UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 18-cr-160/01-JL Opinion No. 2019 DNH 030P Eleazar Flores-Mora
MEMORANDUM ORDER
Defendant Eleazar Flores-Mora has filed several motions in
limine ahead of his jury trial on one count of unlawful reentry
after deportation in violation of 8 U.S.C. § 1326(a). Many of
these motions have been resolved by the prosecution’s
representations, in its filings and at the final pretrial
conferences, that it will not seek to admit certain types of
evidence and that it intends to lay a proper foundation for
otherwise admissible evidence through witness testimony. The
parties have also stipulated to the admission of certain
exhibits, resolving other motions.1 The court addresses the
remaining motions in turn.
The court reminds the parties that these rulings are made
without prejudice to revisiting particular issues in response to
circumstances that might arise during trial. Furthermore, these
rulings are limited to grounds argued in the parties’ filings
1 Stipulation re Exhibits (doc. no. 58). and raised at the final pretrial conferences. The court
reserves the right to assess other factors at trial, such as
hearsay, authenticity, and best evidence, see Fed. R. Evid. 800
et seq., 900 et seq., and 1000 et seq., and where appropriate,
arguments and grounds not raised by counsel.
Tattoo
The prosecution alleges that Flores-Mora has a tattoo on
his arm reading “Hecho en Mexico,” which translates as “Made in
Mexico,” with an illustration of an Aztec eagle head, a design
established by the Mexican government to identify products
manufactured in Mexico. It intends to present testimony by a
Homeland Security agent that he noted and photographed the
tattoo during a 2009 encounter in which Flores-Mora admitted
entering the country illegally. It also plans to ask Flores-
Mora to show his arm to the jury.
Flores-Mora moves to suppress any evidence regarding this
alleged tattoo. He argues that any such evidence would be
irrelevant, potentially misleading, and prejudicial and so
should be excluded under Federal Rules of Evidence 401, 402, and
403. It is irrelevant, he contends, because he has not put his
identity at issue and, even if identity is relevant, the
prosecution has ample other evidence to prove identity. He
argues that the tattoo might be construed as an admission of
2 alienage, when it might just as likely refer only to his Mexican
heritage. And, he suggests, the tattoo might be misconstrued as
a gang sign, creating prejudice.
The court denies Flores-Mora’s motion. Evidence about the
tattoo is probative of both identity and alienage. While
Flores-Mora argues that he has not put his identity at issue,
the prosecution bears the burden of proving that Flores-Mora is
an alien and has been previously deported. United States v.
Contreras Palacios, 492 F.3d 39, 42 (1st Cir. 2007) (“To secure
a conviction under 8 U.S.C. § 1326, the government must prove
that the defendant: (1) is an alien, (2) was previously
deported, and (3) thereafter entered, or attempted to enter, the
United States without permission.”). The nature of the charge
puts Flores-Mora’s identity at issue, as his legal status and
whether he has been deported are facts closely linked to his
identity. The two cases Flores-Mora cites involved significant
concessions of identity by the defendant, which Flores-Mora has
not offered (and of course has no obligation to offer). See
United States v. Aranda-Diaz, No. CR 12-2686 JB, 2014 U.S. Dist.
LEXIS 2241 at *14 (D.N.M. Jan. 7, 2014) (tattoo evidence
excluded after defendant pleaded guilty to felon-in-possession
charge and would not contest being driver of car during
controlled purchase); United States v. Washington, No. 16-cr-
477, 2017 U.S. Dist. LEXIS 136220 at 36-37 (N.D. Ill. Aug. 21,
3 2017) (defendant could conceal facial tattoos during trial only
if he conceded that he was the individual in pictures allegedly
showing him illegally possessing a firearm.).
Furthermore, the content of this alleged tattoo is
probative of alienage. Proving alienage is an element of the
charged offense. Contreras Palacios, 492 F.3d at 42. One
obvious reason one might get a “Hecho en Mexico” tattoo is that
one was born in Mexico. And true enough, other reasons include
one’s Mexican heritage or love of Mexico and things Mexican.
But the existence of alternative explanations does not render
such a tattoo irrelevant. Whether Flores-Mora was born in
Mexico is relevant to alienage. Flores-Mora is free to present
alternative reasons for getting such a tattoo to the jury
through cross-examination, direct evidence, or proper argument
in summation.
The alleged tattoo’s probative value to identity and
alienage is not outweighed by any potential confusion or
prejudice. See Fed. R. Evid. 403. The prosecution thus may
present this evidence. Flores-Mora may, if he so wishes,
request a limiting instruction to the jury (addressing gang
affiliation or any other irrelevant or prejudicial issue) to
cure any residual prejudice. See Fed. R. Evid. 105.
4 Database search testimony
Flores-Mora moves to preclude the prosecution from
presenting testimony by a government specialist that he searched
federal immigration databases and found no record of Flores-Mora
applying for permission to reenter the United States. He first
argues that this evidence would violate the best evidence rule,
by using testimony rather than presenting some report from the
database itself.
The best evidence rule, set forth in Federal Rule of
Evidence 1002, provides: “An original writing, recording, or
photograph is required in order to prove its content unless
these rules or a federal statute provides otherwise.” Fed. R.
Evid. 1002. In support of the argument that the best evidence
rule applies to the government specialist’s testimony, Flores-
Mora relies on United States v. Bennett, in which the Ninth
Circuit Court of Appeals found that the best evidence rule
applied to testimony about the contents of a global positioning
system. 363 F. 3d 947 (9th Cir. 2004). But the Ninth Circuit
has squarely distinguished Bennett from the type of testimony at
issue here. In United States v. Diaz-Lopez, it held that
“testimony of a search of a computer database revealed no record
of a matter” does not trigger the best evidence rule, because it
concerns the absence of data rather than the contents of data.
625 F.3d 1198, 1200-03 (9th Cir. 2010) (considering testimony
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UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 18-cr-160/01-JL Opinion No. 2019 DNH 030P Eleazar Flores-Mora
MEMORANDUM ORDER
Defendant Eleazar Flores-Mora has filed several motions in
limine ahead of his jury trial on one count of unlawful reentry
after deportation in violation of 8 U.S.C. § 1326(a). Many of
these motions have been resolved by the prosecution’s
representations, in its filings and at the final pretrial
conferences, that it will not seek to admit certain types of
evidence and that it intends to lay a proper foundation for
otherwise admissible evidence through witness testimony. The
parties have also stipulated to the admission of certain
exhibits, resolving other motions.1 The court addresses the
remaining motions in turn.
The court reminds the parties that these rulings are made
without prejudice to revisiting particular issues in response to
circumstances that might arise during trial. Furthermore, these
rulings are limited to grounds argued in the parties’ filings
1 Stipulation re Exhibits (doc. no. 58). and raised at the final pretrial conferences. The court
reserves the right to assess other factors at trial, such as
hearsay, authenticity, and best evidence, see Fed. R. Evid. 800
et seq., 900 et seq., and 1000 et seq., and where appropriate,
arguments and grounds not raised by counsel.
Tattoo
The prosecution alleges that Flores-Mora has a tattoo on
his arm reading “Hecho en Mexico,” which translates as “Made in
Mexico,” with an illustration of an Aztec eagle head, a design
established by the Mexican government to identify products
manufactured in Mexico. It intends to present testimony by a
Homeland Security agent that he noted and photographed the
tattoo during a 2009 encounter in which Flores-Mora admitted
entering the country illegally. It also plans to ask Flores-
Mora to show his arm to the jury.
Flores-Mora moves to suppress any evidence regarding this
alleged tattoo. He argues that any such evidence would be
irrelevant, potentially misleading, and prejudicial and so
should be excluded under Federal Rules of Evidence 401, 402, and
403. It is irrelevant, he contends, because he has not put his
identity at issue and, even if identity is relevant, the
prosecution has ample other evidence to prove identity. He
argues that the tattoo might be construed as an admission of
2 alienage, when it might just as likely refer only to his Mexican
heritage. And, he suggests, the tattoo might be misconstrued as
a gang sign, creating prejudice.
The court denies Flores-Mora’s motion. Evidence about the
tattoo is probative of both identity and alienage. While
Flores-Mora argues that he has not put his identity at issue,
the prosecution bears the burden of proving that Flores-Mora is
an alien and has been previously deported. United States v.
Contreras Palacios, 492 F.3d 39, 42 (1st Cir. 2007) (“To secure
a conviction under 8 U.S.C. § 1326, the government must prove
that the defendant: (1) is an alien, (2) was previously
deported, and (3) thereafter entered, or attempted to enter, the
United States without permission.”). The nature of the charge
puts Flores-Mora’s identity at issue, as his legal status and
whether he has been deported are facts closely linked to his
identity. The two cases Flores-Mora cites involved significant
concessions of identity by the defendant, which Flores-Mora has
not offered (and of course has no obligation to offer). See
United States v. Aranda-Diaz, No. CR 12-2686 JB, 2014 U.S. Dist.
LEXIS 2241 at *14 (D.N.M. Jan. 7, 2014) (tattoo evidence
excluded after defendant pleaded guilty to felon-in-possession
charge and would not contest being driver of car during
controlled purchase); United States v. Washington, No. 16-cr-
477, 2017 U.S. Dist. LEXIS 136220 at 36-37 (N.D. Ill. Aug. 21,
3 2017) (defendant could conceal facial tattoos during trial only
if he conceded that he was the individual in pictures allegedly
showing him illegally possessing a firearm.).
Furthermore, the content of this alleged tattoo is
probative of alienage. Proving alienage is an element of the
charged offense. Contreras Palacios, 492 F.3d at 42. One
obvious reason one might get a “Hecho en Mexico” tattoo is that
one was born in Mexico. And true enough, other reasons include
one’s Mexican heritage or love of Mexico and things Mexican.
But the existence of alternative explanations does not render
such a tattoo irrelevant. Whether Flores-Mora was born in
Mexico is relevant to alienage. Flores-Mora is free to present
alternative reasons for getting such a tattoo to the jury
through cross-examination, direct evidence, or proper argument
in summation.
The alleged tattoo’s probative value to identity and
alienage is not outweighed by any potential confusion or
prejudice. See Fed. R. Evid. 403. The prosecution thus may
present this evidence. Flores-Mora may, if he so wishes,
request a limiting instruction to the jury (addressing gang
affiliation or any other irrelevant or prejudicial issue) to
cure any residual prejudice. See Fed. R. Evid. 105.
4 Database search testimony
Flores-Mora moves to preclude the prosecution from
presenting testimony by a government specialist that he searched
federal immigration databases and found no record of Flores-Mora
applying for permission to reenter the United States. He first
argues that this evidence would violate the best evidence rule,
by using testimony rather than presenting some report from the
database itself.
The best evidence rule, set forth in Federal Rule of
Evidence 1002, provides: “An original writing, recording, or
photograph is required in order to prove its content unless
these rules or a federal statute provides otherwise.” Fed. R.
Evid. 1002. In support of the argument that the best evidence
rule applies to the government specialist’s testimony, Flores-
Mora relies on United States v. Bennett, in which the Ninth
Circuit Court of Appeals found that the best evidence rule
applied to testimony about the contents of a global positioning
system. 363 F. 3d 947 (9th Cir. 2004). But the Ninth Circuit
has squarely distinguished Bennett from the type of testimony at
issue here. In United States v. Diaz-Lopez, it held that
“testimony of a search of a computer database revealed no record
of a matter” does not trigger the best evidence rule, because it
concerns the absence of data rather than the contents of data.
625 F.3d 1198, 1200-03 (9th Cir. 2010) (considering testimony
5 that a database showed no record defendant had applied for
readmission to the United States). The court agrees and finds
no violation of the best evidence rule.
Flores-Mora also argues that the proposed testimony
violates Federal Rules of Evidence 401, 403, 702, 802 and his
rights under the Fifth and Sixth Amendments to the United States
Constitution because the government specialist likely lacks
personal (see Federal Rule of Evidence 602) or expert knowledge
about various aspects of the databases. The Ninth Circuit Court
of Appeals considered and rejected a similar argument in Diaz-
Lopez: “For the purposes of establishing foundation, it was
sufficient that the agent testified that he was familiar with
both the process of searching the records and the government’s
recordkeeping practices with regard to the database.” Diaz-
Lopez, 625 F.3d at 1200. Assuming that the prosecution’s
witness here provides similar testimony, this is sufficient.
Flores-Mora has not seriously challenged the reliability of the
databases at issue, and the prosecution is not seeking to prove
the contents of the information in the database. See id.
Flores-Mora has offered no on-point authority to the contrary.
He is free to attack the witnesses’ level of knowledge regarding
the databases, but this goes to the weight of the specialist’s
testimony, rather than its admissibility. See id. His motion
to preclude the testimony is thus denied.
6 Use of “alien”
Flores-Mora moves to preclude witnesses from referring to
him as an “alien,” because alienage is an element of the offense
that the jury, rather than any witness, must determine, and
because the term has pejorative connotations that would be
avoided by substituting a term like “noncitizen.”
Again, alienage is an element of the charged offense.
Contreras Palacios, 492 F.3d at 42. And, as Flores-Mora
acknowledges, “alien” is a defined term in the Immigration and
Nationality Act.2 8 U.S.C. § 1101(1)(3) (“The term ‘alien’ means
any person not a citizen or national of the United States.”).
The court is not inclined to rule that a word adopted by
Congress as an element of proof is so inherently prejudicial as
to prohibit its use at trial.
Flores-Mora has not shown that he has any due process right
to generally avoid the use of the term of “alien” at trial. The
court denies this motion. But the court will ask the witnesses
to refer to Flores-Mora by name or as the defendant, rather than
as “an alien” or “the alien” other than when specifically
referring to his legal status. Flores-Mora may also request a
limiting instruction to the jury to cure any prejudice. See
Fed. R. Evid. 105.
2 See Def.’s Mots. in Limine (doc. no. 32) at 21.
7 Conclusion
Flores-Mora’s motion to preclude evidence regarding an
alleged tattoo, to preclude testimony regarding the absence of
records in government databases, and to preclude the use of the
term “alien” at trial are DENIED.3
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: March 29, 2019
cc: Helen W. Fitzgibbon, AUSA Jeffrey S. Levin, Esq.
3 Document No. 32 at II.A, J, and L.