report of October 30, 2000. The Government states that it has turned over all the requested
discovery and will continue to comply with its discovery obligations. Therefore, Alaya’s motion
is granted; and the Government is ordered to continue to comply by delivering any additional
material covered by this motion as it becomes known and available to the Government.

Favela’s Motion in Limine to Bar Part of the Testimony
of the Government's Expert at Retrial of this Case

Favela seeks to bar part of the testimony of Drug Enforcement Agency Special Agent
Nancy Evans. Specifically, Favela seeks to bar any testimony or argument regarding whether
Special Agent Evans may opine if people assisting in the transportation of marijuana know they
are transporting marijuana. Favela also seeks to bar the Government from arguing or inferring,
based on Special Agent Evans’s testimony, that Favela was recruited to participate in a drug
conspiracy because he was trusted.

Favela contends that these areas of testimony, argument, and inferences violate Federal
Rule of Evidence 704(b), which states that:

No expert witness testifying with respect to the mental state or condition of a

defendant in a criminal case may state an opinion or inference as to whether the

defendant did or did not have the mental state or condition constituting an element

of the crime charged or of a defense thereto. Such ultimate issues are matters for

the trier of fact alone.
Favela also contends these areas violate Federal Rule of Evidence 403, which provides that

relevant evidence “may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice... .”


compartment of the van; (3) Officer Roberto Guerra observed a female, whom he identified as
Alaya, return the van to a restaurant parking lot; and (4) pictures, which were taken on the day of
the marijuana delivery, identifying Alaya and the clothing she was wearing. Accordingly, when
viewed in the light most favorable to the Government, the Government presented evidence, from
which the jury could find guilt beyond a reasonable doubt, that Alaya joined with others with the
intent to distribute or possess marijuana and that Alaya knowingly participated in an agreement
to commit this unlawful act.
Alaya’s Motion to Bar Second Prosecution
Alaya contends that a retrial is barred by the Double Jeopardy Clause of the Fifth
Amendment of the United States Constitution that provides “nor shall any person be subject for
the same offence to be twice put in jeopardy of life or limb.” Improperly admitted evidence does
not bar a retrial on double jeopardy grounds. United States v. Rogers, 387 F.3d 925, 935 (7th
Cir. 2004). Because Alaya’s motion for a judgment of acquittal has been denied, jeopardy has
not attached; and her Motion to Bar Second Prosecution is denied.
Alaya’s Motion for Production of Documents and Other Tangible Items
Alaya also seeks an order requiring the Government to produce: (1) all tape-recorded
conversations and transcripts thereof the confidential informant had with Defendants in July
2000; (2) all reports and statements, written or oral, of all information the confidential informant
provided to any person regarding the description of all persons the confidential informant met
with or observed concerning the pick-up and delivery of marijuana in July 2000; and
(3) complete copies of the two photographic line-ups provided to the confidential informant by

Special Agent Moussiaux on October 25, 2000, as described in Special Agent Moussiaux’s


Evidence is excluded on a motion in limine only if the evidence is clearly inadmissible for
any purpose. Hawthorne Partners v. AT&T Tech., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993)

(Hawthorne).

This court has the power to exclude evidence in limine only when evidence is
clearly inadmissible on all potential grounds. . . . Unless evidence meets this high
standard, evidentiary rulings should be deferred until trial so that questions of
foundation, relevancy and potential prejudice may be resolved in proper
context. ... Denial of a motion in limine [in this order] does not necessarily mean
that all evidence contemplated by the motion will be admitted at trial. Denial
merely means that, without the context of trial, the court is unable to determine
whether the evidence in question should be excluded. The court will entertain
objections on individual proffers as they arise at trial, even though the proffer falls
within the scope of a denied motion in limine.
Hawthorne, 831 F. Supp. at 1400-01 (internal citations omitted). Accordingly, Favela’s motion
in limine is denied without prejudice to raise the same objections at the appropriate time during
trial. Failure to object during trial will be deemed a waiver of these objections.

Favela’s Motion to Reconsider the Denial of His Motion
to Suppress Identification of Officer Roberto Guerra

Lastly, Favela seeks reconsideration of the denial of his motion to suppress his
identification which was made by Officer Roberto Guerra. Favela argues that because
Officer Guerra’s testimony regarding the identification of Alaya was not credible, Officer
Guerra’s identification of Favela should also be subject to an evidentiary hearing. However, it
was stipulated between the parties that if called to testify, Officer Guerra would have testified
consistently with the report filed by Special Agent Moussiaux. (Tr., Jan. 20, 2004 at 6-7). Based
on this stipulation, Favela — while still preserving his objection to the ultimate conclusion drawn
from the facts — agreed that no evidentiary hearing was necessary to resolve the motion to

suppress. (Tr., Jan. 20, 2004 at 7). In contrast to Officer Guerra’s trial testimony regarding the


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

AURORA ALAYA

EASTERN DIVISION
UNITED STATES OF AMERICA )
)
Vv. ) No: 03 CR 732
)
EDUARDO FAVELA, JR. and ) Judge John W. Darrah
)

MEMORANDUM OPINION AND ORDER

The United States of America (the “Government”) brought a one-count indictment
against Defendants, Eduardo Favela, Jr. and Aurora Alaya, for conspiring to possess with intent
to distribute marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1). On April 1, 2004, after a
trial by jury, Defendants were found guilty. Defendant Alaya filed a post-trial motion
challenging the specific in-court identification of Alaya made at trial by Drug Enforcement
Agency Task Force Officer Roberto Guerra; and, in a Memorandum Opinion and Order dated
May 4, 2005, Defendants were granted a new trial.

Thereafter, Defendants filed a number of motions. Both Defendants seek a ruling on their
motions for judgment of acquittal. Also presently before the Court are: (1) Alaya’s Motion to
Bar Second Prosecution; (2) Alaya’s Motion for Production of Documents and Other Tangible
Items; (3) Favela’s Motion in Limine to Bar Part of the Testimony of the Government’s Expert at
Retrial of this Case; and (4) Favela’s Motion to Reconsider the Denial of His Motion to Suppress

Identification of Officer Roberto Guerra.



identification of Alaya, Officer Guerra’s trial testimony regarding the identification of Favela
was consistent with the report filed by Special Agent Moussiaux. Based on the above, Favela’s
motion to reconsider is denied.
CONCLUSION

For the foregoing reasons, Defendants’ Motions for Judgment of Acquittal are denied,
Alaya’s Motion to Bar Second Prosecution is denied, Alaya’s Motion for Production of
Documents and Other Tangible Items is granted, Favela’s Motion in Limine to Bar Part of the
Testimony of the Government’s Expert at Retrial of this Case is denied without prejudice to
reassert at the time of trial, and Favela’s Motion to Reconsider the Denial of His Motion to

Suppress Identification of Officer Roberto Guerra is denied.

Dae Aaylde-s 200 <7

’ DARRAH, Judge
Un d States District Court



ANALYSIS
Defendants’ Motion for Judgment of Acquittal

Motions for judgment of acquittal should only be granted when “the evidence is
insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). A defendant “faces a nearly
insurmountable hurdle [because courts] consider the evidence in the light most favorable to the
Government, defer to the credibility determination of the jury, and overturn a verdict only when
the record contains no evidence, regardless of how it is weighed, from which the jury could find
guilt beyond a reasonable doubt.” United States v. Blassingame, 197 F.3d 271, 284 (7th Cir.
1999) (quoting United States v. Moore, 115 F.3d 1348, 1363 (7th Cir. 1997). Thus, in viewing
the evidence in the light most favorable to the Government, if “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt,” a defendant’s motion
for judgment of acquittal should be denied. United States v. Benjamin, 116 F.3d 1204, 1206 (7th
Cir, 1997).

Under 21 U.S.C. § 841(a)(1), it is unlawful to knowingly “manufacture, distribute, or
dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”
Under 21 U.S.C. § 846, the penalties of § 841 are extended to those who conspire or attempt to
commit an offense under § 841. United States v. Patterson, 348 F.3d 218, 228 (7th Cir. 2003)
(Patterson). “A conspiracy under 21 U.S.C. § 846 requires that (1) two or more people agreed to
commit an unlawful act and (2) the defendant knowingly and intentionally joined in the
agreement. No overt act is required.” Patterson, 348 F.3d at 225 (citation omitted). To
demonstrate an agreement existed, the government may rely on inferences and circumstantial

evidence. Patterson, 348 F.3d at 225-26 (citations omitted).


Favela argues that there was insufficient evidence to sustain his conviction. However, at
trial, the Government introduced evidence consisting of: (1) Detective Fernando Carvajal’s
observation that a male Hispanic, who Detective Carvajal identified as Favela, was carrying
boxes of marijuana; (2) Officer Geoffrey Farr’s and Officer Jeff Werniak’s testimonies
identifying Favela as the driver of an sport utility vehicle which drove behind another automobile
that was transporting narcotics; and (3) Drug Enforcement Agency Special Agent Nancy Evans’s
testimony that marijuana traffickers use escort vehicles driven by trusted persons to follow
vehicles carrying narcotics. Based on the above, when viewed in the light most favorable to the
Government, the Government presented evidence, from which the jury could find guilt beyond a
reasonable doubt, that Favela joined with others with the intent to distribute or possess marijuana
and that Favela knowingly participated in an agreement to commit this unlawful act.

Alaya also argues that, without the suppressed identification of Alaya by Officer Guerra,
there was insufficient evidence to support her conviction. In support of this argument, Alaya
contends that the ruling for a new trial stated circumstantial evidence alone was not sufficient to
support a conviction. However, that statement was made in the context of considering a motion
for a new trial, which is governed by a different legal standard than a motion for judgment of
acquittal.

Even without the suppressed identification of Alaya, the Government adduced at trial
that: (1) Detective Carvajal observed a five-foot-three-inch “chubby” Hispanic female with light
brown hair — a description similar to Alaya’s appearance — take the keys to the van containing
marijuana from the confidential informant, (2) the smell of the marijuana in the van was

noticeable, and there was no division between the passenger compartment and the cargo