The opinion of the court was delivered by: Chief Judge Kane
On April 12, 2012, a grand jury sitting in the Middle District of Pennsylvania returned an indictment against Defendant Adgar Rene Ureste-Meza, charging him with one count of illegally reentering the United States, in violation of 8 U.S.C. § 1326(a); one count of falsely representing himself to be a citizen of the United States, in violation of 18 U.S.C. § 911; and one count of submitting a false document to Immigrations and Customs Enforcement ("ICE"), in violation of 18 U.S.C. § 1001. (Doc. No. 1.) Jury selection and trial are scheduled to commence in this matter on October 29, 2012. On October 22, 2012, Defendant filed two motions in limine, seeking to exclude evidence of his prior convictions and sound recordings of various conversations in which Defendant participated. (Doc. Nos. 36, 38.) Two days later, Defendant filed a third motion in limine, requesting the Court to hold a hearing pursuant to United States v. Starks, 515 F.2d 112 (3d Cir. 1975), regarding the admissibility of three recordings that the Government intends to use at trial. (Doc. No. 44.) The Court will address each motion in turn.
I. DEFENDANT'S FIRST MOTION IN LIMINE TO EXCLUDE EVIDENCE OF DEFENDANT'S PRIOR CONVICTIONS
In his first motion in limine, Defendant moves to preclude the Government from introducing evidence of his prior convictions under Rules 403, 404(b), and 609 of the Federal Rules of Evidence. (Doc. No. 36.) According to Defendant, he was previously convicted of: (1) charges related to driving under the influence on four separate occasions; (2) illegally entering the United States, in violation of 8 U.S.C. § 1325; and (3) failing to comply with reporting requirements for individuals arriving in the United States other than by vessel, vehicle, or aircraft, in violation of 19 U.S.C. § 1459. (Id. ¶¶ 26-27, 29, 32, 35, 38.)
At the outset, the Government makes clear in its brief in opposition that it "does not seek to admit at trial . . . [Defendant's convictions] concerning alcohol related offenses or other non-immigration contacts." (Doc. No. 41 at 2.) Accordingly, the Court will grant Defendant's motion in limine as unopposed to the extent that the motion seeks to exclude evidence of Defendant's prior convictions on charges related to driving under the influence.
The Court must now assess whether Defendant's prior federal convictions are admissible as prior bad acts evidence under Rule 404(b) or for impeachment purposes under Rule 609. First, the Government contends that evidence of these convictions is admissible under Rule 404(b) because the evidence is relevant and probative, is not offered to prove Defendant's bad character, and its probative value is not substantially outweighed by the danger of unfair prejudice. (Doc. No. 41 at 4-6.) Rule 404(b) of the Federal Rules of Evidence provides in relevant part:
(1) Prohibited Uses. Evidence 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.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
The United States Court of Appeals for the Third Circuit has devised a four-part test for determining whether evidence is admissible under Rule 404(b): "(1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its potential for unfair prejudicial effect under Rule 403; and (4) the Court must charge the jury to consider the evidence only for the limited purpose for which it is admitted." United States v. Moore, 375 F.3d 259, 263-64 (3d Cir. 2004) (citations and internal quotation marks omitted).
Rule 404(b) is "a rule of inclusion rather than exclusion," and the admission of Rule 404(b) evidence is favored "if such evidence is relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime." United States v. Cruz, 326 F.3d 392, 395 (3d Cir. 2003) (citations and internal quotation marks omitted). "If the government offers prior offense evidence, it must clearly articulate how that evidence fits into a chain of logical inferences, no link of which can be the inference that because the defendant committed . . . [similar] offenses before, he therefore is more likely to have committed this one." United States v. Sampson, 980 F.2d 883, 887 (3d Cir. 1992).
The Government contends that evidence of Defendant's prior convictions for immigration-related offenses indicate that Defendant's "actions on March 25, 2012, were motivated by his continuing desire to illegally reside in the United States. His actions were not a mistake. They were not an accident. He did exactly what he desired and intended to do." (Doc. No. 41 at 4.) Defendant asserts that the evidence serves no proper evidentiary purpose because although "evidence of prior deportations is an element of the offense of illegal re-entry . . . the fact of the conviction and the crimes of which he was convicted have no probative value." (Doc. No. 37 at 6.) Although evidence that Defendant was convicted of illegally entering the United States may be relevant to showing that it was less likely that Defendant reentered the United States unknowingly or mistakenly, the Court finds that the probative value of this evidence is substantially outweighed by the dangers of unfair prejudice and needlessly presenting cumulative evidence under Rule 403 of the Federal Rules of Evidence. First, presenting this evidence creates a substantial risk that the jury will unfairly conclude that Defendant's entry into the United States at the time charged in the indictment was unlawful solely because Defendant was previously convicted of illegally entering the United States. Second, the Court is satisfied that the Government can effectively argue that Defendant reentered the United States knowingly, and not by mistake, by presenting evidence and eliciting testimony concerning Defendant's prior deportation and his interactions with ICE agents, without also presenting evidence of his related convictions. In light of the strong potential for prejudice, the Court also finds that a limiting instruction would not sufficiently mitigate prejudice. Accordingly, the Court will not permit the Government to introduce evidence of Defendant's prior federal convictions under Rule 404(b).
The Court will also preclude the Government from introducing evidence of these convictions to impeach Defendant's character for truthfulness should he testify at trial. As Defendant argues, the convictions were neither for crimes punishable by death or imprisonment for more than one year nor for crimes involving a dishonest act or false statement and, thus, are not admissible under Rule 609(a) of the Federal Rules of Evidence. Therefore, the Court will grant Defendant's motion in limine to exclude evidence of Defendant's prior federal convictions under Rules 404(b) and 609 and will deny as moot Defendant's motion to the extent that it seeks to exclude evidence of Defendant's convictions for crimes relating to driving under the influence.
II. DEFENDANT'S SECOND MOTION IN LIMINE TO EXCLUDE THE INTRODUCTION OF SOUND RECORDINGS
In his second and third motions in limine,
Defendant moves to preclude the Government
from introducing sound recordings of conversations Defendant
participated in while he was
incarcerated at the Clinton County Correctional Facility. (Doc Nos.
38, 44.) The Government avers that it "intends to only introduce three
recorded telephone/visits . . . [at] trial: two telephone calls
conducted on March 27, 2012, and April 26, 2012, and one visit
conducted on April 20, 2012." (Doc. No. 42 at 2.) The Government,
however, also provided defense counsel, upon request, with a "disk
contain[ing] approximately 43 hours and 41 minutes of conversations
between [Defendant] and other individuals" recorded during Defendant's
incarceration from approximately March 2012 through September ...