USA v. Herrera-Sanchez et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Dora Beatriz Martinez - 002
Jorge Luis Preciado-Nunez - 003,
Defendants.
No. CR-25-01111-002-TUC-JCH (MSA)
ORDER
Before the Court is the Government’s Motion in Limine to Admit Video Deposition
Testimony at Trial (Doc. 119) and the Government’s Motion in Limine for Ruling on
Objections from Video Deposition and Government’s Additional Proposed Redactions
(Doc. 120). The Government first asks the Court to admit into evidence at trial videotaped
deposition testimony from a material witness. (Doc. 119 at 1.) The Government also asks
the Court to rule on the objections made at the deposition and additional proposed
redactions to the deposition recording, should it be admitted. (Doc. 120 at 1). For the
following reasons, the Court will grant both motions and overrule the objections.
I. 	Motion in Limine to Admit Video Deposition Testimony at Trial (Doc. 119)
The Government’s Motion in Limine to Admit Video Deposition Testimony at Trial
asks the Court “to find material witness Frederick Alonso Cisneros Castillo (“Mr.
Cisneros”) unavailable and admit his videotaped deposition testimony into evidence at
trial. (Doc. 119 at 1.) Defendants did not respond to the Motion.
Under Federal Rule of Evidence (“Rule”) 804, former testimony is not excluded by
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the rule against hearsay if the declarant is unavailable as a witness, and the testimony meets
the following criteria: (1) it “was given as a witness at a trial, hearing, or lawful deposition,”
and (2) it “is now offered against a party who had . . . an opportunity and similar motive to
develop it by direct, cross-, or redirect examination.” See Fed. R. Evid. 804(b)(1). A
declarant is considered unavailable for the purposes of Rule 804(b)(1) if the declarant “is
absent from the trial or hearing and the statement’s proponent has not been able, by process
or other reasonable means, to procure . . . the declarant’s attendance.” Fed. R. Evid.
804(a)(5)(A).
Here, the Government seeks to admit testimony taken under oath during a deposition
at which Defendants and defense counsel were present, and defense counsel had the
opportunity to cross-examine the witness. (See Doc. 119 at 1–2; see generally Doc. 120-1).
At the conclusion of the deposition, the parties jointly moved and stipulated to the release
of the witness to his home country and stipulated that considering the witness’s removal,
he would be deemed “unavailable as defined in Fed. R. Evid. 804” and thus “the video
deposition may be used as substantive evidence” at trial. (Docs. 26, 27, 29.) Magistrate
Judge Aguilera granted the parties’ joint motions/stipulations and directed the release of
the witness. (Doc. 30.) The Government states that the material witness was removed from
the United States after the deposition and material witness counsel has since attempted to
contact the witness. (See Doc. 119 at 2.) Border Patrol checked its database and found that
the witness “has not been encountered by any immigration agency since he was removed
but added an alert if he gets arrested before trial.” (Id. at 2–3.) The “Government will
continue to monitor his status.” (Id.) Accordingly, the deposition testimony meets the
requirements for admissibility under Rule 804 so long as the Government can show its
continued efforts to secure the witnesses’ presence at the time of trial.
The admission of the material witnesses’ deposition testimony does not violate the
Confrontation Clause. The Sixth Amendment provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
United States v. Torralba-Mendia, 784 F.3d 652, 665 (9th Cir. 2015); U.S. Const. Amend.
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VI. The Sixth Amendment “prohibits the introduction of testimonial statements by a
nontestifying witness, unless the witness is unavailable to testify, and the defendant had a
prior opportunity for cross-examination.” Ohio v. Clark, 576 U.S. 237, 243 (2015) (internal
citation and quotation omitted). Here, the material witness is currently unavailable, and
Defendants had an opportunity to cross-examine him. Accordingly, so long as the witness
remains unavailable, the Confrontation Clause is satisfied.
II. 	Motion in Limine for Ruling on Objections from Video Deposition
Because the deposition testimony itself is admissible non-hearsay, the Court must
now determine what portions of the testimony are admissible. The Court’s ruling on each
objection from the material witness deposition are listed below along with an abbreviated
reason for each ruling:
1. 	Withdrawn
2. 	Withdrawn
3. 	Overruled – Non-hearsay
a. 	Under Federal Rule of Evidence 801, hearsay is a statement the declarant
makes not while testifying at the current trial or hearing that is offered to
prove the truth of the matter asserted. See Fed. R. Evid. 801(c)(1). Under
Rule 801(d), statements by a party opponent, including statements made
by a co-conspirator during and in furtherance of the conspiracy, are not
hearsay. This statement is offered for its effect on the listener, not for the
truth of the matter asserted. See Fed. R. Evid. 801(c)(2). This is also a
statement by a co-conspirator during and in furtherance of the conspiracy.
See Fed. R. Evid. 801(d)(2)(E).
4. 	Withdrawn
5. 	Overruled – Clarifying
a. 	This question is not needlessly cumulative because it was phrased
differently than prior questions, nor was it asked in a manner that harassed
the deponent or confused the issues. See Fed. R. Evid. 403. Rather, this
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question clarified what the deponent remembered.
6. 	Withdrawn
7. 	Withdrawn
8. 	Withdrawn
9. 	Withdrawn
10. Withdrawn
The Government also asks to redact portions of the deposition where the attorneys
discuss releasing the material witness and the material witness’ travel plans. Defendants
did not object to the Government’s Motion, and such redactions appear proper. The Court
will grant these requests. The Government may also redact those objections on which the
Court has already ruled, and those withdrawn by counsel.
III. 	Order
Accordingly,
IT IS ORDERED granting the Government’s Motion in Limine to Admit Video
Deposition Testimony at Trial (Doc. 119).
IT IS FURTHER ORDERED granting the Government’s Motion in Limine for
Ruling on Objections from Video Deposition and Government’s Additional Proposed
Redactions (Doc. 120).
Dated this 9th day of December, 2025.
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