United States District Court, S.D. Mississippi, Northern Division
P. JORDAN, III CHIEF UNITED STATES DISTRICT JUDGE
date, the Court heard oral argument on two written motions
and two oral motions. The Court's rulings were more fully
explained on the record but are as follows:
Government's Motion to Exclude 
August 22, 2019, the Defendant gave notice of his intent to
call Glenda McGraw Regnart as an expert witness on issues
related to immigration status. The Government moved to strike
her designation as untimely and because it violated Federal
Rule of Evidence 704(b). See Gov't's Mot.
. After argument and some discussion, the Government
agreed to waive its timeliness objection in exchange for the
right to designate an agent as an expert in the same field.
the Rule 704(b) issue, the expert report provides background
information on how one might determine whether an individual
is unlawfully within the United States. That much is not
disputed. But the expert concludes by opining that “Mr.
Prieto-Perez, as a lay person, does not have the expertise or
access to information capable of accurately ascertaining
another's citizenship, immigration status, or whether
they are in violation of law.” Report [48-1] at 7. That
opinion, or other similar comments regarding a
layperson's ability to accurately ascertain immigration
status, is the “functional equivalent” of
testifying that Defendant Perez lacked the requisite
knowledge and intent. United States v.
Gutierrez-Farias, 294 F.3d 657, 661-63 (5th Cir. 2002);
see also United States v. Hernandez-Acuna, 202
Fed.Appx. 736, 739-40 (5th Cir. 2006). It therefore violates
Rules 704(b) and 403 and will not be permitted. The motion is
granted in part and withdrawn in part.
Government's Motion for Judicial Inquiry 
week, authorities apprehended Co-Defendant Juan Pablo
Valdez-Morales, and the Government so notified the Court and
counsel. Up to that point, the plan was to try Perez and
Morales separately. Yesterday, the Government informed the
Court that Perez's attorney represented Morales in a
separate DUI case that apparently led Homeland Security to
investigate this case.
Morales will not testify if the trial proceeds tomorrow as
planned, the prior representation presents potential
conflicts, if not actual conflicts. See United States v.
Infante, 404 F.3d 376, 389-93 (5th Cir. 2005)
(discussing factors that present conflicts). The Court
therefore held a Garcia hearing during which
Defendant knowingly and voluntarily waived those conflicts.
United States v. Garcia, 517 F.2d 272 (5th Cir.
1975). Because any delay in this case would potentially
expose Defendant Perez to Morales's testimony, the Court
concludes that Defendant Perez acted in his best interest.
The waiver is accepted. The motion is deemed moot.
Government's Oral Motion for Continuance
the Government notified the Court last week that Morales had
been detained, the prosecution asked whether it would impact
the August 27, 2019 trial setting. The Court responded that
the case should probably proceed because it was not apparent
that joining the two co-defendants would be necessary. The
Government responded, “The Government elects to proceed
next week as planned.”
oral argument, the Government switched positions and
requested a continuance so it could pursue the Morales case
and perhaps obtain his testimony in this case. That request
was denied because (1) this case is now set for trial
tomorrow; (2) the Court concluded its trial preparations
based on the Government's election to move forward; (3)
we do not know how long it will take for the Morales case to
be ready-he is not even in this jurisdiction; (4) Defendant
Perez has a right to a speedy trial that he asserted during
the hearing; and (5) continuing the case would manufacture
potential conflicts for defense counsel that do not presently
exists. For these and other reasons, the motion is denied.
Government's Motion in Limine
Government charged Defendant Perez with aiding and abetting
Co-Defendant Hector Valdez-Leora, who allegedly harbored,
concealed, or shielded an illegal alien from detection.
See Indictment  ¶ 1 (citing 8 U.S.C. §
1324(a)(1)(A)(v)(ii)). The Government also charged
Valdez-Leora with harboring for the purpose of commercial
advantage or private financial gain, which is a sentencing
enhancement under § 1324(a)(1)(B)(i).
Defendant Perez is charged with aiding or abetting, the
Government must prove that someone-namely
Valdez-Leora-committed the harboring or concealing offense.