United States District Court, D. New Hampshire
W. Fitzgibbon, AUSA Jeffrey S. Levin, Esq.
N. LAPLANTE UNITED STATES DISTRICT JUDGE.
Eleazar Flores-Mora has filed several motions in limine ahead
of his jury trial on one count of unlawful reentry after
deportation in violation of 8 U.S.C. § 1326(a). Many of
these motions have been resolved by the prosecution's
representations, in its filings and at the final pretrial
conferences, that it will not seek to admit certain types of
evidence and that it intends to lay a proper foundation for
otherwise admissible evidence through witness testimony. The
parties have also stipulated to the admission of certain
exhibits, resolving other motions. The court addresses the
remaining motions in turn.
court reminds the parties that these rulings are made without
prejudice to revisiting particular issues in response to
circumstances that might arise during trial. Furthermore,
these rulings are limited to grounds argued in the
parties' filings and raised at the final pretrial
conferences. The court reserves the right to assess other
factors at trial, such as hearsay, authenticity, and best
evidence, see Fed.R.Evid. 800 et seq., 900 et seq., and 1000
et seq., and where appropriate, arguments and grounds not
raised by counsel.
prosecution alleges that Flores-Mora has a tattoo on his arm
reading “Hecho en Mexico, ” which translates as
“Made in Mexico, ” with an illustration of an
Aztec eagle head, a design established by the Mexican
government to identify products manufactured in Mexico. It
intends to present testimony by a Homeland Security agent
that he noted and photographed the tattoo during a 2009
encounter in which Flores-Mora admitted entering the country
illegally. It also plans to ask Flores-Mora to show his arm
to the jury.
moves to suppress any evidence regarding this alleged tattoo.
He argues that any such evidence would be irrelevant,
potentially misleading, and prejudicial and so should be
excluded under Federal Rules of Evidence 401, 402, and 403.
It is irrelevant, he contends, because he has not put his
identity at issue and, even if identity is relevant, the
prosecution has ample other evidence to prove identity. He
argues that the tattoo might be construed as an admission of
alienage, when it might just as likely refer only to his
Mexican heritage. And, he suggests, the tattoo might be
misconstrued as a gang sign, creating prejudice.
court denies Flores-Mora's motion. Evidence about the
tattoo is probative of both identity and alienage. While
Flores-Mora argues that he has not put his identity at issue,
the prosecution bears the burden of proving that Flores-Mora
is an alien and has been previously deported. United States
v. Contreras Palacios, 492 F.3d 39, 42 (1st Cir. 2007)
(“To secure a conviction under 8 U.S.C. § 1326,
the government must prove that the defendant: (1) is an
alien, (2) was previously deported, and (3) thereafter
entered, or attempted to enter, the United States without
permission.”). The nature of the charge puts
Flores-Mora's identity at issue, as his legal status and
whether he has been deported are facts closely linked to his
identity. The two cases Flores-Mora cites involved
significant concessions of identity by the defendant, which
Flores-Mora has not offered (and of course has no obligation
to offer). See United States v. Aranda-Diaz, No. CR 12-2686
JB, 2014 U.S. Dist. LEXIS 2241 at *14 (D.N.M. Jan. 7, 2014)
(tattoo evidence excluded after defendant pleaded guilty to
felon-in-possession charge and would not contest being driver
of car during controlled purchase); United States v.
Washington, No. 16-cr-477, 2017 U.S. Dist. LEXIS 136220 at
36-37 (N.D. Ill. Aug. 21, 2017) (defendant could conceal
facial tattoos during trial only if he conceded that he was
the individual in pictures allegedly showing him illegally
possessing a firearm.).
the content of this alleged tattoo is probative of alienage.
Proving alienage is an element of the charged offense.
Contreras Palacios, 492 F.3d at 42. One obvious reason one
might get a “Hecho en Mexico” tattoo is that one
was born in Mexico. And true enough, other reasons include
one's Mexican heritage or love of Mexico and things
Mexican. But the existence of alternative explanations does
not render such a tattoo irrelevant. Whether Flores-Mora was
born in Mexico is relevant to alienage. Flores-Mora is free
to present alternative reasons for getting such a tattoo to
the jury through cross-examination, direct evidence, or
proper argument in summation.
alleged tattoo's probative value to identity and alienage
is not outweighed by any potential confusion or prejudice.
See Fed.R.Evid. 403. The prosecution thus may present this
evidence. Flores-Mora may, if he so wishes, request a
limiting instruction to the jury (addressing gang affiliation
or any other irrelevant or prejudicial issue) to cure any
residual prejudice. See Fed.R.Evid. 105.
Database search testimony
moves to preclude the prosecution from presenting testimony
by a government specialist that he searched federal
immigration databases and found no record of Flores-Mora
applying for permission to reenter the United States. He
first argues that this evidence would violate the best
evidence rule, by using testimony rather than presenting some
report from the database itself.
best evidence rule, set forth in Federal Rule of Evidence
1002, provides: “An original writing, recording, or
photograph is required in order to prove its content unless
these rules or a federal statute provides otherwise.”
Fed.R.Evid. 1002. In support of the argument that the best
evidence rule applies to the government specialist's
testimony, Flores-Mora relies on United States v. Bennett, in
which the Ninth Circuit Court of Appeals found that the best
evidence rule applied to testimony about the contents of a
global positioning system. 363 F.3d 947 (9th Cir. 2004). But
the Ninth Circuit has squarely distinguished Bennett from the
type of testimony at issue here. In United States v.
Diaz-Lopez, it held that “testimony of a search of a
computer database revealed no record of a matter” does
not trigger the best evidence rule, because it concerns the
absence of data rather than the contents of data. 625 F.3d
1198, 1200-03 (9th Cir. 2010) (considering testimony that a
database showed no record defendant had applied for
readmission to the United States). The court agrees and finds
no violation of the best evidence rule.
also argues that the proposed testimony violates Federal
Rules of Evidence 401, 403, 702, 802 and his rights under the
Fifth and Sixth Amendments to the United States Constitution
because the government specialist likely lacks personal (see
Federal Rule of Evidence 602) or expert knowledge about
various aspects of the databases. The Ninth Circuit Court of
Appeals considered and rejected a similar argument in
Diaz-Lopez: “For the purposes of establishing
foundation, it was sufficient that the agent testified that
he was familiar with both the process of searching the
records and the government's recordkeeping practices with
regard to the database.” Diaz-Lopez, 625 F.3d at 1200.
Assuming that the prosecution's witness here provides
similar testimony, this is sufficient. Flores-Mora has not
seriously challenged the reliability of the databases at
issue, and the prosecution is not seeking to prove the
contents of the information in the database. See Id.
Flores-Mora has offered no on-point ...