USA v. Quinones-Davila et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
UNITED STATES OF AMERICA 	)
)
v. 	) 	Criminal Action No. 2016-0009
)
JEAN CARLOS VEGA-ARIZMENDI, et al., 	)
)
Defendants. 	)
__________________________________________)
Attorneys:
Alphonso G. Andrews, Jr., Esq.,
St. Croix, U.S.V.I.
Everard E. Potter, Esq.,
St. Thomas, U.S.V.I.
For the United States
Robert J. Kuczynski, Esq.,
St. Croix, U.S.V.I.
For Defendant Jean Carlos Vega-Arizmendi
MEMORANDUM OPINION AND ORDER
Lewis, Chief Judge
THIS MATTER comes before the Court on Defendant Jean Carlos Vega-Arizmendi’s
(“Defendant”) Motion in Limine to Preclude Agent Brian Gaumond from Identifying Jean Carlos
Vega-Arizmendi at Trial (“Motion”) (Dkt. No. 1180) and the Government’s Response to
Defendant’s Motion (“Response”) (Dkt. No. 1194). For the reasons that follow, the Court will
deny Defendant’s Motion.
I. 	INTRODUCTION
In 	his 	Motion, 	Defendant 	requests 	that 	the 	Court 	preclude 	Drug 	Enforcement
Administration (“DEA”) Special Agent (“SA”) Brian Gaumond from identifying Defendant at trial
based on Defendant’s contention that SA Gaumond’s identification is not based on personal
knowledge. (Dkt. No. 1180 at 1-2). Specifically, Defendant states that SA Gaumond is expected
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to identify Defendant at trial “based on surveillance and personal observation.” Id. at 1.1 Defendant
asserts that, “at the time [SA] Gaumond purportedly observed [Defendant], he did not know
[Defendant’s] identity,” and was able to identify Defendant later based only on the results of the
criminal investigation from which the charges here stem. Id. Defendant claims that SA Gaumond’s
identification of Defendant at trial should therefore be prohibited, as SA Gaumond did not have
personal knowledge of Defendant’s identity at the time that he was performing surveillance. Id. at
2. Defendant also suggests in his Motion that SA Gaumond’s identification of Defendant at trial
would constitute improper opinion testimony by a lay witness under Federal Rule of Evidence 701.
Defendant states that the charges against him in this case arose from SA Gaumond’s surveillance
of his participation in a number of events, and that “[w]hether [he] is actually the person depicted
in the surveillance is a question for the jury.” Id. at 3.
In its Response, the Government argues that the relevant issue with respect to the
admissibility of SA Gaumond’s in-trial identification of Defendant is not whether SA Gaumond
was able to identify Defendant by name while he was performing surveillance on December 15,
2014, but rather whether SA Gaumond “can look at [Defendant] in the courtroom and identify him
as the same person he saw, and took photographs of at Chenay Bay . . . .” (Dkt. No. 1194 at 2).
Pointing to SA Gaumond’s testimony from the first trial, the Government argues that SA Gaumond
is able to identify Defendant by observing him in the courtroom as the same individual he saw at
Chenay Bay on December 15, 2014, regardless of whether he knew Defendant’s name at that point.
Id. at 2-3. The Government argues that Defendant’s Motion should therefore be denied. Id. at 3.2
1 In its Response, the Government clarifies that the event at issue was surveillance conducted by
SA Gaumond at Chenay Bay on December 15, 2014. (Dkt. No. 1194 at 1).
2 The Government also contends that the Court should not entertain Defendant’s arguments with
respect to SA Gaumond’s identification at all because Defendant attempted, unsuccessfully, to
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II. 	DISCUSSION
In support of his positions, Defendant points the Court to United States v. Vasquez-Rivera,
665 F.3d 351 (1st Cir. 2011). In that case, the First Circuit considered whether identification
testimony offered by Federal Bureau of Investigation (“FBI”) Special Agent Christine Segarra was
properly admitted at Vasquez-Rivera’s trial. SA Segarra had served in an undercover capacity
during a child pornography investigation—which included engaging in chat and webcam sessions
on the internet under the assumed identity of a 14-year-old girl. Id. at 354. At one point during the
investigation, a target sent SA Segarra a webcam video of a man masturbating. Id. In the video,
SA Segarra was “able to see a man wearing red flannel pajamas, his hands and genitalia, and part
of the room in the background. However, [she was] not able to see the man’s face.” Id.
Vasquez-Rivera was subsequently charged in the matter. The “ultimate issue” before the
jury was whether Vazquez-Rivera was in fact the individual who had been communicating with
preclude the identification during the first trial. (Dkt. No. 1194 at 3). The Government argues that
the “law of the case” doctrine should operate to preclude Defendant from revisiting this issue as it
was decided by the Court during the first trial. Id.
The Court notes, however, that the majority of circuits that have addressed the issue have
determined that the “law of the case” doctrine does not apply with respect to evidentiary rulings
from a previous trial. See, e.g., United States v. Akers, 702 F.2d 1145, 1148 (D.C. Cir. 1983)
(holding that “[n]o doctrine of the law of the case operates” with respect to evidentiary rulings in
a new trial because “‘the previous trial [is] a nullity,’ [and] the court in the new trial tries ‘the case
as if it were being tried for the first time . . . .’”) (quoting Hobbs v. Akers, 191 A.2d 238, 239, cert.
denied, 375 U.S. 914, (1963)); United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990)
(“Rigorously applying the law-of-the-case doctrine [with respect to evidentiary rulings] would
undercut the broad discretion that traditionally has been accorded a trial court in these matters.”);
Menzer v. United States, 200 F.3d 1000, 1004 (7th Cir. 2000) (“The law of the case doctrine does
not bar a trial court from revisiting its own evidentiary rulings.”). As the Court stated at the status
conference held on February 13, 2018, the Court is not applying the law of the case doctrine to its
evidentiary rulings as a general proposition, and it is therefore incumbent on the parties to raise
whatever objections they deem appropriate, and want preserved for the record, in the context of
the retrial of this matter. Accordingly, notwithstanding that Defendant challenged the admission
of SA Gaumond’s identification in the first trial, the Court is considering and ruling on Defendant’s
challenge in the context of the upcoming retrial.
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SA Segarra online and who sent her the pornographic video. Id. at 357. At trial, the prosecutor
asked SA Segarra whether the target of the FBI investigation had been identified. Id. She answered:
“We ended up identifying him as William Vazquez Rivera.” Id.
On appeal, the First Circuit determined that this testimony by SA Segarra was admitted in
error at trial because (1) “her statements were based in large part on the overall investigation rather
than her personal observations,” and therefore failed to meet the requirement of Federal Rule of
Evidence 602 that testimony be based on a witness’ personal knowledge; and (2) her testimony
constituted improper opinion testimony by a lay witness under Federal Rule of Evidence 701 as it
was neither based on her own perceptions nor “helpful to the jury.” Id. at 357-58.3
The circumstances addressed by the First Circuit in Vasquez-Rivera differ from those of
the instant case in significant respects. As the First Circuit explained, SA Segarra’s testimony
addressed the ultimate issue before the jury: whether the conduct the government observed
on its end of the computer screen could be imputed to Vázquez. Because the government
agents conducting the investigation that led to Vázquez's arrest did not directly observe the
individual 	chatting 	with 	[SA] 	Segarra, 	Vázquez's 	fate 	depended 	on 	whether 	the
government could prove to the jury beyond a reasonable doubt that the evidence it had
against him—most of which was circumstantial in nature—placed him at the other end of
these online conversations.
Id. at 357 (emphasis added). Further, although she played an important role in the investigation,
SA Segarra “never personally observed Vázquez chatting on the seized computers . . . nor, for
example, was her testimony based on surveillance of the premises that would place Vázquez inside
the residence with the computer at the time the chats occurred.” Id. at 358. In fact, the only
3 Federal Rule of Evidence 602 states, in pertinent part: “A witness may testify to a matter only if
evidence is introduced sufficient to support a finding that the witness has personal knowledge of
the matter.” Federal Rule of Evidence 701—which relates to opinion testimony by lay witnesses—
establishes that “testimony in the form of an opinion is limited to one that is: (a) rationally based
on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to
determining a fact in issue; and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.”
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opportunity SA Segarra had to physically observe the individual she interacted with online was
through the webcam video. Id. SA Segarra was unable to “see the man’s face, hear the man speak,
or otherwise observe distinguishing marks on the man’s body” in that video. Id. The First Circuit
concluded that, given SA Segarra’s limited opportunity for personal observation, her “purported
identification was largely based on other evidence [from the investigation] that could not support
such an identification based on personal knowledge.” Id.
In contrast, the proffered evidence here and the record from the last trial indicate that SA
Gaumond’s ability to identify Defendant is based on his personal observations—specifically, his
observation of Defendant on the beach on December 15, 2014. The DEA report Defendant attached
to his Motion indicates that SA Gaumond observed two individuals on Chenay Beach, and that SA
Gaumond took photographs of the two individuals. (Dkt. No. 1180-1 at 8). Although the report
lists one of these individuals as an “unidentified male,” id., this does not negate the fact that SA
Gaumond personally observed the individual. During the first trial, SA Gaumond testified that he
described Defendant as an “unidentified male” in the report because he was not sure of the
individual’s identity at the time he was performing surveillance. (Dkt. No. 1180-4 at 3). This is no
different from an eyewitness who observes a suspect and later identifies that individual based on
the earlier observation, although at the time of the observation the eyewitness had no knowledge
of the suspect’s identity.
In short, Defendant has not established that SA Gaumond did not personally observe
Defendant such that he would be unable to identify Defendant at trial—as was the case in Vazquez-
Rivera. 	The 	Court 	will 	therefore 	deny 	Defendant’s 	request 	to 	preclude 	SA 	Gaumond’s
identification of Defendant under Federal Rule of Evidence 602.
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The Court further concludes that SA Gaumond’s identification of Defendant should not be
precluded under Federal Rule of Evidence 701. As noted above, Rule 701 addresses the
admissibility of opinion testimony by lay witnesses, and allows for the admission of such
testimony where it is “(a) rationally based on the witness's perception; (b) helpful to clearly
understanding the witness's testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.” FED. R. EVID.
701. The Third Circuit has recognized that the purpose of the rule is “to protect against testimony
that usurps the jury’s role as fact finder.” United States v. Fulton, 837 F.3d 281, 291 (3d Cir. 2016).
It accomplishes this objective by allowing a lay witness “to give her opinion or interpretation of
an event [only] when she has some personal knowledge of that incident,” and where that testimony
is helpful in that “it aids or clarifies an issue that the jury would not otherwise be competent to
understand.’” Id. at 290, 292 (quoting Lauria v. Nat'l R.R. Passenger Corp., 145 F.3d 593, 600 (3d
Cir. 1998)).
Under certain circumstances, identification testimony by an officer may be inadmissible
under Rule 701. Issues most often arise where a testifying officer provides an opinion with respect
to whether a defendant is an individual depicted in a surveillance photograph or video. For
example, in United States v. Fulton, 837 F.3d 281 (3d Cir. 2016), the prosecution elicited testimony
from two agents who concluded—based on their comparisons of the physical characteristics of a
bank robber depicted in a surveillance video and those of the defendant—that the defendant was
in fact the bank robber captured on the surveillance video. Id. at 297. The Third Circuit held that
this opinion testimony by the agents failed Rule 701(b)’s “helpfulness requirement,” as “the agents
were no better equipped than the jurors” to compare the physical appearance of the individual in
the surveillance video to that of the defendant. Id. at 297, 299. With respect to opinion testimony
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by an agent identifying a defendant as the person depicted in a surveillance photograph or video,
the Fulton court explained:
Lay opinion testimony that aids in the identification of suspects “is particularly valuable
where . . . the lay witnesses are able to make the challenged identifications based on their
familiarity with characteristics of the defendant not immediately observable by the jury at
trial.” In other words, “lay witness testimony is permissible where the witness has had
sufficient contact with the defendant to achieve a level of familiarity that renders the lay
opinion helpful.”
Id. at 297 (quoting United States v. Langford, 802 F.2d 1176, 1179 (9th Cir. 1986); United States
v. Beck, 418 F.3d 1008, 1014 (9th Cir. 2005)) (emphasis removed). The Third Circuit concluded
that there was no evidence to suggest that the agents in Fulton had “sufficient familiarity” with the
defendant’s appearance to assist the jury in determining whether the defendant was the individual
depicted in the surveillance video. Id. at 299. As such, their “testimony performed exactly the
function Rule 701 is designed to prevent. They assumed the role of juror in comparing photographs
of [suspects] to the surveillance footage and concluding [that the defendant] looked more like the
robber than [another suspect].” Id.
A different scenario is presented in the instant case. This is not a situation in which an agent
offers an opinion about a defendant’s identity by comparing the physical characteristics of a
defendant to those of an individual depicted in a photograph. Rather, the proffered evidence is that
SA Gaumond personally observed an individual on the beach, whom he photographed. SA
Gaumond is able to identify that individual as Defendant based on his earlier personal observation.
The Government is not precluded from eliciting testimony from SA Gaumond identifying
Defendant as the individual who he personally observed on the beach. Again, this is akin to typical
eyewitness testimony, augmented by a surveillance photograph.
Although eyewitness testimony is “opinion” testimony, it is generally admissible, and is
then subject to attack by the opposing party on cross-examination. See United States v. Barber,
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442 F.2d 517, 527 (3d. Cir. 1971) (“Eye-witness identification testimony . . . is an expression of a
belief or impression by the witness. . . . [W]here the circumstances surrounding the criminal act
gave limited opportunity for observation or utilization of other sensory perception, or where
uncertainty is expressed by the witness himself, or exposed by a past history of the witness’
statements or demonstrated by cross-examination, the statement of identity should be considered
as only an expression of opinion and should be accompanied by appropriate instructions as to its
sufficiency and weight. To be sure, the courts have been generous in the admission of eye-witness
identification in order to permit the jury to make its own assessment. The emphasis has been on
inclusion of evidence, rather than exclusion; on credibility, rather than admissibility.”) (footnotes
omitted); United States v. Flenory, 619 F.2d 301, 305 (3d Cir. 1980) (“[H]aving found that there
is an independent basis for the[ witnesses’] in-court identifications, the court must admit them
subject to no precondition other than testimony as to the physical facts establishing their
opportunity to observe. All else goes to weight, not admissibility.”).
The proffered testimony is both rationally based on SA Gaumond’s perceptions while
conducting surveillance, and is helpful to the jury members who were not present on the beach
that day. It therefore meets the requirements of Rule 701, and will not be excluded as improper
opinion testimony.4
III. 	CONCLUSION
Based on the arguments presented and the record before the Court, Rules 602 and 701 of
the Federal Rules of Evidence do not preclude SA Gaumond’s in-court identification of Defendant
4 There is no contention that SA Gaumond’s testimony is based on scientific, technical, or other
specialized knowledge such that it would fail to comply with the requirements of Rule 701(c).
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as the individual who SA Gaumond personally observed while conducting surveillance on
December 15, 2014.5 Accordingly, Defendant’ Motion in Limine will be denied.
ORDER
UPON CONSIDERATION of the foregoing, it is hereby
ORDERED that Defendant Jean Carlos Vega-Arizmendi’s Motion in Limine to Preclude
Agent Brian Gaumond from Identifying Jean Carlos Vega-Arizmendi at Trial (Dkt. No. 1180) is
DENIED.
SO ORDERED.
Date: March 9, 2018 	_______/s/_______
WILMA A. LEWIS
Chief Judge
5 The Court’s ruling in this regard does not prevent Defendant from making objections at trial, as
he deems appropriate, to the introduction of evidence that departs from the bases for this ruling.
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