United States District Court, D. Arizona
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 ...