Gangs, RICO and Avoiding Guilt by Association

Transcription

Recurring Issues with Gangs, RICO and Dealing with
Co-Defendants and or Avoiding Guilt(y) by
Association
Jesse Gessin, Assistant Public Federal Defender,
Central District of California
RICO SUAVE
Jesse Gessin
Deputy Federal
Public Defender
Santa Ana, CA
San antonio +
February 10-12, 2011
Smoothing Over the
Rough Edges of Gang
Racketeering
WHAT IS RICO?
The Racketeer Influenced and Corrupt
Organizations Act (RICO) was a groundbreaking
piece of legislation passed in the United States in
1970 with the goal of financially crippling the
Mafia. In addition to being used against members
of the Mafia, RICO can also be used in a variety of
other circumstances. Under RICO, the scope of
potential prosecution against people who
participate in organized crime was expanded
expanded,
along with the penalties upon conviction.
GANGS: A GREATER THREAT THAN
AL-QAEDA?
Gangs threaten our society, from city streets to suburban neighborhoods and
beyond They bring a culture of violence and drugs to our doorsteps,
beyond.
doorsteps creating an
atmosphere of fear, diminishing the quality of life, and endangering the safety, wellbeing, and future of our children. In partnership with state and local authorities as
well as community leaders, we must be vigilant in keeping our communities safe
f
from
the
h curse off gang-related
l d crime
i
and
d violence.
i l
Former Attorney General Michael
B. Mukasey, Attorney General’s Report to Congress on the Growth of Violent Street Gangs in
Suburban Areas (April 2008) at http://www.justice.gov/ndic/pubs27/27612/27612p.pdf.
In reality, it’s not the threat of Al-Qaeda-improvised explosive devises (IEDs) that
imperils the streets of Los Angeles. It’s street gangs that pose the greatest single
threat to public safety and that contaminate our youth with a bankrupt moral code.
Gang proliferation and gang migration-mostly
migration mostly emanating from southern CaliforniaCalifornia
has spread across the United States and into a number of foreign countries as if it
were a disease. Rene “Boxer” Enriquez. Forward. The Black Hand. Chris Blatchford.
New York: Harper, 2009. xiii-xvi.
RICO SUAVE: THE
OUTLINE
 ELEMENTS: RICO / RICO
CONSPIRACY
 DEFENDING GANG RACKETEERING:
KEY EVIDENTIARY ISSUES IN
GOVERNMENT WITNESS TESTIMONY
 DEFENSE CASE/INVESTIGATION:
KNOWING YOUR CLIENT, THE GANG
AND YOUR DEFENSE
 QUESTION AND ANSWER
RICO SUAVE: The Elements of the Substantive
Offense
1.
2
2.
3.
4.
5.
Defendant was associated with an ENTERPRISE.
Defendant knowingly committed,
committed or aided and abetted in
committing, at least TWO ACTS OF RACKETEERING
ACTIVITY.
The two acts of racketeering activity were connected by a common
scheme, plan or motive constituting a PATTERN OF CRIMINAL
ACTIVITY,, and not jjust a series of separate,
p
, isolated,, or
disconnected acts.
By committing the two or more connected acts, the Defendant
participated in conducting the enterprise
enterprise’ss affairs.
affairs
The enterprise was involved in or affected interstate commerce.
Source: 18 U.S.C. § 1962(c)
RICO SUAVE: The Elements of the Conspiracy
p
y
Offense
1. Two+ people agree engage in a pattern of racketeering activity.
2. The Defendant knowingly and willfully joined in the
conspiracy.
conspiracy
3. Defendant had the specific intent either to personally
participate or to help as part of a pattern of racketeering
activity.
Note: The agreement need not be that defendant personally
commit two ppredicate crimes.
Source: 18 U.S.C. § 1962(d)
WHAT IS AN ENTERPRISE?
• An “enterprise” includes any individual, partnership,
corporation, association, or other legal entity, and any union or
group of individuals associated in fact although not a legal
entity. 18 U.S.C. § 1961(4)
• An “associated in fact” enterprise must have at least three
structural features:
1) Purpose, 2) Relationship, and 3) Longevity
United States v. Boyle, 129 S. Ct. 2237 (2009)
The PATTERN of RACKETEERING ACTIVITY
• Requires at least two acts of racketeering activity
18 U.S.C. § 1961(5)
• Includes any act or threat involving murder, kidnapping,
ggambling,
g arson, bribery,
y robbery,
y extortion, or dealing
g in
obscene matter or a controlled substance, which is
chargeable under state law and punishable by
i
imprisonment
i
t for
f more than
th one year or for
f the
th felonious
f l i
manufacturing, importing, receiving, concealing, buying,
selling or otherwise dealing in a controlled substance.
18 U.S.C. § 1961(1)
GOVERNMENT WITNESSES:
THE TRILOGY
1. GANG MEMBERS
2. AGENTS
3. EXPERTS
GANG
MEMBER
TESTIMONY
KEY ISSUE:
THE CO
CO-CONSPIRATOR
CONSPIRATOR HEARSAY EXEMPTION
The Evidentiary Foundation for the use of
G
Gangmember
b Testimony
i
iis FRE 801(d)(2)(E)
801(d)(2)( )
1. Conspiracy which the declarant and the party
were both members.
2. Declarant made the statement in furtherance of
that conspiracy and,
3 Declarant made the statement during the course
3.
of that conspiracy.
Conspiracy / RICO Predicate Acts: How and
When?
• Conspiracy
p y must be established byy a ppreponderance
p
of
evidence. Bourjaily v. United States, 483 U.S. 171, 175 (1987)
• Co-conspirator hearsay may establish conspiracy. United
States v. Allison, 908 F.2d 1531, 1533-34 (11th Cir. 1990)
• No conspiracy charge necessary. United States v. Zackery, 494
F.3d 644, 648 (8th Cir. 2007); United States v. Richards, 204
F.3d 177, 202-203 (5th Cir. 2000); United States v. Wiles, 102
F.3d 1043, 1065 (10th Cir. 1996)
“II was only kidding…
kidding ”
The In Furtherance Element
•
Past successes and failures, bragging, idle chatter and gang
member's casual comments ARE NOT in furtherance of the gang
racketeering
g conspiracy.
p y United States v. Yarbrough,
g 852 F.2d
1522, 1535 (9th Cir. 1988); see also United States v. Potts, 840
F.2d 368, 371 (7th Cir. 1987); United States v. Carson, 455 F.3d
336, 366 (D.C. Cir. 2006)
EVERYTHING ELSE
IS “In Furtherance”
“II’m
m Out!”
Out! The During the Course Element
• No Cooperators. Statements of a gang member who has been
arrested and is cooperating with the authorities may not be
used against other gang members.
• Conspiracy Achieved or Thwarted. Statements made after
the main objective of the conspiracy has been either achieved
or thwarted do not fall within the rule
rule'ss coverage.
coverage
• Withdrawal. A statement made after a ggangg member
withdraws from the gang is not admissible against that
member.
I’ve Spotted the Issue, Now What Do I Do?
• Pretrial Motion to Exclude Evidence (James
Hearing) because government cannot establish
foundation. United States v. James, 590 F.2d 575
(5th Cir.
Cir 1979)
• Better than the alternative: Harmless Error.
United States v Warman ,578
578 F3d 320 (6th Cir.
Cir
2009); United States v Fuentes, 2006 US App
LEXIS 26293 (9th Cir.
Cir 2006)
AGENT
TESTIMONY
KEY ISSUE: BRUTON VIOLATION
• The Issue: Testimony containing an inculpatory
statement that agent did not personally witness, but
h d or received
heard
i d from
f
a gang member
b who
h is
i on trial.
ti l
• The Rule: Admission of a co-defendant's statement,
which
hi h also
l inculpates
i l t the
th defendant,
d f d t in
i their
th i joint
j i t trial
ti l
violates the confrontation right of the defendant. Bruton
v United States,
v.
States 391 U.S.
U S 123 (1968)
• The Bombshell: Limiting instruction alone does not
cure the violation.
Spotting A Bruton Violation: Where and How
• Where to Look
- Police Reports (FBI302
(FBI302, DEA6
DEA6, etc.),
etc ) Consenual
telephone recordings, Wiretaps, Jailhouse Telephone
calls/visits,, etc.,, the Witness Stand
• How to Look
ge talkingg about
bou a gang
g g member
e be who
w o made
de a
- Agent
statement while in custody, but is now on trial.
Statement of gang member to Agent involves the
inculpating statements of another gang member
Let’s see how it works: Bye Bye
Biggie
“I blew
Biggie
Smalls away
for the Rollin’
20 Crips”
“Tupac said
he blew Biggie
Smalls away
for the Rollin’
20 Crips”
“Snoop Dog
told me that
Tupac said he
blew Biggie
Smalls away for
the Rollin’ 20
Crips”
GUILTY!!!
II’ve
ve Got a Bruton,
Bruton What Do I Do Now? The
“Big Gray Marsh”
• Remedies: Sanitation, Suppression or
Severance
- Sa
Sanitation
tat o oor “Thee Bigg Gray
G ay Marsh”
as
- Suppression
- Severance
Pretrial Motion: To Move or Not to
Move…That Is the Question
• How obvious is the violation?
• Which defendant is implicated: Big Fish or
Minnow?
• Which remedy is most likely to occur?
• Which remedy is in the best interest of your
client?
EXPERT
TESTIMONY
“Gang
g Experts”
p
- Wolves in
Expert’s Clothing
• Who Are They?
- Former
F
G
Gang M
Members,
b
A
Agents,
t P
Professors
f
• Check Their Credentials!
- Not Everyone Who Claims to be an
Expert Is an Expert
Discovery,
y, Discovery,
y, Discovery
y
•
•
•
•
•
Ask for everything about the “expert”
All records relating to formal training
Reports, publications, classes
Documents relied upon
p to establish existence of g
gang
g
Documents relied upon to establish client is a
GANG/Enterprise member
• Documents
D
relied
li d upon to establish
bli h pattern off conduct;
d
predicate acts (state or federal)
• Documents establishing activity and organization of gang
THE CLIENT
C
Kickin’ It With My Client
• The Gang is the Enterprise: So get to know the gang
– Turf, colors, symbols and signs, history, cliques, other gang
members, OGs, friendly gangs, antagonistic gangs, core criminal
activities, etc.
• Know your client:
– What does your client do on a day to day basis
– Job
– Family
– Children
– Spouse, significant other
– Community ties
– The Necessary Evil Argument: Joined gang to seek shelter in a war
zone
Kickin’ It WithOut My Client
Kickin
• Defendants and in custodyy witnesses
may need to be restrained. If restraints
are used the Court must lay a record for
each individual defendant.
• Must be no less restrictive alternatives.
Deck v. Missouri, 544 U.S. 622 (2005)
QUESTION AND ANSWER
Special Thanks To
Kate Corrigan, Craig Wilke,
David Wiechert & Martin Sabelli
f their
for
th i counsell iin creating
ti thi
this
p
presentation
SAMPLE MOTION
PRACTICE: EXPERTS
Case :
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Filed05/05/10 Page1 of 10
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Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT
FOR T HE NO RTHE RN DIS TRICT O F CAL IFORN IA
SAN FRANCISCO DIVISION
)
)
)
Plaintiff,
)
)
vs.
)
)
al,
)
,
)
)
Defendants.
)
)
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)
)
________________________________ )
UNITED STATES OF AMERICA,
Case No.
NOTICE OF MOTION AND
MOTION FOR ORDER
REQUIRING DISCLOSURE OF
FOUNDATION, BASES AND
REASONS FOR EXPERT
OPINIONS; MOTION TO DELAY
FILING OF FULL DAUBERT
MOTIONS UNTIL ADEQUATE
EXPERT DISCLOSURES ARE
PROVIDED
Date: May 25, 2010
Time: 2 PM
Dept : The H on. W illiam H . Alsup ,
District Judge
23 TO: THIS HONORABLE COURT; TO ASSISTANT UNITED STATES ATTORNEYS
24 WILS ON L EUN G AN D CH RISTIN E WO NG; T O AL L DEF ENSE COU NSEL :
25
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PLEASE TAK E NOTICE that on May 25, 2010 at 2:00 p.m., counsel for
will move for the issuance of an order that the Government provide Rule 16
27 disclosures, and expert disclosures of the type permitted under U.S. v. W.R. Grace, 526
28 F.3d 499 (9th Cir. 2008) (en banc) and the related lower court ruling U.S. v. W.R. Grace,
Notice of Motion and Mo tion for Order Requiring Disclosure of Foundation, Bases and Reasons for Expert
Opinion s; Motion to Delay Filing of Full Daubert Motions until Adequate Expert Disclosures Are Provided
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1 402 F.Supp.2d 1179, 1181 (D.Mont. 2005) in view of current omissions in the
2 Gove rnmen t’s expe rt disclos ures, w hich w ere requ ired to b e provi ded by la te Apri l, 2010.
3 As applied to this case, and given the Government’s expert disclosures to date, the
4 disclosures, which are all bases for designated experts’ opinion, sought are as follows:
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1.
With respect to pathologists, and opinions regarding cause and manner of
death [Drs. Azar, Melinak, Moffat, Rogers]:
a.
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Any notes taken by pathologists during the postmortem examination process
not include d in the typew ritten postmo rtem exam ination repo rt;
b.
All autopsy diagrams, and related notes, which are usually kept in the
10
ordinary course of business by the Office of the Medical Examiner, City and
11
County of San Francisco, and which have not been furnished in this case;
12
c.
Actual copies of the documentation, including bench notes, instrumental
13
analyses reports, raw blood screen and urine screen reports, that are the
14
foundation and basis for the typewritten reports concerning the toxilogical
15
work done on blood and urine samples from deceaseds in this case;
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d.
Copies of any articles, books, or citations to books and treatises, that
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pathologists testifying in this case will be relying u pon in stating their
18
opinions;
19
e.
Copies of any written procedures including report writing procedures,
20
manuals, circulars, policy statements providing a structure for the statement
21
of findings including statements of causes of death, statements of standard
22
procedures for documentation of findings, policies concerning retention of
23
evidence, pathologists’ notes, case files and documents;
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f.
A list of cases testified in during the last four years.
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2.
With respect to laboratory work that has been done with instrumental
analysis including disclosed information concerning DNA evidence
[Analysts Cindy Fung and Julie Renfroe]:
a.
Copies of all standard operating procedures used by the laboratories at issue,
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including DNA analysis conducted by analyst Cindy Fung of the San Mateo
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County Sheriff’s Office Forensic Laboratory Section resulting in the
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disclosures appearing at pages 72-81 of the expert disclosures, and the
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analysis conducted by Julie Renfroe of the SF Police Department Crime
4
Laboratory at pp.255-262 of the disclosures. The disclosures themselves
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state that the data from this case was stored on a compact disk (see expert
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disclosure 81, for example);
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b.
The standard operating procedures for the DNA section or unit that Ms.
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Fung an d Ms. R enfroe w orked in at the time of the analysis, together with
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the unit’s quality assurance manual, DNA analysis and procedures manual
10
(if it is different from the standard operating procedures); records of Ms.
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Fung’s an d Ms. R enfroe’s p roficiency testing ; records of laboratory aud its;
12
c.
Any literature, including treatises, that are being relied upon in the
formulation of case-pertinent opinions;
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d.
List of cases testified in as an expert in the past 4 years.
15
3.
With respect to gunshot residue analysis by Mr. Steven Dowell and Ms.
Linda Abaun,
a.
All reports, printouts, and records of instrumental analysis of gunshot
16
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residue at the Los An geles Cou nty Departm ent of the C oroner (M r. Dowe ll)
18
and the SFPD Crime Lab (Ms. Abaun) in connection with this case
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b.
A copy of the standard operating procedures, or procedures manual, in use at
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the LA Coroner’s Department and SFPD Crime Lab and pertin ent to the
22
analyses conducted in this case;
23
c.
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Mr. Dowell’s and Ms. Abaun’s proficiency testing records for the last five
years;
d.
In addition to the information pertinent to Mr. Dow ell (disclosure pp. 55-65),
26
the defense is also seeking information about Linda Abaun whose disclosure
27
appears at e xpert disclos ures begin ning at pag e one, and who is rep orted to
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have analyzed gunshot residue swabs as a criminalist for the SFPD. As a
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result, the defense is asking for the standard operating procedures, or
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laboratory procedures manuals or circulars that describe the standards and
3
methodologies used by the SFPD Crime Laboratory in processing,
4
collecting, storing, and analyzing suspected gunshot residue, including any
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instrumental documentation pertinent to the analysis conducted in this case,
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serving as the basis for any report prepared by Ms. Abaun, including but not
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limited to the procedures manuals for the instruments used in the analysis of
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gunshot or suspected gunshot residue; the procedures for peer and supervisor
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review o f any results of analysis;
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d.
Any references to literature, including books or treatises that either Mr.
Dowell or Ms. Abaun reference in providing their opinions;
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e.
A list of cases testified in as experts in the past 4 years
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4.
With respect to firearms examiners, and criminalists who assess the
operability of firearms, or sought to “identify” firearms evidence (including
Mark Proia; John Sanchez; G. A. Smith ):
a.
All worksheets; diagrams; and case notes pertinent to the examinations
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reported in this case;
b.
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Copies of the standard operating procedures, or laboratory procedures, under
which the bench work, and testing, done in this case was conducted;
c.
A description of what identification criteria, and standards, are used by the
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examiners, including any reference to, or incorporation of AFTE theories of
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or procedures for identification relating to toolmarks , or any other standards,
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report related vocabulary, or statements of identification criteria used by the
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firearms examiner in describing the firearms evidence, including the
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evidence that is significant in attemptin g to identify the origin of a shell
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casing, bullet, or bullet fragment; the phrasing permissible according to the
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examine r’s practice an d standard s in stating whether an id entification is
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possible, or has been made, in a given case;
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d.
Any literature, trea tises, docum ents, or studies that the firearm s examine r is
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likely to rely upon in stating opinions in this case;
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e.
A list of cases testified in during the prior 4 years.
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5.
As to crime scene investigators and analysts, including evidence
documentation and collection: blood drop pattern documentation and
analysis; shooting event recreation (Amy Bartholomew; Sandra Ganster; Ray
Gee; Niki Zam ora):
a.
Agency or department standard operating procedures, manuals, circulars,
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and directives setting forth procedures and methodologies for crime scene
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processing; evidence documentation; evidence collection;
b.
evidence at a crime scene, including shooting event reconstruction and blood
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pattern ana lysis criteria;
c.
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A statement, or citations to the statements, of standards applicable to the
expertise provided;
d.
Records of any proficiency testing for the above-named analysts (and for any
other crime scene analysts who are intended to testify);
e.
Any literature, including treatises, books, articles, or other materials that the
just-named crime scene analysts may rely upon in giving their testimony and
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The same information with respect to the interpretation and analysis of
opinions;
f.
A list of cases testifie d in during the prior 4 years.
6.
As to gang issues experts including Detective Frank Flores; Sergeant Dion
McDonnell; Sergeant Mario Molina:
a.
Disclosure of the bases for opinions concerning the group, gang, or
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enterprise being focused upon in this case, including MS-13, any associated
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“cliques”, and any specific gang, group, or sub-group being focused upon;
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b.
A list, and copies of, interviews or other information as described in the
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expert materials proffered to the defense (expert pages 66-67 for Detective
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Flores; 278-283 for Sgt. McDonnell; 284-292 for Sgt. Molina) that form the
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basis for opinions offered concerning the history, structure, evolution of MS-
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13, and its manifestations in the SF Bay Area, including the names of
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persons interviewed; the dates of the interviews; the contents of the
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interviews; and identification of the date of production and contents of any
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police or law enforcement agency intelligence reports, gang investigation
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reports, circulars, memoranda, and materials on which these proffered “gang
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experts” are relying for the basis of opinions to be stated;
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c.
about MS-13;
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A list of cases in which each of these experts has qualified and testified
d.
Copies o f transcripts tha t the experts, an d counse l for the Go vernmen t,
submit demonstrate the expertise, and bases for opinions, concerning MS-13,
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or subjects to be addressed in this case, as testified to by each of the three
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proffered law enforcement experts during the course of the last four years
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(These items were requested in October, 2009 by attorney
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behalf of all defendants)
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7.
As to the electronic devices experts (including Walter Hart; James Munjone;
Kendrick Yeung):
a.
Any standard operating procedures, manuals, or circulars that describe the
standards, operating procedures, methodologies, and quality assurance
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programs associated with work done on the examination and retrieval of
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evidence from electronic devices;
b.
electronic de vice eviden ce, and retriev e it in connection with w ork done in
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Descriptions of techniques, methods, and tools, including the names of
software programs used to maintain the integrity and authenticity of
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, on
this case;
c.
The bases for any opinions that may be stated about the authenticity of
evidence retrieved from electronic devices, and concerning the operation of
devices associated with particular vendors or companies like Metro PCS,
AT& T, and V erizon, and their metho dology in ma intaining the a uthenticity
of their records;
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d.
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Descriptions of any engineering information, including billing record
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generating programs; cell site and relay station information; billing
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generation programs; record keeping programs evidencing length and
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location of calls that are to be relied on by electronic devices experts;
e.
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Any literature, circulars, manuals, memoranda, software-related manuals that
will be re lied o n by th e exp erts i n giv ing t heir testim ony;
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f.
A list of cases testified in during the prior 4 years.
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8.
With respect to swabbing of DNA from a crime scene, as well as fin gerprint
comparisons by proffered expert Joanne D el Bene (expert disclosure
beginning at p.45):
a.
All laboratory manuals, and standard operating procedure manuals or
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circulars applicable to Ms. Del Bene’s processing of a crime scene for
12
possible DNA and/or fingerprints;
13
b.
With respect to any fingerprint or palm print identification, a description of
14
the standards and procedures in use at the San Mateo County Sheriff’s
15
Forensic Laboratory at the time that any latent print lifts, or latent print
16
cards, were prepared for examination in the context of this case, together
17
with the description of the standards and procedures for the comparison of
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known and unknown prints, including but not limited to procedures for peer
19
review; quality assurance; documentation; and report writing;
20
c.
Records of proficiency testing, including any blind proficiency testing of Ms.
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Del Bene in the past seven years (on the question of fingerprint
22
identification);
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d.
A description of any literature that Ms. Del Bene, or any other analyst or
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criminalist, may rely on in testifying about the processing of a crime scene
25
for possible DNA and/or fingerprints, and for the comparison and
26
identification of prints;
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e.
List of cases testified in during the prior 4 years.
28 //
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9.
With resp ect to drug evidence id entification a nd weig hts
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a.
A list of criminalists/analysts to be called to state opinions on
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drug identifications and weights;
b.
Copies of all Standard Operating Procedures, Lab Manuals, Lab Procedures,
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Quality Assurance Manuals, Lab Audit Reports, Proficiency Testing Records
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Pertinent to the Laboratories, and Analysts Who may be called;
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c.
Copies of all docum entation, inclu ding benc h notes, instru mental an alysis
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print outs, instrument and balance maintenance logs, instrument and balance
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calibration logs;
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d.
Copies of any literature, treatises, manuals, o r studies relied u pon in
11
formulating opinions;
12
e.
13
In addition, the defense moves for an order extending the time for the filing of
List of cases testified in during the previous 4 years
14 Daubert motions until the above inform ation is provided, and th e defense has been able to
15 review it.
16
17
The above-stated motion describes those materials, and disclosures, that the
defense is seeking. The motion is supported by the accompanying Memorandum
18 of Points and Authorities, the Declaration of counsel, and will also be supported by any
19 further information or authorities as may be made available at the time of any hearing on
20 the mo tion.
21 Dated: May 5, 2010
22
Respectfully submitted,
23
24
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26
by s
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PROOF OF SERVICE
2
I,
, declare:
That I am over the age of 18, employed in the Cou
hin action; my business address is Suite
3
4
d not
On today’s date, I served the within document entitled:
5
NOTICE OF MOTION AND MOTION FOR ORDER REQUIRING
DISCLOSURE OF FOUNDATION, BASES AND REASONS FOR EXPERT
OPINIONS; MOTION TO DELAY FILING OF FULL DAUBERT MOTIONS
UNTIL ADEQUATE EXPERT DISCLOSURES ARE PROVIDED
6
7
8 ()
9 (X )
( )
10
By placing a true copy thereof enclosed in a sealed envelope with postage thereon fully
prepaid, in the United States Mail at San Francisco, CA, addressed as set forth below;
By electronically transmitting a true copy thereof;
By having a messenger personally deliver a true copy thereof to the person and/or office of
the person at the address set forth below.
11 Wilson Leung, Assistant U.S. Attorney
Christine Wong, Assistant U.S. Attorney
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I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed this 5th day of May, 2010, at San Francisco, California.
Signed:
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FOR T HE NO RTHE RN DIS TRICT O F CAL IFORN IA
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________________________________ )
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Case No.
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION FOR ORDER
REQUIRING DISCLOSURE OF
FOUNDATION, BASES AND
REASONS FOR EXPERT
OPINIONS; MOTION TO DELAY
FILING OF FULL DAUBERT
MOTIONS UNTIL ADEQUATE
EXPERT DISCLOSURES ARE
PROVIDED
Date: May 25, 2010
Time:2 PM
Dept : The H on. W illiam H . Alsup ,
District Judge
INTRODUCTION
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I.
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This motion seeks basic information that the defense has requested, and is entitled
25 to namely the bases for the opinions of Government experts. It also seeks an order for
26 disclosu re of othe r ma teria ls tha t wil l allo w ef ficie nt liti gatio n co ncer ning exp erts. Fina lly,
27 it asks the Co urt to provid e the defen se with time necessary to rev iew the m aterials prior to
28 filing and litigating issues under FRE 702, and related law.
MPA iso Motio n for Ord er Requirin g Disclosur e of Found ation, Base s and Rea sons for Ex pert Op inions; Mo tion to
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Delay Filing o f Full Daubert Motions until Adequate Expert Disclosures Are Provided
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The Office of the United States Attorney in the Northern District of California has
2 been involved in the litigation of numerous racketeering cases involving charges of
3 homicide. These have required the use of experts by the Government and defense. Some
4 of the cases, including U.S. v. Diaz, which w as litigated in this C ourt, have re sulted in
5 hearings on law enforcement-based gang expertise, forensic laboratory science issues,
6 electronic device record-keeping procedures, etc. Since last fall, the
7 defense, and the defense in this case generally, has sought disclosures from the
8 Government that would allow prompt and orderly preparation of this case, and litigation of
9 any motions attacking the basis for expert testimony under Federal Rule of Evidence 702
10 and related case law including Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
11 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U .S. 137 (1999 ).
12
On April 28 and 29, 2010, the Government prov ided 337 pages of expert
13 disclosures, and disclosed a total of approximately 22 experts. As the Court knows,
14 subjects like DNA testing, firearms examination, and other laboratory sciences are not
15 usually characterized by only 10 to 20-page packets of discovery, but that is the size of the
16 current disclosures from the Government on average-per-expert. There are no Lab SOPs,
17 none of the instrumental data, no descriptions of methodologies of the type provided (and
18 require d) in oth er cases .
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This case involves several of the forensic laboratory sciences (and several different
20 agencies’s laboratories and thus differing procedures). As just noted, basic materials like
21 standard operating procedures; standards for identifications, comparisons, and the
22 reporting of results; quality assurance procedures; proficiency testing records and the like
23 are not included in the Government’s current disclosures. Last year, a racketeering trial
24 involving three murders was tried before Judge Chesney in this Court. A number of
25 experts of the type proposed here were called. Several binders worth of laboratory work
26 sheets; DNA procedures and electronically reported results; drug analysis results; firearms
27 evidence work sheets and bench notes; standard operating procedures manuals and the like
28 were disseminated as part of the Government’s expert disclosures (on request of defense
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1 counsel). 1 When this Court heard pre-trial motions in the Diaz et al case, SOPs,
2 instrumental analysis reports, proficiency test results, were in the process of being
3 disclosed and hundreds of pages of such reports had been disclosed. So had copies of
4 literature referenced by analysts and criminalists in various disciplines.2
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This Court has set dates for the filing of some Daubert motions, and associated
6 hearings. The need for the kind of documentation, including basic Rule 16 disclosures of
7 bases for o pinions, cou ld not have come as a surprise to the Govern ment. It certain ly will
8 not be a surprise to this Court. However, the defense has been left to make the current
9 supplemental requests. Unless this Court envisions the defense filing simple, generic,
10 ‘placehold er’ motions seeking the exclusion o f Gove rnment ex perts, the delays in
11 prod uctio n of fou ndational inf ormation , and base s for opin ions , will , of n eces sity,
12 reverberate throughout this case. Thus, this motion seeks delay in Daubert and FRE 702
13 motion filing dates
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At this point, there is ample basis for this Court to grant the discovery and the delay
15 sought.
ARGUMENT AND AUTHORITIES
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II.
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This year, the American Bar Association’s Section on Criminal Justice published a
18 cover article e ntitled: “Fore nsic Scienc e Landm ark Repo rt Finds Serio us Flaws in
19 Standards” in its publication Criminal Justice (2010). The authors, including Professor
20 Paul Giannelli (one of the authors of a standard work on scientific evidence in the
21 courtro om), w ere wr iting abo ut the N ational R esearch Coun cil repor t, Strengthening
22 Forensic Science in the United States: a Path Forward (2009). This book-length NRC
23 report addresses a number of matters, including the lack of standards and standardized
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The reference here is to U.S. v. Cyrus, CR-05-00324 MMC.
The hearings at issue took place four years or more ago. Only one Lab was involved.
That Lab, the SFPD Crime Lab is currently under scrutiny, and is undergoing audits. Here both
State and Federal Labs are involved, as are analysts/criminalists/proposed experts from several
different agencies. Thus whatever may have been provided in the Diaz et al. case is not reuseable here.
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1 practices in the forensic laboratory sciences. It is a call for reform that has reverberated
2 around th e country. As noted belo w, the United States S upreme C ourt has ev idenced its
3 consid eration o f the N RC R eport in a recen t ruling.
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The American Judicature Society’s publication Judicature also underscored the
5 significance of the National Research Council report in its cover story of
6 November/December 2009 entitled Forensic Science a nd the Co urts, authored by an
7 acknowledged expert on the forensic sciences, Professor Michael Saks (93 Judicature 94
8 (2009). Like the ABA publication, this Judicature article references only some of the
9 many cases, and secondary literature, that have described the implications of a history of
10 unreliable and lamentable practices in the forensic sciences. As Professor Saks explains,
11 the NRC report “... makes plain that a good deal is lacking in the expert evidence
12 proffe red” in c ourts. Id. at 99. As Professor Saks notes, part of the historical problem has
13 been the failure of courts, nationwide, to make the effort to distinguish reliable from
14 unre liabl e pro cedu res, a nd ru le ac cord ingly.
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This motion seeks basic information - beginning with the bases of expert opinions
16 which are subject to disclosure by the Government under Rule 16(a)(1)(G), as well as
17 under R ule 16(a)(1 )(E)(i) and the reports of examina tions and tests are subject to
18 dissemination under Rule 16(a)(1)(F). Given the types of examinations and endeavors at
19 issue in this case (only 3 of the Government’s 22 experts, the so called ‘gang expert’ are
20 dealing with non-technical matters), the defense needs access to the basis for the opinions
21 that ‘this bullet was shot from that caliber gun’; ‘the DNA found has these alleles at those
22 CODIS sites’; ‘there were particles consistent with gunshot on those hands’; ‘the path of
23 the bullet was from right to left and downwards in the body’. The defense is using general
24 examples, but the issues can easily be demonstrated to the Court. The problem here is not
25 beyond the grasp of any of those involved in this litigation. The Government’s exp ert
26 disclosures are incomplete, and do not comply with Rule 16.
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It is axiomatic that “since Daubert... parties relying on expert evidence have had
28 notice of the exacting standards of reliability such evidence must meet.” Weisgram v.
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1 Marley Co., 528 U.S. 440, 455 (2000). As the Third Circuit explained, any step that
2 renders an expert’s an alysis unreliable re nders the ex pert’s testimon y inadmissible. “This
3 is true whether this step completely changes a reliable methodology or merely misapplies
4 that methodology.” Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 745 (3rd Cir. 1994). To
5 figure out if there is a problem with expertise, however, you need to be able to understand
6 the methodology employed, and how results, or conclusions, were obtained as Rule 16
7 puts it, you need the bases for opinions.3
8
The Nin th Circuit has ruled that a D istrict Court ca n enter orde rs promotin g orderly
9 case management, including ones that refine the types of governmental expert disclosures
10 to the de fense r equired under F RCP 16(a). U.S. v. Grace, 526 F.3d 499 (9th Cir. 2008) (en
11 banc). The question in Grace was whether the District Court had exceeded its authority by
12 ordering a series of disclosures from the Government’s experts, including reports that are
13 “‘comple te, compre hensive, ac curate and tailored to the issues on w hich the ex pert is
14 expected to testify’.” Id. at 503- 504. Grace involved a complex prosecution related to the
15 allegedly impro per disposa l of asbestos-contam inated ma terial from m ining opera tions in
16 Montana. The trial court ordered the Government to provide documents pertinent to the
17 experts that it inte nded to ca ll at trial that were covered b y Rule 16. In upholding its
18 Orders, the Ninth Circuit noted that Rule 16 requires “... the government to disclose, at the
19 defenda nt’s request, a summary of any expert w itness testimon y the governm ent intends to
20 use during its case-in-chief at trial as well as the ‘bases and reasons for those opinions’;
21 documents within the government’s possession, custody or control that the government
22 intends to use; a nd certa in scien tific repo rts.” Id. at 513- 514.
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The Circuit also approved the Order requiring “... that expert dis closures must
24 identify the documents or information that the expert reviewed in preparing his or her
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This motion addresses basis and foundation for opinions. The question of whether the
disclosures from the Government sufficiently summarize opinions is another topic, one which the
defense understands will be addressed by other defense counsel. If that
understanding proves to be wrong, the Court will be provided with some specific challenges to
the sufficiency of the opinion disclosures as well.
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1 report, a condition well within Rule 1 6's requirement that expert disclosures describe ‘the
2 bases a nd reas ons fo r those o pinion s’.” Ibid.
3
Interpreting a prior version of FRCP 16, the U.S. Supreme Court in U.S. v.
4 Armstrong, 517 U.S . 456, 461-4 64 (1996 ) comme nted that the G overnm ent had a duty to
5 produce docu ments and objects ‘which are material to the preparation of the defendant’s
6 defense.’ In addition, the production of basic information concerning laboratory and other
7 forensic sciences and expertise may fall into the category of Brady v. Maryland, 373 U.S.
8 83 (1963 ) material that is required to be provided , particularly if withholding it w ould
9 amount to a failure to disclose material exculpatory evidence, thus causing a due process
10 violatio n. Kyles v. Whitley, 514 U .S. 419 , 434 (1 995).
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There are new interp retations of th e Fifth and Sixth Am endmen ts as these apply to
12 the use of affidavits as substantive evidence of scientific opinions against the accused. In
13 Melend ez-Diaz v. M assachus etts, ____ U.S. ____; 129 S.Ct. 2527 (2009) the U.S.
14 Supreme Court held that Sixth Amendment principles invalidated a procedure by which
15 drug identification and weight would be established by certificates of analysis rather than
16 by testimony subject to cross-examination. In doing so, the Court referenced the above17 described National Research Council’s 2009 Report and then observed: “Nor is it evident
18 that what respondent calls ‘neutral scientific testing’ is as neutral or as reliable as
19 respondent suggests. Forensic evidence is not uniquely immune from the risk of
20 manipulation... a forensic analyst responding to a request from a law enforcement official
21 may feel pressure - or have an incentive - to alter the evidence in a manner favorable to the
22 prosecution.” Id. at 2537. As the Court then noted, “Confrontation is one means of
23 assuring accurate forensic analysis.” Id. These observations are not a ringing
24 endorsement for disclosure procedures that do not allow review, examination, and
25 confrontation (if necessary) of bases for expert opinions.
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At this poin t, the Gove rnment ha s not provid ed the large number of bases of their
27 experts’ opinions, including the basic documentation, or foundation, on which the opinions
28 are resting. Providing expert summaries, and conclusory reports from experts, is only part
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1 of providing required Rule 16 material. This Court should order the enumerated
2 disclosu res.
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In addition, the Court should give the defense the time to review the requested
4 disclosures, and file appropriate motions.
CONCLUSION
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For the reasons stated here, and in the supporting Declaration of counsel, this Court
7 should ord er that the ma terial not yet provid ed by the Go vernmen t should be provided to
8 the defense as soon as possible.
9 Dated: May 5, 2010
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PROOF OF SERVICE
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I,
, declare:
That I am over the age of 18, employed in the County of San Francisco, California, and not
3 a party to the within action; my business address is Suite 350, 507 Polk Street, San Francisco,
California 94102.
4
On today’s date, I served the within document entitled:
MPA ISO MOTION FOR ORDER REQUIRING DISCLOSURE OF
FOUNDATIO N, BASES AND REASONS FOR EXPERT OPINIONS;
MOTION TO DELAY FILING OF FULL DAUBERT MOT IONS UN TIL
ADEQUATE EXPERT DISCLOSURES ARE PROVIDED
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(X )
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By placing a true copy thereof enclosed in a sealed envelope with postage thereon fully
prepaid, in the United States Mail at San Francisco, CA, addressed as set forth below;
By electronically transmitting a true copy thereof;
By having a messenger personally deliver a true copy thereof to the person and/or office of
the person at the address set forth below.
Wilson Leung, Assistant U.S. Attorney
11 Christine Wong, Assistant U.S. Attorney
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I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed this 5th day of May, 2010, at San Francisco, California.
Signed:
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO FACILITY
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Plaintiff,
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vs.
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Defendants.
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No.
NOTICE OF MOTION AND MOTION
FOR ENFORCEMENT OF COURT
ORDER THAT GOVERNMENT
PRODUCE SUMMARIES OF EXPERT
OPINIONS UNDER RULE 16(a)(1)(G);
MOTION TO CONTINUE FILING OF
DAUBERT MOTIONS
DATE: May 27, 2010
TIME: 12:00 P.M.
DEPT: Hon. William Alsup
TO: THIS HONORABLE COURT; TO ASSISTANT UNITED STATES ATTORNEY WILSON
LEUNG; TO ALL DEFENSE COUNSEL:
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NOTICE IS GIVEN that on May 27, 2010, at 12:00 p.m., or as soon thereafter as the matter
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may be heard, defendant
will move, and hereby does move, for enforcement of this
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Court’s revised final scheduling order directing the government to provide defense counsel, on or
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before April 26, 2010, with all expert materials required under Rule 16(a)(1)(G).
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Specifically, it is requested that this Court preclude the government from introducing at trial
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any expert opinion not timely disclosed, or, alternatively, order the government to provide the
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defense with adequate summaries of expert opinions that satisfy Rule 16(a)(1)(G) and delay the date
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for the filing of defense motions relating to experts so that the defense has sufficient time to review
2
such summaries.1
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This motion is made pursuant to Rules 16 and 57(b) of the Federal Rules of Criminal
4
Procedure, United States v. Grace, 526 F.3d 499 (9th Cir. 2008), and other supporting case law. The
5
motion is supported by the Due Process Clause, the Fifth, Sixth, and Eighth Amendments to the
6
United States Constitution, the arguments and authorities set forth in the within Memorandum of
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Points and Authorities and supporting exhibits and declaration, the files and records in this case, and
8
any argument to be presented to the Court.
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I.
STATEMENT OF MOTION-RELATED FACTS
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After the government filed a third superseding indictment, this Court issued a Revised Order
11
Setting Final Schedule For All Defendants. (Dkt. 998, issued December 17,2009.) The Order set
12
April 26, 2010 as the date by which the government had to provide the defense with “all government
13
expert disclosures required by Rule 16(a)(1)(G)” that related to the first trial group of RICO
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defendants not facing the death penalty.2 (Order at 8.)
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The Order further required that all defendants file any Daubert motions directed at any of the
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disclosed expert witnesses by June 18, 2010. (Order at 9.) Clearly, this deadline was premised on
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the government having complied fully with the requirements of Rule 16(a)(1)(G).
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On April 26, 2010, the government provided the defense copy service with 337 pages of
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Defendant
has already flied a motion seeking government disclosure
of foundation, bases and reasons for expert opinions, (see Dkts. 1669-171), also set for hearing on
May 27, 2010. The instant motion differs from that filed by Mr.
n that it addresses
the separate issue of whether the government has adequately disclosed some of the opinions about
which its experts will testify. In addition, the instant motion does not address the adequacy of any
government summaries of technical/scientific opinions other than as specifically stated herein.
2
Previously, the government was ordered to provide expert disclosures to the defense on or
before September 14, 2009. (Dkt. 265.) However, the government’s disclosures fell far short of
what was required by Rule 16(a)(1)(G). (See Dkt. 781 (“The government’s failure to comply with
the expert deadline, once it agreed to long ago, is so discouraging that a new schedule will not be set
until the government submits a firm date or dates by which it will file and serve full expert
disclosures . . ..”)) As a result, a new deadline for expert disclosures was set in the most recent
scheduling order.
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materials relating to 24 experts. For each witness, the materials include a summary entitled
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“Opinions.” The description of each expert’s purported opinions begins with the phrase “[a]mong
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other things, [the expert] will testify regarding . . . .” The summary then goes on to describe certain
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topics and opinions about which the witness will testify, but never identifies what these additional
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“other things” are.
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In addition, with respect to at least several of the government experts, the materials fail to
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disclose the expert opinions in other ways. For example, the materials identify three gang experts,
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two of whom are Frank Flores and Dion McDonnell. The so-called opinions of Detective Flores
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are described as follows.
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Among other things, Flores will testify regarding the origins and evolution of La
Mara Salvatrucha or MS-13, from its founding in Los Angeles, California, to its
spread to El Salvador, Central America, and throughout the United States. He will
testify regarding its organization into local cliques that adhere to gang rules and
policies set by gang leaders in Los Angeles and El Salvador, and will detail those
rules and policies, including the rule against cooperating with law enforcement, the
rule requiring retaliation against those who cooperate with law enforcement, the need
to attack rival gang members and commit other attacks of violence in order to
increase standing within the gang. He will also testify about MS-13's rivalries and
how it is a Sureno-affiliated gang claiming allegiance to the Mexican Mafia and
opposed to Nuestra Familia. He will further testify regarding MS-13 tattoos,
symbols, codes, colors, and graffiti, and how they are used to communicate.
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See EXPERT000066, attached.
With respect to Sergeant McDonnell, the government materials state under the heading
“Opinions” that:
Among other things, McDonnell will testify regarding the founding and development
of La Mara Salvatrucha or MS-13 generally and more specifically, in the San
Francisco Bay Area. He will testify that there is a clique in Richmond, and another
clique is in San Francisco. The San Francisco clique’s territory is centered on 20th
Street and Mission Street, with Mission Playground as the gang’s principal hang-out.
The principal rival to MS-13 in San Francisco is Norteno affiliated gangs. He will
also testify regarding gang rules and policies, about the San Francisco clique’s
activities and past membership, about its clashes with rival gangs, its symbols, colors,
tattoos, and graffiti, its codes and slang, and about its connections with other cliques
outside the Bay Area, including MS-13 leadership in Los Angeles and El Salvador.
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See EXPERT000278, attached.
The government’s expert disclosures also identify four experts who downloaded the contents
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of various electronic devices. With respect to three of the experts ICE Special Agents Walter Hart,
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James Munjone, and Kendrick Yeung the government’s one-sentence summary of the purported
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opinion that will be rendered by the expert is the same.
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Among other things, (the witness) will testify about the procedures he employed to
download the contents of electronic devices such as computers, cellular telephones,
and other electronic devices so that the contents could be reviewed.
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See EXPERT000152 (Hart)M EXPERT 000293 (Munjone), and EXPERT 000331 (Yeung),
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attached.
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The fourth government expert who will testify about downloading the contents is San Mateo
County Crime Analyst Jennifer Carr. The government summary of her opinion is that:
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Among other things, Carr will testify about the procedures she employed to
download the contents of electronic devices, notably, a cellular telephone recovered
from Danilo Velasquez.
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See EXPERT000337, attached.3
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II.
ARGUMENT
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A.
The Government Failed to Make Adequate Disclosure of Expert Materials Required
under Rule 16(a)(1)(G) Because Witnesses’ Opinions Are Not Described
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In its Revised Order Setting Final Schedule For All Defendants, this Court stated without
17
qualification that on or before April 26, 2010, the government had to provide the defense with “all
18
government expert disclosures required by Rule 16(a)(1)(G)” that related to the first trial group of
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RICO defendants not facing the death penalty. (Dkt. 998.) Timely and adequate disclosure was
20
necessary to allow defense counsel to prepare Daubert and other motions relating to the government
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experts by June 18, 2010. Here, many of the government’s materials fall far short of the disclosure
22
requirements mandated by Federal Rules of Criminal Procedure, Rule 16(a)(1)(G), which provides:
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Expert Witnesses. At the defendant’s request, the government must give to the
defendant a written summary of any testimony that the government intends to use
under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-inchief at trial. . . . The summary provided under this subparagraph must describe the
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The materials provided to the defense do not include a curriculum vitae for Ms. Carr,
although the government states it will be forwarded under separate cover. No time estimate is given
for when the curriculum vitae will be received. See EXPERT000337.
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witness’s opinions, the bases and reasons for those opinions, and the witness’s
qualifications.
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In United States v. Diaz, CR 05-0167 WHA, this Court previously issued an order addressing
4
the adequacy of the government’s expert summaries. (See Order, dkt. 383.) For its disclosure in
5
Diaz the government provided a six-page letter covering eighteen proposed expert witnesses. Like
6
the witnesses at issue in this motion, each Diaz witness was covered in one paragraph (with minor
7
exceptions). This Court found that the summaries “were too pithy to satisfy Rule 16.” (Diaz Order,
8
dkt. 383, p.3.) The government’s summaries failed to describe the experts’ opinions and instead,
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only listed topics the testimony would cover. In addition, the government’s summaries did not
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provide the bases and reasons for the expert opinions, as required by Rule 16. (Id. at 3.)
In other words, the summary should list each specific opinion and under the specific
opinion list the bases and reasons. The bases and reasons must be sufficient to allow
counsel to frame a Daubert motion (or other motion in limine), to prepare for crossexamination, and to allow a possible counter expert to meet the purport of the casein-chief testimony.
Id. at 2.
This Court’s analysis in Diaz is supported by United States v. Grace, 526 F.3d 499 (9th Cir.
2008) (en banc), where the Ninth Circuit stated,
19
Subsections (a)(1)(G), (a)(1)(E)(ii) and (a)(1)(F) of Rule 16 require the government
to disclose, at the defendant's request, a summary of any expert witness testimony the
government intends to use during its case-in-chief at trial as well as “the bases and
reasons for those opinions”; documents within the government’s possession, custody
or control that the government intends to use; and certain scientific reports.
20
United States v. Grace, 526 F.3d at 513. Similarly, the district court in United States v. Michel-Diaz,
21
205 F.Supp.2d 1155, 1156 (D.Mont.2002) set out specifically what is required to comply with
22
Rule 16.
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[C]ompliance with Rule 16 requires that the expert summary shall contain a
complete statement signed by the expert of all opinions to be expressed and the bases
and reasons for the opinions; any data or information considered by the expert in
forming the opinions; the qualifications of the expert, including a list of all
publications by the expert within the past ten years, and a list of all cases for which
the expert has testified as an expert in trial or by deposition in the past four years.
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United States v. Michel-Diaz, 205 F. Supp. 2d 1155, 1156 (D. Mont. 2002) (denying government's
28
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motion to modify a scheduling order requiring expert disclosures to include these categories of
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information).
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The “purpose behind the disclosure of expert reports is to insure effective cross-examination,
4
prevent surprise and avoid delay.” Id. at 1157. Where a case involves technical and scientific
5
evidence, detailed expert disclosures are essential to defendants’ adequate preparation for trial. See
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United States v. Jackson, 51 F.3d 646, 651 (7th Cir. 1995) (“Cases involving technical or scientific
7
evidence, may require greater disclosure, including written and oral reports, tests, investigations, and
8
any other information that may be recognized as a legitimate basis for an opinion under Fed. R. Evid.
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703”). Counsel cannot adequately cross-examine the prosecution’s scientific experts or prepare a
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Daubert challenge without understanding the bases underlying the reports. See, e.g., United States
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v. Caputo, 382 F. Supp. 2d 1045 (N.D. Ill. 2005) (“It is exceedingly difficult to cross-examine a
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scientific expert witness about the results of a scientific test without an opportunity to first review
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the test giving rise to the results”).
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Here, the government’s materials fail to describe all of the opinions to be expressed by its
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experts in their trial testimony. The government states that all 24 expert witnesses will testify about
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“other things” as well as the topics specifically identified in each summary. Nowhere does the
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government explain what these “other things” are or what opinions the experts will render about
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these “other things.”
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In addition, a number of the expert summaries are inadequate in other ways.
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government’s summary relating to gang expert Frank Flores lists numerous topics about which he
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will testify but only a few of his opinions. For example, the government states that Flores “will
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further testify regarding MS-13 tattoos, symbols, codes, colors, and graffiti, and how they are used
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to communicate.” EXPERT000066. The summary, however fails to mention what Flores’s opinions
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are regarding these tattoos, symbols, codes, colors, and graffiti or their use for communication. What
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does he believe MS-13 tattoos, symbols and graffiti look like? The answer to that question is not
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provided.
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The summary further states that Detective Flores will “detail [the] rules and policies” of the
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MS-13 and describes three of those rules that the detective believes are followed by gang members.
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EXPERT000066. What about the other rules and policies? What the detective believes them to be
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is not explained.
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It is also stated in the summary that the detective “will testify regarding the origins and
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evolution of La Mara Salvatrucha or MS-13, from its founding in Los Angeles, California, to its
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spread to El Salvador, Central America, and throughout the United States.” This statement does not
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describe Flores’s opinion about how MS-13 originated, who started it, and why it spread to other
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locations.
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Similarly deficient is the summary of gang expert Dion McDonnell’s opinions. The summary
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states in part that McDonnell will “testify regarding gang rules and policies, about the San Francisco
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clique’s activities and past membership, about its clashes with rival gangs, its symbols, colors,
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tattoos, and graffiti, its codes and slang, and about its connections with other cliques outside the Bay
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Area, including MS-13 leadership in Los Angeles and El Salvador.” EXPERT000278. This
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statement is merely a listing of some of the topics about which the expert will testify. What is
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omitted is a description of Sergeant McDonnell’s opinions regarding these subjects. What does he
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believe are the gang’s activities, it’s rules and polices, etc.? Who are the gang’s past members?
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According to the summary, Sergeant McDonnell will also “testify regarding the founding and
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development of La Mara Salvatrucha or MS-13 generally and, more specifically, in the San
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Francisco Bay Area.” Ibid. Again, what is missing is a description of the expert’s opinion. What
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is his opinion about how MS-13 was founded and developed?
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Regarding the four electronic experts who downloaded the contents of various devices, the
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government’s summaries merely describe what each witness did , i.e., they downloaded the contents
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of electronic devices. No mention is made of any opinions that will be offered by the witnesses. Nor
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do the summaries identify the specific procedures utilized by the experts to perform their work.4
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The materials relating to the electronic experts as well as gang experts Flores and
McDonnell differ from that of almost all other experts identified by the government. The summaries
of most of the other 18 experts incorporate by reference a report written by the expert and provided
by the government in the expert materials. That is not the case for the electronic experts and gang
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B.
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This Court Should Take Appropriate Measures to Enforce its Scheduling Order
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This Court’s order for pretrial disclosure of expert materials was authorized by Rule 16.
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Moreover, Rule 16(d)(2) specifically provides the Court with authority to address the government’s
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failure to comply with an order made pursuant to the rule. This Court may
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(A) order that party to permit the discovery or inspection; specify its time, place, and
manner; and prescribe other just terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the undisclosed evidence; or
(D) enter any other order that is just under the circumstances.
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Here, this Court’s order regarding the disclosure of expert materials was intended to tee up Daubert
9
motions and other motions relating to government experts to be filed by the defense on or before
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June 18, 2010, and to allow adequate time for the defense to prepare cross-examination at trial.
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(Order, dkt. 998.) With the government’s failure to provide complete expert materials, the defense
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does not have the information it needs to accomplish these tasks. Accordingly, to prevent the
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government from gaining an unfair advantage at trial, this Court should preclude the government
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experts from rending opinions at trial that were not timely disclosed. Alternatively, the government
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should be ordered to immediately provide complete descriptions of the opinions to be rendered by
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its experts, and the date for the filing of motions related to expert testimony should be continued.
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The order contemplated that the defense would have 53 days to review expert materials before
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having to file its motions and approximately four and a half months to review the materials before
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having to begin trial. The defense should not be prejudiced by the government’s failure to abide by
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the scheduling order.
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III.
6
CONCLUSION
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The government failed to comply with this Court’s scheduling order regarding expert
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disclosures to be provided on or before April 26, 2010. Accordingly, the Court should preclude the
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government from introducing at trial any expert opinion not timely disclosed or, alternatively, order
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immediate compliance with Rule 16(a)(1)(G) and continue the date for the filing of motions related
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experts Flores and McDonnell. Their summaries are not supplemented with any reports or other
materials.
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to expert witnesses.
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DATED: May 10, 2010
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DECLARATION OF
IN SUPPORT OF MOTION
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I,
declare as follows:
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1.
I am counsel of record for defendant
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2.
The facts relating to the government’s expert disclosures in the preceding motion are
in the above-referenced matter.
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based on my review of the materials provided on April 26, 2010, including the attached documents.
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The “quoted” language in the motion is copied verbatim from the expert materials.
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I declare under penalty of perjury that the foregoing is true and correct. Executed this day
of May 10, 2010 at San Francisco, California.
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/s/
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(SBN
Attorney and Counselor at Law
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SBN
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NORTHERN DISTRICT OF CALIFORNIA
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Plaintiff,
CASE NO.
DEFENDANT
NOTICE OF MOTION AND MOTION TO
EXCLUDE GOVERNMENT EXPERTS
v.
et al.,
Date:
August 4, 2010
Time:
12:00 p.m.
Courtroom: 9
Defendants.
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DEFENDANT
Case No.
MOTION TO EXCLUDE EXPERT TESTIMONY
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NOTICE OF MOTION
2 TO THIS HONORABLE COURT, AND UNITED STATES ATTORNEY JOSEPH
RUSSONIELLO, AND ASSISTANT UNITED STATES ATTORNEY WILSON LEUNG:
3
PLEASE TAKE NOTICE that on August 4, 2010 at 12:00 p.m., or as soon thereafter as
4
this matter may be heard, in the courtroom of United States District Judge William H. Alsup,
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United States District Judge, defendant
will, and hereby does, move this Court for an
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order excluding the testimony of proffered government experts Annie Hoang, Cynthia Fung,
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Joanne Del Bene, Mark Proia, Gerard Andrew Smith, and Thomas Rogers.1 This motion is based
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upon the supporting memorandum of law, the accompanying declaration of counsel, the pleadings
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and records on file in this matter, the Fourth, Fifth, Sixth and Eighth Amendments to the United
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States Constitution, and upon such evidence and argument which may be presented prior to and at
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the hearing on this motion.
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Pursuant to the Court’s June 8, 2010 Order, Mr. Herrera reserves the right to file Daubert
or other evidentiary challenges or objections to gang-expert testimony and/or testimony
concerning electronic downloads once the government’s further disclosures concerning such
experts are produced. In addition,
reserves the right to file Daubert or other
evidentiary challenges or objections to experts whose noticed testimony concerns overt acts other
than the crimes alleged to have occurred on February 19, 2009 in Daly City. As described more
fully herein,
is not in a position at this time to determine whether to assert such
challenges and/or which such challenges are factually and legally appropriate.
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1
TABLE OF CONTENTS
2 TABLE OF AUTHORITIES
iii
3 PRELIMINARY STATEMENT
1
4 BACKGROUND
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5 ARGUMENT
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6
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I. ANNIE HOANG
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A. Ms Hoang’s Expert Disclosure Is Inadequate Under Rule 16(a)(1)(G)
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B. The Identified Subjects Are Not Expert in Nature
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II. CYNTHIA FUNG
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A. Ms. Fung’s Expert Disclosure Is Inadequate Under Rule 16(a)(1)(G)
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B. Most of the Identified Subjects Are Not Expert in Nature
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C. Ms. Fung Should Not Be Permitted to Testify About Additional DNA Tests
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III. JOANNE DEL BENE
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A. Ms. Del Bene’s Expert Disclosure Is Inadequate Under Rule 16(a)(1)(G)
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B. Fingerprint Evidence Should Be Excluded As Unreliable
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C. Del Bene Should Not Be Permitted to Give Negative Fingerprint Testimony
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IV. MARK PROIA
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A. Mr. Proia’s Expert Disclosure Is Inadequate Under Rule 16(a)(1)(G)
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B. In General, Firearms Related Testimony Is Inadmissible
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V. GERARD ANDREW SMITH
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A. Mr. Smith’s Expert Disclosure Is Inadequate Under Rule 16(a)(1)(G)
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B. In General, Firearms Related Testimony Is Inadmissible
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VI. THOMAS ROGERS
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24 CONCLUSION
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TABLE OF AUTHORITIES
2
CASES
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4 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ................................... passim
5 Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183 (9th Cir. 2005).......................................7
6 Elsayed Mukhtar v. California State Univ., 299 F.3d 1053 (9th Cir. 2002) ....................................7
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Jinro America Inc. v. Secure Investments, Inc., 266 F.3d 993 (9th Cir. 2001).................................7
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)............................................................ passim
United States v. Beckman, 298 F.3d 788 (9th Cir. 2002) ................................................................6
11 United States v. Freeman, 498 F.3d 893 (9th Cir. 2007) ................................................................7
12 United States v. Gutierrez, 995 F.2d 169 (9th Cir. 1993) ...............................................................7
13 United States v. Morales, 108 F.3d 1031 (9th Cir. 1997) ...............................................................6
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RULES
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16 Fed. R. Evid. 702...........................................................................................................................9
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1
MEMORANDUM OF POINTS & AUTHORITIES
2
Preliminary Statement
3
Defendant
stands accused in the Third Superseding Indictment of crimes that
4 could result in imposition of the death penalty. Despite having had only nine months to review the
5 copious written and audio discovery relating to this alleged 24-defendant, 15-year RICO
6 conspiracy,
is now required under the terms of the Court’s scheduling order to raise
7 Daubert challenges to experts whom the government has noticed for trial.
8
At this time,
cannot present a meaningful Daubert challenge to any of the
9 government’s experts. There are several reasons for this. First and foremost, as a latecomer to
10 these proceedings,
is not in a position to determine whether and to what extent the
11 government’s experts are relevant to the government’s case against him. In particular, counsel for
12
has not yet had a sufficient opportunity to review and evaluate the thousands of pages
13 of discovery, and hundreds of hours of audio recordings, pertaining to the alleged RICO
14 conspiracy and the 120 overt acts allegedly committed in furtherance of the same. Accordingly,
15 any requirement that
present Daubert challenges to experts whose testimony relates to
16 these subjects is premature and incompatible with
rights to effective preparation of a
17 defense and the case for life under the Sixth and Eighth Amendments to the United States
18 Constitution.
19
Yet even if
could reasonably be expected to raise Daubert challenges at this
20 time, he would be unable to do so because of glaring deficiencies in the government’s expert
21 disclosures and related discovery production. Despite repeated requests from the defense, the
22 government has failed to supply the minimum information required by Rule 16(a)(1)(G)
23 concerning the opinions its experts will offer and the bases for those opinions. Lacking
24 information about the opinions that experts will give and the methodologies underlying those
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1 opinions,2 it is simply impossible for
—or this Court—to determine whether the
2 testimony meets the standards for admissibility articulated by the Supreme Court in Daubert and
3 Kumho Tire.
4
In addition, the government has withheld from the defense in this case the very materials
5 on which Daubert challenges are based (even though it has typically provided such materials in
6 similar cases in this district). The discovery required to facilitate meaningful resolution of
7 Daubert issues includes such routinely produced materials as laboratory procedures, SOPs, the
8 standards applied in the pertinent labs, proficiency testing results, error rates, and similar materials
9 bearing on the nature of tests that were performed and the bases for results that were obtained. In
10 the absence of these materials, defense counsel cannot present Daubert issues to the Court in a
11 manner that will facilitate meaningful exercise of the Court’s gatekeeping function.
12
To make matters worse, the government has not yet provided factual discovery relating to
13 certain subjects of the noticed experts’ proffered testimony. For example, the government has
14 noticed an expert to testify about a firearm that, prior to receipt of the government’s expert
15 disclosure, defense counsel did not know existed.3 In the absence of basic discovery pertaining to
16 the subject matter of the government’s expert testimony,
cannot formulate meaningful
17 Daubert challenges.
18
These deficiencies in the government’s disclosures are especially problematic given that
19 the government will be seeking to qualify experts in fields, including ballistics and fingerprint
20 evidence, that may involve unreliable and unreviewable methodologies. See Defendant
21
Mtn. to Exclude Firearms Related Expert Testimony (Docket No. 1837); Defendant
22
2
In addition, defense counsel are still awaiting the production of Henthorn materials. As
recent developments surrounding the San Francisco crime laboratory illustrate, such materials may
24 include revelations about the government’s experts and bear directly on the reliability of their
conclusions and opinions.
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3
It is conceivable that information relating to this firearm is contained in incident reports
26 that the government has produced in discovery. However, the government’s decision to redact
several of these reports in their entirety makes it impossible for defense counsel to discern whether
27 this is in fact the case. See, e.g., S300097-S300131.
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Preliminary Mtn. to Exclude Expert Testimony Re Latent Fingerprint Identification
2 (filed concurrently herewith). Accordingly, unless and until the government remedies its
3 inadequate disclosures, the Court cannot discharge its gatekeeping obligation to admit only those
4 expert opinions that are based on sound, reliable, and repeatable methods and techniques. See
5 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595 (1993) (“The focus, of course,
6 must be solely on principles and methodology, not on the conclusions they generate.”).
7
For these reasons,
reserves his right to assert Daubert challenges upon receipt
8 of compliant disclosures from the government and after sufficient opportunity to review the
9 discovery in the case. At the same time, he respectfully moves the Court to exclude some or all of
10 the testimony of government experts Annie Hoang, Cynthia Fung, Joanne Del Bene, Mark Proia,
11 Gerard Andrew Smith, and Thomas Rogers on the grounds that the government’s disclosures do
12 not comply with Federal Rule of Criminal Procedure 16(a)(1)(G).
13
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Background
The federal prosecution of this alleged RICO conspiracy commenced with the issuance of
15 the original indictment in October 2008.
was not named in that indictment. The
16 government sought and obtained a Second Superseding Indictment in January 2009, which again
17 did not name
. It was not until the Third Superseding Indictment, returned by the
18 grand jury in September 2009, that
was named as a defendant in this case. Thus,
19 eleven months elapsed between the initiation of the prosecution and
20 case.
addition to the
is the only death-eligible individual who was not among the originally named
21 defendants.
22
This Court’s Final Scheduling Order dated December 17, 2009 required the government to
23 provide expert disclosures pertaining to trial of the RICO defendants on April 26, 2010. The
24 Order further required that the defendants file any and all Daubert challenges on or before June
25 18, 2010. Although the Order set forth a different schedule for Daubert challenges by the death26 eligible RICO defendants, the Order indicated that any challenges to government experts whom
27 the government noticed for use in the first RICO trial should be filed by the June 18, 2010
28 deadline. Although
is not part of the first trial group, and despite his inability to
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1 assert full-fledged Daubert challenges at this time, he is filing this preliminary motion in an
2 abundance of caution and in an effort to preserve his rights.
3
On April 26, 2010, the government provided expert disclosures relating to 24 experts
4 whom it intends to call at the first RICO trial.
5
is not in this first trial group.
In advance of a hearing on May 27, 2010, selected defendants filed objections to the
6 sufficiency of the government’s expert disclosures. By order dated June 8, 2010, this Court
7 sustained certain of these objections. In particular, the Court held that the government’s
8 disclosures relating to so-called gang experts and audio experts failed to comply with Federal Rule
9 of Criminal Procedure 16(a)(1)(G), as did the disclosures with respect to forensic expert Niki
10 Zamora. The Court held that certain others disclosures—e.g., disclosures pertaining to Linda
11 Abaun and Venus Azar—were sufficient. The Court’s order did not specifically discuss the
12 sufficiency of disclosures relating to several other experts noticed by the government.4
13
More than once, counsel for
have asked the government to produce discovery
14 relating to the subject matter of the government’s noticed expert opinions. In particular, counsel
15 have requested that the government produce discovery relating to any forensic tests performed in
16 the course of the investigation of the Daly City shooting on January 19, 2009. See
Decl.
17 Ex. 1. To date, the government has not produced any materials in response to these requests other
18 than what was supplied in connection with, and referenced in, the expert disclosures provided on
19 April 26, 2010.
20
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Argument
The Court should exclude some or all of the testimony of each of the following
22 government experts for the specific reasons described below.
23
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In its order, the Court stated its intention to “focus only on those experts for whom the
government’s disclosures fall short of the requirements of Rule 16(a)(1)(G).” Order at 6. Insofar
26 as the Court’s decision not to discuss a particular expert disclosure was meant to convey approval
of the sufficiency of that disclosure,
respectfully moves the Court to reconsider any
27 such determination.
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1 I.
ANNIE HOANG
2
The government has noticed Annie Hoang to testify “about participating in the
3 examination of the crime scene of the murder of Moises Frias.” EXPERT000154. In addition,
4 Ms. Hoang will testify that
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[s]he . . . examined the victims’ vehicle and photographed the vehicle and other
items. Except for the front driver side window, which was rolled down, all the
other windows were missing. She observed bullet holes on the rear driver side
quarter panel and rear driver side door frame, as well as an apparent bullet lodged
in the rear driver side door frame. She also observed apparent blood stains near
the rear driver side and passenger side doors. Shattered glass and apparent blood
stains were inside the vehicle. On the driver’s seat were two red and white SF
baseball caps, one of which had holes on the top. On the floor of the front
passenger area was a black jacket. Other items were recovered from the victims’
vehicle. She swabbed the car for DNA samples and recovered an apparent bullet
lodged in the rear driver side door frame.
11 Id.
12
Ms. Hoang will also testify that she “examined a stolen Honda that was recovered in San
13 Francisco on or about February 20, 2009.” Id. In this regard, Ms. Hoang will testify that
14
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[s]he noticed that the ignition wires were exposed and dislodged and that there
were miscellaneous items in the trunk and glove box as well as in the interior of
the vehicle. She and Criminalist Niki Zamora sampled the interior of the vehicle
for gunshot residue and swabbed several locations for DNA samples. They also
dusted the vehicle and some of its contents for fingerprints.
17 Id.
18
Ms. Hoang’s testimony “will be based on her experience and training and her examination
19 of the crime scene and the vehicles associated with the February 19, 2009 murder of Moises
20 Frias.” Id.
21
A. Ms. Hoang’s Expert Disclosure Is Inadequate Under Rule 16(a)(1)(G)
22
The Court should exclude Ms. Hoang’s proffered testimony because the government’s
23 disclosure violates Federal Rule of Criminal Procedure 16(a)(1)(G). As this Court recently
24 explained, Rule 16(a)(1)(G)
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requires that the government provide a summary of the opinions of its experts to
be used during its case-in-chief. The rule requires that “[t]he summary provided
under this subparagraph must describe the witness’s opinions, the bases and
reasons for those opinions, and the witness’s qualifications.” The Advisory
Committee Note to the 1993 Amendment stated that the bases and reasons must
be sufficient to allow counsel to frame a Daubert motion (or other motion in
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limine), to prepare for cross-examination, and to allow a possible counter-expert
to meet the purport of the case-in-chief testimony.
Order Granting in Part and Denying in Part Defendants’ Motions Re Expert Witness Disclosures
(Docket No. 1821) (“June 8, 2010 order”), at 2-3.
In its June 8, 2010 order, this Court held that the government’s expert disclosure with
respect to another criminalist, Niki Zamora, violated this rule. In that disclosure, the government
stated that Ms. Zamora would testify about “participating in the examination of a stolen Honda
that was recovered in San Francisco on or about February 20, 2009,” including her efforts to
“collect gunshot residue and DNA samples, as well as fingerprints, from the vehicle.”
EXPERT000334. As the Court noted, this disclosure was noncompliant with Rule 16 because,
inter alia, it “fail[ed] to specify what opinions Ms. Zamora will offer.” Order at 7.
The government’s disclosure of Ms. Hoang’s expert testimony suffers from the same fatal
defect. Although the disclosure offers slightly more detail in terms of the specifics of Ms.
Hoang’s activities, it omits Ms. Hoang’s opinions concerning any aspect of the investigation she
conducted. Accordingly, the defense cannot determine what expert testimony the government will
seek to adduce from Ms. Hoang, let alone the bases for any such expert opinions. Any expert
testimony from Ms. Hoang should therefore be excluded.
B. The Identified Subjects Are Not Expert in Nature
If Ms. Hoang’s testimony will in fact be limited to the subjects described in the
government’s disclosure, the Court should not permit Ms. Hoang to testify as an expert. The role
of expert testimony is not to cloak percipient observations in a mantle of professional expertise,
but to explain complex subjects that are otherwise beyond the comprehension of lay jurors. See
Fed. R. Evid. 702 (stating that an expert opinion must be based on “scientific, technical, or other
specialized knowledge”); United States v. Morales, 108 F.3d 1031, 1038 (9th Cir. 1997) (holding
that expert testimony is admissible where, inter alia, “the subject matter at issue is beyond the
common knowledge of the average layman”); United States v. Beckman, 298 F.3d 788, 795 (9th
Cir. 2002) (testimony of a “percipient fact witness” is not expert in nature). Maintaining this
separation between percipient and expert testimony is critical lest the jury lend undue credence to
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1 everyday observations simply because they were made by an individual who is an expert in his or
2 her chosen field. See United States v. Freeman, 498 F.3d 893, 903 (9th Cir. 2007) (noting that “by
3 qualifying as an ‘expert,’ the witness attains unmerited credibility when testifying about factual
4 matters from first-hand knowledge”) (citation omitted); Elsayed Mukhtar v. California State
5 Univ., 299 F.3d 1053, 1063-64 (9th Cir. 2002) (“Maintaining Daubert’s standards is particularly
6 important considering the aura of authority experts often exude, which can lead juries to give more
7 weight to their testimony.”); Jinro America Inc. v. Secure Investments, Inc., 266 F.3d 993, 1004
8 (9th Cir. 2001) (noting that because expert testimony is “likely to carry special weight with the
9 jury . . . care must be taken to assure that a proffered witness truly qualifies as an expert”); United
10 States v. Gutierrez, 995 F.2d 169, 172 (9th Cir. 1993) (noting that testimony by law-enforcement
11 witnesses “often carries an aura of special reliability and trustworthiness”).
12
Here, every aspect of Ms. Hoang’s proffered testimony falls well on the lay side of the
13 percipient-expert divide. The government has provided no reason—nor is there any—why Ms.
14 Hoang should be qualified as an expert to recount what she saw when she examined the victim’s
15 car. See Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1192-93 (9th Cir. 2005)
16 (holding that witness’s “perception of the angle of the tire mark . . . would not constitute the
17 opinion of an expert, but the observation of a percipient witness”). Nor is there any expert aspect
18 to Ms. Hoang’s proffered testimony about her investigative activities, including her recovery of a
19 bullet or swabbing for DNA samples. Accordingly, the Court should not permit Ms. Hoang to
20 offer expert testimony on these subjects.
21 II.
CYNTHIA FUNG
22
The government has noticed Cynthia Fung to testify “about the crime scene of the murder
23 of Moises Frias.” EXPERT 000068. In particular, Ms. Fung will testify that
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when she arrived, she observed an area secured by police officers. From an area
that would have corresponded with the driver’s side of the victims’ vehicle, she
observed a pool of apparent blood and a blood trail heading west then north,
toward the northbound 280 freeway entrance. She took a sample of this blood.
She also recovered various items from this side of the victim vehicle, including
five .380-caliber casings, an apparent bullet, and an Atlanta Braves baseball cap.
From an area that would have corresponded with the passenger side of the
victims’ vehicle, she recovered three live 9mm rounds, and northwest of the live
rounds, she recovered four 9mm casings. In addition, approximately 30 feet west
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of some shattered glass in the left lane of the street, she collected two more .380caliber casings. The location of these items suggests that the 9mm fire came from
the passenger side, while the .380-caliber fire cam from the driver’s side. Fung
also examined the victims’ vehicle (which had driven away from the crime scene
to Seton Hospital). She observed blood in the interior of the vehicle, and the front
passenger, rear passenger, and rear driver side windows were missing; the front
driver’s side window was rolled down. She collected an apparent bullet from the
front passenger seat and an apparent bullet was lodged into the rear driver side
window frame. Fung and other criminalists swabbed for DNA. DNA analysis of
some of these samples were generally inconclusive, except that one witness’s
DNA was found on a bottle. Some DNA samples remain to be tested.
7 Id. This testimony will purportedly be based on Fung’s “experience and training and her analysis
8 of DNA samples recovered from the scene and the victims’ vehicle.” Id.
9
10
A. Ms. Fung’s Expert Disclosure Is Inadequate Under Rule 16(a)(1)(G)
As noted above, an expert disclosure must contain the witness’s expert opinions, along
11 with the bases for those opinions, to comport with Rule 16(a)(1)(G). Here, the government’s
12 disclosure of Ms. Fung’s anticipated testimony contains only two such opinions. First, Ms. Fung
13 will opine about the location from which firearms were purportedly discharged. Second, Ms.
14 Fung will give an opinion that DNA analysis was inconclusive. Having failed to disclose any
15 other opinions, the government should not be permitted to adduce expert testimony from Ms. Fung
16 on any other subject.
17
B. Most of the Identified Subjects Are Not Expert in Nature
18
Once again, the bulk of the government’s disclosure with respect to Ms. Fung’s testimony
19 concerns subjects that are inappropriate for expert opinion. Ms. Fung need not be qualified as an
20 expert to recount what she saw when she arrived at the scene of the crime, to describe her efforts
21 to collect evidence, or to testify about the appearance and contents of the victims’ vehicle.
22 Accordingly, Ms. Fung should not be permitted to testify as an expert to any of these percipient
23 observations. Rather, Ms. Fung’s expert testimony should be limited to the opinions the
24
25
26
27
28
8
DEFENDANT
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1 government has disclosed concerning the location from which firearms were discharged and the
2 inconclusive results of DNA analysis.5
3
C. Ms. Fung Should Not Be Permitted To Testify About Additional DNA Testing
4
Notwithstanding this Court’s unambiguous scheduling order setting firm deadlines for the
5 disclosure of expert opinions, the government has indicated in Ms. Fung’s expert disclosure that
6 “[s]ome DNA samples remain to be tested.” EXPERT000068. While Mr. Herrera would not
7 object if Ms. Fung wished to testify to the fact that not all DNA samples were tested, Ms. Fung
8 should not be permitted to testify at trial about the results of DNA tests that have not yet been
9 performed and/or disclosed to the defense. There would be no point in pretrial expert disclosures
10 if experts could offer undisclosed opinions at trial. Lest the government attempt to circumvent
11 Rule 16 by introducing expert testimony about additional DNA tests, the Court should strictly
12 limit Ms. Fung to testimony about tests that have already been performed.
13 III.
JOANNE DEL BENE
14
The government has noticed Joanne Del Bene to testify “about fingerprints recovered from
15 a stolen Honda that was found on or about February 20, 2009 in San Francisco. Her comparisons
16 indicate that at least two fingerprints from Luis Herrera were recovered from items contained in
17 the stolen Honda.” EXPERT000045.
18
This testimony will purportedly be based on Del Bene’s “experience and training and her
19 comparison of known fingerprints samples with latent prints recovered from the stolen Honda.”
20 Id.
21
A. Ms. Del Bene’s Expert Disclosure Is Inadequate Under Rule 16(a)(1)(G)
22
Once more, the government’s disclosure relating to Ms. Del Bene falls well short of the
23 requirements of Rule 16(a)(1)(G). Although the government has disclosed Ms. Del Bene’s
24 opinion that “at least two fingerprints from
were recovered from items contained in
25
5
By noting that these may be proper subjects of expert testimony,
does not
concede that Ms. Fung should be qualified as an expert, nor does he waive his right to voir dire her
27 concerning her qualifications.
26
28
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1 the stolen Honda,” the government has failed to supply the basis for that opinion. Contrary to the
2 government’s suggestion, it is insufficient to advise the defense that Ms. Del Bene formed her
3 opinion by comparing prints in the Honda to prints from
that information is self-
4 evident and, from a Daubert perspective, worthless. The relevant question in terms of formulating
5 a Daubert challenge is how Ms. Del Bene compared the prints.
6
On that question, the government is silent. Nowhere in its disclosures (or elsewhere in its
7 discovery production) has the government described the particular methodology that Ms. Del Bene
8 employed to arrive at her conclusion that a fingerprint in the car was left by
The
9 government has not explained how Ms. Del Bene compared one print to another. It has not
10 disclosed whether Ms. Del Bene (or anyone else) enhanced any print or print image for purposes
11 of the comparison. The government has not explained whether Ms. Del Bene applied the “n12 point” technique, the “ACE-V” method, or some other methodology to compare one print to
13 another. And the government has not explained how Ms. Del Bene’s application of any particular
14 methodology led to or supported her conclusion (for example, how many matching characteristics
15 Del Bene obtained, what those matching characteristics were, and—critically—what standard she
16 applied to determine that the characteristics were sufficient to constitute a match). Instead, the
17 government has simply asserted, in conclusory fashion, that Ms. Del Bene compared one print to
18 another and formed the opinion that they matched. See Kumho Tire Co. v. Carmichael, 526 U.S.
19 137, 157 (1999) (“[N]othing in either Daubert or the Federal Rules of Evidence requires a district
20 court to admit opinion evidence that is connected to existing data only by the ipse dixit of the
21 expert.”) (citation omitted).
22
Compounding the inadequacy of the disclosure, the documents supplied by the government
23 in support of Ms. Del Bene’s opinions cannot be reconciled with the opinions themselves. The
24 government maintains that Ms. Del Bene will testify that “at least two” fingerprints from
25
were recovered from items in the stolen Honda. EXPERT000045. Ms. Del Bene’s report,
26
27
28
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1 however, concludes that only one latent print was made by
2 it is truly Ms. Del Bene’s opinion that
See EXPERT000053.6 If
left two prints, the basis for that opinion has
3 not been disclosed to the defense.
4
Even the basis for the opinion that one print was made by
is inadequate. A
5 careful reading of Ms. Del Bene’s report reveals that the laboratory apparently took three digital
6 photographs of latent prints on two objects: a plastic Crystal Geyser container and a plastic Scotch
7 tape dispenser. Ms. Del Bene then compared these three images to
fingerprint
8 record, and concluded that “the one suitable latent impression (A001) was made by the person
9 whose fingerprints appear on the copy of the fingerprint record bearing the name
.”
10 Id. But the report does not say, and the government does not disclose, which image corresponded
11 to the “one suitable latent impression” that formed the basis for Ms. Del Bene’s opinion. As such,
12 it is not even clear whether that opinion is based on a print obtained from the plastic container or a
13 print lifted from the tape dispenser.
14
In the final analysis, all the defense knows about Ms. Del Bene’s expert opinion is that it is
15 based on a comparison of prints on an object in the car to prints made by
. Absent
16 more, this is woefully insufficient to permit a Daubert challenge and/or meaningful cross17 examination. Accordingly, the disclosure violates Rule 16(a)(1)(G). For this reason alone, Ms.
18 Del Bene’s expert opinion should be excluded.
19
B. Fingerprint Evidence Should Be Excluded As Unreliable
20
Contemporaneously with this motion, in an effort to comply with the Court’s deadline
21 notwithstanding his lack of preparedness and in spite of government’s deficient disclosures,
22
has filed a preliminary Daubert challenge to the admissibility of expert testimony
23 pertaining to latent fingerprint examination. For the reasons set forth in that motion, which is
24
25
6
According to her report, Ms. Del Bene compared one print in two different forms—as a
26 digital image and on a latent print lift card—to a known sample. See EXPERT000053 (stating that
“[l]atent impression labeled A0001 is a duplicate of digital image labeled 0920924-001 from Item
27 098182”) (emphasis added).
28
11
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1 hereby incorporated by reference,
submits that even if the government had adequately
2 disclosed the basis for Ms. Del Bene’s opinions, those opinions should be excluded because the
3 enterprise of fingerprint analysis lacks the empirical and intellectual rigor required to satisfy
4 Daubert’s twin standards of reliability and relevance.
5
C. Ms. Del Bene Should Not Be Permitted To Give Negative Fingerprint Testimony
6
Notably, the government has not disclosed any intention to introduce expert testimony
7 from Ms. Del Bene (or anyone else) concerning the significance or insignificance of the absence
8 of fingerprints on any surface examined by law enforcement. Similarly, the government has not
9 noticed an expert to opine about the probability of recovering usable latent fingerprints from
10 objects such as firearms, or about factors influencing the recoverability of such prints.
11 Accordingly, the Court should not permit Ms. Del Bene (or anyone else) to offer expert testimony
12 on these or any closely related subjects.
13
Moreover, any such “negative” fingerprint testimony is inadmissible under Daubert and
14 Kumho Tire. In Kumho Tire, the Supreme Court made clear that the Daubert gatekeeping analysis
15 applies not only to scientific testimony, but also to purported expert testimony based on
16 “specialized knowledge” from personal experience. Kumho Tire, 526 U.S. at 146. The Court
17 explained that the function of the Daubert analysis “is to ensure the reliability and relevancy of
18 expert testimony. It is to make certain that an expert, whether basing testimony upon professional
19 studies or personal experience, employs in the courtroom the same level of intellectual rigor that
20 characterizes the practice of an expert in the relevant field.” Id. (emphasis added). Accordingly,
21 when an expert purports to testify on the basis of personal knowledge and experience, the court
22 must be satisfied that “the testimony has a reliable basis in the knowledge and experience of [the
23 relevant] discipline.” Id. at 149 (citation and internal quotes omitted).
24
Accordingly, the Supreme Court in Kumho Tire approved of the application of the Daubert
25 factors to assess the reliability of expert testimony based on personal knowledge or experience.
26 These factors include:
27
•
Whether a “theory or technique . . . can be (and has been) tested”;
28
•
Whether it “has been subjected to peer review and publication”;
12
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•
2
3
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Whether there is a high “known or potential rate of error” and whether there are
“standards controlling the technique’s operation”; and
•
4
Whether the theory or technique enjoys “general acceptance” within a “‘relevant
scientific community.’”
5 Kumho Tire, 526 U.S. at 149-50 (quoting Daubert, 509 U.S. at 592-94).
6
Application of these factors to negative-fingerprint testimony leaves no doubt that such
7 testimony is inadmissible under Rule 702. A witness who testifies that fingerprints are not
8 generally found on firearms is not delivering an expert opinion based on a replicable, peer9 reviewed methodology; rather, she is recounting her own experience examining firearms for
10 prints. Inevitably, however, these examinations are not standardized. They involve different
11 firearms, recovered under different conditions, examined at different time intervals after prints
12 were deposited, handled by law enforcement in different manners, and possibly processed using
13 different techniques. As such, mere accretion of the results of these examinations does not
14 constitute a “theory or technique” that is testable, subject to peer review, subject to uniform
15 standards, or generally accepted by the scientific community. An officer’s own sample set is
16 impossible to replicate, and her technique is defined by the absence of controls rather than the
17 application of any objective standards.
18
As such, any methodology underlying negative-fingerprint testimony—to the extent there
19 is such a methodology at all—does not have a “reliable basis in the knowledge and experience of
20 [the] discipline.” Id. at 149 (quoting Daubert, 509 U.S. at 592). It follows that this Court,
21 exercising its gatekeeping function to exclude unreliable expert testimony, should not permit Ms.
22 Del Bene or any other witness to offer an expert opinion that latent fingerprints are not recovered
23 in the majority of firearm cases, or the further opinion that it is unremarkable that no such prints
24 were recovered here.
25 IV.
MARK PROIA
26
The government has noticed Mark Proia to testify “about examinations he conducted of
27 several firearms, including . . . a .380-caliber handgun recovered on March 4, 2009 from a vehicle
28 driven by
EXPERT000248. Specifically, Mr. Proia will testify that
13
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2
3
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based on comparisons between rounds test-fired from these guns with
rounds/casings recovered from crime scenes, these guns had been discharged in
connection with other crimes, including the May 2, 2007 murder of David Pollack
. . ., the March 28, 2008 murders of Ernad Joldic and Phillip Ng, and the February
19, 2009 murder of Moises Frias and the wounding of several other victims.
4 Id. This testimony will purportedly be based on Mr. Proia’s “experience and training and his
5 examination of the subject firearms, test-fired rounds/casings, and rounds/casings recovered from
6 crime scenes.” Id.
7
A. Mr. Proia’s Expert Disclosure Is Inadequate Under Rule 16(a)(1)(G)
8
Once again, the government’s disclosure does not comply with Rule 16(a)(1)(G). While it
9 is clear from the disclosure that Mr. Proia has opinions concerning the discharge of certain
10 weapons, it is not clear what those opinions are. In particular, there is no disclosure of Mr. Proia’s
11 opinions concerning which weapons were discharged in connection with which crimes.
12
The disclosure is also deficient for failure to disclose the bases for any such opinions. It is
13 self-evident that Mr. Proia’s opinions are based on his “examination” of the items at issue, id.;
14 what is missing from the disclosure is any description or explanation of the nature of that
15 examination. As this Court has correctly noted, an expert disclosure under Rule 16(a)(1)(G) must
16 be “sufficient to allow counsel to frame a Daubert motion (or other motion in limine), to prepare
17 for cross-examination, and to allow a possible counter-expert to meet the purport of the case-in18 chief testimony.” June 8 Order at 2-3 (citing Fed. R. Crim. P. 16 Adv. Cmte Notes to 1993
19 Amendments). Without information about the particular methods employed by Mr. Proia to arrive
20 at his opinions, defense counsel cannot assess—much less challenge—the reliability of those
21 methods under Daubert.
22
In light of the insufficiency of Mr. Proia’s expert disclosure, the Court should exclude his
23 testimony at trial.
24
25
26
27
28
B. In General, Firearms-Related Testimony Is Inadmissible Under Daubert and
Kumho Tire
Now pending before the Court is defendant
Firearms Related Expert Testimony (Docket No. 1837).
Motion to Exclude
respectfully moves to join in
motion and in the arguments and authorities cited therein. For the reasons
14
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1 described by
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firearms-related evidence of the sort that the government will
2 apparently seek to adduce through Mr. Proia does not qualify for admission under Daubert and
3 Kumho Tire. Accordingly, even if the government is permitted to cure the inadequacies in its
4 disclosures, the Court should exclude Mr. Proia’s proffered expert testimony.
5 V.
GERARD ANDREW SMITH
6
The government has noticed Gerard Andrew Smith to testify that “he examined various
7 casings for 9mm and .380-caliber rounds that were recovered from the scene of the February 19,
8 2009 shooting that killed Moises Frias and wounded two others in Daly City. Based on this
9 examination, Smith concluded that the 9mm rounds were fired from the same weapon while the
10 .380-caliber rounds were fired from the same weapon.” EXPERT000270.
11
Mr. Smith will also testify “that he examined and test-fired a 9mm handgun recovered on
12 or about October 28, 2009, and compared the results of with bullets/casings recovered from the
13 scene of the February 19, 2009 murder of Moises Frias and the wounding of two others, and that
14 the 9mm handgun was one of the weapons discharged during the February 19, 2009 crimes.” Id.
15
Mr. Smith’s testimony is purportedly based on “his experience and training and his
16 examination of the subject firearm, test-fired rounds/casings, and rounds/casings recovered from
17 crime scenes.” Id.7
18
A. Mr. Smith’s Expert Disclosure Is Inadequate Under Rule 16(a)(1)(G)
19
Yet again, the government has filed a disclosure that fails to list, much less describe, the
20 bases for Mr. Smith’s opinions. Although the disclosure states that Mr. Smith “examined” shell
21 casings and “concluded” certain things about them, it neglects to divulge how Mr. Smith
22 conducted his examination and/or how that examination led to his conclusions. Once again,
23
24
7
In fact, the government’s disclosure of Mr. Smith’s testimony states that “Sanchez’s
testimony”
will be premised on these bases. EXPERT000270. While this is presumably a
25
typographical error, it underscores the inadequacy of the government’s disclosures, which appear
26 to be pro forma documents in which the government simply swaps one expert’s name for another.
Indeed, the purported bases for Mr. Smith’s opinions are identical to the purported bases for Mr.
27 Proia’s opinions. Compare id. with EXPERT000248.
28
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1 defense counsel cannot devise Daubert challenges (or determine whether such challenges are
2 warranted) in the absence of this information.
3
Compounding defense counsel’s dilemma in this instance, the government has noticed Mr.
4 Smith to give expert testimony about a subject for which the government has yet to provide any
5 factual discovery. According to the government’s disclosure, Mr. Smith will opine about a 9mm
6 handgun that was “recovered on or about October 28, 2009.” Id. That opinion, apparently, will be
7 that this handgun was “one of the weapons discharged during the February 19, 2009 crimes.” Id.
8 Undersigned counsel, however, have received no discovery from the government concerning the
9 nature of this weapon, the circumstances of its recovery, or the evidence linking it to the Daly City
10 shootings.8 Lacking even the most basic information about a weapon that will be the subject of
11 expert testimony, Mr. Herrera (like his co-defendants) is simply unable to challenge the
12 admissibility of any such expert opinion.
13
B. In General, Firearms-Related Testimony Is Inadmissible Under Daubert and
Kumho Tire
14
As noted above,
15
16
17
18
19
20
21
22
23
24
25
26
joins in the arguments advanced by co-defendant J
concerning the inadmissibility of firearms-related evidence under Daubert and
Kumho Tire. See Docket No. 1837. For the reasons stated by
Mr. Smith’s
testimony should be excluded even if the government were permitted able to cure the deficiencies
in its expert notice.
VI.
THOMAS ROGERS
The government has noticed Thomas Rogers to testify “about the medical examination he
conducted on murder victim Moises Frias.” EXPERT000296. Specifically, Dr. Rogers will
testify “as to the cause of death and the nature of the injuries suffered, including testimony about
the travel of the bullets striking the victim.” Id. This testimony is purportedly based on Dr.
Rogers’s “experience and training and his autopsy of the victim.” Id.
8
Undersigned counsel have requested all such discovery from the government, but have
27 not yet received any response. See Cohen Decl. Ex. 2.
28
16
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While the government’s summary of Dr. Rogers’s anticipated testimony fails to supply his
2 actual opinions concerning any of the enumerated topics, the summary incorporates by reference
3 Dr. Rogers’s autopsy report. In that report, Dr. Rogers does opine concerning the cause of death
4 and the nature of the victim’s injuries.
5
The autopsy report also contains certain opinions concerning the direction that certain
6 bullets may have traveled upon entering the victim’s body. However, the autopsy report does not
7 express any opinion concerning the location of the weapon(s) and/or shooter(s) in relation to the
8 victim. Accordingly, Dr. Rogers should not be permitted to offer an expert opinion on this
9 subject. Any opinion concerning the trajectory of any bullet that is not disclosed in the autopsy
10 report should likewise be excluded.
Conclusion
11
12
For the foregoing reasons, the Court should exclude, in whole or part, government experts
13 Annie Hoang, Cynthia Fung, Joanne Del Bene, Mark Proia, Gerard Andrew Smith, and Thomas
14 Rogers from testifying at trial.
15
For the reasons stated herein,
expressly reserves the right to bring
16 supplemental or additional challenges to the government’s noticed experts upon receipt of
17 compliant disclosures, all relevant discovery, and sufficient opportunity to review the same
18 consistent with his rights under the Fourth, Fifth, Sixth and Eighth Amendments.
19
20 DATED: June 18, 2010
21
22
By
23
/s/
Attorney for
24
25
26
By
27
/s/
Attorney for
28
17
DEFENDANT
Case No.
Case
Document 1562
Filed 03/25/10 Page 1 of 18
1
2
3
4
5
6
7
8
9
CENTRAL DISTRICT OF CALIFORNIA
10
SOUTHERN DIVISION
11
12
Plaintiff,
13
v.
14
15
Defendant.
16
)
)
)
)
)
)
)
)
)
)
)
17
NO.
NOTICE OF MOTION; MOTION
IN LIMINE TO EXCLUDE TRIAL
TESTIMONY OF HECTOR
VELASQUEZ, ROBERT
MARQUEZ AND DAVID TORRES;
AUTHORITIES; EXHIBIT A
Trial Date: April 19, 2010
Trial Time: 8:00 a.m.
18
TO PLAINTIFF UNITED STATES OF AMERICA AND ITS ATTORNEYS OF
19
RECORD, UNITED STATES ATTORNEY ANDRE BIROTTE, AND ASSISTANT
20
UNITED STATES ATTORNEYS PETER HERNANDEZ AND KEVIN
21
ROSENBERG:
22
PLEASE TAKE NOTICE that on Monday, April 19, 2010, at 8:00 a.m., or as
23
soon thereafter as the matter may be heard in the courtroom of the Honorable David
24
O. Carter, United States District Judge, Defendant
25
his attorney of record
26
the trial testimony of Hector Velasquez, Robert Marquez and David Torres. This
27
motion is brought on the following grounds:
28
/
, by and through
will and hereby does move in limine to exclude
Case
1
Document 1562
(1)
The testimony is not the proper subject for expert testimony because it
2
will not assist the jury to understand the evidence or to determine the
3
fact in issue and is not sufficiently reliable, see Fed. R. Evid. 702;
4
(2)
regarding expert testimony, see Fed. R. Crim. P. 16(a)(1)(G);
5
6
The government has not complied with its discovery obligation
(3)
The testimony is hearsay, see Fed. R. Evid. 802, and its admission would
7
violate
8
and
9
(4)
right to confrontation, see U.S. Const. Amend. VI;
The testimony is irrelevant, see Fed. R. Evid. 402, and any probative
10
value of the testimony is substantially outweighed by the danger of
11
unfair prejudice, confusion of the issues, or misleading the jury, or
12
considerations of undue delay, waste of time, or needless presentation of
13
cumulative evidence, see Fed. R. Evid. 403.
14
Alternatively,
requests that, prior to admitting any “expert”
15
testimony by these witnesses, the Court conduct a hearing outside the presence of the
16
jury to determine whether the testimony is based upon sufficient facts or data, is the
17
product of reliable principles and methods, and whether the expert witness has
18
applied the principles and methods reliably to the facts of the case.
19
This motion is based on the attached Memorandum of Points and Authorities,
20
Exhibit A attached hereto, the files and records in this case, and any additional
21
argument that may be presented at or before the hearing on this motion.
22
Respectfully Submitted,
23
24
Dated: March 25, 2010
25
fendant
26
27
28
2
Case
Document 1562
1
TABLE OF CONTENTS
2
I.
INTRODUCTION
7
3
II.
ARGUMENT
7
4
A.
APPLICABLE LAW
5
1.
Expert Testimony
7
6
2.
Discovery of Expert Testimony
9
7
3.
Hearsay and Confrontation
9
8
4.
Relevance and Undue Prejudice
10
9
B.
10
HECTOR VELASQUEZ
11
C.
12
D.
14
16
17
18
19
20
21
22
23
24
25
26
27
28
14
THE COURT SHOULD EXCLUDE THE TESTIMONY OF
DAVID TORRES
III.
10
ROBERT MARQUEZ
13
15
CONCLUSION
17
19
Case
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
Cases
Crawford v. Washington,
541 U.S. 36, 24 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). . . . . . . . . 10, 15, 17, 20
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). . . . . . . . . . . . . . 7, 9
Kumho Tire Co. v. Carmichael,
526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). . . . . . . . . . . . . . . 7, 9
Melendez Diaz v. Massachusetts,
557 U.S. ___, 129 S. Ct. 2527, 147 L. Ed. 2d 314 (2009) . . . . . . . . . . . . . . . 11
Mukhtar v. California State Univ.,
299 F.3d 1053 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003). . . 9
United States v. Johnson,
587 F.3d 625 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14, 17, 19
United States v. Mejia,
545 F.3d 179 (2d Cir. 2008) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14, 17, 19
18
Federal Statutes
19
18 U.S.C. § 1959(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
20
18 U.S.C. § 1962(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
21
18 U.S.C. § 1962(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
22
21 U.S.C. § 846 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
23
Federal Rules
24
Fed. R. Evid. 401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
25
Fed. R. Evid. 402. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11, 15, 17, 20
26
Fed. R. Evid. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 11, 15
27
Fed. R. Evid. 702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 11, 14, 17, 19
28
Fed. R. Evid. 703. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-11, 14, 17, 20
ii
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Fed. R. Evid. 801(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Fed. R. Evid. 802. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10, 17, 20
Fed. R. Crim. P. 16(a)(1)(G). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16, 18, 19
Fed. R. Crim. P. 16(d)(2)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16, 19
6
7
8
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iii
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1
MEMORANDUM OF POINTS AND AUTHORITIES
2
I.
3
INTRODUCTION
4
The second superseding indictment charges
with
5
racketeering in violation of 18 U.S.C. § 1962(c) (count one), conspiracy to commit
6
racketeering in violation of 18 U.S.C. § 1962(d) (count two), conspiracy to distribute
7
drugs in violation of 21 U.S.C. § 846 (count three), and assault resulting in serious
8
bodily injury for the purporse of increasing or maintaining his position in the
9
racketeering enterprise in violation of 18 U.S.C. § 1959(a)(3).
10
has
pleaded not guilty and jury trial is set for April 19, 2010.
11
The government seeks to present “expert” testimony from three law
12
enforcement officers – Sergeant Hector Velasquez of the Los Angeles Sheriff’s
13
Department, Special Agent Robert Marquez of the California Department of
14
Corrections and Rehabilitation, and Detective David Torres of the Los Angeles
15
Police Department.
16
reasons. First, the proposed testimony is not the proper subject of expert testimony
17
because it will not assist the jury to understand the evidence or to determine the fact
18
in issue and is not sufficiently reliable. Second, the government has not provided the
19
required summary of the testimony. Third, the testimony is hearsay, and its
20
admission would violate
21
testimony is irrelevant and unduly prejudicial, would confuse the issues, and would
22
waste the Court’s time.
moves to exclude this testimony for several
right to confrontation. Fourth, much of the
23
II.
24
ARGUMENT
25
A.
APPLICABLE LAW
26
1.
27
Expert testimony is relevant only when “scientific, technical or other
28
specialized knowledge will assist the trier of fact to understand the evidence or to
Expert Testimony
3
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1
determine the fact in issue . . . .” Fed. R. Evid. 702. Moreover, for such testimony to
2
be sufficiently reliable for admission, it must be “based upon sufficient facts or data,”
3
it must be “the product of reliable principles and methods,” and the witness must
4
have “applied the principles and methods reliably to the facts of the case.” Id.
5
As the “gatekeeper” to the admission of expert testimony, the Court must make
6
these preliminary findings of relevance and reliability regardless of whether the
7
proposed expert testimony is based on scientific knowledge, see Daubert v. Merrell
8
Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469
9
(1993), or whether the proposed expert testimony is based on technical or other
10
specialized knowledge, see Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-50,
11
119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999); see also Advisory Committee Notes, Fed.
12
R. Evid. 702, 2000 amend. (proposed expert testimony based on specialized
13
knowledge is not treated more permissibly “simply because it is outside the realm of
14
science” but rather “should receive the same degree of scrutiny for reliability as an
15
opinion from an expert who purports to be a scientist”). The Court’s “‘special
16
obligation’ to determine the relevance and reliability of an expert’s testimony . . . is
17
vital to ensure accurate and unbiased decision-making by the trier of fact.” Mukhtar
18
v. California State Univ., 299 F.3d 1053, 1063 (9th Cir. 2002), amended by 319 F.3d
19
1073 (9th Cir. 2003).
20
While the facts or data on which an expert relies in forming an opinion or
21
inference on the subject “need not be admissible in evidence in order for the opinion
22
or inference to be admitted,” the facts or data must be “of a type reasonably relied
23
upon by experts in the particular field in forming opinions or inferences on the
24
subject . . . .” Fed. R. Evid. 703. Nonetheless, such “[f]acts or data that are otherwise
25
inadmissible shall not be disclosed to the jury by the proponent of the opinion or
26
inference unless the court determines that their probative value in assisting the jury to
27
evaluate the expert’s opinion substantially outweighs their prejudicial effect.” Id.
28
(emphasis added). The Court may not allow a proposed expert witness to “merely
4
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1
act[] as a transmitter for testimonial hearsay.” United States v. Johnson, 587 F.3d
2
625, 636 (9th Cir. 2009). Rather, such witness must be a “true expert whose
3
considered opinion sheds light on some specialized factual situation.” Id.; see also
4
United States v. Mejia, 545 F.3d 179, 198 (2d Cir. 2008) (expert testimony that
5
merely repeated hearsay statements without using independent expertise to reach an
6
opinion and was inadmissible under Federal Rule of Evidence 703).
7
2.
8
The government is required to produce in discovery a written summary of
Discovery of Expert Testimony
9
expert testimony that it intends to introduce at trial which “describe[s] the witness’s
10
opinons, the bases and reasons for thsose opinions, and the witness’s qualifications.”
11
Fed. R. Crim. P. 16(a)(1)(G). This rule was “intended to minimize surprise that often
12
results from unexpected expert testimony, reduce the need for continuances, and to
13
provde the opponent with a fair opportunity to test the merit fo the expert’s testimony
14
through focused cross-examination.” See Advisory Comm. Notes, Fed. R. Crim. P.
15
16, 1993 Amend. The Court may preclude the government from introducing such
16
testimony if it fails to provide the defendant with the required written summary. See
17
Fed. R. Crim. P. 16(d)(2)(C).
18
3.
19
“‘Hearsay’ is a statement, other than one made by the declarant while testifying
Hearsay and Confrontation
20
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
21
Fed. R. Evid. 801(c). Hearsay is not admissible unless otherwise provided by the
22
Federal Rules of Evidence or statute. Fed. R. Evid. 802.
23
The Sixth Amendment to the United States Constitution affords a criminal
24
defendant “the right . . . to be confronted with the witnesses against him . . . .” U.S.
25
Const. Amend. VI. The Confrontation Clause, as it is commonly known, precludes
26
the “admission of testimonial statements of a witness who did not appear at trial
27
unless he [is] unavailable to testify, and the defendant had a prior opportunity for
28
cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354,
5
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158 L. Ed. 2d 177 (2004); see also Melendez Diaz v. Massachusetts, 557 U.S. ___,
2
129 S. Ct. 2527, 2532, 147 L. Ed. 2d 314 (2009) (admission of affidavits regarding
3
forensic analysis of controlled substance violated defendant’s Sixth Amendment right
4
to confront the witnesses against him).
5
4.
6
Irrelevant evidence is not admissible. Fed. R. Evid. 402. Evidence is relevant
7
if it has “any tendency to make the existence of any fact that is of consequence to the
8
determination of the action more probable or less probable than it would be without
9
the evidence. Fed. R. Evid. 401. The Court may exclude relevant evidence “if its
Relevance and Undue Prejudice
10
probative value is substantially outweighed by the danger of unfair prejudice,
11
confusion of the issues, or misleading the jury, or by considerations of undue delay,
12
waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403.
13
B.
THE COURT SHOULD EXCLUDE THE TESTIMONY OF HECTOR
14
VELASQUEZ
15
The government seeks to offer testimony from Sergeant Hector Velasquez of
16
the Los Angeles Sheriff’s Department, who is one of the investigating officers in this
17
case, which it characterizes as “expert testimony” offered under Rules 702, 703 and
18
705 of the Federal Rules of Evidence. Specifically, the government seeks to have
19
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/
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/
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/
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/
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/
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/
28
/
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Sergeant Velasquez testify about the history of the F13 gang;1 the general nature of
2
the gang’s criminal activities;2 code words and terminology used by F13 gang
3
members and associates; the signs and symbols used by the gang, including the
4
“flashing” of signs and use of graffiti and tattoos; different cliques within the gang;
5
/
6
/
7
/
8
9
1
On this subject, the government proposes having Sergeant Velasquez
testify
as
follows:
10
The F13 gang started in the early 1950s. The gang began as a small
11
group of individuals who lived in and around the area of Florence
Boulevard, in and near Los Angeles, California. Initially, the gang was
12
primarily involved in street robberies, narcotic sales, and fighting with
rival gang members regarding turf battles. Through the years, however,
13
the gang has dramatically increased its membership by absorbing
smaller, less powerful gangs who could not successfully defend
14
themselves. By the late 1990s the F13 gang had become one of the
largest gangs in the United States. Sergeant Velasquez will testify that
15
approximately twenty-five (25) cliques or subsets of the F13 gang
control an area approximately three square miles in and around the
16
boundaries of South Los Angeles and the city of Huntington Park,
California. Additionally, Sergeant Velasquez will testify that F13 gang
17
members have also begun to surface in other states, including
Washington, Nevada, Colorado, New Mexico, Arizona, and Texas.
18
19 See Exh. A at 3-4.
20
2
The government proposes having Sergeant Velasquez testify to “the
21 hierarchy and leadership structure of the F13 gang.” Exh. A at 5. Specifically,
Sergeant Velasquez seeks to testify as follows:
22
F13 gang members are guided by individuals called “shot callers” who tend to
be older, more experienced F13 members that are known to have “put in work”
23
for the gang. These leaders command respect from other F13 gang members
and those leaders are responsible for disciplining its members. For example,
24
successful F13 gang members who have trafficked extensively in narcotics for
a long time are given a level of respect because of the perceived success and
25
riches that come with narcotics trafficking and the perception of taking care of
their fellow gang members. Additionally, the amount of time an F13 gang
26
member has spent in custody and the number of gang related crimes committed
by an F13 gang member while in custody and out of custody provides
27
opportunity for “shot caller” status.
28
Id.
7
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gang monikers; feuds between subsets within the gang;3 alliances and friendships
2
between F13 gang members and rival gangs (due to, among other things, narcotics
3
trafficking); the methods used by the gang to conceal evidence of crime and
4
contraband, for example the use of having someone take responsibility for higher
5
ranking F13 gang member’s or associate’s criminal activity; and the importance of
6
reputation within the F13 gang and how violent acts by F13 gang members and
7
associates increase their power and control within the gang. See Exh. A at 3. The
8
government seeks to offer Sergeant Velasquez’s opinion “concerning the gang’s
9
criminal activities, including narcotics trafficking, robbery, extortion, graffiti,
10
shooting into inhabited dwellings, drive by shootings, attempted murders and
11
murders,” and that “crimes such as narcotics trafficking, extortion and robberies
12
further the objectives of the F13 gang, because the proceeds from the illicit ventures
13
allows [sic] them to purchase weapons and commit crimes like murder, assaults with
14
deadly weapons and other crimes, which, in turn, allows F13 members to enhance
15
their intimidation and control over the area they control.” Id. The government’s
16
summary of Sergeant Velasquez’s proposed testimony is found a pages 3 to 6 of
17
Exhibit A attached hereto.
18
19
Sergeant Velasquez’s proposed testimony is not the proper subject of expert
testimony. His opinion about the commission and effect of particular crimes cannot
20
21
22
23
24
25
26
27
28
3
On this subject, the government proposes having Sergeant Velasquez
testify that “the F13 gang had internal conflicts amongst its members for control of
the leadership structure, especially after the ‘reglas’ were sent to the F13 gang by
Arturo Castellanos from Pelican Bay State Prison;” that “[t]his internal conflict
stemmed from various cliques deciding not to pay taxes to the representatives
Castellanos had appointed to the F13 gang area;” that this internal conflict “also
stemmed from a murder of an F13 gang member on June 14, 2005, which resulted in
the murder of another F13 gang member a few days later and a previous murder of
another F13 gang member on January 20, 2005;” and that “the specific feuds that the
F13 gang has had over the years with rival gangs . . . commence[d] simply by a
perceived disrespect amongst its gang members, a dispute over a drug transaction, or
territorial disputes that quickly escalate to violent acts.” Exh. A at 5-6. Sergeant
Velasquez’s opinions on these subjects are based on “his extensive interaction with
lower-level and high-ranking F13 gang members, as well as through his participation
in the federal task force designated to investigate the F13 gang.” Id. at 6.
8
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1
substitute for actual evidence that such crimes were committed and had the particular
2
effect which he believes that it had. Essentially, the government seeks to have
3
Sergeant Velasquez testify about what other law enforcement officers, gang
4
members, and community residents told him and then offer his opinion about the
5
significance of this information. See Exh. A at 3-4. This is not the proper subjects
6
for expert testimony, particularly by an investigating officer, because such testimony
7
is not “based upon sufficient facts or data,” is not “the product of reliable principles
8
and methods,” and the officer has not “applied the principles and methods reliably to
9
the facts of the case.” See Fed. R. Evid. 702. Rather, to the extent that the subjects
10
are relevant to the charges in the second superseding indictment, the government can
11
present testimony from percipient witnesses with first-hand knowledge of the facts to
12
which they are testifying, and the government can argue the significance of the
13
admissible evidence in its closing argument. The government cannot couch Sergeant
14
Velasquez as an expert so that he may “merely act[] as a transmitter for testimonial
15
hearsay.” Johnson, 587 F.3d at 635; see also Mejia, 545 F.3d at 198 (expert
16
testimony that merely repeated hearsay statements without using independent
17
expertise to reach an opinion was inadmissible).
18
Even if Sergeant Velasquez’s proposed testimony was the proper subject of
19
expert testimony, the hearsay statements on which his testimony is based, which are
20
not otherwise admissible for their truth, should not be disclosed to the jury because
21
they have little to no “probative value in assisting the jury to evaluate [Sergeant
22
Velasquez’s] opinion” which is the only legitimate purpose for which these out-of-
23
court statements may be introduced. See Fed. R. Evid. 703. Such minimal probative
24
value does not substantially outweigh the prejudicial effect of such testimony which
25
will arise if the jury considers the inadmissible hearsay on which Sergeant
26
Velasquez’s opinions are based for its truth. See id.
27
28
To the extent that Sergent Velasquez seeks to repeat statements that he learned
during the course of this investigation or other investigations, such statements are
9
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1
testimonial and, therefore, their admission would violate
2
confrontation. See Crawford, 541 U.S. at 53-54.
3
right to
Finally, Sergeant Velasquez’s opinion concerning the significance of particular
4
evidence should be excluded as irrelevant. See Fed. R. Evid. 402. As an
5
investigating officer in the case, it would not be surprising if Sergeant Velasquez
6
drew inculpatory inferences from the evidence. Such inferences are for counsel to
7
argue and for the jury to ultimately decide. Allowing the government to introduce an
8
investigating officer’s opinion that the evidence tends to prove that the defendants
9
are guilty is unduly prejudicial, would confuse the issues, and would waste the
10
Court’s time. See Fed. R. Evid. 403.
11
C.
THE COURT SHOULD EXCLUDE THE TESTIMONY OF ROBERT
12
MARQUEZ
13
Robert Marquez is a special agent with the California Department of
14
Corrections. The government proposes having Agent Marquez testify about “the
15
Mexican Mafia prison gang and its connection to the F13 gang.” Exh. A at 8.
16
Specifically, the government seeks to present the following testimony from Agent
17
Marquez:
18
He will describe, among other things, the “tax” collection (extortion)
19
business of the Mexican Mafia; how street gangs like the F13 gang
20
commit violent acts such as murder and assault for the benefit of the
21
Mexican Mafia in order to obtain credibility and protection from the
22
Mexican Mafia; the relationship between narcotics trafficking Los
23
Angeles street gangs and the Mexican Mafia; the structure and
24
development of prison gangs and their effect on Los Angeles street
25
gangs; the organization and rules of the Mexican Mafia; the meaning of
26
various gang terms; the Mexican Mafia’s use of the “green light” list to
27
target gang members in bad standing; the use of gang codes and prison
28
mail by gang members, and the ability of incarcerated gang members to
10
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1
control gang activities on the street through surrogates, third parties, and
2
other unincarcerated gang members.
3
Id. The government also proposes having Agent Marquez testify “about how
4
Mexican Mafia member Arturo Castellanos, while incarcerated at Pelican Bay state
5
prison, empowered and controlled F13 gang members to work under his direction for
6
his and the Mexican Mafia’s benefit.” Id. Agent Marquez’s proposed testimony is
7
“based on his personal interactions with Arturo Castellanos when he worked at
8
Pelican Bay State Prison, his investigations into the activities of Arturo Castellanos,
9
and his other training and experience . . . .” Id. At 8-9. The government provides no
10
additional information summarizing Agent Marquez proposed “expert” testimony or
11
the bases and reasons for his opinions.
12
The government’s summary of Agent Marquez’s proposed testimony does not
13
comply with its duty to provide the “the witness’s opinions [and] the bases and
14
reasons for those opinions . . . .” Fed. R. Crim. P. 16(a)(1)(G). The Court should
15
preclude the government from introducing such testimony unless and until it
16
provides the defendant with the required written summary. See Fed. R. Crim. P.
17
16(d)(2)(C).
18
Moreover, the government again seeks to present “expert” opinion testimony
19
in order to let inadmissible hearsay evidence in through the back door. The
20
government does not need an “expert” to testify about criminal activities of the
21
Mexican Mafia. If Mexican Mafia members committed crimes and those crimes are
22
relevant to the charges in this case, the government may introduce evidence of such
23
crimes with admissible evidence such as testimony of percipient witnesses and
24
properly authenticated exhibits. The Court should not permit the government to
25
overcome its lack of admissible evidence on these subjects by introducing otherwise
26
inadmissible evidence to explain the irrelevant opinion of a proposed expert. See
27
Johnson, 587 F.3d at 635 (court may not allow proposed expert witness to “merely
28
act[] as a transmitter for testimonial hearsay”); Mejia, 545 F.3d at 198 (expert
11
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1
testimony that merely repeated hearsay statements without using independent
2
expertise to reach an opinion was inadmissible).
3
Agent Marquez’s proposed testimony should be excluded because it is not the
4
proper subject of expert testimony and is not sufficiently reliable. See Fed. R. Evid.
5
702. The probative value of the inadmissible hearsay to understand Agent Marquez’s
6
opinion does not substantially outweigh the danger of unfair prejudice which will
7
result from the jury improperly considering the inadmissible hearsay for its truth. See
8
Fed. R. Evid. 703. Agent Marquez’s testimony should be excluded as hearsay, see
9
Fed. R. Evid. 802; and, to the extent that the out-of-court statements that the
10
government seeks to introduce through Agent Marquez were obtained during the
11
investigation of this case or any other case, such statements are testimonial and their
12
admission would violate
13
U.S. at 53-54. Finally, Agent Marquez’s opinions about the activities of the Mexican
14
Mafia should be excluded because they are not relevant to the charges in this case,
15
see Fed. R. Evid. 402, and any relevance would be substantially outweighed by the
16
danger of unfair prejudice to the defendants which would result if the jury considered
17
inadmissible hearsay for its truth, would confuse the issues, and would waste the
18
Court’s time.
19
D.
right to confrontation. See Crawford, 541
THE COURT SHOULD EXCLUDE THE TESTIMONY OF DAVID
20
TORRES
21
The government proposes having Detective David Torres, of the Los Angeles
22
Police Department testify “as an expert witness regarding the habits and behavior of
23
drug trafficking organizations and their members, including Mexican base trafficking
24
organizations and street gangs like the F13 gang.” Exh. A at 9. Specifically, the
25
government seeks to introduce the following testimony:
26
Detective Torres will testify about (1) how drug trafficking groups, such
27
as the F13 gang are organized, (2) methods used to import and distribute
28
drugs such as cocaine, crack cocaine, and methamphetamine, (3) the
12
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1
roles different people play in such an organization, (4) communication
2
methods, (5) transportation and distribution methods, including
3
obtaining residences in areas the organization controls in order to
4
facilitate the distribution of controlled substances, (6) payment methods,
5
(7) techniques used by drug traffickers and gang members to conceal
6
their illegal activities, including but not limited to, frequently changing
7
cellular telephones, using aka’s over the telephone, counter-surveillance
8
driving techniques, stash houses, and coded language.
9
10
11
Id. The government has not provided any further summary of this testimony or its
specific bases or reasons.
The government’s summary of Detective Torres’ proposed testimony does not
12
comply with its duty to provide the “the witness’s opinions [and] the bases and
13
reasons for those opinions . . . .” Fed. R. Crim. P. 16(a)(1)(G). The Court should
14
exclude this testimony unless and until the government provides the defendants with
15
the required written summary.4 See Fed. R. Crim. P. 16(d)(2)(C).
16
17
18
19
20
21
22
23
24
4
following:
The government also seeks to have Detective Torres testify about the
(8) the manufacturing of cocaine base in the form or crack . . . (9) the
meaning of certain words and phrases used by F13 members and
associates during the course of intercepted telephone calls, including
code words used for narcotics and proceeds from narcotics sales, (10) the
wholesale and “street” prices of cocaine, methamphetamine and
marijuana in the Los Angeles area, (11) the use and interpretation of
drug “pay and owe” sheets or “tally records” in this case and generally,
(12) the distribution and personal use quantities of the drugs involved in
this case such as cocaine, crack cocaine, and methamphetamine, (13) the
physical characteristics, manufacturing process, and properties of these
drugs, (14) how these drugs are packaged at the wholesale and street
level, and (15) how the drugs are separated, repackaged or altered during
the course of distribution.
25
Exh. A at 9.
agrees that testimony on these subjects would be proper for
an
expert
bec
ed
on specialized knowledge that would assist the jury in
26
understanding the evidence. See Fed. R. Evid. 702. However, the Court cannot
27 exercise its “gatekeeping” function to determine whether such expert testimony is
sufficiently reliable because the government has not produced the required summary
28 of this testimony which describes Detective Torres’ actual opinion and the bases and
reasons therefore. See Fed. R. Crim. P. 16(a)(1)(G). Unless and until the government
13
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1
Moreover, like the proposed testimony of Sergeant Velasquez and Agent
2
Marquez, this proposed testimony by Detective Torres essentially seeks to introduce
3
inadmissible hearsay offered under the guise of expert testimony. See Johnson, 587
4
F.3d at 635 (court may not allow proposed expert witness to “merely act[] as a
5
transmitter for testimonial hearsay”); Mejia, 545 F.3d at 198 (expert testimony that
6
merely repeated hearsay statements without using independent expertise to reach an
7
opinion was inadmissible). This proposed testimony by Detective Torres should be
8
excluded because it is not the proper subject of expert testimony and is not
9
sufficiently reliable. See Fed. R. Evid. 702. The probative value of the inadmissible
10
hearsay to understand Detective Torres’ opinion does not substantially outweigh the
11
danger of unfair prejudice which will result from the jury improperly considering the
12
inadmissible hearsay for its truth. See Fed. R. Evid. 703. Detective Torres’
13
testimony should be excluded as hearsay, see Fed. R. Evid. 802; and, to the extent
14
that the out-of-court statements that the government seeks to introduce through
15
Detective Torres were obtained during the investigation of this case or any other
16
case, such statements are testimonial and their admission would violate
17
18
right to confrontation. See Crawford, 541 U.S. at 53-54.
Finally, Detective Torres’ opinions about the activities of gangs and drug
19
trafficking groups in general should be excluded because they are not relevant to the
20
charges in this case. See Fed. R. Evid. 402. While
21
charged with conspiracy to distribute drugs, there will be no evidence at trial that any
22
drugs were ever seized from them, much less that they ever manufactured drugs or
23
imported drugs from Mexico. Any relevance of Detective Torres’ testimony
24
regarding the general practice of drug traffickers would be substantially outweighed
25
by the danger of unfair prejudice to the defendants which would result if the jury
and
are
26
27
satisfies the Court that expert testimony from Detective Torres meets the required
28 threshold for reliablity, the Court should exclude this testimony as well. See Fed. R.
Evid. 702.
14
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1
considered inadmissible hearsay for its truth, would confuse the issues, and would
2
waste the Court’s time.
3
III.
4
CONCLUSION
5
For the foregoing reasons, the Court should exclude the proposed “expert”
6
testimony of Sergeant Velasquez, Special Agent Marquez and Detective Torres.
7
Alternatively, prior to admitting any “expert” testimony by these witnesses, the Court
8
should conduct a hearing outside the presence of the jury to determine whether the
9
testimony is based upon sufficient facts or data, is the product of reliable principles
10
and methods, and whether the expert witness has applied the principles and methods
11
reliably to the facts of the case.
12
13
14
15
fendant
16
17
18
19
20
21
22
23
24
25
26
27
28
15
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2
3
4
5
6
7
8
9
10
SOUTHERN DIVISION
11
12
Plaintiff,
13
v.
14
15
Defendant.
16
)
)
)
)
)
)
)
)
)
)
)
NO.
IN LIMINE TO EXCLUDE
TESTIMONY OF SILENCER
EXPERT MICHAEL KNAPP;
AUTHORITIES
17
18
19
20
ROSENBERG:
21
22
23
24
25
testimony from silencer expert Michael S. Knapp.
26
/
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/
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/
, by and through
, will and hereby does move in limine to exclude
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Document 1564
This motion is brought on the ground that the testimony is irrelevant, see Fed.
2
R. Evid. 402, and any probative value of the testimony is substantially outweighed by
3
the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
4
considerations of undue delay, waste of time, or needless presentation of cumulative
5
evidence, see Fed. R. Evid. 403.
6
7
the files and records in this case, and any additional argument that may be presented
8
at or before the hearing on this motion.
9
10
11
12
fendant
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2
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Document 1564
with
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5
6
bodily injury for the purpose of increasing or maintaining his position in the
7
8
9
has
The government seeks to present expert testimony at trial from Officer Michael
10
S. Knapp of the Bureau of Alcohol, Tobacco and Firearms. Officer Knapp would
11
testify that an item seized from
12
silencer. See Exh. A to Mot. in Limine to Exclude Testimony of Hector Velasquez,
13
et al., at 12.
14
on August 30, 2005, was a
There is no evidence connecting the silencer seized from
15
on August 30, 2005, to
16
Accordingly, the proposed testimony by Officer Knapp is irrelevant and should be
17
excluded. See Fed. R. Evid. 402. Testimony about a silencer is highly prejudicial.
18
Therefore, any probative value that such testimony might have is substantially
19
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
20
the jury, or by considerations of undue delay, waste of time, or needless presentation
21
of cumulative evidence.” See Fed. R. Evid. 403.
or the remaining codefendant
22
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/
26
fendant
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3
.
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SOUTHERN DIVISION
11
12
Plaintiff,
13
v.
14
15
Defendant.
16
17
)
)
)
)
)
)
)
)
)
)
)
NO.
TESTIMONY OF FORENSIC
CHEMISTS TAMMY KLEIN,
JAMES BAILEY AND MICHAEL
BROUSSEAU; MEMORANDUM
OF POINTS AND AUTHORITIES
18
19
20
21
ROSENBERG:
22
23
24
25
26
testimony from forensic chemists Tammy Klein, James Bailey and Michael
27
Brousseau.
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/
, by and through
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Document 1556
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3
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7
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fendant
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26
27
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2
Case
1
Document 1556
2
with
3
4
5
6
7
8
9
has
The government seeks to present testimony at trial from three forensic
10
chemists. Specifically, Tammy Klein of the Los Angeles County Sheriff’s
11
Department seeks to testify about her analysis of controlled substances that the
12
government seized on April 21, 2000. James Bailey of the Los Angeles County
13
Sheriff’s Department seeks to testify about his analysis of controlled substances that
14
the government seized on August 30, 2005. Michael Brousseau of the United States
15
Drug Enforcement Administration seeks to testify about his analysis of controlled
16
substances that the government seized on May 10, 2005; May 26, 2005; August 25,
17
2005; August 30, 2005; November 30, 2005; February 17, 2005; March 3, 2006; and
18
March 7, 2006. See Exh. A to Motion in Limine to Exclude Testimony of Hector
19
Velasquez, Robert Marquez and David Torres, at 11.
20
These controlled substances were not seized from
21
or codefendant
Moreover, the government will offer no evidence at trial that either
22
or
participated in any plan to distribute these controlled
23
substances. Accordingly, the proposed testimony by the forensic chemists is
24
irrelevant and should be excluded. See Fed. R. Evid. 402. Alternatively, the forensic
25
chemists’ proposed testimony should be excluded because any probative value that it
26
may have is substantially outweighed by the danger of unfair prejudice, confusion of
27
/
28
/
3
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1
the issues, or misleading the jury, or by considerations of undue delay, waste of time,
2
or needless presentation of cumulative evidence.” See Fed. R. Evid. 403.
3
4
5
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/
7
ndant
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Case
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SOUTHERN DIVISION
11
12
Plaintiff,
13
v.
14
15
Defendant.
16
17
)
)
)
)
)
)
)
)
)
)
)
NO.
TESTIMONY OF CORONERS
SOLOMON L. RILEY, IRWIN L.
GOLDEN AND AJAY J.
PANCHAL; MEMORANDUM OF
POINTS AND AUTHORITIES
18
19
20
21
ROSENBERG:
22
23
24
25
26
testimony from Los Angeles County Coroners Solomon L. Riley, Irwin L. Golden
27
and Ajay J. Panchal.
28
/
/
, by and through
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3
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fendant
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14
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24
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26
27
28
2
Case
1
2
Document 1557
with
3
4
5
6
7
8
has
9
The government seeks to present testimony at trial from three Los Angeles
10
County Coroners. Specifically, Solomon L. Riley, M.D. seeks to testify about the
11
autopsy he performed on Juan Ibarra (aka “Johnny Ibarra”) on June 20, 2005. Irwin
12
L. Golden, M.D. seeks to testify about the autopsy he performed on Victor Briseno
13
(aka “Bugsy”) on June 16, 2005. Ajay J. Panchal, M.D. seeks to testify about the
14
autopsy he performed on Phillip Villa (aka “Popeye”) on January 24, 2005. See Exh.
15
A to Motion in Limine to Exclude Testimony of Hector Velasquez, Robert Marquez
16
and David Torres, at 11.
17
and codefendant
are not charged with murder.
18
Moreover, they are not charged with any violent crime relating to Phillip Villa.
19
Therefore, Dr. Panchal’s proposed testimony regarding Mr. Villa’s testimony should
20
be excluded as irrelevant. See Fed. R. Evid. 402. Alternatively, Dr. Panchal’s
21
proposed proposed testimony should be excluded because any probative value that it
22
may have is substantially outweighed by the danger of unfair prejudice, confusion of
23
the issues, or misleading the jury, or by considerations of undue delay, waste of time,
24
or needless presentation of cumulative evidence.” See Fed. R. Evid. 403.
25
Codefendant Lizandro Rincon is charged with conspiring to murder Johnny
26
Ibarra, see Second Sup. Ind. at 10-11, 31-32, whose autopsy is the subject of Dr.
27
Riley’s proposed testimony. However, the second superseding indictment does not
28
allege that
or any other named coconspirator actually committed this
3
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1
murder. Rather, the second superseding indictment alleges that “unknown
2
coconspirators shot and killed F13 Gang member Johnny Ibarra.” See Second Sup.
3
Ind. at 22. Absent some evidence at trial that
4
person who shot and killed Johnny Ibarra, Dr. Riley’s testimony about Johnny
5
Ibarra’s cause of death is irrelevant and should be excluded. See Fed. R. Evid. 402.
6
Alternatively, Dr. Riley’s testimony should be excluded because any probative value
7
that his testimony might have is substantially outweighed by the danger or unfair
8
prejudice and confusion of the issues as the jury may improperly infer that the fact
9
that Johnny Ibarra was shot and killed tends to prove that
10
11
actually conspired with the
actually
conspired to do so. See Fed. R. Evid. 403.
Presumably, the government seeks to introduce evidence at trial that Johnny
12
Ibarra murdered Victor Briseno to show codefendant
13
motive for conspiring to murder Mr. Ibarra. Even if evidence of Mr. Briseno’s
14
murder was relevant to prove
15
Mr. Briseno’s autopsy is not relevant to
16
excluded. See Fed. R. Evid. 402. Moreover, any probative value that Dr. Golden’s
17
testimony might have on the issue of
18
outweighed by the danger of unfair prejudice, confusion of the issues, and wasting
19
the Court’s time. See Fed. R. Evid. 403.
purported
motive, Dr. Golden’s testimony regarding
motive and should be
motive is substantially
20
21
22
23
/
24
ndant
25
26
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28
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1
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7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9
11
For the Northern District of California
United States District Court
10
Plaintiff,
12
13
No.
v.
14
, et al.,
15
Defendants.
ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANTS’ MOTIONS RE
EXPERT WITNESS DISCLOSURES
/
16
17
INTRODUCTION
18
On April 26, 2010, the government made its Rule 16(a)(1)(G) expert disclosures for
19
24 experts that the government intends to use in its case-in-chief in this RICO gang prosecution.
20
Defendants now bring two sets of motions regarding these expert disclosures. First, defendants
21
assert that the government has not adequately disclosed the opinions about which its experts will
22
testify. Second, defendants assert that the government has not adequately disclosed the
23
foundation, bases and reasons for all of its experts’ opinions. Defendants seek to delay the filing
24
of Daubert motions challenging these government experts — currently due on June 18, 2010 —
25
until the government has provided proper disclosures and counsel have had adequate time to
26
review them.
27
28
STATEMENT
This is a RICO/VICAR prosecution of an alleged gang called Mara Salvatrucha, also
known as “MS-13.” The grand jury indictment charged 31 Bay Area defendants with RICO
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1
conspiracy, conspiracy to commit murder and assault with a dangerous weapon in aid of
2
racketeering, and various non-RICO narcotics, assault and vehicle-related crimes. One hundred
3
twenty overt acts were alleged. Six of the defendants are eligible for the death penalty, although
4
the government has not yet filed statutory notice of intent to seek the death penalty against any of
5
the death-penalty eligible defendants. This prosecution has been pending more than two years
6
with almost all of the accused still in custody.
7
The first scheduling order (Dkt. No. 265) was issued fifteen months ago after the
8
government fell behind on its own proposed discovery-disclosure schedule and the case bogged
9
down in gridlock. It set a deadline of September 14, 2009, for the government to produce its
10
required expert materials under Rule 16(a)(1)(G). The government, however, missed this filing
11
deadline. An order followed advising the government that it “must do much better” with regard
12
to meeting deadlines (Dkt. No. 774). The Court order stated that the government’s failure to
13
comply with the September 14 expert disclosure deadline in particular was “so discouraging” that
14
it would wait until the government could submit a firm date by which it could produce the
15
required documents before settling on a revised scheduling order (Dkt. No. 781).
16
The revised and current scheduling order issued on December 17, 2009 (Dkt. No. 998).
17
It scheduled defendants for trial by chapters. The simplest cases, chiefly defendants not charged
18
with RICO conspiracy, were to be tried first. Those cases are now done. The main body of
19
accuseds, RICO defendants not facing the death penalty, was set for trial in September 2010.
20
Finally, any death-notified defendants were set for trials beginning in August 2011. The new
21
deadline for the government to produce its expert disclosures for the trial in September 2010 was
22
set for April 26, 2010. A summary was provided by the due date but its adequacy is now
23
challenged.
24
25
ANALYSIS
Rule 16(a)(1)(G) requires that the government provide a summary of the opinions of its
26
experts to be used during its case-in-chief. The rule requires that “[t]he summary provided under
27
this subparagraph must describe the witness’s opinions, the bases and reasons for those opinions,
28
and the witness’s qualifications.” The Advisory Committee Note to the 1993 Amendment stated
2
Document1821
1
that the bases and reasons must be sufficient to allow counsel to frame a Daubert motion (or other
2
motion in limine), to prepare for cross-examination, and to allow a possible counter-expert to
3
meet the purport of the case-in-chief testimony. The summary of bases relied upon by the expert
4
“should cover not only written and oral reports, tests, reports and investigations, but any
5
information that might be recognized as a legitimate basis for an opinion under Federal Rule of
6
Evidence 703, including opinions of other experts.” The comment also stated, however, that
7
where a witness is so “generic” and routine (such as a DEA laboratory chemist) that the testimony
8
will be largely predictable, a shorthand summary of the witness’s qualifications and testimony
9
may be adequate.
10
The majority of the 24 expert summaries disclosed by the government adequately describe
11
the expert’s opinions, the bases and reasons for those opinions, and the witness’s qualifications.
12
For example, for Linda Abaun, a gunshot residue analyst, the government provided the following
13
summary of her opinion (Leung Decl. Exh. A at EXPERT000001):
14
Among other things, Abaun will testify about the analysis of
gunshot residue swabs taken from Erick Lopez and Carlos Garrido
on or about January 8, 2006. She will testify that both Lopez and
Garrido had gunshot residue on at least one hand, which suggests
that Lopez and Garrido either fired a gun, was in close proximity to
a gun as it was discharged, and/or touched a gun or other object
with gunshot residue on it. See, e.g., EXPERT00005 (attached
hereto and incorporated by reference herein).
15
16
17
18
The phrase “among other things” is problematic and is addressed in the footnote below.1
19
“EXPERT00005” referred to an attachment provided to the defense including the laboratory
20
examination report prepared by Ms. Abaun summarizing the gunshot residue analysis at issue.
21
The government’s summary for Ms. Abaun also summarized the bases and reasons for her
22
opinion:
23
Abaun’s testimony will be based on her experience and training
and her analysis of gunshot residue samples collected from Lopez
24
25
1
26
27
28
Defendants also complain that the expert notices describe the subject of each expert’s testimony as
“among other things” about which the expert will testify. In opposition, the government asserts that this phrase
serves only to provide notice to defendants that the summaries may not specify every detail of the testimony.
This order takes the government at its word. Certainly, Rule 16(a)(1)(G) requires only a summary of an expert’s
testimony, bases and reasons, and not every detail. Expert witnesses shall not, however, be permitted on the
basis of the phrase “among other things” to testify on undisclosed opinions, bases and reasons not disclosed in
the government’s summaries.
3
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and Garrido on or about January 8, 2006, which confirmed that
gunshot residue particles — notably lead, barium, and antimony —
were detected in samples taken from Lopez and Garrido.
2
3
The laboratory examination report (appended to the summary) described the results of this
4
analysis in greater detail. The government additionally provided a copy of Ms. Abaun’s
5
curriculum vitae and summarized her qualifications:
6
Abaun has worked as a Criminalist for the San Francisco Police
Department since 2006. Prior to that, she worked as a Forensic
Scientist for Forensic Analytical in Hayward, California.
She received a Bachelor of Science degree in biochemistry from
U.C. Santa Barbara in 1998, and then received a Master of Science
degree in criminal justice specializing in forensic science from
Michigan State University in 2000. She has also received
additional training since completing her formal education.
7
8
9
10
to understand the bases and reasons underlying her opinions: (1) any literature relied upon by
Defendants seek additional government disclosures which they contend are necessary
11
12
her in testifying about the subject testimony, (2) lists of cases testified in during the last four
13
years, (3) copies of transcripts of previous testimony, (4) bench notes, diagrams or other notes
14
created during the process of drafting typewritten reports, (5) copies of standard operating
15
procedures, procedures manuals or other criteria followed by her and (6) results of proficiency
16
testing.
17
Rule 16(a)(1)(G) does not require recitation of the chapter and verse of the experts’
18
opinions, bases and reasons. No rule, statute, or decision necessitates such comprehensive
19
disclosure. The government has provided adequate bases and reasons as to Ms. Abaun for
20
counsel to frame a Daubert motion or other motion in limine, to prepare for cross-examination,
21
and to allow a possible counter-expert to meet the purport of the case-in-chief testimony.
22
This is sufficient to meet the government’s obligations under Rule 16(a)(1)(G).
23
It is true that at a Daubert hearing, counsel may want additional records for purposes of
24
cross-examining Ms. Abaun. Counsel may attempt to obtain the additional information they
25
seek by filing subpoenas on the SFPD or the witnesses as appropriate.2
26
27
2
28
An October 2009 order declined to hold that the SFPD and other state and local agencies were per se
“lead investigative agents” such that the government’s Brady obligation would extend to materials in their
possession (Dkt. No. 692).
4
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2
3
4
5
6
7
*
*
*
Similarly, the government provided the following summary for Venus Azar, a medical
examiner for the San Francisco Medical Examiner’s Office:
Among other things, Azar will testify about the medical
examinations she conducted on two murder victims, Ernad Joldic
(slain on March 28, 2008) and Ivan Miranda (slain on July 31,
2008). For each victim, she will testify as to the cause of death
and the nature of the injuries suffered, i.e., Joldic was slain by
gunshot wounds will Miranda was slain by stab wounds. See,
e.g., EXPERT00007–EXPERT00033 (attached hereto and
incorporated by reference herein).
8
Bases and reasons
9
Azar’s testimony will be based on her experience and training —
including her specialized medical training — and the autopsy she
performed on each of the victims.
11
Qualifications
10
12
13
14
15
16
17
18
Azar has worked as an Assistant Medical Examiner for the San
Francisco Medical Examiner’s Office since 2000. Prior to that,
she was employed as an Assistant Medical Examiner for the cities
of Richmond and Hanover, in Virginia. She received her
Baccalaureate’s degree in biology from Oregon State University
in 1987 and her Doctor of Medicine degree from Oregon Health
Science University in 1992. She was then a resident at the New
York Presbyterian Hospital between 1993 and 1998, and then a
forensic pathology fellow in the Office of the Chief Medical
Examiner in Richmond, Virginia, from 1998 through 1999.
She has also received additional training since completing her
formal education.
19
“EXPERT00007–EXPERT00033” refer to the medical examiner’s reports for the two
20
murder victims about whom Dr. Azar’s opinion shall be offered. These appendices described
21
in detail the examination and analysis performed by Dr. Azar, as well as her conclusions.
22
Dr. Azar’s curriculum vitae was also appended.
23
Assessing its disclosures, the government has provided and adequate disclosure of her
24
opinions as to the cause of death and nature of wounds suffered by the victims examined by
25
Dr. Azar, as well as the bases and reasons. The latter may be gleaned from the detailed autopsy
26
report. This is sufficient. Again, defendants may seek to subpoena additional materials from the
27
San Francisco Medical Examiner’s Office if so desired for a Daubert challenge.
28
5
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It is unnecessary to analyze all 24 of the experts disclosed by the government in this
manner. Instead, this order shall focus only on those experts for whom the government’s
3
disclosures fall short of the requirements of Rule 16(a)(1)(G).
5
2
4
Document1821
*
*
*
Defendants challenge the adequacy of the government’s disclosures regarding the
6
opinions of its four “electronics experts” who downloaded the contents of various devices.
7
With respect to three of these experts — ICE Special Agents Walter Hart, James Munjone and
8
Kendrick Yeung — the government’s one-sentence summary of their proposed opinions is
9
identical: “Among other things, [the witness] will testify about the procedures he employed to
10
download the contents of electronic devices such as computers, cellular telephones, and other
11
electronic devices so that the contents could be reviewed” (id. at EXPERT0000152 (Hart),
12
EXPERT000293 (Munjone), EXPERT000331 (Yeung)). Similarly, the government’s summary
13
of the opinion of its fourth electronics expert, San Mateo County Crime Analyst Jennifer Carr,
14
states merely, “Among other things, Carr will testify about the procedures she employed to
15
download the contents of electronic devices, notably, a cellular telephone recovered from Danilo
16
Velasquez” (id. at EXPERT000337).
17
Defendants argue that these summaries fail to describe each “witness’s opinions” as
18
required by Rule 16(a)(1)(G), and instead merely describe what each witness did. As noted
19
above, however, the Advisory Committee Note to Rule 16(a)(1)(G) stated that where a witness is
20
“generic” and routine such that her testimony will be largely predictable, a shorthand summary
21
of the witness’s qualifications and testimony may be adequate. This order finds that
22
downloading alpha-numeric information from electronic storage devices in this modern era is
23
routine, and will not exclude the witnesses on that basis.
24
Nevertheless, the government’s disclosures for Agents Hart, Munjone and Yeung are
25
inadequate because they do not identify any of the specific electronic devices which these
26
experts downloaded. (Only defendant Velasquez’s cellular telephone which was downloaded by
27
Ms. Carr is identified in the government’s disclosures.) This is insufficient to allow counsel to
28
frame a Daubert motion or other motion in limine, to prepare for cross-examination, or to allow
6
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a possible counter-expert to meet the purport of the case-in-chief testimony. These violate
2
Rule 16. Ms. Carr shall be permitted to testify regarding the download of defendant
3
phone. To the extent that defendants wish to obtain the protocol she used to download the
4
information, they shall be required to subpoena it from San Mateo County.
6
7
8
9
10
11
1
5
Document1821
*
*
*
The government’s summary for Niki Zamora, a forensic specialist for the San Mateo
Sheriff’s Office Forensic Laboratory, states (Leung Decl. Exh. A at EXPERT000334):
Zamora will testify about participating in the examination of a
stolen Honda that was recovered in San Francisco on or about
February 20, 2009, which was suspected as being the vehicle used
by the gunmen in the murder of Moises Frias (and the shooting of
several other individuals) on February 19, 2009, in the vicinity of
the Daly City BART Station in Daly City. She helped collect
gunshot residue and DNA samples, as well as fingerprints, from
the vehicle.
12
This summary fails to specify what opinions Ms. Zamora will offer, much less the
13
evidence taken from the Honda about which she will be testifying. It also does not link her
14
summary to specific forensic reports or other attachments. While Rule 16(a)(1)(G) does not
15
require the disclosure of the entire basis of the experts’ opinions, the government’s disclosure
16
falls far short. A forensic specialist analyzing gunshot residue, DNA samples and fingerprints
17
cannot be considered perfunctory. The Zamora disclosure violates Rule 16.
18
*
*
*
19
Finally, defendants challenge the adequacy of the government’s summaries of the
20
proposed testimony of two of its gang experts LAPD Detective Frank Flores, SFPD Sergeant
21
Dionn McDonnell, and SFPD Sergeant Mario Molina. The summary for Detective Flores,
22
among other things, stated that he “will testify regarding MS-13 tattoos, symbols, codes, colors
23
and graffiti, and how they are used to communicate” (Leung Decl. Exh. A at EXPERT000066).
24
The summary, however, provided no clue as to what Detective Flores’s opinions would be
25
regarding those tattoos, symbols, codes, colors and graffiti, or how they are used to
26
communicate. Similarly, the summary of Sergeant McDonnell stated that he would “testify
27
regarding gang rules and policies, about the San Francisco clique’s activities and past
28
membership, about its clashes with rival gangs, its symbols, colors, tattoos, and graffiti, its codes
7
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1
and slang, and about its connections with other cliques outside the Bay Area, including MS-13
2
leadership in Los Angeles and El Salvador” (id. at EXPERT000278). But the summary did not
3
provide any indication of Sergeant McDonnell’s actual opinions regarding these subjects, much
4
less any bases and reasons.
5
Document1821
On May 17, 2010, prior to the hearing on the present motions, the government disclosed
6
amended expert summaries of Detective Flores and Sergeant McDonnell (Alvarado Reply
7
Exh. A). These elaborated summaries described the witnesses’ proffered (but not the bases)
8
opinions in somewhat more detail.3 But they were produced 21 days after the deadline. It is
9
hard to continue to excuse so many repeated violations by the government of its due dates,
10
including due dates it stipulated to, if not proposed. Given, however, that the defense needs a
11
trial continuance anyway, the government will be allowed an opportunity to cure, subject to the
12
substantive evidentiary difficulty now discussed.
13
*
14
*
*
The substantive concern is this: Should police officers be allowed to testify as “experts”
15
to supply opinions in place of hard facts to prove elements of an offense? Leading up to the
16
hearing, the government was ordered to show cause why the proposed testimony of
17
Detective Flores, Sergeant McDonnell and Sergeant Molina should be admitted at all in the
18
case-in-chief, especially as to the history and evolution of MS-13, its structure, its rules, and its
19
operations as a criminal enterprise, given that these are key elements to be proven for the RICO
20
counts.
21
No one should be convicted and sent to prison based on an opinion of a police officer that
22
an element of an offense was committed when that element is amenable to ordinary fact proof.
23
The reason we have jury trials, place the burden of proof on the government, and require
24
unanimity is to insist that the government to prove the facts of a crime. One of the key elements
25
of a RICO conspiracy is the structure, organization, and management of the affairs of a
26
27
28
3
For example, the government’s new disclosure for Officer Flores states that his opinion that “the
gang has certain rules, including rules requiring members to confront and attack rival gang members and others
targeted by the gang, retaliating against rival gang members’ attacks, prohibiting cooperation with law
enforcement, and requiring discipline for violations of gang rules, which could include beating or, at its most
extreme, death, and supporting the gang through dues” (Goldrosen Decl. Exh. A at 1).
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1
racketeering enterprise, all as they relate to conducting the affairs of an enterprise through a
2
pattern of racketeering activity. Juries are good at sorting out the facts, deciding, for example,
3
what, if any structure resides within a particular gang. Juries would ordinarily rely on fact
4
witnesses, such as cooperating witnesses and undercover officers, to supply the facts. They do
5
not need police opinions to do this. Under Rule 702, expert testimony is reserved for opinions
6
that will assist the trier of fact. Moreover, criminal trials should not be allowed to degenerate
7
into a “battle of experts,” for plainly the defense would want to put on its own opinion
8
testimony. A battle of experts would risk confusion, waste time, and draw attention away from
9
the hard facts themselves. This should be avoided under Rule 403.
10
Here, the main thrust of the proffer will not assist the trier of fact. The way MS-13
11
operated and its structure should be proven with facts, not opinions, at least on quintessential fact
12
questions. The racketeering organization alleged to exist in this case is the MS-13 gang itself.
13
The gang’s existence, organization and history should, therefore, be proven through undercover
14
officers, cooperating witness, admissions by defendants, co-conspirator statements, physical
15
evidence, documents, videos and photographs, wiretaps, and recordings. Sergeant McDonnell
16
and Sergeant Molina, if not Detective Flores, were investigators in this very matter. It is no
17
doubt true that in the course of their police work, they developed opinions on the accuseds and
18
their alleged criminal organization. But those are mere opinions by highly partisan players.
19
Such shortcut proof for key elements of a crime like racketeering and organizational
20
structures in a RICO prosecution should be viewed with skepticism. In United States v. Mejia,
21
545 F.3d 179, 195 (2d Cir. 2008), the Second Circuit vacated convictions for
22
racketeering-related crimes because, inter alia, expert testimony by police officer about activities
23
of the gang to which defendants belonged was an impermissible “shortcut” to establish elements
24
of charged offenses:
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[I]t is a little too convenient that the Government has found an
individual who is expert on precisely those facts that the
Government must prove to secure a guilty verdict — even more
so when that expert happens to be one of the Government’s own
investigators. Any effective law enforcement agency will
necessarily develop expertise on the criminal organizations it
investigates, but the primary value of that expertise is in
facilitating the agency’s gathering of evidence, identification of
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targets for prosecution, and proving guilt at the subsequent trial.
When the Government skips the intermediate steps and proceeds
directly from internal expertise to trial, and when those officer
experts come to court and simply disgorge their factual
knowledge to the jury, the experts are no longer aiding the jury in
its factfinding; they are instructing the jury on the existence of
the facts needed to satisfy the elements of the charged offense.
United States v. Mejia, 543 F.3d 179 at 191.
The government correctly points out that in Hankey, Padilla and Takahashi, the Ninth
7
Circuit has allowed the introduction of law enforcement expert opinion regarding the existence,
8
structure, and history of gangs. In each of the cases relied upon by the government, however,
9
such expert testimony was allowed only as rebuttal testimony and for the limited purpose of
10
impeaching a defense witness. In United States v. Hankey, 203 F.3d 1160, 1164 (9th Cir. 2000),
11
the court permitted expert testimony regarding a gang’s “code of silence” to provide the jury
12
with an explanation for why a defendant would lie on a co-defendant’s behalf. In United States
13
v. Padilla, 387 F.3d 1087, 1094 (9th Cir. 2004), the court similarly permitted expert testimony
14
regarding punishment for junior members of the gang who failed to support senior members.
15
The testimony was allowed only for the limited purpose of impeaching the exculpatory
16
testimony of a witness who was a junior member of the gang. In United States v. Takahashi, 205
17
F.3d 1161, 1165 (9th Cir. 2000), the court allowed expert testimony regarding the loyalty oaths
18
sworn by members of the Yakuza gang for the limited purpose of impeaching a witness. No
19
RICO conviction has been expressly sustained in the Ninth Circuit wherein the RICO elements
20
were proven by opinion evidence from a gang expert admitted in the case-in-chief. Note well
21
that Hankey, Padilla, and Takahashi did not involve charges of racketeering conspiracy as in the
22
present matter.
23
The extent to which such gang expert evidence should be submitted in the case-in-chief
24
was potentially presented in several Ninth Circuit appeals but not reached due to reversals on
25
other grounds. For example, a gang expert testified in a RICO prosecution that was reversed on
26
other grounds in United States v. Shryock, 342 F.3d 948 (9th Cir. 2003). The court of appeals
27
28
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did not reach our evidentiary issue.4 The same was true in United States v. Chong, 419 F.3d
2
1076 (9th Cir. 2005), except that it was not a RICO prosecution. Similarly, United States v.
3
Garcia, 151 F.3d 1243 (9th Cir. 1998), reversed a non-RICO conspiracy conviction and did not
4
approve the use of a gang expert.
Two district judges in our circuit have allowed gang expert evidence in the case-in-chief
6
in a RICO/VICAR prosecution. Judge Maxine Chesney did so in United States v. Cyrus,
7
CR05-324 MMC. There was no opinion or explanation as to how the evidence was used in the
8
case-in-chief. In United States v. McIntosh, 2008 WL 4754763 (CD Cal. 2008), Judge Virginia
9
Phillips allowed some and disallowed other aspects of proposed gang experts’ testimony.5
10
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In the Second Circuit, it is true that RICO convictions have been affirmed despite
11
case-in-chief opinion evidence from gang experts. United States v. Daley, 842 F.2d 1380 (2d
12
Cir. 1988); United States v. Locascio, 6 F.3d 924 (2d Cir. 1993). More recently, however, the
13
Second Circuit, as stated, has markedly backed away from approving use of such evidence,
14
expressly noting the danger in letting a government expert usurp the role of judge and jury by
15
instructing the jury how to find an element of the charge and the danger of police experts really
16
amounting to little more than case agents steeped in information about the case. The court of
17
appeals stated that this risk was especially high where an expert testified both as an expert and as
18
a fact witness.
19
The Government cannot satisfy its burden of proof by taking the
easy route of calling an “expert” whose expertise happens to be the
defendant.
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5
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The opinion did not reveal, moreover, whether the opinion came in the case-in-chief.
In an order on November 27, 2007 (CR 02-938, Dkt. No. 5763), Judge Phillips granted the
defendants’ motion for a pretrial hearing regarding the gang experts’ qualifications, relevance and reliability, but
held that in general such witnesses could testify both as lay and expert witnesses. An evidentiary hearing was
granted regarding whether a gang expert could opine on whether the defendants were “validated members” of
the AB prison gang, but prior to the hearing the government stated it would not seek to introduce such
testimony. In a March 14 order (Dkt. No. 5909), the court denied the defendants’ motions to exclude gang
expert testimony regarding (1) the origins, purpose, structure, symbols used by and membership rules of the AB,
(2) the methods of communication of the AB (but not as to “plain language” interpretation), and (3) the AB’s
relationships with other prison gangs. The gang expert was not allowed to offer opinions regarding an alleged
"race war" between the AB and the “DC Blacks” prison gang, because those opinions lacked sufficient facts and
a reliable methodology. The gang expert was allowed to testify about the relations between the AB and the DC
Blacks, but not to give the opinion that animosity between the gangs amounted to a “race war.”
11
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It stated that district courts have broad discretion whether to admit gang experts. United States v.
2
Mejia, 545 F.3d at 188–98 (2d Cir. 2008).6
On the other hand, there are certain opinions by police officers that would normally be
4
admissible. One example is to explain specific coded words and phrases used by drug dealers and
5
their true meanings as used in specific recorded telephone calls so long as the reasons and bases
6
for the translations are set forth. Akin to an interpreter, an agent who has listened to hundreds of
7
calls among drug traffickers will learn from the context the true meaning of words and phrases.
8
A jury will not have the ability to listen to hundreds of calls and to know the immediate context of
9
each so as to learn the translations. There are other opinions in this vein that would be
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admissible.7
11
For the foregoing reasons, this order holds that police expert opinions as to the structure,
12
organization, and operations of the MS-13 gang will not be allowed in as case-in-chief evidence
13
to prove the substantive elements of the RICO or VICAR offenses charged herein. On the other
14
hand, subject to foundation, police expert opinions will be allowed to explain code words and
15
customs used by drug dealers in the Bay Area so long as the specific passages and events which
16
are the subjects of the opinions are specified in a proper Rule 16 disclosure along with the basis
17
and reasons therefor.
18
*
*
*
19
Returning to the form of the Rule 16 expert summary, it did not specify each specific
20
opinion, much less the reasons and bases for each. Given the discouraging history of missed
21
deadlines by the government, the undersigned judge is most reluctant to excuse yet another but
22
will do so because the defense needs and will be granted a continuance of the September 2010
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25
26
27
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6
The Fourth Circuit affirmed a RICO/VICAR conviction based on Detective Flores’ testimony in
another MS-13 case. The objection discussed on appeal concerned whether such evidence violated the
Confrontation Clause (due to expert reliance on third parties not testifying). United States v. Ayala, 601 F.3d
256, 275 (4th Cir. 2010).
7
Even when this is allowed, however, the Rule 16 disclosure should identify the particular words and
phrases at issue and provide the bases and reasons for the translations. It is not enough to simply say that an
officer will explain the codes used by the gang and this will be based on his or her training and experience. If
this would be burdensome in the instant case, it is only because of the massive size of the way in which the
prosecutors themselves have chosen to indict and investigate this case.
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trial date (for unrelated reasons). Therefore, the government may cure the curable in a
2
supplemental Rule 16 disclosure. The supplement must summarize each opinion, as exemplified
3
by the following illustration:
With respect to the recording DH 999 dated MM-DD-YYYY,
Officer XYZ will testify that the word “piece” meant “gun” and
the word “item” meant “package of cocaine.” The basis for this
opinion is his experience in monitoring drug transactions and in
listening to 1600 recordings involving the same individuals
between 2004 to 2009, many of which used the same terms in the
same way.
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Each opinion and basis must be stated with at least this much particularity. If this will be
9
burdensome, it is only because the government has chosen to frame a prosecution of
10
unprecedented mass involving 31 accuseds and over 3200 individual recordings, all in Spanish,
11
generated and maintained with precious little organization by ICE agents. Before trial, our
12
prosecutors must determine each item they plan to lay before the jury. This order and Rule 16 do
13
not require anything more than the prosecution must ultimately require of themselves in
14
presenting the expert opinion at trial. The supplemental Rule 16 disclosure must be filed by
15
NOON ON JUNE 30, 2010.
16
cure the shortfalls identified earlier in this order by a new detailed submission meeting the
17
specificity requirements, also due by NOON ON JUNE 30, 2010.
18
As to Zamora and the electronic devices, the government may also
Although this order has ruled out a large swath of the proposed gang expert opinion, it
19
has done so based on a pithy summary. Given the trial continuance granted defendants, there is
20
time to allow the prosecutors another chance for gang-opinion testimony. Conceivably, there
21
may be aspects that would be allowed. The government may submit revised gang expert
22
disclosures meeting the specificity requirements by NOON ON JUNE 30.8 Daubert and other
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25
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27
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8
Detective Flores, for example, should state the specific basis for each sentence in the summary. For
example, how does he know that “gang rules generally require members to be ‘jumped in,’ which is an initiated
process that requires the initiate to be beaten by other gang members”? How specifically does he know that
“local [gang] meetings are the most common, during which members of a local clique address issues and
concerns relevant to the clique, collect gang dues — which are used to buy weapons and drugs or used to pay
for lawyers or bail or commissary accounts of imprisoned members or to maintain the families of imprisoned
members, as well as to send up the chain of command — administer discipline and initiate new members.”
Long sentences like this should be divided and each part should state the basis for the opinion, such as personal
observation as undercover officer versus hallway police gossip versus training seminar versus admissions by
multiple gang members versus newspapers/magazines and so on. It is important to know the foundation for
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defense objections must be filed by NOON ON JULY 27 for hearing on SEPTEMBER 13 AT
2
1:30 P.M., with the oppositions due by AUGUST 12 and the replies due on AUGUST 24, each at
3
noon. This schedule applies only to the gang experts, forensic specialist Niki Zamora, and the
4
electronic experts. All other Daubert and other challenges to the government’s experts remain
5
due by NOON ON JUNE 18, as stated after the recent hearing in Docket No. 1794, to be heard on
6
the original schedule.
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8
9
10
CONCLUSION
For the reasons stated above, defendants’ motions regarding the government’s expert
witness disclosures are GRANTED IN PART AND DENIED IN PART, subject to yet another
opportunity for the government to cure.
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IT IS SO ORDERED.
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Dated: June 8, 2010.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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each specific opinion.
14
-------------------------------------Gang Expert Testimony and the Applicability of Crawford
-------------------------------------by Martin Antonio Sabelli and Jeff Chorney
MARTIN ANTONIO SABELLI has been a federal public defender and
Director of Training for the state public defender in San
Francisco. He teaches at and lectures for numerous criminal
defense programs across the country and abroad and, in December
2006, he will join Winston & Strawn in San Francisco. Jeff
Chorney is a second-year law student at the University of San
Francisco School of Law. Before attending law school, he worked
as a journalist for 10 years, most recently covering federal
courts for The Recorder.
Introduction
In Crawford v. Washington [(2004) 541 U.S. 36], the United
States Supreme Court reaffirmed the vitality of the Confrontation
Clause in an age of legislative and judicial attempts to admit
‘‘reliable’’ hearsay at trial. Rejecting the emphasis on
evidentiary reliability adopted in Ohio v. Roberts [(1980) 448
U.S. 56], Crawford returned the focus of the Sixth Amendment's
Confrontation Clause to the procedural right to reveal truth
through cross-examination. The confusion engendered by the need
for a before-the-fact judicial determination of reliability was
thereby rejected in favor of a much simpler ‘‘bright-line” rule
of procedure. This was expressed in the unyielding language of
Justice Antonin Scalia: the Confrontation Clause requires
exclusion of any ‘‘testimonial’’ statement unless the declarant
is unavailable and has been subjected to cross-examination.
Since Crawford was decided, criminal defense attorneys have
invoked this bright-line rule in a variety of contexts, and
courts have often responded by narrowing the definition of
‘‘testimonial’’ and thereby limiting the impact of Crawford.
Similarly, courts have limited the impact of Crawford by refusing
to apply Crawford’s bright line rule to the hearsay bases of
expert testimony on the ground that such hearsay is offered not
for the truth but in support of an opinion.
This article addresses the second limitation described above
and in one context in particular: the use of hearsay as the basis
for gang expert testimony in criminal cases. More than any other
form of expert testimony, gang expert testimony is based upon
hearsay which, on every level, seems to be at odds with the
fundamental principal embodied in Crawford. Gang expert testimony
is, in fact, almost exclusively based on out-of-court testimonial
statements vulnerable to cross-examination by impeachment of
every kind. Gang expert testimony, and in particular gang expert
opinions related to motive, often relies on testimonial
statements attributed to declarants whose pedigree is unknown or
suspect. In fact, gang expert testimony is fundamentally
different from other expert testimony in that gang experts often
testify to statements made to fellow officers by ‘‘suspected gang
members’’ in the context of custodial interrogations in which
suspects trade ‘‘information’’ for immediate release or a
substantial reduction in criminal exposure. Equally as important,
the vast majority of these statements are unrecorded.
Despite the lack of success in applying Crawford’s rule to the
hearsay bases of gang expert testimony, defense counsel should
not surrender on this point. Counsel should press courts to apply
the letter and spirit of Crawford to gang expert testimony
because, on a daily basis, gang experts testify to unfair,
unreliable, and unverifiable testimonial hearsay under the
pretext that it is offered not for the truth but to substantiate
the expert opinion.
In People v. Thomas [(2005) 130 Cal. App. 4th 1202], the
lead post-Crawford case on this issue, the Fourth Appellate
District, Division Two rejected just such a challenge. There, the
court reasoned that the out-of-court statements at issue were
admissible as bases for the gang expert opinion because they were
not being offered for the truth of the matter asserted. The flaw
in this argument is obvious: if the statements were not proffered
as true, they could not logically support an opinion proffered as
true. It would not be logical, or constitutional, to allow
experts to base an opinion on evidence which the experts -- or
the proffering party -- did not assert to be true.
The Flaw in Thomas
In considering the defendant’s Crawford challenge to the
gang expert testimony, the Thomas court latched onto an exception
to the high Court’s new emphasis on the Confrontation Clause:
‘‘Where nontestimonial hearsay is at issue, it is wholly
consistent with the Framers' design to afford the States
flexibility in their development of hearsay law --- as does [Ohio
v.] Roberts [(1980) 448 U.S. 56], and as would an approach that
exempted such statements from Confrontation Clause scrutiny
altogether. . . . We leave for another day any effort to spell
out a comprehensive definition of ‘testimonial.’’’ [Crawford v.
Washington (2004) 541 U.S. 36, 68 (emphasis added)].
The Thomas court then quoted People v. Gardeley [(1996) 14
Cal. 4th 605] and Evid. Code § 801(b), for the proposition that
gang experts can relate to the jury information which they used
to form their opinions, including otherwise inadmissible hearsay.
The court also cited People v. Vy [(2004) 122 Cal. App. 4th
1209], which held that such hearsay can include statements
elicited during police conversations with gang members and with
the defendant.
The Thomas court stated that Crawford does not undermine
gang expert testimony because the ‘‘expert is subject to crossexamination about his or her opinions and additionally, the
materials on which the expert bases his or her opinion are not
elicited for the truth of their contents; they are examined to
assess the weight of the expert's opinion. Crawford itself states
that the confrontation clause ‘does not bar the use of
testimonial statements for purposes other than establishing the
truth of the matter asserted.’’’
The Thomas court essentially held that gang expert opinion
that relies upon another person's statement does not present a
Crawford problem because the out-of-court statements are not
offered for the truth of the matter asserted and therefore are
not ‘‘hearsay.’’ In this way, Thomas shifted the focus from a
determination of whether the statement is ‘‘testimonial,’’ that
is, the circumstances under which a statement was made, instead
into the purpose of offering the statement at trial. This shift
subverts the spirit of Crawford and insulates the Thomas holding
from further developments in the law, including, most
significantly, more precise definitions of ‘‘testimonial.’’
According to the logic of Thomas, even if the basis of the expert
testimony is a statement obtained during a custodial police
interrogation, it still would not offend Crawford because it
would not be offered for its truth.
The Importance of ‘‘Testimonial’’
To be able to assert Crawford, a defendant must show that
the statement is being offered for the truth of the matter
asserted. Once that is established, the focus can then shift to
what is ‘‘testimonial.’’
The high Court did not precisely define "testimonial" in
Crawford. Nevertheless, Justice Scalia offered guidance on this
point noting three potential formulations for determining whether
a specific statement is ‘‘testimonial’’: (1) ‘‘‘ex parte in-court
testimony or its functional equivalent -- that is, material such
as affidavits, custodial examinations, prior testimony that the
defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used
prosecutorially,’’’ (2) ‘‘‘extrajudicial statements . . .
contained in formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions,’’’ and
(3) ‘‘‘statements that were made under circumstances which would
lead an objective witness reasonably to believe that the
statement would be available for use at a later trial’’’
[Crawford v. Washington (2004) 541 U.S. 36, 51-52]. Whatever the
standard, according to the opinion, ‘‘[s]tatements taken by
police officers in the course of interrogations are also
testimonial under even a narrow standard.’’ In referring to
‘‘police interrogations,’’ the court ‘‘use[d] the term
‘interrogation’ in its colloquial, rather than any technical
legal, sense’’ [Crawford v. Washington (2004) 541 U.S. 36, 51-52,
53 n.4].
The high Court emphasized that the definition of
‘‘testimonial’’ statements cannot be answered merely by looking
at the purpose behind offering the statement, but by closely
examining the circumstances under which the statement was made.
Thomas, however, avoids this inquiry altogether, by
characterizing the statements made by others, as recited in gang
expert opinion testimony, as simply not being offered for the
truth of the matter asserted. Thomas does so by citing footnote 9
of the Crawford opinion.
Thomas’ reasoning demonstrates why it is so important for
the defense to develop the gang expert’s testimony. Through
careful examination, defense attorneys can try to root out the
exact bases of the expert opinion. This is particularly important
if the prosecution tries to sneak in intent evidence under the
auspices of testimony about gang membership. Membership can be
proved by nonhearsay material, such as graffiti, visual
observations, tattoos, etc. But if statements are used, the
prosecution will often try to show the jury a glimpse inside the
defendant’s head. Although much of this material will get in,
defense attorneys should prepare to argue that the statements are
indeed being offered for the truth of the matter asserted and are
therefore subject to Crawford.
To try to reap the benefits of Crawford, defense attorneys
should also raise hearsay objections at preliminary examinations,
evidence hearings, and at trial, as well as try to get experts to
admit they spoke to gang members under arrest-like circumstances.
Although the answer may be a string of ‘‘I-don’t-remembers,” any
smidgen of detail will help later appellate arguments regarding
what is ‘‘testimonial,’’ once defense counsel can get past the
truth-of-the-matter-asserted hurdle. With thorough records that
contain nit-picked hearsay bases, courts will have a difficult
time doing the kind of outcome-determinative analysis found in
Thomas. The defense should strive to clearly show how the
statements are indeed hearsay, as well as that the statements
were obtained during arrests, custodial interrogations, and other
circumstances that are rife with the coercion that makes these
statements so dangerous to put in front of juries in the first
place. That will eventually force courts to determine
‘‘testimonial,’’ by looking at the circumstances of the interview
and not just the proffer. On a more practical level, that kind of
close questioning can also help at trial to demonstrate to the
jury the expert’s unreliability.
At least one California court has gotten the ‘‘testimonial’’
analysis right, at least in a case where the statement was
clearly being offered for the truth of the matter asserted. In
People v. Pirwani [(2004) 119 Cal. App. 4th 770], the Sixth
Appellate District Court ruled unconstitutional Evid. Code §
1380, which had granted a hearsay exception in criminal
prosecutions under Penal Code § 368, the elder and dependent
adult abuse statute. The declarant, an alleged victim of elder
abuse, gave a videotaped statement to police that was introduced
at trial. Although the declarant was unavailable because she had
died, the court found Crawford made the hearsay otherwise
inadmissible because the declarant was not cross-examined. The
Pirwani court focused on the circumstances of the police
interview with the declarant. In Crawford, the court allowed in a
statement given by the defendant’s wife to police while she was
under arrest and a suspect in the same crime her husband was
eventually convicted of committing. In Pirwani, the statement at
issue was given to police by the alleged crime victim. Even so,
the Pirwani court still found the statement to be ‘‘testimonial’’
and thus inadmissible because the declarant was unavailable and
had not been cross-examined.
Pirwani was a favorable decision for the defense, but other
Crawford challenges to hearsay exceptions have not gone as well.
In People v. Monterroso [(2004) 34 Cal. 4th 743, 764], the
California Supreme Court rejected a similar challenge to dying
declarations. And in People v. Rincon [(2005) 129 Cal. App. 4th
738, 742], the Second Appellate District, Division Four rejected
a Crawford challenge to the spontaneous statement hearsay
exception. The California Supreme Court has also accepted cases
to determine whether statements obtained during police field
questioning are ‘‘testimonial’’; these undoubtedly will now need
to reflect the more recent United States Supreme Court decision
in Davis v. Washington [(2006) 165 L. Ed. 2d 224] on this
subject. If the California Supreme Court focuses on how the
statements are obtained, rather than what they are used for at
trial, then a defense-favorable decision could help advance the
argument that gang expert testimony of statements from other
persons is actually being offered for the truth of the matter
asserted, and is therefore hearsay subject to Crawford.
Truth of the Matter Asserted
As noted above, persuading courts to examine the
circumstances under which the hearsay statements were given is
only half the battle -- the second half of the battle. The first
half of the battle is still the issue of convincing courts that
the statement being admitted is being offered for the truth of th
matter asserted. In Crawford and Pirwani, the statements were
offered for the truth of the matter asserted. When a gang expert
testifies, on the other hand, courts do not view the statement as
being offered for the truth of the matter asserted. Rather,
courts view it merely as being offered in support of the expert’s
opinion.
That, of course, is the more significant problem with
Thomas’ reasoning: the court’s rejection of the Crawford
challenge is a done deal from the beginning, because the court
takes at face value the proposition that the bases of the gang
expert’s opinion are neither offered nor accepted for their
truth. But simply saying something is not so does not necessarily
make it not so. A gang expert’s opinion must be actively
analyzed, especially in light of Crawford’s shift away from
standard notions of reliability toward the Confrontation Clause.
It is not enough to merely plug Crawford into our old rules and
exceptions and call that analysis.
Convincing courts that gang expert testimony of a statement
is indeed offered for the truth of the matter asserted is going
to be a tough hill to climb. Courts believe they already
adequately deal with that potential problem with limiting
instructions. But what actually happens is that jurors hear this
material and its credibility is amplified as it passes through
the lips of someone the court calls ‘‘expert.’’ Why shouldn’t
they consider it for the truth?
One way to win this argument is to do what has already been
advised: show the courts the true source of this information by
bringing out the coercive bases of the statement by cross-
examining the expert. In addition, Crawford can be used to
undermine the legal foundation supporting the idea that a
statement testified to by a gang expert is not offered for its
truth.
On a practical level, it is important to understand --- and
to point out to courts ---- how gang experts are different from
other experts. Most glaringly, they are hopelessly conflicted. It
is not uncommon for the prosecution to call one of the
investigators that worked on the case as the gang expert. Such a
witness has too strong of an investment in the outcome to be
trusted with such potentially prejudicial and unreliable
material. Courts have gotten around this problem by giving the
same justification used for other expert testimony: the statement
is admissible because other experts in the field reasonably rely
upon it. But with gang expert testimony, the other experts are
also working police officers, so of course they are going to rely
on it. Most other experts come from fields where empirical
research and certifications help bolster the expert’s
credentials. Not so with police officer gang experts. Although
they receive specialized training, their craft is not subject to
the rigorous academic and peer review that helps to create
doctors and engineers, nor to the type of scientific
experimentation that bolsters forensic experts.
Just as courts subject scientific and medical experts to the
Kelly-Frye standard, gang experts who rely on interrogations with
known and suspected criminals should be subject to the Crawford
standard. That is, just as other experts are scrutinized to make
sure the basis of their testimony is reliable enough to be in
front of the jury, so should gang experts. The difference is that
now that reliability can only be satisfied one way: crossexamination of the declarant, and only if that declarant is
available.
Of course, simply pointing out that juries accept gang
expert hearsay for the truth of the matter asserted is not going
to convince anyone. To do that, we have to look back at the cases
that allowed these damaging statements to be introduced in the
first place. What we find are courts confusing the issues without
ever truly resolving the key question: aside from the fiction of
limiting instructions, how is gang expert testimony of a
statement made by another out of court not offered for its truth?
California courts have never adequately addressed that question.
In fact, they have frequently analyzed the testimony as though it
were being offered for the truth.
Thomas relies upon one of the seminal gang expert cases in
California, People v. Gardeley [(1996) 14 Cal. 4th 605]. In
Gardeley, the California Supreme Court considered a gang expert’s
opinion that was based at least in part on out-of-court
interviews with the defendant and co-defendant, in which they
admitted to gang membership. The expert’s opinion was also based
on his personal investigations along with information from other
law enforcement sources.
The Gardeley court accepted the gang expert’s material --including the statements that were testified to in front of the
jury ---- only after conducting a reliability analysis. But why
analyze reliability if the statement is not offered for its
truth? If the statement was truly offered for a non-hearsay
purpose ---- i.e., not for the truth of the matter asserted --- then
reliability would not be a factor, at least not as to the issue
of admissibility. Gardeley did not pose that exact issue. For
such an analysis, we go to another gang expert case cited by
Gardeley, People v. Gamez [(1991) 235 Cal. App. 3d 957]. Although
Gardeley overruled Gamez on other grounds, the Gamez analysis is
useful because the defense attorney argued that the gang expert’s
opinions ‘‘were no more than a vehicle for the introduction into
evidence of hearsay to prove facts that could not lawfully be
proven by the prosecution.’’
Three factors convinced the Gamez court to expressly rebuff
the defendant’s Confrontation Clause challenge: (1) Evid. Code §
801 permits an expert to rely on otherwise inadmissible evidence
if it is ‘‘of a type that reasonably may be relied upon by an
expert,’’ (2) the statements of gang members were only a
‘‘portion of the foundation for the . . . opinions,’’ as the
officers also made personal observations, and (3) ‘‘[w]e fail to
see how the officers could proffer an opinion about gangs . . .
without reference to conversations with gang members.’’ Gamez
said the statements were not offered for the truth but instead
were ‘‘generally related as one of the bases for the officers’
expert opinions.’’
Like Gardeley, the Gamez court fixates on reliability, and
also throws in necessity as a policy justification. But both
reliability and necessity are only needed to justify hearsay
exceptions ---- not non-hearsay. That indicates that although the
courts might want to shove gang expert hearsay into the nonhearsay box, there is no good argument for doing so. If the
hearsay at issue in Gamez was offered for anything but the truth,
the argument justifying its inclusion falls apart. Why would a
gang expert rely upon hearsay if it wasn’t true? And why, if the
expert relies on it for the truth, should not we expect the jury
to do the same?
Crawford recognizes that reliability games are not useful
and can no longer stand -- it expressly abandoned the Ohio v.
Roberts reliability inquiries and instead focused on a statement
being "testimonial." Under Crawford, there is only way to
validate a "testimonial" statement that is hearsay before
bringing it before a jury: the declarant must be unavailable and
must have been cross-examined.
Courts are Already Moving in the Right Direction
California should look to the federal courts for guidance.
Fed. Rules of Evid., Rules 702 and 703, like California's Evid.
Code § 801, allow police gang experts to testify and to rely on
hearsay. Although the Ninth Circuit rejected a Crawford challenge
to gang expert evidence that relied on hearsay, the court said
that only a ‘‘generalized description of the practice of the
gangs’’ was permissible under Crawford [United States v. Chong
(9th Cir. 2005) 178 Fed. Appx. 626, 628]. More specific evidence
implicating the defendant by name as a gang leader ‘‘may have
constituted testimonial hearsay’’ and thus should not have been
admitted, but even if the evidence did run afoul of Crawford, the
admission constituted harmless error. More recently, a district
judge in San Francisco denied another Crawford challenge to gang
experts relying on hearsay [United States v. Diaz (U.S. Dist.
Ct., N.D. Cal. 2006) 2006 U.S. Dist. LEXIS 71123]. In denying the
challenge, the district judge cited a Tenth Circuit case, United
States v. Magallanez [(10th Cir. 2005) 408 F.3d 672, 679].
However, Magallanez rests on very shaky ground. It hinges on the
fact that the court could not characterize any of the out-ofcourt statements as ‘‘testimonial.’’ If that were to change, then
federal judges would have to revise their analyses.
Conclusion
Commentators have quickly realized the implications of
Crawford on gang expert testimony. 1 At this point, defense
attorneys must not yield to the temptation to let the Thomas
fiction lie. Counsel should take heart in the sea of change
implied by Crawford and continue to develop legal arguments to
convince courts to reevaluate gang expert testimony. Most
importantly, counsel should develop the record at every trial to
bring these issues to light at the appellate level and to
demonstrate the power - the constitutionally corrupt power --- of
unconfronted gang expert hearsay.
Thomas demonstrates why it is imperative to convince courts
to take a fresh look at exactly what is going on when prosecutors
put a gang expert on the stand. Its flaws undercut its holding.
If Crawford is to have any meaning, courts must reject the
fiction embodied in Thomas. If one reads Thomas with a
practitioner's jaundiced eye, it will be apparent that the
defense arguments were not fully appreciated by that court nor
presented before Crawford’s import was established. Thomas simply
did not give this issue the consideration and attention that it
deserves. In particular, Thomas did not evaluate the magnifying
effect of the expert: that is, that the statements, rather than
being limited because they are not offered for the truth, carry
more impact because they are accepted and endorsed (implicitly
and explicitly) by an ‘‘expert.’’ The constitutional injury is
therefore aggravated.
Using Crawford to limit gang expert testimony would not
strip the expert of the ability to offer an opinion. Instead,
experts would not be able to do so based on testimonial
statements made without a prior opportunity to cross-examine. For
1
Patrick Mark Mahoney, Houses Built on Sand: Police Expert
Testimony in California Gang Prosecutions; Did Gardeley Go Too
Far?, 31 Hastings Const. L.Q. 385 (2004); Ross Andrew Oliver,
Testimonial Hearsay as the Basis for Expert Opinion: The
Intersection of the Confrontation Clause and Federal Rule of
Evidence 703 After Crawford v. Washington, 55 Hastings L.J. 1539
(2004).
example, gang experts could testify based on graffiti, tattoos,
and transcripts of testimony. The result would be fairness and
not an evisceration of gang expert testimony.
Besides striving to give the California Supreme Court an
opportunity to disapprove Thomas, defense counsel should also use
Crawford as an excuse fully to cross-examine gang experts, even
before the expert appears in front of the jury. Only by
understanding the bases of the expert opinion can defense counsel
develop strategies to assert confrontation rights in connection
with those bases. Even if Thomas is not disapproved, gang
expertise will hopefully become more reliable and less damaging
to defendants.
SAMPLE MOTION
PRACTICE: COCONSPIRATOR HEARSAY
Case
Document 1635
1
2
3
4
5
6
7
8
9
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SOUTHERN DIVISION
11
12
Plaintiff,
13
v.
14
15
Defendant.
16
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19
20
21
22
23
24
25
26
27
28
)
)
)
)
)
)
)
)
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)
)
NO.
HEARSAY STATEMENTS OF
CODEFENDANTS AND
ALLEGED UNINDICTED
COCONSPIRATORS ;
AUTHORITIES
ROSENBERG:
, by and through
will and hereby does move for an order excluding
all hearsay statements of co-defendants and alleged unindicted coconspirators.
/
/
Case 8
1
Document 1635
This motion is base on the attached memorandum of points and authorities, the
2
files and records in the case, and any additional evidence and argument that may be
3
presented at or before the hearing on the motion.
4
5
6
7
Dated: April 6, 2010
8
ndant
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10
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2
Case
Document 1635
1
2
I.
3
INTRODUCTION
4
with
5
6
7
8
9
racketeering enterprise in violation of 18 U.S.C. § 1959(a)(3). At trial, the
10
government intends to introduce 152 audio recordings of telephone calls that were
11
intercepted with Title III wiretaps on telephones used by Jose Gonzalez (TT1), Noe
12
Gonzalez (TT2); Alberto Hernandez (TT4); Arturo Cruz (TT5); and Mariol Garcia
13
(TT10).
14
reasons discussed below, the Court should exclude these audio recordings.
is not a participant in any of these telephone calls.1 For the
15
II.
16
ARGUMENT
17
Out-of-court statements offered for the truth of the statements are hearsay and
18
not admissible. Fed. R. Evid. 801©, 802. For the audio recordings of the intercepted
19
telephone calls to be admissible non-hearsay, the government must prove as a
20
preliminary matter that the statements on the audio recordings were made by a
21
coconspirator of
22
conspiracy. Fed. R. Evid. 801(d)(2)(E); see also Bourjaily v. United States, 483 U.S.
23
171, 176, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987) (party seeking admission of
24
out-of-court statement carries burden of proving preliminary questions concerning
during the course of and in furtherance of the
25
26
1
The government also intends to introduce seven audio recordings of
telephone
calls
that were intercepted with a Title III wiretap on a telephone used by
27
Manuel Espino. This motion does not relate to these c
the government
is the other party
28 will presumably elicit testimony from Mr. Espino that
to the phone call.
3
Case 8
1
2
Document 1635
admissibility of evidence by a preponderance of the evidence).
While the Court may consider the contents of a particular statement in
3
determining whether the government has established the foundation for its
4
admissibility, the statement’s contents “are not alone sufficient to establish . . . the
5
existence of the conspiracy and the participation therein of the declarant and the party
6
against whom the statement is offered . . . .” Fed. R. Evid. 801(d)(2)(E); see also
7
United States v. West, 670 F.2d 675, 685 (7th Cir. 1982) (hearsay statement
8
implicating defendant as coconspirator in drug-trafficking was not admissible even
9
though evidence showed that declarant was a member of drug-trafficking
10
organization and was housed in same jail in which defendant was employed as
11
guard). Because such statements are "inherent[ly] unreliab[le]," the independent
12
corroboration required for admission must be “fairly incriminating evidence." United
13
States v. Silverman, 861 F.2d 571, 578 (9th Cir.1988). The government cannot
14
simply invoke other out-of-court statements by the same declarant to corroborate the
15
existence of the conspiracy or the defendant’s and declarant’s participation therein.
16
Id. (district court erred in admitting multiple out-of-court statements by defendant’s
17
sister which implicated him as source of drugs that sister distributed).
18
Evidence that
was a member of or associated with the Florencia
19
13 (“F13") gang is not be sufficient to establish that he conspired with other F13
20
gang members to commit the crimes charged or that statements by other F13
21
members were made during the course of or in furtherance of the conspiracy. See
22
United States v. Al Moayad, 545 F.3d 139 (2d Cir. 2008) (video showing speech by
23
Hamas representative announcing terrorist attack was not admissible coconspirator
24
hearsay where no independent evidence showed that the defendant was involved in
25
joint conspiracy with representative other than their general ties to Hamas).
26
In United States v. Gigante, 166 F.3d 75 (2d Cir.1999), the court held that
27
independent proof of membership in an organized criminal enterprise is not sufficient
28
to prove that the statements were made by a coconspirator. Id. at 82-83. Rather,
4
Case
Document 1635
1
there must be independent evidence that the declarant and defendant shared a specific
2
criminal objective – i.e., that they conspired to participate in a particular criminal act
3
– before the out-of-court statement is admissible.2 See id. (“[t]he district court in
4
each instance must find the existence of a specific criminal conspiracy beyond the
5
general existence of the Mafia” and “the defendant must be linked to an individual
6
predicate act by more than hearsay alone before a statement related to that act is
7
admissible against the defendant under Rule 801(d)(2)(E)"); see also United States v.
8
Russo, 302 F.3d 37, 45-46 (2d. Cir.2002) ("the conspiratorial objective being
9
furthered by the declarant's statement must in fact be the objective of a conspiracy
10
between the defendant and the declarant. Conspiracies between them that do not so
11
coincide, including a joint association in the Mafia, will not be sufficient").
12
For a statement to be "in furtherance" of a conspiracy, the statements must
13
further the common objectives of the conspiracy or set in motion transactions that are
14
an integral part of the conspiracy. United States v. Larson, 460 F.3d 1200, 1211 (9th
15
Cir.2006). Additionally, the statement must have been intended by the declarant to
16
further the objectives of the conspiracy. United States v. Nazemian, 948 F.2d 522,
17
529 (9th Cir.1991); United States v. Layton, 855 F.2d 1388, 1398 (9th Cir. 1988).
18
“[M]ere conversations,” “narrative declarations” and “casual admissions of
19
culpability” by co-conspirators are not statements in furtherance of the conspiracy.
20
United States. v. Layton, 720 F.2d 548, 556 (9th Cir. 1983). Similarly, narrations of
21
past events by co-conspirators are not in furtherance of the conspiracy. United States
22
v. Eubanks, 591 F.2d 513, 521 (9th Cir.1971).
23
24
2
Although the Ninth Circuit has not addressed the issue in the context of
RICO cases, it has recognized, in cases involving multiple conspiracies, that "before a
26 statement is that of a ‘co-conspirator,' there must be independent proof of the
defendant's and the declarant's status as members of the same ongoing conspiracy."
27 United States v. Mouzin, 785 F.2d 682, 692 (9th Cir.1986) (emphasis added); see also
United States v. Castaneda, 16 F.3d 1504 (9th Cir. 1994) (reversing conviction where
28 district court admitted out-of-court statements of declarant who was member of
different sub-conspiracy than that in which defendant participated).
25
5
Case 8:07-cr-00202-DOC Document 1635
1
requests that, prior to the admission of any audio recordings of
2
intercepted telephone calls in which he is not a participant, the Court seek an offer of
3
proof from the government as to how the telephone call is relevant to the charges
4
against him, as well as the evidence on which the government is relying to prove that
5
the statements in the audio recording are by a coconspirator and were made during
6
the course of and in furtherance of the conspiracy.
7
III.
8
CONCLUSION
9
For the foregoing reasons,
respectfully requests that the Court
10
exclude all hearsay statements of codefendants and alleged unindicted
11
coconspirators.
12
13
14
15
16
ndant
17
18
19
20
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28
6
SAMPLE MOTION
PRACTICE: BILL OF
PARTICULARS
Case 2
Document 456
1
2
3
4
5
6
7
8
9
10
SOUTHERN DIVISION
11
12
Plaintiff,
13
v.
14
15
Defendant.
16
)
)
)
)
)
)
)
)
)
)
)
NO.
FOR BILL OF PARTICULARS;
AUTHORITIES
Trial Time: 1:30 p.m.
17
TO UNITED STATES ATTORNEY ANDRE BIROTTE, AND ASSISTANT
18
UNITED STATES ATTORNEYS ELIZABETH CARPENTER AND ABIGAIL
19
EVANS:
20
PLEASE TAKE NOTICE that on Monday, April 23, 2010, at 1:30 p.m., or as
21
soon thereafter as the matter may be heard in the courtroom of the Honorable Manuel
22
Real, United States District Judge, Defendant
23
through his attorney of record
24
directing the government to file of bill of particulars identifying all “others known
25
and unknown” who allegedly conspired to and participated in the attempted robbery
26
of Vanessa Jewelry Store on March 10, 2003, which is alleged as racketeering act ten
27
of count one.
28
/
by and
, will and hereby does move for an order
Case
Document 456
1
2
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2
Case
Document 456
1
2
I.
3
INTRODUCTION
4
The indictment charges
with conspiring to
5
participate in the affairs of an enterprise through a pattern of racketeering activity in
6
violation of 18 U.S.C. § 1962(d) (count 1). Racketeering act ten alleges that Mr.
7
r “obstructed, delayed and affected commerce and the movement of
8
articles and commodities in commerce, and attempted and conspired to do so”
9
participating in an attempted robbery of Vanessa Jewelry Store on March 10, 2003.
10
Indictment at 20. Mr.
is the only defendant named in this
11
racketeering act, although it does allege that “others known and unknown” also
12
participated in this alleged conspiracy and attempted robbery. Id. For the reasons
13
discussed below, the Court should order the government to file a bill of particulars
14
identifying all other persons who participated in this alleged conspiracy and
15
attempted robbery.
16
II.
17
ARGUMENT
18
The Court may direct the government to file a bill of particulars. Fed. R. Crim.
19
P. 7(f). A bill of particulars is "intended to supplement the indictment by providing
20
more detail of the facts upon which the charge[] [is] based." United States v. Inryco,
21
Inc., 642 F.2d 290, 292 (9th Cir. 1981). A bill of particulars seeks to eliminate
22
uncertainties as to the theory of the government's case. United States v. Giese, 597
23
F.2d 1170, 1181 (9th Cir. 1979); Cook v. United States, 354 F.2d 529, 531 (9th Cir.
24
1965); Yeargain v. United States, 314 F.2d 881, 882 (9th Cir. 1963). The purpose of
25
a bill of particulars is to aid the defendant in preparing for trial, to eliminate surprise
26
at trial, and to protect against double jeopardy. United States v. Burt, 765 F.2d 1364,
27
1367 (9th Cir. 1985) (citing United States v. Long, 706 F.2d 1044, 1054 (9th Cir.
28
1983); see also Giese, 597 F.2d at 1180.
3
Case
1
Document 456
In 1966, Fed. R. Crim. P. 7(f) was amended to eliminate the earlier requirement
2
that a defendant make a showing of cause for the court to order a bill of particulars.
3
See Notes of Advisory Comm., Fed. R. Crim P. 7. "The amendment . . . [was]
4
designed to encourage a more liberal attitude by the government towards bills of
5
particulars without taking away the discretion which courts must have in dealing with
6
such motions in individual cases." Id. Courts have repeatedly held that the 1966
7
amendment to Rule 7(f) mandates a liberalization in the granting of bills of
8
particulars. See, e.g., Nesson v. United States, 388 F.2d 603, 604 (1st Cir. 1967);
9
United States v. Rogers, 617 F. Supp. 1024, 1028 (D. Colo. 1985); United States v.
10
Boffa, 513 F. Supp. 444, 484-85 (D. Del. 1980). "In the gray areas, the doubt must be
11
resolved in favor of disclosure and the conflicting concerns must yield to paramount
12
public interest in affording the accused a reasonable foundation for mounting a
13
defense." United States v. Manetti, 323 F. Supp. 683, 696 (D. Del. 1971); see also
14
Rogers, 617 F. Supp. at 1027-28 ("if the competing interests of the defense and the
15
government are closely balanced, the interests of the defendant in disclosure must
16
prevail").
17
Count one alleges that Mr.
conspired to participate in the
18
affairs of the MS-13 gang through a pattern of racketeering activity that included the
19
attempted robbery of the Vanessa Jewelry Store on March 10, 2003. The indictment
20
does not name any other codefendant as having participated in this alleged crime or
21
conspiring to do so. It simply alleges that “others known and unknown” conspired to
22
and participated in the alleged crime. See Indictment at 20. Courts have routinely
23
recognized that the identity of unindicted coconspirators is properly disclosed
24
pursuant to a bill of particulars. See e.g., United States v. Barrentine, 591 F.2d 1069,
25
1077 (5th Cir. 1979); United States v. Holman, 490 F. Supp. 755, 762 (Ed. Pa. 1980).
26
Mr.
27
to have conspired with in regards to this particular racketeering act.
28
/
cannot prepare for trial without notice of whom he is alleged
4
Case
Document 456
1
III.
2
CONCLUSION
3
For the foregoing reasons, Mr.
respectfully requests that the
4
Court issue an order directing the government to file of bill of particulars identifying
5
all “others known and unknown” who allegedly conspired to and participated in the
6
attempted robbery of Vanessa Jewelry Store on March 10, 2003, which is alleged as
7
racketeering act ten of count one.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
SAMPLE MOTION
PRACTICE: SURPLUSAGE
Case
Document 455
1
2
3
4
5
6
7
8
9
10
SOUTHERN DIVISION
11
12
Plaintiff,
13
v.
14
15
Defendant.
16
)
)
)
)
)
)
)
)
)
)
)
NO.
TO STRIKE SURPLUSAGE;
AUTHORITIES
17
18
19
EVANS:
20
21
soon thereafter as the matter may be heard in the courtroom of the Honorable Manuel
22
Real, United States District Judge, Defendant
23
24
striking the following from the indictment as surplusage:
25
1.
28
, will and hereby does move for an order
The “General Background” section of the “Introductory Allegations,”
see Indictment at 4-9;
26
27
by and
2.
The “Overt Acts” section of count one, see Indictment at 24-46; and
Case 2
1
3.
Document 455
The allegations that the charged racketeering conspiracy and the
2
attempted robbery alleged as racketeering act ten involved “others
3
known and unknown,” see Indictment at 12, 20.
4
5
6
7
8
9
10
11
12
13
14
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16
17
18
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20
21
22
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25
26
27
28
2
Case 2
Document 455
1
2
I.
3
INTRODUCTION
4
The indictment charges multiple defendants with conspiring to participate in
5
the affairs of an enterprise through a pattern of racketeering activity in violation of 18
6
U.S.C. § 1962(d) (count 1), multiple counts of committing violent crimes to maintain
7
and enhance their postition in the enterprise in violation of 18 U.S.C. § 1959(a)(1)
8
(counts 2-7, 9-12, 15), conspiracy to distribute controlled substances in violation of
9
21 U.S.C. § 846 (count 16), and various firearms-related offenses (counts 8, 13-14).
10
The indictment’s “Introductory Allegations” contains five pages of “General
11
Background.” See Indictment at 4-9. Count one, which charges the racketeering
12
conspiracy, contains twenty-two pages of allegations of “Overt Acts.” See
13
Indictment at 24-46. Count one also alleges that the racketeering consipiracy
14
involved “others known and unknown to the Grand Jury,” see Indictment at 12, and
15
that “others known and unknown” participated in the attempted robbery alleged as
16
racketeering act ten, see Indictment at 20. For the reasons discussed below, these
17
allegations should be stricken as surplusage.
18
II.
19
ARGUMENT
20
The Federal Rules of Criminal Procedure provide that “[t]he indictment . . .
21
must be a plain, concise and definite written statement of the essential facts
22
constituting the offense charged . . . .” Fed. R. Crim. P. 7(c)(1). The Rules further
23
provide that “[u]pon the defendant's motion, the court may strike surplusage from the
24
indictment . . . ." Fed. R. Crim. P. 7(d).
25
A motion to strike surplusage is designed to “protect a defendant against
26
prejudicial or inflammatory allegations that are neither relevant nor material to the
27
charge.” United States v. Terrigno, 838 F.2d 371, 373 (9th Cir. 1988); see also
28
United States v. Ramirez, 710 F.2d 535, 544-45 (9th Cir. 1983); see generally 1
3
Case
Document 455
1
Charles A. Wright, Federal Practice and Procedure Criminal, § 127 at 634 (3d ed.
2
1999). Thus, where the indictment alleges facts that are irrelevant or immaterial,
3
particularly when those facts might prove prejudicial, the defendant may compel their
4
deletion. United State v. Bissell, 866 F.2d 1343, 1355-56 (11th Cir. 1989); United
5
States v. Hughes, 766 F.2d 875, 879 (5th Cir. 1985).
6
The “General Background” section purports to describe the history of the MS-
7
13 gang, see Indictment at 4-5, ¶ 5; its alleged relationship with the Mexican Mafia,
8
see id. at 5, ¶ 5; id. at 8-9, ¶¶ 14-15; its alleged activities in other jurisdictions
9
including the claim that it “is considered one of the largest and most violent gangs in
10
the world,” id. at 5, ¶ 6; its alleged structure and organization, id. at 5-6, ¶¶ 7-9; its
11
alleged methods for enforcing its rules and promoting discipline among its members
12
including the allegation that “MS-13 members . . . engage in acts of violence against
13
innocent civilians in the gang’s territory and against rival gang members who venture
14
into its territory,” id. at 6; ¶ 10; its members use of tattoos and monikers, id. at 7, ¶
15
11; its alleged criminal activities, see id. at 7-8, ¶¶ 12-13; and its alleged distribution
16
of criminal proceeds, see id. at 9, ¶ 16. None of these allegations are “essential facts”
17
constituting any of the offenses charged. Rather, these allegations are highly
18
prejudicial evidentiary detail which the government seeks to get before the jury
19
before the Court can determine whether the government’s evidence to support such
20
allegations is admissible.
21
Similarly, the indictment contains twenty-two pages of overt acts. Neither a
22
RICO conspiracy nor a Title 21 drug conspiracy require proof of an overt act. See
23
Salinas v. United States, 522 U.S. 52, 63, 118 S. Ct. 469, 139 L. Ed. 2d 352 (1997)
24
(RICO conspiracy charged under 18 U.S.C. § 1962(d) does not require proof of overt
25
act); United States v. Shabani, 513 U.S. 10, 15, 115 S. Ct. 382, 130 L. Ed. 2d 225
26
(1994) (drug conspiracy charged under 21 U.S.C. § 846 does not require proof of
27
overt act). Therefore, the alleged overt acts are immaterial to the charges.
28
/
4
Case 2
Document 455
Allegations that are not elements of the charged crimes are surplusage. Bargas
1
2
v. Burns, 179 F.3d 1207, 1216 n.6 (9th Cir. 1999); United States v. Kartman, 417
3
F.2d 893, 894 (9th Cir. 1969). Where such allegations suggest that the defendant
4
committed some other crime, they are prejudicial surplusage that should be stricken.
5
See United States v. Marsh, 344 F.3d 317, 320-22 (5th Cir. 1965) (references to
6
"other" unidentified offense and overt acts was surplusage which was properly
7
stricken by district court); United States v. Hubbard, 474 F. Supp. 64, 83 (D.D.C.
8
1979 (striking reference to confrontation with FBI which was not charged and could
9
be prejudicial). The “General Background” and the “Overt Acts” have no purpose
10
other than to preview the evidence that the government expects to present at trial.
11
Given that these allegations are immaterial to the charges and are obviously
12
prejudicial, the Court should strike them from the indictment.
13
Finally, the indicment’s allegations that “others known and unknown”
14
participated in the racketeering conspiracy and in the attempted robbery that is
15
alleged as racketeering act ten are also prejudicial surplusage. These allegations are
16
immaterial to the actual charges because the grand jury returned the indictment only
17
against the named defendants. If the government's case actually requires proof of
18
criminal activity by uncharged persons, it must go back to the grand jury and obtain a
19
superseding indictment which actually identifies the uncharged "others." See Stirone
20
v. United States, 361 U.S. 212, 215-19, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960)
21
(government cannot prove the charges with facts that were not presented to the grand
22
jury). The use of the term "and others known and unknown” is prejudicial to the
23
defendants generally because it suggests a wider criminal enterprise than actually
24
charged. United States v. Poindexter, 725 F. Supp. 13, 35 (D.D.C. 1989)
25
(allegations against person who is not a charged defendant are prejudicial
26
surplusage). The use of the term as it relates to racketeering act ten is particularly
27
prejudicial to Mr.
28
/
because he is the only defendant named in
5
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Document 455
1
racketeering act ten and the government is required to prove that he conspired with at
2
least one other person to commit the alleged crime.
3
III.
4
CONCLUSION
5
respectfully requests the
6
Court strike as surplusage the “General Background” section of the “Introductory
7
Allegations,” see Indictment at 4-9; he “Overt Acts” section of count one, see
8
Indictment at 24-46; and the allegations that the charged racketeering conspiracy and
9
the attempted robbery alleged as racketeering act ten involved “others known and
10
unknown,” see Indictment at 12, 20.
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SAMPLE MOTION
PRACTICE: STRIKE /
DISMISS COUNTS AND
PREDICATE ACTS
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Document 1260
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SOUTHERN DIVISION
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Plaintiff,
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v.
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Defendant.
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NO.
NOTICE MOTION; MOTION TO
DISMISS COUNTS ONE, TWO,
THREE AND SIX OF FIRST
SUPERSEDING INDICTMENT;
AUT
ECLARATION
OF
Hearing Date: December 7, 2009
Hearing Time: 7:30 a.m.
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RECORD, ACTING UNITED STATES ATTORNEY GEORGE S. CARDONA,
20
AND ASSISTANT UNITED STATES ATTORNEYS PETER HERNANDEZ AND
21
KEVIN ROSENBERG:
22
PLEASE TAKE NOTICE that on Monday, December 7, 2009, at 7:30 a.m., or
23
as soon thereafter as the matter may be heard in the courtroom of the Honorable
24
David O. Carter, United States District Judge, Defendant
25
26
Counts One, Two, Three and Six of the First Superseding Indictment for failure to
27
state an offense against the United States.
28
/
, by and
, will and hereby does move to dismiss
Case
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Document 1260
This motion is brought pursuant to Fed. R. Crim. P. 12(b)(2) and is based on
the attached Memorandum of Points and Authorities, the attached Declaration of
the files and records in this case, and any additional argument that may
be presented at or before the hearing on this motion.
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Dated: September 28, 2009
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ndant
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Document 1260
1
TABLE OF CONTENTS
2
I.
INTRODUCTION
3
3
II.
ARGUMENT
5
4
A.
COUNTS ONE, TWO AND SIX SHOULD BE
DISMISSED BECAUSE CONSPIRACY TO
DISTRIBUTE CONTROLLED SUBSTANCES
IN VIOLATION OF FEDERAL LAW IS NOT
“RACKETEERING ACTIVITY” WITHIN THE
MEANING OF THE FEDERAL RICO STATUTE
B.
COUNTS ONE AND TWO SHOULD BE DISMISSED
BECAUSE THE ALLEGED CONSPIRACY TO
DISTRIBUTE CONTROLLED SUBSTANCES AND
THE ALLEGED CONSPIRACY TO COMMIT
EXTORTION ARE A SINGLE CONSPIRACY AND,
THEREFORE, CANNOT FORM A PATTERN OF
RACKETEERING ACTIVITY
8
C.
COUNT ONE SHOULD BE DISMISSED BECAUSE
RACKETEERING ACT TWO WHICH ALLEGES
CONSPIRACY TO COMMIT EXTORTION FAILS
TO ALLEGE THE COMMISSION OF AN OVERT
ACT
11
D.
COUNT TWO SHOULD BE DISMISSED BECAUSE
THE RICO CONSPIRACY ALLEGES BOTH
SUBSTANTIVE CRIMES AND CONSPIRACY TO
COMMIT THESE VERY SAME CRIMES AS
RACKETEERING ACTS WHICH CANNOT
FORM A PATTERN OF RACKETEERING
ACTIVITY
12
E.
COUN
SHOULD BE DISMISSED BECAUSE
MR.
CANNOT AS A MATTER OF LAW
CONSPIRE TO DISTRIBUTE CONTROLLED
SUBSTANCES WITH PERSONS FROM WHOM HE
IS EXTORTING PROCEEDS OF DRUG DEALING
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III.
CONCLUSION
DECLARATION OF
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Case
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Document 1260
2 Cases
3
4
5
Almendarez Torres v. United States,
523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998)
Braverman v. United States,
317 U.S. 49, 63 S. Ct. 99, 87 L. Ed. 2d 23 (1942)
6 Haji v. Miller,
584 F. Supp. 2d 498 (E.D.N.Y. 2008)
7
H.J. Inc. v. Northwestern Bell Tel. Co.,
8
492 U.S. 229, 109 S. Ct. 2983, 106 L. Ed. 2d 195 (1989)
9 Purvis v. Hamwi,
828 F. Supp. 1479, 1487-88 (D. Colo. 1993)
10
Sedima v. Imrex Co., Inc.,
11
473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985)
12 Stirone v. United States,
361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960)
13
United States v. Anderson,
14
872 F.2d 1508 (11th Cir. 1989)
15 United States v. Ansaldi,
372 F.3d 118 (2d Cir. 2004)
16
United States v. Broce,
17
488 U.S. 563, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989)
18 United States v. Brooklier,
685 F.2d 1208 (9th Cir. 1982) (per curiam)
19
United States v. Cecil,
20
608 F.2d 1294 (9th Cir. 1979)
11
9,11,15
11
13,14
14
13
8,10,14
11
10
10
7
12
21 United States v. Davis,
533 F.2d 921 (5th Cir.1976)
22
United States v. Dolan,
120 F.3d 856 (8th Cir. 1997)
23
12
24 United States v. Fernandez,
388 F.3d 1199 (9th Cir. 2004)
25
United States v. Keith,
26
605 F.2d 462 (9th Cir. 1979)
7
12
12
27 United States v. Labrada Bustamante,
428 F.3d 1252 (9th Cir. 2005)
28
7
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Document 1260
1 United States v. Montgomery,
150 F.3d 983 (9th Cir. 1998)
2
United States v. Shabani,
3
513 U.S. 10, 115 S. Ct. 382, 130 L. Ed. 2d 225 (1994)
4 United States v. Shyrock,
342 F.3d 948 (9th Cir. 2003)
5
United States v. Stoddard,
6
111 F.3d 1450 (9th Cir. 1997)
10
7
7
10
7 United States v. Thompson,
125 F. Supp. 2d 1297 (D. Kan. 2000)
8
United States v. Turkette,
9
452 U.S. 576, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981)
12
6,7
10 Statutes
11 18 U.S.C. § 371
11
12 18 U.S.C. § 1951(a)
7
13 18 U.S.C. § 1959(a)(3)
4
14 18 U.S.C. § 1961(1)
7
15 18 U.S.C. § 1961(1)(A)
7
16 18 U.S.C. § 1961(1)(B-G)
6
17 18 U.S.C. § 1961(1)(E)
7
18 18 U.S.C. § 1961(5)
8,11,12,13,14
19 18 U.S.C. § 1962(c)
3
20 18 U.S.C. § 1962(d)
3,12
21 18 U.S.C. § 1962(1)(D)
6
22 21 U.S.C. § 841(a)(1)
3,14
23 21 U.S.C. § 841(b)(1)(C)
3
24 21 U.S.C. § 846
6
25 Cal. Penal Code §21a
3
26 Cal. Penal Code §31
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28 Cal. Penal Code § 184
6,11
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2 Cal. Penal Code § 211
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Document 1260
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I.
3
INTRODUCTION
4
Defendant
is charged in Count One of the First Superseding
5 Indictment with participating in the affairs of an enterprise through a pattern of
6 racketeering activity in violation of 18 U.S.C. § 1962(c) (hereinafter “substantive
7 RICO”), see First Sup. Ind. at 9-10; in Count Two with conspiracy to participate in
8 the affairs of an enterprise through a pattern of racketeering activity in violation of 18
9 U.S.C. § 1962(d) (hereinafter “RICO conspiracy”), see First Sup. Ind. at 11-12; in
10 Count Six with committing a violent crime as consideration for a promise or
11 agreement to pay something of pecuniary value from an enterprise, or for the purpose
12 of gaining entrance to or maintaining or increasing his position in an enterprise in
13 violation of 18 U.S.C. § 1959(a)(3) (hereinafter “VICAR”), see First Sup. Ind. at 37.
14 The alleged enterprise is the Florencia 13 gang (“F-13"). Id. at 1-2. Mr.
is
15 also charged in Count Three with conspiracy to distribute controlled substances in
16 violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846 (hereinafter “drug
17 conspiracy”). See First Sup. Ind. at 32.
18
Count One which charges the substantive RICO violation alleges pattern of
19 racketeering activity through which Mr.
allegedly participated in F-13
20 consisting of two racketeering acts – (1) conspiracy to distribute controlled
21 substances in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(C), and (2)
22 conspiracy to extort money from individuals conducting illegal activity in F-13
23 territory in violation of Cal. Penal Code §§ 31, 182, 518-520. See First Sup. Ind. at 924 10. Count Two which charges the RICO conspiracy alleges a pattern of racketeering
25 activity consisting of “multiple acts” of murder, attempted murder and conspiracy to
26 commit murder in violation of Cal. Penal Code §§ 21a, 31, 664, 182, 187; distribution
27 of controlled substances and conspiracy to distribute controlled substances in
28 violation of 21 U.S.C. §§ 841(a)(1), 846; kidnapping and conspiracy to
3
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Document 1260
1 commit kidnapping in violation of Cal. Penal Code §§ 31, 182, 207; extortion and
2 conspiracy to commit extortion in violation of Cal. Penal Code §§ 31, 182, 518-520;
3 and robbery in violation of Cal. Penal Code § 211. Id. at 11-12. Count Two alleges
4 that Mr.
“agreed that a conspirator would commit at least two acts of
5 racketeering in the conduct of the affairs of the enterprise” but does not allege the
allegedly agreed. Id. at 12.
6 specific racketeering acts to which Mr.
7 However, this allegation does not define the scope of the racketeering activity to
8 which Mr.
allegedly agreed. Count Six, which is the VICAR count, alleges
9 that the F-13 gang “engaged in racketeering activity” which included conspiracy to
10 distribute controlled substances in violation of 21 U.S.C. § 846. First Sup. Ind. at 34,
11 37.
12
Although conspiracy to distribute controlled substances is alleged as
13 Racketeering Act One in Count One, and as a racketeering activity in Counts Two
14 and Six, and as a separate charge in Count Three, the government does not contend
15 that Mr.
directly participated or agreed to participate in drug trafficking. In
16 fact, the government is unaware of any evidence of Mr.
direct participation
17 in the distribution of controlled substances.
Decl. ¶ 2. Rather, the
18 government’s theory with respect to Mr. R
alleged participation in the
19 conspiracy to distribute controlled substances is that Mr.
participated in the
20 “taxing” of drug dealers who operated in territory controlled by the F-13 gang.
21 Decl. ¶ 2. Defense counsel understands “taxing” to mean extortion of money from
22 drug dealers. Id.; see also First Sup. Ind. at 13 (alleging that Mr.
helped
23 collect drug trafficking proceeds from drug dealers in F-13 territory as means by
24 which objects of RICO conspiracy were to be accomplished).
25
26 Mr.
The First Superseding Indictment is defective and should be dismissed against
for several reasons. First, Counts One (substantive RICO), Two (RICO
27 conspiracy) and Six (VICAR) should be dismissed because conspiracy to distribute
28 controlled substances in violation of federal law, which is alleged as a racketeering
4
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Document 1260
1 act in these counts, is not “racketeering activity” within the meaning of the federal
2 RICO statute. Second, Counts One (substantive RICO) and Two (RICO conspiracy)
3 should be dismissed because the alleged conspiracy to distribute controlled
4 substances and the alleged conspiracy to commit extortion are a single conspiracy
5 and, therefore, cannot combine to form a pattern of racketeering activity. Third,
6 Count One (substantive RICO) should be dismissed because Racketeering Act Two
7 of Count One, which alleges that Mr.
conspired to commit extortion, fails to
8 allege the commission of an overt act. Fourth, Count Two (RICO conspiracy) should
9 be dismissed because the RICO conspiracy alleges both substantive crimes (i.e.,
10 murder, attempted murder, distribution of controlled substances, kidnapping and
11 extortion) and conspiracy to commit these very same crimes (i.e., conspiracy to
12 murder, conspiracy to distribute controlled substances, conspiracy to commit
13 kidnapping, and conspiracy to commit extortion) as racketeering acts which cannot
14 combine to form a pattern of racketeering activity. Fifth, Count Three (drug
15 conspiracy) should be dismissed because Mr.
cannot as a matter of law
16 conspire to distribute controlled substances with persons from whom he is extorting
17 proceeds of drug dealing.
18
II.
19
ARGUMENT
20 A.
COUNTS ONE, TWO AND SIX SHOULD BE DISMISSED BECAUSE
21
CONSPIRACY TO DISTRIBUTE CONTROLLED SUBSTANCES IN
22
VIOLATION OF FEDERAL LAW IS NOT “RACKETEERING
23
ACTIVITY” WITHIN THE MEANING OF THE FEDERAL RICO
24
STATUTE
25
In determining the scope of the federal RICO statute, the Court must first look
26 to the statutory language. United States v. Turkette, 452 U.S. 576, 580, 101 S. Ct.
27 2524, 69 L. Ed. 2d 246 (1981). The federal RICO statute defines “racketeering
28 activity” with an exhaustive list of specific federal crimes. See 18 U.S.C. §
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Filed 09/28/09 Page 10 of 20
1 1961(1)(B-G). Conspiracy to distribute controlled substances is not included in this
2 exhaustive list of crimes. See 18 U.S.C. § 1961(1). Such unambiguous statutory
3 language, "in the absence of a clearly expressed legislative intent to the contrary . . .
4 must ordinarily be regarded as conclusive."1 Turkette, 452 U.S. at 580.
5
While the federal RICO statute defines “racketeering activity” to include “the
6 felonious manufacture, importation, receiving, concealment, buying, selling, or
7 otherwise dealing in a controlled substance . . . punishable under any law of the
8 United States,” 18 U.S.C. § 1961(1)(E), a conspiracy to distribute a controlled
9 substance in violation of federal law does not require proof that a defendant
10 manufactured, imported, received, concealed, bought, sold, or otherwise dealt in a
11 controlled substance, see 21 U.S.C. § 846. Rather, the federal drug conspiracy statute
12 simply requires proof that the defendant agreed to accomplish an illegal objective and
13 intended to commit the underlying offense. United States v. Labrada Bustamante,
14 428 F.3d 1252, 1260 (9th Cir. 2005) (citation omitted). “[T]he Government need not
15 [even] prove the commission of any overt acts in furtherance of the conspiracy . . . .”
16 United States v. Shabani, 513 U.S. 10, 15, 115 S. Ct. 382, 130 L. Ed. 2d 225 (1994).
17 /
18
19
20
21
22
23
24
25
26
27
28
1
The Ninth Circuit has affirmed RICO convictions predicated on
conspiracy to violate state law (i.e., murder and extortion) racketeering acts. See
United States v. Fernandez, 388 F.3d 1199, 1224-25, 1260 (9th Cir. 2004); United
States v. Shyrock, 342 F.3d 948, 962-68 (9th Cir. 2003). The federal RICO statute
defines “racketeering activity” to include “any act or threat involving” various state
law crimes including murder and extortion. See 18 U.S.C. § 1961(1)(A). Unlike the
federal drug conspiracy statute which does not require proof of an overt act, see
United States v. Shabani, 513 U.S. 10, 15, 115 S. Ct. 382, 130 L. Ed. 2d 225 (1994),
California’s conspiracy statute requires proof of “some act . . . to effect the object” of
the conspiracy. See Cal. Penal Code § 184.
The Ninth Circuit has also held that conspiracy to violate the Hobbs Act in
violation of 18 U.S.C. § 1951(a) constitutes "racketeering activity" as defined under
18 U.S.C. § 1961(1)(B) because this provision of the federal RICO statute
specifically defines "racketeering activity" to include offenses indictable under 18
U.S.C. § 1951(a). United States v. Brooklier, 685 F.2d 1208, 1216 (9th Cir. 1982)
(per curiam). By contrast, the RICO statute’s definition of “racketeering activity”
with respect to federal drug crimes is expressly limited to “the felonious manufacture,
importation, receiving, concealment, buying, selling, or otherwise dealing in a
controlled substance . . . .” 18 U.S.C. § 1962(1)(D).
6
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1 For these reasons, conspiracy to distribute controlled substances in violation of
2 federal law is not “racketeering activity” as defined under the federal RICO statute.
3
Finding that conspiracy to distribute controlled substances in violation of
4 federal law is not “racketeering activity” as defined under the federal RICO statute
5 requires dismissal of Counts One, Two and Six. Count One, which charges a
6 substantive RICO violations, alleges conspiracy to distribute controlled substances as
7 one of the two racketeering acts committed by Mr.
. A substantive RICO
8 violation requires proof of at least two racketeering acts. See 18 U.S.C. § 1961(5).
9 Therefore, if conspiracy to distribute controlled substances is not “racketeering
10 activity,” Count One fails to state an offense because it fails to properly charge at
11 least two racketeering acts as required.
12
Although Counts Two and Six allege more than two racketeering acts,
13 dismissal of these counts is also proper upon finding that conspiracy to distribute
14 controlled substances is not “racketeering activity.” Count Two, which charges
15 RICO conspiracy, does not specify the “at least two acts of racketeering” to which
16 Mr.
allegedly agreed. See First Sup. Ind. at 11-12. Similarly, Count Six,
17 which charges VICAR, does not specify which of the multiple racketeering acts in
18 which the F-13 gang allegedly engaged. See id. at 34, 37. Given that the government
19 is only required to prove Mr
agreed that two of the alleged racketeering acts
20 would be committed for Count Two (RICO conspiracy), and that the F-13 gang was
21 engaged in only one of the of the alleged racketeering acts for Count Six (VICAR),
22 and the Court cannot determine the specific racketeering acts on which the grand jury
23 relied in returning a true bill as to Counts Two and Six, simply striking the conspiracy
24 to distribute controlled substances from the alleged racketeering acts would
25 substantively amend the indictment in violation of Mr.
Fifth Amendment
26 right to be tried only for those offenses presented in an indictment returned by a grand
27 jury. See Stirone v. United States, 361 U.S. 212, 217-19, 80 S. Ct. 270, 4 L. Ed. 2d
28 252 (1960) (amendment of indictment violates Fifth Amendment Grand Jury Clause).
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1 For this reason, the Court’s finding that conspiracy to distribute a controlled
2 substance in violation of federal law is not “racketeering activity” as defined under
3 the federal RICO statute requires dismissal of Counts Two and Six.
4 B.
COUNTS ONE AND TWO SHOULD BE DISMISSED BECAUSE THE
5
ALLEGED CONSPIRACY TO DISTRIBUTE CONTROLLED
6
SUBSTANCES AND THE ALLEGED CONSPIRACY TO COMMIT
7
EXTORTION ARE A SINGLE CONSPIRACY AND, THEREFORE,
8
CANNOT FORM A PATTERN OF RACKETEERING ACTIVITY
9
Racketeering Act One of Count One alleges that Mr.
10
, codefendant
and unnamed others conspired to distribute controlled substances
11 from an unknown date to September 27, 2007. First Sup. Ind. at 9-10. Racketeering
12 Act Two of Count Two alleges that Mr.
, Mr.
and unnamed others
13 conspired to extort money and property from persons conducting illegal activity in F14 13 territory from an unknown date to September 27, 2007. Id. at 10. Count Two
15 alleges that Mr.
conspired to participate in the affairs of an enterprise
16 through a pattern of racketeering activity that included conspiracy to distribute
17 controlled substances and conspiracy to commit extortion. Id. at 11. The government
18 does not contend that Mr.
19 the government contends that Mr.
directly participated in drug trafficking. Rather,
conspired to distribute controlled
20 substances by conspiring to extort money from persons who distributed controlled
21 substances in F-13 territory. See
Decl.; see also First Sup. Ind. at 13. The
22 alleged conspiracy to distribute controlled substances and the alleged conspiracy to
23 commit extortion are a single conspiracy and, therefore, cannot form a pattern of
24 racketeering activity.
25
A conspiracy is simply “the agreement or confederation of the conspirators to
26 commit one or more unlawful acts . . . .” Braverman v. United States, 317 U.S. 49,
27 53, 63 S. Ct. 99, 87 L. Ed. 2d 23 (1942). In Braverman, the United States Supreme
28 Court held that a single agreement to violate multiple provisions of the Internal
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1 Revenue laws could support a conviction on only one conspiracy charge. Id. at 54.
2 In so holding, the Court reasoned as follows:
3
[T]he precise nature and extent of the conspiracy must be determined by
4
reference to the agreement which embraces and defines its objects.
5
Whether the object of a single agreement is to commit one or many
6
crimes, it is in either case that agreement which constitutes the
7
conspiracy . . . . The one agreement cannot be take to be several
8
agreements and hence several conspiracies because it envisages the
9
violation of several statutes rather than one.
10 Id at 53; accord United States v. Broce, 488 U.S. 563, 570-71, 109 S. Ct. 757, 102 L.
11 Ed. 2d 927 (1989) (“A single agreement to commit several crimes constitutes one
12 conspiracy.”).
13
The Ninth Circuit considers the following five factors to determine whether
14 two conspiracy counts charge a single offense:
15
(1) the differences in the periods of time covered by the alleged
16
conspiracies; (2) the places where the conspiracies were alleged to have
17
occurred; (3) the persons charged as coconspirators; (4) the overt acts
18
alleged to have been committed; and (5) the statutes alleged to have been
19
violated.
20 United States v. Montgomery, 150 F.3d 983, 990 (9th Cir. 1998) (quoting United
21 States v. Stoddard, 111 F.3d 1450, 1454 (9th Cir. 1997)). Although Racketeering Act
22 One is charged under Title 21 of the United States Code while Racketeering Act
23 Number Two is charged under the California Penal Code, each of the remaining
24 factors weighs heavily in favor of a single conspiracy. Both racketeering acts cover
25 identical time periods, identical places and identical coconspirators. See First Sup.
26 Ind. at 9-10. While neither racketeering act alleges the commission of an overt act in
27 furtherance of the conspiracy, the government’s contention that Mr.
role in
28 the drug trafficking conspiracy results from his alleged efforts to extort money from
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1 drug traffickers operating in F-13 territory essentially concedes that the two
2 conspiracies in which Mr.
is alleged to have participated stem from a single
3 agreement. Therefore, these agreements can only support a single conspiracy charge.
4 Braverman, 317 U.S. at 53; see also United States v. Ansaldi, 372 F.3d 118, 124 (2d
5 Cir. 2004) (conspiracy to distribute GBL was multiplicitous of conspiracy to
6 distribute GHB where GHB conspiracy was predicated on the fact that GBL
7 converted to GHB in the body); United States v. Anderson, 872 F.2d 1508, 1520
8 (11th Cir. 1989) (three conspiracies charged under 18 U.S.C. § 371 were one
9 conspiracy where “proof at trial revealed an overall agreement, with the same overt
10 acts, covering the same general time frame, to violate various statutory provisions
11 concerning the procurement and sale or transfer of the same government munitions
12 and explosives”); Haji v. Miller, 584 F. Supp. 2d 498, 516-19 (E.D.N.Y. 2008)
13 (granting habeas relief to petitioner convicted of multiple drug conspiracies where
14 evidence established “a single, ongoing conspiratorial relationship).
15
Finding that the alleged conspiracy to commit extortion and the alleged
16 conspiracy to distribute controlled substances are a single conspiracy requires
17 dismissal of Counts One and Two. As previosly noted, a “‘pattern of racketeering
18 activity’ requires at least two acts of racketeering activity . . . .” 18 U.S.C. § 1961(5).
19 By charging a single conspiracy as the only two racketeering acts against Mr.
20
, Counts One and Two fail to allege a pattern of racketeering activity as
21 required under the RICO statute. Although Count Two alleges multiple other
22 racketeering acts as objects of the RICO conspiracy, simply striking one of the
23 conspiracy charges would substantively amend the indictment in violation of Mr.
24
Fifth Amendment right to be tried only for those offenses presented in an
25 indictment returned by a grand jury. Stirone, 361 U.S. at 217-19.
26 /
27 /
28 /
10
Case
Document 1260
Filed 09/28/09 Page 15 of 20
1 C.
COUNT ONE SHOULD BE DISMISSED BECAUSE RACKETEERING
2
ACT TWO WHICH ALLEGES CONSPIRACY TO COMMIT
3
EXTORTION FAILS TO ALLEGE THE COMMISSION OF AN OVERT
4
ACT
5
An indictment must set forth each element of the charged crime.
6 Almendarez Torres v. United States, 523 U.S. 224, 228, 118 S. Ct. 1219, 140 L. Ed.
7 2d 350 (1998). An indictment’s failure to allege each essential element of an offense
8 is fatal defect requiring dismissal of the charge. United States v. Keith, 605 F.2d 462,
9 464 (9th Cir. 1979). Conspiracy to commit extortion in violation of state law requires
10 proof of “some act . . . to effect the object” of the agreement. Cal. Penal Code § 184.
11 Racketeering Act Two of Count One fails to allege any such overt act and, therefore,
12 fails to properly charge a conspiracy. See United States v. Cecil, 608 F.2d 1294,
13 1296-97 (9th Cir. 1979) (dismissing conspiracy charge which failed to allege any
14 overt act); see also United States v. Dolan, 120 F.3d 856, 864 (8th Cir. 1997)
15 (government must allege commission of at least one overt act by on the conspirators
16 in furtherance of agreement “to prevent the indictment from being found defective on
17 its face”); United States v. Davis, 533 F.2d 921, 926 (5th Cir.1976) (indictment “must
18 allege and prove the commission of at least one overt act by one of the conspirators”);
19 United States v. Thompson, 125 F. Supp. 2d 1297, 1301-04 (D. Kan. 2000)
20 (conspiracy count dismissed for failure to allege commission of overt act within
21 period of statute of limitations). Because Count One charges Mr.
with only
22 two racketeering acts, and one of the these acts fails to state an offense because it fails
23 to allege the overt act required to sustain a conspiracy charge, Count One fails to
24 properly charge Mr.
with participating in the affairs of an enterprise through
25 a pattern of racketeering activity. See 18 U.S.C. § 1961(5) (“‘pattern of racketeering
26 activity’ requires at least two acts of racketeering activity”) (emphasis added).
27 /
28 /
11
Case
Document 1260
Filed 09/28/09 Page 16 of 20
1 D.
COUNT TWO SHOULD BE DISMISSED BECAUSE THE RICO
2
CONSPIRACY ALLEGES BOTH SUBSTANTIVE CRIMES AND
3
CONSPIRACY TO COMMIT THESE VERY SAME CRIMES AS
4
RACKETEERING ACTS WHICH CANNOT FORM A PATTERN OF
5
RACKETEERING ACTIVITY
6
To sustain the RICO conspiracy charged in Count Two, the government must
7 prove inter alia that Mr.
conspired to conduct or participated in the conduct
8 of F-13's affairs through a pattern of racketeering activity. 18 U.S.C. § 1962(d).
9 While a "’pattern of racketeering activity’ requires at least two acts of racketeering
10 activity," 18 U.S.C. § 1961(5), "proof of two acts of racketeering, without more, does
11 not establish a pattern." Sedima v. Imrex Co., Inc., 473 U.S. 479, 496 n.14, 105 S. Ct.
12 3275, 87 L. Ed. 2d 346 (1985) (citation omitted). Rather, "to prove a pattern of
13 racketeering activity, a . . . prosecutor must show that [at least two] racketeering acts
14 are related, and that they amount to or pose a threat of continued criminal activity."
15 H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 236, 109 S. Ct. 2983, 106 L.
16 Ed. 2d 195 (1989).
17
In Northwestern Bell, the Supreme Court relied on RICO's legislative history to
18 define "pattern" as follows:
19
A pattern is not formed by sporadic activity, and a person cannot be
20
subject to sanctions . . . simply for committing two widely separated and
21
isolated criminal offenses. Instead, [t]he term "pattern" itself requires
22
the showing of a relationship between the predicates, and of the threat of
23
continuing activity." It is this factor of continuity plus relationship
24
which combines to produce a pattern.
25 Id. at 239 (internal quotations and citations omitted).
26
By alleging both the substantive crime and the conspiracy to commit the crime
27 as separate racketeering acts, the Count Two RICO conspiracy fails to allege
28 sufficient facts which, if proven, would establish a "pattern of racketeering activity”
12
Case
Document 1260
Filed 09/28/09 Page 17 of 20
1 within the meaning of the RICO statute. Essentially, Count Two charges Mr.
2
with agreeing to commit the substantive crime and agreeing to agree to
3 commit the substantive crime. By allowing for a conviction based solely on Mr.
4
agreement that somebody would commit one of the alleged substantive
5 crimes, Count Two fails to allege that Mr.
agreed to the commission of at
6 least two racketeering acts as required. See 18 U.S.C. § 1961(5). Moreover, an
7 agreement to commit a crime and an agreement to agree to the commit the same crime
8 cannot establish a pattern of racketeering activity because there is no continuity – i.e,
9 no showing of the threat of continuing activity. See Northwestern Bell, 492 U.S. at
10 241 (threat of continued criminal activity can be established either by a closed period
11 of repeated conduct, or past conduct that by its nature contemplates a future threat of
12 repetition); see also Purvis v. Hamwi, 828 F. Supp. 1479, 1487-88 (D. Colo. 1993)
13 (two murders and assault which occurred during single episode was not a "pattern"
14 because it did not pose threat of continued criminal activity). Accordingly, Count
15 Two fails to state an offense against the United States.
16
Even though Count Two alleges multiple substance crimes as racketeering acts
17 and the government need only prove that Mr.
agreed that two of the
18 racketeering acts would be commited, the allegations of substantive crimes and
19 conspiracy to commit such crimes as separate racketeering acts requires dismissal of
20 Count Two. As previously noted, Mr.
has a Fifth Amendment right to be
21 tried only for those offenses presented in an indictment returned by a grand jury.
22 Stirone, 361 U.S. at 217-19. Count Two fails to specify the two particular
23 racketeering acts to which Mr.
agreed. Therefore, simply striking the
24 conspiracies from the racketeering activity alleged in Count Two would improperly
25 amend the indictment.
26 /
27 /
28 /
13
Case
1
E.
Document 1260
Filed 09/28/09 Page 18 of 20
COUNT THREE SHOULD BE DISMISSED BECAUSE MR.
2
CANNOT AS A MATTER OF LAW CONSPIRE TO DISTRIBUTE
3
CONTROLLED SUBSTANCES WITH PERSONS FROM WHOM HE IS
4
EXTORTING PROCEEDS OF DRUG DEALING
5
Count Three charges Mr.
with conspiracy to distribute controlled
6 substances in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846. It alleges that
7 he, codefendant
“and others known and unknown to the Grand Jury
8 conspired and agreed with each other to knowingly and intentionally distribute
9 controlled substances, including cocaine, cocaine base in the form of crack, and
10 methamphetamine . . . .” First Sup. Ind. at 32. It sets forth the means by which the
11 objects of the drug conspiracy were to be accomplished by incorporating paragraphs
12 2, 4-7 of Count Two (which charges a RICO conspiracy and alleges both a conspiracy
13 to distribute controlled substances and a conspiracy to commit extortion as
14 racketeering activity to which the defendants agreed). First Sup. Ind. at 33. The only
15 allegation of Mr.
involvement in the means by which the objects of the
16 conspiracy were to be accomplished is that he “would help defendant RINCON
17 collect drug trafficking proceeds from individuals trafficking drugs in the F13 Gang’s
18 territory.” Id. at 13. The government’s theory as to Mr.
involvement in the
19 drug conspiracy is that he participated in the “taxing” (i.e., extortion) of drug dealers
20 who operated in territory controlled by the F-13 gang.
21
As a matter of law, Mr.
Decl. ¶ 2.
cannot conspire to distribute controlled
22 substances by extorting money from drug dealers. A conspiracy requires a meeting of
23 the minds – a common agreement to achieve a particular criminal objective or
24 objectives. See Braverman, 317 U.S. at 53 (“gist of crime of conspiracy . . . is the
25 agreement or confederation of the conspirators to commit one or more unlawful acts .
26 . . . [T]he precise nature and extent of the conspiracy must be dtermined by reference
27 to the agreement which embraces and defines its objects.”). Contrary to the
28 government’s theory, Mr.
cannot conspire with the very drug traffickers who
14
Case 8
Document 1260
Filed 09/28/09 Page 19 of 20
1 are victims of his alleged extortion because the drug dealers would never willingly
2 agree to be victims of extortion and, therefore, never share Mr.
alleged
3 criminal purpose. For these reasons, Count Three fails to state an offense.
4
III.
5
CONCLUSION
6
For each of the foregoing reasons, Counts One, Two, Three and Six of the First
7 Superseding Indictment fail to state an offense against the United States and should
8 be dismissed.
9
10
11 Dated: September 28, 2009
12
ndant
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15
Case
Document 1260
1
Filed 09/28/09 Page 20 of 20
DECLARATION OF
2
I,
, hereby state and declare the following:
3
1. I am an attorney licensed to practice law in the State of California and
4 admitted to practice law in the Central District of California. I have been appointed
5 by the Court to represent
6
in this case.
2. On or about June 18, 2009, Assistant United States Peter Hernandez advised
7 me that the government was unaware of any evidence of Mr.
direct
8 participation in the distribution of controlled substances.
9
3. On that same date, Mr. Hernandez further stated that the government’s
10 theory with respect to Mr.
alleged participation in the conspiracy to
11 distribute controlled substances which is charged as Racketering Act One of the First
12 Superseding Indictment is that Mr.
participated in the “taxing” of narcotics
13 dealers who operated in territory controlled by the F-13 gang. I understood the
14 “taxing” of narcotics dealers to mean extortion of money from such persons.
15
I declare under penalty of perjury that the foregoing is true and correct.
16
17 Dated: September 28, 2009
18
19
20
21
22
23
24
25
26
27
28
16
Case
Document 451
1
2
3
4
5
6
7
8
9
10
SOUTHERN DIVISION
11
12
Plaintiff,
13
v.
14
15
Defendant.
16
)
)
)
)
)
)
)
)
)
)
)
NO.
TO STRIKE RACKETEERING
ACT NINE; MEMORANDUM OF
POINTS AND AUTHORITIES
17
18
19
EVANS:
20
21
22
23
and through his attorney of record
24
order striking racketeering act nine in count one of the indictment, and consolidating
25
its allegations into racketeering act eight. This motion is brought on the ground that
26
racketeering act nine is part of the same incident as racketeering act eight and,
27
therefore, cannot combine to form a pattern of racketeering activity as required under
28
the statute.
, by
, will and hereby does move for an
Case
Document 451
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
Case
Document 451
1
2
I.
3
STATEMENT OF FACTS
4
Defendant
is charged in count one of the
5
indictment with conspiracy to participate in the affairs of an enterprise (i.e., the Mara
6
Salvatrucha or “MS-13" gang) through a pattern of racketeering activity in violation
7
of 18 U.S.C. § 1962(d). Count one alleges that the pattern of racketeering activity
8
through which Mr.
9
included racketeering acts eight and nine. Racketeering act eight alleges that, from
r conspired to participate in MS-13's affairs
10
the Fall 2002 to on or about January 22, 2003, Mr.
11
murder Erick Flores, aka “Moreno” and Ileana Lara, aka “Mousey,” and, on or about
12
January 22, 2003, murdered or aided and abetted the murder of Erick Flores. See
13
Indictment at 18-19. Racketeering act nine alleges that, on or about January 22,
14
2003, Mr.
15
Lara, aka “Mousey.” See Indictment at 19-20. The evidence on which the
16
government relied to obtain an indictment establishes that Erick Flores and Ileana
17
Lara were shot and killed at the same time and place during a single incident.
murdered or aided and abetted the murder of Ileana
18
II.
19
ARGUMENT
20
21
conspired to
Count one requires the government to prove inter alia that Mr.
conspired to conduct or participated in the conduct of MS-13's affairs
22
through a pattern of racketeering activity. 18 U.S.C. § 1962(d). While a "’pattern of
23
racketeering activity’ requires at least two acts of racketeering activity," 18 U.S.C. §
24
1961(5), "proof of two acts of racketeering, without more, does not establish a
25
pattern." Sedima v. Imrex Co., Inc., 473 U.S. 479, 496 n.14, 105 S. Ct. 3275, 87 L.
26
Ed. 2d 346 (1985) (citation omitted). Rather, "to prove a pattern of racketeering
27
activity, a . . . prosecutor must show that [at least two] racketeering acts are related,
28
and that they amount to or pose a threat of continued criminal activity." H.J. Inc. v.
3
Case
Document 451
1
Northwestern Bell Tel. Co., 492 U.S. 229, 236, 109 S. Ct. 2983, 106 L. Ed. 2d 195
2
(1989). To prove that two acts amount to or pose of threat of continued criminal
3
activity, the government must prove either that the acts were committed within a
4
closed period of repeated conduct, or that the acts by their nature contemplate a
5
future threat of repetition. Id. at 241.
6
Erick Flores and Ileana Lara were killed at the same place and time during a
7
single incident. Their killings do not constitute a closed period of repeated conduct,
8
nor do their killings by their nature contemplate a future threat of repetition.
9
Accordingly, the alleged murders of Erick Flores and Ileana Lara do not amount to or
10
pose of threat of continued criminal activity and, therefore, cannot form a pattern of
11
racketeering activity as charged in count one. See Purvis v. Hamwi, 828 F. Supp.
12
1479, 1487-88 (D. Colo. 1993) (two murders and assault which occurred during
13
single episode was not a "pattern" because the acts did not pose threat of continued
14
criminal activity).
15
III.
16
CONCLUSION
17
18
Court strike racketeering act nine and consolidate its allegations into racketeering act
19
eight.
20
21
22
23
24
25
26
27
28
4
SAMPLE MOTION
PRACTICE: SEVER
Case
Document 444
1
2
3
4
5
6
7
8
9
10
SOUTHERN DIVISION
11
12
Plaintiff,
13
v.
14
15
Defendant.
16
17
)
)
)
)
)
)
)
)
)
)
)
NO.
TO SEVER TRIA
M
DANT
AND A
NATIVE
TO EXCLUDE
TEMENTS OF
;
OF POINTS AND
AUTHORITIES
18
19
20
21
EVANS:
22
23
24
25
and through his attorney of record
26
order severing his trial from the trial of codefendant
27
Mr. V
28
, by
, will and hereby does move for an
. Alternatively,
moves for an order excluding all custodial statements of
which implicate Mr.
in any way.
Case
1
Document 444
This motion is brought pursuant to Fed. R. Crim. P. 14, and is based on the
2
attached Memorandum of Points and Authorities, the files and records in this case,
3
and any additional argument that may be presented at or before the hearing on this
4
motion.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
Case
Document 444
1
2
I.
3
STATEMENT OF FACTS
4
Defendant
(aka “Jute,” aka Herbert Perraza) is
5
charged with conspiracy to commit racketeering (count 1), the murders of Erick
6
Flores and Illeana Lara for the purpose of maintaining and increasing his position in
7
the racketeering enterpise (counts 4 and 5), and conspiracy to distribute narcotics
8
(count 16). The alleged racketeering enterprise is Mara Salvatrucha (“MS-13") of
9
which Nelson Commandari was a known leader. The two murders with which Mr.
10
r is charged are alleged as predicate acts of the racketeering
11
conspiracy (racketeering acts 8 and 9). Codefendant
12
conspiracy to commit racketeering (count 1) and conspiracy to distribute narcotics
13
(count 16). Mr.
14
and trial is set for October 2010.
and Mr.
is charged with
have both pleaded not guilty,
15
On February 9, 2006, Mr. Bolanos gave a statement to the FBI while in
16
custody which implicates Mr. Vasquez-Landaver. See Exh. A at 3. Specifically, Mr.
17
told the FBI that he was present at a meeting in the Rampart area of Los
18
Angeles when Flores murder was discussed; that Mr.
was present
19
at this meeting; and that Nelson Commandari ordered the killing of Flores.1 Id.
20
According to his attorney, Mr.
21
privilege against self-incrimination and not testify at trial.
22
/
23
/
24
/
25
/
will likely excercise his Fifth Amendment
Decl. ¶ 2.
26
27
1
Mr.
28 (aka “Negro”) an
charged. See Exh.
t also implicates codefendants
in the Flores murder with whic
3
Case
Document 444
1
II.
2
ARGUMENT
3
A.
THE COURT SHOULD SEVER MR.
TRIAL
4
FROM MR.
5
Rule 14 of the Federal Rules of Criminal Procedure provides as follows:
6
TRIAL
(a) Relief. If the joinder of . . . defendants in an indictment . . .
7
appears to prejudice a defendant . . . the court may . . . sever the
8
defendants' trials, or provide any other relief that justice requires.
9
(b) Defendant's Statements. Before ruling on a defendant's motion
10
to sever, the court may order an attorney for the government to deliver to
11
the court for in camera inspection any defendant's statement that the
12
government intends to use as evidence.
13
Fed. R. Crim. P. 14. The decision as to whether to sever co-defendants remains
14
within the sound discretion of the trial court. United States v. Sherlock, 962 F.2d
15
1349, 1359 (9th Cir. 1992).
16
In Zafiro v. United States, 506 U.S. 534, 113 S. Ct. 933, 122 L. Ed. 2d 317
17
(1993), the Supreme Court held that the trial court should sever the defendants' trials
18
"if there is a serous risk that a joint trial wold prejudice a specific trial right of one of
19
the defendants, or prevent the jury from making a reliable judgment about guilt or
20
innocence." Id. at 539. Here, the Court should sever Mr.
21
from Mr.
22
prejudice Mr. V
23
prevent the jury from making a reliable judgment about Mr.
24
guilt or innocence.
25
26
trial because there is a serious risk that a joint trial would
Sixth Amendment right to confrontation, and
The serious risk that a joint trial would prejudice Mr.
right
to confrontation arises because the government is likely to introduce at trial Mr.
27
28
trial
custodial statement to the FBI which implicates Mr.
and Mr. B
is likely to exercise his privilege against self-incrimination and
4
Case 2
Document 444
1
not testify at trial. The Advisory Committee Notes to the 1966 amendment to Rule
2
14 specifically recognize the possibility of prejudice and the need for a severance in
3
this situation:
4
A defendant may be prejudiced by the admission in evidence against a
5
co-defendant of a statement or conversation made by that co-defendant.
6
The prejudice cannot be dispelled by cross-examination if the co-
7
defendant does not take the stand. Limiting instructions to the jury may
8
not in fact erase the prejudice.
9
10
Advisory Comm. Notes, Fed. R. Crim. P. 14, 1966 Amend.
In Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476
11
(1968), the United States Supreme Court recognized that a limiting instruction to the
12
jury stating that it may not consider a non-testifying co-defendant's extrajudicial
13
statement which incriminates the defendant as evidence against the defendant is not
14
sufficient to protect the defendant's Sixth Amendment right to confrontation. Id. at
15
135-36. The Court reasoned as follows:
16
[T]here are some contexts in which the risk that the jury will not, or
17
cannot, follow instructions is so great, and the consequences of failure
18
so vital to the defendant, that the practical and human limitations of the
19
jury system cannot be ignored. Such a context is presented here, where
20
the powerfully incriminating extrajudicial statements of a codefendant,
21
who stands accused side-by-side with the defendant, are deliberately
22
spread before the jury in a joint trial . . . . It was against such threats to
23
a fair trial that the Confrontation Clause was directed.
24
Id. Thus, the Confrontation Clause bars the use of a non-testifying co-defendant's
25
extrajudicial statement which incriminates the defendant and which is not otherwise
26
admissible against the defendant. Id. at 126. Accordingly, if the government intends
27
to use Mr.
28
sever his trial from Mr.
post-arrest statement as evidence against him, the Court should
rial.
5
Case
1
B.
Document 444
ALTERNATIVELY, THE COURT SHOULD EXCLUDE ALL
2
CUSTODIAL STATEMENTS OF MR.
3
MR.
4
The Supreme Court has recognized that a severance may not be necessary
WHICH IMPLICATE
IN ANY WAY
5
when the non-testifying co-defendant's statement is redacted to eliminate any
6
reference to the defendant and the jury is given a proper limiting instruction. See
7
Richardson v. Marsh, 481 U.S. 200, 211, 481 S. Ct. 200, 95 L. Ed. 2d 176 (1987).
8
Any such redaction must "eliminate, not only the defendant's name, but any reference
9
to his or her existence." Id. at 211. The Supreme Court has made it clear that a co-
10
defendant's redacted confession must not reference the defendant by implication,
11
such as by "replac[ing] a name with an obvious blank space or symbol or word such
12
as 'deleted.'" Gray v. Maryland, 523 U.S. 185, 189, 118 S. Ct. 1151, 140 L. Ed. 2d
13
294 (1998); see also United States v. Peterson, 140 F.3d 819, 822 (9th Cir. 1998)
14
("substitution of a neutral pronoun or symbol on place of the defendant's name is not
15
permissible if it is obvious that an alteration has occurred to protect the identity of a
16
specific person"); United States v. Parks, 285 F.3d 1133, 1139 (9th Cir. 2002) (non-
17
testifying co-defendant's statement was not properly redacted because jury could infer
18
that defendant was an accomplice).
19
In order to adequately redact Mr.
custodial statement, virtually all of
20
the statement should be excluded. Mr.
21
meeting in Rampart when they discussed Flores’ murder,” invites the jury to
22
speculate about the other participants in the meeting which leads to the obvious
23
inference that the charged defendants, including Mr.
24
in this meeting. Mr.
25
the meeting obviously inculpates Mr.
26
statement that Nelson Commandari ordered the murders is evidence that the murders
27
were part of a pattern of racketeering activity and were committed for the purposes of
28
maintaining and increasing the defendants’ position in the racketeering enterprise.
statement that he was “present at a
statement that Mr.
, participated
was present at
Finally, Mr.
6
Case
1
2
Document 444
Absence a severance, the admission of this evidence would violate Mr.
Sixth Amendment right to confrontation.
3
III.
4
CONCLUSION
5
6
7
Court to order that his trial be severed from the trial of the co-defendant
Alternatively, Mr. V
respectfully requests that the Court
8
order the government to not elicit any testimony at trial concerning Mr.
9
custodial statement.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
Case
1
Document 444
DECLARATION OF
2
I,
hereby state and declare the following:
3
1. I am an attorney licensed to practice law in the State of California and
4
admitted to practice law in Federal District Court for the Central District of
5
California. I have been appointed by the Court to represent
6
7
8
9
10
11
-
in the above-entitled case.
2. On March 31, 2010, I spoke with attorney
attorney of record for codefendant
. Mr.
is the
. Mr. Solis advised me that Mr.
will likely excercise his Fifth Amendment privilege against selfincrimination and not testify at trial.
I declare under penalty of perjury under the laws of the United States of
12
America that the foregoing is true and correct. Executed on this 31st day of March
13
2010, at Santa Ana, California.
14
15
s/
16
17
18
19
20
21
22
23
24
25
26
27
28
8

Gangs, RICO and Avoiding Guilt by Association

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