United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK SENIOR U.S. DISTRICT JUDGE.
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
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.)
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.)
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.)
Defendant's Motion in Limine to Exclude Evidence of Prior
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.)
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;
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).
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).
The Court will exclude Defendant's misdemeanor
convictions and felony assault convictions.
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).
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