United States v. Ulloa

942 F.Supp.2d 202

UNITED STATES of America

v.Maria M. ULLOA.

Criminal No. 12–cr–02–01–JL.

United States District Court, D. New Hampshire.

May 1, 2013.

William E. Morse, U.S. Attorney's Office, Concord, NH, for United States of America.

MEMORANDUM ORDER

JOSEPH N. LAPLANTE, District Judge.

In advance of the jury trial of Maria M. Ulloa on several counts of preparing and filing false or fraudulent income tax returns, see18 U.S.C. § 287, the prosecution moved in limine to preclude various evidence from being used to impeach its witnesses. See L. Cr. R. 12.1(c). Specifically, it sought to exclude evidence of:

• a 2007 letter from United States Citizenship and Immigration Services (“C.I.S.”) to a prospective prosecution witness, denying that witness's application for travel;

• another prospective witness's divorce, which a 1987 U.S. government memorandum characterized as “not genuine and contrived to achieve immigration status”; and

• a third prospective witness's marital infidelity, as well as the fact that the same witness had jointly filed an immigration form I–751 with his estranged wife.¹

The court issued oral orders granting, or granting in part and denying in part, these motions; those orders are explained below.

At trial, an issue also arose as to the purposes for which the jury could consider evidence that a prosecution witness had engaged in conduct substantively identical to that charged in this case. The court, adopting the position urged by the prosecution, held that under Rule 404(b) of the Federal Rules of Evidence, the jury could not use that evidence to infer that the witness was likely to have also committed the acts charged against Ulloa, and instructed the jury accordingly. This ruling was erroneous, but, as explained below, was ultimately harmless.

I. 2007 C.I.S. letter

The prosecution's first motion in limine seeks to preclude Ulloa from impeaching its witness, Mr. Torres, with a 2007 letter from C.I.S. “stating that on April 30, 2007, Torres filed form I131, Application for Travel, which was denied because the illness from which [he] claimed his mother suffered could not be verified by her doctor in Honduras.” The prosecution argues that the letter and the incident related therein are not probative of Torres's “character for truthfulness or untruthfulness,” and thus not proper impeachment evidence under Federal Rule of Evidence 608(b), because C.I.S. “never made a determination as to whether Mr. Torres's claim of family illness was false; rather, it concluded only that there was insufficient corroborating evidence to justify an issuance of the requested travel permit.” The prosecution is mistaken about the probative value of evidence regarding Torres' application and its denial, which is admissible both under Rule 608(b) and as evidence of possible bias. C.I.S.'s letter is nonetheless inadmissible for certain purposes. The motion is therefore granted in part and denied in part.

Rule 608(b) provides that “extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness.” So, insofar as Ulloa might seek to use the 2007 letter itself to imply that Torres previously misrepresented his mother's medical condition, and is therefore more likely to give false testimony in this action, the rule bars her from doing so. To that limited extent, the prosecution's motion is granted.

Rule 608(b) also explains, however, that the court may permit inquiry into “specific instances of a witness's conduct ... if they are probative of the [witness's] character for truthfulness or untruthfulness.” Thus, if the conduct related in the letter (as distinct from the letter itself) is probative of Torres's character for truthfulness, Ulloa may cross-examine him about it. This standard is plainly met. The Court of Appeals has recognized that “a witness's willingness to lie to the government in an application ... is highly probative of his character for truthfulness.” United States v. Shinderman, 515 F.3d 5, 17 (1st Cir.2008).

Though the prosecution suggests that evidence of the denial of Torres's application is not probative of his truthfulness “absent any discernible finding of falsity” by C.I.S. as to his claim of family illness, the test for admissibility under Rule 608(b) does not require the proponent to establish prior untruthful conduct by the witness to a certainty before inquiring about it. Rather, “the general rule is that the questioner must be in possession of some facts which support a general belief that the witness committed the offense or the degrading act to which the question relates.” United States v. Whitmore, 359 F.3d 609, 622 (D.C.Cir.2004) (internal quotation marks omitted); cf. also 2 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 608.02[9], at 608–19 (2011) (“[T]he courts have held that a party must have a ‘plausible basis' to believe that the witness committed the bad act before it can be made the subject of inquiry.”). Here, the 2007 letter's reference to the fact that Torres's mother's doctor could not verify the illness claimed by Torres in his application “supports a general belief that” Torres fabricated that illness, and Ulloa is entitled to explore this issue with Torres on cross-examination.²

As Ulloa notes, moreover, evidence that the U.S. government denied Torres's application is also relevant and admissible on cross-examination inasmuch as it shows possible bias in favor of the government. That Torres must seek government approval to travel—and has relatively recently been denied such approval—could suggest that Torres might shade his testimony to please the government and improve his chances of obtaining approval in the future. “There is no question of the relevance of” evidence that a witness has a “motivation to lie to continue to curry favor with the government.” United States v. Lynn, 856 F.2d 430, 433 (1st Cir.1988). What's more, “a witness's self-interest or motive to testify falsely is generally considered to be a non-collateral issue,” United States v. Beauchamp, 986 F.2d 1, 4 (1st Cir.1993), so “extrinsic evidence is admissible to show bias,” United States v. Gomes, 177 F.3d 76, 81 (1st Cir.1999), even if that evidence would otherwise be inadmissible under Rule 608(b), United States v. Abel, 469 U.S. 45, 55–56, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). So, if Ulloa wishes to use the 2007 letter to show Torres's possible bias, she may do so (subject to an appropriate limiting instruction, seeFed.R.Evid. 105). The motion is denied to the extent it seeks to prevent this use of the letter.

II. “Contrived” divorce

The prosecution's second motion in limine seeks to preclude Ulloa from impeaching its witness, Mr. Lantigua, by inquiring into an incident related in a 1987 U.S. Embassy memorandum, in which the government denied Lantigua's application for a visa “because his divorce was determined to be not genuine and contrived to achieve immigration status.” This incident, the prosecution argues, is too remote in time to be admitted into evidence. The court agrees.

As already discussed, Rule 608(b) permits inquiry into specific instances of a witness's conduct on cross-examination if those instances “are probative of the [witness's] character for truthfulness or untruthfulness.” That rule would ordinarily permit inquiry into a witness's willingness “to engage in deceptive practices to avoid immigration laws.” United States v. Thiongo, 344 F.3d 55, 60 (1st Cir.2003) (concluding that service “as a legal witness to a sham marriage designed to avoid immigration laws” was “fairly probative of ... truthfulness”). To protect against abuse, however, “specific instances of conduct inquired into ... must not be remote in time.” United States v. Mateos–Sanchez, 864 F.2d 232, 236 (1st Cir.1988); see also Thiongo, 344 F.3d at 59 (similar); cf. also 2 Saltzburg et al., supra § 608.02[4], at 608–10 (“[T]he older the act, the less it says about the witness' current propensity to lie on the stand.”) (emphasis in original). Here, over a quarter-century had elapsed between Lantigua's sham divorce and the time of trial. This gulf of time is, in this court's view, too large for evidence of that instance of untruthfulness to have any value to the jury in assessing Lantigua's veracity. Cf.United States v. Holden, 557 F.3d 698, 703 (6th Cir.2009) (prior misrepresentations properly excluded as having “little if any relevance to [witness's] ability to testify truthfully about an unrelated subject more than a decade later”); United States v. Schwab, 886 F.2d 509, 513–14 (2d Cir.1989) (trial judge erroneously permitted inquiry into charges made against witness 23 and 18 years before trial).

This is true even if, as Ulloa suggests, the denial of an immigrant visa might otherwise demonstrate that a witness has a motive “to slant his testimony in favor of the government[ ]” because he is “subject to the policies and whims of immigration authorities.” Extrinsic evidence offered to prove bias is subject to Federal Rules of Evidence 402 and 403. SeeFed.R.Evid. 608 Advisory Committee Notes, 2003 Amendments (citing United States v. Winchenbach, 197 F.3d 548 (1st Cir.1999)). As is the case with Rule 608(b), under those rules evidence may properly be excluded if its probative value has been “attenuated by the passage of time.” United States v. Rodriguez, 215 F.3d 110, 120–21 (1st Cir.2000); cf. Harrower v. La. ex rel. La. Dep't of Transp., 327 Fed.Appx. 501, 502 (5th Cir.2009) (district court properly excluded evidence of 25–year–old incident as “so remote in time that the probative value of the evidence was extremely limited”). That is the case here, where—unlike Mr. Torres's relatively recent run-in with immigration, see supra Part I—a decades-old contretemps with immigration authorities does not make it particularly likely that Lantigua has any present motive to shade his testimony to please the...