United States v. Ballou
| Decision Date | 16 October 2014 |
| Docket Number | No. CR 14–2579 JB.,CR 14–2579 JB. |
| Citation | 59 F.Supp.3d 1038 |
| Parties | UNITED STATES of America, Plaintiff, v. Gary BALLOU, Defendant. |
| Court | U.S. District Court — District of New Mexico |
Damon P. Martinez, United States Attorney, Norman Cairns, Assistant United States Attorney, United States Attorney's Office, Albuquerque, NM, for the Plaintiff.
Brock Benjamin, Benjamin Law Firm, El Paso, TX, for the Defendant.
THIS MATTER comes before the Court on: (i) the Government's Motion in Limine Regarding Prior Acts of the Victim, filed October 2, 2014 (Doc. 22) (“First MIL”); (ii) the Government's Second Motion in Limine and Objections to Defendant's Proposed Exhibits, filed October 9, 2014 (Doc. 35)(“Second MIL”); and (iii) the Government's Third Motion in Limine, filed October 9, 2014 (Doc. 36)(“Third MIL”). The Court held a hearing on October 9, 2014. The primary issues are: (i) whether Defendant Gary Ballou may introduce evidence of prior altercations between the alleged victim, Harry Jaquez, and employees of the Raymond G. Murray Veterans Affairs Medical Center in Albuquerque, New Mexico (“VA Hospital”); and (ii) whether Ballou may admit into evidence various other documents and video excerpts that Plaintiff United States of America has sought to exclude. The Court will allow Ballou to elicit testimony—but not to admit documents—regarding Jaquez' three prior altercations with VA Hospital staff, because the evidence is admissible for proper purposes under rule 404(b) of the Federal Rules of Evidence —namely, to show Ballou's state of mind in support of a defense of self-defense, and to show Jaquez' intent, motive, plan, absence of mistake, and modus operandi. The Court will, however, exclude on hearsay grounds most of the documents that the United States seeks to bar, except for those that can be validly used for purposes other than the truth of their assertions—namely, a contract form that Jaquez refused to sign and portions of a letter the VA Hospital wrote to Jaquez, placing severe restrictions on his movements in and around the VA Hospital. Last, the Court will exclude Jaquez' judgment of conviction on a 2009 misdemeanor battery and admit excerpts of a video of the parking lot in which the incident occurred.
The Court takes its facts—for background purposes only, as Ballou is obviously presumed innocent until proven guilty at trial—primarily from the Criminal Complaint, filed July 21, 2014 (Doc. 1)(“Complaint”). Around 4:10 p.m. on July 18, 2014, Justin Pillera, a federal police officer with the Department of Veteran Affairs Police, received a call on his radio that a VA Hospital employee was attacking a patient in the VA Hospital's parking lot C. See Complaint at 1–2. Pillera arrived at parking lot C and, seeing nothing, drove to parking lot D, where a group of bystanders had congregated. See Complaint at 2. A bystander directed Pillera to Ballou, who, in turn, told Pillera that Jaquez had attacked Ballou. See Complaint at 2. Ballou is a nurse in the dialysis unit of the VA Hospital. See Government's Reply to the Defendant's Response to the Government's Motion in Limine Regarding Prior Acts of the Victim at 2, filed October 8, 2014 (Doc. 30)(“Reply”).
Ballou told Pillera that Jaquez “ ‘came up [to him] and just started punching [him] in the neck and [he] tried to get away.’ ” Complaint at 2 (quoting Ballou). Ballou stated that he had been attempting to walk to his vehicle, but that Jaquez had driven his car behind Ballou's vehicle and used it to block his vehicle. See Complaint at 3. Ballou told Pillera that Jaquez continued to yell and threaten Ballou as Jaquez exited his vehicle, that Jaquez struck Ballou with his fist, that Ballou blocked Jaquez' strikes, and that Jaquez began to kick Ballou. See Complaint at 3.
Jaquez, on the other hand, told Pillera that, after he was escorted to his car—Jaquez is apparently routinely escorted to his car after his medical appointments because of VA Hospital regulations—he drove out of the parking lot and was confronted by Ballou, who saw him and began to yell, curse, and direct a vulgar finger gesture at Jaquez. See Complaint at 3. Jaquez relayed that he turned into parking lot D to inquire what Ballou wanted and to let vehicles behind him pass, but he later stated he turned into the parking lot to avoid hitting Ballou. See Complaint at 3. Jaquez stated that Ballou began to chase him, and, once he caught up to Jaquez, he began to hit Jaquez' vehicle. See Complaint at 3. Jaquez stated that he rolled down his window, and that Ballou hit Jaquez in the face with his backpack and broke Jaquez' glasses. See Complaint at 3. Jaquez relayed that Ballou continued to hit his car and that Jaquez exited his vehicle, because he was angry and wanted Ballou to stop hitting his car. See Complaint at 3. Jaquez stated that, as he exited the vehicle on the driver's side, Ballou trapped him between his door and the car by pushing on the door. See Complaint at 3. Jaquez relayed that Ballou repeatedly pushed and pulled the door rapidly, using the door to strike his body and left leg. See Complaint at 3. Jaquez conveyed that bystanders instructed Ballou to stop and that they were calling the police. SeeComplaint at 3. Heeding their warnings, Ballou stopped. See Complaint at 3.
After talking to Ballou and Jaquez, Pillera talked to three witnesses to the incident: Diane Meitzler, William Talley, and Carla Dunkelberger, all of whom are VA Hospital employees. See Complaint at 3. All three accounts were consistent with Ballou approaching Jaquez' vehicle, yelling “ ‘[c]ome on faggot, you fuckin faggot,’ ” or something very similar, and then instigating physical violence against Jaquez. Complaint at 4 (quoting witness quoting Ballou). All three witnesses described Ballou as the initial physical aggressor—slamming the door into Jaquez' chest—but noted that Jaquez responded by attempting to kick Ballou. See Complaint at 3–4.
Based on the witness' reports, Pillera arrested Ballou. See Complaint at 4. Jaquez reported that his left eye and his back were in pain, and that he had sustained injuries to his left arm and his hands. See Complaint at 5. Pillera verified that “Jaquez's left eye appeared to be red and the facial area around his eye was swelling and bruised”; he “also found bruising and swelling on the top of both of his hands and also on his left arm[, but] did not find any marks or scratches on his legs or any other parts of his body.” Complaint at 5. Jaquez declined medical treatment. See Complaint at 5.
The United States charged Ballou by information,1 charging him with “[a]ssault by striking, beating, or wounding” another person “within the special maritime and territorial jurisdiction of the United States,” a class A misdemeanor punishable by “a fine ... or imprisonment for not more than 1 year, or both.” 18 U.S.C. § 113(a)(4). See Second Amended Information at 1, filed August 4, 2014 (Doc. 12).2 The case is set for jury trial on October 15, 2014, and the United States has filed three motions in limine asking the Court to impose restrictions on the evidence that Ballou can introduce at trial.
The First MIL seeks to bar Ballou from introducing evidence of an August 28, 2013, encounter between Jaquez and another VA Hospital employee, Paul Mirabal.
See First MIL at 2. On this occasion, Mirabal “called Albuquerque police to complain that ... Jaquez was following him in a car and had attempted to crash into him.” First MIL at 2. Jaquez denied these allegations. See First MIL at 2. The United States' argument is straightforward: although, under rule 404(a)(2), Ballou can introduce character evidence against Jaquez, rule 405 provides that such evidence must come in the form of opinion or reputation testimony, and not by specific instances of conduct. See First MIL at 2–4 (citing Fed.R.Evid. 404(a)(2)(B), 405 ). The United States argues that the Jaquez–Mirabal incident is a “specific instance[ ] of conduct” that rule 405(b) bars, and that the Court should exclude the evidence. See First MIL at 2–4.
Ballou responded to the First MIL within the week. See Defendant Gary Ballou's Response Regarding Prior Acts of the Victim and Motion in Limine Regarding Other Acts, filed October 6, 2014 (Doc. 26)(“Response”).3 Ballou's counterargument is equally straightforward: he essentially concedes that the Jaquez–Mirabal incident is not—pursuant to rule 405 —a proper form of character evidence under rule 404(a)(2). See Response at 2–3. Rather, Ballou contends that the Jaquez–Mirabal incident is not character evidence at all, but evidence of Jaquez' plan, motive, or absence of mistake in entering the employee parking lot. See Response at 3–5. Ballou says that Jaquez will likely argue at trial that “he was there ‘to get off the road and ... get away from [Ballou, but t]his does not make sense.’ ” Response at 4. Ballou argues that the Court should admit evidence of the Jaquez–Mirabal incident to show that Jaquez “had a motive and plan to attack Ballou for the third time,” and that that there was “absence of mistake as to [Jaquez] being in the employee parking lot,” which “lead[s] to only one conclusion,” which was that Jaquez was looking to start a fight. Response at 4.
Ballou attached numerous exhibits to his Response. See Response at 7–28. These include: (i) a letter from a VA Hospital administrator to Jaquez, dated May 18, 2012, responding to thirteen customer service complaints that Jaquez had apparently lodged with the VA Hospital, see Response at 7–9; (ii) a letter to Jaquez from the VA Hospital's chief of staff, dated August 1, 2012, in which the chief of staff notes that he believes Jaquez is “confrontational and threatening toward dialysis staff members,” Response at 10; (iii) a generic contract form outlining patients' obligations to appear on time, behave non-threateningly, et cetera, dated August 1, 2012, on which a would-be signatory,...
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