Diaz-Colon et al v. Toledo-Davila et al

Filing 350

MEMORANDUM AND ORDER re 254 Motion in Limine; re 279 Response in Opposition to Motion; re 330 Proposed Pretrial Order; re 332 Motion to Amend/Correct (Partially), Joint Proposed Pretrial Order; re 336 Motion for Reconsideratio n of the dismissal of the Sanabria Estate; re 339 Response in Opposition to Motion; re 340 Motion for Reconsideration Dismissal of Ortiz Estate; and re 343 Response in Opposition to Motion. The Court GRANTS plaintiffs' mot ion in limine; DENIES defendants' objections to the proposed pretrial order; ORDERS plaintiffs to produce additional documentation pertaining to the estates of Ortiz and Sanabria; and GRANTS defendants' request for leave to use plaintiffs' witness. Signed by Judge Francisco A. Besosa on 10/31/2013. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOSE LUIS DIAZ-COLON, et al.,
Plaintiffs,
v.

Civil No. 09-1835 (FAB/MEL)

PEDRO TOLEDO-DAVILA, et al.,
Defendants.
CARMELO VELAZQUEZ-COLON, et al.,
Plaintiffs,
v.

Civil No. 10-1097 (FAB/MEL)

JOSE FUENTES-AGOSTINI, et al.,
Defendants.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Before the Court are the plaintiffs’ motion in limine to admit
defendant

Zoe

Diaz-Colon’s

former

testimony;

defendants’

opposition; outstanding objections to the joint proposed pretrial
order; plaintiffs’ motion for reconsideration of the dismissal of
the legal heirs of Sanabria and Ortiz; defendants’ oppositions; and
defendants’
plaintiffs.
343.)

request

for

leave

to

use a

witness

dismissed

by

(Docket Nos. 254, 279, 330, 332, 336, 339, 340, &

For the reasons stated below, the Court GRANTS plaintiffs’

motion in limine, DENIES defendants’ objections to the proposed
pretrial

order,

ORDERS

plaintiffs

to

produce

additional

Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)

2

documentation pertaining to the estates of Ortiz and Sanabria, and
GRANTS defendants’ request for leave to use plaintiffs’ witness.
I.

Background to Plaintiffs’ Motion in Limine
Plaintiffs seek to call defendant Zoe Diaz-Colon (“Diaz-

Colon”) as a witness in their case in chief.

Diaz-Colon was the

key fact witness in the 1999 murder trials against plaintiffs
Sanabria, Ramos, Velazquez, Diaz, Ortiz, and Merced.

In 2001,

Diaz-Colon testified in a hearing held to determine if a new trial
would be ordered that her testimony in the original criminal trials
was untrue and the result of coercion and intimidation.

Based in

part on this testimony, the Supreme Court of Puerto Rico ordered
the court of first instance to vacate the convictions of the
plaintiffs and order a new trial.

The ultimate dismissal of all

charges against plaintiffs is the basis for the current litigation.
In June of 2013, the parties arranged for Diaz-Colon to travel
to Puerto Rico from her residence in the Continental United States
for a video deposition.

On the eve of her deposition, however,

plaintiffs’ counsel were advised that Diaz-Colon received several
threatening and intimidating phone calls that caused her to leave
Puerto Rico to an undisclosed location in the Continental United
States.

Plaintiffs have subsequently made several unsuccessful

attempts to locate Diaz-Colon and arrange for her deposition via
closed circuit television.

Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
II.

3

Discussion Regarding Plaintiffs’ Motion in Limine
Plaintiffs now contend that Diaz-Colon is unavailable, and

seek admission of her prior testimony pursuant to Federal Rules of
Evidence 804(b)(1), 804(b)(3), or 807.

The Court addresses each

argument in turn.
1.

Rule 804(b)(1) - the Former Testimony Exception
Rule 804(b)(1) provides an exception to the rule against

hearsay for the former testimony of a declarant who “is absent from
the trial or hearing and the statement’s proponent has not been
able, by process or other reasonable means, to procure . . . the
declarant’s attendance.”

Fed.R.Evid. 804(a)(5).

Former testimony

is admissible if it,
(A) was given as a witness at a trial, hearing, or lawful
deposition, whether given during the current proceeding
or a different one; and
(B) is now offered against a party who had – or, in a
civil case, whose predecessor in interest had – an
opportunity and similar motive to develop it by direct,
cross-, or redirect examination.
Id. 804(b)(1).

A witness may be deemed “unavailable” where his or

her proponent has made good faith — but unsuccessful — efforts to
locate and present the witness.

United States v. Quinn, 901 F.2d

522, 527-28 (6th Cir. 1990).
The First Circuit Court of Appeals applies a two-part
test to determine whether a “similar” motive to develop testimony

Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
exists.

4

United States v. Bartelho, 129 F.3d 663, 671 (1st Cir.

1997). Courts must look first at “whether the questioner is on the
same side of the same issue at both proceedings,” and second at
“whether the questioner had a substantially similar interest in
asserting that side of the issue.”

Id. (citing United States v.

DiNapoli, 8 F.3d 909, 912 (2d Cir. 1993) (en banc)).

Rule 804 does

not require an “identical motive,” but rather a “factual inquiry”
based on the “similarity of the underlying issues and on the
context of the . . . questioning.”

United States v. Salerno, 505

U.S.

J.

317,

326

(1992)

(Blackmun,

concurring)

(emphasis

in

original).
Defendants contend that Diaz-Colon is not “unavailable”
for the purposes of Rule 804 because her absence is voluntary, and
that no “similar motive” to develop the testimony existed at the
first proceeding, the hearing for a new trial, where only one of
the current defendants was present. The Court finds both arguments
unavailing.
Plaintiffs provided a sworn statement by Alberto Cruz, a
journalist who assisted in coordinating Diaz-Colon’s travel plans
prior to the scheduled deposition, indicating the circumstances
under which Diaz-Colon left the jurisdiction and currently refuses
to testify in this case.

(Docket No. 254-1.)

Plaintiffs also

informed the Court of their subsequent unsuccessful efforts to

Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)

5

contact Diaz-Colon to arrange a deposition via closed circuit
television.

The Court encourages plaintiffs to continue their

efforts to acquire Diaz-Colon’s testimony in this case. As long as
they are unable to do so, however, the Court finds that Diaz-Colon
is unavailable for Rule 804 purposes.
The Court also finds that the motive that defendants and
their predecessors in interest had to develop the testimony of
Diaz-Colon at the 2001 hearing on a motion for a new trial is
similar

to

their

motive

in

this

litigation.

In

the

2001

proceeding, one of the current defendants — Gabriel Miranda-Redondo
(“Miranda”) — participated as a prosecutor for the Commonwealth of
Puerto Rico.

As a representative of Puerto Rico, Miranda shared a

“community of interest” with the remaining defendants in this
litigation, who are parties to this suit due to their capacities as
Puerto Rico officials. See Pacelli v. Nassau County Police Dep’t.,
639 F.

Supp.

1382,

1386

(E.D.N.Y.

1986) (finding

that

“Rule

804(b)(1) expanded upon the common law requirement of identity of
parties and allows the former testimony to be introduced in the
second trial if the party in the first proceeding against whom the
statement was made shares a ‘community of interest’ with or was a
predecessor

in

interest

to

(internal citation omitted).

the

party

in

the

second

trial.”)

Thus, Miranda’s motives at the 2001

Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
hearing

are

considered

for

the

purposes

6

of

comparing

the

defendants’ motives in this litigation.
Pursuant to the First Circuit Court of Appeals’s two-part
test, Miranda had a “similar motive” to develop Diaz-Colon’s
testimony in the 2001 proceeding. The issue at the 2001 hearing was
whether a new trial was warranted because Diaz-Colon’s statements
and testimony — on which plaintiffs’ convictions were based — had
been fabricated by police officers and prosecutors. Miranda crossexamined Diaz-Colon, challenged her credibility, and sought to
defend the integrity of the convictions.
issues

involved

whether

particular

The underlying factual

officers

and

prosecutors

coerced, intimidated, and improperly incentivized Diaz-Colon to
testify against innocent individuals.

The burden in the 2001

proceeding was to show that without the tainted evidence (the
testimony of Diaz-Colon), a reasonable probability existed that a
different verdict would have been reached in their criminal trials.
People of P.R. v. Velazquez, 174 D.P.R. 304, 332 (2008).

Here,

plaintiffs must make a similar showing to support their Fourth
Amendment

malicious

prosecution

and

Puerto

Rico

tort

claims.

Defendants in this litigation are contesting the very same factual
allegations

that

were

raised

against

officials) in the 2001 proceeding.

Puerto

Rico

(and

its

Thus, defendants are “on the

same side of the same issue at both proceedings” and have a

Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)

7

“substantially similar interest in asserting that side of the
issue” as Miranda did in 2001.

See Bartelho, 129 F.3d at 671.

The admission of prior testimony is less problematic when
it is offered against the same party against whom it was previously
offered. See Fed.R.Evid. 804(b)(1) advisory committee’s notes (“no
unfairness is apparent in requiring him to accept his own prior
conduct of cross-examination or decision not to cross-examine.”)
The Court accordingly finds that plaintiffs have satisfied the
requirements of Rule 804(b)(1), and their motion in limine to admit
Diaz-Colon’s testimony is GRANTED.

Plaintiffs are ordered to

provide the Court and defense counsel with certified copies of the
complete transcripts of the proceedings they seek to introduce.1
2.

Rule 804(b)(3) - Statements Against Interest
Plaintiffs

statements

are

further

admissible

argue

pursuant

that
to

Diaz-Colon’s

past

804(b)(3),

which

Rule

provides an exception to the rule against hearsay for statements
against

interest

804(b)(3).2

by

unavailable

declarants.

Fed.R.Evid.

This rule permits a statement that,

(A) a reasonable person in the declarant’s position would
have made only if the person believed it to be true
because, when made, it . . . had so great a tendency to

1

Thus far, the record only contains select portions of these
transcripts with non-consecutive pages.
2

Defendants did not offer any argument on this exception.

Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
. . . expose
liability; and

the

declarant

to

civil

8

or

criminal

(B) is supported by corroborating circumstances that
clearly indicate its trustworthiness . . . .
Id.; United States v. Jimenez, 419 F.3d 34, 43 (1st Cir. 2005).
The Court finds that this exception applies to DiazColon’s 2001 testimony.

Her 2001 testimony directly contradicted

her testimony at the original trials in 1999, and thus exposed her
to criminal liability for perjury and civil liability for malicious
prosecution, as evidenced by the complaint in this litigation.
Plaintiffs’

witness

list

includes

individuals

who

can

offer

corroboration of Diaz-Colon’s 2001 testimony, which, in short,
recanted her 1999 testimony.3

Plaintiffs are also expected to

offer evidence that Diaz-Colon received threats of violence related
to

her

2001

trustworthiness

testimony,
of

her

which

further

testimony.

corroborates

Accordingly,

the

Diaz-Colon’s

statements are also admissible under Rule 804(b)(3).
3.

Rule 807 - Residual Exception
Plaintiffs further argue in the alternative that Diaz-

Colon’s

3

former

testimony

falls

within

the

residual

hearsay

These witnesses include Carlos Pomales, Myrna Mendoza
Bristol, and Leonardo Arias; they provide corroboration of DiazColon’s recantation as it pertains to the Colomba murder. If no
other corroborating evidence is put forth by plaintiffs, only
statements regarding the Colomba murder may be offered under
Rule 804(b)(3).

Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)

9

exception in Rule 807, which covers a statement that “is not
specifically covered by a hearsay exception in Rule 803 or 804” and
(1)

contains

“equivalent

circumstantial

guarantees

of

trustworthiness;” (2) “is offered as evidence of a material fact;”
(3) “is more probative on the point for which it is offered than
any other evidence that the proponent can obtain through reasonable
efforts;” and (4) “admitting it will best serve the purposes of
[the federal rules of evidence] and the interests of justice.”
Fed.R.Evid. 807(a). Admission of a statement pursuant to this rule
requires reasonable notice to the adverse party of the proponent’s
intent to offer it.

Id. 807(b).

Because the Court finds that the proffered testimony is
covered by the exceptions in Rule 804(b), the Court declines to
apply the residual exception here.
III. Additional Pretrial Matters
1.

Objections to the Proposed Pretrial Order
The Court now turns to a number of issues remaining from

the pretrial conference held on October 25, 2013.

Plaintiff’s

documents 2-4 and defendants’ documents 1 and 3, sworn statements
by Zoe Diaz-Colon, are admitted for nonhearsay purposes.
Docket

No.

330

at

p.

119-120.)

Defendants’

(See

objections

to

plaintiffs’ inclusion of Alberto Cruz, Leonardo Arias-Reyes, Carlos
Pomales,

Maritza

Valentin-Cora,

and

Myrna

Mendoza-Bristol

as

Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)

10

witnesses are overruled. (Docket No. 332.) Alberto Cruz’s role as
a witness was discussed at the pretrial conference held on June 26,
2013.

(Docket No. 270 at p. 5.)

All of these witnesses were

announced in a previous joint pretrial order filed on August 26,
2013 and subsequently stricken from the record.

(Docket No. 285.)4

Though this joint proposed order was eventually stricken from the
record, the defendants had notice of these witnesses at least as
early as August.

The Court accordingly overrules defendants’

objections and allows them to be called as witnesses at trial.
2.

Plaintiff’s Motions for Reconsideration of the Dismissal
of the Members of the Sanabria and Ortiz Estates
On October 2, 2013, in its ruling on defendants’ motion

for summary judgment, the Court dismissed without prejudice the
claims of the members of the estates of Sanabria and Ortiz because
plaintiffs had not provided any evidence on the issue.
No. 304 at p. 41-2.)

(Docket

On October 26 and 28, 2013, plaintiffs

requested relief from the judgment pursuant to Federal Rule of
Civil Procedure 60(b)(6), a catchall provision.

4

(Docket Nos. 336

Nestled within defendants’ “Opposition to Plaintiffs’ Motion
for Reconsideration; and Request for Leave to Use Witness
Voluntarily Suppressed by Plaintiffs” is an out of place argument
pursuant to Federal Rule of Civil Procedure 37(c)(1) regarding
defendants’ objections to the joint proposed pretrial order.
(Docket No. 339.) Because the witnesses and documents to which
defendants objected have been discussed extensively by the parties
over recent months, the Court finds that their disclosure is
harmless in satisfaction of Rule 37(c)(1).

Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
& 340.)

11

Plaintiffs’ motions were based on declaratory judgments

signed on October 22, 2013 by Superior Court Judge Eliza FumeroPerez evidencing Sanabria and Ortiz’s legal heirs pursuant to
intestate succession.

(Docket Nos. 336-1 & 340-1.)

The Court

declines to rule on plaintiffs’ motion at this time, and ORDERS
plaintiffs to provide the Court with copies of the petitions they
filed in the Guayama Superior Court requesting the declaratory
judgments.
3.

Defendants’ Request for Leave to Use Witness Morales
Girona
Finally, defendants move the Court for leave to use

witness Morales Girona at trial.
announced

and

deposed

as

a

Morales Girona was previously

plaintiff’s

currently on plaintiffs’ witness list.

witness,

but

is

not

Because, as stated above,

the parties have been aware of Morales Girona’s role as a potential
witness in

this

litigation

since

prior to his

deposition on

June 14, 2013, defendants’ request is GRANTED.
IV.

Conclusion
For the reasons stated above, the Court enters the following

rulings:
1.

Plaintiffs’ motion in limine to admit the prior testimony

of Diaz-Colon is GRANTED.

Plaintiffs, however, must produce a

Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)

12

certified copy of the complete transcripts of the proceedings in
which Diaz-Colon testified.
2.

Defendants’ remaining objections to the pretrial order

are OVERRULED. Plaintiffs’ witnesses Alberto Cruz, Leonardo AriasReyes, Carlos Pomales, Maritza Valentin-Cora, and Myrna MendozaBrystol are permitted.

Plaintiffs’ documents 2-4 and defendants’

documents 1 and 3 are permitted for non-hearsay purposes.
3.

Plaintiffs are ORDERED to produce petitions requesting

declaratory judgments from the Superior Court of Guayama pertaining
to the heirs of Ortiz and Sanabria.
4.

Defendants’ request for leave to use plaintiffs’ witness

Morales-Girona is GRANTED.
San Juan, Puerto Rico, October 31, 2013.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE