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United States v. Figueroa-Rivera

United States District Court, D. New Mexico

March 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JULIO CESAR FIGUEROA-RIVERA, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART GOVERNMENT'S MOTION IN LIMINE SEEKING PRETRIAL RULING ON ADMISSIBILITY OF EVIDENCE (DOC. 57)

         THIS 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.

         BACKGROUND

         The 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).

         DISCUSSION

         In 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.

         I. Relevance

         To be 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).

         The 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 the conspiracy.
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 ...

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