United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION IN LIMINE (DOC. 92) AND GRANTING THE GOVERNMENT MOTION
IN LIMINE (DOC. 94)
MATTER comes before the Court upon the following motions in
• 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
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
objects to the introduction of the phone call transcript as
evidence at trial on three grounds:
• First, the phone call is immaterial and irrelevant
• 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.
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.
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).
The Jailhouse Call is Material and Relevant
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 ...