Free Motion to Admit - District Court of California - California

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KAREN P. HEWITT United States Attorney NICOLE ACTON JONES Assistant U.S. Attorney California State Bar No. 231929 Federal Office Building 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619) 557-5482 [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA 10 UNITED STATES OF AMERICA, 11 12 13 14 15 16 17 18 19 PLEASE TAKE NOTICE that on May 30, 2008, at 11:00 a.m., 20 or as soon thereafter as counsel may be heard, the Plaintiff, 21 the UNITED STATES OF AMERICA, by and through its counsel, 22 KAREN P. HEWITT, United States Attorney, and NICOLE ACTON 23 JONES and TARA MCGRATH, Assistant United States Attorneys, 24 will ask this Court to issue an order granting the following 25 Motions in Limine. 26 records of the case together with the attached Statement of 27 Facts and Memorandum of Points and Authorities. 28 These Motions are based upon the files and ) ) Plaintiff, ) ) v. ) ) LEONARDO SAN JUAN, JR., ) ) Defendant. ) ) ) ) ) ) ) ______________________________) Case No. 07CR2609-JM DATE: May 30, 2008 TIME: 11:00 a.m. GOVERNMENT'S NOTICE OF MOTION AND MOTIONS IN LIMINE TO: (1) ADMIT STATEMENTS BY RAMIREZ; (2) ADMIT STATEMENTS BY DEFENDANT; (3) ALLOW VIDEO OF THE AK-47; (4) PRECLUDE INFLAMMATORY TESTIMONY; (5) PREAPPROVE VOIR DIRE QUESTIONS

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I STATEMENT OF THE CASE On November 29, 2007, a grand jury returned a one-count Indictment against Defendant Leonardo San Juan, Jr., charging him with possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). On December 5, 2007, Defendant was

arraigned on the Indictment and entered a plea of not guilty. On February 15, 2008, Defendant was arraigned on a one-count

superseding Indictment and entered a plea of not guilty. On May 16, 2008, this matter was scheduled for jury trial on June 2, 2008. II STATEMENT OF FACTS On June 25, 2006, Captain Glenn Davis, United States Marine Corps Reserve, was working at the Iron Sights gun range when a then unidentified female came to the range to learn how to shoot her boyfriend's .45 caliber semi-automatic handgun for

protection.

Captain Davis attempted to teach her how to use the

gun, but the female had difficulty with the weapon's slide and safety. Captain Davis asked the female if she had anything The female responded that she had an

else, meaning another gun.

M-4 1/ and explained that she and her boyfriend had traveled out of state to get the gun and that after it was delivered, he wrapped it up and stuffed in the trunk. The female further

explained that her boyfriend told her that if they were caught with the gun they would be in trouble. Captain Davis advised

An M-4 is an assault rifle that can be semi-automatic or automatic, depending upon the model. 2

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the female that she could not have that type of gun and should not tell people about it. Captain Davis then asked if she had

anything else that would be easier to use, to which the female responded that she had fifty (50) AK's in her garage. The

female stated that her boyfriend, who she had previously stated was a Marine, had brought the guns back every time he returned from Iraq. The female elaborated that he would sneak them back Captain Davis told her that she needed to After the

in medical kit bags.

get rid of the guns because she could go to jail. female left, Captain Davis contacted law enforcement.

Agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Naval Criminal Investigative Service (NCIS) conducted an investigation and, by tracing 911 calls, identified the female as Christina Ramirez. On June 28, 2006, Ramirez

ATF Agent Schmidt talked to Ramirez at her residence.

stated she leased the residence with her fiancé, Leonardo San Juan, Jr. (the Defendant). A consent search of the apartment

and its associated garage revealed an AK-47 machinegun in a plastic container in the back of the garage, hidden beneath military clothing and gear bearing Defendant San Juan's name. 2/ On or about June 29, 2006, Agent Schmidt received a

voicemail message from Defendant San Juan stating that he knew guns were taken from his house and inquiring as to what was going on. Tedla. Agent Schmidt relayed the message to NCIS Agent

On June 29, 2006, Agent Tedla spoke over the telephone

Agents also found a M-4 Bushmaster semi-automatic rifle underneath Defendant's bed. This firearm, which is classified under California law as an assault weapon, is the subject of a pending case in San Diego Superior Court. 3

2/

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with Defendant San Juan, who stated that he knew his weapons were taken the previous day from his house and he wanted to know what was going on. Testing of the weapon found in Defendant's garage by ATF Firearms Enforcement Officer Michael Knapp revealed that the firearm was a functional, fully-automatic AK-47. In addition,

Knapp determined that the machinegun had been manufactured at a factory in Bulgaria and additional markings on the weapon

indicated it had been issued to the Iraqi National Forces. A search of the National Firearms Registration and Transfer Record revealed no registration records or authorizations

allowing Defendant to possess a fully automatic weapon. On February 5, 2007, Agents Schmidt and Tedla went to San Juan and Ramirez's apartment to serve a grand jury subpoena on Ramirez. San Juan was home and he became confrontational with Ramirez arrived while the agents were there and San

the agents.

Juan instructed her "don't tell them anything, you don't have to talk to them." Prior to testifying before the grand jury,

Ramirez formally asserted her 5th Amendment right against selfincrimination testimony. III GOVERNMENT'S MOTIONS IN LIMINE A. The Court Should Admit Statement by Ramirez As present discussed charge above, the investigation San Juan that was led to the by and her privilege against adverse spousal

against

Defendant

initiated

statements his then girlfriend (now wife) made to a private gun shop employee. The Government seeks to admit Ramirez's

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statements interest. 1.

to

Captain

Davis

as

statements

against

penal

Fed. R. Evid. 804(b)(3). Ramirez's Statements Were Not Testimonial

As an initial matter, the Crawford Confrontation Clause analysis does not apply to this situation because Ramirez's statements were not testimonial. Crawford v. Washington, 541

U.S. 36, 68 (2004) (out of court statements that are testimonial are barred unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination). As the Supreme

Court explained in a subsequent case: "It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay Davis v.

evidence, is not subject to the Confrontation Clause."

Washington, 547 U.S. 813, 821 (2006)("statements made to 911 operator describing a present emergency not testimonial.") Although the Supreme Court did not define the term

"testimonial," in either Crawford or Davis the examples the Court gave of testimonial hearsay are illustrative: in-court testimony, affidavits, custodial 1) ex parte and

examinations,

prior testimony; (2) "pretrial statements that declarants would reasonably expect to be used prosecutorially;" (3) "formalized" materials such as depositions and confessions; and (4)

"statements that were made under circumstances which would lead an objective witness to reasonably believe that the statement would be available for use at a later trial." Crawford, 541 U.S. at 51-52. The Supreme Court also stated that "prior testimony at a preliminary hearing, before a grand jury, or at a former

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trial," as well as statements made during a police interrogation are testimonial. Id. at 68. Ramirez's statements do not fall into any of the categories of statements are discussed more in Crawford to or Davis. Ramirez's statements,

statements

analogous

co-conspirator

which Court in Crawford expressly stated are non-testimonial. Crawford, 541 U.S. at 56. Ramirez was not speaking to law Under the

enforcement nor was she giving a formal statement.

circumstances of this case, it is clear that Ramirez had no reason to believe that the statements she was making to a local gun shop employee would be used in a later prosecution. Cf.

Saechao v. Oregon, 249 Fed. Appx. 678, 679 (9th Cir. Oct. 2, 2007) (unpub.) (affirming admission of statements made by a codefendant to a friend in a tape-recorded jail call, stating that Crawford "does not apply to `an off-hand, overheard remark.'") Because Ramirez's statements are non-testimonial, the

admissibility of the statements is subject to hearsay law, not Crawford. 2. Ramirez's Statements Were Against Her Penal Interest

If Ramirez's statements are admitted for their truth, i.e. that she had AK-47s in her garage, such statements would be hearsay. declarant's The hearsay exception for statements when the against declarant the is

penal

interest

applies

unavailable as a witness and the statement, at the time of its making, "so far tended to subject the declarant to civil or criminal liability. . .that a reasonable person in the

declarant's position would not have made the statement unless believing it to be true." Fed. 6 R. Evid. 804(b)(3). In

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addition, to satisfy the Confrontation Clause the statements must carry "particularized guarantees of trustworthiness."

United States v. Boone, 229 F.3d 1231, 1233(9th Cir. 2000). a. Ramirez is unavailable

A witness is unavailable if she is exempted from testifying on the ground of privilege. case, Ramirez to invoked avoid both Fed. R. Evid. 804(a)(1). her 5th Amendment the a grand and In this spousal The but

privileges Government

testimony Ramirez

before with

jury.

will

serve

trial

subpoena,

anticipates she will again invoke her rights.

If she invokes,

she will be unavailable to testify as a witness regarding her statements. b. Ramirez's statements were against penal interest

Whether a statement was sufficiently against the declarant's penal interest for purposes of Rule 804(b)(3) exception requires a finding that "a reasonable person in the declarant's position would not have made the statement unless believing it to be true." To qualify under this exception, the statements must "in a real and tangible way, subject [her] to criminal liability." United States v. Hoyos, 573 F.2d 1111, 1115 (9th Cir.1978). "Moreover, whether a statement is self-inculpatory or not can only be determined by viewing it in context." United States, 512 U.S. 594, 603 (1994). During his testimony before the grand jury, Captain Davis explained in detail the substance of Ramirez's statements and Williamson v.

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the surrounding circumstances. 3/

To begin, Ramirez voluntarily

disclosed to Captain Davis that she had access to an M-4, a weapon which is illegal in California. 4/ Specifically, after it became clear that Ramirez was unable to shoot the .45 handgun, Davis asked if she had access to another gun. Ramirez responded

"I have an M-4." Ramirez knew that possessing such a gun exposed her to liability because she told Captain Davis that San Juan had taken steps to hide the gun and that when she asked why, he advised her they would "be in a lot of trouble" if they were caught with the gun. Captain Davis responded to Ramirez's

admissions by telling her "You can't have these types of guns, don't ever tell anybody that again." After the discussion of the M-4, Captain Davis asked if Ramirez "had anything else more simple to use," to which she responded "Well, I have 50 AK's in my garage." Ramirez then

elaborated that her boyfriend, who she had previously stated was an active duty Marine, brings them back from his tours in Iraq by "sneak[ing] them in the medical kit bag, because they don't check those." Ramirez further indicated that the weapons were

now wrapped up in their garage. In context, it is clear that Ramirez knew that the AK-47s were illegal based on San Juan's statements to her about how he had obtained the weapons and the fact that they were hidden. A copy of Davis's grand jury transcript available at the hearing for the Court's review.
4/ 3/

will

be

California Penal Code Section 12280(a) penalizes the importation and the possession of an "assault weapon." The Bushmaster M-4 was determined to be an "assault weapon" and this weapon is currently the subject of a pending case against San Juan in state court. 8

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Moreover, in light of Captain Davis's previous reaction to her admission about possessing an M-4, a reasonable person in

Ramirez's position would have understood that knowing possession of Iraqi AK-47s would also expose her to criminal liability. addition, the fact that Ramirez invoked her 5th In

Amendment

privilege against self-incrimination to avoid testifying before the grand jury further supports that her statements were against her penal interest. c. The statements are trustworthy

In Boone, an accomplice confided to his girlfriend that he had committed a robbery with the defendant (Boone). at 1232. 229 F.3d

Unbeknownst to the accomplice, the girlfriend was

cooperating with law enforcement and had secretly taped their conversation. Id. The Ninth Circuit affirmed the district

court's admission of the accomplice's statement in Boone's trial as a statement against penal interest. Id. at 1234. The Court

found that the statements carried the necessary particularized guarantee of trustworthiness because the statements were made in a private setting, the accomplice inculpated himself as well as Boone, and the accomplice was not trying to shift blame. Id.

Similarly, in Padilla v. Terhune, 309 F.3d 614 (9th Cir. 2002), an accomplice in a murder told a friend about what had happened. Id. at 618. The Court affirmed the admission of the Id.

accomplice's statement in a trial against a co-defendant. at 619. because

The Court found that the situation was like Boone the statement was made in a private setting, the

declarant had no reason to think the police were involved, and the declarant did not attempt to mitigate his conduct or shift 9 07CR3239-JM

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blame.

Id.

Thus,

the

Court

found

that

the

statement's Id. at 620. Ramirez's

admission did not violate the Confrontation Clause. Like the statements in Padilla and Boone,

statements carry a particularized guarantee of trustworthiness given the attendant circumstances. Ramirez was not talking to

law enforcement, she made no effort to mitigate her involvement (to the contrary, she openly claimed personal access and

knowledge of the weapons) nor was she attempting to implicate San Juan in a crime. Rather, Ramirez was frightened about what

she thought had been an attempted break-in at her house and she was seeking assistance from a gun shop employee on how to

protect herself.

The statements were made in a private setting

and Ramirez's responses to Davis's questions were designed to further her goal of learning to shoot a weapon. The statements

are also trustworthy because they were corroborated by the fact that (1) ATF found an M-4 under her bed and, as she had stated, the gun had come from out-of-state and (2) ATF found an AK-47 wrapped up in her garage and, as she had stated, the gun had markings indicating it had come from Iraq. In this context,

Ramirez's statements satisfy the Confrontation Clause and are admissible. 3. The Government Agrees to Limit the Statements

Although Ramirez's statements about the M-4, the number of AK-47s and the fact that San Juan had smuggled the AK-47s into the United States from Iraq in medical kit bags are relevant and admissible, the Government is not seeking admission of Ramirez's full statement to Captain Davis. The Government seeks to admit

Captain Davis's question to Ramirez regarding whether she has 10 07CR3239-JM

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access to any other guns and agrees to limit and sanitize her response to be that she "has AKs in her garage." This statement

is highly relevant given Defendant San Juan's stated defense that he did not know about the AK-47 that was found in the garage he shared will with Ramirez. any The risk be Government's of unfair limiting

proposal

eliminate statement

prejudice. under Rule

Accordingly, 804(b)(3). 5/ If the

the

should

admitted

Court

were

to

find

that

the

statement

is

not

admissible under Rule 804(b)(3), the Government seeks to elicit Ramirez's statement that she "has AKs in her garage" not for the truth of the matter of asserted, but rather to establish the circumstances leading to the search of her residence and the seizure of the AK-47 charged in this case. admissible under Ninth Circuit precedent. Such evidence is

In United States v.

Daly, 974 F.2d 1215 (9th Cir. 1992), the defendant sought to exclude the fact that the felon-in-possession charge arose out of an eleven hour shoot-out with police. The Court rejected

this argument, holding that the jury "cannot be expected to make its decision in a void." v. Collins, 90 F.3d Id. at 1217. 1429 (9th See also United States Cir. 1996) (affirming

1420,

admission of evidence that the defendant was in the building to commit a burglary in a felon-in-possession case).

Defendant San Juan has indicated his defense is that he allowed other individuals to use his garage and one of those individuals put the gun in the garage without his knowledge. If, however, Defendant San Juan argues that the gun belonged to Ramirez and he was unaware of its existence, the remainder of Ramirez's statement regarding how the AK-47s came to be in her garage should be admitted. 11 07CR3239-JM

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Without Ramirez's statement, the Government will be unable to explain why ATF knocked on her door on June 28, 2006 and the resulting hole in the story could mislead the jury. same cases issue where presented the in the above-cited was allowed This is the

felon-in-possession to introduce the

Government

circumstances surrounding how the defendant came to be found with the charged gun in the first place. In this case the issue

is amplified by the fact that San Juan will be in full uniform throughout the course of the trial ­ the jury needs to know that San Juan was not being unfairly targeted and that ATF was not simply knocking on random doors. Accordingly, if Ramirez's

statement is not admitted for its truth, the statement should be admitted (with a limiting instruction) to establish why Captain Davis contacted law enforcement and why Agent Schmidt began an investigation. B. The Court Should Admit Statements by Defendant San Juan Defendant San Juan has indicated that his defense to the charge is that he did not know the AK-47 was in the garage and that someone else must have put it there. defense, and the fact that the Government In light of this must prove that

Defendant San Juan knowingly possessed the AK-47, the Government seeks to elicit certain statements made by Defendant San Juan that go to his knowledge of the weapon. Such statements are not

hearsay because the statements were made by a party-opponent. Fed. R. Evid. 801(d)(2).

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Specifically, the Government seeks to admit the following statements: 6/ 1) the substance of the voicemail message Defendant San Juan left for Agent Schmidt on June 29, 2008 regarding the weapons taken from his residence during the consent search; 2) the substance of Defendant San Juan's conversation with Agent Tedla on June 29, 2008 regarding the weapons taken from his residence during the consent search; 3) the substance during the of Defendant of San Juan's Staff telephone Sergeant

conversation

summer

2006

with

Robert Wold wherein he admitted that he had brought an AK-47 back from Iraq and that ATF had found it; 4) Defendant San Juan's instructions to Ramirez on February 5, 2007 "don't tell them anything, you don't have to talk to them", when Agents Schmidt and Tedla were attempting to serve the grand jury subpoena on Ramirez. The first two statements are relevant because San Juan

refers to the seized weapons as belonging to him, which goes to his knowledge that the AK-47 was in his garage. Although these

statements were made to law enforcement, Defendant San Juan clearly was not in custody at the time the statements were made nor were the statements made in response to interrogation.

Moreover, there is no question but that the statements were voluntary in that the statements were initiated by Defendant San Juan himself. Accordingly, the statements are admissible.

The list of specific statements is not intended to be exclusive and the Government reserves the right to admit additional statements if such statements become relevant. 13 07CR3239-JM

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The third statement is highly relevant because Defendant San Juan admitted to bringing the AK-47 back from Iraq. Staff

Sergeant Wold is not a member of law enforcement, rather he is an active duty Marine who served with Defendant San Juan in Iraq. Defendant San Juan initiated the call and Staff Sergeant

Wold will testify at trial and will therefore be subject to cross-examination. Accordingly, Defendant San Juan's statement

to Staff Sergeant Wold is admissible. The fourth statement is relevant as consciousness of guilt, particularly in light of the fact that it was Ramirez's

statements to Captain Davis that prompted the consent search and the grand jury subpoena in the first place. Again, San Juan's

statement was voluntary and he was not in custody nor was he responding to interrogation. to Ramirez is admissible. Accordingly, San Juan's statement

To the extent the Court finds that

the context of the statement (service of a grand jury subpoena on Ramirez) is somehow unfairly prejudicial given that Ramirez will likely invoke her 5th Amendment and spousal privileges, the statement subpoena. C. The Court Should Allow Video of the Machinegun can be sanitized to remove the reference to the

The Government seeks to introduce a video of an ATF agent firing the AK-47 charged in this case. The video will be

produced in discovery in advance of the hearing date. is relevant for two purposes. that the AK-47 is fully

The video

First, the Government must prove The video is the best

automatic.

evidence of the weapon's fully automatic capability.

Second,

the Government must prove that Defendant San Juan knew that the 14 07CR3239-JM

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AK-47 was fully automatic.

The video is required to show the

jury that a person, like San Juan, who has experience with Iraqi AK-47s and has seen them in use, would know that such a weapon is fully automatic. This is especially important because this

AK-47 (which was manufactured in 1969) looks like a regular rifle and does not resemble the type of machineguns the jurors may have seen on television. Accordingly, the Government should

be allowed to show a brief video of the AK-47 being fired. D. The Court Should Preclude Inflammatory Testimony

The Government has spoken with several potential defense witnesses. effect that Many of these witnesses have made comments to the prosecuting Defendant San Juan will harm the The

Marines, the United States, and/or the war effort in Iraq.

Government wants to flag this issue because such testimony has no relevance and would unfairly prejudicial. inflammatory testimony is inadmissible. E. Accordingly, such

Fed. R. Evid. 402, 403.

The Court Should Approve Attorney Conducted Voir Dire

The Government will include a list of proposed voir dire questions in its trial memorandum, which will be filed in

advance of the in limine hearing. sensitive defendant issues, will be especially wearing a in

Because this case involves light of the fact the that the

Marine

uniform,

Government

requests that the Court approve both defense and Government voir dire questions in advance. Such advance screening will avoid

the jury being tainted by questions that are deemed improper only after they have been asked. // // 15 07CR3239-JM

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IV GOVERNMENT'S RENEWED MOTION FOR RECIPROCAL DISCOVERY To date, the Defendant has produced a list of potential witnesses, but he has not produced reciprocal discovery in the form of documents, exhibits or prior statements. The Government

requests that the Defendant comply with Rules 12.2 and 16(b) of the Federal Rules of Criminal Procedure, as well as Rule 26.2 which requires the production of prior statements of all

witnesses, except for those of the Defendant.

The Defendant has

not provided the Government with any documents, photographs, or statements. Accordingly, the Government intends to object at

trial and ask this Court to suppress any evidence at trial which has not been provided to the Government. V CONCLUSION For the above stated reasons, the Government respectfully requests that its Motions in Limine and Renewed Motion for

Reciprocal Discovery be granted. DATED: May 23, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney

S/Nicole Acton Jones NICOLE ACTON JONES TARA MCGRATH Assistant U.S. Attorney

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1 2 3 4 5 6 7 8 v.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) Case No. 07cr3239-JM

CERTIFICATE OF SERVICE

LEONARDO SAN JUAN, JR. Defendant.

IT IS HEREBY CERTIFIED THAT: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 07CR3239-JM I declare under penalty of perjury that the foregoing is true and correct. Executed on May 23, 2008. s/Nicole Acton Jones NICOLE ACTON JONES E-mail: [email protected] I am not a party to the above-entitled action. I have caused service of Government's Motions in Limine and Renewed Motion for Reciprocal Discovery 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, Nicole A. 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.