Petition for Writ of Certiorari — Lisa Marie Cano, Petitioner v. United States

Appendix

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FILED

NOT FOR PUBLICATION

AUG 31 2021

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

U.S. COURT OF APPEALS

19-50240

D.C. No.

5:18-cr-00066-JGB-1

v.

LISA MARIE CANO,

MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

Jesus G. Bernal, District Judge, Presiding

Argued and Submitted August 6, 2021

Pasadena, California

Before: PAEZ, CALLAHAN, and HURWITZ, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge PAEZ

Lisa Cano appeals her conviction for one count of use of unauthorized access

devices in violation of 18 U.S.C. § 1029(a)(2). We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

1. The inevitable discovery doctrine “permits the government to rely on

evidence that ultimately would have been discovered absent a constitutional

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

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violation.” United States v. Ruckes, 586 F.3d 713, 718 (9th Cir. 2009). The

government bears the burden of proving inevitable discovery by a preponderance of

the evidence. United States v. Reilly, 224 F.3d 986, 994 (9th Cir. 2000). “[T]his

circuit does not require that the evidence be obtained from a previously initiated,

independent investigation. The government can meet its burden by establishing that,

by following routine procedures, the police would inevitably have uncovered the

evidence.” United States v. Ramirez-Sandoval, 872 F.2d 1392, 1399 (9th Cir. 1989)

(cleaned up). We review a district court’s application of the doctrine for clear error.

Reilly, 224 F.3d at 994.

2. The district court did not clearly err in finding that law enforcement would

inevitably have identified the victim and learned of fraudulent purchases made with

her credit cards even in the absence of the unlawful motel room search. “[A]s long

as reasonable minds can reach differing conclusions after interpretation of the facts

before the district court, the district court’s findings [in applying the inevitable

discovery doctrine] should remain undisturbed.” United States v. Harris, 731 F.

App’x 718, 719 (9th Cir. 2018). Law enforcement had legally seized a list of

addresses from a Tacoma stolen by Cano. One of those addresses matched the

address on the victim’s driver’s license. Other items found alongside the receipt in

the Tacoma—including an embossing machine, forged credit cards, and a blank

driver’s license—gave law enforcement probable cause to suspect fraud. The

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responsible deputy actively investigated leads based on items found in the Tacoma.

For example, after finding a receipt from a storage facility in that vehicle, the deputy

immediately visited the facility to speak with an employee and reviewed the

facility’s records. The deputy responded immediately when the employee reported

that Cano had returned to the facility the following day. This evidence of the

officer’s active pursuit of legally-obtained leads distinguishes this case from

Ramirez-Sandoval, where there were no facts in the record from which the district

court could reasonably infer the likely course of the future investigation absent the

illegal search. See 872 F.2d at 1399–40.

3. The district court did not err by not dismissing the indictment based on Fourth

Amendment violations and alleged misconduct by law enforcement. Dismissal is a

“drastic” and “disfavored” remedy. United States v. Jacobs, 855 F.2d 652, 655 (9th

Cir. 1988). Although serious, the police conduct at issue was not “so grossly

shocking and so outrageous as to violate the universal sense of justice” to require

dismissal on due process grounds. United States v. O’Connor, 737 F.2d 814, 817

(9th Cir. 1984) (cleaned up). Dismissal under the court’s supervisory powers was

not merited because any Fourth Amendment violations were adequately remedied

by the government’s dismissal of several counts of the indictment and the exclusion

of evidence from the unlawful motel room search. See United States v. BarreraMoreno, 951 F.2d 1089, 1092 (9th Cir. 1991).

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4. Nor was dismissal warranted based on the government’s failure to disclose at

a suppression hearing the investigating deputy’s admission that he had searched the

motel room. Details regarding the search were disclosed prior to trial and evidence

from the motel search was suppressed. See United States v. Sears, Roebuck & Co.,

719 F.2d 1386, 1391–92 (9th Cir. 1983); United States v. Owen, 580 F.2d 365, 367–

68 (9th Cir. 1978).

AFFIRMED.

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FILED

United States v. Lisa Cano, No. 19-50240

Paez, J., concurring in part and dissenting in part:

AUG 31 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

The majority implicitly assumes that because a police officer actively

pursued some investigative leads, he would have necessarily, or inevitably,

pursued all other leads. In my view, neither the record evidence nor our case law

supports such a conclusion. Because I would reverse the district court’s denial of

Cano’s final suppression motion, I respectfully dissent from that part of the

majority’s disposition. 1

Our court’s inevitable discovery case law recognizes two related lines of

precedent that should guide our review of the district court’s inevitable discovery

ruling, both of which the majority disregards. First, when we have concluded that

the exception properly applies, we invariably have relied on specific testimony

from police officers concerning their potential actions absent the unlawful search.

See, e.g., United States v. Ruckes, 586 F.3d 713, 719 (9th Cir. 2009) (relying on a

state trooper’s “testimony at the suppression hearing” that “informed Judge

Burgess” of standard police procedures); United States v. Lang, 149 F.3d 1044,

1048 (9th Cir. 1998) (relying on an agent’s credible testimony “that he had been

trained to conduct searches of vehicles” and “had discovered narcotics hidden in

I concur in the majority’s affirmance of the district court’s denial of Cano’s

motion to dismiss the indictment.

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1

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[an] engine compartment” during numerous prior searches); Siripongs v. Calderon,

35 F.3d 1308, 1321 (9th Cir. 1994) (relying on “supplemental declarations

submitted to the district court” stating that the vehicle owner’s identity was “easily

obtainable” through the DMV and “the officers would have sought this

information”); United States v. Martinez-Gallegos, 807 F.2d 868, 870 (9th Cir.

1987) (per curiam) (relying on agents’ testimony “at the suppression hearing” that

their “next step, indeed the only step available to them, would have been to consult

[the defendant’s] ‘A’ file”).

Relatedly, when we have refused to apply the exception, we have

highlighted the government’s failure to demonstrate that discovery of the tainted

evidence was truly inevitable. See, e.g., United States v. Young, 573 F.3d 711, 723

(9th Cir. 2009) (“[N]othing more than speculation . . . support the discovery of the

challenged evidence outside the improper search by Officer Koniaris.”); United

States v. Lopez-Soto, 205 F.3d 1101, 1107 (9th Cir. 2000) (“[T]he government

provided no evidence of what Officer Hill would have done if he had not stopped

Lopez-Soto when he did . . . .”).

This case falls into the latter category, as there is no record evidence

concerning the officer’s potential actions absent the unlawful search of Cano’s

motel room. The primary investigating officer lawfully searched a Toyota

Tacoma, which uncovered receipts, an embossing machine, forged credit cards,

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and other evidence of fraud. The search also uncovered documents and scraps of

paper containing a total of twenty-five addresses. Some addresses were connected

to particular names. Although the victim-witness’s name did not appear on the

documents, three addresses were connected to her identity.

The government argues that, absent the illegal search of Cano’s motel room,

the officer would have identified the victim-witness by investigating every name

and address on the documents. I am not persuaded. Although the documents

suggest there were numerous victims of Cano’s fraudulent activities, the officer

completed his investigation without ever consulting the lists. In other words,

although the officer discovered one victim’s identity through other means, nothing

prevented him from following up on the numerous addresses and names listed on

the documents. He took no such action. Not only is there no evidence supporting

the government’s argument that the officer would inevitably have investigated all

the addresses—the record suggests the opposite is true.

Further, during an earlier suppression hearing, the district court concluded

that the investigating officer’s testimony was not credible. Without any evidence

concerning the officer’s intended actions, it is unreasonable to assume that the

officer’s inevitable next step would have been to investigate the addresses, or that

the addresses would inevitably have led to the victim-witness.

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To be sure, the evidence in the Tacoma suggested someone was committing

fraud. And the officer in question investigated one of the receipts found in the

Tacoma. But the investigation of the one receipt does not establish that the officer

planned to follow-up on the documents containing addresses, nor that the officer

intended to investigate all twenty-five addresses, only three of which were

connected to the victim-witness. Because “the government provided no evidence

of what [the investigating officer] would have done” absent his illegal search, the

district court erred in denying Cano’s motion. See Lopez-Soto, 205 F.3d at 1107.

Second, we have held that the government can meet its burden by

establishing that an officer would inevitably have discovered the evidence “by

following routine procedures.” United States v. Ramirez-Sandoval, 872 F.2d 1392,

1399 (9th Cir. 1989). Critically, our cases explain that this language has a specific

meaning: When a particular procedure is the next “inevitable step,” or “the only

available procedural step,” in an investigation, we can reasonably conclude that

such action would inevitably have occurred. Id. at 1400; see also United States v.

Reilly, 224 F.3d 986, 994 (9th Cir. 2000) (describing “the next and only step

available”). In the context of this case, the majority applies “routine procedures”

to encompass all general police investigations. That interpretation is untenable.

When we first used the phrase “routine procedures” in Ramirez-Sandoval,

we looked to Martinez-Gallegos and Andrade for guidance. 872 F.2d at 1399. We

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explained that “routine procedures” referred to (1) testimony from federal agents

stating that “the only step available to them” would have been to consult the

defendant’s “A” file to gather further information, Martinez-Gallegos, 807 F.2d at

870, and (2) evidence that a routine booking search would have followed a

defendant’s arrest and “inevitably resulted in discovery of the [contraband],”

United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986). See also Reilly,

224 F.3d at 994-95 (conducting the same analysis). Thus, the term “routine

procedures,” on which the majority relies to affirm, refers specifically to wellestablished police actions that are so consistently applied as to be considered

“routine.”

The majority’s assumption that the officer in this case would have closely

investigated all potential leads finds no support in our case law. Neither the

government nor the majority identify a “routine” procedure that the officer would

inevitably have pursued. There were numerous steps available to the investigating

officer after his search of the Tacoma, only some of which involved the list of

addresses that he found. There is no record evidence establishing that the officer

thought the addresses were significant, planned to run a search of the addresses, or

believed that running a search of the addresses would have led to identifying

potential victims. See Ramirez-Sandoval, 872 F.2d at 1400.

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The majority’s application of the inevitable discovery exception—that it

applies when a court can “reasonably infer the likely course of the future

investigation”—mistakes the exception for the rule. See id. (holding that the

exception does not apply when “it is equally plausible” that such investigative

steps would not have occurred). The inevitable discovery exception applies in

circumstances “where, based on the historical facts, inevitability is demonstrated in

such a compelling way that operation of the exclusionary rule is a mechanical and

entirely unrealistic bar.” United States v. Boatwright, 822 F.2d 862, 864 (9th Cir.

1987) (Kennedy, J.). This case does not meet that standard. I would reverse the

district court’s ruling, vacate Cano’s conviction, and remand. 2

The government’s alternative arguments—that the independent source doctrine

and attenuation doctrine are applicable—are similarly meritless.

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2

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRIMINAL MINUTES—GENERAL

Case No.

EDCR 18-66 JGB

Date February 14, 2019

Title United States of America v. Lisa Marie Cano

Present: The Honorable

JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Government:

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

Order (1) DENYING Defendant’s motion to suppress evidence allegedly

seized from a rented Toyota Tacoma (Dkt. No. 229); (2) GRANTING

Defendant’s motion to suppress evidence derived from the February 18,

2019 search of Defendant’s Motel 6 hotel room (Dkt. No. 141); (3)

DENYING Defendant’s motion to suppress shirt seized when Cano was

arrested on February 19, 2018 (Dkt. No. 140); (4) DENYING

Defendant’s motion to suppress unduly suggestive photo spread (Dkt.

No. 142); (5) DENYING Defendant’s motion in limine to exclude witness

identification (Dkt. No. 218); (6) GRANTING IN PART Defendant’s

motion in limine to exclude evidence that the Toyota Tacoma seize by law

enforcement had previously been reported stolen (Dkt. No. 232); (7)

DENYING Defendant’s motion to dismiss the indictment (Dkt. No. 159);

(8) DENYING Defendant’s motion to dismiss for grand jury misconduct

(Dkt. No. 163); (9) DENYING Defendant’s motion for reconsideration

of the Court’s August 24, 2018 order denying Defendant’s motion to

dismiss Counts Four and Five (Dkt. No. 272); and (10) DENYING IN

PART AND GRANTING IN PART the Government’s motion in limine

to exclude irrelevant evidence (Dkt. No. 252).

Before the Court are Defendant Lisa Marie Cano’s motion to suppress evidence allegedly

seized from a rented Toyota Tacoma (Dkt. No. 229); motion to suppress evidence derived from

the February 18, 2018 search of Defendant’s Motel 6 hotel room (Dkt. No. 141); motion to

suppress shirt seized when Cano was arrested on February 19, 2018 (Dkt. No. 140); motion to

suppress unduly suggestive photo spread (Dkt. No. 142); motion in limine to exclude witness

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identification (Dkt. No. 218); motion in limine to exclude evidence that the Toyota Tacoma

seized by law enforcement had previously been reported stolen (Dkt. No. 232); motion to dismiss

the indictment (Dkt. No. 159); motion to dismiss for grand jury misconduct (Dkt. No. 163); and

motion for reconsideration of the Court’s August 24, 2018 order denying Defendant’s motion to

dismiss Counts Four and Five (Dkt. No. 272). Also before the Court is the Government’s

motion in limine to exclude irrelevant evidence (Dkt. No. 252). The Court heard oral arguments

from the parties on Defendant’s Motion to suppress evidence derived from the search of Motel 6

Room 119 on January 29, 2019. The Court’s rulings on these motions are discussed below.

I. BACKGROUND

On March 2, 2018, Lisa Marie Cano was charged with (1) possession of “device-making

equipment” in violation of 18 U.S.C. § 1029(a)(4); (2) Possession with intent to use unlawfully

at least five identification documents in violation of 18 U.S.C. § 1028(a)(3); (3) possession of

stolen mail in violation of 18 U.S.C. § 1708; (4) use of unauthorized access devices in violation 18

U.S.C. §1029(a)(2); and (5) aggravated identify theft in violation of 18 U.S.C. § 1028A(a)(1).

(“Indictment,” Dkt. No. 12.) With regards to Counts One through Three, the Indictment

alleges that, on November 20, 2017, Cano knowingly had possession of multiple card

reader/writer machines with intent to defraud, knowingly had possession of approximately eight

social security cards, one passport, and one United States permanent resident card with intent to

use them, and was in possession of approximately 43 pieces of mail which she knew to be stolen.

With regards to Count Four, the Indictment alleges that, on July 30, 2017 and continuing through

February 5, 2018, Cano knowingly and with intent to defraud used credit cards belonging to

persons other than Cano to obtain things of a value of at least $1,000 in aggregate over a one-year

period. With regards to Count Five, the Indictment alleges that on or about February 3, 2018,

Cano knowingly possessed and used, without lawful authority, a means of identification that

Cano knew belongs to another person, namely T.G., in relation to the conduct charged in Count

Four. On August 24, 2018, the Court dismissed Counts One, Two and Three of the Indictment

with prejudice. (Dkt. No. 79.)

The Court held two evidentiary hearings related to Defendant’s Motions to suppress

evidence seized from the Toyota Tacoma and evidence derived from the February 18, 2018

search of Motel 6 Room 119. On January 10, 2019, the Court heard the testimony of Victoria

DeLara, Alisha Espinoza-Martinez, Kirk Tozi, Leonardo, Hernandez, Stephanie Salazar, and

Lisa Marie Cano. (Dkt. No. 287.) The hearing continued on January 11, 2019, when the Court

heard additional testimony from Cano as well as the testimony of Carmen Cervantes, Fongamout

Hohman, Bryce Hubbard, Jeffrey Andrews, Michael Galvez, and James Christopher Mills. The

parties submitted supplemental briefing on January 18, 2019. (Dkt. Nos. 284, 293.)

On January 29, 2019, the Court held an additional hearing at which Brian Patel testified. (Dkt.

No. 300.) At that hearing, the Court also heard oral arguments from the parties.

//

//

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II.

LEGAL STANDARD

A. Motions in Limine

Motions in limine are a well-recognized judicial practice based in “the court’s inherent

power to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984).

Regardless of its initial decision on a motion in limine, a court may revisit the issue at trial. See

Fed. R. Evid. 103, advisory committee's note to 2000 Amendment (“Even where the court's

ruling is definitive, nothing in the amendment prohibits the court from revisiting its decision

when the evidence is to be offered.”); Luce, 469 U.S. at 41–42 (“[E]ven if nothing unexpected

happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a

previous in limine ruling.”). “[A] ruling on a motion in limine is essentially a preliminary

opinion that falls entirely within the discretion of the district court.” United States v. Bensimon,

172 F.3d 1121, 1127 (9th Cir. 1999) (citing Luce, 469 U.S. at 41–42).

B. Fourth Amendment Suppression

The Fourth Amendment protects the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend.

IV. “Searches conducted outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few

specifically established and well-delineated exceptions.” California v. Acevedo, 500 U.S. 565,

580 (1991) (quoting Mincey v. Arizona, 437 U.S. 385, 390 (1978)).

What is reasonable depends on the circumstances surrounding the search and the nature

of the search itself. United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985). The

reasonableness of a search is determined by balancing “the degree to which it intrudes upon an

individual’s privacy and . . . the degree to which it is needed for the promotion of legitimate

governmental interests.” United States v. Knights, 534 U.S. 112, 119 (2001). The government

bears the burden of providing that a warrantless search or seizure falls within an exception to the

warrant requirement. United States v. Job, 871 F.3d 852, 860 (9th Cir. 2017).

The proponent of a motion to exclude evidence has the burden of establishing that “his

own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas v.

Illinois, 439 U.S. 128, 132 (1978). The exclusionary rule operates to exclude unlawfully seized

evidence in a criminal trial. Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016). It encompasses both

the “primary evidence obtained as a direct result of an illegal search or seizure and . . . evidence

later discovered and found to be derivative of an illegality.” Id. (internal quotations omitted).

The suppression of evidence retrieved from constitutional violations pursuant to the exclusionary

rule functions to “deter future Fourth Amendment violations.” Davis v. United States, 564 U.S.

229, at 236-37 (2011). “Where suppression fails to yield ‘appreciable deterrence,” exclusion is

‘clearly . . . unwarranted.’” Id. at 237 (quoting United States v. Janis, 428 U.S. 433, 454 (1976)).

Thus, for exclusion to be appropriate, “the deterrence benefits of suppression must outweigh its

heavy costs.” Id. When the police exhibit “deliberate, reckless, or grossly negligent” disregard

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for Fourth Amendment rights, the deterrent value of exclusion tends to outweigh the resulting

costs. Id. at 238. Conversely, when the police act with an “objectively reasonable good faith

belief” that their conduct is lawful, or when their conduct involves “only simple, isolated

negligence,” exclusion is unwarranted. Id. (internal citations omitted).

III. DISCUSSION

A. Defendant’s Motion to Suppress Evidence Seized from Rented Car (Dkt. No. 229)

On the morning of February 18, 2018, Riverside County Sheriff’s Department Deputy

Bryce Hubbard ran the license plate number of a gray Toyota Tacoma parked in the lot of the

Motel 6 located at 72215 Varner Road, Thousand Palms, California learned that the vehicle had

been reported stolen. (Declaration of Bryce Hubbard, Dkt. No. 162 ¶ 3.) At Hubbard’s request,

Kirk Tozi of Plaza Towing was dispatched and towed the vehicle to the Plaza Towing lot, where

he unlocked the vehicle for inspection and found a card embossing machine and a bag containing

credit cards and identification cards. Tozi informed his dispatcher, who in turn called the

Riverside County Sheriff’s Department (“RCSD”). Deputy Hubbard then came to Plaza

Towing, where he searched the Tacoma and found an embossing machine, a small black bag

whose contents are disputed, and a receipt for StorAmerica – Palm Desert dated February 17,

2018. (Hubbard Decl. ¶ 6.)

Cano moves to suppress all evidence seized during this search, arguing that the search

was conducted without a warrant and does not fall under the inventory search exception. (Dkt.

No. 229.) In opposition, the Government argues that Cano knew or should have known that the

Toyota Tacoma was stolen and therefore had no legitimate privacy interest in the vehicle. In the

alternative, the Government argues that Cano has failed to establish that she had a reasonable,

legitimate expectation of privacy in the stolen Toyota.

Cano bears the initial burden of demonstrating standing to challenge the search of the

Toyota. United States v. Thomas, 447 F.3d 1191, 1199 (9th Cir. 2006).1 In order to do so, she

must demonstrate she had a reasonable expectation of privacy and a legitimate privacy interest in

the Toyota at the time of the challenged search. This entails both a subjective and an objective

inquiry. Not only must the defendant have a subjective expectation of privacy, that expectation

must be one “society accepts as objectively reasonable.” Thomas, 447 F.3d at 1196. For

example, while “[a] burglar plying his trade in a summer cabin during the off season” may have a

1

Though frequently styled as a question of “standing,” the essential inquiry is whether a

defendant’s motion to suppress asserts her own, recognized privacy interest. See Rakas, 439

U.S. at 138 (Noting that the question of standing for Fourth Amendment suppression is “more

properly placed within the purview of substantive Fourth Amendment law than within that of

standing.”) Thus, the Court treats Cano’s privacy interest in the car and the question of

standing as coextensive and uses these terms interchangeably.

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justified subjective expectation of privacy while he in that cabin, the law does not recognize this

expectation as legitimate. Byrd v. United States, 138 S. Ct. 1518, 1529 (2018).

The only evidence that Cano has submitted to establish standing is a declaration stating

the following: “In February of 2018, I borrowed a car from my friend. I understand that she had

rented it, and I did not know that it had been kept passed its due date. I had permission from my

friend to use her rental car, which was a Toyota Tacoma.” (Declaration of Lisa Marie Cano,

Dkt. No. 229.) At the January 11, 2019 hearing, Cano testified that her friend “Stephanie Ricco”

had allowed her to borrow the car in order to move tools to a storage facility. However, it is

undisputed that the Toyota had been rented from Enterprise Rent A Car on January 26, 2018 by

an unidentified woman using the stolen driver’s license of Ashley Tinajero, and that the car was

supposed to have been returned on January 29, 2018, but was not. (“Indio Police Department

Incident Report,” Exhibit 13, Dkt. No. 162.) It is also undisputed that the car was reported

stolen on February 1, 2018. (Id.) Additionally, evidence submitted by the Government in

support of its opposition includes still images from surveillance video which appear to show Cano

loading items into a Toyota Tacoma matching the description of the stolen car on February 3,

2018. (“Declaration of Sylvia R. Ewald,” Dkt. No. 244.)

Cano’s declaration and testimony are not sufficient to establish a legitimate privacy

interest in the Toyota. A driver whose use of a rental car has not been authorized by the rental

agency only has standing to challenge the search of the car if she “received permission to use the

rental car from the authorized renter.” Thomas, 447 F.3d at 1199 (9th Cir. 2006) (emphasis

added). Even if her testimony and declaration are accepted as true, Cano only established that

some individual loaned her the car, not that she received permission to use the car from an

authorized renter. Since it is undisputed that the rental car was obtained through fraud and had

been reported stolen at the time that it was searched, Cano has failed to show that she had

permission from an authorized renter even if the Court accepts as true her statement that she was

loaned the car by Stephanie Ricco. The Court also doubts whether Cano had a reasonable

subjective expectation of privacy: the Court does not find it credible that Cano borrowed a rental

car from a friend for over two weeks without asking either the friend or the rental company when

the truck needed to be returned. Without more evidence, Cano’s cursory declaration does not

explain why she assumed that a friend would loan her a rented car, presumably at some personal

cost, without details about the date of its return. Thus, not only was Cano’s expectation of the

use of the car objectively illegitimate, since the car was stolen, it was also subjectively

unreasonable for Cano to assume it was legitimate.

Cano points to several cases which stand for the proposition that an individual may have a

reasonable and legitimate privacy interest in a rented car even when she is technically in violation

of the leasing contract. (Mot. at 6.) See Thomas, 447 F.3d at 1198; United States v. Henderson,

241 F.3d 638, 647 (9th Cir. 2000), as amended (Mar. 5, 2001); United States v. Dorais, 241 F.3d

1124, 1129 (9th Cir. 2001.) She argues that, while the rental period for the Toyota Tacoma had

technically expired, she nonetheless maintained a valid privacy interest in the car. However,

Defendant overlooks that the Ninth Circuit has distinguished cases in which “the parties

continued to act as though the rental agreement had not expired” from those in which “the

lessor had reasserted control over the rental property.” Henderson, 241 F.3d at 647. While a

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defendant may continue to hold a privacy interest in a rented car so long as the lessor has not

attempted to repossess it, once the lessor attempts to reassert control over the leased property

that privacy interest comes to an end. Id.; see also Dorais, 241 F.3d at 1129. Here, Enterprise

Rent A Car attempted to repossess the Toyota on February 1, 2018, when a company

representative reported that the car had been stolen. Thus, Cano no longer had a legitimate

privacy interest in the Toyota from the time that it was reported stolen and did not have such an

interest on the date of the search.

Because Cano lacks standing to contest the search of the Toyota, the Court does not

reach the question of whether that search was constitutional. Cano’s motion to suppress

evidence seized during the search of a Toyota is DENIED.

B. Defendant’s Motion to Suppress Evidence Seized from Motel 6 (Dkt. No. 141)

On the afternoon of February 18, 2018, RCSD Deputies Hubbard and Alisha EspinozaMartinez searched Room 119 of the Motel 6 at 72215 Varner Road. (Hubbard Decl. ¶ 14.) Cano

moves to suppress all evidence seized during this search. (Dkt. No. 141.) She argues that the

warrantless search of Room 119 violated her Fourth Amendment rights and all evidence seized

during that search must be suppressed. In opposition, the Government argues that Cano has not

established standing to challenge the search, that the search did not violate Cano’s Fourth

Amendment rights, and, moreover, that no evidence was seized from Room 119. The resolution

of this motion turns on two central questions: whether Deputies Hubbard and Espinoza-Martinez

were let into the room by a manager of the motel and whether they in fact seized evidence during

the search of the room.

1. Search of Room 119

Since the search of Room 119 was conducted without a warrant, the Government bears

the burden of establishing that consent to the search was given by an individual who had

authority over the premises that were searched. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). In

declarations submitted in support of the Government’s opposition to Cano’s motion, Deputies

Hubbard and Espinoza-Martinez present largely identical accounts of the search of Room 119.

Hubbard’s declaration states that he returned to the Motel 6 at approximately 12:15 p.m. on

November 18, 2018 and spoke with a manager of the motel, who told him that the person

associated with the stolen Toyota Tacoma may have been staying in Room 119. (Hubbard Decl.

¶ 11.) Hubbard and Espinoza-Martinez then spoke with a housekeeper at the Motel, after which

the manager let the deputies into the motel room, either by opening the door himself or by giving

the deputies the master key. (Id. ¶¶ 13-14.) The deputies claim to have then performed a

cursory search by checking “the bathroom, the closet, and under the bed,” but did not seize

anything from the room. (Id.) In total, they were in the room for “approximately one minute.”

(Id.)

The testimony of three other witnesses and objective evidence contradict this account.

While Deputies Hubbard and Espinoza-Martinez claim that a motel manager let them into Room

119, three other witnesses testified that at the time of the search, a manager was not present at

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the motel. Carmen Cervantes and Victoria DeLara were working as housekeepers at the Motel 6

on February 18, 2018 and spoke with the deputies immediately prior to the search. At the

hearing, both housekeepers testified that, while they did not actually see the deputies enter or

search Room 119, a manager was not present at the time of the search. Bryan Patel, who was a

manager of the Motel 6 on February 18, 2018, testified that he did not work and was not present

at the Motel 6 on the day of the search.2 Whatever the deficiencies of Patel’s testimony, the

Court finds the testimony of Cervantes and DeLara that a manager was not present during at the

time they spoke with Deputies Hubbard and Espinoza-Martinez to be credible and can identify

no motive for either of them to misrepresent this fact.

Body-worn camera footage strongly suggests that what actually happened is that the

deputies let themselves into Room 119 using a key provided to them by DeLara. Video captured

by Deputy Hubbard’s Body Worn Camera (BWC) shows him and Deputy Espinoza-Martinez

speaking with Cervantes and DeLara in the parking lot of the Motel 6 approximately two minutes

prior to the search of Room 119. DeLara asked the Deputies if they would like the master key, to

which Espioniza-Martinez responded, “Sure.” DeLara then dropped the key on the ground in

front of the deputies and walked away. Deputy Hubbard then reached across his chest and

deactivated his BWC. At the evidentiary hearing, both Cervantes nor DeLara testified that they

did not see whether the deputies picked up or used the key to enter the room.

While it is possible that, in the brief period after DeLara dropped a master key in front of

Deputies Hubbard and Espinoza-Martinez, a manager appeared and provided them with another

master key, the only evidence that supports such a conclusion are the declarations and testimony

of Deputies Hubbard and Espinoza-Martinez. But the Court does not find their statements on

this question to be credible.

First, Deputy Hubbard has previously made multiple inconsistent statements about the

circumstances of the search of the Toyota just hours before the search of the Motel 6. On

February 19, 2018, Hubbard wrote a draft affidavit for an application for a search warrant.

Though this warrant application was never finalized, in it Deputy Hubbard wrote that he first

searched the Toyota in the parking lot of the Motel 6 prior to its being towed by Tozi. (Draft

Warrant Affidavit, Dkt. No. 272 Exh. C at 5.) He then sent that draft to Deputy Trevor Henson

as an attachment to an email in which he invited Henson to “[a]dd anything you want to the end

to increase the exigency of the warrant.” (Id. at 1.) Several days later, in a police incident report

he prepared on February 23, 2018, Hubbard changed this narrative, writing that Plaza Towing

employee Kirk Tozi opened the Toyota for him not at the Motel 6 but significantly later, when

Hubbard arrived at Plaza Towing after responding to an unrelated incident. (Incident Report,

2

The Court has some doubts about the reliability of Patel’s testimony. While Patel stated

that he knew that he did not work on February 18, 2018 because he almost never works on

Saturdays, he conceded that he does work on some Sundays. At the hearing, the Court took

judicial notice of the fact that February 18, 2018 was a Sunday. Additionally, Patel’s memory

may have been shaded by his stated perception that it would have been improper for him to

permit Deputies Hubbard and Espinoza-Martinez to enter Room 119 without a warrant.

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Dkt. No. 159, Exh. G at 4.) Later, in a declaration and sworn testimony before the Court, the

narrative changed yet again, and Hubbard claimed that he did not search the Toyota until after

Tozi had entered it on his own, discovered evidence therein, and caused the police to be called to

the scene. (Hubbard Decl. ¶¶ 5-6.) While only the last version of the search was given under

oath, the Court finds that Hubbard’s repeated inconsistent statements regarding an issue closely

related to the search of Room 119 undermine his credibility.

Second, both Deputies Hubbard and Espinoza-Martinez failed to follow RCSD protocol

during the search, resulting in a lack of objective evidence which could corroborate their account.

Neither deputy wrote an initial or supplemental report describing the search of Room 119 and no

mention of this search was made until August 24, 2018, only days before the Government

disclosed to the Defense body-worn camera (“BWC”) footage showing Hubbard and EspinozaMartinez immediately prior to the search. (October 29, 2019 Declaration of Callie Glanton

Steele, Dkt. No. 141 Exh. B ¶ 3.) The BWC footage that was disclosed clearly shows Deputy

Hubbard turning off his BWC immediately prior to the search of Room 119. He did not turn it on

again during the course of the search. As a result, no footage of the search has been disclosed.

Both Hubbard and Espinoza-Martinez subsequently failed write required reports explaining

either (a) why Hubbard deactivated his BWC or (b) why neither deputy activated their BWCs

during the search of Room 119.

The Deputies’ failure to record the search and their failure to subsequently document this

failure were contrary to RCSD policy, which weighs against finding their subsequent statements

about the search credible. Department Directive # 16-003 states RCSD policy governing the use

of BWCs and was in effect at the time of the February 18, 2018 search. The directive states that

“BWC recordings shall be made of any law enforcement action where there is reason to believe it

would be appropriate and valuable to record the event.” (“RCSD Department Directive # 16003,” Dkt. No. 159 Exh. D at 3.) The directive provides a non-exhaustive list of such actions,

which includes “Citizen contacts, such as traffic stops, pedestrian checks, or flag-downs” as well

as “Searching a person or property.” (Id.) In the event that a RCSD officer delays or fails to

start recording such events, “either intentionally or accidentally,” or if it is necessary to

terminate a recording “during an incident or contact,” then the officer “shall” document the

relevant reasons in a subsequent report or memorandum. (Id.) While both Deputies described

the use of BWCs as discretionary, the language of the policy does not support such a conclusion

and, even if it did, there is nothing in the policy which would suggest that the requirement that

deputies document their decision not to activate their BWCs was also discretionary. These

violations of Department policy, coupled with the Deputies’ failure to disclose the search until

months later, weighs against finding their account of the search credible.

Third, the statements and declarations of both Deputies are vague and lacking in detail

with regards to critical facts surrounding the search. While testifying, Deputy Hubbard was

somewhat unsure as to whether a manager of Room 119 opened the door for the Deputies and did

not remember where the manager was during the search, whether or not the manager entered the

room with the deputies, or whether Hubbard spoke with the manager after the search. Similarly,

his declaration states that his “recollection is vague” and expresses uncertainty as to whether the

manager let the Deputies into Room 119 himself or simply gave them the key. (Hubbard Decl. ¶

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14.) Deputy Espinoza-Martinez’s declaration and testimony were even more cursory. Her

declaration lacks any descriptive detail and only states the bare fact that “The manager or

assistant manager opened the motel room for us.” While testifying, Deputy Espinoza-Martinez

affected a terse and combative posture towards defense counsel. She also claimed to have very

limited recollection of the search of Room 119: prior to being shown BWC footage taken

immediately prior to the search, she professed to having no independent recollection of critical

facts, such as whether she had spoken with a housekeeper prior to searching the room. Taken

with other facts, the Court does not find the statements of either Deputy to be credible regarding

the search of Room 119.

In light of the above, the Court draws the only plausible inference possible from the

evidence before it: that Deputies Hubbard and Espinoza-Martinez used the master key dropped

by DeLara to enter Room 119 without the invitation of a manager. The Government has failed to

carry its burden of showing that Deputies Hubbard and Espinoza-Martinez were given consent to

search Room 119. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). Since the Government has not

argued that the search of Room 119 fell under any of the “specifically established and welldelineated exceptions” to the warrant requirement, Katz v. United States, 389 U.S. 347, 357

(1967), the Court finds that any evidence contained within Room 119 will be suppressed.

2. Standing to Contest the Search of Room 119

The Court finds that Cano has standing to challenge the search of Room 119. The

protections of the Fourth Amendment generally extend to motel rooms. United States v.

Cormier, 220 F.3d 1103, 1108 (9th Cir. 2000). However, a defendant has no reasonable

expectation of privacy in a motel room when the rental period has expired and the hotel has taken

affirmative steps to repossess the room. United States v. Huffhines, 967 F.2d 314 (9th Cir. 1992).

After checkout time has passed, motel guests may still retain a reasonable expectation of privacy

in their rooms “based on the relationship between the guest and the hotel or based on the hotel’s

generally lax practices in enforcing its checkout time.” Dorais, 241 F.3d at 1128. Thus, “the

mere expiration of the rental period, in the absence of affirmative acts of repossession by the

lessor, does not automatically end a lessee’s expectations of privacy.” Id.

Based on the testimony of Motel 6 staff it appears that, at the time of the search on

February 18, 2018, Cano had not paid to rent Room 119 beyond the 11 a.m. check out time. Thus,

her lease had technically expired. However, as discussed above, the Court is not persuaded that

Patel either gave the deputies permission to enter the room or requested that they evict Cano.

Further, the testimony offered by DeLara and Patel suggest that Motel 6’s checkout policy was

somewhat lax, since Patel testified that rooms are cleaned between 11 a.m. and 3 p.m. and that

property left in vacated rooms is not removed until the afternoon. BWC footage establishes that,

at the time of the search, housekeeping staff had not yet entered or cleaned Room 119. This may

have been because Cano previously informed the housekeeping staff that she did not want the

room cleaned, which also suggests that she planned to continue her stay at the Motel 6 beyond

the 11 a.m. checkout time, even if she had not yet paid. (Declaration of Lisa Marie Cano, Dkt.

No. 229.) In light of this, and absent affirmative steps by management to enter or repossess the

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room, the Court finds that Cano had a legitimate and reasonable expectation of privacy in Room

119 at the time of the search.

3. Evidence Seized from Room 119

The Government argues that there is no evidence to suppress because no evidence was

seized during the search. Having shown that the search of Room 119 violated the Fourth

Amendment, Cano also bears the initial burden of establishing a factual nexus between the illegal

search and the evidence she seeks to suppress. United States v. Kandik, 633 F.2d 1334, 1335 (9th

Cir. 1980). The initial burden of establishing a nexus is a low one, since the principle objective of

this requirement is to ensure that frivolous claims are not employed as “merely a means of

eliciting what is in the Government's possession before its submission to the jury.” Nardone v.

United States, 308 U.S. 338, 342 (1939); see also Wayne R. LaFave, 6 Search & Seizure § 11.2(b)

(5th ed.). Once such a nexus has been shown, the Government bears the final burden of proving

that the challenged evidence was obtained lawfully or from a lawful independent source. Id.; see

also Nardone v. United States, 308 U.S. 338, 341 (1939); United States v. Shetler, 665 F.3d 1150,

1157 (9th Cir. 2011).

In her declaration, Cano states that, when she left Room 119 at around noon on February

18, 2018, she left behind stolen and fake identification documents and credit cards in the name of

T.G., which were logged under evidence tag number 2036747 and appear in a photograph

appended to her declaration as Exhibit A (collectively, the “T.G. Documents). (Cano Decl. ¶ 4,

Exh. A.) In addition, she claims that she left clothes, personal items, a computer, and cell phones

in the room. (Id. ¶ 4.) These sworn statements, coupled with her testimony, are sufficient to

establish a nexus between the T.G. Documents and the illegal search of Room 119. See United

States v. Alter, 482 F.2d 1016, 1027 (9th Cir. 1973) (affidavit of defendant sufficient to make

prima facie showing that the F.B.I. had obtained evidence through a wiretap).3

In order to defeat Cano’s motion to suppress, the Government must therefore show that

it obtained the T.G. Documents from the search of the Toyota or some other source not tainted

by the illegality of the search of Room 119. The Government argues that the T.G. Documents

were seized not in Room 119 but in the black pouch found in the Toyota, which they claim

contained not only the T.G. Documents but also numerous credit and gift cards logged under a

different evidence tag, number 2036744. As discussed above, Section III(B)(2), supra, the Court

finds that the testimony and declarations of Deputies Hubbard and Espinoza-Martinez regarding

the circumstances surrounding their search of Room 119 are not credible. The Court therefore

3

The Government argues that Cano’s testimony was inconsistent. However, this is at

least in part attributable to confusion which arose at the hearing during the piecemeal review of

the documents seized by Deputy Hubbard. The Court does not find that this confusion weighs

against Cano’s credibility. The Government also argues that Cano’s testimony was self-serving

but, absent other indicia of falsehood, this does not sufficiently undermine her credibility for the

Court to conclude that she has not met her burden of demonstrating a nexus.

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gives no weight to their statements that they did not seize any evidence during the search of

Room 119.

Other than the statements of Hubbard and Espinoza-Martinez, the only other evidence

that the Government can offer in support of this claim are the declarations and testimony of Kirk

Tozi. Tozi has consistently stated that, after towing the Toyota to Plaza Towing, he conducted

an inventory search, at which point he discovered a laptop bag containing what appeared to be a

credit card cutting machine, some tools, and a black pouch containing what he testified to be

“numerous cards with names on them.” In a declaration taken on November 7, 2018, Tozi made

no mention of finding credit cards or identification cards in the Toyota. Then, in a declaration

prepared by PI Galvez two days later, Tozi mentioned the black pouch and stated that it

contained “numerous identification cards and other cards.” (November 9, 2018 Declaration of

Kirk Tozi, Dkt. No. Dkt. No. 232 Exh. D ¶ 6.) However, in still another subsequent declaration,

Tozi stated that he never said the phrase “identification cards” and that term had been

introduced into the declaration by PI Galvez. (November 26, 2018 Declaration of Kirk Tozi,

Dkt. No. 232, Exh. I ¶ 4.) At the evidentiary hearing, Tozi testified that he did not remember

whether the cards in the pouch were credit cards or identification cards, and that it could have

been a mix of both.

Tozi’s blurry memory of the contents of the black pouch is completely understandable, as

he would have had no reason either to make a careful inspection of the contents of the pouch or

to attach particular significance to them, beyond noticing that they bore different names. But

such vague statements are not sufficient to carry the Government’s burden of proving that the

T.G. Documents were not derived from the search of Room 119. Tozi’s declarations and

testimony provide no specificity as to the nature of the cards that were contained in the black

pouch located in the Toyota. They therefore are insufficient to support the conclusion that the

T.G. Documents were found in that bag, and not in the Motel 6.

Cano’s motion to suppress the T.G. Documents is GRANTED.

C. Defendant’s Motion to Suppress Shirt Seized When Cano was Arrested on February 19,

2018 (Dkt. No. 140)

Cano moves to suppress the shirt she was wearing when she was arrested on February 19,

2018. (Dkt. No. 140.) She argues that the shirt is the fruit of evidence obtained during an

unconstitutional search of her vehicle on November 30, 2017. Cano previously moved to

suppress all evidence derived from that search, (Dkt. No. 29), but the government moved to

dismiss all counts related to evidence derived from that search before the Court ruled on her

motion. (Dkt. No. 72.) The Court need not decide whether the November 30, 2017 search was

unlawful, because the evidence recovered during the February 18, 2018 search of the Toyota

Tacoma provided an independent basis for her arrest.

As discussed above, Section III(A), supra, Cano does not have standing to challenge the

legality of the search of the Toyota. During that search, Deputy Hubbard found credit cards, an

authentic driver’s license, and an apparently fraudulent driver’s license bearing the name T.G., a

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card embossing device, as well as a storage StorAmerica receipt bearing Cano’s name. (Hubbard

Decl. ¶ 6.) Hubbard then visited the StorAmerica facility, where he confirmed Cano’s

appearance and identity and that she had rented a storage locker there. (Id. ¶ 8.) At this point,

there was sufficient evidence to establish probable cause of, at a minimum, automobile theft and

unauthorized access devices in violation 18 U.S.C. §1029(a)(2) independent of any evidence

gathered on November 30, 2017.

The independent source doctrine permits the admission of evidence that is found by legal

means unrelated to the illegal search. United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396

(9th Cir. 1989). Because law enforcement officers therefore had probable cause to arrest Cano on

February 19, 2018, evidence obtained during the course of her arrest is admissible. While Cano

argues that her arrest was based on the November 2017 arrest warrant, this does not render her

February 2018 arrest unlawful, as “no warrant is necessary for an arrest, made on probable cause,

in a public place.” United States v. Quinn, 18 F.3d 1461, 1464 (9th Cir. 1994).

Accordingly, Cano’s motion to dismiss the shirt seized during her February 19, 2018

arrest is DENIED.

D. Defendant’s Motion to Suppress Unduly Suggestive Photo Spread (Dkt. No. 142)

Cano moves to suppress evidence of the out-of-court identification of Cano by Stephanie

James Salazar based on a photographic lineup presented to her by United States Postal Inspector

Michael Galvez on February 27, 2018. (Dkt. No. 142.) Salazar was working at a Metro PCS

dealer on February 3, 2018 and allegedly processed a purchase made by Cano in the amount of

$1,746.31 using the credit card belonging to T.G. Cano argues that the photo lineup was unduly

and unnecessarily suggestive because Cano was “the only female with a tattoo on her neck in the

photographic lineup.” (Id. at 6.)

Cano is simply factually incorrect in this assertion, as she was plainly not the only person

in the lineup with a tattoo or other marking on her neck. Of six individuals depicted in the lineup,

half – Cano and two other individuals in the lineup – have somewhat similar markings or tattoos

on their necks. (Exh. A, Dkt. No. 142.) Of those, two – Cano and another individual – have

markings on their lower-right necks that are, in the Court’s judgment, essentially

indistinguishable. Accordingly, the Court finds that the lineup was neither unduly suggestive nor

unreliable. Manson v. Braithwaite, 432 U.S. 98, 114 (1977). Defendant’s motion is DENIED.

E. Defendant’s Motion in Limine to Exclude Witness Identification (Dkt. No. 218)

Cano moves to preclude the introduction of evidence of an identification of Cano by PI

Galvez. (Dkt. No. 218.) Cano anticipates that at trial the Government will attempt to introduce

testimony from PI Galvez that he recognizes the person depicted in surveillance video from The

Home Depot and Walmart to be Cano. Cano argues that this testimony would be unhelpful to

the jury under Federal Rule of Evidence 701(b) and unduly prejudicial under Federal Rule of

Evidence 403.

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Federal Rule of Evidence 701 states that lay opinion testimony is admissible if it is a)

rationally based on the perception of the witness; b) helpful to a clear understanding of the

witness’s testimony or the determination of a fact in issue; and c) not based on scientific,

technical, or other specialized knowledge. A lay witness’s identification testimony is permissible

when the witness has “sufficient contact with the defendant to achieve a level of familiarity that

renders the lay opinion helpful.” United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005)

(quoting United States v. Henderson, 241 F.3d 638, 650 (9th Cir. 2000)). In evaluating the

admissibility of such evidence, courts are to apply a totality of the circumstances test and

consider the familiarity of the witness with the defendant’s appearance at the time the crime

committed, “the witness's familiarity with the defendant's customary manner of dress, insofar as

such information related to the clothing of the person depicted in the surveillance photograph;”

whether the defendant disguised her appearance during the offense or altered her appearance

during trial; and whether the witness knew the witness over time and in a variety of

circumstances. Beck, 418 F.3d at 1015. The absence of any of these factors goes to the weight,

not the admissibility, of the testimony. Id.

PI Galvez has had sufficient contact with Cano to render his lay opinion helpful. PI

Galvez has had repeated contact with Cano, including when she was transferred to federal

custody on February 20, 2018. This contact is relevant for two reasons: first, it was close to the

time of the offense, less than three weeks after Cano was allegedly filmed by surveillance

cameras. Second, the Government alleges that the shirt that Cano was wearing when she was

transferred to federal custody was the same shirt that Cano can be seen wearing in the

surveillance video in question. While Cano argues that familiarity with a Defendant’s mode of

dress requires extensive contact with the defendant, here PI Galvez’s specific knowledge

regarding a particular item of clothing worn by Cano its likely to render it helpful. Separately, PI

Galvez is also familiar with Cano’s neck tattoo, which may be obscured from the jury at trial.

Taking these factors together, PI Galvez’s identification testimony is likely to be

sufficiently helpful to the jury that its probative value outweighs the generalized possibility

prejudice which could be caused by the jury’s deference to the testimony law enforcement

officers.

Cano’ motion to exclude this evidence is therefore DENIED.

F. Defendant’s Motion in Limine to Exclude Evidence that the Toyota Tacoma Had Been

Reported Stolen (Dkt. No. 232)

Cano moves to preclude the Government from introducing evidence that the Toyota

Tacoma searched on February 18, 2018 had been reported stolen and from using the word

“stolen,” or any similar term, when referencing that car during trial. (Dkt. No. 232.) Cano

argues that such evidence is hearsay, not relevant, and unduly prejudicial. This motion is

unopposed and will be GRANTED.

In her reply brief, Cano argues that the Government should also be precluded from

eliciting testimony that Deputy Hubbard “lawfully directed the Tacoma to be towed,” on the

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grounds that this is a legal conclusion and would be unduly prejudicial. Because Cano’s motion

to exclude such testimony was improperly raised in her reply brief, the Court RESERVES

RULING on this question.

G. Defendant’s Motion to Dismiss the Indictment (Dkt. No. 159)

Plaintiff moves to dismiss counts Four and Five of the indictment for “outrageous

government misconduct.” (Dkt. No. 159.) Plaintiff argues that both Deputy Jeffrey Andrews

and Deputy Bryce Hubbard made false statements under oath and conducted unconstitutional,

warrantless searches. Plaintiff also argues that the prosecutors in this matter engaged in

misconduct by failing to notify the Court of crucial information. The Government denies

Defendant’s allegations of misconduct and argues that, even if those allegations are true, they are

not sufficiently egregious to warrant dismissal.

Stripped of rhetorical embellishment, Defendant’s alleges two categories of wrongdoing:

(1) police misconduct, including conducting warrantless searches conducted by law enforcement

and exchanging text messages regarding Cano’s sentencing exposure in federal court and (2)

misrepresentations made by prosecutors to the Court. A district court may dismiss an incitement

in instances of “grossly shocking and outrageous” government misconduct which “violate[s] the

universal sense of justice.” United States v. Kearns, 5 F.3d 1251, 1253 (9th Cir. 1993). This

authority stems from two sources: first, due process may be violated where the government’s

conduct is excessive, flagrant, scandalous, intolerable and offensive. United States v. GarzaJuarez, 992 F.2d 896 (9th Cir. 1993). Second, the Court may exercise its inherent supervisory

powers “to remedy a constitutional or statutory violation; to protect judicial integrity by ensuring

that a conviction rests on appropriate considerations validly before a jury; or to deter future

illegal conduct.” United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991). In either

case, dismissal is considered a “drastic” and disfavored remedy. United States v. Jacobs, 855

F.2d 652, 655 (9th Cir. 1988). The standard for dismissal is “extremely high.” Garza Juarez,

992 F.2d at 904.

None of the law enforcement conduct alleged by Defendant rises to the level of “shocking

and outrageous.” Shocking and outrageous law enforcement is typically only found where the

police conduct has been brutal, extreme, our has involved physical or psychological coercion.

United States v. Fernandez, 388 F.3d 1199, 1238 (9th Cir. 2004), modified, 425 F.3d 1248 (9th

Cir. 2005). Here, Defendant has essentially described run-of-the mill violations of the Fourth

Amendment, which RCSD Deputies later attempted to conceal through misrepresentations and

footdragging in the discovery process. Clearly, the Court does not condone such behavior. But,

while willful misrepresentations to the Court made by prosecutors may warrant dismissal of the

indictment, United States v. Chapman, 524 F.3d 1073, 1085 (9th Cir. 2008), the Court is aware

of no case in which an indictment has been dismissed based on misrepresentations made by law

enforcement officers. Nor would such a remedy be justified here, where the alleged violations

have been adequately remedied. United States v. Barrera-Moreno, 951 F.2d 1089, 1092 (9th Cir.

1991). On the Government’s motion, the Court has dismissed the counts based on evidence

uncovered during the search conducted by Deputy Andrews and the Government has

consistently maintained that they will not use evidence derived from that search at trial. While

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the Court does not find the testimony of Deputies Hubbard or Espinoza-Martinez to be credible,

this finding resulted in the Court giving no weight given to their testimony and sworn statements.

As a result, all evidence recovered from Room 119 will be suppressed. Since these are the

appropriate and adequate remedies for such violations, dismissal is not warranted. See United

States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991) (suppression adequate remedy for

deliberately misleading affidavit used to establish necessity of wiretap such that dismissal was not

warranted). Finally, the text messages exchanged by Deputy Andrews and PI Galvez regarding

Cano’s potential sentencing exposure do not rise even to the level of misconduct, much less

“shocking and outrageous misconduct,” and Cano provides no explanation of why such a

conversation implicates the fairness of the proceeding.

Nor does the conduct of the prosecutors in this matter warrant dismissal of the

indictment. On the morning of August 24, 2018, Deputy Hubbard for the first time disclosed to

the prosecution that he had searched Room 119. At a hearing before the Court later that day,

Defense counsel raised the possibility that the Motel 6 room was searched and requested a

declaration from the government that no search occurred. The government did not object to this

request, but also did not bring Deputy Hubbard’s recent disclosure to the Court’s attention. In

the following days, the Government negotiated with Defense counsel to narrow the scope of their

request for BWC footage from February 18 to the hours between 6:00 a.m. and 12:00 p.m.

Dismissal for prosecutorial misconduct requires a showing of both (1) flagrant

misbehavior and (2) substantial prejudice. Kearns, 5 F.3d at 1253–54. Accidental or “merely

negligent” governmental conduct is insufficient to meet this standard. Chapman, 524 F.3d 1073,

1085 (9th Cir. 2008). Defendant has shown neither of these. The Government was not obligated

to disclose newly discovered evidence that a search had occurred immediately upon receiving it.

Its decision not to object to Defendant’s request for a written statement regarding the Motel 6

search did not mislead the Court into believing that such a search did not occur. Further,

Defendant has offered no evidence that the Government negotiated the scope of the BWC

footage disclosure in bad faith: the government’s account that, at the time of the negotiations it

believed the search had taken place in the morning, is at least as plausible as Defendant’s

imputation of bad faith. Finally, even if the alleged actions constituted misconduct, Defendant

has not shown substantial prejudice, as the requested documents were disclosed prior to trial.

Cano’s motion to dismiss is DENIED.

H. Defendant’s Motion to Dismiss for Grand Jury Misconduct (Dkt. No. 163)

Cano moves to dismiss the remaining counts of the indictment on the grounds that it was

procured with perjured testimony or false evidence. (Dkt. No. 163.) Relying largely on

arguments made in her motion to suppress the evidence seized during her November 30, 2017

arrest, (Dkt. No. 29), Cano argues that PI Galvez gave false testimony to the grand jury regarding

her search and arrest on that date. In opposition, the Government argues that it has already

dismissed all counts based on evidence derived from the November 2017 search, that it will not

rely on such evidence at trial, and that the February 18, 2018 search produced independent

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evidence which was presented to the Grand Jury and was sufficient to support indictments on

Counts Four and Five.

The Fifth Amendment provides that no person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. U.S. Const.

amend. V. Dismissal of an indictment is a “drastic step,” People of Territory of Guam v. Muna,

999 F.2d 397, 399 (9th Cir. 1993), which is “frequently discussed but rarely invoked,” United

States v. Sears, Roebuck & Co., 719 F.2d 1386, 1390–91 (9th Cir. 1983) (quotation omitted).

Generally, a court “may not dismiss an indictment for errors in grand jury proceedings unless

such errors prejudiced the defendants.” Bank of Nova Scotia v. United States, 487 U.S. 250, 254

(1988). Thus, a defendant must show that the alleged violation “substantially influenced the

grand jury’s decision to indict” or creates “grave doubt that the decision to indict was from the

substantial influence of such violations.” Id. (internal quotations omitted). Thus, when a Grand

Jury has been presented with perjured testimony or other false evidence, the indictment will not

be dismissed so long as “other, sufficient evidence is present so that the grand jury may have

indicted without giving any weight to the perjured testimony…” United States v. Udziela, 671

F.2d 995, 1001 (7th Cir. 1982). Similarly, an indictment may be dismissed only in “flagrant

cases” of prosecutorial conduct where such misconduct has “significantly infringed upon the

ability of the grand jury to exercise its independent judgment. United States v. Sears, Roebuck &

Co., 719 F.2d 1386, 1390–91 (9th Cir. 1983) (citing United States v. Cederquist, 641 F2d 1347,

1353 (9th Cir. 1981)).

Cano fails to show prejudice because all of the alleged false testimony before the Grand

Jury relate only to Counts One, Two, and three of the Indictment. The false testimony alleged by

Cano relates to testimony regarding her arrest and the search of her car on November 30, 2017.

Evidence gathered during that search formed the basis of Counts One, Two and Three.

However, as discussed above, those Counts have been dismissed and the Government has stated

that it will not rely on evidence derived from the November 2017 search at trial. It does appear

that some evidence derived from the November 2017 search was referenced by PI Galvez to

secure an indictment on Count Four: the Indictment alleges that the conduct underlying Count

Four began “on or about July 10, 2017,” (Indictment at 5), a date which based on evidence

gathered during the November 2017 search (Grand Jury Testimony of Michael Galvez, Dkt. No.

163, at 17). However, PI Galvez’s testimony before the Grand Jury also detailed sufficient

evidence derived from the February 18, 2018 searches and February 19, 2018 arrest of Cano to

support an indictment on Counts Four and Five. Galvez’s testimony described the investigative

efforts following the February 18, 2018 searches, which uncovered evidence that Cano used

T.G.’s credit cards to make multiple purchases for a total value of, at a minimum, $ 1,746.

(Galvez Grand Jury Testimony at 19.) PI Galvez’s testimony clearly delineated the evidence

which was derived from this search. He clearly explained that Count 4 was based in part on a

February 5, 2018 transaction using T.G.’s credit card and that Count 5 was based in part on a

February 3, 2018 transaction using T.G.’s credit card. (Id. at 19-20.) This evidence is sufficient

to support an indictment on Counts Four and Five and is not “inextricably intertwined” with

Counts One through Three, as Cano argues. (Motion at 9.) Accordingly, Cano has failed to

demonstrate that any false evidence or testimony presented to the Grand Jury caused prejudice.

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Cano also argues that the Government has taken “inconsistent positions” about the

evidentiary basis of Counts Four and Five which was fundamentally unfair and constituted a

denial of due process. In support of this argument, Cano cites the Government’s opposition to

her motion to suppress, in which the Government stated that evidence found during the

November 30, 2017 search led to the discovery of “evidence giving rise to counts four and five.”

(Dkt. No. 30 at 4.) Now, Cano claims, the Government has changed positions and claims that

only evidence discovered during the February 2018 searches forms the basis of Counts 4 and 5.

But Cano paints with too broad a brush: in its opposition, the Government does not, in fact, take

the position that Count Four was charged only on the basis of evidence obtained during the

February 2018 searches. Rather, the government concedes that “Count Four was charged on the

bassis of evidence obtrained from both the November 30, 2017 search… and the February 18,

2018 search…” (Opposition at 6) (emphasis added). Instead, the Government argues that

Counts Four and Five are “independently supported” by evidence obtained during the February

2018 searches. (Id. at 7.) This does not represent an unfair shift in position but rather, as

discussed above, an accurate statement of Galvez’s Grand Jury testimony in support of a legal

argument that is supported by clear precedent.

For these reasons, Cano’s motion to dismiss for Grand Jury misconduct is DENIED.

I. Defendant’s Motion for Reconsideration of Order Denying Motion to Dismiss (Dkt. No.

272)

Cano moves for reconsideration of the Court’s August 24, 2018 order denying her motion

to dismiss Counts Four and Five. (Dkt. No. 272.) Under Local Rule 7-18, a motion for

reconsideration will be granted upon, inter alia, the emergence of new material facts or a change

of law occurring after the time of the Court’s determination. Cano argues that two new pieces of

evidence connect the events of November 2017 to those of February 2018: a wanted poster

prepared and circulated by Deputy Andrews in January 2018 and a February 20, 2018 email sent

by Deputy Andrews which references a search of the Motel 6 occurring on January 17, 2018.

Cano argues that this email reveals that she was located by law enforcement prior to the

discovery of the Toyota on February 18, 2018 and suggests that the searches of the Motel 6 and

Toyota were fruit of the November 2017 arrest.

The date “2/17/18” appearing in the Andrews email is plainly a typographical error. The

rest of the email summarizes events that undisputedly occurred on February 18 and 19, 2018 and

there is no other evidence of any kind suggesting that Cano was located at the Motel 6 by RCSD

deputies on February 17, 2018. Over the course of three afternoons of evidentiary hearings,

Defendant presented no evidence that Deputy Hubbard knew Cano was located at the Motel 6

prior to the chain of events which began when he conducted a routine license plate check of the

Toyota and found that it was reported stolen. There is also no evidence that the wanted poster

was in any way connected with Hubbard’s decision to run the plates of the Toyota, or even that

Hubbard knew of Cano’s existence prior to running those plates.

Cano’s motion for reconsideration is DENIED.

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J. Government’s Motion in Limine to Exclude Irrelevant Evidence (Dkt. No. 252)

The Government moves to exclude the following evidence under Federal Rules of

Evidence Rules 401 and 403: (1) all evidence concerning events occurring before the charged

conduct in February 2018; (2) an email sent from Officer Martinez to Deputy Andrews on June

28, 2015; (3) an email and draft warrant application relating to the search of Cano’s storage unit;

and (4) body worn video footage showing a RCSD deputy using inflammatory language in

discussing Defendant. Cano contends that this evidence is relevant and not unduly prejudicial.

(1) Events Predating February 18, 2018

The Government seeks an order excluding all evidence concerning events prior to the

charged conduct taking place in February 2018. In particular, it argues that, because it will not

present evidence derived from the November 2017 arrest and search of Cano, evidence related to

that search and arrest is not relevant, would require a “mini-trial”, and would likely confuse the

jury. As discussed above, the Court agrees that Defendant has failed to show a plausible

connection between RCSD’s November 2017 and February 2018 searches and arrests of Cano.

Evidence of the November 2017 search is therefore only minimally relevant to the remaining

Counts. However, at this stage that Court cannot rule out the possibility that some evidence

prior to February 2018 may be relevant as to the credibility of testifying witnesses, and so

RESERVES RULING on this motion in limine. The parties are precluded from mentioning or

introducing any such evidence until the Court allows it.

(2) Email sent from Officer Martinez to Deputy Andrews on June 28, 2015

The Government seeks an order excluding mention of a June 28, 2015 email sent from

Deputy Martinez to Deputy Andrews in which Deputy Martinez reports that Cano had been the

suspect in a homicide investigation in April 2015. The Government argues that this email is

irrelevant to the present charges and that its introduction would be inflammatory. Cano argues

that the email is relevant because it “demonstrates the disrespect that deputies showed Ms.

Cano” and may have negatively affected Andrew’s perception of Cano. (Opposition at 6.)

While this email may be relevant to show bias in the event that Deputy Andrews is called, the

Government has stated that it does not intend to call him as a witness and will not introduce

evidence derived from the November 2017 search in which he participated. As discussed above,

the Court see no evidence that Deputy Andrews’ actions “resulted in Ms. Cano facing the two

remaining charges in the indictment.” (Opp. at 6.) If Andrews does not testify, evidence about

his conduct and communications prior to the events of February 2018 is likely to confuse the jury

and result in a mini-trial of Andrews’ own behaviour. Therefore, so long as Andrews is not called

as a witness and evidence derived from the November 2017 search is not introduced, the

evidence is not relevant. The Government’s motion to exclude this evidence is preliminarily

GRANTED.

//

//

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(3) Email and Draft Warrant Application

The Government seeks an order excluding Deputy Hubbard’s February 18, 2018 email

and draft warrant application. The draft affidavit, discussed above, contains an account of the

search of the Toyota which Hubbard later changed. In the body of the email in which he sent the

draft to another deputy, Hubbard wrote “Add anything you want to the end to increase the

exigency of the warrant.” The government argues that both the email and draft affidavit should

be excluded on the grounds of irrelevance and undue prejudice. The Court does not agree, as

both pieces of evidence are relevant to Hubbard’s credibility. While Deputy Hubbard never

finalized or swore out the affidavit, a reasonable jury might conclude that the fact that Hubbard

wrote down a different version of events in a draft affidavit prior to swearing to a different version

of events undermines his credibility. Similarly, the jury might reasonably conclude that his

invitation to another officer to “[a]dd anything” suggests a willingness to falsify the contents of

the affidavit. The Government’s motion is therefore DENIED.

(4) Comments Made During February 19, 2018 Arrest

The Government seeks an order excluding a conversation between Deputy James Mills

and Deputy Hubbard during Cano’s arrest which was recorded on Mills’ BWC. In the video,

Hubbard can be heard stating, in effect, that he will buy Deputy Mills a beer if Mills writes Cano

a ticket for fraudulent vehicle registration tabs. Later in the recording, Deputy Mills proposes

writing “Shitbag” as the reason for the stop, to which Hubbard responded “Yeah.” The

Government argues that the video should be excluded because it is not probative, is unduly

prejudicial, and its introduction would result in undue delay, since the deputies in the video are

joking. The Court finds that this evidence may be relevant, as a reasonable jury could conclude

that such statements undermine Deputy Hubbard’s credibility and evidence bias. The

Government also argues that statements made by Deputy Mills would be unduly prejudicial,

since the Government will not call Mills to testify. However, the Court finds that Mill’s

statements are necessary to place Deputy Hubbard’s responses in context, and so neither

exclusion nor redaction of the video is warranted. See United States v. Ortega, 203 F.3d 675, 682

(9th Cir. 2000) (the rule of completeness requires that redactions of recorded statements not

distort the meaning of the statement.) Accordingly, the Government’s motion is DENIED.

IV.

CONCLUSION

For the foregoing reasons, the Court:









DENIES Defendant’s motion to suppress evidence allegedly seized from a rented Toyota

Tacoma (Dkt. No. 229);

GRANTS Defendant’s motion to suppress evidence derived from the February 18, 2019

search of Defendant’s Motel 6 hotel room (Dkt. No. 141);

DENIES Defendant’s motion to suppress shirt seized when Cano was arrested on

February 19, 2018 (Dkt. No. 140);

DENIES Defendant’s motion to suppress unduly suggestive photo spread (Dkt. No.

142);

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











DENIES Defendant’s motion in limine to exclude witness identification (Dkt. No. 218);

GRANTS IN PART Defendant’s motion in limine to exclude evidence that the Toyota

Tacoma seize by law enforcement had previously been reported stolen (Dkt. No. 232);

DENIES Defendant’s motion to dismiss the indictment (Dkt. No. 159);

DENIES Defendant’s motion to dismiss for grand jury misconduct (Dkt. No. 163);

DENIES Defendant’s motion for reconsideration of the Court’s August 24, 2018 order

denying Defendant’s motion to dismiss Counts Four and Five (Dkt. No. 272); and

DENIES IN PART and GRANTS IN PART the Government’s motion in limine to

exclude irrelevant evidence (Dkt. No. 252).

The Government is ordered to inform the Court by Friday, February 15, 2019 at 12pm whether

it intends to proceed with the trial currently scheduled to begin on February 19, 2019. If the

Government plans to proceed with the trial, the Government shall file its proposed summary of

the case and both parties shall submit proposed voir dire questions by Monday, February 18,

2019.

IT IS SO ORDERED.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION

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HONORABLE JESUS G. BERNAL, U.S. DISTRICT JUDGE

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UNITED STATES OF AMERICA,

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Plaintiff,

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vs.

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LISA MARIE CANO,

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Defendant.

__________________________________

)

)

)

)

) Case No.

) EDCR 18-66-JGB

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)

)

)

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REPORTER'S TRANSCRIPT OF PROCEEDINGS

RIVERSIDE, CALIFORNIA

TUESDAY, FEBRUARY 19, 2019

TRIAL DAY 1

9:00 A.M.

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________________________________________________________

ADELE FRAZIER, CSR 9690, CRR, RMR

Federal Official Court Reporter

United States District Court

3470 Twelfth Street

Riverside, California 92501

adelefraziercsr@gmail.com

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APPEARANCES OF COUNSEL

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For the Plaintiff:

OFFICE OF THE UNITED STATES ATTORNEY

By: EDWARD HAN

SYLVIA R. EWALD

ALLISON WESTFAHL-KONG

Assistant United States Attorneys

3403 Tenth Street, Suite 200

Riverside, California 92501

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For the Defendant:

OFFICE OF THE FEDERAL PUBLIC DEFENDER

BY: CALLIE GLANTON-STEELE

JELANI J. LINDSEY

Deputy Federal Public Defenders

3801 University Avenue, Suite 150

Riverside, California 92501

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UNITED STATES DISTRICT COURT

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RIVERSIDE, CALIFORNIA; TUESDAY, FEBRUARY 19, 2019

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9:00 A.M.

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(Outside the Presence of the Jury Panel:)

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THE COURTROOM DEPUTY:

We're on the record calling

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case number EDCR 18-66-JGB, United States of America vs. Lisa

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Marie Cano.

Counsel, state your appearances.

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MR. HAN:

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the United States.

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and Allison Westfahl-Kong.

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Inspectors Michael Galvez and Gabriel Rodriguez, who are the

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case agents in this matter.

Good morning, your Honor.

Edward Han for

With me at counsel table is Sylvia Ewald

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THE COURT:

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MR. LINDSEY:

Right behind us are Postal

Good morning.

Good morning, your Honor.

Deputy

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Public Defender Jelani J. Lindsey for my client.

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to the left of Ms. Cano is Senior Litigator Callie Glanton

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Steele, who is representing Ms. Cano as well.

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THE COURT:

Also standing

Let's start first with the motion.

There

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was a motion by the defendant to exclude some evidence based on

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the Court's rulings as fruit of the poisonous tree.

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the opposition by the Government?

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MS. STEELE:

Yes, your Honor.

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THE COURT:

What is the response?

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You read

Do you want to be

heard on that?

MS. STEELE:

Yes, your Honor.

Thank you.

Your

Honor, as we argued in our motion, we believe the evidence the

UNITED STATES DISTRICT COURT

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Government intends to introduce is, in fact, fruit of the

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poisonous tree.

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has been attenuated, but that is not true, your Honor.

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look closely at the timing of when the T.G. documents were --

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The Government has indicated that the taint

THE COURT:

If you

I'm not interested in that argument.

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interested in the inevitable discovery argument they make.

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What is your argument with respect to that?

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MS. STEELE:

I think there needs some clarification

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-- I'm requesting some clarification because the Court

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indicated everything found in the Motel 6 room was to be

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suppressed.

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T.G. documents in our motion, we said we want to suppress

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everything in the Motel 6.

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testified to what was in the Motel 6 versus what was in the

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Tacoma.

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I'm

During the hearing, although we focused on the

When Ms. Cano testified, she

One piece of evidence is the MetroPCS receipt.

On

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the transcript -- at page 11 from the transcript from 1-11-19,

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Ms. Cano indicated that that was in the motel room.

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the documents that the Government intends to introduce at

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trial, like the items in the black bag, the Government is

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alleging that those were in the Tacoma, but Ms. Cano indicated

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that the majority of those documents were in the Motel 6.

Many of

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The reasoning of the Court's ruling was that we have

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presented sufficient evidence to show a nexus between certain

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information being in the Motel 6 and the Government failed to

UNITED STATES DISTRICT COURT

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carry its burden to establish that it was in the Toyota Tacoma,

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so -- and the Court's ruling --

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THE COURT:

So aside from the MetroPCS receipt, what

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specific items of evidence do you contend were actually in the

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Motel 6 and not in the Tacoma?

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MS. STEELE:

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Your Honor, I don't know if the Court still has the

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exhibit in front of the Court, but Exhibit 103, the items in

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the black bag, Ms. Cano indicated almost all of the items in

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the black bag were actually in the Motel 6.

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cards that she indicated were in the black bag because there

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was a black bag containing cards and gift cards, but as -- for

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example, the Government's attempting to introduce a blank ID

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card with Ms. Cano's picture on.

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no, that was in the motel room with the other cards that look

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just like it.

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it, Ms. Cano specifically stated that those were in the motel

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room.

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Your Honor, may I have a moment?

There were a few

Ms. Cano specifically stated

The piece of paper with Tara Gano's addresses on

So, your Honor, the Government is attempting to

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introduce evidence that we believe has already been suppressed

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because Ms. Cano indicated it was in the motel room.

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Government failed to establish that it was in the Tacoma.

And

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the Court suppressed all evidence found in the motel room.

So

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we believe that, as I indicated, the majority of the documents

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in 103 --

UNITED STATES DISTRICT COURT

The

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THE COURT:

I can't just making a ruling the

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majority.

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items of evidence, either by pointing to an exhibit that you

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believe the testimony supports were found in the Motel 6 and

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not in the Tacoma, then I'll hear you out.

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ruling about the majority of documents.

That's not specific enough.

So if you have specific

I will not make a

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MS. STEELE:

Yes, your Honor.

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THE COURT:

What is the response regarding the

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addresses and the MetroPCS receipt?

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MS. EWALD:

By the Government.

From the Government, your Honor?

The

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Government was proceeding on the basis of the Court's ruling

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that the only items that were suppressed were in Exhibit A to

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the defendant's declaration.

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Court's ruling, and I don't know that there's anything more to

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add.

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THE COURT:

The Government understands the

What do you believe the state of the

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testimony is regarding the address -- the current and former

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address of Ms. Tara Gano?

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piece of evidence was located?

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MS. EWALD:

Did anybody testify as to where that

I also would have to look at the

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transcript.

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testified to that would have been -- specifically to that piece

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of note paper would have been the defendant.

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refer to the hearing transcript.

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THE COURT:

I believe the only person that would have

I would have to

Do you have the transcript in front of

UNITED STATES DISTRICT COURT

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you?

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MS. EWALD:

Yes, your Honor.

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THE COURT:

I'll give you five minutes to review, and

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after I come back, I want specific cites to the transcript

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regarding any challenged item of evidence.

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pertinent ones are the addresses and the MetroPCS receipt and

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the StorAmerica receipt, right?

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MS. STEELE:

Yes, your Honor.

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THE COURT:

Very well.

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MS. STEELE:

Thank you, your Honor.

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THE COURT:

One more thing, regarding the witness

I guess the most

Look at those.

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list, you now agree -- this is for the Government -- that

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Ms. Tara Gano's name should be disclosed to potential jurors

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during the voir dire?

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MS. EWALD:

Yes, your Honor.

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THE COURT:

What is the name of the -- either the

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MetroPCS employee that you intend to call?

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Ms. Salazar?

Is that

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MS. EWALD:

Yes, Ms. Salazar.

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THE COURT:

What is the name of the custodian that

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you intend to call?

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MS. EWALD:

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For Wal-Mart the custodian of records is

named Reymundo Andrade.

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THE COURT:

Okay.

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MS. EWALD:

For Home Depot it's Ruben Banuelos.

UNITED STATES DISTRICT COURT

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THE COURT:

All right.

So we'll put those on the

witness list.

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MS. EWALD:

Thank you.

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MS. STEELE:

Thank you, your Honor.

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(Recess.)

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THE COURT:

All right.

We're back on the record.

Be

seated, please.

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So what were you able to learn?

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MS. STEELE:

Yes, your Honor.

I was able to review

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it all, and I have a list for the Court.

And I can first talk

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about the most important ones, which is the MetroPCS receipt

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and card.

That's Defense Exhibit 105 from the motion at pages

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10 and 11.

And at the transcript from 1-11-19 Ms. Cano

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testified at page 11 that those were found in the motel room.

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THE COURT:

Okay.

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MS. STEELE:

And then if the Court turns to page 17

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of that same exhibit, that is the -- I believe the

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Government -- your Honor, I'm sorry.

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Exhibit 103, Defense Exhibit 103.

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MetroPCS receipt and card.

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room according to Ms. Cano at page 11 of the transcript.

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I need to clarify.

It's

Pages 10 and 11 are the

And those were found in the motel

Then if the Court goes to Defense Exhibit 103 at

23

page 17, that is what I believe the Government is arguing is

24

addresses of Tara Gano, and Ms. Cano testified at page 13 that

25

those were found in the motel room.

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9

1

THE COURT:

Of Exhibit 103, right?

2

MS. STEELE:

Yes, your Honor.

If the Court wants me

3

to go through, I can tell the Court what she indicated was in

4

the motel room, what she indicated was in the car versus what

5

she did not recall.

6

THE COURT:

7

What is the Government's response to that?

8

MS. EWALD:

Okay.

Yes.

No, I don't.

The Government concurs that in

9

defendant's redirect she said the MetroPCS receipt was in the

10

motel room.

11

were in the motel room.

12

forged credit cards with the defendant's name on them.

13

testified those were in the Tacoma.

14

the second day of the transcript.

15

The piece of note paper with the addresses of T.G.

She said that there were a number of

She

And that's at page 8 of

And then for the blank fraudulent driver's license

16

with the defendant's photo on it, she also testified that that

17

was in her motel room.

18

she had testified that all of these materials were found in the

19

Tacoma.

20

day's hearing at pages 95 to 96.

21

THE COURT:

I would note that on cross-examination

And that's at the first -- the transcript of the first

Very well.

So part of the reason that I

22

made the distinction between the documents was that in the

23

original motion the exhibits were collected in different

24

exhibit pages, apparently, and the motion, basically, said that

25

certain items -- because there were some discrepancy in the way

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10

1

that the exhibit tags were affixed to the different items, that

2

the certain items of evidence were in the hotel room, actually,

3

and not in the Tacoma.

4

Ms. Cano in her testimony was somewhat confused and

5

equivocal as to what was found where.

6

much stock in her testimony since it was contradictory at

7

times.

8

So I'm not placing too

And I decided that because the exhibits were

9

affixed -- the tags were affixed in certain ways and that was

10

the basis of your motion, that it is more likely that it is the

11

exhibits that you initially said in your motion were found in

12

the Tacoma were, in fact, found in the Tacoma.

13

basis for my distinction between the documents.

14

What is your response to that?

15

MS. STEELE:

So that was the

Well, your Honor -- and if I may clarify

16

also, the Government did remind me on page 9 of Exhibit 103,

17

the top two cards, which is a blank -- looks like a blank

18

California driver's license with a photograph on and a blank

19

card, those two items she indicated at the transcript page 9

20

were found in the motel.

21

two cards at the bottom were found in the car.

The two cards at the bottom -- the

22

Your Honor, I understand what the Court is

23

indicating; however, Ms. Cano did clarify her testimony and her

24

recollection.

25

able to obtain from the Government the original black bag as

If the Court recalls on the second day we were

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11

1

well as all of the cards.

2

because, since there's a protective order, it's not like Ms.

3

Cano can sit in custody and go through all of the evidence.

4

have to bring it to her.

5

was able to look at the actual cards, because the Government --

6

we asked them to, and they did agree, to bring them for her to

7

look at, then she was very clear what was where.

So we're, sort of, at a loss

And we only had pictures.

We

When she

8

For example, your Honor, if the Court looks at page 9

9

of Exhibit 103, the driver's license -- blank driver's license

10

and the card is very consistent with what is in Defense

11

Exhibit -- if I may have a moment, your Honor -- 105.

12

you look at page nine of 103 and compare it to 105, it's very

13

consistent.

14

like that and a picture that looks exactly like that.

15

more sense that they were all together, which is what Ms. Cano

16

indicated, that the blank card was with the other blank card in

17

the Motel 6.

18

So if

In fact, there's a blank card that looks exactly

It makes

She indicated things had been mixed up.

Your Honor, I think it's also important to look at

19

Deputy Hubbard's report.

20

there's a MetroPCS receipt or a MetroPCS card in the documents

21

that he obtained from the Toyota Tacoma.

22

Defense Exhibit 135 at Bates 748 where it says the black bag

23

containing approximately 30 credit cards.

24

25

He never indicates in his report that

I'm talking about

Now, the Government -- this is objective evidence as

to what was in the black bag.

The Government now says there's

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12

1

a legal piece of paper that had Tara Gano's address.

2

all these pieces of paper.

Kirk Tozi indicated that he saw

3

cards in different names.

He never said he saw small pieces of

4

paper or driver's licenses, blank driver's licenses.

5

testimony and the objective evidence shows that he saw cards,

6

which is consistent with the first two pages of Defense

7

Exhibit 103.

8

There's

His

So when you look at all the evidence together, your

9

Honor, once Ms. Cano had an opportunity to look at the

10

original -- and that was the first time, I can represent to the

11

Court, because we were not able to bring her to the postal

12

inspector's office to review the evidence as we did ourselves.

13

The first time she was able to see the actual objects, she was

14

able to clarify and said these things were in the motel room,

15

these things were in the Tacoma, and she had several items she

16

did not recall.

17

Your Honor, I believe when the Court looks at the

18

evidence -- also the discrepancies with the evidence -- the

19

Court may remember there was a paint brush that was later found

20

supposedly in the black bag and a pair of scissors that was

21

never documented.

22

made it's way in there later.

23

time.

24

25

In fact, we had not seen it.

It somehow

We had not seen it the first

With respect to the StorAmerica receipt, your Honor,

that hadn't been documented anywhere.

This is a totally

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13

1

different issue.

2

attempt to introduce.

But they have a policy that they have to

3

document everything.

There's no documentation for the

4

StorAmerica receipt.

I think we can assume it was found in the

5

Tacoma because after he searched the Tacoma, he went to

6

StorAmerica, but their recordkeeping policy was not followed

7

and as a result there's no --

8

THE COURT:

Another exhibit the Government's going to

Go on to the argument of independent

9

discovery, assuming that I maintain the ruling as I did in the

10

order.

11

MS. STEELE:

Yes, your Honor.

Your Honor, I believe

12

that in this case if you look at the -- it's almost like a

13

trail from the T.G. documents to the investigation.

14

found the T.G. documents in the motel room, then Deputy Hubbard

15

called Ms. Gano, Tara Gano.

16

obtained the information from Deputy Hubbard and immediately

17

called.

18

her credit cards, which are T.G. documents that have been

19

suppressed.

20

called American Express investigator who said, oh, there's

21

fraudulent charges.

22

from MetroPCS.

23

Once they

Postal Inspector Galvez, then,

Once he discovered -- he claimed that he discovered

Once he discovered the American Express card, he

Here they are, one from Home Depot and one

So there's no -- the investigation was connected to

24

the T.G. documents.

25

they called American Express.

Once they had the T.G. documents, then

Then American Express said these

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14

1

are fraudulent charges.

2

MetroPCS.

3

That's how they learned about

If I might just point out to the Court, the MetroPCS

4

receipt is not one really linked to the charges in the

5

indictment.

6

on their -- if the Court looks to page 10 of Exhibit 103, it

7

says Stephanie Rico.

8

Government to say that, oh, well, we would have gotten this

9

receipt, and we would have gone to MetroPCS, and we would have

10

figured all this out, there's nothing linking Ms. Cano to this

11

receipt and the fraudulent charges.

12

charge by someone other than Ms. Cano.

In fact, the MetroPCS receipt is someone turning

It doesn't say Ms. Cano.

So for the

This is a totally separate

13

So, your Honor, the argument regarding inevitable

14

discovery I think fails in light of the fact that there's so

15

much of a connection between the T.G. documents and the

16

investigation.

17

specifically stated that if the suppressed documents drive the

18

investigation, then what comes from that investigation must be

19

suppressed.

20

until they found the driver's license and the credit cards for

21

T.G. that they, then, went and found the fraudulent charges and

22

then developed their investigation from there.

23

24

25

In the Smith case the Ninth Circuit

That's exactly what happened here.

THE COURT:

All right.

It wasn't

So let me hear from the

Government.

MS. EWALD:

Yes, your Honor.

Briefly, the Government

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1

would just point out that in two separate declarations the

2

defendant identified what is in Exhibit 105 as what was in the

3

motel room and in her second -- in her motion to suppress --

4

I'm sorry, her reply in support of the motion to suppress

5

evidence from the Motel 6 she says that the items found in

6

Exhibit 103 were in the Tacoma.

7

brief.

8

And that's at page 9 of that

As for arguing based upon the assumption that the

9

materials in the pouch were found in the Tacoma, together with

10

the fact that the victim Tara Gano immediately reported the

11

break-in of her car to law enforcement, evidencing her

12

willingness to freely come forward and provide information to

13

law enforcement, in light of the StorAmerica receipt leading

14

directly to the defendant, the addresses of the victim in the

15

pouch.

16

name of somebody else.

I believe the defendant testified she

17

knows Stephanie Rico.

They are friends.

18

transaction happened five minutes after the fraudulent

19

transaction using the victim's credit card at MetroPCS.

20

clerk, Stephanie Salazar.

And the receipt from MetroPCS does, indeed, have the

Again, that

Same

21

And, again, there are multiple pieces of evidence in

22

that pouch that point to the defendant as a suspect, including

23

the blank driver's license with her photo on it and pieces of

24

note paper and forged credit cards with her name on them.

25

THE COURT:

Very well.

Yeah.

I'm going to deny the

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16

1

motion based both on the -- what's contained in the motion --

2

the original motion itself and a finding that Ms. Cano's

3

testimony at the hearing was equivocal.

4

confused at times or wasn't an example of clarity.

5

the Government has carried its burden that the items of

6

evidence would have been inevitably discovered through

7

independent means.

8

She seems to be

And I think

So I think we have the jury ready downstairs.

We

9

have to do a little bit with the Power Point here.

10

you the proposed voir dire questions that I'm going to ask the

11

prospective jurors, but I will also allow you to voir dire the

12

panel yourself for no more than ten minutes, if you wish, to

13

supplement that voir dire.

14

we prepare the final voir dire questions, the statement of the

15

case, and the Power Point.

16

MS. STEELE:

I will give

So we'll be in touch with you once

We'll be in recess.

Your Honor, may I ask briefly?

Does the

17

Court want to address -- we have some objections to the

18

Government's exhibits.

19

since they indicated they're not calling Deputy Hubbard.

20

21

THE COURT:

We think there are foundational issues

Not at this point.

I'll address them at

a break once we get going or when the testimony begins.

22

MS. STEELE:

23

(Recess.)

24

(In the Presence of the Jury Panel:)

Thank you, your Honor.

25

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CRIMINAL MINUTES—GENERAL

Case No.

EDCR 18-00066 JGB

Date July 8, 2019

Title United States of America v. Lisa Marie Cano

Present: The Honorable

JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE

MAYNOR GALVEZ

Phyllis A. Preston

Deputy Clerk

Court Reporter

Attorney(s) Present for Government:

Attorney(s) Present for Defendant(s):

Edward Han

Callie G. Steele

Jelani J. Lindsey

Proceedings:

Order (1) DENYING Defendant’s Motion for a Judgment of Acquittal

(Dkt. No. 347) and (2) DENYING Defendant’s Motion for a New Trial

(Dkt. No. 347) (IN CHAMBERS)

Before the Court is Defendant Lisa Maire Cano’s amended motion for judgment of

acquittal and for a new trial. (“Motion,” Dkt. No. 347.) The Court heard oral argument on this

Motion on July 8, 2019. After considering the parties’ argument and filings, the Court DENIES

Defendant’s Motion.

I. BACKGROUND

On March 2, 2018, Lisa Marie Cano was charged with (1) possession of “device-making

equipment” in violation of 18 U.S.C. § 1029(a)(4); (2) possession with intent to use unlawfully

at least five identification documents in violation of 18 U.S.C. § 1028(a)(3); (3) possession of

stolen mail in violation of 18 U.S.C. § 1708; (4) use of unauthorized access devices in violation 18

U.S.C. §1029(a)(2); and (5) aggravated identify theft in violation of 18 U.S.C. § 1028A(a)(1).

(“Indictment,” Dkt. No. 12.) On August 24, 2018, the Court, on the government’s motion,

dismissed Counts One, Two, and Three. (Dkt. No. 79.)

On January 10, 11, and 29, 2019, the Court held an evidentiary hearing on Cano’s pre-trial

motions, which included motions to suppress evidence seized from Room 119 of the Motel 6

located at 72215 Varner Road, Thousand Palms, California (Dkt. No. 141); to suppress evidence

seized from a rented Toyota Tacoma parked at the Motel 6 (Dkt. No. 229); and to suppress a

shirt seized during Cano’s February 19, 2018 arrest (Dkt. No. 140). The Court granted

Defendant’s motion to suppress evidence seized from Room 119 but denied her motion to

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suppress evidence seized from the Toyota and her motion to suppress the shirt seized during her

arrest. (Dkt. No. 309.) On February 17, 2019, Defendant renewed her motion to suppress,

arguing that testimony from the witnesses T.G., Stephanie Salazar, custodians for records for

Walmart and Home Depot, and Postal Inspector Galvez constituted “fruit of the poisonous

tree.” (DKt. No. 310.) Ruling from the bench, the Court denied those motions on the basis of

the inevitable discovery and independent source doctrines.

On February 19, 2019, trial commenced on Counts Four and Five of the Indictment.

(Dkt. No. 316.) After the government concluded its case-in-chief, Defendant moved for a

judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The Court denied

Defendant’s motion as to Count Four and granted it as to Count Five. On February 21, 2019,

Defendant was convicted of Count Four, use of unauthorized access devices.

Defendant filed the present Motion on June 18, 2019. (Dkt. No. 347.) The government

opposed the Motion on July 1, 2019. (Dkt. No. 352.)

II.

LEGAL STANDARD

A. Motion for Judgment of Acquittal

The court must grant a motion for judgment of acquittal under Federal Rule of Criminal

Procedure 29 if, “viewing the facts in the light most favorable to the government, the

government's proof was insufficient as a matter of law to constitute a crime.” United States v.

Rocha, 598 F.3d 1144, 1153 (9th Cir. 2010) (internal citation and quotation marks omitted). The

hurdle to overturn a jury’s conviction is high and requires a showing that no rational jury could

have found the essential elements of the crime beyond a reasonable doubt. See Rocha, 598 F.3d

at 1153; United States v. Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000). In reviewing

verdicts for sufficiently of the evidence, “the reviewing court must respect the exclusive province

of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw

reasonable inferences from proven facts, by assuming that the jury resolved all such matters in a

manner which supports the verdict.” United States v. Goode, 814 F.2d 1353, 1355 (9th Cir.

1987) (quoting United States v. Nelson, 419 F.2d 1237, 1241 (9th Cir. 1969). When the record

includes facts which support conflicting inferences, the court “must presume – even if it does not

affirmatively appear in the record – that the trier of fact resolved any such conflicts in favor of the

prosecution, and must defer to that resolution.” United States v. Johnson, 229 F.3d 891, 895

(9th Cir. 2000).

B. Motion for New Trial

Under Federal Rule of Criminal Procedure 33, the court may vacate any judgment and

grant a new trial if the interest of justice so requires. The district court’s power to grant a

motion for a new trial is “much broader than its power to grant a motion for judgment of

acquittal.” United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000) (internal quotation

omitted). In evaluating a Rule 33 motion, the court is “not obliged to view the evidence in the

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light most favorable to the verdict, and it is free to weigh the evidence and evaluate for itself the

credibility of the witnesses.” Id. Still, generally a motion for a new trial “should be granted only

in exceptional cases in which the evidence preponderates heavily against the verdict,” United

States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981) (internal quotation omitted), or when

“despite the abstract sufficiency of the evidence to sustain the verdict, the evidence

preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may

have occurred,” United States v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d 1206, 1211 (9th Cir.

1992).

III. DISCUSSION

A. Motion for Judgment of Acquittal

The elements of use of unauthorized access devices in violation 18 U.S.C. §1029(a)(2)

are:

(1) defendant knowingly used, or trafficked in, an unauthorized access device at any

time during a one-year period; (2) by using, or trafficking in, the unauthorized

access device during that period, defendant obtained things of value, their value

together totaling $1,000 or more during that period; (3) defendant acted with the

intent to defraud; and (4) defendant's conduct in some way affected interstate or

foreign commerce.”

United States v. Hanson, 2009 WL 2460887, at *3 (C.D. Cal. Aug. 6, 2009). Defendant moves

for judgment of acquittal on the grounds that the government failed to prove two of these

elements: that she acted with intent to defraud and that her conduct affected interstate

commerce.

1. Intent to Defraud

The government presented sufficient evidence at trial for a rational jury to conclude that

Defendant acted with intent to defraud. Testimony at trial established that T.G.’s car was

broken into and her purse stolen between 10:00 a.m. and 11:30 a.m. on February 3, 2018. (Trial

Transcript Day 3, Dkt. No. 334 at 7-8.) Less than two hours later, Defendant entered a

MetroPCS store with Stephanie Rico and handed Rico the identification and credit cards which

Rico immediately used to purchase merchandise in the value of $1,746.31. (Trial Transcript Day

2, Dkt. No. 333 at 56.) This purchase later appeared on T.G.’s American Express credit card

statement. (Day 3 Tr., Dkt. No. 334 at 11.) Video evidence showed that, shortly after leaving

MetroPCS, Defendant herself made purchases at Walmart, in the amount of $421.86, and at

Home Depot, in the amount of $355.49, which later appeared on T.G.’s credit card statements.

(Trial Transcript Day 3, Dkt. No. 342 at 38, 42; Day 3 Tr. Dkt. No. 334 at 12-14.) At no point

did Defendant receive authorization from T.G. to use her credit cards or identification. (Day 3

Tr. Dkt. No. 334 at 11-14.)

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The Ninth Circuit has found that Congress intended that the “intent to defraud”

element of 18 U.S.C. § 1029(a)(2) be given a “very broad reading.” United States v. Bennett, 95

F.3d 1158 at *4 (9th Cir. 1996). Thus, intent to defraud can be found where a defendant uses an

access device without authorization for their own gain. Bennet, 95 F.3d 1158 at *4 n.5 (citing

United States v. Powell, 973 F.2d 885, 889-90 (10th Cir. 1992)). Here, there was substantial

evidence that Defendant used T.G.’s access devices without permission shortly after they were

stolen from T.G.’s car for her own personal gain. The Court concludes that sufficient evidence

was presented at trial for the jury to conclude that Defendant intentionally used access devices

without T.G.’s permission in an attempt to defraud T.G. and/or the credit card companies who

had issued T.G.’s credit cards.

2. Interstate Commerce

Defendant argues that, while the government presented evidence that T.G.’s credit cards

were used, the government failed to present evidence of where the credit card companies were

located and therefore failed to prove the “interstate commerce” element of Count Four. That is

incorrect. On the third day of trial testimony, the government presented testimony from Postal

Inspector Michael Jesus Galvez, who stated that he knew that American Express and Chase

Bank, which issued the T.G. credit cards used by Defendant, are located in New York. (Day 3

Tr. Dkt. No. 342 at 44-45.) The Court concludes that this was sufficient evidence for a

reasonable jury to conclude that Defendant made purchases with fraudulently obtained credit

cards issued by out-of-state financial institutions, which is enough to meet the interstate

commerce element. See United States v. Atcheson, 94 F.3d 1237, 1243 (9th Cir. 1996), as

amended on denial of reh'g (Oct. 3, 1996) (obtaining credit or ATM cards issued by out-of-state

companies sufficient to establish potential effect on interstate commerce); United States v.

Rushdan, 870 F.2d 1509, 1512 (9th Cir. 1989) (possession of numbers of out-of-state credit card

accounts sufficient to establish interstate commerce requirement).

For the above reasons, Defendants Motion for a judgment of acquittal is DENIED.

B. Motion for New Trial

Defendant moves for a new trial on three grounds. First, Defendant argues that evidence

at trial established that the independent source doctrines should not have been applied in the

Court’s ruling on Defendant’s pretrial motion to suppress. Second, Defendant argues that the

jury was tainted by inflammatory statements made by a prospective juror during jury selection.

Third, Defendant argues that at trial the government introduced business records through

witnesses who were not qualified to lay a proper foundation because they were not custodians of

records or sufficiently familiar with the record-keeping systems of MetroPCS, Walmart, and

Home Depot.

1. Independent Source Doctrine

Defendant’s argument that the independent source and inevitable discovery doctrines

should not have been applied is little more than an attempt to relitigate arguments which the

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Court has already rejected. The only new evidence which emerged at trial and which was not

before the Court when it previously ruled on Defendant’s numerous suppression motions is

testimony that an individual named Stephanie Rico, and not Defendant, was responsible for

completing the transaction in the MetroPCS store which generated the receipt later found in the

Toyota Tacoma found in the parking lot of the Motel 6. Based on this, Defendant asks the Court

to conclude that “the government failed to show that the MetroPCS receipt would have led the

deputies to Ms. Cano.” (Mot. at 11.) But that does not follow, since, as discussed above,

testimony at trial also established that Cano was physically present at the MetroPCS store along

with Rico and personally handed Rico the identification and credit card used to make this

purchase immediately prior to the transaction. Stephanie Salazar, the MetroPCS employee who

completed the transaction, was able to identify Cano at trial. This new fact thus does not change

the Court’s prior analysis in rejecting Defendant’s motion to suppress.

The Court has already considered Defendant’s other arguments in favor of suppression of

the evidence presented at trial and rejected them. (See Dkt. No. 309.) Defendants present no

authority for the proposition that denial of a motion to suppress constitutes grounds for a new

trial under Rule 33. Even if such an order were proper, Defendant also presents no authority or

argument which persuades the Court that it should revisit its prior orders here. See United

States v. Hamling, 525 F.2d 758, 759 (9th Cir. 1975) (“Evidence will not be deemed ‘newly

discovered’ simply because it appears in a different light under a new theory.”)

The Court will not grant Defendant’s motion for a new trial on these grounds.

2. Inflammatory Statements by Prospective Juror

Defendant argues that the Court erred in denying defense counsel’s motion for a new jury

venire after a prospective juror made potentially inflammatory remarks during jury selection.

During voir dire, Prospective Juror S.B. said, in the presence of other venire members,

something to the effect of either “If they pick me, she’s guilty” or “Don’t pick me, she’s

guilty.” (Mot. at 3; “Declaration of Jelani J. Lindsey,” Dkt. No. 345-1 ¶ 2.) At sidebar, the

Court questioned S.B. regarding his statements. (Trial Transcript Day 1, Dkt. No. 332 at 142.)

After S.B. explained his conduct as “a little joke” and apologized, the Court admonished S.B.

that his conduct was inappropriate and excused him for cause.

Approximately 12 – 15 prospective jurors raised their hands when polled by the Court

whether they had heard S.B.’s comments. (Lindsey Decl. ¶ 5.) The Court then admonished all

panel members of that “you have been told that you must obey the command that anybody,

including the defendant, is innocent until proven guilty. And you must obey that. That is a

fundamental principle of law in our country.” (Id. at 155.) The Court stated that, while what

S.B. had said was “a joke,” the trial was “not a joking matter.” (Id.) The Court then asked the

venire, “Does anybody have a problem with the idea that the defendant in this case is innocent

until and unless the Government proves her guilty beyond a reasonable doubt?” (Id. at 155-56.)

No juror raised their hand. The Court next asked jurors to raise their hand if “anybody feel [sic]

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that having heard what [S.B.] said would affect their ability to be fair in this case?” (Id. at 156.)

Again, no juror raised their hand. Finally, the Court informed the venire that “If any one of you

feel – or will feel at any point if you’re involved in this trial that that comment would affect your

ability or is affecting you in any way, you are instructed to let me know.” (Id.) No juror

informed the Court that they were affected by this comment.

As the Court has already ruled, S.B.’s comments did not taint the jury. The Court now

concludes that they do not warrant a new trial. The right to a fair trial before an impartial jury is

fundamental. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075 (1991). Due process requires

that that a defendant be tried before an impartial jury “capable and willing to decide the case

solely on the evidence before it.” Mach v. Stewart, 137 F.3d 630, 633 (9th Cir. 1997). This right

is violated where extrajudicial statements affect the outcome of the trial. Gentile, 501 U.S. at

1075 (1991). However, trial courts have “considerable latitude” in evaluating claims of jury taint.

United States v. Paniagua-Ramos, 251 F.3d 242, 249 (1st Cir. 2001). When concerns of jury taint

are raised, the trial court must “fashion, and then even-handedly implement, a sensible

procedure reasonably calculated to determine whether something untoward had occurred.”

Paniagua-Ramos, 251 F.3d at 249–50. Here, the Court rigorously inquired into whether members

of the venire had heard and been affected by S.B.’s comment. No juror said that they had.

Similarly, no juror indicated that their ability to be fair had been affected by S.B.’s comment.

The Court also informed the venire that the comment had been a “joke,” dispelling the notion

the S.B. had any personally knowledge of the facts of the case, and reminded the jury of the

gravity of a criminal trial and their obligation to be fair in deciding the case.

The Court believes that these procedures were adequate to cure any potential taint.

While Defendant argues that S.B.’s comment had a “pervasive effect on the venire,” (Mot. at

13), she does not explain what that effect was, or why the Court’s procedures were insufficient to

remedy any potential taint. The Court will not grant her motion for a new trial on these grounds.

3. Custodian of Records

Defendant argues that the government did not lay the proper foundation for the

admission of receipts and from MetroPCS and video surveillance footage from Walmart and

Home Depot because the witnesses who introduced that evidence were not custodians of records

of those stores and did not have sufficient familiarity with those stores’ respective record keeping

systems.

Under Federal Rule of Evidence 803(6)(b), a record of an act or event may be admitted

into evidence as an exception to the hearsay rule if “the record was kept in the course of a

regularly conducted activity of a business, organization, occupation, or calling, whether or not for

profit”. Fed. R. Evid. 803(6)(b). Admission of such records requires that the government lay

the foundation that (1) the records were made or transmitted by a person with knowledge at or

near the time of the incident recorded; and (2) the records were kept in the course of a regularly

conducted business activity be established through “the custodian of the records or another

qualified witness.” United States v. Ray, 930 F.2d 1368, 1370 (9th Cir. 1990). The phrase

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“other qualified witness” is “broadly interpreted to require only that the witness understand the

record-keeping system.” Ray, 930 F.2d at 1370.

At trial, the government established the requisite foundation for the admission of the

MetroPCS, Walmart, and Home Depot records through sufficiently qualified witnesses. To

introduce MetroPCS receipts, the government called Stephanie Salazar, a sales manager at the

MetroPCS store where the receipts were produced whose job includes sales. (Day 2 Tr. at 29.)

Salazar testified that the receipt at issued was made, kept, and maintained in the ordinary course

of MetroPCS’s business and was an exact duplicate of the one made during the transaction at

issue. (Id. at 28-29.) Salazar’s position as a sales manager at the MetroPCS store who conducted

sales is sufficient to establish that she understood the system for producing and maintaining sales

receipts.

Reymundo Andrade, an asset protection and assistant manager at Home Depot, testified

that he was familiar with how transactions are memorialized at Walmart, how receipts are “put

together” and “structured” at Walmart, and the significance of the depiction of credit card

numbers on a receipt. (Day 2 Tr. at 83.) Additionally, his position as asset manager in charge of

overseeing loss prevention at Walmart permits the reasonable inference that he was familiar with

Walmart’s system for maintaining video-surveillance footage. He was thus sufficiently

knowledgeable with Walmart’s record-keeping system to lay the foundation for admission of

Walmart receipts and surveillance footage.

Finally, Ruben Banuelos, the senior organized retail crime investigator for Home Depot,

testified that one of his duties is conducting investigations of theft and fraud at Home Depot.

(Day 2 Tr., Dkt. No. 342 at 12.) In the course of investigating such incidents, Banuelos accesses

Home Depot’s transactional journals, which contain receipt information, as well as the store’s

surveillance systems, which store video records on a hard drive. (Id. at 13.) Banuelos accesses

these systems “almost daily.” (Id.) Banuelos’s testimony established that he was very familiar

with, and understood, these record-maintenance systems. The Court therefore concludes that

he, too, was qualified to lay the foundation for the introduction of business records.

The Court therefore will not grant Defendant’s request for a new trial on these grounds.

IV.

CONCLUSION

For the above reasons, the Court DENIES Defendants’ Motion for Judgement of

Acquittal and DENIES Defendant’s Motion for a New Trial.

IT IS SO ORDERED.

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