Free Response to Motion - District Court of California - California

Case 3:08-cr-00085-L

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Filed 03/06/2008

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LYNN H. BALL, ESQ. Bar No. 056497 1560 Scott Street San Diego, CA 92106-2333 (619) 225-1914 (619) 225-1720 - Fax Attorney for Defendant Jose Gallegos-Lopez

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOW COMES defendant José Gallegos-Lopez and responds to the government's Motions in Limine: RESPONSE TO MOTION IN LIMINE NO. 3(A) The government asks that it be allowed to argue that defendant did not need to act for personal gain. This motion is premature. The Court should wait until all the evidence is in before the government is allowed to argue that defendant personally acted for purposes of commercial advantage. It is requested that the Court not allow the prosecution to argue in opening statement evidence indicating that Gallegos personally acted for purpose of commercial advantage and that the government be required to wait until all evidence comes in until such argument is made. The IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) vs. ) ) JOSÉ GALLEGOS-LOPEZ, ) ) Defendant. ) ) ) ____________________________________) UNITED STATES OF AMERICA, Crim. Case No. 08-CR-0085-L DEFENDANT GALLEGOS-LOPEZ'S RESPONSE TO GOVERNMENT'S MOTION IN LIMINE Date: March 17, 2008 Time: 10:00 a.m. Department: Judge Lorenz Trial date: March 18, 2008 Time: 9:00 a.m. Department: Judge Lorenz

Case 3:08-cr-00085-L

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reason for this is that the only evidence of this will be coming in from material witnesses and material witnesses are often extremely reticent when testifying and there is no way of knowing whether or not the material witnesses will testify in Court as the government represents. RESPONSE TO PROSECUTOR'S REQUEST TO ADMIT CO-CONSPIRATORS' STATEMENTS CONCERNING SMUGGLING ARRANGEMENTS. The defense requests that no statement be made concerning so-called "co-conspirator statements" in the opening statement or in its case-in-chief until such time as the government has proven the existence of the conspiracy in which the declarant and defendant were members and has shown that the statement was made in the course of that conspiracy and that statement was made in furtherance of that conspiracy. See Federal Rule of Evidence §801(d)(2)(E) and Bourjaily v. United States, 483 U.S. 171, 175 -176 ,107 S. Ct. 2775 (1987). The existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered are preliminary questions of fact that under Rule §104(a), must be resolved by the judge alone. See Bourjaily v. United States, supra .

15 It is requested that the Court in this instance, will require the prosecution to make its case 16 for the conspiracy of declarant and defendant outside the jury's hearing pursuant to United States 17 18 19 20 21 22 23 24 25 26 27 28 v. James, 590 F. 2d 575, 581 (5th Cir. 1979). If the conspiracy between the declarant and defendant cannot be shown without the statements, then they should not be allowed in. In the instant case, it does appear from the discovery that there is no possible way for the prosecution to show the existence of a conspiracy without the admission of the so-called "coconspirator statements" and even with the admission of these statements, there is no evidence whatsoever to show that the defendant was a member of the conspiracy, as defendant did not reside at the house, but was merely at the house visiting his parents. DEFENDANT OBJECTS TO THE ADMISSION OF ALL §404(b) EVIDENCE FOR THE REASONS SET FORTH IN MOTIONS IN LIMINE FILED BY DEFENDANT EARLIER. -2Case No. 08-CR-0085-L

Case 3:08-cr-00085-L

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Defendant objects to the admission of Rule §609 evidence, that being the conviction for importation of marijuana. This conviction has little or no impeachment value for credibility and should be not allowed pursuant to Rule §403. Regarding the expert testimony from government agents, the defense has already filed a Motion in Limine and requests that that witness not be allowed to testify for the reasons set forth in defendant's Motion in Limine. Respectfully submitted, Date: March 6, 2008 s/Lynn H. Ball __________________________________ Lynn H. Ball Attorney for José Gallegos-Lopez E-mail: [email protected]