United States v. Bowen

          ORDER

          Honorable Cindy K. Jorgenson United States District Judge

         Pending before the Court are Defendant's Motions in Limine. (Docs. 31 and 53). Oral argument was held on July 2, 2019. (Doc. 80).

         The facts of this case have been previously outlined in prior documents, but the Court will provide a brief summary of the relevant facts. On December 3, 2017, Border Patrol Agent Matthew Bowen (“Defendant”) apprehended a suspected undocumented alien (“A.L.-A.”)^[1] by striking him with his vehicle (the “Incident”). In connection with the Incident, the Defendant was charged with a violation of 18 U.S.C. § 242. On December 12, 2017, Defendant submitted a supplemental report (the “Report”) describing the Incident. In the Report, Defendant alleged that he was unsure of whether his vehicle had contacted A.L.-A. and that he never intended to strike, scare, or come into contact with A.L.-A. The government alleges that the information contained within the Report is false and has charged Defendant with a violation of 18 U.S.C. § 1519.

         On March 22, 2018, a search warrant was issued and the government obtained text messages exchanged by Defendant discussing the Incident. The scope of that warrant was the subject of a motion to suppress filed by Defendant. (Doc. 29). The Court granted, in part, and denied, in part, that motion. (Doc. 79). Subsequently, Defendant filed the two pending motions in limine. The Court will address each motion individually.

         1. Motion in Limine to Preclude Witnesses from Opining on Ultimate Legal Issue

         In this motion, Defendant seeks to preclude the government from eliciting testimony from agents or other witnesses that Defendant's actions seemed unreasonable, excessive, shocking, or not in conformance with typical Border Patrol training or the Border Patrol's Use of Force Policy. Defendant argues that for a violation of § 242, a jury must “find the government proved beyond a reasonable doubt that he ‘acted voluntarily and intentionally and with specific intent to interfere with the victim's right to be free from unreasonable searches and seizures.'” (Doc. 31, pg. 2) (citing United States v. Reese, 2 F.3d 870, 885 (9th Cir. 1993). Defendant further argues that since the inquiry of “reasonableness” is inextricably linked with the mens rea determination provided by the statute, ^[2] that it is the exclusive province of the jury and inappropriate for comment by expert witnesses.

         As a threshold matter, Defendant categorizes the probable testimony of Border Patrol Agents who witnessed the Incident as “expert” testimony. Defendant has provided no support for his conclusory statement that the Agents would testify as “experts” as opposed to “lay” witnesses. Law enforcement officers routinely testify, and are permitted to testify, as lay witnesses. See e.g., United States v. Flores, 536 Fed.Appx. 709, 711 (9th Cir. 2013) (“The record indicates that the Drug Enforcement Administration (‘DEA') agent testified as a lay witness, not as an expert witness, and that he testified based on his experience, which is a proper basis for lay opinion testimony”); United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995) (Ninth Circuit finding that a law enforcement officer's lay testimony was permissible because it was “rationally based on his perceptions”).

         In its Response, the government explicitly rejected the notion that it would request that its percipient Border Patrol Agent witnesses provide expert testimony. See (Doc. 50, pg. 4) (“The defendant erroneously asserts that the government will ask percipient law enforcement witnesses to provide expert testimony. Instead, the government intends to call them as fact witnesses and offer their lay opinion testimony about their respective perceptions”). Defendant has provided no evidence as to why the Border Patrol Agent witnesses should be treated as expert, as opposed to lay, witnesses. Based on the government's position and the lack of evidence advanced by Defendant to the contrary, the Court will treat any potential Border Patrol Agent witnesses as lay witnesses. The witnesses may provide lay opinion testimony regarding their perceptions of the Incident.

         Despite the prohibition against expert witnesses from stating an opinion about whether the Defendant did or did not have the requisite mental state or condition that constitutes an element of 18 U.S.C. § 242, there is no such corollary prohibition for lay witnesses. The Federal Rules of Evidence permit lay opinion testimony on an ultimate legal issue if it is rationally based on the witness's perception. See United States v. Gadson, 763 F.3d 1189, 1214 (9th Cir. 2014) (“Rule 704(b) is inapplicable by its terms. Officer Thompson was not testifying as an expert witness here. The defendants have cited no cases applying Rule 704(b) to a lay witness, and there is no basis for doing so under the text of the rule”); see also United States v. Koon, 34 F.3d 1416, 1430 (9th Cir. 1994), aff'd in part, rev'd in part on other grounds, 518 U.S. 81 (1996) (Ninth Circuit finding that the testimony of one police officer that another police officer was “out of control” was held to be admissible because it was rationally based on the officer's first hand observations and was helpful in determining factual issues central to the case). However, the Court finds that a limit on the number of witnesses that testify regarding their perception of the Incident is appropriate. Although the parties have not yet provided their witness lists, the Court will limit the number of witnesses that testify as to their direct perception of the Incident.

         Defendant also argues that Border Patrol witnesses should be prevented from testifying regarding Border Patrol's Use of Force Policy. More specifically, Defendant seeks to prevent witnesses from opining on whether Defendant's conduct fell outside of the Policy's parameters. Although Defendant does not seek to preclude the admission of the Policy itself, Defendant argues that “[e]ven if 100 other agents interpret the Policy to preclude the method of apprehension undertaken by Mr. Bowen (assuming arguendo that is what he did), that does not mean that he subjectively intended to inflict more force than was necessary under the circumstances.” (Doc. 51, pg. 4).

         It has previously been “recognized that evidence of departmental policies can be relevant to show intent in § 242 cases.” United States v. Proano, 912 F.3d 431, 439 (7th Cir. 2019). Furthermore, Courts have also permitted testimony pertaining to training materials. United States v. Rodella, 804 F.3d 1317, 1338 (10th Cir. 2015) (Tenth Circuit permitting testimony pertaining to a defendant officer's previous training was relevant to determine whether he acted “willfully”). In this case, testimony by Border Patrol Agent witnesses that Defendant's conduct was outside of the Policy's parameters is relevant to whether Defendant acted willfully, which is an essential element of § 242. If Defendant was aware of the Policy and his actions during the Incident were in violation of the Policy, it is certainly probative of Defendant's willfulness. The Court finds that this information is probative and relevant.

         2. Motion in Limine to Preclude Text Messages Pursuant to Evidence Rules 401 et seq.

         Defendant's second motion in limine relates to text messages obtained by the government. Some of the messages are exchanges between Defendant and fellow Border Patrol Agents discussing the Incident. Defendant contends that a significant portion of the text messages produced by the government should be precluded because they are irrelevant or highly prejudicial. Since filing its Response, the government has provided the Court and Defense counsel with a list of the text messages and proposed redactions it seeks to introduce at trial. The Court has reviewed the proposed messages and will address the admissibility of the messages by Defendant's categorical objections.

         A. Job ...