IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) CASE NO. 2:06-cr-200-WHA-CSC

)

ROSA RINCON )

)

)

UNITED STATES’ RESPONSE TO MOTION IN LIMINE

COMES NOW the United States of America, by and through its attorney, Leura G. Canary,

United States Attorney, and responds to Defendant/Movant Rosa Rincon’s Motion In Limine as

follows:

I. FACTUAL BACKGROUND 

1. On or about July 13, 2006, Defendant Rosa Rincon (“Rincon”) was a passenger in a truck

driven by her co-defendant Hector Silva (“Silva”). While traveling from Texas to Atlanta through

the Middle District of Alabama, the vehicle was stopped by an Alabama State Trooper for a traffic

violation. The traffic stop resulted in a search of the vehicle whereupon the officers discovered

approximately 10 (ten) kilograms of cocaine in a cabinet in the bed of the truck. 

2. Rincon and Silva were charged in a single indictment by a grand jury for the Middle

District of Alabama on August 15, 2006. (Doc. # 30.) The indictment alleges that the defendants

did knowingly and intentionally possess and possess with intent to distribute approximately 10 (ten)

kilograms of cocaine, a Schedule II Controlled Substance, in violation of 21 U.S.C. § 841(a)(1).

II. RINCON’S MOTION IN LIMINE

3. Rincon has filed a motion in limine regarding possible testimony as to her illegal presence

in the United States. (Doc. # 42.) The motion seeks to prevent the admission of any evidence as

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to her status. She submits that the evidence would be 

(1) irrelevant, and therefore excludable under F.R.E. 402; 

(2) to the extent that the evidence is relevant, it would be prejudicial and therefore excludable

under F.R.E. 403; and, 

(3) character evidence which does not fall within any exception, and therefore excludable

under F.R.E. 608. 

4. The United States seeks admission of Rincon’s illegal status as evidence of motive under

F.R.E. 404(b). That rule provides that “[E]vidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in conformity therewith. It may, however,

be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. . . . ” 

III. LEGAL STANDARD AND ANALYSIS

5. The United States Court of Appeals for the Eleventh Circuit has adopted a three-part test

for evaluating the admissibility of evidence of uncharged misconduct under Rule 404(b). “First, the

evidence must be relevant to an issue other than the defendant's character. Second, as part of the

relevance analysis, there must be sufficient proof so that a jury could find that the defendant

committed the extrinsic act. Third, the evidence must possess probative value that is not

substantially outweighed by its undue prejudice, and the evidence must meet the other requirements

of Rule 403.” United States v.Giordano, 261 F.3d 1134, 1140 (11th Cir. 2001) quoting United States

v. Miller, 959 F.2d 1535, 1538 (11th Cir.1992) (en banc). 

6. The evidence of Rincon’s illegal status is admissible if the United States “clearly

articulate[s] how that evidence fits into a chain of logical inferences without adverting to a mere

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propensity to commit crime now based on the commission of crime then.” United States v. Cruz,

326 F.3d 392, 395 (3rd Cir. 2003) quoting United States v. Mastrangelo, 172 F.3d 288, 295 (3d

Cir.1999). Rincon’s illegal status is relevant to demonstrating her limited ability to secure legal

employment, and consequently, her motivation to earn income that is usually undectectable by

government authorities. The evidence that Rincon had severely limited employment opportunities

is therefore probative of a material issue other than her character.

7. The second Rule 404(b) requirement for admissibility under F.R.E. 402, i.e., relevance,

is met here because the evidence would be offered to show as an illegal alien Rincon needed a

clandestine means to earn money, that was not subject to detection by government authorities. 

8. The probative value of the evidence is not outweighed by the potential for prejudice in

this instance. The public is well aware that it interacts with illegal aliens on a regular basis, and that

most are hardworking people who are law-abiding, and devoted to improving their own lives and

those of their families. The evidence of Rincon’s status passes the balancing test in F.R.E. 403, and

therefore meets the third requirement of admission under Rule 404(b). 

9. As a final consideration, the United States Supreme Court has approved the use of a

limiting instruction for the jury to consider F.R.E. 404(b) evidence only for the limited purposes for

which it is admitted. Huddleston v. United States, 485 U.S. 681, 692, 108 S.Ct. 1496, 1502 (1988).

As an extra precaution against prejudice to Rincon, this Court could caution the jury that evidence

of her illegal status was admitted solely to show that her lawful employment options were less,

therefore she might have an additional motive to engage in illegal activity to earn money. 

10. This Court should admit evidence of Rincon’sillegal alien status. Such evidence would

not be submitted to prejudice the jury against her, but merely to demonstrate that her need to earn

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undetectable income provided a motive for working as a drug courier. The United States has

submitted that the use of this evidence satisfies the requirements of F.R.E. 404(b) as set forth in

United States v.Giordano, id. 

III. CONCLUSION

For the above reasons, Rincon’s motion to exclude evidence of her status as an illegal alien

should be denied.

Respectfully submitted this 29th day of September, 2006.

Respectfully submitted,

 LEURA G. CANARY

UNITED STATES ATTORNEY

/s/ Terry F. Moorer

TERRY F. MOORER

Assistant United States Attorney

Post Office Box 197

Montgomery, Alabama 36101-0197

(334) 223-7280

(334) 223-7135 fax

terry.moorer@usdoj.gov

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) CASE NO. 2:06-cr-200-WHA-CSC

)

ROSA RINCON )

)

)

CERTIFICATE OF SERVICE

I hereby certify that on September 29, 2006, I electronicallyfiled the foregoing with the Clerk

of the Court using the CM/ECF system which will send notification of such filing to the following:

Jay Lewis.

Respectfully submitted,

 LEURA G. CANARY

UNITED STATES ATTORNEY

/s/ Terry F. Moorer

TERRY F. MOORER

Assistant United States Attorney

Post Office Box 197

Montgomery, Alabama 36101-0197

(334) 223-7280

(334) 223-7135 fax

terry.moorer@usdoj.gov

Case 2:06-cr-00200-WHA-CSC Document 58 Filed 09/29/2006 Page 5 of 5