Government’s Response to Defendant’s Pretrial Motions in Limine — United States v. Dean A. Tran, No. 23-10299-FDS (Dkt. 73, D. Mass.)

Summary

In this filing, with a certificate of service dated August 16, 2024, the government responds to six pretrial motions of defendant Dean A. Tran in United States v. Dean A. Tran, Criminal No. 23-10299-FDS (D. Mass.). It says it does not intend to introduce evidence of Tran's two pending state cases unless the defense opens the door, and opposes motions to bar undisclosed witnesses, to exclude Tran's recorded statements at a May 21, 2021 unemployment benefit appeal hearing before the DUA, and to compel use immunity for Tran's sister Tuyet Martin, whom a grand jury indicted on or about June 20, 2024 for obstruction of justice and perjury. It agrees potential jurors should be told to avoid news about the case and argues that third party witnesses may not opine on Tran's state of mind. Acting United States Attorney Joshua S. Levy's office filed it.

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA )
)
v. ) Criminal No. 23-10299-FDS
)
DEAN A. TRAN, )
)
Defendant )

GOVERNMENT’S RESPONSE TO DEFENDANT’S PRETRIAL MOTIONS IN LIMINE

The government herein responds to defendant Tran’s pretrial motions in limine, docket

entries (DE) 67 (MIL to Preclude Mention or Use of Other Pending Charges); 68 (MIL to Preclude

Testimony by Any Undisclosed Witnesses); 69 (MIL to Exclude DUA Testimony); 70 (Motion on

Extraneous Publicity); 71 (Motion for Immunity for Defense Witness); and 72 (MIL to Allow

Argument on Defendant’s Mens Rea).

1. Defendant’s MIL to Preclude Mention or Use of Other Pending Charges (DE 67)

The government does not intend to introduce evidence pertaining to defendant Tran’s two

pending state cases where Tran is accused of theft of a firearm in one action and is accused of

abusing his official position as state senator in using state taxpayer resources in aid of his personal

political campaign in the other, see DE 67 at 1. Should defendant Tran present evidence that opens

the door to either line of inquiry, however, the government, reserves the right to do so, but only

after giving prior notice to the Court and defense counsel. “A defendant's introduction of evidence

may render his prior acts relevant for impeachment purposes, thus making admissible what may

not have been admissible otherwise under Fed. R. Evid. 404(b).” See United States v. Johnson,

79 F.4th 684, 699 (6th Cir. 2023) (quoting United States v. Clingman, 521 F. App’x 386, 395 (6th

Cir. 2013)).
2. Defendant Tran’s Motion to Preclude Testimony by Any Undisclosed Witnesses
(68)

The government opposes this motion. Defendant Tran cites no case law for the proposition

that the government is precluded from calling heretofore undisclosed witnesses. In the event that

the government intends to call a witness that has not been previously disclosed, the government

will inform the defense as soon as reasonably practicable and will provide any required Jencks, if

applicable, prior to calling such witness.

3. Defendant Tran’s Motion in Limine to Exclude DUA Testimony (69)

The defendant’s motion seeks to “exclude any prior testimony from the DUA Hearing.”

DE 69 at 1. The government opposes this motion. First, defendant Tran’s motion is contrary to

Fed. R. Evid. 802(d)(2)(A), which provides that statements that are “offered against an opposing

party and … [are] made by the party in an individual or representative capacity” are not hearsay.

Defendant Tran’s recorded statements to DUA representative Debra Lerner during Tran’s May 21,

2021 unemployment benefit appeal hearing fall squarely within Rule 802(d)(2)(A) and are thus

admissible.

Second, DUA representative Debra Lerner’s statements to defendant Tran during Tran’s

May 21, 2021 appeal hearing are admissible under Fed. R. Evid. 801(c)(2) because Ms. Lerner’s

statements are not offered for their truth, but rather offered to show defendant Tran’s state of mind.

See United States v. Munera-Gomez, 70 F.4th 22, 33 (1st Cir. 2023) (citing United States v. Feliz,

794 F.3d 123, 132-33 (1st Cir. 2015) (explaining that “testimony ... offered to show the effect of

the words spoken on the listener ... is a nonhearsay utterance because it is not being used to prove

the truth of the matter asserted”)). Without the admission of Ms. Lerner’s portion of the back-and-

forth question-and-answer session with defendant Tran during his appeal hearing, the jury would

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be left without context and have no understanding as to what Tran was agreeing with or responding

to in his statements to Ms. Lerner.

Finally, the recorded May 21, 2021 PUA appeal hearing for defendant Tran is a business

record of the DUA that is admissible pursuant to Fed. R. Evid. 803(6). The recorded hearing was

made at or near the time of the May 21, 2021 hearing; the recording was made in the regular course

of business activity of the DUA; and the making of the recording was a regular practice of the

DUA, thus satisfying Rule 803(6)’s requirements. In addition, because the DUA hearing serves

an administrative purpose, i.e., ensuring that a recipient is qualified to receive unemployment

benefits, and because the DUA hearing does not have as its “primary purpose [ ] establishing or

proving past events potentially relevant to later criminal prosecution,” the record of the DUA

hearing is non-testimonial and thus admissible under the confrontation clause. See United States

v. Cameron, 699 F.3d 621, 640-42 (1st Cir. 2012) (citing Bullcoming v. New Mexico, 131 S.Ct. at

2714 n. 6 (2011) (internal citations omitted)).

4. Defendant Tran’s Motion on Extraneous Publicity (70)

The government agrees that potential jurors should be admonished from conducting their

own research on defendant Tran and to avoid reading any news articles concerning Tran and the

instant trial. The government notes, however, that the mere fact that a potential juror may be aware

of some pre-trial publicity regarding Tran is not automatically disqualifying. The test of whether

a prospective juror may be excluded for cause is whether or not the “juror’s views would prevent

or substantially impair the performance of his[/her] duties as a juror in accordance with his[/her]

instructions and his[/her] oath.” Wainwright v. Witt, 469 U.S. 412, 424 (1985) (internal quotation

marks and footnote omitted).

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5. Defendant Tran’s Motion for Immunity for Defense Witness (71)

Defendant Tran seeks to have the Court compel the government to grant use immunity to

Tran’s sister Tuyet Martin. The Court should deny this request because Tran has failed to show

that this is the “rare case” where the government has abused its discretion by “intentionally

attempting to distort the fact-finding process.” See United States v. Angiulo, 897 F.2d 1169, 1191-

92 (1st Cir. 1990) (recognizing “that the power to grant witness immunity” is vested in the

executive branch).

Briefly, on or about June 20, 2024, a grand jury indicted Tuyet Martin on charges of

obstruction of justice (18 U.S.C. § 1512(c)(2)) and perjury (18 U.S.C. § 1623(a)) for Tuyet’s role

in crafting a fake employment letter for Tran’s use in duping the DUA, attempting to destroy and

conceal evidence related to that letter, and then lying about her role in the grand jury. 1 It is plain

that any grant of immunity to Tuyet Martin would interfere with the ongoing criminal prosecution

of Ms. Martin.

[O]ur case law makes clear that where the government offers a plausible
reason for denying use immunity to a defense witness, such an assertion
“adequately deflects any insinuation that the government’s handling of
[the] witness was motivated by the sole purpose of keeping exculpatory
evidence from the jury.” See Castro, 129 F.3d at 233 (crediting
“government’s desire not to hinder ‘state or federal charges of
possession of controlled drugs and trafficking [that] could still be
brought [against the witness]’” (first alteration in original)).

United States v. Munera-Gomez, 70 F.4th 22, 29-30 (1st Cir. 2023) (quoting United States v.

Castro, 129 F.3d 226 (1st Cir. 1997)).

Defendant Tran protests the timing of Tuyet Martin’s indictment, citing to United States v.

Roach, 502 F.3d 425 (6th Cir. 2007), where the appellate court found the timing of the

1
The government incorporates by reference the Indictment brought in criminal action,
United States v. Dean A. Tran, Tuyet T. Martin, 24-cr-10178 (FDS), DE 1.
4
prosecution’s revocation of a defense witness’s handgun permit suspect. But defendant Tran’s

reliance on Roach is misplaced because even if the grand jury did not indict Tuyet Martin prior to

trial, the government would still have had a legitimate interest in the future prosecution of Ms.

Martin, such that a grant of immunity would be inappropriate. See Munera-Gomez, 70 F.4t at 30

(citing United States v. Mackey, 117 F.3d 24, 28-29 (1st Cir. 1997) (recognizing the government’s

interest in avoiding risk to possible future prosecution of a witness as a legitimate justification for

denying use immunity)).

Because the government has a legitimate interest in withholding use immunity from Tuyet

Martin, this case does not present the rare instance where a court would intercede with the

executive branch’s traditional decision-making authority. For these reasons, defendant Tran’s

motion to compel immunity for Ms. Martin should be denied.

6. Defendant Tran’s Motion in Limine to Allow Argument on Defendant’s Mens Rea
(72)

It is unclear what relief defendant Tran seeks from this motion. To the extent that Tran

wishes to argue that the evidence does not establish that he intentionally committed the crimes of

wire fraud and filing false tax returns, the defense is free to make arguments in summation that, in

the Court’s view, are proper commentary on the evidence or that ask the jurors to draw reasonable

inferences from admitted evidence.

What the defendant may not do, however, is to call third party witnesses (e.g., proposed

defense tax expert, Henry Kulik) to opine as to Tran’s state of mind. See Fed. R. Evid. 704(b) (“an

expert witness must not state an opinion about whether the defendant did or did not have a mental

state or condition that constitutes an element of the crime charged or of a defense,” since “[t]hose

matters are for the trier of fact alone.”); see also United States v. Serrano Delgado, 2018 WL

6333953, *1 (D.P.R. 2018) (defendant cannot elicit testimony from a third party as to the

5
defendant’s state of mind) (citing Fed. R. Evid. 602). Therefore, to the extent that defendant Tran

seeks to call third party witnesses to opine as to Tran’s mens rea with respect to the instant charges,

such relief should be denied.

Conclusion

Therefore, and for all the foregoing reasons, Tran’s motions that the government opposes

in their entirety – docket entries 68 (MIL to Preclude Testimony by Any Undisclosed Witnesses);

69 (MIL to Exclude DUA Testimony); and 71 (Motion for Immunity for Defense Witness) – are

unmeritorious, and the government requests that they be denied. As for the remaining defense

motions – DE 67 (MIL to Preclude Mention or Use of Other Pending Charges); DE 70 (Motion on

Extraneous Publicity); DE 72 (MIL to Allow Argument on Defendant’s Mens Rea) – because they

raise issues that may not yet be ripe, the government requests that the Court resolve such motions

when it deems necessary.

Respectfully submitted,

JOSHUA S. LEVY
Acting United States Attorney

By: /s/ Dustin Chao
DUSTIN CHAO
JOHN T. MULCAHY
Assistant U.S. Attorneys

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Certificate of Service

I certify that, on August 16, 2024, this document was sent electronically to the registered
participants as identified on the Notice of Electronic Filing (NEF) and mailed to the defendant via
U.S. mail or other postage delivery service.

/s/ Dustin Chao
Dustin Chao

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