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United States v. Estephane

United States District Court, W.D. Kentucky, Louisville

October 31, 2017



          Thomas B. Russell, Senior Judge

         This matter is before the Court upon seven Motions in Limine. These matters are now ripe for adjudication. The Court's disposition is discussed in detail below.

         I. Background

         Defendant Elias Estephane (“Estephane”) has been charged by the United States with one count of Food Stamp Fraud, in violation of 7 U.S.C. § 2024(b), and two counts of Wire Fraud, in violation of 18 U.S.C. § 1343. [DN 1, at 1-3.] These charges stem from Estephane's operation of “The Meat Store, ” a meat and poultry store he owned in Louisville, Kentucky. [Id. at 2.] The Meat Store participated in the Supplemental Nutrition Assistance Program (“SNAP”). [DN 31.] The United States alleges that “[f]rom in or around January 2012, through in or around July 2016, in furtherance of the scheme and artifice to defraud, [Estephane] agreed to provide cash in exchange for [SNAP] benefits. Specifically, individuals receiving [SNAP] benefits would provide [Estephane] with their Electronic Benefits Transfer cards, and request a specific amount of cash.” [DN 1, at 2-3.] Then Estephane would allegedly “give the individual the requested amount in cash, then charge approximately twice the requested amount to a card. [Id.] The United States further alleges that Estephane's actions caused wire communications in interstate commerce, thus constituting wire fraud. [Id. at 3.] Estephane “does not dispute that he participated in the SNAP program during the period stated in the Indictment, but does dispute the claim that he executed a scheme to defraud or misrepresent material information to the Government.” [DN 31, at 1.] The parties have filed seven Motions in Limine, four by Estephane and three by the United States. The merits of these motions are discussed below.

         II. Legal Standard

         Utilizing its inherent authority to manage the course and direction of the trial before it, this Court has the power to exclude irrelevant, inadmissible, or prejudicial evidence through in limine rulings. See Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing Fed.R.Evid. 103(c)); Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013). Unless the evidence at issue is patently “inadmissible for any purpose, ” Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997), though, the “better practice” is to defer evidentiary rulings until trial. Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). This stance is favored so that “questions of foundation, relevancy and potential prejudice may be resolved in proper context.” Gresh v. Waste Servs. of Am., Inc., 738 F.Supp.2d 702, 706 (E.D. Ky. 2010). When this Court issues a ruling in limine, it is “no more than a preliminary, or advisory, opinion.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983), aff'd, 469 U.S. 38). Thus, even where a motion in limine is denied, the Court may return to its previous ruling at trial “for whatever reason it deems appropriate.” Id. (citing Luce, 713 F.2d at 1239).

         III. Motion in Limine to Exclude Local SNAP Comparisons

         The first Motion at issue is Estephane's Motion in Limine to exclude SNAP Comparisons. [DN 32.] The United States has responded. [DN 44.] Here, Estephane argues that, to the extent that the United States wishes to introduce monthly sales figures from other local meat and poultry stores for comparison purposes, such as Karem's Meats, Dong Phoung Grocery, and Butcher's Best, the United States should be precluded from doing so. [DN 32, at 1.] Estephane argues that “[i]t is not possible to determine whether a SNAP sale is legal by store-to-store comparison, ” and that “[s]uch evidence is not relevant to the question of whether Mr. Estephane's SNAP sales were legitimate and are not admissible under FRE 402.” [Id.] Further, Estephane argues that, even if the monthly sales comparisons have any relevancy to the instant case, “any probative value is substantially outweighed by the danger of unfair prejudice and thus is inadmissible pursuant to FRE 403.” [Id.] In its Response, the United States “agree[s] to the primary request in [Estephane's] motion, in that [the United States] will not seek to introduce monthly total SNAP sales numbers in store-to-store comparison including Karem's Meats, Dong Phoung Grocery, and Butcher's Best. Because of this, Estephane's Motion in Limine on this issue has been rendered moot.

         IV. Motion in Limine to Exclude Informant Video

         The second Motion at issue is Estephane's Motion in Limine to exclude a video taken of a transaction between a confidential informant and a sales clerk at the Meat Store. [DN 39.] The United States has responded to this Motion. [DN 43.] As described in Estephane's Motion, this video “purports to show an undercover transaction in [Estephane's] retail establishment known as the ‘Meat Store.' Mr. Estephane is not shown in the video. The informant…makes a $7.00 transaction and asks for change back on his EBT card. The informant deals with another individual (not the Defendant Estephane).” [DN 39, at 1.] Estephane argues that “[t]he video does not establish that a crime occurred, ” and that it “is so minimally probative of any issue of consequence in this case that it's [sic] admission will necessarily create a danger of misuse by the jury to the Defendant's substantial prejudice.” [Id.] Further, Estephane argues that the video “is an attempt by the United States to show a culture of crime occurring at Mr. Estephane's store.” [Id.] Estephane seeks to have this video excluded under Federal Rules of Evidence 403 and 404. Rule 403 allows for the exclusion of relevant evidence “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. Rule 404(a) prohibits the introduction of propensity evidence. Fed.R.Evid. 404(a).

         The United States has made known its intention to introduce this video into evidence at trial. To that end, the United States makes three separate arguments. First, it argues that Estephane “was responsible for any SNAP benefits fraud done by his employees.” [DN 43, at 2.] Estephane, as the owner of the Meat Store, “is the one who would profit from any SNAP benefits fraud, ” because “[a]ll money from SNAP benefits used at the Meat Store was deposited into a bank account under [Estephane's] control.” [Id.] Additionally, Estephane was responsible for training his employees on SNAP issues and for making sure they followed proper protocols. Thus, the United States argues, “[t]he fact that [Estephane] was responsible for training employees on SNAP regulations and was the one who profited from violations of the regulations through fraud provides a solid evidentiary basis for linking SNAP-related actions of Meat Store employees to the Defendant.” [Id.] The United States uses this information to try and establish that “the employee is a co-conspirator, and the comment [made by the employee to the informant regarding SNAP benefits exchanges for cash] is a co-conspirator statement.” [Id. at 2-3.] The Court rejects this argument.

         Pursuant to Federal Rule of Evidence 801(d)(2)(E), a statement made by a defendant's co-conspirator “during and in furtherance of the conspiracy” is not hearsay. For such a statement to be admissible under this rule, the proffering party must prove three things: (1) a conspiracy existed; (2) that the defendant was a member of this conspiracy; and (3) the co-conspirator's statement was made in furtherance of that conspiracy. United States v. Rogers, 118 F.3d 466, 477 (6th Cir. 1997). As an initial matter, the United States has not shown that a conspiracy existed with respect to the alleged fraudulent exchange of SNAP benefits for cash. The employee from the informant video was not indicted, is not a co-defendant in this case, and the United States has not set forth facts or an argument tending to show that a “conspiracy” existed under the meaning of the term. “The government must submit non-hearsay evidence - evidence beyond the declarant's statements - to corroborate these contentions.” United States v. Harris, 200 F. App'x 472, 485 (6th Cir. 2006) (citing United States v. Payne, 437 F.3d 540, 544 (6th Cir. 2006), cert. denied, 547 U.S. 1217 (2006)). Here, the United States has simply failed to show that (a) a conspiracy existed, or (b) that the employee in the video or Estephane was actually a part of it. Because the United States has not shown that a conspiracy existed and, if it did, what members comprised it, or what the conspiracy's aims were, the Court need not reach the issue of whether the statements in the video were made in furtherance of that conspiracy.

         The second argument advanced by the United States is that “the transaction [shown in the video] is important background information for Confidential Informant No. 2's testimony.” [DN 43, at 3.] Here, the United States cites United States v. Roberts, 548 F.2d 665, 667 (6th Cir. 1977) for the proposition that “[t]he jury is entitled to know the ‘setting' of a case.” This is true, as is the notion that a jury “cannot be expected to make its decisions in a void - without knowledge of the time, place, and circumstances of the acts which form the basis of the charge.” Id. However, the Court does not believe that this language is properly applied to the informant video in this case. First, Estephane, the individual actually charged, is not present in the video, nor is he referenced in the video. Second, the video does not show any fraud taking place. [See DN 43, at 3, explaining that the informant “was unsuccessful, but he was encouraged to come back to the store.”] Third, the Court fails to see how the video is “relevant to…any attacks on Confidential Informant No. 2's credibility, ” or how “[l]eaving out the first visit would mislead the jury.” [Id.] Instead, the Court agrees with Estephane's characterization of the video that the “minimal[ly] probative value of this video contrasts sharply with its potential to unfairly prejudice the Defendant and confuse the jury.” [DN 39, at 3.] In short, the jury is certainly entitled to “know the setting of [the] case, ” Roberts, 548 F.2d at 667, but the Court finds that this generalism is not appropriately applied to an undercover informant video which shows no illegal activity or the defendant.

         The third argument offered by the United States is that the “transaction is relevant to proving the Defendant's knowledge of SNAP restrictions on trading cash for SNAP benefits.” [DN 43, at 3.] This argument is unconvincing, for while the conduct of the employee in the video is questionable, Estephane was not present when the exchange took place, nor did the employee expressly reference Estephane's willingness to fraudulently exchange SNAP benefits for cash. Instead, the video merely shows one of Estephane's employees suggesting that an exchange could be made in the future if the informant shopped at the Meat Store more frequently. The United States has made known its intention to offer testimony that Estephane's two sons, employees at the Meat Store, had actual knowledge of the fraudulent scheme. [Id.] Thus, this video is certainly relevant under Federal Rule of Evidence 401. However, even where evidence is relevant, it may be excluded where that relevance is substantially outweighed by the danger of unfair prejudice or confusing the jury, among other issues. Fed.R.Evid. 403. The Court utilizes its broad discretion on evidentiary matters to exclude this video. The United States argues that the video is not unfairly prejudicial because “the Defendant was not even ...

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