United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART and
DENYING IN PART GOVERNMENT'S MOTION IN LIMINE SEEKING
PRETRIAL RULING ON ADMISSIBILITY OF EVIDENCE (DOC.
MATTER comes before the Court upon the Government's
Motion in Limine Seeking Pretrial Ruling on the Admissibility
of Evidence, filed February 14, 2017 (Doc. 57). Having
reviewed the parties' briefs and applicable law, the
Court finds that Plaintiff's motion is well-taken in part
and, therefore, is granted in part and denied in part.
relevant background facts are set out in the Memorandum
Opinion and Order denying Defendant's motion to suppress
(Doc. 38) as well as the Government's brief (Doc. 57).
This case began with a traffic stop for an improper lane
change conducted by Bernalillo County Sherriff's Deputy
Leonard Armijo. A canine search led to a further search that
uncovered about $65, 020 in U.S. currency. Defendant is
charged with Conspiracy to Commit Bulk Cash Smuggling in
violation of 18 U.S.C. §371, Bulk Cash Smuggling in
violation of 31 U.S.C. §5332(a)(1) and (b) and Aiding
and Abetting (18 U.S.C. §2).
connection with this motion, the Government filed a Notice of
Intent to offer extra-judicial statements and audio-recorded
evidence, and seeks to admit the entire conversation from a
particular phone conversation Defendant made from jail,
namely jail call 10.91.1.21-c369e140a5b00151623a187172144fb.
The Government offers several arguments as to why these
statements are admissible, starting with their relevance.
admissible, tape recorded evidence must have a proper
foundation, must be relevant and must not be privileged.
United States v. Watson, 594 F.2d 1330, 1334 (10th
Cir.1979). Moreover, if the tape recordings contain hearsay,
there must a valid exception to the hearsay rule for the
evidence to be admissible. Fed.R.Evid. 803. Evidence is
relevant if it “tends to make the existence of any
fact” of consequence to the determination of the action
more probable or less probable than it would be without the
evidence. Fed.R.Evid. 401; United States v.
Mendoza-Salgado, 964 F.2d 993, 1006 (10th Cir. 1992).
Government's brief describes six conversations from the
relevant jail call:
Conversation 1: Defendant asks “Matias”
to dial a phone number which the Government believes is a
Mexico phone number. Co-conspirator “Manuel”
answers the call and speaks with Defendant. This is relevant
because the Government must prove that Defendant was
attempting to take the cash to Mexico.
Conversation 2: Defendant learns from
“Manuel” that a “brother-in-law”
wants to be paid but Manuel doesn't have the money to
pay. Defendant tells Manuel to tell the
“brother-in-law” that he'll take care of the
problem when he gets out of jail. Government contends this is
relevant for the inferences that can be made to the
connection to Mexico, e.g.: (1) Manuel is in Mexico because
the phone number is a Mexico phone number and therefore the
“brother-in-law” looking for the money is also in
Mexico; (2) Defendant was arrested and so the money he was
transporting did not make it to Mexico; and (3) Defendant was
traveling with cash to Mexico. These conversations also show
Defendant's knowledge about the money and his attempts to
resolve the non-delivery of the money-which is furtherance of
Conversation 3: Defendant states to an unknown
conspirator that he is “guilty for the
seventy-five” but “not for the sixty-five.”
The Government contends this shows Defendant's admission
of guilt for the crimes charged.
Conversation 4: Manuel tells Defendant that he is
struggling and paying for all the “Events” by
himself. The Government claims this is relevant because it
leads to an inference that Manuel is “struggling”
because Defendant did not deliver the cash back to Mexico.
Conversation 5: Defendant learns that his buddy from
Culiacán has been asking about him and how much he
charges to make the ice cream. Defendant states that he will
make the ice cream “nice” in Hermosillo. This
shows Defendant intends to return to Mexico.
Conversation 6: Defendant continues to discuss his
debt to the brother-in-law wanting to be paid, which the
Government claims makes it more probable that Defendant