United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

 v.

MARK GUINN,

Defendant. /

No. CR 09-0414 SI

FINAL PRETRIAL SCHEDULING

ORDER

On April 21, 2010, the Court held a final pretrial conference in the above captioned matter,

which is set for jury trial beginning May 3, 2010. All parties were represented by counsel. The

following matters were resolved:

1. Trial schedule: The parties expect that the case will take 7 days to complete. The Court

does not hear trials on Fridays (although deliberating juries may continue their deliberations on Friday).

The trial day runs from 8:30 a.m. until 3:30 p.m., with a 15 minute break at 10:00 a.m., a 30 minute

break at noon, and a 15 minute break at 2:00 p.m., all times approximate.

2. Number of jurors and challenges: There shall be a jury of twelve members, plus 2

alternate jurors. The government shall have six peremptory challenges, the defendant shall have ten

peremptory challenges, and each side shall have one additional peremptory challenge for the alternates.

3. Voir dire: The court will conduct general voir dire, and counsel for each side shall have

up to 20 minutes total to question the panel. 

4. Jury instructions: The Court received proposed jury instructions from the parties.

Case 3:09-cr-00414-SI Document 61 Filed 04/21/10 Page 1 of 4
United States District Court

For the Northern District of California

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Instructions will be finalized at an instruction conference prior to closing arguments. 

5. Trial exhibits: No later than April 30, 2010, the parties shall submit their trial exhibits,

in binders with numbered tabs separating and identifying each exhibit. The court shall be provided with

three sets (for the court, the file and the witness) and each side shall provide one set for the other side.

6. Motions in limine: 

Government’s motions in limine

No. 1: Motion to admit evidence of uncharged acts: The government seeks to admit evidence

of other dumps in which defendant was involved on two alternate grounds: first, that the uncharged acts

are part of the charged conspiracy; and second, to show knowledge, intent, and absence of mistake under

FRE 404(b). GRANTED, without prejudice to specific objections to specific questions at time of trial.

No. 2: Motion to exclude defendant’s out of court statements: The government moves to

preclude the defense from introducing any out-of-court statements made by defendant on the ground

such statements would be inadmissible hearsay. The government argues that even if defendant testifies

and is subject to cross-examination, out-of-court statements he has made to friends, coworkers, or agents

will not be admissible under the prior consistent statement exemption to the hearsay rule. See FRE

801(d)(1)(B). The government does not specify the specific statements, or areas, it seeks to exclude

with this motion, and the Court cannot presently assess the validity of the objection. The motion is

DENIED as overbroad, without prejudice to specific objections to specific questions at time of trial. 

No. 3: Motion to prohibit reference to sympathy, punishment, and related civil suits;

preclude argument that this case should be civil rather than criminal; exclude witnesses from the

courtroom; exclude defense expert; and for reciprocal discovery: Defendant is precluded from

eliciting testimony concerning or referring to punishment this defendant may receive for these offenses;

and from arguing to the jury that this case should have been treated as a civil rather than a criminal

violation. In cross-examining witnesses who have not been charged in this case, defendant may not

discuss any specific sentence that potential charges might carry absent specific permission to do so. 

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Witnesses will be excluded as requested, and defendant confirms that he does not intend to call an

expert witness. Otherwise, generally DENIED as overbroad, without prejudice to specific objections

to specific questions at time of trial. 

No. 4: Motion to exclude reference to criminal records to impeach government witnesses:

The government moves to exclude any reference to the prior criminal convictions and arrests of

government witnesses Larry Barela, Landon Connorton, Cory Buckhalter, Dane Backman, and Brian

Cosgrove. Under FRE 609, evidence of a prior conviction may be admitted for the purpose of attacking

a witness’s character for truthfulness if the conviction is either: (1) a felony conviction or (2) a

misdemeanor conviction “if it readily can be determined that establishing the elements of the crime

required proof or admission of an act of dishonesty or false statement by the witness.” FRE 609(a). To

be admissible under this rule, a conviction must not be more than ten years old, unless the court

“determines, in the interests of justice, that the probative value of the conviction supported by specific

facts and circumstances substantially outweighs its prejudicial effect.” FRE 609(b). 

--Witness Barela has two felony convictions for lewd and lascivious acts with a minor,

from 1987 and 1995. Although they are old and therefore of attenuated probative value, they may also

subject Barela to lifetime sex offender registration requirements and enhanced penalty for any new

criminal offenses. Barela also has a 1995 misdemeanor conviction for possession of a controlled

substance. These factors could become germane for impeachment purposes at trial. As to Barela, ruling

on the motion is DEFERRED to time of trial; neither party shall mention these convictions without first

seeking leave of court.

--Witness Connorton has a misdemeanor conviction for obstructing a police officer and

citations for carrying an open container of alcohol, underage possession of alcohol, and possession of

false identification. The conviction and citations stem from a 2001 incident in which Connorton, then

19 years old, was approached by police officers for walking with an open container of beer. Connorton

apparently ran away, then, when captured, told police that his name was Jared Belland and showed them

a fake ID with the same name. Once police told him that lying would result in further obstruction

charges, Connorton admitted his real name The conviction itself is not admissible because the elements

of obstruction do not require dishonest conduct; to that extent the motion is GRANTED. The

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United States District Court

For the Northern District of California

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government further argues that defendant should not be permitted to inquire about the circumstances

surrounding the arrest. Under FRE 608(b), however, specific instances of conduct that go to

untruthfulness may be inquired into on cross. The conduct of the offense is minor and temporary, and

neither particularly prejudicial nor particularly probative of current untruthfulness. Under these

circumstances, the motion is DENIED, without prejudice to specific objections to specific questions at

time of trial.

--Witness Buckhalter has a 2009 misdemeanor conviction for negligent driving. Witness

Backman has a 1999 arrest for DUI that was later dismissed. Witness Cosgrove has a 1993 felony

conviction for controlled substance possession which was dismissed in 1999. As to these, the

government’s motion is GRANTED, unless defendant seeks and receives permission to make such

inquiry during cross-examination, based on the witness’ trial testimony.

Defendant’s motion in limine: Defendant seeks to exclude two statements he made during his

interview with government agents on July 30, 2008, concerning what others had said to him. This

motion is DEFERRED to time of trial, when these objections may be made in context. Defendant also

seeks to exclude or modify the following statement made during the August 18, 2008 interview: When

asked why he had highlighted certain barge loads on a Summary Log he produced at the interview,

defendant stated that when the government began its investigation, his attorney had asked him to try to

figure out which loads had been dumped. Defendant’s primary objection is to the attribution of the

direction to defendant’s attorney. The government’s primary concern is that it be clear that defendant

prepared the highlights himself, not at the direction of the government or its agents. It is ordered that

the statement may be admitted, but must be modified to omit attribution to the attorney.

7. Other matters: The Court will read at least one substantive Clean Water Act instruction to

the jury during the preliminary jury instructions, and the parties will prepare a joint Statement of the

Claims to be read at the same time. The indictment will not be provided to the jury.

IT IS SO ORDERED.

Dated: April 21, 2010 _____________________________

SUSAN ILLSTON

United States District Judge

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