Free Response in Opposition - District Court of California - California

Case 3:07-cr-03281-H

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1 ROBERT H. REXRODE, III California State Bar No. 230024 2 427 C Street, Suite 300 San Diego, California 92101 3 Telephone: (619) 233-3169, Ext. 13 Facsimile: (619) 684-3553 4 [email protected] 5 Attorneys for Mr. Javier Soto-Castro 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 (HONORABLE MARILYN L. HUFF) 10 ) ) Plaintiff, ) 12 v. ) ) 13 JAVIER SOTO-CASTRO, ) ) 14 Defendant. ) _________________________________ ) 15 11 16 17 18 I. PROCEDURAL HISTORY On April 28, 2008, this Court ordered the parties to file their motions in limine on UNITED STATES OF AMERICA, CASE NO. 07cr3281-H STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S RESPONSE TO THE GOVERNMENT'S MOTIONS IN LIMINE

19 June 30, 2008, with any response to be filed on July 14, 2008. Mr. Soto-Castro chose to file 20 no motions in limine. The government chose to file their substantive motions in limine on 21 Sunday, July 13, 2008. Mr. Soto-Castro received these motions on Monday July 13, 2008. 22 Although Mr. Soto-Castro objects to the government's motions because they are so untimely, 23 he responds as best he can. 24 25 26 II. REPLY TO THE GOVERNMENT'S MOTIONS IN LIMINE The government has filed ten substantive motions in limine, one of which is broken

27 into sub-parts. for ease of reference, Mr. Soto-Castro will list his responses under the 28 headings used by the government.

Case 3:07-cr-03281-H

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Expert Testimony 1. Expert Testimony Regarding Substance Seized

Mr. Soto-Castro objects to this testimony. The government has provided zero

4 information regarding its proposed expert, or any information regarding the tests it says have 5 been conducted. See Fed.R.Cr.P. 16 (a)(1)(F)-(G); Fed. R. Evid. 702-703; United States v. 6 Fort, 472 F.3d 1106, 1121-22 (9th Cir. 2007). 7 8 2. Expert Testimony Regarding Value of Methamphetamine

Mr. Soto-Castro objects to this testimony. The government has provided zero

9 information regarding its proposed expert, or any information regarding the bases for it 10 proposed expert's opinion. See Fed.R.Cr.P. 16 (a)(1)(F)-(G); Fed. R. Evid. 702-703; United 11 States v. Fort, 472 F.3d 1106, 1121-22 (9th Cir. 2007). 12 The government also seeks to have this same expert opine that 11.96 kilograms of

13 methamphetamine is not for personal use. Given the manner in which the government's 14 motion is written, Mr. Soto-Castro fears this "opinion" will be the vehicle through which the 15 government seeks to introduce testimony regarding other drug cases. In an effort to stave off 16 such irrelevant and prejudicial testimony, Mr. Soto-Castro agrees to stipulate that: "11.96 17 kilograms of methamphetamine is not a personal use amount." 1 18 19 3. Expert Testimony Regarding Structure Evidence

Mr. Soto-Castro has no intention of asking about the lack of "fingerprints" in this

20 case. The government's advisory motion is therefore moot. 21 // 22 // 23 // 24 25 Additionally, the government's desire to have an agent state categorically that the amount of methamphetamine is "an amount for distribution" would fun afoul of Federal Rule 27 of Evidence 704 (b). 26 28 2 07cr3281
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Demeanor Evidence Mr. Soto-Castro objects to this testimony. Although agents may certainly describe

3 what they observed, they cannot opine that a person was (or was not) nervous without the 4 government providing proper notice and the bases for their "expert's" opinion. See

5 Fed.R.Cr.P. 16 (a)(1)(F)-(G); Fed. R. Evid. 702-703; United States v. Fort, 472 F.3d 1106, 6 1121-22 (9th Cir. 2007). 7 C. 8 Certified Documents As the government has not identified those documents it seeks to introduce,

9 Mr.Soto-Castro cannot respond intelligently to this motion. 10 D. 11 Evidence of penalty Mr. Soto-Castro does not intend to violate Ninth Circuit law by arguing "punishment"

12 to the jury. 13 E. 14 Reference to Characteristics of Mr. Soto-Castro Mr. Soto-Castro does not intend to violate Ninth Circuit law by playing on the

15 "sympathy" of the jury, or by asking to engage in "nullification." Mr. Soto-Castro will limit 16 his evidence, if he chooses to on any, to relevant evidence. 17 F. 18 Admission of Mr. Soto-Castro's Statements Mr. Soto-Castro does not intend to introduce any "out-of-court" statement made by

19 him. Indeed, Mr. Soto-Castro moved, pre-trial, to exclude statements allegedly made by him 20 to agents. See Docket No. 19. He renews that motion. If the government chooses to 21 introduce some of these statements, however, Mr. Soto-Castro reserves the right to move to 22 introduce the balance of his statements if failure to do so would leave the jury with a unfair 23 picture of what occurred at the border. 24 G. 25 Limit Character Witnesses and Lack of Prior Record Mr. Soto-Castro is well aware of Ninth Circuit law regarding the permissible uses of

26 character evidence and, if he chooses to introduce such evidence, will follow that law. 27 28 3 07cr3281

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Booking Questions As the government has failed to identify what statements it considers to have been the

3 result of "routine" booking questions, Mr. Soto-Castro cannot intelligently answer this 4 motion. 5 I. 6 7 J. 8 Exclude Expert Testimony Mr. Soto-Castro does not intend to introduce expert testimony. Exclusion of Witnesses Mr. Soto-Castro does not oppose the government's request, requesting only that his

9 investigator be able to approach counsel table if needed during trial. 10 11 12 III. CONCLUSION Mr. Soto-Castro requests this Court consider this response when ruling on the

13 government's motions in limine. 14 15 16 Dated: July 15, 2008 17 18 19 20 21 22 23 24 25 26 27 28 4 07cr3281 /s/ Robert H. Rexrode ROBERT H. REXRODE, III Attorney for Mr. Soto-Castro Respectfully submitted,