Case 2:09-cr-00703-PSG Document 88 Filed 10/18/10 Page 1 of 9 Page ID #:1029

1 SEAN K. KENNEDY (No. 145632)

Federal Public Defender
2 (E-mail: Sean_Kennedy@fd.org)
CALLIE GLANTON STEELE (No. 155442)
3 Deputy Federal Public Defender
(E-mail: Callie_Steele@fd.org)
4 KOREN L. BELL (No. 268614)
(E-mail: Koren_Bell@fd.org)
5 ASAL AKHONDZADEH (No. 266792)
(E-mail: Asal_Akhondzadeh@fd.org)
6 321 East 2nd Street
Los Angeles, California 90012-4202
7 Telephone (213) 894-6075
Facsimile (213) 894-0081
8
Attorneys for Defendant
9 MATTHEW CRIPPEN
10
11 UNITED STATES DISTRICT COURT
12 CENTRAL DISTRICT OF CALIFORNIA
13 WESTERN DIVISION
14
15 UNITED STATES OF AMERICA, ) NO. CR 09-703-PSG
16 )
Plaintiff, ) MOTION IN LIMINE TO
17 ) EXCLUDE TESTIMONY OF
v. ) TONY ROSARIO AND HIS
18 MATTHEW CRIPPEN, ) SURREPTITIOUS VIDEO
) RECORDING DUE TO
19 ) CONCOMITANT EXPOSURE
Defendant. ) TO CRIMINAL AND CIVIL
20 ) LIABILITY UNDER
) CALIFORNIA LAW, OR IN THE
21 ) ALTERNATIVE, TO APPOINT
) COUNSEL FOR MR. ROSARIO
22 )
) Hearing Date: Nov. 15, 2010
23 ) Hearing Time: 9:00 a.m.

24 Defendant Matthew Crippen, by and through his attorneys of record, Deputy

25 Federal Public Defenders Callie Glanton Steele, Koren Bell, and Asal Akhondzadeh,
26 hereby files this Motion In Limine to Exclude Testimony of Government Witness Tony
27 Rosario and His Surreptitious Video Recording Due To Concomitant Exposure To
28 //
Case 2:09-cr-00703-PSG Document 88 Filed 10/18/10 Page 2 of 9 Page ID #:1030

1 Criminal and Civil Liability Under California Law, Or In the Alternative, to Appoint
2 Counsel to Advise Mr. Rosario Respecting the Same.
3 This Motion is based upon the attached Memorandum of Points and Authorities,
4 all files and records in this case, and any further evidence as may be adduced at the
5 hearing on this motion.
6
7 Respectfully submitted,
8 SEAN K. KENNEDY
Federal Public Defender
9
10
DATED: October 18, 2010 By /s/
11 CALLIE GLANTON STEELE
Deputy Federal Public Defender
12
13 By /s/
KOREN L. BELL
14 Deputy Federal Public Defender
15 By /s/
16 ASAL AKHONDZADEH
Deputy Federal Public Defender
17
18
19
20
21
22
23
24
25
26
27
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1 I.
2 INTRODUCTION
3 On October 5, 2010, the government gave notice of its intent to call Electronic
4 Software Association Private Investigator Tony Rosario as a witness at trial, and to
5 introduce, through Mr. Rosario, a surreptitious video recording of a March 15, 2008
6 meeting between Mr. Rosario and Mr. Crippen during which Mr. Crippen purportedly
7 modified Mr. Rosario’s Microsoft XBox 360 console. See Government Trial
8 Memorandum and Witness List, Docket No. 79, at p. 5, 14, 15 and Exhibit 1. The video
9 recording is approximately two minutes in length and depicts the exterior and the interior
10 of Mr. Crippen’s home, including personal artifacts unrelated to the alleged acts, such
11 as household items including musical instruments, sporting gear, posters on the walls,
12 a television and a computer. There is no audio sound on the video recording, but Mr.
13 Crippen can be seen talking to Mr. Rosario and working on an electronic device. It is
14 not clear, and the government has not yet clarified, whether the lack of audio sound on
15 the video recording is a product of technical malfunction or a deliberate choice by Mr.
16 Rosario at the time the recording was made, or alternatively, whether the audio was
17 removed through editing sometime after the recording was created.1
18 As set forth below, Mr. Rosario’s surreptitious video recording violates California
19 state law, and his testimony on direct and cross examination in this federal case would
20 therefore expose him to civil and criminal liability in the state of California. For that
21 reason, his testimony, and the accompanying surreptitious video recording, should be
22 excluded. In the alternative, Mr. Rosario should be appointed counsel to advise him in
23 connection with the potential liability he will face as a result of his testimony at trial.
24 Moreover, Mr. Rosario’s testimony, and the surreptitious video recording, should
25 be excluded pursuant to Federal Rule of Evidence 403 because the probative value of
26 this evidence is substantially outweighed by the danger of confusion of the issues, and
27
28 1
Defense counsel requested clarification on this point on October 15, 2010, but
had not yet received a response at the time of the filing of this motion.
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1 considerations of undue delay and waste of time, on account of the questions that his
2 testimony will pose respecting the legality of his conduct under California law. See Fed.
3 R. Evid. 403.
4 III.
5 ARGUMENT
6 A. The Testimony of Tony Rosario Should Be Excluded Together With His
7 Surreptitious Recording
8 (I) The California Privacy Act And Interaction With Federal Law
9 With limited exceptions that are inapplicable here, the California Privacy Act
10 forbids the recording of a confidential communication unless all parties to the
11 communication consent. See Cal. Pen. Code § 632, § 633 (exception for law enforcement
12 officers), § 633.5 (other limited exceptions); see also People v. Windham, 145 Cal. App.
13 4th 881, 889 (Cal. App. 4 Dist. 2007). Specifically, under the provisions of subdivision
14 (a) of section 632 of the Privacy Act:
15 [e]very person who, intentionally and without the consent of all parties to a
16 confidential communication, by means of any. . .recording device,. . .records
17 the confidential communication. . . carried on among the parties in the
18 presence of one another
19 violates the statute. See Cal. Pen. Code § 632(a) (emphasis added); Kearney v. Salomon
20 Smith Barney, 39 Cal. 4th 95, 117 (Cal. Sup. Ct. 2006) (emphasis in original) (quoting
21 section 632(a)). Thus, “[b]y the terms of Penal Code section 632, the recording by one
22 party to a confidential. . .conversation is prohibited unless the other party has knowledge
23 that the conversation is to be recorded and consents thereto.” People v. Wyrick, 77
24 Cal.App.3d 903, 907 (Cal.App. 1978). Once violated, the statute subjects the recording
25 party to criminal and civil liability. See Cal. Pen. Code § 632(a) (violators “shall be
26 punished by a fine not exceeding two thousand five hundred dollars, or imprisonment in
27 the county jail not exceeding one year, or in the state prison or by both that fine and
28 imprisonment,” but “if the person has previously been convicted of a violation of this

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1 section [or certain other sections], the person[s] shall be punished by a fine not exceeding
2 ten thousand dollars, by imprisonment in the county jail not exceeding one year, or in the
3 state prison, or by both that fine and imprisonment.”); Cal. Pen. Code § 637.2 (creating a
4 private right of action authorizing any person who has been injured by any violation of the
5 invasion-of-privacy legislation to bring, inter alia, a civil action to recover damages).
6 Section 632, subsection ©, further provides that “[t]he term ‘confidential
7 communication’ includes any communication carried on in circumstances as may
8 reasonably indicate that any party to the communication desires it to be confined to the
9 parties thereto.” Cal. Pen. Code § 632©. A conversation is “confidential” within the
10 meaning of the Act if a party to the communication has an objectively reasonable
11 expectation that the conversation is not being recorded. Flanagan v. Flanagan, 27 Cal.4th
12 766, 776 (Cal. 2002).2 Notably, “section 632 explicitly covers ‘any communication’
13 carried on in specified circumstances, regardless of content,” Wyrick, 77 Cal.App.3d at
14 909, and prohibits “unconsented-to. . .recording of conversations regardless of whether the
15 party expects that the content of the conversation may later be conveyed to a third party,”
16 Flanagan, 27 Cal.4th at 776; see also Lieberman v. KCOP Television Inc., 110 Cal. App.
17
18 2
Cf. Deteresa v. American Broadcasting Companies, Inc., 121 F.3d 460 (9th
Cir. 1997) (under California's eavesdropping statute, as construed by federal court,
19 woman talking to television producer about celebrity murder suspect did not have
objectively reasonable expectation that conversation would not be divulged to anyone
20 else, where producer revealed that he worked for television network and wanted
woman to appear on television, woman did not tell producer that her statements were
21 in confidence or that the conversation was just between them, she did not request that
producer not share information with anyone else, and producer did not promise to
22 keep anything in confidence) with Nissan Motor Co., Ltd. v. Nissan Computer Corp.,
180 F.Supp.2d 1089 (C.D. Cal. 2002) (counsel for copyright infringement plaintiff
23 maintained objectively reasonable expectation of privacy regarding telephone
conversations with defense counsel even if counsel routinely submitted declarations
24 to court regarding substance of conversations between counsel); Coulter v. Bank of
America, 33 Cal.Rptr.2d 766 (App. 4 Dist. 1994) (employee's conversations with
25 supervisors and co-workers, which he surreptitiously recorded in anticipation of
litigation against employer, were “confidential” within meaning of Privacy Act,
26 notwithstanding employee's claim that he never intended conversation to be
confidential and content of conversations were later discussed with others;
27 supervisors and co-workers believed and expected that conversations would be
confidential, most of conversations were held in private offices with no one else
28 present, conversations involved sensitive work-related matters, and supervisors and
co-workers believed that no one was listening to their conversations).
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1 4th 156, 166-67 (Cal. App. 2 Dist. 2003) (an actionable violation of section 632 occurs the
2 moment the surreptitious recording is made, whether disclosed or not).
3 Importantly, there is a split of authority among the Courts of Appeal respecting
4 whether “communication" as used in the Privacy Act is limited to conversations or oral
5 communications, or instead refers more broadly to the exchange of thoughts, messages or
6 information by any means. The Fourth Appellate District -- the Court with jurisdiction
7 over Anaheim, the site of Mr. Rosario’s surreptitious recording of Mr. Crippen -- has held
8 that "communication" as used in the Privacy Act is not limited to conversations or oral
9 communications, but rather encompasses any communication, regardless of its form, where
10 any party to the communication desires it to be confined to the parties thereto. See People
11 v. Gibbons, 215 Cal. App. 3d 1204, 1209 (Cal. App. 4 Dist. 1989). The Third Appellate
12 District has disagreed. See People v. Drennan, 84 Cal. App. 4th 1349, 1353-54 (Cal. App.
13 3 Dist. 2000) (holding that 632 protects only sound-based or symbol-based
14 communications, not the taking of timed, still photos without accompanying sound, and
15 further opining that Cal. Pen. Code 647(k) [now 647(j)], which forbids the surreptitious
16 recording of someone in any “area in which the occupant has a reasonable expectation of
17 privacy” would be a “better candidate to control. . .the taking of pictures of two or more
18 people carrying on a confidential communication”). But, notwithstanding Drennan, the
19 Fourth Appellate District has stood its ground. See People v. McCallister, 2002 WL
20 1724003, at *8 (Cal. App. 4 Dist. 2002) (unpublished) (reaffirming Gibbons and
21 disagreeing with Drennan).
22 Finally, section (d) of Section 632 directs that, “[e]xcept as proof in an action or
23 prosecution for violation of this section, no evidence obtained as a result of. . .recording
24 a confidential communication in violation of this section shall be admissible in any
25 judicial, administrative, legislative or other proceeding.” Cal. Penal. Code § 632(d).
26 Notwithstanding this directive, evidence obtained in contravention of the California
27 Privacy Act is admissible in federal court so long as no federal law is thereby violated.
28 See, e.g., United States v. Adams, 694 F.2d 200, 201 (9th Cir. 1982). Unlike the

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1 California Privacy Act, the federal wiretap statute requires only the consent of one party
2 to the conversation. See, e.g.,18 U.S.C. § 2511(d) (“It shall not be unlawful. . .for a person
3 not acting under color of law to intercept a[n] . . .oral. . .communication where such person
4 is a party to the communication. . .unless such communication is intercepted for the
5 purpose of committing any criminal or tortious act in violation of the Constitution or the
6 laws of the United States or of any state.”). Thus, a surreptitious recording that is obtained
7 in violation of California law, but complies with the federal wiretap statute, may be
8 admissible in federal court, provided it does not violate any other federal law.
9 B. Tony Rosario’s Testimony, and the Introduction of His Surreptitious Video
10 Recording, Exposes Him to Civil and Criminal Liability In California
11 Although a surreptitious recording obtained in violation of the all-party consent rule
12 enshrined in the California Privacy Act is admissible in federal court provided it complies
13 with the federal one-party consent rule, and does not violate any other federal law, direct
14 and cross-examination testimony establishing a violation of state law may still expose a
15 witness to civil and criminal liability in California, of course. That is the issue here, as
16 Mr. Rosario’s surreptitious video recording -- whether it was created with or without audio
17 sound -- was obtained in violation of the California Privacy Act.
18 Mr. Crippen invited Mr. Rosario into his home pursuant to a scheduled appointment,
19 and they conducted business. The sanctity of the home is well-established. See Silverman
20 v. United States, 365 U.S. 505, 511 (1961). It is undisputed that Mr. Rosario did not have
21 Mr. Crippen's consent to record the transaction. See Cal. Pen. Code § 632(a) (setting forth
22 the all-party consent rule). It should also be undisputed that, under these circumstances
23 -- where Mr. Crippen scheduled an business meeting with Mr. Rosario and invited him
24 into his private residence – that Mr. Crippen reasonably expected that the
25 communication was confined to the parties, and was not recorded. See Flanagan, 27
26 Cal.4th at 776. That is all the law requires for the communication to be deemed
27 "confidential" under the Act. Further, if Mr. Rosario originally created the recording with
28 audio, it is a clear violation of the law, even if the audio was subsequently removed before

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1 the video tape was disseminated to third persons. See Lieberman, 110 Cal. App. 4th at
2 166-67. Pursuant to Gibbons, so, too, if the video was created in the first instance without
3 audio. See Gibbons, 215 Cal. App. 3d at 1209.
4 Based on the foregoing, Mr. Rosario's testimony about the recording, and the
5 government's introduction of the tape through Mr. Rosario, will expose him to criminal
6 and civil liability under the California Privacy Act, even though his violations of state law
7 may not render this evidence inadmissible in federal court. For this reason, Mr. Rosario’s
8 testimony, and his videotape, should be excluded. In the alternative, Mr. Rosario should
9 be appointed counsel to advise him in connection with the potential exposure he will face
10 by testifying at trial.
11 Moreover, there is a separate and independent reason why the evidence should be
12 excluded: Federal Rule of Evidence 403, which instructs that evidence may be excluded
13 it its probative value is substantially outweighed by the danger of confusion of the issues
14 and considerations of undue delay and waste of time. See Fed. Rule Evid. 403. Because
15 Mr. Rosario's violation of the law bears directly on his credibility, his testimony on direct
16 examination will compel inquiry on cross-examination respecting the process he followed
17 in videotaping Mr. Crippen (with or without audio), the reasons for this process, and his
18 knowledge, as an Electronic Software Association Private Investigator who conceivably
19 routinely conducts these types of investigations in California, about the strictures of the
20 California Privacy Act and his violation of the same. In particular, because there is no
21 audio sound to accompany the movements of Mr. Crippen’s mouth depicted on the video,
22 the jury will be required to make critical credibility determinations respecting Mr.
23 Rosario's report of what Mr. Crippen purportedly said at the meeting. For this reason, it
24 is essential that the defense test Mr. Rosario’s credibility on cross-examination in the face
25 of his violation of state law. The necessary process of delving into this area of state law
26 risks creating a mini-trial on the question of Mr. Rosario’s violation of state law which
27 will confuse the real issues for the jury’s determination, consume the jury’s time and waste
28 judicial resources at trial. On the other hand, the evidence is of less substantial probative

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1 value because it relates only to Count 1 of an Indictment charging two identical violations
2 of the law. Thus, if Mr. Rosario’s testimony is excluded, the government will still be able
3 to present evidence, based on the testimony and recordings created by the ICE undercover
4 agents, as to the identical charge in Count 2. Because the probative value of the evidence
5 is substantially outweighed, in light of the issues surrounding the California Privacy Act,
6 by the danger of confusion of the issues as well as considerations of undue delay and waste
7 of time, the testimony of Mr. Rosario should be excluded pursuant to Rule 403 as well.
8 III.
9 CONCLUSION
10 For all of the foregoing reasons, the Court should grant the Motion In Limine to
11 Exclude Testimony of Government Witness Tony Rosario and His Surreptitious Video
12 Recording on Account of Concomitant Exposure to Criminal and Civil Liability Under
13 California Law, Or In the Alternative, to Appoint Counsel to Advise Mr. Rosario
14 Respecting the Same.
15
16 Respectfully submitted,
17 SEAN K. KENNEDY
Federal Public Defender
18
19
DATED: October 18, 2010 By /s/
20 CALLIE GLANTON STEELE
Deputy Federal Public Defender
21
22 By /s/
KOREN L. BELL
23 Deputy Federal Public Defender
24
By /s/
25 ASAL AKHONDZADEH
Deputy Federal Public Defender
26
27
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