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United States v. Trejo

United States District Court, D. New Mexico

October 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERTO TREJO, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE.

         This case is before the Court on Defendant Mr. Roberto Trejo's (Defendant) three Motions in Limine: (1) to Exclude Evidence of Prior Convictions (Doc. 34), (2) to Exclude Evidence of Domestic Violence (Doc. 35), and (3) to Exclude Evidence of Alleged Aggravated Assault and Related Case (Doc. 36). The Court held a hearing on these motions on September 25, 2018. Having considered the submissions of counsel and relevant law, the Court will grant in part and deny in part each of Defendant's motions, as described below.

         I. Relevant Facts

         Defendant is charged in Counts 1 and 2 of the Superseding Indictment with being a felon in possession of a firearm, and in Count 3 with being a felon in possession of ammunition, all in violation of 18 U.S.C. § 922(g)(1). (See Doc. 24.) Count 1 stems from a May 6, 2016, incident in which Defendant's girlfriend, Ms. Teresa Palacios, was shot through the back of the ankle at her mother's home in Las Cruces, New Mexico. (Doc. 45 at 1.) In a subsequent interview with ATF agents, Defendant stated that on the morning of the shooting he was in the kitchen and heard Ms. Palacios call him to come look at something in the bedroom. (See Docs. 39 at 1; 45 at 2.) He then heard something hit the floor followed by a gunshot, and when he entered the bedroom Ms. Palacios was on the floor with a gunshot wound. (Doc. 45 at 2.) Defendant told agents that he did not know where the gun came from or what happened to it after the incident. (Id.; Doc. 47 at 3.)

         The Government does not have the gun in evidence (Doc. 46 at 2), but believes that Defendant and Ms. Palacios argued and Defendant shot his girlfriend. (Doc. 45 at 1.) Ms. Palacios has described several different versions of the shooting to various law enforcement officers, including “that she had been moving some clothes around a dresser when a gun accidentally fell and shot her, ” and a conflicting account that she felt a gunshot through her ankle after turning her back to Defendant while they were fighting. (See Doc. 46 at 2.) Before the grand jury, Ms. Palacios testified that she suffers from post-traumatic stress disorder and does not remember anything about the shooting. (See Id. at 3.)

         Count 2 relates to an alleged incident in May 2016 in which Defendant asked his neighbor, Mr. Francisco Lopez, to hold two pistols for him “because [he] was going away for a while and did not want police to find them.” (Id.) Mr. Lopez, who is a gun owner and familiar with guns, agreed to store the pistols. (Doc. 47 at 9.) The Government alleges that Defendant returned roughly three months later and asked Mr. Lopez for the pistols. (Doc. 46 at 3.) Mr. Lopez returned the guns, and his partner also witnessed the exchange. (Id.) The Government will present Mr. Lopez's testimony describing the interactions, the guns, and their caliber. (Id.)

         II. Defendant's Motion in Limine to Exclude Evidence of Prior Convictions

         Defendant seeks to prevent the Government from introducing his various misdemeanor and felony convictions for impeachment purposes, should he choose to testify at trial. The Government responded to Defendant's motion by moving in limine for a pre-trial order that the felony convictions are admissible as impeachment evidence under Federal Rule of Evidence 609. (See Doc. 45 at 1.) Defendant's prior convictions include three misdemeanors: (1) possession of marijuana; (2) unlawful carrying of a weapon; and (3) resisting, evading, or obstructing an officer. (See Doc. 34 at 2.)

         In 2009, Defendant pleaded guilty to two counts of aggravated battery against a household member (great bodily harm and deadly weapon)-both third degree felonies-for an incident in which Defendant's father, Mr. Trejo, was the victim. (See Doc. 45-1 at 1-2.) He was ultimately sentenced to serve approximately three years for the assault convictions after violating his probation agreement twice. (Id.; Docs. 45-2 at 1-2; 45-3.) In 2013, Defendant pleaded guilty to trafficking a controlled substance (by possession with intent to distribute)-a second degree felony-and sentenced to approximately five years after violating his probation agreement. (Docs. 45-4 at 1; 45 at 3; 45-5.)

         A. Legal Standard

         A defendant who chooses to testify as a witness may be impeached with evidence of prior felony convictions “if the probative value of the evidence outweighs its prejudicial effect to that defendant.” Fed.R.Evid. 609(a)(1)(B). Similarly, evidence of any non-felony criminal convictions must be admitted for impeachment purposes if the elements of the crime require a dishonest act or false statement. See Fed. R. Evid. 609(a)(2). If more than ten years have elapsed since the prior conviction or release from confinement for the prior conviction, then the evidence is only admissible for impeachment purposes if its probative value substantially outweighs its prejudicial effect and the adverse party is given reasonable notice to contest its admission. See Fed. R. Evid. 609(b).

         For defendants acting as witnesses, balancing probative value with potential prejudice is particularly important because “the defendant faces a unique risk of prejudice-i.e., the danger that [the] convictions . . . will be misused by a jury as propensity evidence despite their introduction solely for impeachment purposes.” See United States v. Smalls, 752 F.3d 1227, 1240 (10th Cir. 2014) (quoting Fed.R.Evid. 609, advisory committee's note to 1990 amendment) (internal citations omitted)). There are five factors that the Tenth Circuit considers when deciding whether a defendant witness's prior convictions should be admitted under Rule 609: “(1) the impeachment value of the defendant's prior crimes; (2) the dates of the convictions and the defendant's subsequent history; (3) the similarity between the past crime and charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the defendant's credibility at trial.” Id. (internal citations omitted); see also United States v. Sides, 944 F.2d 1554, 1560 (10th Cir. 1991).

         B. The Court will exclude Defendant's misdemeanor convictions and felony assault convictions.

         Defendant correctly states that evidence of his prior misdemeanor convictions is not admissible under Rule 609(a)(1), and the Government argues only that Defendant's felony convictions should be admitted under Rule 609. (See Docs. 34 at 2; 45 at 3.) As the misdemeanor convictions do not require proving elements involving dishonest acts or false statements, the Court will grant Defendant's motion to the extent it excludes his prior misdemeanor convictions. See Rule 609(a)(2).

         An analysis of the Rule 609 factors and the posture of the case reveals that Defendant's two prior convictions for assault should also be excluded. The first factor-the impeachment value of the offenses-leans toward exclusion because aggravated battery does not require proving an element of untruthfulness or dishonesty. Yet this factor alone is not dispositive. See, e.g., Smalls, 752 F.3d at 1240 (evidence of prior convictions for aggravated battery against a household member with a deadly weapon and criminal sexual penetration admissible for impeachment purposes); United States v. Lugo, 170 F.3d 996, 1005 (10th Cir. 1999) (evidence of prior conviction for attempted possession of a controlled substance admissible for impeachment purposes). “The implicit assumption of Rule 609 is that prior felony ...


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