UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

v.

FERMIN OCAMPO-TELLEZ, and 

MICHAEL GOMEZ

No. 20 CR 331 

Judge Matthew F. Kennelly 

GOVERNMENT’S RESPONSE TO DEFENDANT MICHAEL GOMEZ’S

SECOND SUPPLEMENTAL MOTION IN LIMINE

The UNITED STATES OF AMERICA, by and through its attorney JOHN R. 

LAUSCH, JR., United States Attorney for the Northern District of Illinois, 

respectfully requests that this Court deny defendant Michael Gomez’s Second 

Supplemental Motion in Limine (Dkt. 126). 

As a preliminary matter, defendant Gomez seems to be calling for the 

government to reply to his response to the Government’s Motion in Limine (Dkt. 102) 

regarding the proposed testimony of Aurora Police Officer Colin Griffin. The 

government had moved for the admission of Officer Griffin’s testimony, who was 

familiar with the defendants, to identify the defendants in the ATM video as well as 

identify them in court. As set forth in the government’s motion, this type of testimony 

would qualify as lay opinion testimony pursuant to Federal Rule of Evidence Rule 

701. The defendants’ factual stipulation regarding identity resolved the need for

Officer Griffin’s testimony. The Government’s Motion in Limine, on this point, is moot 

and no reply is necessary. 
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The thrust of the defendant’s motion is his objection to the testimony of FBI 

Special Agent Shanna Saunders. Defendant Gomez’s motion appears to conflate the 

proposed identification testimony of Officer Griffin with the testimony of the case 

agent, regarding her investigation of this crime. 

As part of her investigation of the events of May 31, 2020, Agent Saunders 

reviewed video from both the ATM and a drone. In her testimony, Agent Saunders 

will describe the participants in the events of May 31, 2020, including the defendants, 

and their actions that evening. Agent Saunders will not provide any opinion 

testimony as to the purpose or intent of the defendants. Her testimony will include

playing and describing both videos to show the jury (1) where the defendants are on 

the videos; and (2) the defendants’ actions on the video. 

Having Agent Saunders describe the video while the video is playing is 

permissible. The parties have reached testimonial stipulations regarding both the 

ATM and the drone videos. As these stipulations reflect, there are appropriate 

foundations to admit both videos in evidence, and they are both authentic and 

admissible. See agreed stipulations, attached hereto as Exhibit A. Once the videos 

have been admitted in evidence, it is appropriate for the case agent to describe the 

contents of the videos, even if she was not an eyewitness to the crime. See United 

States v. Wallace, 753 F.3d 671, 675 (7th Cir. 2014) (“The video of the defendant in 

this case handing crack to his nephew was a picture; it was not a witness who could 

be cross-examined. The agent narrated the video at trial, and his narration was a 

series of statements, so he was subject to being cross-examined and was, and thus 
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was ‘confronted.’); see also United States v. Jackson, 940 F.3d 347 (7th Cir. 2019) 

(defendant failed to identify how he was prejudiced by an investigator describing 

defendant’s actions captured on video by a nontestifying cooperator). This is neither 

lay nor expert opinion testimony; it is based on the case agent’s personal knowledge 

of the evidence in the case, to include interviewing the defendants and viewing the 

videos. Agent Saunders will not use the video to speculate or opine on the ultimate 

issue of whether defendants participated in a conspiracy. Her testimony will be 

confined to description supported by the admissible contents of the videos themselves.

Agent Saunders will not (and cannot) say that she has personal knowledge of 

what happened on May 31, 2020, because she was not present at the scene of the 

crime. She may, of course, be cross-examined on this point, and it will go to the 

weight, not the admissibility, of her testimony. She can, however, testify from her 

personal knowledge that she collected evidence, including multiple admissible videos 

of the incident; evaluated that evidence; used the evidence to locate the defendants; 

and spoke with the defendants about the incident. 

Defendant’s citation to United States v. Cunningham, 462 F.3d 708 (7th Cir. 

2006), is inapposite. Cunningham involved the government’s introduction of 

testimony regarding a Title III application, which the Seventh Circuit found unduly 

prejudicial because, “[T]he jury was infected by the opinions of these unnamed 

government attorneys and agents. The government witness was improperly vouching 

for how good the evidence was. Furthermore, the various procedures (i.e., safeguards) 

that were detailed served only to bolster the credibility of the unnamed attorneys’ 
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and agents’ respective determinations.” Cunningham, 462 F.3d at713. Here, Agent 

Saunders has been identified, she can testify to the facts regarding her investigation 

without bolstering, and she can be cross-examined about her actions in this 

investigation. 

As the testimonial stipulations on the videos reflect, an alternative to having 

Agent Saunders describe the video would be for the government to call the two 

witnesses who (1) created the videos; and (2) observed the events occurring on the 

videos in real time on May 31, 2020. See Exhibit A. If called to testify, these witnesses 

would testify that the videos fairly and accurately depicted events as they unfolded 

on May 31, 2020. With this foundation, these two witnesses could likewise describe 

the events depicted on the videos for the jurors, however the witnesses would not be 

able to identify the defendants. 

Agent Saunders, however, can identify the defendants and having her point 

out the defendants in the video would assist the jury. Both videos portray a crowd of 

approximately 20 to 30 people. Even with a factual stipulation regarding defendant’s 

presence and appearance on May 31, 2020, picking out the defendants in the crowd 

could present a challenge to jurors not as familiar with both the evidence and the 

defendants as the agent who investigated the case. 

To this point, her testimony will relieve a concern raised by counsel for 

defendant Gomez. During the pretrial walk-through on June 17, 2021, defense 

counsel expressed concern about jurors correctly identifying defendant Gomez in the

videos, because they will be comparing his masked face in court with his unmasked 
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face, among a crowd, in the videos. Descriptive testimony from Agent Saunders about 

the video evidence would eliminate juror confusion and help them appropriately 

evaluate the evidence.

CONCLUSION

WHEREFORE, for the foregoing reasons, the government respectfully 

requests that the Court deny defendant’s Second Supplemental Motion in Limine. 

Respectfully submitted,

JOHN R. LAUSCH, JR.

United States Attorney

 By:/s/Mary Katherine McClelland

MARY KATHERINE MCCLELLAND

BARRY JONAS

Assistant United States Attorneys

219 South Dearborn Street

Chicago, Illinois 60604

(312) 353-5300

Dated: June 20, 2021