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United States v. Solorzano

United States District Court, N.D. Texas, Dallas Division

April 10, 2017



          Sam A. Lindsay United States District Judge.

         The court held a pretrial conference on April 6, 2017, to address pending pretrial motions and other matters and indicated that it would enter a separate order setting forth the court's rulings on the parties' motions and objections. For the reasons stated during the pretrial conference and herein explained, the court: grants the Government's Motion in Limine (Doc. 34) to the extent herein set forth; denies as moot Defendant's Motion in Limine (Doc. 40); grants in part and denies in part Defendant's Motion in Limine (Doc. 41) regarding expert testimony; denies as moot Defendant's Request for Notice of Intent to Use Rule 404(b) Evidence (Doc. 42); overrules Defendant's objection to the admission of evidence in the Government's Rule 404(b) notice (Edgar Solorzano's testimony); and grants Defendant's Motion for Leave (Doc. 64) and related Motion in Limine Under Rule 609(b).

         I. Motions

         A. Government's Motion in Limine (Doc. 34)

         1. Police Procedures or Protocol

         The Government moves to preclude the admission of evidence, questioning of the Government's witnesses, and argument by Defendant regarding police procedure and whether proper police procedure or protocol was followed. Defendant contends in his response to the Government's motion that such evidence is relevant to his defense of self-defense. Defense counsel argued during the pretrial conference that the agents who executed the tracking device warrant did not follow proper police procedure because: (1) the state warrant was signed by one of the federal agents as an affiant, whereas state law requires a tracking device warrant to be signed by an attorney; (2) the agent who attempted to attach the tracking device to Defendant's vehicle raised his hands when confronted by Defendant and ran away from Defendant; and (3) the agent failed to identify himself as a law enforcement officer. Defense counsel contends that the agents' actions in executing the tracking device warrant and their failure to follow proper police procedure caused Defendant to respond the way he did because he believed that his vehicle was being burglarized. Defense counsel asserts that there will be testimony presented at trial that Defendant felt threatened because the two agents were dressed in dark clothing, it was dark outside when the incident occurred, and the area is a high crime area. Defense counsel, therefore, contends that their expert should be allowed to testify regarding proper police procedure in executing a tracking device warrant, and they should be allowed to cross-examine the Government's witnesses and agents regarding this topic.

         Defendant designated Peter Schulte (“Schulte”) as an expert to testify on his behalf. In Defendant's Designation and Notice of Expert Testimony, Defendant states that Schulte is a licensed peace officer and attorney and will testify regarding:

proper law-enforcement methodology and protocol in situations such as what occurred in this case when Defendant and law enforcement made contact. Topics will include self-defense, defense of a third-person, defense of property, securing and executing warrants, effectuating warrants, and how to engage in a negative or hostile situation. Mr. Schulte's opinion will indicate that proper law-enforcement methodology and protocol were not followed in this case. He will also opine that the warrants were not executed properly. In addition, he will opine about the defendant's right to self-defense and the defense of property.

Def.'s Expert Notice 1 (Doc. 53).

         Even if Schulte is qualified to testify as an expert regarding these matters, expert testimony on these topics would be improper. First, Schulte's proposed testimony regarding a person's right to self-defense, including the right to defend oneself, others, and a person's property is not proper expert testimony, as it involves purely legal matters, which will be addressed in the court's instructions to the jury. Askanase v. Fatjo, 130 F.3d 657, 672 (5th Cir. 1997) (“[O]ur legal system reserves to the trial judge the role of deciding the law for the benefit of the jury. Moreover, allowing attorneys to testify to matters of law would be harmful to the jury.”) (citations omitted).

         Second, any discussion, whether in the form of testimony, argument, questioning, or evidence, regarding proper procedure and protocol for obtaining and executing a tracking device warrant or any other type of warrant is not relevant, as required by Federal Rule of Evidence 401, to the offenses charged or Defendant's theory of self-defense. See United States v. Alvarado, 808 F.3d 474, 495 n.14 (11th Cir. 2015) (citing United States v. Wilk, 572 F.3d 1229, 1235 (11th Cir. 2009), for the proposition that “where defendant relied on a theory of self-defense in his prosecution for shooting of police officers, district court properly excluded expert testimony that officers' entry into defendant's home violated police procedures because it was defendant's perception, not the officers' compliance with procedure, that was relevant in determining self-defense”) (emphasis added); United States v. Ruoco, 765 F.2d 983, 995 (11th Cir. 1985) (affirming the district court's exclusion of defense expert testimony regarding the adequacy of the arrest procedure used by the ATF to support the defendant's argument that he acted in self-defense on the mistaken belief that an ATF undercover agent was a mafia hit man because the professional standard for an undercover arrest was not relevant to the defendant's subjective intent when the agent sought to apprehend him absent evidence that the defendant knew of such professional standard at the time, and the expert's opinion that the defendant might have been confused or mistaken as to the agent's identity or that the average citizen might have expected the agent to have acted differently in attempting to arrest the defendant would be valueless, as the expert could not offer anything beyond the understanding and experience of the average citizen) (emphasis added); United States v. Swint, No. 12-08080-PCT-PGR, 2012 WL 3962704, at *2 (D. Ariz. Sept. 11, 2012) (citing Wilk), aff'd, 566 F. App'x 618 (9th Cir. 2014) (“Dr. Streed's opinion that the officers' actions constituted excessive force is not relevant because the issue in Defendant's self-defense claim is the reasonableness of his belief that his use of force was necessary, not whether the officers acted unreasonably or contrary to proper training and procedures.”) (emphasis added); United States v. Korbe, No. 2:09-CR-00005, 2010 WL 4639042, at *2-5 (W.D. Pa. Nov. 8, 2010) (citing and discussing Wilk and Rouco in excluding expert testimony regarding police arrest procedures and whether proper police procedure was followed in the arrest of the defendant). Accordingly, while the events as perceived by Defendant is relevant, evidence of police procedure and whether such procedures were followed, whether in the form of expert testimony or otherwise, is not relevant or admissible under Federal Rules of Evidence 401, particularly since there is no indication that Defendant was aware of standard police procedures or protocol at the time.

         Moreover, expert testimony as to whether proper police procedure was followed would mislead the jury by creating the impression that Defendant's criminal responsibility is contingent upon the agents' following standard police procedure for the execution of a warrant. Ruoco, 765 F.2d at 995; Alvarado, 808 F.3d at 495 (concluding that evidence of police procedure “would have potentially misled the jury, wasted time, and caused undue delay, in violation of Federal Rule of Evidence 403.”) Thus, even if relevant, the probative value of this evidence is substantially outweighed by the danger of confusion of the issues or misleading the jury. Fed.R.Evid. 403. Accordingly, the court will not allow evidence, questioning, or argument in any form regarding the agents' compliance or noncompliance with procedure or protocol. Defendant, however, may present evidence of his perception of the events that occurred.

         Finally, although Defendant does not specifically argue that the agents are not entitled to protection under 18 U.S.C. § 111 because proper procedure for obtaining or executing the tracking device warrant was not followed, the court addresses any such argument out of an abundance of caution to avoid any further argument and potential delay in the trial of this case. Specifically, the court determines that evidence of whether proper state procedure was followed in obtaining or executing the warrant and whether the federal agents were executing a state warrant is not relevant to whether the alleged assault of the agents occurred while they were engaged in or on account of the performance of official duties. 18 U.S.C. § 111. “An officer is considered to be engaged in his official duties and thus protected by the statute, 18 U.S.C. § 111, if he is performing the functions for which he is employed, if he is acting in good faith and in the colorable performance of his duties, and if he is not on ‘a frolic of his own.'” United States v. Dombrowsky, 111 F. App'x 716, 718 (5th Cir. 2004) (quoting United States v. Lopez, 710 F.2d 1071, 1074 (5th Cir. 1983)). The protection offered to an officer under section 111 is not lost simply because, for example, an arrest is effected without probable cause or because a federal officer assists in a state criminal investigation and the enforcement of state criminal laws. Lopez, 710 F.2d at 1074-75. Accordingly, the court will not allow evidence of proper police procedure or protocol for this purpose. The court's ruling in this regard, however, does not preclude Defendant from presenting evidence that the agents' conduct was beyond the reasonable scope of their employment. See Id. at 1074.

         For all of these reasons, the Government's motion to exclude evidence, questioning, and argument regarding police procedure and protocol and whether the agents acted in ...

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