UNITED STATES v. MENCIA HERNANDEZ (2025)

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Defendant Kevin Anael Mencia-Hernandez is charged by indictment with one count of illegal re-entry. See Dkt. No. 29. Trial is set to commence on July 21, 2025. See Dkt. No. 74. Presently before the Court is the Government's motion in limine to admit evidence, Dkt. No. 83, the Government's motion in limine to preclude improper defense argument, Dkt. No. 84, and Defendant's motion in limine to preclude evidence of prior arrest, Dkt. No. 92. The Government filed a supplemental letter brief requesting additional relief. See Dkt. No. 93. Defendant filed a response. See Dkt. No. 94. For the reasons set forth below, the Government's motion in limine to admit evidence is granted in part and denied in part, the Government's motion in limine to preclude improper defense argument is reserved in part and granted in part, and Defendant's motion in limine to preclude evidence of prior arrest is granted in part and denied in part.

II. STANDARD OF REVIEW

The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n.2, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996); Nat'l Union Fire Ins. Co. of Pittsburgh v. L.E. Myers Co., 937 F. Supp. 276, 283 (S.D.N.Y. 1996). “Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds.” United States v. Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001) (citations omitted). “[C]ourts considering a motion in limine may reserve decision until trial, so that the motion is placed in the appropriate factual context.” Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 536 (E.D.N.Y. 2011) (citing Nat'l Union Fire Ins. Co., 937 F. Supp. at 287). Further, a district court's ruling on a motion in limine is preliminary and “subject to change when the case unfolds.” Luce, 469 U.S. at 41, 105 S.Ct. 460. The moving party bears the burden of establishing that evidence is inadmissible for any purpose and so properly excluded on a motion in limine. See United States v. Pugh, 162 F. Supp. 3d 97, 101 (E.D.N.Y. 2016).

III. DISCUSSION

Familiarity with the alleged facts of this case, as set forth in the Criminal Complaint, Dkt. No. 1, the Indictment, Dkt. No. 29, and the Court's prior memorandum-decision and order, Dkt. No. 51, is presumed. In summary, Defendant is a native and citizen of Honduras. On or about June 6, 2022, Defendant was arrested by the Colonie Town Police Department (“Colonie Police”) and had his fingerprints taken. Immigrations and Customs Enforcement (“ICE”) was notified of Defendant's fingerprints and determined through an investigation that Defendant was ordered removed to Honduras on July 17, 2016. Thereafter, Defendant was charged by complaint with illegal re-entry on November 17, 2022.

The Government seeks the following: 1) an order confirming the admissibility of evidence related to the fact of the June 6, 2022 arrest by Colonie Police and the subsequent fingerprinting, and 2) an order precluding improper argument, testimony or evidence related to alleged assaults or threats in Honduras or Mexico, a duress defense, sentencing penalties, and immigration consequences. See Dkt. Nos. 83, 84, 93. In turn, Defendant seeks an order precluding reference to his June 6, 2022 arrest and permitting a duress defense. See Dkt. No. 92, 94.

A. June 6, 2022 Arrest

First, Defendant “seeks to exclude evidence of his arrest and encounter with Colonie town police.” Dkt. No. 92 at 2.¹ The Government argues that such evidence is “direct evidence” in this case because it “explain[s] how ICE became aware of the defendant[.]” Dkt. No. 83 at 2. However, the Government clarifies that it “does not seek to introduce evidence of the underlying facts of the arrest; merely, that an arrest took place, which necessarily involved fingerprinting and the subsequent notification to ICE.” Id.

i. 404(b)

Rule 404(b)(1) of the Federal Rules of Evidence (“Rule 404(b)(1)”) establishes that “[e]vidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Id. However, Rule 404(b)(2) expressly provides that evidence of other crimes, wrongs or acts “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id. The Second Circuit “has adopted an ‘inclusionary’ approach to other act evidence under Rule 404(b), which allows such evidence to be admitted for any purpose other than to demonstrate criminal propensity.” United States v. Scott, 677 F.3d 72, 79 (2d Cir. 2012) (citing United States v. LaFlam, 369 F.3d 153, 156 (2d Cir. 2004) (per curiam)). Additionally, although Rule 404(b) typically covers other acts of the defendant, “[e]vidence of uncharged criminal conduct is not evidence of other crimes, wrongs, or acts under Rule 404(b) if that conduct arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial.” United States v. Zhong, 26 F.4th 536, 551 (2d Cir. 2022) (internal quotation marks and citations omitted).

Here, evidence related to Defendant's June 6, 2022 arrest is inextricably intertwined with the charged conduct, and therefore, it is not governed by Rule 404(b). See Zhong, 26 F.4th at 551. Proving that Defendant is guilty of illegal re-entry in this case requires the Government to demonstrate that it “found” the Defendant in the United States. See 8 U.S.C. § 1326(a). That element requires a demonstration that the Government was “aware that [the defendant] had previously been deported.” United States v. Calderon, 85 F. Supp. 2d 319, 321 (S.D.N.Y. 2000) (discussing where a defendant was “found” for venue purposes). Put differently, “[t]he offense of being ‘found in’ the United States ․ depends not only on the conduct of the alien but also on acts and knowledge of the federal authorities.” United States v. Macias, 740 F.3d 96, 98 (2d Cir. 2014) (quoting United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir. 1995)); see also United States v. Acevedo, 229 F.3d 350, 355 (2d Cir. 2000) (“The commission of the offense is not complete ․ ‘until the authorities both discover the illegal alien in the United States, ․ and know, or with the exercise of diligence typical of law enforcement could have discovered, the illegality of his presence.’ ” (quotation omitted)). Therefore, the Government correctly notes that precluding all evidence related to the June 6, 2022 arrest would hamstring its ability to prove its case and would constitute an improper application of Rule 404(b). See Dkt. No. 83 at 3 (“The fingerprint notification from the defendant's arrest serves as the basis of the federal government having ‘found’ the defendant in the United States after having previously been removed.”).

ii. 403

Although the evidence related to the June 6, 2022 arrest is not precluded pursuant to Rule 404(b), that evidence must still survive scrutiny under Rule 403. United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (applying Rule 403 to evidence which is found to be inextricably intertwined and outside the scope of Rule 404); United States v. James, 607 F. Supp. 3d 246, 254 (E.D.N.Y. 2022) (“whether uncharged conduct constitutes direct evidence or ‘other crimes’ evidence under Rule 404(b), ‘the uncharged conduct must still survive scrutiny’ under Rule 403's balancing test to be admissible” (citation omitted)). “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ․ unfair prejudice.” Fed. R. Evid. 403.

Defendant has agreed to stipulate to the fact that he was “presen[t]” in the United States and argues that the manner in which he was found is irrelevant, and thus, he concludes that the probative value of such evidence is greatly diminished. See Dkt. No. 92 at 3-4; see also Dkt. No. 94 at 2 (“The Government must prove that he was found in the United States, and not the means or manner behind that discovery.”). But, as discussed above, Defendant misses a key distinction. Beyond an individual's “physical presence,” being “found” requires a demonstration that the Government was “aware that [the defendant] had previously been deported.” Calderon, 85 F. Supp. 2d at 321. Therefore, Defendant's offer to stipulate to his presence in the United States does not entirely negate the evidence's probative value. Instead, certain evidence related to the June 6, 2022 arrest, including the evidence of Defendant's fingerprints, is separately probative of the Government's awareness of his prior deportation.

On the other hand, the prejudicial effect of the arrest itself is considerable. See Thomas v. Messer, 5:15-CV-1112, 2017 WL 11318534, at *3 (N.D.N.Y. Sep. 27, 2017) (“Evidence of [prior, unrelated arrests] is unduly prejudicial and should not be admitted.”). Even if such evidence were to be limited to the essential fact that an arrest took place, as the Government proposes, the jury would be left to speculate as to the conduct underlying that arrest.

Nevertheless, the Court finds that the prejudicial effect of the disputed evidence can be minimized while preserving the Government's ability to present evidence probative of its case. The Government may offer evidence that immigration authorities were notified of Defendant's presence through an alert that his fingerprints were taken in Colonie, New York on June 6, 2022. The Government may not delve into why those fingerprints were taken. Through this limitation, the Government retains the ability to present evidence probative of the charge at issue, see Macias, 740 F.3d at 98. Indeed, the Government itself admits that it seeks to present evidence related to the arrest to establish the “fingerprinting and the subsequent notification to ICE.” Dkt. No. 83 at 2. Thus, the exclusion of details surrounding the arrest itself does not undermine the Government's ability to prove its case. Additionally, by precluding mention of the arrest itself, the prejudicial effect of the evidence is reduced. Though a jury might be left to wonder why Defendant's fingerprints were taken, the Court notes that any residual prejudicial effect is further limited by the fact that the Government has not proposed introducing the evidence of the June 6, 2022 fingerprinting through a member of the Colonie Police. See Dkt. No. 82. Thus, the jury is less likely to draw the inference that the fingerprinting resulted from an arrest. The Court concludes that the prejudicial effect of the evidence in this limited form does not substantially outweigh the evidence's probative value. See Rule 403.

Therefore, the Court grants Defendant's motion in limine to the extent it seeks to exclude evidence of the June 6, 2022 arrest itself and the conduct underlying that arrest. The Court also grants the Government's motion in limine to the extent that it seeks to present evidence that immigration authorities were notified of Defendant's presence through an alert that his fingerprints were taken in Colonie, New York on June 6, 2022. Testimony and evidence as to the specific source of that alert, the Colonie Police's arrest of Defendant, is precluded.

B. Duress Defense

In its initial motion in limine, the Government seeks to preclude evidence relating to “prior alleged assaults in Honduras and Mexico, threats to the defendant in Honduras, the potential sentences[,] and collateral consequences the defendant would face upon conviction, including removal and future exclusion from the United States.” Dkt. No. 84 at 3. Defendant's pre-trial submissions and his response to the Government's motion in limine reveal that he intends to use at least some of the evidence the Government wants excluded to support a duress defense at trial. See Dkt. No. 86 at 4; Dkt. No. 94. The Government has clarified that it also seeks to preclude the duress defense altogether.² See Dkt. No. 93. Thus, the Court must determine whether it may preclude the duress defense before trial, and if so, whether the defense should in fact be precluded in this case.

This Court may preclude a defense “[w]here the evidence to be presented would be insufficient as a matter of law ․ no proper interest of the defendant would be served by permitting his legally insufficient evidence to be aired at trial, and interests of judicial economy suggest that the jury should not be burdened with the matter.” United States v. Villegas, 899 F.2d 1324, 1343 (2d Cir. 1990) (affirming a district court's exclusion of a duress defense); see also United States v. Crown, No. 99 CR. 1044( ), 2000 WL 709003, at *1 (S.D.N.Y. May 31, 2000) (“It is well established that a district judge may preclude a necessity defense by granting a motion in limine.”), aff'd 12 Fed. Appx. 59, 61 (2d Cir. 2001). Generally, “[a] defendant is entitled to a jury instruction regarding duress only if he makes some showing on each element of the defense.” United States v. Zayac, 765 F.3d 112, 120 (2d Cir. 2014) (internal quotation marks and citation omitted). Thus, before this Court may determine whether Defendant can pursue the duress defense at trial, it must determine the requirements of such a defense.

i. Requirements for Asserting a Duress Defense

The elements of a duress defense are as follows: “(1) a threat of force directed at the time of the defendant's conduct; (2) a threat sufficient to induce a well-founded fear of impending death or serious bodily injury; and (3) a lack of a reasonable opportunity to escape harm other than by engaging in the illegal activity.” United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005).

Put differently, the third element requires that a defendant must “pursue ‘a reasonable, legal alternative to violating the law[.]’ ” United States v. Charleus, 871 F.2d 265, 270 (2d Cir. 1989) (quoting United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980)). A duress defense fails if the Defendant had “a chance both to refuse to do the criminal act and also to avoid the threatened harm[.]” Bailey, 444 U.S. at 410, 100 S.Ct. 624. In the context of illegal re-entry, a duress defense typically fails under the third element if a Defendant cannot explain why he could not enter a country other than the United States to escape the alleged harm. See United States v. Crown, 12 Fed. Appx. 59, 61 (2d Cir. 2001) (summary order) (agreeing with the district court that a defendant “was not entitled to offer evidence at trial on the defense of necessity because there were lawful alternatives available to him other than entering the United States illegally” including travel to another country); United States v. Bonilla-Siciliano, 643 F.3d 589, 591 (8th Cir. 2011) (precluding duress where defendant did not “exclude the option of going to a country other than the United States or the handful of others he stated were dangerous”).

Courts have also found that establishing the duress defense is particularly burdensome in relation to continuing offenses such as illegal re-entry.³ To succeed on a duress defense in relation to a continuing offense, a defendant bears the burden of demonstrating that he made a “bona fide effort to surrender ․ as soon as the claimed duress or necessity had lost its coercive force.” Bailey, 444 U.S. at 413-14, 100 S.Ct. 624 (assessing a duress defense in the context of an escape charge); see also United States v. Sawyer, 558 F.3d 705, 711 (7th Cir. 2009) (“Supreme Court precedent also suggests that when a defendant presenting a duress defense committed an ongoing crime ․ that defendant must have ceased committing the crime as soon as the claimed duress lost its coercive force.”). Defendant argues he need not demonstrate a bona fide effort to surrender at the first safe opportunity to do so. Dkt. No. 94 at 6-7. For the reasons set forth below, the Court disagrees and finds Defendant's arguments unavailing.

First, Defendant contests whether Bailey is applicable to the current case because there, the court required a “bona fide effort to surrender” in the context of an escape charge, not an illegal re-entry charge. Id. at 6 n.2. But Defendant acknowledges that both charges are “ongoing or continuing offenses[,]” the very basis for the disputed requirement identified in Bailey. Id.; see Bailey, 444 U.S. at 413, 100 S.Ct. 624. Thus, Defendant's attempt to distinguish Bailey fails. With both charges, the criminal conduct continues after the initial action, either escape or re-entry, and thus, the defendant must demonstrate a continuing justification for his conduct to successfully invoke the defense. See United States v. Portillo-Vega, 478 F.3d 1194, 1201 (10th Cir. 2007) (applying Bailey to an illegal re-entry defendant); see also Sawyer, 558 F.3d at 713 (applying Bailey outside of the escape context).

Second, Defendant (correctly) notes that “the Second Circuit has had remarkably little to say on the issue.” Dkt. No. 94 at 7. Though there appears to be no binding precedent from the Second Circuit on whether a surrender at the first safe opportunity is required in the illegal reentry context, the Court notes the concurrence by Judge Raggi in Macias, which explicitly states that to succeed on a duress defense for such a charge, a defendant must establish that he or she “surrendered to authorities at the first safe opportunity to do so.” 740 F.3d at 107 n.3 (citation omitted). Moreover, Defendant does not meaningfully distinguish the non-binding precedent from other Circuits imposing such a requirement for continuing offenses, including illegal reentry. Therefore, the Court finds that if “[a]t any point in time after his re-entry, [Defendant] could have taken the opportunity to contact authorities for help with any threat of harm” the defense will fail as a matter of law. United States v. Diaz-Ramos, No. 5: 22-056-DCR, 2022 WL 3449473, at *2 (E.D. Ky. Aug. 17, 2022), aff'd No. 22-6082, 2023 U.S. App. LEXIS 28187 (6th Cir. Oct. 23, 2023); see also United States v. Meraz-Campos, 838 Fed. Appx. 268, 271 (9th Cir. 2020); United States v. Arias-Quijada, 926 F.3d 1257, 1260 (10th Cir. 2019); United States v. Ibarra-Pino, 657 F.3d 1000, 1005 (9th Cir. 2011); Portillo-Vega, 478 F.3d at 1201 (finding that duress defense was unavailable where defendant “was in the United States illegally for over three months before he was apprehended” because he did not surrender).

Third, Defendant cites to the “standard” criminal jury instructions to support his argument that he has satisfied the requirements of a duress defense. See Dkt. No. 94 at 4 (quoting 2 Leonard B. Sand et al., Modern Federal Jury Instructions: Criminal (2025) (hereafter “Sand”)). But the commentary to the Sand Jury Instructions also explicitly states that the defendant carries the burden “to establish all elements of the defense, including the fact that the defendant surrendered to authorities at the first safe opportunity to do so.” Sand at Instr. 33A-36 cmt. Therefore, the Court finds that the weight of non-binding authority, the Supreme Court's reasoning in Bailey, and Defendant's own preferred model jury instructions support a requirement that a defendant charged with illegal re-entry who asserts a duress defense must demonstrate a bona fide effort to surrender as soon as the claimed duress loses its coercive force.

Thus, the Court finds that Defendant must demonstrate the following to ultimately succeed on his duress defense: (1) a threat of force directed at the time of the defendant's conduct; (2) a threat sufficient to induce a well-founded fear of impending death or serious bodily injury; (3) a lack of a reasonable opportunity to escape harm other than by engaging in the illegal activity, including the realistic opportunity to enter a country other than the United States; and (4) a bona fide effort to surrender as soon as the claimed duress or necessity had lost its coercive force. See Gonzalez, 407 F.3d at 122; Bailey, 444 U.S. at 413, 100 S.Ct. 624.

ii. Opportunity to Present Evidence

Having determined the relevant requirements for establishing a duress defense, the Court turns to whether Defendant has made a sufficient showing, and if not, whether he should be afforded an opportunity to do so prior to trial.

To avoid preclusion of a defense in its entirety, a defendant need only show “some foundation in the proof, no matter how tenuous” of duress. See United States v. Dove, 916 F.2d 41, 47 (2d Cir. 1990). Here, Defendant previously provided a short declaration covering facts overlapping with his duress defense in connection with a separate motion. See Dkt. No. 39-1. Defendant has also provided a brief description of the evidence he plans to offer in support of the duress defense at trial in his response to the Government's motion in limine. See Dkt. No. 94 at 3. Nevertheless, Defendant has represented that he is available to provide testimony related to the duress defense before trial, id., and the Court finds it appropriate to defer its determination as to whether Defendant may present the duress defense to the jury until it hears such testimony.

To avoid the needless presentation of potentially irrelevant and inflammatory evidence before the jury, the Second Circuit has “recognized that it is appropriate for a court to hold a pretrial evidentiary hearing to determine whether a defense fails as a matter of law.” United States v. Paul, 110 F.3d 869, 871 (2d Cir. 1997); see also United States v. Htut, No. 22-CR-671 (NSR), 2023 WL 4399049, at *7 (S.D.N.Y. July 7, 2023) (scheduling a hearing because “[a]t this stage in the proceedings, the Court is not ready to preclude Defendant from making a duress defense without first allowing Defendant a formal opportunity to make the requisite showing”); United States v. Pestana, 865 F. Supp. 2d 357, 362-67 (S.D.N.Y. 2011) (describing pretrial evidentiary hearing regarding duress defense).

The Court will schedule a pre-trial hearing for the purpose of determining whether Defendant may pursue a duress defense at trial. Defendant will be permitted to testify and offer any additional evidence he plans to submit in support of his duress defense at trial. After Defendant concludes his presentation, the Court will afford both parties the opportunity to argue whether Defendant has met his burden to demonstrate a foundation of evidence capable of tenuously supporting a duress defense. If the Court finds that the facts supporting the duress defense would be insufficient as a matter of law, the Court will preclude evidence relating to the defense from trial. If the Court finds that Defendant has demonstrated a foundation of evidence supporting the duress defense, the Court will permit Defendant to argue duress at trial, “even if the [Court] determines that the evidentiary foundation of the defense theory is only tenuous.” Htut, 2023 WL 4399049, at *7 (quoting Paul, 110 F.3d at 871).

To the extent that the Government asks this Court to preclude the duress defense without affording Defendant the opportunity to make a pre-trial evidentiary showing, the Court denies the Government's request. Indeed, the cases cited by the Government demonstrate that a hearing is typically afforded in similar circumstances. See Portillo-Vega, 478 F.3d at 1196 (noting that the defendant was given the opportunity to “ma[k]e a proffer of evidence”); Bonilla-Siciliano, 643 F.3d at 590 (noting that the defendant made “an offer of proof for the proposed necessity defense”); United States v. Polanco-Gomez, 841 F.2d 235, 238 (8th Cir. 1988) (noting defendant made an “offer of proof”); see also United States v. Alicea, 837 F.2d 103, 104 (2d Cir. 1988) (“The principal question presented by this case is whether two female drug couriers presented sufficient evidence at a pretrial in limine hearing to warrant submission of a duress defense to a jury.”).

The Court notes that even if Defendant is permitted to submit a duress defense to the jury, the Court specifically precludes reference to the potential immigration consequences of a conviction. See United States v. Feuer, 403 F. App'x 538, 540 (2d Cir. 2010) (“except in certain limited circumstances, a defendant has no legal right to introduce evidence or argument regarding sentencing consequences”). Indeed, Defendant does not oppose an order barring evidence “relating to punishment, future deportation, or nullification[.]” Dkt. No. 94 at 2 n.1.⁴

IV. CONCLUSION

Accordingly, the Court hereby

ORDERS that the Government's motion in limine to admit evidence of the 2022 arrest, Dkt. No. 83, is GRANTED IN PART and DENIED IN PART, as set forth in Section III(A) of this Memorandum-Decision and Order; and the Court further

ORDERS that the Government's motion in limine to preclude improper defense argument, Dkt. No. 84, is RESERVED IN PART pending a potential hearing on the availability of a duress defense and GRANTED IN PART, as set forth in Section III(B) of this Memorandum-Decision and Order; and the Court further

ORDERS that Defendant's motion in limine to preclude evidence of 2022 arrest, Dkt. No. 92, is GRANTED IN PART and DENIED IN PART, as set forth in Section III(A) of this Memorandum-Decision and Order; and the Court further

ORDERS that the parties appear for a hearing on the duress defense on July 14, 2025 at 2:00 PM, and that the previously scheduled pre-trial conference at that time is rescheduled to immediately follow the hearing on the same date; and the Court further

ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the Parties in accordance with the Local Rules.

IT IS SO ORDERED.

FOOTNOTES

1.   Citations to docket entries utilize the pagination generated by CM/ECF, the Court's electronic filing system, and not the documents’ internal pagination.

2.   The Government does not challenge the availability of the duress defense in illegal re-entry cases generally, but instead, challenges only the sufficiency of Defendant's showing in this case.

3.   The parties do not dispute that illegal re-entry is a continuing offense for purposes of assessing a duress defense. See Dkt. No. 94 at 6 n.2; see also United States v. Constantine, 417 F. Supp. 2d 337, 339-40 (S.D.N.Y. 2006) (finding that the offense of being “found in” the United States continues until the defendant is discovered by authorities).

4.   Though Defendant asks the Court to deny this portion of the Government's motion as moot in light of his intention not to introduce such evidence, the Court finds it more appropriate to grant the motion and affirmatively preclude such evidence. See Philadelphia Indemnity Ins. Co. v. Barker, 1:19-CV-1456, 2021 WL 2826441, at *1 (N.D.N.Y. July 7, 2021) (granting motion in limine where there is no opposition); United States v. Rodriguez, 582 F. Supp. 2d 486, 488 (S.D.N.Y. 2008) (“[Defendant] does not oppose the motion, and the Court finds no reason to deny the motion.”); Zhang v. Rosenbaum, Famularo & Segall, P.C., 22-CV-1422(SIL), 2025 WL 622548, at *2 (E.D.N.Y. Feb. 25, 2025) (granting motion in limine where there is no opposition).

Anne M. Nardacci, United States District Judge: