United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
Rebecca Grady Jennings, District Judge
matter is before the Court on the Motion in Limine filed by
Defendant Eric Todd (“Todd”) to exclude the
United States from introducing certain evidence at the trial.
[DE 51]. The United States filed a Response. [DE 52]. Replies
were not permitted. [DE 9, Order Following Arraign., ¶
5]. The Court heard oral argument on May 15, 2019. This
matter is now ripe for adjudication.
has been in custody since his initial arraignment on March
16, 2017. [DE 9, 10, 11]. He was indicted for alleged
Possession of Methamphetamine with Intent to Distribute on or
about May 20, 2016 in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A). [DE 1, Ind.]. The United States
filed a superseding indictment against Todd on February 5,
2019. [DE 37, Sup. Ind.]. The superseding indictment states
“[f]rom in or about July 2014 to in or about December
2016, both dates being approximate and inclusive, in the
Western District of Kentucky, Jefferson County, Kentucky, and
elsewhere, ERIC TODD . . . conspired with other persons, both
known and unknown to the Grand Jury, to knowingly and
intentionally possess with intent to distribute 50 grams or
more of methamphetamine . . . and one kilogram or more of
heroin . . .” [Id.]. The superseding
indictment thus changes the count to Conspiracy to Possess
with Intent to Distribute Methamphetamine and Heroin in
violation of 21 U.S.C. § 846. [DE 37, Sup. Ind.]. The
superseding indictment also adds the drug heroine and
broadens the alleged time in question from “on or about
May 20, 2016” to “in or about July 2014 to in or
about December 2016.” [Id.].
Todd's Motion in Limine
United States produced discovery to Todd in response to his
March 14, 2019 request. [DE 51]. This discovery related to
the May 20, 2016 timeframe set forth in the original
indictment and did not pertain to the broader 2014-2016
timeframe alleged in the superseding indictment. It included
a May 20, 2016 video recording from White Castle, which
neither party has been able to open. Todd's Motion
asserts that no documentary evidence was produced by the
United States regarding the broader timeframe in the
superseding indictment and thus Todd “believe[s] the
government intends to . . . prove its conspiracy charge . . .
through the testimony of alleged co-conspirators.” [DE
51, at 184].
argues the United States should not be permitted to introduce
any documentary evidence at trial that relates to a timeframe
broader than the original indictment because they failed to
produce any such evidence during discovery. Todd argues there
could be no good faith reason for delay in producing such
additional discovery. [DE 51, at 186]. Todd also asserts that
a continuance to cure any prejudice from a late disclosure
would be unfair, as the United States has requested and
received two continuances while he has been in custody.
[Id. at 187].
final pretrial conference on May 15, this issue became moot.
The United States represented that it would only be
presenting testimony of alleged co-conspirators as to the
broader timeframe and heroin charge, not additional
documentary evidence. And, the United States represented that
it will not be offering the video recording from White Castle
at trial. Therefore, the Motion in Limine is denied as moot.
Additional Discovery Relating to May 2016 Timeframe
around May 7, 2019, the same day Todd filed his Motion in
Limine, the United States informed Todd that it intended to
produce an additional lab report, audio recording, and
photograph of an alleged April 20, 2016 drug transaction
involving Todd and a potential witness of the United States.
[DE 52]. This evidence relates to the May 20, 2016 timeframe
set forth in the original indictment, not the broader
timeframe in the superseding indictment. The United States
produced this discovery to Todd on or about May 15, the
morning of the final pretrial conference. This discovery was
not the subject of Todd's Motion in Limine as the issue
arose after the filing of the Motion in Limine. But the
United States raised this discovery in its response to the
Motion in Limine [DE 52], and Todd objected to this discovery
at the May 15 final pretrial conference, arguing it should
also be suppressed from trial for the same reasons discussed
in his Motion in Limine.
district courts have the power to exclude irrelevant,
inadmissible, or prejudicial evidence in limine under their
inherent authority to manage trials. 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). However, the “better practice”
is to defer evidentiary rulings until trial unless the
evidence is clearly inadmissible on all potential grounds.
Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d
708, 712 (6th Cir. 1975); Jonasson v. Lutheran Child
& Family Servs., 115 F.3d 436, 440 (7th Cir. 1997);
Bouchard v. Am. Home Prods. Corp., 213 F.Supp.2d
802, 810 (N.D.Ohio 2002) (citing Luce, 469 U.S. at 41 n. 4).
This posture 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
Luce, 713 F.2d at 1239). 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). Likewise, the
Court has discretion to alter or amend a prior in limine
ruling at trial. Luce, 469 U.S. at 41-42.
Crim. P. 16(a)(1)(E) requires the United States, upon
request, to “permit the defendant to inspect and to
copy or photograph books, papers, documents, data,
photographs, tangible objects, buildings or places . . . if
the item is within the government's possession, custody,
or control and . . . the government intends to use the item
in its case-in-chief at trial.” The same is true for
“any scientific test . . . the government intends to
use . . . in its case-in-chief.” Fed. R. Crim. P.
16(a)(1)(F). When the government “fails to comply with
this rule, the court may . . . prohibit the party from
introducing the undisclosed evidence.” Fed. R. Crim. P.
16(d)(2) sets forth the actions a court may take for
discovery violations in criminal cases:
If at any time during the course of the proceedings, it is
brought to the attention of the court that a party has failed
to comply with this rule, the court may order such party to
permit the discovery or inspection, grant a continuance, or
prohibit the party from introducing evidence not disclosed,