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United States v. Aleman

United States District Court, N.D. Georgia, Atlanta Division

March 28, 2017

UNITED STATES OF AMERICA,
v.
BLAS ALEMAN, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Blas Aleman's (“Defendant”) motions in limine [230], [307] - [311], [342] (“Defendant's Motions”) and the Government's motions in limine [317] - [319] (“Government's Motions”).

         I. BACKGROUND[1]

         On March 8, 2017, Defendant filed his Motions. Defendant seeks to exclude the following categories of evidence: (1) testimony or evidence concerning alleged drug activity by Defendant in 2005 or at any other time; (2) deposition testimony of Filiberto Alanis-Soto; (3) testimony by others concerning Alanis-Soto's identification of Defendant by photograph or at deposition; and (4) testimony concerning the circumstances under which Defendant was in Mexican custody and extradited to the United States. Defendant also seeks to admit documents corroborating his alibi defense, including (a) medical prescriptions [253.7] and (b) utility bills that were the subject of Sara Cruz Garcia's (“Ms. Cruz”) January 10, 2017, deposition testimony.

         On March 9, 2017, the Government filed its Motions. The Government seeks to exclude the following categories of evidence: (1) exhibits and testimony from Ms. Cruz's deposition; and (2) evidence regarding Alanis-Soto's sentence reduction. The Government also seeks to allow evidence of Defendant's alleged 2005 drug activity under Federal Rule of Evidence 404(b) or as intrinsic evidence.

         On March 21, 2017, the Government filed its reply brief regarding its Rule 404(b) motion, indicating that it no longer intends to introduce evidence of Defendant's prior drug trafficking activity. Instead, the Government intends to present evidence that Defendant took precautions to conceal his presence in the Atlanta area, and seeks to introduce the outstanding warrant from his 2005 arrest to explain that conduct. In response to this change in position, on March 22, 2017, Defendant filed his supplemental reply [342], arguing that the 2005 warrant is improper 404(b) evidence and is irrelevant and prejudicial character evidence.

         II. DISCUSSION

         A. Motions Regarding Alanis-Soto

         The Court first considers the parties' motions that relate to the testimony of Alanis-Soto. Defendant seeks to exclude (1) the deposition testimony of Filiberto Alanis-Soto; and (2) testimony by others concerning Alanis-Soto's identification of Aleman. The Government seeks to preclude evidence of Alanis-Soto's sentence reduction. On March 27, 2017, the Court issued an order requiring Alanis-Soto's release from detention, by releasing him to the custody of immigration officials for further immigration processing, including removal if appropriate. ([347]). It is unclear, at this time, whether Alanis-Soto will be available and called at trial.

         1. Alanis-Soto's Guideline Reduction

         In 2010, Alanis-Soto was sentenced to a term of 117 months. In March 2015, the Court reduced his sentence by nine (9) months, after the United States Sentencing Commission issued an amendment that lowered the offense levels ascribed to drug quantities in the Sentencing Guidelines Manual. The Government seeks to preclude Defendant from introducing evidence of the sentence reduction, arguing it is irrelevant and prejudicial. The Court agrees. Alanis-Soto's sentence reduction based on the 2014 amendment to the Sentencing Guidelines is not relevant to any issue, including Alanis-Soto's credibility, because the sentence reduction was not connected to Alanis-Soto's cooperation or any other conduct in which he engaged in this action after he was convicted. Evidence of the sentence reduction is not admissible and the Government's motion is granted.

         2. Use of Alanis-Soto's Deposition

         In June 2009, Alanis-Soto pleaded guilty to conspiracy to possess with intent to distribute cocaine and methamphetamine. ([95]). In 2010, the Court sentenced him to a term of 117 months, which was later reduced, pursuant to 18 U.S.C. § 2582(c)(2), to 108 months . ([138], [139], [199]). On August 26, 2013, the Government showed Alanis-Soto a six-photograph lineup, and Alanis-Soto identified Defendant's photograph. On August 13, 2014, the Government showed Alanis-Soto a separate six-photograph lineup, and Alanis-Soto again identified Defendant's photograph. Alanis-Soto signed and dated each lineup.

         After Alanis-Soto served his term, the Government arrested him on a material witness warrant in connection with the trial of his alleged co-conspirator, Defendant Blas Aleman. On June 23, 2016, the Government deposed Alanis-Soto. Defendant and his counsel were present at the deposition, and Defendant's counsel cross-examined Alanis-Soto during the deposition.

         Defendant first argues that admitting the deposition at trial requires that the Government show exceptional circumstances to do so. Defendant's argument misconstrues the applicable standard. Rule 15 of the Federal Rules of Criminal Procedure provides that a court may grant a motion for a pretrial deposition because of “exceptional circumstances and in the interest of justice.” Fed. R. Crim. P. 15(a)(1). The question here is not whether a deposition should be taken. Rather, the question is whether the deposition may be used at trial. In Crawford v. Washington, the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 541 U.S. 36, 54 (2004). Here, the statements at issue are testimonial. There is no question that Defendant had a prior opportunity to cross-examine Alanis-Soto at the deposition.

         The question remains whether Alanis-Soto will be unavailable to testify at trial. The burden of proof rests with the Government. Ohio v. Roberts, 448 U.S. 56, 74-75 (1980). In determining unavailability, “[t]he ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.” Id.; see also United States v. Siddiqui, 235 F.3d 1318, 1324 (11th Cir. 2000) (“The lengths to which the government must go to produce a witness is a matter of reasonableness.”). The Eleventh Circuit has affirmed the use of a videotaped deposition at trial where the witness was deposed and cross-examined, then deported from the United States. United States v. Smith, 213 F. App'x 774 (11th Cir. 2006). In Smith, the Government presented evidence that it made diligent, but unsuccessful, efforts to secure the agreement of the Department of Homeland Security to parole the witness pending trial. The Eleventh Circuit found this evidence showed that the witness was “unavailable” despite the Government's good-faith efforts to obtain her presence at trial. Id. at 777 (citing cases). In the event Alanis-Soto is unavailable to testify at trial, the Government must show, on April 10, 2017, the good-faith efforts it undertook to secure Alanis-Soto's availability at trial.

         In the event the Government meets its burden to show unavailability, the Government will be entitled to use Alanis-Soto's deposition at trial. If the deposition is introduced at trial, Defendant seeks to exclude the following testimony by Alanis-Soto: (a) the identification of Defendant, because Defendant was wearing prison clothes; (b) testimony regarding statements Defendant made to Alanis-Soto related to Defendant's prior drug trafficking in Florida; (c) testimony regarding a recorded conversation between him and alleged co-conspirator “El Gordo” discussing an overt act by Defendant in furtherance of the conspiracy; (d) Alanis-Soto's testimony that Defendant is the person in the photographs he identified at the 2013 and 2014 lineups; and (e) several exhibits which are discussed below. Defendant also seeks to preclude the Government agents who showed Alanis-Soto the lineups in 2013 and 2014 from testifying about Alanis-Soto's identification of Defendant, in the event that (1) Alanis-Soto does not testify at the trial and (2) the Court does not permit the Government to play Alanis-Soto's deposition at the trial.

         a) Identification of Defendant

         During the deposition, Alanis-Soto identified Defendant by pointing at him. The Government then instructed the videographer to record Defendant seated at the defense table. Defendant's counsel objected because Defendant was wearing prison clothes. Defendant now seeks to exclude the identification testimony because the video shows Defendant in prison clothes. A defendant's wearing jail clothes serves as a “constant reminder of the accused's condition” that may skew a juror's view. Anderson v. Sec'y for Dep't of Corr., 462 F.3d 1319, 1328 (11th Cir. 2006). The Court finds that, should the deposition be used at trial, the Government must exclude from it any visual depiction of Defendant.[2] Defendant's motion to exclude the image of Defendant is granted.[3]

         b) Defendant's Florida Drug Trafficking Activity

         Defendant seeks to exclude Alanis-Soto's testimony regarding statements Defendant made to him related to Defendant's prior drug-trafficking activity in Florida. The Government indicates that it no longer intends to introduce evidence of Defendant's prior drug trafficking activity. Accordingly, the Government may not introduce Alanis-Soto's testimony regarding this drug trafficking activity, and Defendant's motion to exclude this evidence is granted.

         c) “El Gordo” Testimony

         After Alanis-Soto was arrested in 2008, he participated in recorded telephone calls between him and an alleged co-conspirator nicknamed “El Gordo.” The Government played one of the recorded calls at Alanis-Soto's deposition, and he testified that (1) he was asking El Gordo where to deliver drugs, (2) the two discussed “Blas, ” meaning Defendant, having only given Alanis-Soto $100, which Alanis-Soto explained was money he received from Defendant to purchase gasoline during his drive from Mexico to Atlanta with the drugs. Defendant seeks to exclude this testimony, stating that the recording of the call “speaks for itself.” Defendant argues that Alanis-Soto cannot testify about what El Gordo was thinking, and that such testimony would be speculative and lacking in foundation.

         The Court, having reviewed the deposition, denies Defendant's motion in limine to exclude testimony regarding the El Gordo call. Contrary to Defendant's characterization, Alanis-Soto testified regarding what he discussed with El Gordo, not what El Gordo was thinking. (See Tr. 76 (“[W]hat were you talking about during that telephone call?”); id. at 77 (“Do you remember saying anything about Blas Aleman on the call?”; “[Y]ou told El Gordo that Blas only gave you a hundred bucks; is that right?”). Alanis-Soto's testimony provides context and explanation for the call. Defendant's motion to exclude this testimony is denied.

         d) Alanis-Soto's ...


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