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United States v. Evans

May 25, 2010


The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge


A grand jury returned a superseding indictment against Defendants Kim Evans, Dezmond Swanson, and Corley Smith on July 21, 2009, charging each of them with one count of bank robbery in violation of 18 U.S.C. § 2113(a) and one count of unlawful use of a firearm in furtherance of that robbery in violation of 18 U.S.C. § 924(c)(1)(A). (R. 40, Superseding Indictment.) The grand jury also charged Defendant Evans with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Id.)

The parties have filed various motions in limine seeking to have certain information excluded from evidence at trial. Defendant Evans seeks to exclude from trial: (1) his prior convictions, (2) evidence of uncharged bank robberies, (3) an informant's statements regarding the charged bank robbery, and (4) evidence regarding his flight from law enforcement agents. Defendant Smith seeks to exclude from trial: (1) testimony that he was preparing to flee from law enforcement agents, (2) evidence that law enforcement agents recovered a knife and suspected marijuana and cocaine from the trunk of a Cadillac in which Defendants were traveling, (3) evidence of uncharged bank robberies, (4) an informant's statements regarding the charged bank robbery, and (5) his prior drug convictions. Finally, the government seeks to: (1) preclude evidence and argument regarding the government's motivation for investigating or prosecuting this case, (2) preclude Defendants from requesting or mentioning discovery in the jury's presence, (3) exclude non-pertinent traits of Defendants' character, (4) exclude evidence regarding the confidential informant's identity, (5) preclude defense counsel from contacting jurors after the trial, (6) preclude Defendants from making "golden rule" arguments, and (7) preclude Defendants from improperly using quotations during closing arguments.*fn1 For the following reasons, the Court grants in part and denies in part the parties' motions in limine.


Trial courts have broad discretion in ruling on evidentiary issues before trial. See Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); United States v. Lillie, No. 08 CR 717, 2009 WL 3518157, at *1 (N.D. Ill. Oct. 28, 2009). Accordingly, "[a]lthough the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 463 (1984); see also Lillie, 2009 WL 3518157, at *1. An in limine ruling avoids delays and allows the parties an opportunity to prepare themselves and witnesses for the introduction or exclusion of the evidence at issue. See Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999); Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997) ("The prudent use of the in limine motion sharpens the focus of later trial proceedings and permits the parties to focus their preparation on those matters that will be considered by the jury."); United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989). Ultimately, an in limine motion "performs a gatekeeping function and permits the trial judge to eliminate from further consideration evidentiary submissions that clearly ought not be presented to the jury because they clearly would be inadmissible for any purpose." Jonasson, 115 F.3d at 440.

Regardless of a court's initial ruling on an in limine motion, the court may adjust its ruling during the course of the trial. See Farfaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558, 565 (7th Cir. 2006) (citing Luce, 469 U.S. at 41-42, 105 S.Ct. at 463). Furthermore, while the most common use of motions in limine is to seek exclusion of evidence, see Lillie, 2009 WL 3518157, at *1 ("the party moving to exclude evidence in limine has the burden of establishing that the evidence is not admissible for any purpose"), "the motion in limine can be used to get a ruling that evidence is admissible." 21 Charles Alan Wright & Kenneth W. Graham, Jr., Fed. Prac. & Proc. Evid. § 5037.10 (2d ed. 2009); see also United States v. Cox, 577 F.3d 833, 835, 838-39 (7th Cir. 2009) (upholding trial court's in limine ruling that certain evidence was admissible).


I. Defendants' Motions

A. Defendants Evans's and Smith's Prior Convictions

1. Rule 609

Defendants Evans and Smith ask the Court to prevent the government from impeaching them with their prior convictions if they testify at trial. Federal Rule of Evidence 609 "governs the admissibility of a witness's prior convictions for impeachment purposes," United States v. Rogers, 542 F.3d 197, 200 (7th Cir. 2008), and provides in relevant part that: evidence that an accused has been convicted of [a crime punishable by death or imprisonment in excess of one year under the law under which the witness was convicted] shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Fed. R. Evid. 609(a)(1), (b). The purpose of Rule 609 is "to ensure that 'convictions over 10 years old will be admitted very rarely and only in exceptional circumstances.'" United States v. Redditt, 381 F.3d 597, 601 (7th Cir. 2004). The ten-year clock "starts at the witness's release from any physical confinement, or in the absence of confinement, the date of conviction," and "the end date of the time limit for impeaching convictions is the start of the trial at which the witness is testifying." Rogers, 542 F.3d at 201. "'[C]onfinement' for purposes of the ten-year time limit in Rule 609(b) does not include periods of probation or parole." Id.

Generally, "'the details of the prior conviction should not be exposed to the jury.'" United States v. Douglas, 408 F.3d 922, 929 (7th Cir. 2005) (quoting United States v. White, 222 F.3d 363, 370 (7th Cir. 2000), with internal quotation from White omitted). As such, even where a prior conviction is admissible, the government may not "harp on the witness's crime, parade it lovingly before the jury in all its gruesome details, and thereby shift the focus of attention from the events at issue in the present case to the witness's conviction in a previous case.'" United States v. Smith, 454 F.3d 707, 716 (7th Cir. 2006) (quoting Campbell v. Greer, 831 F.2d 700, 716 (7th Cir. 1987)). The Rule, rather, "restricts the introducing party to 'identifying the particular felony charged, the date, and the disposition of a prior conviction.'" United States v. Barnhart, 559 F.3d 737, 747 (7th Cir. 2010) (quoting Smith, 454 F.3d at 716).

Convictions that are ten years old or younger, even if only by a matter of weeks, are admissible if their probative value outweighs their prejudicial effect. See United States v. Jackson, 546 F.3d 801, 819 (7th Cir. 2008) (noting that "[a]ny perception of arbitrariness [regarding the ten-year threshold] is the inevitable result of a rule that conditions the admissibility of evidence on its age"). Convictions that are more than ten years old are not per se inadmissible but are subject, rather, to "an asymmetrical balancing test, one that requires the probative value of a prior conviction to substantially outweigh the prejudice caused by its admission into evidence." Rogers, 542 F.3d at 201 (emphasis in original); see also Jackson, 546 F.3d at 819. Pursuant to this standard, "impeachment by a conviction falling outside the rule's ten-year time limit should be permitted only in rare and exceptional circumstances." Rogers, 542 F.3d at 201.

The Seventh Circuit teaches that in assessing a prior conviction's probative value and prejudicial effect, courts should consider the following to guide their admissibility decision: "'(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue.'" United States v. Gant, 396 F.3d 906, 909 (7th Cir. 2005) (quoting Rodriguez v. United States, 286 F.3d 972, 983 (7th Cir. 2002)); see also United States v. Montgomery, 390 F.3d 1013, 1015 (7th Cir. 2004). When the government is authorized to impeach a defendant with a prior conviction, the defendant is entitled to have the Court admonish the jurors with an instruction that they should consider the conviction solely to evaluate the defendant's truthfulness as a witness. See Jackson, 546 F.3d at 820 (noting courts' presumption that jurors follow their instructions); 7th Cir. Pattern Crim. Jury Instruction 3.05.

2. Defendant Evans's Prior Convictions

Defendant Evans seeks to have excluded from evidence at trial his: (1) 1990 conviction for delivery of cocaine, (2) 1991 conviction for aggravated battery, (3) 1994 conviction for unlawful use of a weapon by a felon, (4) 1994 conviction for unlawful possession of a weapon by a felon, (5) 1996 conviction for aggravated battery, (6) 2000 conviction for possession of a controlled substance, (7) 2002 conviction for possession of a stolen vehicle, and (8) 2008 conviction for aggravated assault. (R. 109, Def. Evans's Mots. in Limine at 1; R. 130, Gov't's Consolidated Resp. at 1.) These convictions, Defendant Evans argues, have little probative value and a high potential for prejudice. (R. 109, Def. Evans's Mots. ...

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