Opinion
Case No. 12-20322-CR-SEITZ Case No. 12- 20400-CR-SEITZ Case No. 13- 20455-CR-SEITZ
12-22-2015
UNITED STATES OF AMERICA v. RICARDO AMADOR BALLESTEROS GARCIA, a/k/a "Ricardo Amador Ballesteros," a/k/a "Ricardo Amador Ballester," a/k/a "Alejandro Alvarez Abreu," Defendant.
cc: Counsel of Record Pro se Defendant
ORDER DENYING DEFENDANT'S MOTION IN LIMINE TO PRECLUDE CERTAIN ARGUMENTS
THIS MATTER is before the Court on Defendant's Motion in Limine to Preclude Certain Arguments Presented by Both Parties to the Probation Officer Who Prepares the Pre-Sentence Investigation Report (P.S.I.) [Case No. 12-20322, DE 113; Case No. 12-20400, DE 133; Case No. 13-20455, DE 118] and the Government's Response [Case No. 12-20322, DE 119; Case No. 12-20400, DE 139; Case No. 13-20455, DE 124]. Defendant seeks to preclude both parties from "presenting self-serving hearsay or inculpatory arguments not proven during the jury trial" to the Court or probation officer preparing the P.S.I., because he was acquitted of the conspiracy and bank fraud charges and certain evidence was objected to and excluded at trial. Specifically, Defendant moves to exclude any evidence relating to any bank losses and to whether Defendant obstructed justice, which he insists the jury "completely disregarded."
Defendant's motion has no merit. As the Government correctly explains, sentencing is different than a jury trial: different procedures, burdens of proof, and rules may apply in sentencing proceedings. Federal Rule of Criminal Procedure 32 sets forth the proper contents and inquiries for the P.S.I. In determining an appropriate sentence, the Court has "[n]o limitation" on its ability to consider a convicted defendant's "background, character, and conduct." 18 U.S.C. § 3661. Accordingly, the Court may consider any "reliable" evidence even if it falls short of the requirements of the Federal Rules of Evidence. See United States v. Paisley, 178 F. App'x 955, 962 (11th Cir. 2006); see also Fed. R. Evid. 1101(d)(3) (noting that the Federal Rules of Evidence do not apply to sentencing proceedings). The Court may also consider "both uncharged and acquitted conduct" where proven by a preponderance of the evidence. United States v. Myles, 314 F. App'x 164, 167 (11th Cir. 2008). Therefore, it is
ORDERED THAT
(1) Defendant's Motion in Limine to Preclude Certain Arguments Presented by Both Parties to the Probation Officer Who Prepares the Pre-Sentence Investigation Report (P.S.I.) [Case No. 12-20322, DE 113; Case No. 12-20400, DE 133; Case No. 13-20455, DE 118] is DENIED.
(2) Defendant's request for a hearing on this motion is likewise DENIED.
DONE AND ORDERED in Miami, Florida, this 22nd day of December 2015.
/s/_________
PATRICIA A. SEITZ
UNITED STATES DISTRICT JUDGE cc: Counsel of Record
Pro se Defendant