USA v. RAZO et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA )
)
v. ) 1:11-cr-00184-JAW
)
MARK RAZO )
and )
BARRY DIAZ )
ORDER ON MOTIONS IN LIMINE
In anticipation of trial in this drug trafficking conspiracy case, the parties
filed six motions in limine. In this Order, the Court addresses each, offering some
guidance but dismissing most without prejudice because admissibility depends upon
the trial context.
The Government has filed two motions in limine. The Court dismisses
without prejudice the Government’s first motion, which concerns wiretap evidence
of uncharged criminal acts, because it cannot make a definitive ruling outside the
trial context. The Court grants the Government’s second motion, which concerns
whether it may introduce evidence that during the period charged in the conspiracy,
Mr. Razo was incarcerated in state prison in California.
Mark Razo has filed four motions in limine. The Court dismisses Mr. Razo’s
first motion without prejudice because the Government has represented that it does
not intend to seek to introduce the evidence that is the subject of the motion. The
Court denies Mr. Razo’s second motion, which seeks to exclude as expert testimony
a law enforcement agent’s proposed testimony about the quantity of drugs
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consistent with drug trafficking, the tools of the drug trade, the transportation of
drugs, and the interpretation of code words on wiretap transcripts, because under
First Circuit law, such testimony is not expert testimony. The Court dismisses
without prejudice Mr. Razo’s third motion in limine, which addresses the
admissibility of his prior convictions, pre- and post-conspiracy acts, alleged actions
of co-conspirators, actions outside the District of Maine, the use of aliases, and
evidence of financial transactions, because there is an insufficient factual and
contextual basis for the Court to rule on the issues presented in the motion. The
Court dismisses without prejudice Mr. Razo’s fourth motion in limine, which asserts
a variety of challenges to thirteen wiretapped phone calls between Mr. Diaz and
persons other than Mr. Razo, because it cannot rule definitively on Mr. Razo’s
objections until it reviews the content of those calls in the context of trial.
I. GOVERNMENT’S MOTION IN LIMINE REGARDING A MAY 3, 2011
DRUG SHIPMENT, AND A MAY 6, 2011 DRUG SEIZURE
On October 5, 2012, the Government filed two motions in limine in this drug
trafficking conspiracy case. Gov’t’s First Mot. in Limine (ECF No. 76) (Gov’t’s First
Mot.); Gov’t’s Second Mot. in Limine (ECF No. 77) (Gov’t’s Second Mot.).
A. The Government’s Position
The Government’s first motion focuses on wiretap evidence that “in the
second half of April 2011 and early May 2011, Defendants Diaz and Razo negotiated
for a cocaine transaction.” Gov’t’s First Mot. at 1. Ultimately, however, Mr. Razo
was unable to obtain the desired drugs and Mr. Diaz obtained them from a different
source. Id. The Government says it “expects to offer wire and electronic
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interceptions where Diaz advised Razo that he found drugs from a different source
and purchased approximately a half kilogram of cocaine.” Id. The Government
claims that, in early May 2011, the drugs were shipped from California to
Connecticut in two separate packages: the first was ultimately delivered to Maine
on about May 3, 2011, and the second to Stamford, Connecticut, on May 6, 2011. Id.
The second package was seized by Drug Enforcement Agency (DEA) agents and was
found to contain cocaine and oxycodone. Id. According to the Government, “[h]ours
after this seizure, Diaz and Razo discussed what happened and why law
enforcement might have targeted the package” and they “discussed shipping
methods and the loss of profit.” Id. at 2.
The Government claims that evidence of these incidents is admissible, even
though they involved uncharged conduct, because such evidence demonstrates “the
nature of the relationship between Diaz and Razo” and puts into “proper context
their drug-related negotiations in April 2011 and early May 2011.” Id. at 2. Even
though the Government concedes the evidence is prejudicial, it asserts the evidence
is not unfairly so and is highly probative. Id. at 2-3.
B. The Defendants’ Opposition
Messrs. Diaz and Razo object to the admission of this evidence. Def.’s
Objection to the Gov’t’s Mots. in Limine, 1-2 (ECF No. 92) (Diaz Opp’n); Def.’s Resp.
to Gov’t’s First Mot. in Limine (ECF No. 96) (Razo First Opp’n). Mr. Diaz
emphasizes the prejudicial effect of evidence that he engaged in uncharged drug
trafficking. Diaz Opp’n at 2. He says that the evidence would not only be unfairly
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prejudicial, but also would be of limited probative value because it involved a
transaction that the Government concedes Mr. Razo was not ultimately involved in.
Id. He suggests that, at a minimum, before the evidence is heard by a jury, the
Government should be required to make an offer of proof. Id.
Mr. Razo points out that this evidence demonstrates that Mr. Diaz “was
engaged in a separate and distinct conspiracy which is unrelated to the conspiracy
charged by the Government between Razo & Diaz.” Razo First Opp’n at 1. Mr.
Razo suggests that the Government does not need to introduce evidence of these
shipments and seizure to demonstrate the relationship between Mr. Diaz and
himself because the Government could do so by introducing evidence of their taped
conversations alone. Id. at 1-2. He further observes that as the uncharged drug
seizure involved oxycodone, and as Mr. Razo has been indicted for distribution of
cocaine, methamphetamine, heroin, and marijuana, the admission of evidence of
this additional drug would unfairly prejudice Mr. Razo. Id. at 2; see Second
Superseding Indictment at 2 (ECF No. 32).
C. Discussion
Rules 403 and 404(b) control the admissibility of evidence of uncharged acts.
FED. R. EVID. 403, 404(b). The First Circuit has observed that “the admission of
Rule 404(b) evidence is committed to the sound discretion of the trial judge.” United
States v. Manning, 79 F.3d 212, 217 (1st Cir. 1996); see also United States v. Ofray-
Campos, 534 F.3d 1, 35 (1st Cir. 2008). The First Circuit has repeatedly held that
in a conspiracy case, “evidence of other bad acts . . . can be admitted to explain the
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background, formation, and development of the illegal relationship, and, more
specifically, to help the jury understand the basis for the co-conspirators’
relationship of mutual trust.” United States v. Green, 698 F.3d 48, 55 (1st Cir.
2012) (quoting United States v. Escobar-de Jesus, 187 F.3d 148, 169 (1st Cir. 1999));
see also United States v. Pelletier, 666 F.3d 1, 3-6 (1st Cir. 2011); United States v.
Manning, 79 F.3d 212, 217 (1st Cir. 1996) (cross-examination about prior drug
dealing permissible as to defendant’s knowledge and intent); United States v.
Garcia, 983 F.2d 1160, 1173 (1st Cir. 1993) (affirming admission of evidence of a
defendant’s prior arrest for dealing cocaine as relevant to intent and knowledge).
Of course, the admissibility of such evidence may depend upon the nature of
the defense. In United States v. Hadfield, 918 F.2d 987 (1st Cir. 1990), the First
Circuit upheld the admission of prior convictions for narcotics trafficking because
the defendant’s “main defense was grounded on the idea that she was a homemaker
and floral shop employee who played no part in her husband’s marijuana business.”
Id. at 994.
Furthermore, the trial court must engage in the familiar two-step analysis
for determining the admissibility of prior bad acts evidence. See United States v.
Gentles, 619 F.3d 75, 86 (1st Cir. 2010); Garcia, 983 F.3d at 1172. The court must
first determine whether the evidence has some “special relevance” to an issue in the
case—such as intent, preparation, knowledge, plan, absence of mistake, or
identity—and the court must then balance the probative value against the danger of
unfair prejudice under Rule 403. Gentles, 619 F.3d at 86.
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Based on First Circuit precedent, it appears likely that the evidence that the
Government seeks to introduce will be deemed admissible. However, its
admissibility and scope may be subject to further refinement depending on
developments at trial. The Court therefore dismisses the Government’s first motion
in limine without prejudice.
II. GOVERNMENT’S MOTION IN LIMINE REGARDING MARK RAZO’S
WHEREABOUTS DURING THE ALLEGED CONSPIRACY
In its second motion in limine, the Government seeks a ruling that it may
reveal to the jury the fact that Mark Razo was incarcerated in California State
Prison during his wiretapped discussions with Barry Diaz. Gov’t’s Second Mot. at 1.
Both Mr. Diaz and Mr. Razo concede that Mr. Razo’s presence in prison may become
relevant during trial. Diaz Opp’n at 3; Def.’s Resp. to Gov’t’s Second Mot. in Limine,
1 (ECF No. 97) (Razo Second Opp’n) (“The Defendant does not object to this fact
being elicited”). Mr. Razo suggests that the Court should give the jury a limiting
instruction to the effect that the jury may not infer from his location or
incarceration any evidence of guilt of the pending charges. Razo Second Opp’n at 1.
If counsel wishes such an instruction, the Court expects counsel to present proposed
language to the Court. See Pelletier, 666 F.3d at 6.
After conceding that evidence of Mr. Razo’s whereabouts is relevant, Mr. Diaz
attempts to hedge his bet. He asks the Court to “examine whether the unfair
prejudice associated with the evidence overwhelms its probative value.” Diaz Opp’n
at 3. He “reserves the right to object to the admission of this evidence and requests
that the Government be required to make an offer of proof outside of the presence of
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the jury before publishing evidence of Mr. Razo’s whereabouts.” Id. Then,
“[d]epending on the circumstances, it is possible that the Defendant would stipulate
to Mr. Razo’s whereabouts so as to avoid any issues concerning this evidence.” Id.
The Court overrules Mr. Diaz’s objection. As Mr. Diaz acknowledges, the
whereabouts of one of the co-defendants during the alleged conspiracy is obviously
relevant to the nature and scope of the conspiracy and the roles each Defendant
supposedly assumed. In his motion to transfer venue, Mr. Diaz represented that he
and Mr. Razo intend to call “several Californian witnesses whose testimony will
demonstrate that while incarcerated, Razo could not and did not participate in a
conspiracy to distribute drugs.” Def.’s Mot. to Transfer Venue, 4 (ECF No. 61). As
the Defendants apparently intend to make Mr. Razo’s incarceration a defense, there
would be no basis to prevent the Government from introducing this evidence.
Furthermore, the Court has indicated a willingness to give a cautionary instruction
to the jury about the use of this evidence. Finally, the effect of Mr. Diaz’s
equivocation is to prevent the Government from mentioning Mr. Razo’s
incarceration during its opening and to force the Government to approach the Court
before introducing this evidence. In view of Mr. Razo’s agreement that the fact of
his incarceration may be admitted, Mr. Diaz’s concession that the fact of Mr. Razo’s
incarceration is relevant, and the availability of a cautionary instruction, the Court
overrules Mr. Diaz’s objection and grants the Government’s Second Motion in
Limine.
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III. MARK RAZO’S MOTION IN LIMINE REGARDING RECORDED
CONVERSATIONS BETWEEN A STATE OF CALIFORNIA
CORRECTIONS OFFICER AND MARK RAZO
On October 19, 2012, Mark Razo moved in limine to exclude recordings of
conversations between a California corrections officer and himself. Def.’s First Mot.
in Limine (ECF No. 93). The Government responded on October 29, 2012 that it
does not intend to present this evidence at Mr. Razo’s trial, and requested that the
Court deem the motion moot. Gov’t’s Resp. to Def. Razo’s First Mot. in Limine (ECF
No. 113).
In light of the Government’s representation that it does not intend to present
the contested evidence at trial, the Court concludes that a ruling on the merits
would constitute an advisory opinion. The Court therefore dismisses Mr. Razo’s
first motion in limine without prejudice. Mr. Razo is free to raise this same issue in
the future should the Government’s position change.
IV. MARK RAZO’S MOTION IN LIMINE AS TO PROPOSED EXPERT
TESTIMONY OF AGENT
A. Mark Razo’s Position
On October 19, 2012, Mr. Razo moved to exclude the proposed testimony of a
law enforcement agent regarding certain aspects of drug trafficking, such as the
quantity of drugs inconsistent with personal use, the tools of the drug trade,
transportation of drugs, and interpretation of code words within wiretapped
conversations. Def.’s Second Mot. in Limine, 1 (ECF No. 94) (Def.’s Second Mot.).
Mr. Razo worries that such testimony, combining lay and expert testimony, will
“confuse a jury.” Id. at 2. Mr. Razo contends that the Court should make a Rule
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702 determination of the agent’s purported expertise and that the Court should
apply a Kumho Tire analytic framework to the issue. Id.; Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137 (1999). Mr. Razo also asserts that a Confrontation Clause
issue would be presented if the agent relies—as experts are typically allowed to
do—on hearsay. Id. at 5-6. Finally, he cautions that if an agent is allowed to testify
as a lay witness, he should not be allowed to interpret the obvious. Id. at 6.
B. The Government’s Response
On October 29, 2012, the Government responded by citing United States v.
Valdivia, 680 F.3d 33 (1st Cir. 2012), which the Government reads as holding that
law enforcement testimony of the sort the Government proposes to introduce at trial
constitutes lay, not expert testimony. Gov’t’s Resp. in Opp’n to Def. Razo’s Second
Mot. in Limine, 1-3 (ECF No. 117). However, to the extent the agent’s testimony
could be construed as expert testimony, the Government contends that the same
agent should be allowed to testify both as a lay and expert witness. Id. at 3-5.
C. Discussion
The “line between expert testimony under Rule 702 and lay opinion
testimony under Rule 701 is, in practice, ‘not [an] easy [one] to draw.’” Valdivia,
680 F.3d at 50 (quoting United States v. Colón Osorio, 360 F.3d 48, 52-53 (1st Cir.
2004)). Nevertheless, it is clear in the First Circuit that the type of law enforcement
agent testimony in question here may be admitted as lay opinion testimony under
Rule 701. Although Mr. Razo cites authority from the Second, Seventh, and Ninth
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Circuits for his position, he cites no First Circuit case in support of his position.1
Def.’s Second Mot. at 1-6.
This is because the rule in the First Circuit regarding the admissibility of law
enforcement agent testimony differs from that of some other circuits. This split
recently came to light in Valdivia. In Valdivia, the First Circuit addressed the
admissibility of the testimony of a law enforcement agent about drug traffickers’
common practice of registering their cell phones in the names of third parties to
avoid detection. Valdivia, 680 F.3d at 49-50. Relying on First Circuit precedent,
the First Circuit observed that this testimony required “no scientific or technical
expertise within the scope of Rule 702,” and rejected the contention that this
testimony was expert testimony. Id. at 50-51 (citing United States v. Maher, 454
F.3d 13, 24 (1st Cir. 2006), and United States v. Ayala-Pizarro, 407 F.3d 25, 29 (1st
Cir. 2005)). The First Circuit held that the agent’s testimony was derived from
“‘particularized knowledge that [the agent had obtained] by virtue of his . . .
position’ as a drug enforcement agent tasked with investigating the . . . narcotics
ring.” Id. at 50-51 (quoting FED. R. EVID. 701, Advisory Committee’s note). Indeed,
1 To be more accurate, Mr. Razo cites United States v. Reynoso, 336 F.3d 46, 49 (1st Cir. 2003),
for the proposition that “[c]ourts have applied Kumho Tire to a law enforcement expert witness
whose testimony interpreted ‘drug trade jargon.’” Def.’s Second Mot. at 2. Mr. Razo introduces
Reynoso with a “cf.,” asserting that Reynoso supports a proposition different from the main
proposition but sufficiently analogous to lend support. THE BLUEBOOK: A UNIFORM SYSTEM OF
CITATION at 55 (19th ed. 2010).
But in Reynoso, the First Circuit ruled only that the district court did not abuse its discretion
in admitting the “expert testimony” of a Drug Enforcement Administration (DEA) agent that the 110
grams seized from the defendant’s motor vehicle was “too large to have been exclusively for his
personal use.” Reynoso at 49. The First Circuit observed that “[d]ue to her DEA experience, Agent
Kelleher was competent to testify to the relative raw-weight distinctions in the drug quantities
typically possessed by users as distinguished from dealers.” Id. Finally, it noted the defendant’s
conviction would stand regardless of the agent’s testimony and therefore the admission of her
testimony, if error, was harmless. Id. The Court does not view Reynoso as standing for the
proposition—even by analogy—for which Mr. Razo cited it.
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the Valdivia Court concluded that the agent’s testimony fell “comfortably within the
boundaries of permissible lay opinion testimony.” Id. at 50.
In his concurrence, Judge Lipez urged the First Circuit to reexamine its
position in a future en banc proceeding. Id. at 56. Stating that the First Circuit
rule “put[s] [the First Circuit] at odds with virtually every other circuit and the
commentary to Rule 701 of the Advisory Committee on Evidence,” Judge Lipez
wrote his concurrence “in the hope of eventually changing [the First Circuit’s] law.”
Id. at 56-57. Nevertheless, Judge Lipez recognized that the panel was “[b]ound by
the precedents of [the First Circuit]” and that he and his colleagues “must affirm
the ruling of the trial court that Special Agent Carpio’s testimony about the cell
phone practices of drug traffickers was lay opinion testimony admissible under Rule
701, rather than expert testimony governed by Rule 702.” Id. at 56.
Just as Judge Lipez and the Valdivia panel were bound by First Circuit
precedent, this Court is obligated to apply the First Circuit’s teaching; stare decisis
“renders the ruling of law in a case binding in future cases before the same court or
other courts owing obedience to the decision.” See United States v. Gonzalez-
Mercado, 402 F.3d 294, 299 (1st Cir. 2005) (quoting Gately v. Massachusetts, 2 F.3d
1221, 1226 (1st Cir. 1993)). Under First Circuit law, testimony by a law
enforcement agent about the drug quantity signifying distribution as opposed to
personal use, the tools of the drug trade, transportation of drugs, and code words
would all be admissible as lay, not expert testimony. See Maher, 454 F.3d at 24
(holding that an officer’s testimony that, based on his experience, certain post-it
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notes were likely drug orders and the number “4” likely referred to a quantity of
drug found by law enforcement “did not cross the line to become expert testimony”);
Ayala-Pizarro, 407 F.3d at 29 (holding that an officer’s testimony that heroin seized
at drug points was typically packed in aluminum decks and that the heroin seized
in the case was packaged in such decks was Rule 701 testimony).2
Finally, without citing any relevant authority, Mr. Razo raises a
Confrontation Clause issue, namely that a law enforcement witness testifying as an
expert will be allowed to rely on hearsay in formulating his opinions. Def.’s Second
Mot. at 5-6. Here, however, the agents have not been designated as experts. As
always, the Court will remain vigilant during the trial to avoid the admission of
hearsay evidence whether from these law enforcement witnesses or from someone
else.
2 To the extent Judge Lipez’s disquiet foretells a change in the First Circuit approach to this
issue, the Government may seek to cover its bases by designating a law enforcement agent as an
expert and making the disclosures that Judge Lipez suggests. The First Circuit has addressed cases
in which law enforcement agents have been designated as experts. Reynoso, 336 F.3d at 49
(affirming trial court determination that a DEA agent was competent to testify as an expert as to
relative raw-weight distinctions in the drug quantities typically possessed by users as distinguished
from dealers); United States v. Rivera-Rosario, 300 F.3d 1, 16-17 (1st Cir. 2002) (affirming the
admission of law enforcement expert testimony as to the meaning of code words); United States v.
Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987) (same). The agent could be presented as both a lay and
expert witness, a result the First Circuit has condoned. Valdivia, 690 F.3d at 50 (“[T]he same
witness—for example, a law enforcement officer—may be qualified to provide both law and expert
testimony in a single case”).
The designation of a law enforcement officer as an expert, however, may create more
problems than it solves. It could generate new and time-consuming procedural quarrels. Before
trial, the Government would have to make expert witness disclosures and the defendants could—as
here—demand a Daubert hearing as to the officer’s qualifications, the scientific or other bases for the
expert opinion, and the officer’s methodology, issues for which law enforcement officers who typically
gain expertise on the job would have no ready response. See Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579 (1993). At trial, a law enforcement officer’s testimony could devolve into ongoing
skirmishes about whether the Government’s designation is adequate and whether the officer is
testifying as a lay witness or an expert in giving specific testimony. Criminal trials could begin to
resemble civil trials, where pretrial discovery and motion practice typically resolve these issues. In
view of these concerns, the Government might well elect to maintain its position that the agent is
testifying as a lay witness, a position fully consistent with the current state of First Circuit law.
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The Court denies Mr. Razo’s second motion in limine and holds that a case
agent may give lay opinion testimony under Rule 701.
V. MARK RAZO’S MOTION IN LIMINE REGARDING PRIOR
CONVICTIONS, PRE-APRIL 2011 AND POST-AUGUST 2011
CONVERSATIONS, CO-DEFENDANT DIAZ’S STATEMENTS,
ACTIVITY OUTSIDE THE DISTRICT OF MAINE, CODE WORDS,
ALIASES, AND FINANCIAL TRANSACTIONS
A. Mark Razo’s Motion
In his third motion in limine, Mr. Razo challenges (in single-sentence
arguments) the admissibility of the following evidence: (1) his prior convictions for
possession of methamphetamine for the purpose of sale and for evading police,
whether introduced in the Government’s case-in-chief or during his cross-
examination; (2) any testimony or evidence of drug transactions or communications
between others and himself that either predate the alleged April 2011 start of the
conspiracy or postdate the alleged August 2011 end of the conspiracy; (3) any
testimony or evidence of drug transactions or other conduct of Barry Diaz, Mr.
Razo’s co-defendant, without proof of Mr. Razo’s involvement in or awareness of
such conduct; (4) any evidence of any activity occurring outside of the District of
Maine, specifically including activity in Iowa; (5) expert testimony about the
meaning of code words or drug jargon in the absence of qualification under Rule
702; (6) testimony concerning aliases allegedly used by Mr. Razo or Mr. Diaz
without an appropriate foundation; and (7) evidence of financial transactions absent
proof of Mr. Razo’s involvement in or awareness of such transactions. Def.’s Third
Mot. in Limine, 1-2 (ECF No. 95) (Def.’s Third Mot.).
B. The Government’s Response
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In its response, the Government contends that Mr. Razo’s prior convictions
are admissible but suggests that the Court wait for trial to make a final
determination. Gov’t’s Resp. to Def. Razo’s Third Mot. in Limine, 1-2 (ECF No. 114)
(Gov’t’s Third Opp’n). The Government opposes Mr. Razo’s attempt to temporally
limit its evidence, noting that the indictment alleges an undefined start to the
conspiracy and evidence that predates April should not “automatically be excluded.”
Id. at 2. The Government does not respond to Mr. Razo’s attempt to exclude
evidence that postdates the alleged end of the conspiracy. Id. Objecting to Mr.
Razo’s contention that the only evidence of other conversations that should be
admissible should be conversations in which he directly participated, the
Government quotes a First Circuit case noting that a conspiracy is like a train and,
once on board, a defendant must affirmatively step off to end his conspiratorial role.
Id. at 3-4. Regarding activities outside the District of Maine, the Government
maintains that it intends to introduce evidence of “a poly-substance conspiracy
stretching across the United States” and points out that the Indictment “specifically
alleges that the conspiracy occurred ‘in the District of Maine and elsewhere.’” Id. at
4. The Government argues that testimony from experienced drug agents about
drug codes is admissible under First Circuit law. Id. at 4-5. Turning to evidence of
aliases, the Government asserts that because the wiretap interceptions contain
references to Mr. Razo’s and others’ aliases, it is appropriate to admit evidence of
those aliases. Id. at 5. Finally, regarding financial transactions, the Government
asserts that if it can establish that the transactions were being carried out in
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furtherance of a conspiracy in which Mr. Razo was a member, the evidence would be
admissible. Id.
C. Discussion
1. Prior Convictions
According to the Government, Mr. Razo was convicted in 2010 of possession
for sale of methamphetamine and of evading an officer against traffic; the
convictions resulted in concurrent sixteen month sentences. Gov’t’s Third Opp’n at
1. The Government maintains that Mr. Razo’s prior drug conviction “may become
relevant and admissible under Fed. R. Evid. 404(b) based on the defenses raised at
trial.” Id. If the Government were to try to introduce evidence of the convictions
under Rule 404(b), the trial court must engage in the two-step analysis for prior bad
acts evidence discussed above. See United States v. Gentles, 619 F.3d 75, 86 (1st
Cir. 2010); Garcia, 983 F.3d at 1172. The court must first determine whether the
evidence has some “special relevance” to an issue in the case—such as intent,
preparation, knowledge, plan, absence of mistake, or identity—and the court must
then balance the probative value against the danger of unfair prejudice under Rule
403. Gentles, 619 F.3d at 86. Although admissibility under Rules 403 and 404(b)
depends on the circumstances of each case, the Court notes that the First Circuit
has upheld the admission of evidence of a prior drug trafficking conviction in a drug
trafficking trial. See Pelletier, 666 F.3d at 3-7.
In the event Mr. Razo takes the stand, Federal Rule of Evidence 609 governs
the admissibility of prior convictions for the purpose of impeachment. Rule 609(a)
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states that “[t]he following rules apply to attacking a witness’s character for
truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by
death or by imprisonment for more than one year, the evidence:
. . .
(B) must be admitted in a criminal case in which the witness is
a defendant, if the probative value of the evidence outweighs its
prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be
admitted if the court can readily determine that establishing the
elements of the crime required proving—or the witness’s admitting—a
dishonest act or false statement.
FED. R. EVID. 609(a). The Government does not contend that either conviction
would be automatically admissible as a crimen falsi under Rule 609(a)(2). Each
conviction falls within the ten-year time limit established by Rule 609(b) and each
“was punishable by . . . imprisonment in excess of one year” under Rule 609(a)(1).
FED. R. EVID. 609(a)(1), (b). The admissibility of the prior convictions as
impeachment evidence turns, therefore, on whether their probative value outweighs
their prejudicial effect to Mr. Razo. See FED. R. EVID. 609(a)(1)(B). It would be
premature for the Court to rule on this question outside the trial context. See
United States v. Carey, CR-08-157-B-W-02, 2009 U.S. Dist. LEXIS 15736, *10 (D.
Me. Feb. 26, 2009). The Court dismisses this part of the motion without prejudice.
2. Acts Prior to Charged Dates in the Indictment
Other than generally objecting to “testimony or evidence of drug transactions
or communications between the Defendant and others,” Mr. Razo does not specify in
his motion the evidence to which he objects as either predating or postdating the
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indictment. Def.’s Third Mot. at 1. As a blanket demand, the motion must fail.
Some evidence that predates or postdates the time period alleged in the indictment
may be admissible for certain purposes. See FED. R. EVID. 404(b); United States v.
Kakande, 771 F. Supp. 2d 86 (D. Me. 2011) (discussing pre-conspiracy evidence).
Some may be inadmissible. At trial, the Court would apply the two-step analysis
under Rules 403 and 404(b) described above. See Gentles, 619 F.3d at 86; Garcia,
983 F.3d at 1172. The Court dismisses this part of the motion without prejudice.
3. Evidence of the Acts or Statements of Others
Similarly, other than generally objecting to “testimony or evidence of drug
transactions or other conduct which the Government suggests is in furtherance of
the charged conspiracy attributable to or committed by Co-Defendant Diaz and any
other individual,” Mr. Razo has not said more precisely what evidence he contends
would be inadmissible. Def.’s Third Mot. at 1. Again, the Court is unsure what
evidence Mr. Razo is concerned about. The Government has the obligation to
demonstrate that a defendant willfully joined the conspiracy by his own words
and/or actions. United States v. Richardson, 225 F.3d 46, 53-54 (1st Cir. 2000). At
the same time, the First Circuit has ruled that, so long as certain factors are
satisfied, statements of co-conspirators may be admissible under the co-conspirator
hearsay exception. See United States v. Ciresi, 697 F.3d 19, 25-30 (1st Cir. 2012);
FED. R. EVID. 801(d)(2)(E). The Court dismisses this part of the motion without
prejudice.
4. Expert Testimony About Code Words
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Mr. Razo presented this issue in his second motion in limine and the Court
has addressed it there. The Court dismisses this part of the motion without
prejudice.
5. Aliases
Mr. Razo seeks to exclude “any alias alleged to have been used by either
Defendant” from evidence in this trial “without there being an appropriate
foundational basis.” Def.’s Third Mot. at 2. The Government claims that Mr. Razo
and his co-defendant Barry Diaz used aliases as part of the conspiracy to distribute
drugs. Gov’t’s Third Opp’n at 5. The Court is not in a position to determine
whether the Government is going to be able to present sufficient evidence of Mr.
Razo’s asserted use of aliases to link the aliases to Mr. Razo. The indictment
charges that Mr. Razo is also known as “Little Mexico” and that Mr. Diaz is also
known as “Lucky” and “Tonny Delacruze.” Second Superseding Indictment (ECF
No. 32). The Court does not know what other aliases may be involved.3 The Court
dismisses this part of the motion without prejudice.
6. Financial Transactions
Mr. Razo seeks to exclude unspecified “evidence of financial transactions”
from the trial of this case. Def.’s Third Mot. at 2. The Government says that once a
person becomes a member of a conspiracy, the conspiracy’s transactions may be
attributed to him. Gov’t’s Third Opp’n at 5. Based on this skeletal point and
counterpoint, the Court cannot know what the evidence is, whether there will be
3 Although Mr. Razo does not raise the issue of unfair prejudice, the Court does not view the
aliases “Little Mexico,” “Lucky,” or “Tonny Delacruze” as particularly prejudicial.
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sufficient evidence that Mr. Razo joined the conspiracy, and whether there will be
sufficient evidence linking the financial transactions to the conspiracy he joined.
The Court dismisses this part of the motion without prejudice.
VI. MARK RAZO’S MOTION IN LIMINE REGARDING INTERCEPTED
PHONE CALLS
A. Mark Razo’s Motion
On October 26, 2012, Mr. Razo moved in limine to exclude evidence of phone
calls involving Mr. Razo’s co-defendant Barry Diaz and other individuals, but not
Mr. Razo himself. Def.’s Fourth Mot. in Limine (ECF No. 109). Mr. Razo contends
that the contents of these phone calls are inadmissible against him on four grounds:
(1) they would violate his Sixth Amendment Confrontation Clause rights; (2) they
are inadmissible hearsay; (3) they would generate unfair prejudice and would
confuse and mislead the jury; and (4) they are not relevant to the pending charges
against him. Id. at 1. Mr. Razo lists thirteen phone calls between Barry Diaz and
other individuals, either identified or unidentified, that he contends are
inadmissible. Id. at 2.
B. The Government’s Response
The Government filed its opposition on November 16, 2012. Gov’t’s Opp’n to
Def.’s Fourth Mot. in Limine (ECF No. 124). The Government says that, with the
exception of one call, which the Government does not intend to offer at a joint trial,
all of the thirteen phone calls Mr. Razo identified are “either co-conspirator
statements or non-hearsay statements not offered for the truth of the matter
asserted.” Id. at 1 n.2. The Government urges the Court to admit the co-
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conspirator calls conditionally “pursuant to the framework set forth in Untied States
v. Petrozziello, 548 F.2d 20 (1st Cir. 1977) and fully admit these calls once all
evidence is received at trial.” Id. In its response, the Government narrows the
controversy to ten calls, noting that it does not intend to introduce three of the calls
at trial. Id. at 1 n.2.
C. Discussion
1. Confrontation Clause
Regarding Mr. Razo’s first point—that admission of a co-conspirator’s
statement would violate the Confrontation Clause, the First Circuit has repeatedly
held that there is no Confrontation Clause issue with the admission of co-
conspirator statements in furtherance of a conspiracy because such statements are
non-testimonial. In United States v. De La Paz-Rentas, 613 F.3d 18 (1st Cir. 2010),
the First Circuit held that “Crawford4 does not apply to statements deemed non-
testimonial, and statements made in furtherance of a conspiracy ‘by their nature
[are] not testimonial.’” Id. at 28 (quoting Crawford, 541 U.S. at 56); see also United
States v. Ciresi, 697 F.3d 19, 31 (1st Cir. 2012) (“[W]e have already addressed this
issue post-Crawford and concluded that coconspirator statements . . . are, by their
nature, not testimonial”); United States v. Malpica-Garcia, 489 F.3d 393, 397 (1st
Cir. 2007) (holding that coconspirator statements were nontestimonial because they
were “made in the course of private conversations or in casual remarks that no one
expected would be preserved or used later at trial”); United States v. Hansen, 434
F.3d 92, 100 (1st Cir. 2006) (“[T]he challenged statements are nontestimonial
4 Crawford v. Washington, 541 U.S. 36 (2004).
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because they are either co-conspirator statements made during the course of and in
furtherance of the conspiracy, or casual remarks which the declarant would not
reasonably expect to be available for use at a later trial”). Assuming that the
Government can sustain its evidentiary burden to establish that the contested
statements were made by co-conspirators in furtherance of the conspiracy, there is
no Confrontation Clause violation.
2. Hearsay
Turning to Mr. Razo’s hearsay objection, Rule 801(d)(2)(E) provides:
(d) Statements That Are Not Hearsay. A statement that meets
the following conditions is not hearsay:
(2) An Opposing Party’s Statement. The statement is
offered against an opposing party and:
(E) was made by the party’s coconspirator during and in
furtherance of the conspiracy.
FED. R. EVID. 801(d)(2)(E). In United States v. Colon-Diaz, 521 F.3d 29 (1st Cir.
2008), the First Circuit reiterated that under Rule 801(d)(2)(E) a statement by a
coconspirator in furtherance of the conspiracy is nonhearsay and, “[a]s nonhearsay,
such statements, if admitted, may be considered for the truth of the matter
asserted.” Id. at 35. The Colon-Diaz Court continued:
To admit a coconspirator statement under Rule 801(d)(2)(E), four
elements must be satisfied by a preponderance of the evidence. First,
a conspiracy must have existed, and second, the defendant must have
been a member of it. Third, the declarant must also have been a
member of the conspiracy. Fourth, the declarant’s statement must
have been made in furtherance of the conspiracy.
Id. at 35-36 (internal citations omitted).
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The Colon-Diaz Court also explained that “to preserve an objection to the
admission of a coconspirator statement under Rule 801(d)(2)(E), the defendant must
ask the district court to make, at the close of the evidence, what is known as a
Petrozziello determination.” Id. at 36 (citing Petrozziello, 521 F.2d at 20). “There,
the district court asks whether it is ‘more likely than not that the declarant and the
defendant were members of a conspiracy . . . and that the statement was in
furtherance of the conspiracy.” Id. (quoting United States v. Castellini, 392 F.3d 35,
50 (1st Cir. 2004) (quoting Petrozziello, 521 F.3d at 23)).
Mr. Razo has only made a general reference to the contested telephone calls.
The Court is unaware of the content of those telephone calls and cannot know
whether the Government is going to be able to demonstrate that these calls satisfy
the four Colon-Diaz requirements for admission under Rule 801(d)(2)(E). The Court
will follow the Petrozziello procedure, reminding defense counsel that “[t]o preserve
a challenge to the result of this determination, the defendant must object.” Colon-
Diaz, 521 F.3d at 36.
3. Unfair Prejudice, Jury Confusion, and Relevance
Here, as Mr. Razo has not supplied the content of the telephone calls, the
Court is in no position to evaluate whether these telephone calls meet Rule 401 and
403 standards for admissibility. FED. R. EVID. 401 (“Evidence is relevant if (a) it has
any tendency to make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining the action”); FED. R.
EVID. 403 (“The court may exclude relevant evidence if its probative value is
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substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury . . . .”).
D. Conclusion
The Court dismisses this motion without prejudice. The admission of these
statements depends upon their content and the trial context. At trial, the
Government will bear the burden to demonstrate that it is more likely than not that
the statements meet the four Colon-Diaz requirements and, if so, the statements
will not be hearsay, will not present a Confrontation Clause issue, and will be
relevant. Whether they meet Rule 403 standards will still depend on their actual
content and context. Mr. Razo is free to renew his challenge to the admissibility of
the telephone calls under Petrozziello.
VII. CONCLUSION
The Court DISMISSES without prejudice the Government’s First Motion in
Limine (ECF Nos. 76) and Defendant Mark Razo’s First, Third, and Fourth Motions
in Limine (ECF Nos. 93, 95, 109), GRANTS the Government’s Second Motion in
Limine (ECF No. 77) and DENIES Defendant Mark Razo’s Second Motion in Limine
(ECF No. 94).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 17th day of December, 2012
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