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United States v. Todd

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

May 23, 2019

UNITED STATES OF AMERICA Plaintiff
v.
ERIC TODD Defendant Criminal Action

          MEMORANDUM OPINION AND ORDER

          Rebecca Grady Jennings, District Judge

         This 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.

         I. Background

         Todd 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.].

         1. Todd's Motion in Limine

         The 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].

         Todd 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].

         At the 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.

         2. Additional Discovery Relating to May 2016 Timeframe

         On or 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.

         II. Legal Standard

         Federal 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.

         Fed. R. 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, ...

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