Free Motion to Preclude - District Court of California - California

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KAREN P. HEWITT United States Attorney NICOLE ACTON JONES TARA MCGRATH Assistant U.S. Attorneys California State Bar Nos. 231929, 254209 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5482/6920 [email protected] [email protected] Attorneys for Plaintiff United States of America

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. Date: Time: 07CR3239-JM

13 Plaintiff, 14 v. 15 LEONARDO SAN JUAN, JR., 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant.

May 30, 2008 1:30 p.m.

GOVERNMENT'S SUPPLEMENTAL MOTION IN LIMINE TO LIMIT CHARACTER EVIDENCE

PLEASE TAKE NOTICE that on May 30, 2008, at 1:30 p.m., or as soon thereafter as counsel may be heard, the Plaintiff, the UNITED STATES OF AMERICA, by and through its counsel, Karen P. Hewitt, United States Attorney, and Nicole Acton Jones and Tara McGrath, Assistant United States Attorneys, will ask the Court to issue an order granting the following Motion in Limine. This motion is based upon the files and records of

the case together with the previously submitted Statement of Facts and Memorandum of Points and Authorities.

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I. THE COURT SHOULD LIMIT CHARACTER EVIDENCE The United States has been provided with a list of 12 possible Defense witnesses in this case. Based on

conversations with eight of the 12 individuals provided on the Defense list, the United States anticipates that Defendant may improperly attempt to introduce testimony regarding

Defendant's good military character and specific acts of prior good conduct. In a criminal case, "a defendant may offer evidence of `a pertinent trait of his character' under Rule 404(a)(1); this evidence may take the form of testimony as to reputation under Rules 405(a) and 803(21)or of opinion testimony under Rule 405(a)." United States v. Barry, 814 F.2d 1400, 1402-3 (9th Evidence of specific instances of good conduct is

Cir. 1987).

only admissible in cases where the character trait in question an "essential element" of the charge or a defense. Evid. 405(b). defendant to Fed. R.

Thus, while it is permissible for a criminal attempt to show a pertinent character trait

through reputation or opinion testimony, a character witness may not offer specific instances of good conduct by the

defendant.

See United States v. Hedgecorth, 873 F.2d 1307,

1313 (9th Cir. 1989). In interpreting the permissible scope of character

evidence under Rule 404(a), the Ninth Circuit has ruled that presentation of witnesses to testify about a defendant's

character for lawfulness or "law abidingness" is generally permissible. United States v. Diaz,961 F.2d 1417, 1419 (9th 2
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1992)

(holding

that

general

questions

about

whether

a

defendant is generally law abiding were proper, but questions on whether he would engage in a particular crime were not). Evidence of other character traits, however, is only In

admissible if the trait is relevant to the charged crime. Hedgecorth, for example, the defendant was charged

with

multiple violations of federal explosives and firearms laws, including a charge under 26 U.S.C. § 5861(d). 1309. 873 F.2d at

The Ninth Circuit affirmed the district court's ruling

that defense evidence regarding the defendant's role as an intelligence operative for the United States was not

admissible to show he was "patriotic" or "pro-Government." Id. at 1313. The Court further held that such evidence was

not admissible to show the defendant's character lawfulness because it went beyond reputation or opinion testimony. It would appear, based on conversations with Id.

Defense

witnesses, that the intention of the Defense is to go way beyond that which is allowed. the court rule in favor of The United States requests that this motion to preclude any

character testimony beyond Defendant's general character for "law abidingness." The United States makes this request

specifically pertaining to, but not limited to, testimony regarding how the Defendant conducted himself during

deployments to Iraq, his leadership skills in combat, his teaching skills, his generosity, his willingness to stand up for other people, his level of physical fitness, his military skills, his Martial Arts abilities, and/or testimony regarding his role as a mentor for junior Marines. 3
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The character traits described above are not relevant to the charge of possession of an unregistered machinegun and should be excluded. See United States v. Washington, 106 F.3d

983, 999 (D.C. Cir. 1997)(evidence of prior commendations received by the defendant (a police officer) not admissible to show character for "dedication, aggressiveness and

assertiveness" in police work where defendant was charged with drug and weapons offenses); United States v. Nazzaro, 889 F.2d 1158, 1168 (1st Cir. 1989) (excluding evidence of police

officer's prior commendations because "the traits which they purport to show-bravery, attention to duty, perhaps community spirit-were hardly `pertinent' to the crimes [of perjury and conspiracy to commit mail fraud] of which [the defendant] stood accused"). Thus, prohibit character the United States hereby moves in limine from to any

Defendant witness

from about

introducing the

testimony good

Defendant's

military

character and/or specific acts of prior good conduct. DATED: May 27, 2008.

Respectfully submitted, KAREN P. HEWITT United States Attorney /s/ Nicole Acton Jones NICOLE ACTON JONES Assistant U.S. Attorney TARA K. MCGRATH Assistant U.S. Attorney

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

LEONARDO SAN JUAN, JR., Defendant. __________________________ IT IS HEREBY CERTIFIED THAT:

) Criminal Case No07CR3239-JM ) ) ) ) ) ) ) CERTIFICATE OF SERVICE ) ) ) )

I, NICOLE ACTON JONES, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused service of GOVERNMENT'S SUPPLEMENTAL MOTION IN LIMINE on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. 1. Joseph H. Low IV

I hereby certify that I have caused to be mailed the foregoing, by the United States Postal Service, to the following non-ECF participants on this case: None the last known address, at which place there is delivery service of mail from the United States Postal Service. I declare under penalty of perjury that the foregoing is true and correct. Executed on May 28, 2008. /s/ Nicole Acton Jones NICOLE ACTON JONES Assistant U.S. Attorney

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