Opinion
U.S.D.C. No. 05CR0859-DMS.
September 9, 2005
SHEREEN J. CHARLICK California Bar, FEDERAL DEFENDERS OF SAN DIEGO, INC. San Diego, California, Attorneys for Defendant Heraldez-Martinez
STATEMENT OF FACTS, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS
I. STATEMENT OF FACTS
For purposes of these motions and pre-trial court proceedings, Mr. Heraldez-Martinez proceeds as charged under the name Jesus Heraldez-Martinez. Nothing stated by counsel or in these pleadings should be used as any sort of admission against the defendant in this case.
Mr. Heraldez-Martinez is charged with knowingly and willfully making a false statement, by representing that his name was Estevan Herrera Holguin to Customs and Border Protection Officer M. Cadena on May 6, 2005.
Mr. Heraldez-Martinez has had a number of deportation proceedings where he is charged via notices to appear and referred to by various names and has criminal convictions under different names. He has also been charged as Jesus Heraldez-Martinez in federal court on August 20, 2004 with attempted illegal reentry. There are trial transcripts of Mr. Heraldez's testimony from that trial.
After this conviction, he was brought into INS custody where he was also charged with a notice to appear as Jesus Heraldez-Martinez and ordered deported. There are tapes of this proceeding which defense counsel have not yet received.
Defense counsel has received 600+ pages of discovery which include these various criminal convictions, deportation documents dating back more than twenty years, transcripts from a federal prosecution from Colorado, and many other documents contained in Mr. Heraldez-Martinez's A-file. The government has not yet identified, in spite of defense requests made in the first set of motions filed in this case, the prior acts and prior statements which it would seek to introduce in this upcoming trial.
The defense is also still litigating the issue of the ex parte motion which was filed publicly, contrary to Mr. Heraldez's intent and common practice and motions regarding sealing that ex parte filing remain pending with Judge Moskowitz.
Judge Moskowitz has ordered sealed all motions filed by the undersigned and he also ordered sealed the transcript of the hearing on that ex parte motion. He is aware of the upcoming trial date in this cause but has indicated that he believes that the issue of recusing the United State Attorney.
II. IN LIMINE MOTION
A. Motion to Exclude All Reference To Prior Criminal Convictions, Deportation Proceedings Deportation Documents As Irrelevant, Overly Prejudicial, Likely to Confuse and Mislead the Jury and Prolong the Trial as well as in Some Instance Barred Under Collateral Estoppel Principles.This case is a very simple one. The government has accused Mr. Heraldez-Martinez of making a false representation about his name to a federal officer on May 6, 2005. That he may have signed documents referred to himself under other names in the past when he was charged under those other names and/or was referred to by notices to appear, immigration documents, state court criminal charging documents and federal criminal charging documents, is not at all relevant to this case. For example, the government has indicated that it will definitively introduce a notice to appear which is a document charging Mr. Heraldez with begin an alien and verifying that he was removed from the United States. It contains Mr. Heraldez's photo and fingerprint but it states: "Alien's full name: Heraldez-Martinez, Jesus, aka Soto-Mejorado, Rafael." Because the document refers to Mr. Heraldez-Martinez as Mr. Heraldez-Martinez, it does not leave him the option of signing as anyone else. It also does not provide a space for any explanation regarding a name. There are also a number of other documents in the A-file which indicate that Mr. Heraldez is also referred to as Mr. Estevan Herrera Holguin, thus, this document would require the defense to introduce a host of other documents to rebut this one, all of which are truly irrelevant to the charge in this case.
The government indicates that it may not introduce many of these documents. The defense and the government are attempting to meet and confer regarding the government's proposed trial exhibits. This meeting may eliminate some defense motions.
In addition, the issue of the validity of Mr. Heraldez-Martinez's alienage and deportation was already litigated and the government is collaterally estopped from relitigating those issues in this case. Principles of collateral estoppel are incorporated into criminal prosecutions via the Due Process Clause. United States v. Ford, 371 F.3d 550, 554 (9th Cir. 2004). The three elements of collateral estoppel are: (1) are the issues in the two actions identified so that the court can determine whether they are sufficiently similar and material; (2) second, were the issues fully litigated and; (3) whether the similar issue(s) were necessarily decided. Id. In fact, in United States v. Barragan-Cepeda, 29 F.3d 1378, 1381-82 (9th Cir. 1994), this test was applied in a section 1326 case. There, this Circuit held that the issue of the defendant's alienage was necessarily litigated and determined favorably to the defendant. Id. Thus, the government was collaterally estopped from attempting to relitigate the issue in subsequent proceedings. Id. The government is trying to relitigate this issue by introducing these documents which suggest to the jury that Mr. Heraldez-Martinez is an undocumented alien. They are collaterally estopped from doing so.
The government should be precluded from admitting any documents suggesting that Mr. Heraldez is an alien under Federal Rule of Evidence 403. It will unduly prejudice him, it will mislead the jury, confuse the simple issues in this case and waste time. Introducing these documents will force the defense to relitigate the entire prior trial — at a minimum the defense would have to introduce certified copies of the charging document, the judgment of acquittal and perhaps transcripts of certain portions of testimony simply to rebut the unfair and inaccurate inference that Mr. Heraldez-Martinez is an undocumented alien in this false statement case. Introducing these documents to the jury will also mislead jurors into believing that Mr. Heraldez-Martinez is an undocumented alien who should not be attempting to enter this country when in fact, the federal government has not charged him with making a false representation as to his citizenship nor have they charged him with attempted unlawful entry. See Indictment. The government is clearly barred under both collateral estoppel principles and this Court should apply Federal Rule of Evidence 403 to prohibit introduction of any documents or exhibits suggesting that Mr. Heraldez is an undocumented alien.
While it is true that the government has not charged Mr. Heraldez with violating 8 U.S.C. § 1326 again, their efforts to introduce this evidence is a back-door effort to re-litigate these issues when they are collaterally estopped from challenging Mr. Heraldez in criminal court as to alienage.
Similarly, that Mr. Heraldez-Martinez has criminal convictions under the name of Jesus Heraldez-Martinez is not probative of any point because he also has criminal convictions under the name of Estevan Herrera Holguin. It would be overly prejudicial for the jury to learn that he has multiple (or even one for that matter) criminal convictions. In addition, these convictions in most instances years before the instant prosecution, thus lack all temporal relevancy. Under Fed.R.Evid. 403, this evidence lacks sufficient probative value and is unduly prejudicial.
Finally, to the extent that these documents contain statements by immigration officials, i.e., law enforcement officers, they should not be admitted absent unavailability and the prior opportunity for confrontation. See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). B. No Proper Notice Has Been Given Regarding Prior Act Evidence, Thus, the Proper Inquiry Under The Rule Cannot Be Conducted.
While this Circuit has recently held that at least one immigration document is somehow exempt from this requirement, see United States v. Cervantes-Flores, ___ F.3d ___, 2005 WL2027646 (9th Cir. August 24, 2005) (exempting warrant of deportation from cross-examination), a rehearing petition is being prepared by the undersigned's office and will be filed in this case.
The defense has requested in its previously-filed motions proper notice under Federal Rule of Evidence 404(b) of any prior act evidence sought to be introduced. This would include prior statements made by Mr. Heraldez-Martinez, at times other than those pertinent to this single-count non-conspiracy charge. No such notice has been provided. The government must provide "reasonable notice in advance of trial" of any evidence of "other crimes, wrongs, or acts" it plans to introduce. Fed.R.Evid. 404(b); United States v. Vega, 188 F.3d 1150, 1154 (9th Cir. 1999). "Complete" notice is required, see Vega, 188 F.3d at 1152, meaning it must states the basis for the introduction of the evidence. See United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982); see also United States v. Mayans, 17 F.3d 1181 (9th Cir. 1994) ("[T]he government `must articulate precisely the evidential hypothesis by which a fact of consequence may be inferred from the other acts evidence'").
While Mr. Heraldez can only speculate as to what the government may introduce, he believes they may seek to introduce tapes of deportation hearings which it has not produced to the defense and a tape and/or transcript of an arraignment which it has yet to produce. Proper Rule 404(b) notice has not been given in order to admit testimony regarding either, Rule 404(b)'s requirements are not satisfied and the admission of this evidence is overly prejudicial.
Here, the government must demonstrate how the proffered evidence is relevant to one or more issues in the case. Mehrmanesh, 689 F.2d at 830 (9th Cir. 1982). Absent this, the evidence should be excluded. Once again, since Mr. Heraldez-Martinez is referred to by that name and charged under that name, introduction of these documents lacks sufficient relevance. Also, it would force the defense to explain by introducing the myriad of other immigration documents under the Herrera Holguin name and various transcripts from the first trial to explain and put into context the immigration tapes. Under Federal Rule of Evidence 404(b), all such evidence cannot be admitted absent proper notice and an evidentiary basis for its admission. Under Rule 403, its admission would unduly confuse, mislead and waste the jury's time as well as unduly prejudice Mr. Heraldez-Martinez. C. Motion To Require Advance Notice of Government Exhibits In Light Of The Voluminous Discovery in This Case.
This is true even if some of these "prior acts" can be characterized as "party admissions." United States v. Maden, 114 F.3d 155, 157 (10th Cir. 1997) (holding party admissions under Rule 801(d)(2) subject to Rule 404(b)); United States v. Johnson, 872 F.2d 612, 623-24 (5th Cir. 1989) (subjecting statements to both 801 (d)(2)(E) and 404 (b)); United States v. Blanche, 149 F.3d 763, 769 (8th Cir. 1998) (audiotape of jail cell conversation an admission of a party opponent and admissible under 404 (b)); United States v. Porter, 544 F.2d 936, 939 (8th Cir. 1976) (defendant's admission to dealing drugs admissible under both 801 (d)(2) and 404(b)); United States v. Nance, 1995 WL 541695, at **5 (4th Cir. 1995) (unpublished opinion) (error for court to admit statement under 801(d)(2) after it had found it irrelevant under 404 (b)).
The Tenth Circuit has squarely addressed why party admissions under Rule 801 (d)(2) are subject to exclusion under Rule 404(b) in United States v. Oberle, 136 F.3d 1414, 1418 (10th Cir. 1998), noting that "although the statements are party admissions under Rule 801(d) and thus not hearsay, they must nonetheless also be analyzed for admissibility under Rule 404(b) because they reveal or suggest prior criminal conduct." To take a contrary approach would be to disregard the framework of the Federal Rules of Evidence. See Fed.R.Evid. 402 (relevant evidence admissible except as provided "by these rules").
According to persuasive authorities, even if the statements are party admissions, they remain subject to Rule 404(b)'s requirements.
As noted above, this request may become moot as the parties are meeting during the week of September 12 to discuss these matters. However, if necessary, the government should be ordered to provide an advance exhibit list, to which they are bound, so that time is not wasted at trial with the defense ensuring that they have and can properly address the proposed exhibits. This request is made because of the extremely voluminous nature of the discovery which for the most part, does not relate temporally or in terms of subject matter to this case.
III. CONCLUSION
For the foregoing reasons, Mr. Heraldez-Martinez respectfully requests that the Court grant the above motions.