Free Motion to Preclude Evidence - District Court of California - California

Case 3:08-cr-01723-JLS 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 TO: v. BARRIE DEMPSEY, Defendant. GREGORY MURPHY California State Bar No. 245505 JENNIFER L. COON California State Bar No. 203913 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467/Fax: (619) 687-2666 E-Mail: [email protected] [email protected] Attorneys for Mr. Dempsey

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE JANIS L. SAMMARTINO) UNITED STATES OF AMERICA, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) CASE NO. 08cr1723-JLS DATE: September 12, 2008 TIME: 2:00 p.m. DEFENDANT'S NOTICE OF MOTIONS IN LIMINE AND MOTIONS IN LIMINE TO: (1) PRECLUDE RULE 404(b) AND 609 EVIDENCE; AND (2) EXCLUDE ALLEGED COCONSPIRATOR STATEMENTS.

KAREN HEWITT, UNITED STATES ATTORNEY; AND CAROLINE HAN, ASSISTANT UNITED STATES ATTORNEY: PLEASE TAKE NOTICE that on September 12, 2008, at 2:00 p.m., or as soon thereafter as counsel

may be heard, the defendant, Barrie Dempsey, by and through counsel, Gregory Murphy, Jennifer L. Coon, and Federal Defenders of San Diego, Inc., will ask this Court to enter an order granting the following motions. // // // // // //

Case 3:08-cr-01723-JLS 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 DATED: September 8, 2008

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MOTIONS The defendant, Barrie Dempsey, by and through counsel, Gregory Murphy, Jennifer L. Coon, and Federal Defenders of San Diego, Inc., pursuant to the United States Constitution, the Federal Rules of Criminal Procedure, and all other applicable statutes, case law and local rules, hereby moves this Court for an order to: 1) Preclude Rule 404(b) and 609 Evidence; and 2) Exclude Alleged Co-Conspirator Statements. These motions are based upon the instant motions and notices of motion, the attached statement of facts and memorandum of points and authorities, and all other materials that may come to this Court's attention at the time of the hearing on these motions. Respectfully submitted,

/s/ Jennifer L. Coon JENNIFER L. COON GREGORY MURPHY Federal Defenders of San Diego, Inc. Attorneys for Mr. Dempsey

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1 GREGORY MURPHY California State Bar No. 245505 2 JENNIFER L. COON California State Bar No. 203913 3 225 Broadway, Suite 900 San Diego, CA 92101-5030 4 (619) 234-8467/Fax: (619) 687-2666 E-Mail: [email protected] 5 [email protected] 6 Attorneys for Mr. Dempsey 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE JANIS L. SAMMARTINO) ) ) ) ) ) ) ) ) ) ) I. STATEMENT OF FACTS Mr. Dempsey hereby incorporates by reference his previously filed statement of facts. These CASE NO. 08cr1723-JLS DATE: September 12, 2008 TIME: 2:00 p.m. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTIONS IN LIMINE

11 UNITED STATES OF AMERICA, 12 13 v. 14 BARRIE DEMPSEY, 15 16 17 18 19 Defendant. Plaintiff,

20 motions follow. 21 22 23 24 The Court should preclude the Government from introducing any Rule 404(b) or Rule 609 evidence. II. THIS COURT SHOULD PRECLUDE ANY EVIDENCE UNDER FEDERAL RULE OF EVIDENCE 404(B) AND 609

25 The Court should preclude 404(b) evidence because the Government has failed to provide any notice, and 26 the Government has not established that such evidence is relevant. All Rule 609 evidence should be

27 precluded because it is irrelevant, and any probative value is substantially outweighed by its prejudicial 28 effect.

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This Court Should Exclude All 404(b) Evidence. This Court should exclude all 404(b) evidence because the government has failed to comply with

3 its obligation to provide timely notice. Rule 404(b) requires that the government provide "reasonable notice 4 in advance of trial" of any evidence of "other crimes, wrongs, or acts" it plans to introduce. FED. R. EVID. 5 404(b). The notice requirement is triggered when timely requested by the defendant. United States v. Vega, 6 188 F.3d 1150, 1154 (9th Cir. 1999). Here, Mr. Dempsey requested notice in his June 11, 2008 motion for 7 discovery. To date, government counsel has not indicated that she intends to offer such evidence; therefore, 8 the government should be precluded from introducing such evidence at trial. 9 Moreover, the government carries the burden of showing how any other acts evidence is relevant

10 to one or more issues in the case; therefore, "it must articulate precisely the evidential hypothesis by which 11 a fact of consequence may be inferred from the other acts evidence." United States v. Mehrmanesh, 689 12 F.2d 822, 830 (9th Cir. 1982) (citing United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 (9th Cir. 13 1979)) (emphasis added); accord United States v. Brooke, 4 F.3d 1480, 1483 (9th Cir. 1993). Because the 14 government has not presented an evidential hypothesis, this evidence must be excluded under Federal Rules 15 of Evidence 401, 404(b) and 403. 16 B. 17 This Court Should Exclude All 609 Evidence. Under Rule 609, evidence of prior convictions is usually admissible only under certain

18 circumstances, and in the discretion of the Court. Federal Rule of Evidence 609(a)(1) restricts impeachment 19 of the accused by evidence of a prior conviction to only those offenses for which the Court determines that 20 the probative value outweighs its prejudicial effect to the accused. The government should be precluded 21 from introducing any evidence of prior convictions because it is irrelevant under Federal Rule of Evidence 22 401 and prejudicial under Federal Rule of Evidence 403. Even if Mr. Dempsey were to testify at trial, the 23 danger of unfair prejudice would substantially outweigh any possible relevance of his prior offense. Fed. 24 R. Evid. 401, 403 & 609. 25 To the extent that this Court rules that any of Mr. Dempsey's alleged prior convictions are admissible

26 under Federal Rule of Evidence 609, this Court should redact any documents referencing, and preclude the 27 prosecutor from referring to, the offense and specific facts of any crime for which Mr. Dempsey was 28 2 08cr1723-JLS

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1 convicted. Such information would be more prejudicial than probative of Mr. Dempsey's guilt of the 2 charged offense. 3 4 5 III. THIS COURT SHOULD EXCLUDE ALLEGED CO-CONSPIRATOR STATEMENTS The government seeks to introduce, through the testimony of the material witness, alleged co-

6 conspirator statements. Specifically, the government seeks to admit certain unspecified alleged statements 7 by defendant's unidentified "accomplices" in the "smuggling venture." Gov't Mots. in Lim. at 3. Evidence 8 regarding such statements is irrelevant under Federal Rule of Evidence 401, more prejudicial than probative 9 and confusing and misleading to the jury under Federal Rule of Evidence 403, inadmissible hearsay under 10 Federal Rule of Evidence 801 and 802, and violative of Mr. Dempsey's constitutional rights to 11 confrontation, due process, and a fair trial under the Fifth and Sixth Amendments. U.S. Const. Amends. 12 V, VI; Crawford v. Washington, 541 U.S. 36 (2004) (holding that admission of testimonial statements of 13 a witness who does not appear at trial and who the defendant did not have a prior opportunity to cross14 examine violates the confrontation clause of the Sixth Amendment). 15 Here, the government maintains that Mr. Dempsey was part of a conspiracy, but fails to identify the

16 time period of the conspiracy, any of the other alleged co-conspirators, or any of the alleged co-conspirator 17 statements. Accordingly, it is impossible to determine based on the government's vague proffer whether 18 the proffered evidence is admissible. To the extent that the Court is nevertheless considering admission of 19 alleged co-conspirator statements, the defense requests a hearing to determine admissibility under Fed. R. 20 Evid. 801(d)(2)(E), United States v. Bourjaily, 483 U.S. 171 (1987), and Crawford, outside the presence 21 of the jury, prior to or at the outset of trial. 22 23 24 25 26 27 Dated: September 8, 2008 28 /s/ Jennifer L. Coon JENNIFER L. COON/GREGORY MURPHY Federal Defenders of San Diego, Inc. Attorneys for Mr. Dempsey 3 08cr1723-JLS IV. CONCLUSION For the reasons stated above, Mr. Dempsey moves this Court to grant his motions. Respectfully submitted,

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CERTIFICATE OF SERVICE Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best

3 information and belief, and that a copy of the foregoing document has been caused to be delivered this day 4 upon: 5 6 7 Courtesy Copy Chambers Copy Assistant U.S. Attorney via ECF Notice of Electronic Filing Copy Defendant /s/ JENNIFER L. COON Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) [email protected] (email)

8 Dated: September 8, 2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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