantially out-weigh
The Court has recognized that rule 401 provides a low hurdle for finding evidence relevant. See Coffey v. United States, 2012 WL 1698289, at *4 ("Rule 401 contains a low threshold for relevance, because `[a]ny more stringent requirement is unworkable and unrealistic.'") (quoting Fed.R.Evid. 401 advisory committee's note). Aranda-Diaz' statements that implicate his membership in a gang are relevant to whether he is a drug dealer or, as the Indictment charges, that he distributed drugs on October 2, 2012. Each of these statements, however, offers minimal probative value regarding whether he distributed drugs, and the danger of unfair prejudice that these statements present to Aranda-Diaz substantially outweighs their probative value in relation to the drug charges he faces. The Court will thus exclude these statements.
The connection between gangs and drug trafficking has been widely publicized. See, e.g., Mark Schmidt, U.S. Gang Alignment with Mexican Drug Trafficking Organizations, 5 CTC Sentinel 3, 18 (Mar. 2012) (discussing "how [Mexican drug trafficking organizations] leverage U.S. gangs for narcotics distribution and enforcement purposes");
National Gang Intelligence Center, 2011 National Gang Threat Assessment: Emerging Trends 9 (2011).
Aranda-Diaz asks the Court to exclude as irrelevant evidence of his statements about: "(3) Mr. Aranda-Diaz's membership in a gang; (4) Mr. Aranda-Diaz's desires to go to federal prison in order to be around other gang members...." Motion in Limine at 2. Because these statements evince his membership in a gang, they are relevant, because many gang members are involved in drug trafficking. Accordingly, the Court will not exclude them under rule 402.
Even still, the probative value of these statements in relation to whether Aranda-Diaz distributed drugs on October 2, 2012, is minimal. Although Aranda-Diaz' statements about his alleged gang membership tend to make more probable that he distributed drugs than it would be in the statements' absence — because of the organic connection between drugs and gangs — the probative value that this evidence has in relation to whether Aranda-Diaz distributed drugs is not substantial. This evidence is weak circumstantial evidence only. And there is no direct evidence linking his gang membership to his alleged drug trafficking activities. There is no evidence in the record indicating to which gang Aranda-Diaz admitted he belongs or indicating what his role in any gang may be. Thus, while admission of these statements as evidence of Aranda-Diaz' alleged gang membership tends to make more probable that he distributed drugs, even giving these statements their maximum reasonable probative force, they do not make it much more probable than if the Court excludes the statements.
The statements, even given their minimum reasonable prejudicial value, however, present a substantial danger of unfair prejudice to Aranda-Diaz. The Tenth Circuit has held that "[t]he admission of [the defendant]'s gang membership" in a non-conspiracy drug case to show intent to distribute "had the potential to elicit an unfavorable reaction from the jury increasing the danger of `guilt by association.'" United States v. Brown, 288 Fed.Appx. 518, 524 (10th Cir.2008) (unpublished)
Although rule 401 "contains a low threshold for relevance," Coffey v. United States, 2012 WL 1698289, at *4, rule 401 nevertheless contains a threshold across which the proponent must nudge the particular evidence for its admission. Based on the limited record before the Court, and the United States' Response to the Motion in Limine, it is difficult for the Court to soundly conclude that this evidence makes more or less probable any fact of consequence in this case. Nevertheless, because the Court can safely assume that, because Aranda-Diaz wants to keep the evidence out, the opinions and statements must be negative, the Court will exclude them pretrial; if the United States wants to present any of the statements at trial, it must approach the bench and explain why they are relevant, thereby providing the Court with sufficient information to determine whether their unfairly prejudicial effect substantially outweighs their probative value. The Court will therefore exclude these statements pre-trial
In its Response to the Motion in Limine, the United States does not reference or discuss any of the six categories of statements individually, but responds generally that these "statements show a consciousness of guilt regarding all of the counts against him and also serve to prove up an element that the Defendant has chosen not to stipulate to — his status as a previously convicted felon." Response at 1. As to the United States' second argument, because Aranda-Diaz pled guilty to the crimes in which his status as a felon is an essential element, that argument no longer has a sound basis in the facts. As to the first element, the Court fails to see how Aranda-Diaz' statement to the HSI officers that his family likes or dislikes him, or feels love or hostility towards him, "show[s] a consciousness of guilt regarding all the charges against him." Response at 1. If the family feelings are negative, which the Court assumes is the likely situation, there is no indication whether the feelings are because he is a felon, is an alien illegally in the country, is a drug trafficker, carries a gun, or does not support them financially. The feelings do not tell the Court or the jury whether Aranda-Diaz committed the crime at issue.
Perhaps if the HSI officers testify why Aranda-Diaz' family does not like him, the relevancy would be more obvious, but at the moment, the relevancy is obscure. The Court would keep this evidence out under rule 403 in any case, because it is minimally relevant and has high prejudicial effect; if the defendants' own family does not like him, the jury may think it should not like him, and convict on that basis instead of on the evidence of the crime charged.
The Court also fails to see how telling officers the source of his wife's income, whatever source that may be, shows consciousness of guilt. Again, the Court and the jury are left to speculate what the source is and its contents' relation to Aranda-Diaz allegedly committing the crimes with which he is charged. The United States has thus failed to show that this evidence makes more or less probable any fact of consequence in the case, and the Court, under rule 402, will accordingly exclude Aranda-Diaz' sixth statement to the HSI officers from the trial. See Fed. R.Evid. 401; Fed.R.Evid. 402. Even if the United States is able to show a relevant purpose — which, without more details, it has not done — the evidence's unfairly prejudicial effect substantially outweighs its probative value. If she is getting income from drug trafficking, that fact might suggest to the jury he too is involved in drugs; if she is getting money from her mother because he is an alien or in prison, and never working, the jury might surmise illegal activity or abandonment by Aranda-Diaz. In any case, without more details, it is difficult to make concrete rulings; the Court will keep the statements out pretrial, and if the United States intends to use these statements, it will need to provide more details of the statements and fully explain their relevance.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir.2005) (citations omitted). The Court finds that United States v. Brown has persuasive value with respect to material issues, and will assist the Court in its preparation of this Memorandum Opinion and Order.
