U.S. v. Mckenzie

Decision Date08 April 2011
Docket NumberNo. CR 08–1669 JB.,CR 08–1669 JB.
Citation779 F.Supp.2d 1257
PartiesUNITED STATES of America, Plaintiff,v.Richard Anthony McKENZIE, Defendant.
CourtU.S. District Court — District of New Mexico


Robert R. Cooper, Albuquerque, NM, for Defendant.Damon P. Martinez, U.S. Attorney's Office, District of New Mexico, Samuel A. Hurtado, United States Attorney's Office–District of NM, Albuquerque, NM, for Plaintiff.


JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the United States' Motion in Limine to Prohibit Defendant from Raising Confidential Source/PNR Issue, and to Further Prohibit Proposed Defense Witnesses Testimony at Trial, filed March 28, 2011 (Doc. 121)(“Motion”). The Court held a hearing on April 1, 2011. The primary issues are: (i) whether the Court should enter an order in limine to prohibit Defendant Richard Anthony McKenzie from raising the issue of the confidential source that supplied his passenger named report (“PNR”) to Drug Enforcement Agency (“DEA”) Special Agent Mark D. Hyland at trial; (ii) whether the court should prohibit four witnesses that McKenzie has listed from testifying at trial; and (iii) whether the Court should permit McKenzie to examine witnesses if he is dissatisfied with his counsel's examination. Because the Court has held that the source of McKenzie's PNR is irrelevant to the issues before the Court, because the source is irrelevant to the issues remaining for trial, and because the Court has held that Hyland did not illegally obtain McKenzie's PNR, the Court grants the Plaintiff United States of America's request for an order prohibiting McKenzie from introducing evidence or calling witnesses regarding the confidential informant and the PNR. The Court will, however, allow McKenzie to test Hyland's credibility with his prior testimony. The Court will not order, at this time, that McKenzie is allowed to examine witnesses if he unsatisfied with his counsel's performance, without prejudice to McKenzie renewing his request at trial if he cannot get his counsel to ask questions that he wants asked and that the Court has not clearly precluded.


On July 7, 2008, McKenzie was found in possession of 3.45 gross kilograms of a white powder that tested positive for cocaine and arrested by DEA agents in Albuquerque, New Mexico train station. The Court previously made factual findings in this matter. See Memorandum Opinion and Order, 2010 WL 1795173, filed April 13, 2010 (Doc. 70)(April 13, 2010 MOO); Memorandum Opinion and Order, 2011 WL 831218, filed February 10, 2011 (Doc. 116) (February 10, 2011 MOO)(incorporating and expanding on the findings in the April 13, 2010 MOO). The Court incorporates those findings by reference. The Court will not restate the facts here.


McKenzie is charged by Indictment with one count of possession with intent to distribute 500 grams of a substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). On May 14, 2009, McKenzie filed a motion to suppress all evidence found as a result of what he considers to be an illegal search. See Motion to Suppress Evidence with Supporting Authorities, filed May 14, 2009 (Doc. 32). McKenzie asserted that his encounter with Hyland was not consensual, but was an investigative stop. The Court relied upon testimony from Hyland at the hearing in denying McKenzie's requested relief. The Court, after hearing testimony at two separate hearings, denied the motion to suppress, ruling that the encounter was consensual and that McKenzie had given the agent consent to search his luggage where the cocaine was found. See April 13, 2010 MOO at 29.

On May 17, 2010, McKenzie filed his Opposed Motion to Continue Trial Setting; Request for Frank's [sic] Hearing; and Request to Reopen Suppression Motion Hearing, filed May 17, 2010 (Doc. 76)(“ Franks Motion”), requesting the Court to conduct a Franks1 hearing, re-open its suppression hearing, and, presumably, re-consider its April 13, 2010 ruling. McKenzie contended that the Court “may need to ... conduct[ ] a Franks hearing to determine if Hyland provided false or misleading information to the Magistrate Judge who issued the warrant to search the cereal boxes in McKenzie's luggage. McKenzie further contended that, even if the Court determined that a Franks hearing is not necessary, McKenzie's testimony regarding how the DEA received the PNR is relevant to the determination whether the initial contact with McKenzie was an investigative stop or a consensual encounter. At the hearing on McKenzie's Franks motion, the Plaintiff United States of America again proposed that the Court conduct an in camera interview of DEA Agent Jarrell Perry—who is knowledgeable about how the DEA obtained information from AmTrak. McKenzie's counsel did not object to the Court's in camera review. See Transcript of Hearing at 27:17–23 (taken December 1, 2010)(Court, Cooper) (December 1, 2010 Tr.)(“I don't object to and [sic] in camera review of this individual or probably better still by somebody from Amtrak....”).2 The United States and the Court then examined Perry about the AmTrak ticket agent in camera, outside of McKenzie's and his counsel's presence. Perry testified that, after proceedings against McKenzie commenced, Perry contacted the person who is most likely the confidential source, and the person most likely to be able to determine who is the confidential source if not this person, and that person is unable to recall details regarding the specific facsimile transmission of McKenzie's PNR. See December 1, 2010 Tr. at 51:16–52:2, 52:18–25, 54:9–15 (Martinez, Perry); id. at 56:6–10 (Court, Perry). On February 20, 2011, the Court denied McKenzie's Franks Motion. See Memorandum Opinion and Order, filed February 20, 2011 (Doc. 116)(February 20, 2011 MOO).

On March 30, 2011, McKenzie filed his Motion to Suppress Evidence Based on Illegal Seizure of Passenger Named Report PNR and to Reconsider, in Part, Factual Findings Relating to the Seizure of the PNR, filed (Doc. 124)(Motion to Suppress). McKenzie asserted that the Court should suppress evidence against him based on the allegedly illegal seizure of his PNR. Because McKenzie presented no new factual allegation or legal authority that undermines the Court's decision, and because the Tenth Circuit has held that Amtrak's disclosure of a passenger's PNR to the DEA does not violate the passenger's Fourth Amendment rights, the Court denied McKenzie's Motion to Suppress. See Memorandum Opinion and Order, filed April 8, 2011 (Doc. 132)(April 8, 2011 MOO).

The United States moves the Court for an order in limine prohibiting McKenzie from raising the issue of the confidential source that supplied his PNR to Hyland at trial and the topic of the PNR, and further prohibiting McKenzie from putting on three witnesses—Gary Chester, Carlos Herrera, and John Claiborne—who will testify about these matters. On March 30, 2011, McKenzie filed his Response to United States' Motion in Limine to Prohibit Defendant from Raising Confidential Source/PNR Issue and to Further Prohibit Proposed Defense Witnesses at Trial, in which he opposes the Motion. See Doc. 125 (“Response”). McKenzie contends that he should be permitted to call witnesses in support of his contention that the Court should suppress his PNR.

At the April 1, 2011 hearing, McKenzie noted that he also intended to call DEA Agent Perry to testify about the confidential source/PNR issue. McKenzie represented that he wanted to litigate the confidential source/PNR issue, and that Chester, Herrera, Claiborne, and Perry would testify about that issue. He further represented that Chester might provide some historical and background information, and that “all of these witnesses are PNR type witnesses and possibly witnesses who can bring some light with regard to the credibility of Agent Hyland.” Transcript of Hearing at 6:5–18 (taken April 1, 2011)(“Tr.”) (Court, Cooper). The United States stated that it intended not to introduce evidence regarding Hyland's investigation before he arrived at the train station. See Tr. at 7:12–20 (Martinez)(“At trial, the United States is going to provide evidence that Agent Hyland walked up to the defendant at the train station and started speaking to him.”). The United States also asserted that it was unnecessary to have the witnesses testify about Hyland's credibility, because his prior sworn statements are admissible, and could be used to impeach him. See Tr. 10:10–15. At the hearing, McKenzie requested that, if he is unsatisfied with his counsel's examination of witnesses, he be permitted to examine witnesses.


The United States argues that, because the Court has denied McKenzie's repeated requests that it suppress the evidence against him, and because the confidential source/PNR issue is irrelevant to the matters that will be submitted to the jury—whether McKenzie possessed a controlled substance with the intent to distribute—the Court should enter an order in limine prohibiting McKenzie from raising these issues at trial. The United States further contends that the Court should prohibit McKenzie from putting on Chester, Herrera, Claiborne, and Perry, who were not present at the train station when McKenzie was arrested, and whose only involvement in this matter appears to relate to the confidential source/PNR issue.

McKenzie responds that the Court should deny the Motion. McKenzie argues that he has filed a motion to suppress, and he submits that the witnesses on his witness list can substantiate his contention that the PNR was illegally seized in violation of the Fourth Amendment. McKenzie also asserts that he should therefore be permitted to call these witnesses to impeach Hyland.

The Court has denied McKenzie's Motion to Suppress. The Court has found that McKenzie's arguments regarding the confidential source/PNR issue are without a sound...

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  • Sec. & Exch. Comm'n v. Goldstone, CIV 12-0257 JB/LFG
    • United States
    • U.S. District Court — District of New Mexico
    • June 9, 2016
    ...of a witness's inconsistent past testimony to be introduced for purposes of impeaching that witness.See United States v. McKenzie, 779 F. Supp. 2d 1257, 1266 (D.N.M. 2011)(Browning, J.), aff'd 532 F. App'x 793 (10th Cir. 2013). Accordingly, the Court will allow the SEC to present evidence o......
  • U.S. v. Mckenzie, CR 08–1669 JB.
    • United States
    • U.S. District Court — District of New Mexico
    • April 8, 2011
    ... ... Motion 9, at 2. McKenzie again presents no new evidence or authority for the Court to reconsider its February 10, 2011 MOO. First, Hyland's testimony was not inconsistent. At the August 20, 2009, Hyland testified on examination by McKenzie's counsel at the time: A. [The PNR] was sent to us. Q. Sent to you by AmTrak? A. Yes. Q. And when you say it was sent to you, could you tell the Court, was it sent to you but e-mail? Was it faxed to was it hand delivered to you how exactly was it delivered to you? A. Fax, it was fax ... Q. And so ... someone at AmTrak is reviewing the passenger ... ...
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    • December 15, 2015
    ...in its experience finds the most compelling — is the potential for juror confusion. See id.; see also, e.g., United States v. McKenzie, 779 F. Supp. 2d 1257, 1272 (D.N.M. 2011); United States v. Persico, 447 F. Supp. 2d 213, 220 (E.D.N.Y. 2006). Watts argues that the potential for juror con......
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