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MICHAEL BAILEY

United States Attorney

District of Arizona

RAQUEL ARELLANO

CHRISTINE A. MELTON

Assistant U.S. Attorneys

United States Courthouse

405 W. Congress Street, Suite 4800

Tucson, Arizona 85701

Telephone: 520-620-7300

Email:raquel.arellano@usdoj.gov

Email: christine.melton@usdoj.gov

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff, 

 vs. 

Robert Francis Krebs,

 Defendant.

CR18-00263-TUC-JGZ(JR)

GOVERNMENT’S MOTION IN LIMINE

TO ADMIT TWO 911 CALLS 

Now comes the United States of America, by and through its attorneys undersigned, 

and respectfully submits the following motion in limine to admit two separate 911 

emergency operator calls made by three witnesses in this case.1

 This motion is supported 

by the attached memorandum of points and authorities. 

 

1 The government certifies that it has met and conferred with the counsel for the defendant and the parties could not reach an agreement as to the admissibility of this 

evidence.

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MEMORANDUM OF POINTS AND AUTHORITIES

I. RELEVANT FACTS 

On January 12, 2018, the defendant entered the Pyramid Federal Credit Union on 

Oracle Road across from the Tucson Mall. He had carefully a planned how and when to 

approach the tellers, threaten them with a simulated firearm, and retreat from the credit 

union. By the time he arrived at the credit union, he had already placed his getaway plan 

in motion. 

When the defendant entered the credit union, he quickly approached A.M., a teller. 

The defendant was wearing a shoulder bag, from which he retrieved another, smaller bag, 

and placed it on the counter. The defendant then reached back into the shoulder bag and 

pulled out the simulated firearm, which looked strikingly similar to a semi-automatic 

handgun. The defendant held the gun low, on the counter, pointed at A.M., and he 

demanded cash. A.M. complied. Immediately after the defendant bagged the cash, he 

moved to the next teller window, staffed by K.A. The defendant still had the gun in his 

hand, and he again pointed it at the teller and demanded money. K.A. also complied. After 

the defendant received the money, he calmly and casually exited the bank, and walked to 

the Tucson Mall, where he changed clothes and loitered for several hours.2

Unbeknownst to the defendant, a bank employee, C.V., was in the credit union break 

room, which is equipped with television that streams live footage of the teller stations. 

C.V. was able to decipher that a robbery was in progress, as he saw the teller filling the 

defendant’s bag with money. C.V. also observed that the alarm had been activated. C.V. 

called 9-1-1, and reported what he was observing as he was observing it. He provided the 

address, asked for “units,” and stated that he was watching the robbery suspect walk 

 

2 During a subsequent interview with the FBI, the defendant gave a precise account 

of his actions before, during, and after the robbery, much of which was also observed and reported by the witnesses at the bank. 

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through the parking lot toward the mall. C.V. gave a description of the suspect, including 

physical characteristics, clothing, and his shoulder bag, and gave real-time directions as to 

where the suspect was and which direction he was going. C.V. maintained a visual of the 

defendant through the majority of the phone call, until the defendant reached the mall 

parking lot, and C.V. was able to pinpoint the store which the defendant approached to 

enter the mall. Throughout the duration of the call, C.V. can be heard exhaling vigorously. 

The phone call lasted for approximately four (4) minutes, and ended once C.V. lost visual 

of the suspect.

Simultaneously, the bank manager, C.C., called 9-1-1. She facilitated the call for 

K.A., who had reported the robbery to her, and was too distraught to make the call herself. 

C.C. indicated that the teller was “shaking and can’t speak,” as she provided the 

introduction to the operator. C.C. then turned the call over to K.A.. As she did so, she told 

K.A. “just breathe” to help her calm down and take the call. C.C. later reported that K.A. 

had collapsed on the floor after reporting the robbery. K.A. was able to calm down 

sufficiently to give a description of the event and the defendant. 

II. LAW AND ARGUMENT

Statements made out-of-court which are introduced at trial to prove the truth of the 

matter asserted are hearsay, and may not be admitted unless they satisfy a hearsay 

exception. (Fed. R. Evid. 801, 803.) The government respectfully requests a ruling that 

these two separate 911 emergency operator calls are admissible in its case-in-chief, as they 

fall under the Excited Utterance, Present Sense Impression, and Then Existing Mental, 

Emotional or Physical Condition hearsay exceptions delineated under Federal Rule of 

Evidence 803. 

1. The 911 call made by C.V. is admissible under the hearsay exceptions 

of present sense impression and excited utterance.

a. Present Sense Impression

C.V.’s 911 call is admissible under the hearsay exception of present sense 

impression. (Fed. R. Evid. 803(1)). A statement satisfies this exception where it is made 

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“describing or explaining an event or condition, made while or immediately after the 

declarant perceived it.” Id. The Ninth Circuit has identified three factors to consider when 

evaluating whether a statement fits within this exception: (1) contemporaneousness; (2) 

chance for reflection; and (3) relevance. United States v. Feng, 25 Fed. Appx. 635, 643 

(9th Cir. 2002) (citing United States v. Emmert, 829 F.2d 805, 810 (9th Cir. 1987). The 

Ninth Circuit differentiates between contemporaneity and simultaneousness, as a slight 

lapse in time is not only allowable, but expected. (See Bemis, 45 F.3d at 1372) (noting that

an out-of-court statement must be “nearly” contemporaneous with the incident described 

and made with little chance for reflection under either the present sense impression or the 

excited utterance tests.) (See also Fed. R. Crim. P. 803, advisory committee note: “in many, 

if not most, instances, precise contemporaneity is not possible, and hence a slight lapse is 

allowable.”).

Here, the statements are clearly a present sense impression. C.V. made the 911 call 

while he was watching the robbery occur on the break-room television. He maintained 

contact with the operator throughout the robbery and well into the defendant’s getaway, 

providing a play-by-play of the defendant’s actions. The circumstances here not only meet 

the standard for contemporaneity, but they exceed it, as the information was actually being 

relayed simultaneously with the observation. C.V. would thus have had no chance to 

reflect upon what he was reporting. Finally, the call is highly relevant as it describes the 

robbery as it occurred and further corroborates other evidence regarding the defendant’s 

actions afterward.

b. Excited Utterance

C.V.’s 911 call is also an example of an exited utterance. (Fed. R. Evid. 803(2)). 

The Ninth Circuit recognizes that this exception allows admission of a statement “relating 

to a startling event or condition, made while the declarant was under the stress of 

excitement that it caused.” United States v. Alarcon-Simi, 300 F.3d 1172, 1175-76 (9th 

Cir. 2002). A central inquiry is whether the statement was made without opportunity for 

reflective thought. Id.; Winzer v Hall, 494 F.3d 1192, 1197-98 (9th Cir. 2007). As with 

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the present sense impression exception, the statement need not be instantaneous with the 

event in question. “[T]he standard of measurement is the duration of the state of 

excitement.” See Fed. R. Evid. 803, advisory committee note. 

Here, C.V. made the call while experiencing the stress and excitement of watching 

a robbery in progress on the other side of the door to the breakroom, where he was. C.V.’s 

breathing is clearly audible throughout the phone call and he anxiously requests that the 

police send “units.” Furthermore, the statements in the call contained information directly 

related to the crime charged, including a description of the defendant and his conduct. 

Additionally, as was stated above, C.V. made the statements in the phone call at the same 

time as he was personally observing the events. The simultaneousness of the statement 

C.V.’s observations establish that C.V. had no time to reflect on the information he relayed. 

2. The 911 call made by C.C. and K.A. is admissible pursuant to the 

hearsay exceptions of excited utterance, present sense impression,

and then-existing mental, emotional, or physical condition. 

a. Excited Utterance

As with the call made by C.V., the call made by C.C. and K.A. falls within the 

excited utterance exception to the hearsay rule. (Fed. R. Evid. 803(2)). The statements 

made by C.C., and in particular K.A., to the 911 operator unmistakably meet the standard. 

The call was placed within moments of the defendant committing the robbery. C.C. had 

just witnessed the defendant enter and exit the credit union, not knowing what transpired 

in between. C.C. placed the call immediately upon learning of the robbery, and hearing 

that the defendant had a weapon. C.C. also relates that she had learned that another 

employee, C.V. (supra) was watching as the defendant escaped from the scene. These 

circumstances are a melting pot of anxiety and stress, all caused by the robbery. 

C.C. introduces the reason for the call, and describes K.A.’s distraught condition. 

At the very beginning of the call, C.C. indicates K.A. is “shaking and can’t speak.” As 

C.C. turns the phone over to her, C.C. comforts K.A. as she says “just breathe,” which in 

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turn helps K.A. calm down enough to talk to the operator. When K.A. finally speaks, she 

is audibly shaken up. Having had a close-range gun pointed at her just minutes before, 

K.A. was clearly under the stress of excitement when she recounted the event for the 

operator. 

b. Present Sense Impression 

The beginning of this call also falls within the present sense impression exception. 

(Fed. R. Evid. 803(1)). C.C.’s initial comments includes her observation of K.A.’s mental 

and emotional condition. She was with K.A. at the time of the call, as the phone was passed 

back and forth between the two. C.C.’s report of K.A. “shaking” to the point that she “can’t 

speak” occurred as she was observing this. C.C. then turned the phone over to K.A., after 

telling her to “just breathe” as she was in obvious distress. 

c. Then Existing Mental, Emotional, or Physical Condition

Another exception to the hearsay rule that applies to the statement made by C.C. 

and K.A. is then-existing mental, emotional, or physical condition. (Fed. R. Evid. 803(3)). 

This exception includes state of mind, as well as emotion, sensation, or physical condition 

(such as mental feeling, pain, and health). Id. The foundational requirements mirror those 

of the exceptions listed supra: contemporaneousness, reflection, and relevance. United 

States v. Ponticelli, 622 F.2d 985, 991 (9th Cir. 1980), cert. denied, 449 U.S. 1016, 

overruled on other grounds, United States v. De Bright, 730 F.2d 1255, 1259 (9th 

Cir.1984). The Court recognized that there is probative value in statements that were made 

with such little chance for reflection, as it undercuts the possibility of misrepresentation, 

which in turn demonstrates reliability. Id.

As previously demonstrated, the statements made on this call satisfy all foundational 

requirements of the rule. The arguments regarding contemporaneity and lack of reflection 

noted for the excited utterance exception apply equally here. Further, the relevance is 

exceptional, as K.A.’s state of mind is directly related to elements of the crime charged: 

force and intimidation. The inability for K.A. to remain calm after this experience was the 

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direct result of the defendant’s conduct. That she collapsed on the floor corroborates the 

fright in her voice and the difficulty she had calming down before and during the call. The 

911 call containing the statements by C.C. and K.A. is the epitome of this exception. 

3. Both 911 calls comport with the balancing requirement of Federal 

Rule of Evidence 403. 

Under Rule 403, relevant evidence may be excluded only where “its probative value 

is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative 

evidence.” Unfair prejudice results when the evidence has an “an undue tendency to 

suggest a decision on an improper basis,” such as an emotional one. United States v. 

Haischer, 780 F.3d 1277, 1281 (9th Cir. 2015). Unfair prejudice has been further identified 

where the “evidence [is] designed to elicit a response from the jurors that is not justified 

by the evidence.” United States v. Ellis, 147 F.3d 1131, 1136 (9th Cir. 1998) (quoting

omitted.)). However, unfair prejudice does not exist simply because the evidence is 

material and inculpatory. United States v. Fox, 627 Fed. Appx. 608 (9th Cir. 2015) (citing 

United States v. Rizk, 660 F.3d 1125, 1133 (9th Cir. 2011) (external citations omitted). 

Rather, a defendant must articulate specific bases for exclusion, and only where one or 

more of those bases substantially outweigh the probative value is exclusion appropriate. 

Id. 

Additionally, Rule 403’s cumulative evidence provision does not prohibit the 

introduction of similar evidence; rather, it merely permits courts to exclude like evidence 

where it has little incremental value. United States v. Miguel, 87 Fed. Appx. 67, 68 (9th 

Cir. 2004). Indeed, 911 calls can be admissible as evidence, even where they accompany 

testimony by the declarants, where their content is not unduly prejudicial. United States v. 

Lloyd, 462 F.3d 510 (6th Cir. 2006). In Lloyd, the Sixth Circuit upheld the admission of a 

911 tape containing statements made by bank employees about the description of the man 

who had just robbed them and about the direction he had headed after the robbery, even 

though the declarants had also testified at trial. Id. at 516. The Sixth Circuit reasoned that, 

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although “the probative value of the 911 tape [was] lessened by the bank employees' 

testimony to the same information,” “the only danger of unfair prejudice [the defendant 

could] point to is that the tape “revealed the highly emotional state” of the bank employees 

at the time of the robbery.” Id. at 516-17. There was nothing about the content of the 

information on the tape that created a danger of unfair prejudice. While the defendant 

argued that the emotion in the employees' voices on the recording would tend to incense 

and inflame the jury, the court rejected that argument, instead holding that any danger of 

unfair prejudice was minimal. Id. 

The case at bar is analogous to Lloyd, as the calls contain much of the same 

information. The declarants here describe the defendant, relay what they experienced 

during the robbery, provide a description, and identify where he went after fleeing the credit 

union, similarly to the calls in Lloyd. The calls are highly probative as to multiple elements 

of the crime, as they assist in identifying the defendant, and clearly demonstrate the 

intimidating effect his actions had on the victims. Yet, while the emotion can be 

understood by listening to the recording, it is not so extreme as to incite or inflame the jury, 

or cause the jury to make a finding on an improper basis. Thus, the probative value 

outweighs any prejudicial impact. 

4. Admission of the recordings will not violate the Confrontation 

Clause.

The Confrontation Clause, embedded in the Sixth Amendment of the United States 

Constitution, provides that a criminal defendant maintains the right to confront the 

witnesses against him. Crawford v. Washington, 541 U.S. 36, 42 (2004.) This is often 

achieved in the form of cross examination of such witnesses at trial. Id. at 42-50. Here, 

the government intends to call all three of the declarants who can be heard on the 911 

recordings as witnesses at trial. The defendant will have an opportunity to cross-examine 

them regarding their live testimony and the statements they made to the operator. Thus, the 

defendant will have an opportunity to confront his accusers and the Sixth Amendment is 

satisfied.

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III. CONCLUSION

There are two layers of analysis that must be conducted with regard to the proposed 

calls. First, as the statements in the recordings were made out-of-court, and will be offered 

to prove the truth of the matter asserted, at least one hearsay exception must apply. In this 

case, the government has presented two exceptions applicable to the call made by C.V., 

and three exceptions for the call made by C.C. and K.A. Both recordings were made 

contemporaneously, with little (or no) chance for reflection, and both are exceptionally 

relevant to the elements of the crime charged. Second, the limits of the Confrontation 

Clause do not apply, as the declarants will be present and available for cross-examination. 

The recordings are both admissible under the law, and are material and probative. For 

these reasons, the government respectfully requests that the Court allow the government to 

introduce them during its case-in-chief at trial. 

Respectfully submitted this 30th day of January, 2020.

MICHAEL BAILEY 

United States Attorney

District of Arizona

s/ Raquel Arellano

Raquel Arellano

Assistant U.S. Attorney

s/ Christine A. Melton

 Christine A. Melton

Assistant U.S. Attorney

COPY of the foregoing served electronically

or by other means this 30th day of January, 2020, to:

J. Leonardo Costales, Esq.

Gregory Berger, Esq. 

Attorneys for the Defendant 

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