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United States v. Reynoso

United States District Court, D. New Mexico

July 3, 2019




         This matter is before the Court on Defendant Mario Reynoso's Motion in Limine to exclude evidence of prior bad acts and evidence of a prior felony conviction for importation of marijuana. (Doc. 76.) Defendant's Motion is in response to the Government's Notice of Intent to Introduce Evidence of Bad Acts Under Rule 404(b) (Doc. 44) and Notice Regarding Rule 609 Evidence as to Defendant Mario Reynoso (Doc. 58). Defendant is charged with a single count of distributing methamphetamine, and the Government seeks to introduce evidence in its case-in-chief of two instances following the charged offense in which narcotics were seized from Defendant's vehicle, as well as Defendant's telephone communications subsequent to the charged offense that suggest he was engaged in the distribution of narcotics leading up to and following his arrest. (Doc. 44 at 5-6.) The Government also seeks a ruling that if Defendant elects to testify, evidence regarding his 2003 conviction for felony importation of marijuana may be elicited as impeachment evidence on cross examination. Having considered the submissions of counsel and relevant law, the Court will deny Defendant's Motion in Limine.

         I. Relevant Facts

         Defendant is charged in a single count Superseding Indictment with “unlawfully, knowingly and intentionally distribut[ing] a controlled substance, 5 grams and more of methamphetamine . . . [i]n violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).” (Doc. 48 at 1.) The Government bears the burden of proving beyond a reasonable doubt that Defendant knowingly and intentionally distributed the controlled substance as charged, that the substance was in fact methamphetamine and that the amount distributed was at least 5 grams, and that methamphetamine is a controlled substance within the meaning of the law. See Tenth Circuit's Pattern Criminal Jury Instructions (2011 ed., Feb. 2018 update) § 2.85.1.

         The Government asserts that in March 2018, a source of information (SOI) identified an individual named “Mario” to Homeland Security Investigations (HSI) and informed HSI that Mario was involved in drug trafficking with the Barrio Azteca gang in El Paso, Texas and southern New Mexico. (Doc. 44 at 1.) The SOI did not know Mario's surname, but directed agents to a Facebook page under the name “Mario Hernandez” and suggested that it “might” belong to the Mario the SOI was referring to. (Id.) The SOI then “provided HSI with the suspect's vehicle color, make, model, and license plate information-a gray Ford Fusion bearing license plate number KNJ-4185.” (Id. at 2.) HSI agents performed a registration check and determined that the vehicle was registered to Defendant Mario Reynoso. (Id.) The registration check also revealed Defendant's driver's license photo and residential address. (Id.) According to the Government, when agents placed Defendant's driver's license photo in a “six-pack” photo lineup, the SOI identified Defendant as the “Mario” the SOI was referring to. (Id.)

         The SOI provided Mario[1] with the telephone number of an undercover agent (UC) approximately one month later, “under the guise of connecting [him] with a potential methamphetamine buyer[, ]” and gave the UC Mario's number. (Id. at 2.) The Government alleges that the telephone number for Mario that the SOI provided HSI was registered at the same address listed on Defendant's vehicle registration. (Id. at 2.) Through phone calls and text messages, the UC and Mario coordinated a sale of two ounces of methamphetamine for $800 on May 8, 2018, at the Sunland Park Casino in Sunland Park, New Mexico. (Id.) Upon meeting in the parking lot, the UC entered the backseat of the gray Ford Fusion Mario was driving and asked for the methamphetamine. (Id. at 3.) Mario “pointed to a Band Aid box laying on top of the center console . . . [and t]he UC took the box, opened it, and discovered a translucent plastic bag of what appeared to be two ounces of methamphetamine.” (Id.) The UC gave Mario $800 and left the car, but later called Mario to tell “him that he had weighed the methamphetamine” and asked why the amount he purchased was less than two ounces. (Id.) Mario eventually conceded the amount was less than agreed upon and “told the UC that he would make it up to the UC upon his next purchase.” (Id.)

         The New Mexico Department of Public Safety Southern Forensic Laboratory analyzed the contents of the bag the UC purchased from Mario, but labeled the evidence receipt “HERNANDEZ, MARIO.” (Id. at 3-4.) HSI recorded video and audio of the transaction between Mario and the UC that took place in the gray Ford Fusion and recorded all phone calls between the two coordinating the drug buy and their conversation following the sale. (Id. at 2-3.) The UC identified the “Mario” he purchased the methamphetamine from as Defendant based on his driver's license, as did the HSI agents who observed the transaction from the parking lot. (Id. at 3.)

         I. The Government's Proffered Rule 404(b) Evidence

         A. Background

         Pursuant to Federal Rule of Evidence 404(b), the Government seeks to introduce evidence in its case-in-chief of several “bad acts” that Defendant engaged in subsequent to the charged drug sale on May 8, 2018, to prove Defendant's identity, knowledge, and intent related to the offense. (See Doc. 44.) First, the Government seeks to introduce evidence that on August 22, 2018- approximately three and a half months after the charged drug sale at the Sunland Park Casino, two officers in the Narcotics Unit of the El Paso County Sherriff's Office were conducting a narcotics investigation in the parking lot of a hotel in El Paso and recognized Defendant as a “current investigative target.” (Id. 5.) The Government alleges that the officers then “initiated a consensual encounter” and Defendant allowed them to conduct a pat down and canine inspection of the exterior of his vehicle, leading to the discovery of “a stack of U.S. currency in Defendant's pocket, as well as 74 grams of methamphetamine, 37.10 grams of heroin, 32.60 grams of cocaine, 0.76 ounces of marijuana, drug paraphernalia, and a digital scale inside of his vehicle.” (Id. at 5.) The officers seized the narcotics and arrested Defendant, but he was not prosecuted. (Id.)

         Next, the Government intends to offer evidence surrounding Defendant's January 30, 2019 arrest on an outstanding warrant that had been issued following his indictment in the current case. (Id.) Defendant was apprehended in the same gray Ford Fusion registered under his name and address that the SOI had alerted agents to in March, but bearing a different license plate. (Id. at 5- 6.) Officers found $4, 545 in cash on Defendant's person and “seven ounces of methamphetamine, divided into seven plastic bags, containing approximately one ounce of methamphetamine each, ” in the vehicle. (Id. at 6.)

         Finally, the Government seeks to introduce text messages found on a cellular phone seized from Defendant during his January 30, 2010 arrest that “confirm that Defendant continued to sell methamphetamine after the instant offense and up until the arrest.” (Id.) The cellular phone has a different number than the number through which the UC coordinated the May 8, 2018 drug purchase from “Mario.” (Id.) In addition, the Government seeks to introduce “[r]ecorded jail calls between Defendant and his wife that show that Defendant has continued to coordinate sales of methamphetamine while in the custody of the U.S. Marshal.” (Id. at 6.) The Government asserts that in these text messages and calls Defendant uses “the same communication style” that Mario used when communicating with the UC to coordinate the charged drug sale in May 2018, including use of “code words” rather than referring to drugs by name. (Id.)

         The Government argues that each of these subsequent “bad acts”-(i) possession of 74 grams of methamphetamine, other narcotics, and a digital scale in his gray Ford Fusion; (ii) possession of seven ounces of methamphetamine divided into multiple one-ounce bags in his gray Ford Fusion; and (iii) various coded communications suggesting involvement in narcotics trafficking-are all admissible to show Defendant's identity, knowledge, and intent regarding the charged count of distribution of methamphetamine on May 8, 2018. (See Id. at 6-7.) Defendant urges the Court to exclude all such evidence because it is unduly prejudicial and irrelevant since knowledge and intent are not at issue in the case. (See Doc. 76 at 4-5.) Further, Defendant argues that none of the proffered evidence of subsequent bad acts rises to the level of “signature quality” and thus cannot be properly admitted to prove identity in this case. (Id. at 6.)

         B. Legal Standard for Rule 404(b) Evidence

          Under Federal Rule of Evidence 404(b)(1), “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” But such evidence may be admissible if offered to prove something other than criminal propensity, including “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). In the Tenth Circuit, courts apply the four-part test articulated in Huddleston v. United States, 485 U.S. 681, 691-92 (1988), to determine the admissibility of Rule 404(b) evidence:

(1) [the] evidence of other crimes, wrongs, or acts must be introduced for a proper purpose; (2) the evidence must be relevant; (3) the court must make a Rule 403 determination whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) the court, upon request, must instruct the jury that the evidence ...

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