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United States v. Anaya

United States District Court, D. New Mexico

January 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH A. ANAYA, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION IN LIMINE (DOC. 92) AND GRANTING THE GOVERNMENT MOTION IN LIMINE (DOC. 94)

         THIS MATTER comes before the Court upon the following motions in limine:

• Defendant's “Fifth” Motion in Limine to Exclude Introduction of Jailhouse Call, filed October 21, 2018 (Doc 92); and
• Government's Cross-Motion in Limine to Allow Introduction of Jailhouse Call, filed October 2, 1, 2018 (Doc 94).[1]

         BACKGROUND

         Defendant is charged with felon in possession of a firearm, in violation of 18 U.S.C. §922(g)(1). Jury selection and trial in this case is currently set for February 19, 2019. See Doc. 129. The subject of this motion is a jailhouse call made by Defendant to a female on May 20, 2017, when he was in custody following his arrest pursuant to a state of New Mexico arrest warrant charging three state of New Mexico criminal offenses. In that phone call, Defendant asked the female to do him a “big favor, ” namely: to call his cousin and ask her to pick up a “thing” in his closet because his sister was trying to get him “in some serious, serious sh*t”[2]

         Defendant objects to the introduction of the phone call transcript as evidence at trial on three grounds:

• First, the phone call is immaterial and irrelevant (Fed.R.Evid. 401);
• Second, that any relevance is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury (Fed.R.Evid. 403); and
• Third, that admission of the recording of the call would violate Fed.R.Evid. 801 because the statements of the other person on the call would be admitted, such statements are hearsay, and admission would violate Defendant's Sixth Amendment right to confront and cross-examine the other person on the phone call.

         The jailhouse call at issue here was also the subject of two motions to suppress, both of which were denied by the Court. Docs. 39 and 128. Defendant unsuccessfully challenged the veracity of the affidavit in support of the search warrant which led to finding the gun in Defendant's home, see Doc. 39. Defendant did not succeed in his motion to suppress evidence (including the jailhouse call) as a result of an allegedly unlawful arrest, see Doc. 128. Further description and particulars regarding the jailhouse call and events leading up to the call need not be reiterated here, since they can be found in the Court's decisions on those motions to suppress. See Doc. 39 at 4, 8; Doc. 128 at 3.

         DISCUSSION

         As an initial matter, Defendant was aware that his outgoing call would be recorded, see Doc. 39 at 15, and thus had no expectation of privacy in the phone call. See United States v. Gangi, 57 Fed.Appx. 809, 815 (10th Cir. 2003) (“no expectation of privacy prisoner's outbound telephone calls”); Kamahele v. United States, No. 2:15-CV-00506-TC, 2017 WL 3437671, at *11 (D. Utah Aug. 10, 2017) (“vast weight of authority” demonstrates that there is no reasonable expectation of privacy in calls initiated from jail where prisoners are given notice that all telephone calls are monitored and recorded) (citation omitted).

         I. The Jailhouse Call is Material and Relevant

         Defendant is charged with knowingly possessing a firearm. Defendant's own words during the phone call tend to show that he knowingly possessed the firearm that was found in the house, and knew he could not lawfully do so. The Court previously concluded that a reasonable inference can be drawn that Defendant was referring to the gun in using the word “ thing” in the conversation, since “[i]f Defendant wanted someone to remove a gun ...


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