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Eastern Division United States of America v. Freddie Johnson

March 2, 2011

EASTERN DIVISION UNITED STATES OF AMERICA,
v.
FREDDIE JOHNSON, ET AL.,



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on the parties' motions in limine. For the reasons stated below, the court grants in part and denies in part the motions.

DISCUSSION

I. Westerfield's Motions

Defendant Lorie Westerfield (Westerfield) has filed motions in limine seeking to bar the introduction of information Westerfield gave the Government during a proffer, seeking to bar the introduction of evidence relating to Westerfield's prior felony conviction, and seeking pretrial production of charts, summaries, or calculations that the Government intends to introduce at trial at least fourteen days prior to trial.

A. Information Provided During Proffer

Westerfield seeks to bar the introduction at trial of any information she provided the Government during a proffer she made on or about March 20, 2008. Westerfield indicates that the such information should be barred because she provided the information to the Government with the understanding that anything she said could not be used against her at trial. (West. 1st Mot. 3-4). The Government contends that the motion should be denied because Westerfield signed a proffer agreement, which provided that the Government could not use Westerfield's statements in its case-in-chief, but that the Government could use such statements at trial if Westerfield gave contradictory testimony at trial or otherwise "took a 'position inconsistent with the proffer.'" (Gov. Resp. 2). A defendant may waive the right to prevent the use of "statements made during plea negotiations" at trial, including the those made during a proffer. United States v. Krilich, 159 F.3d 1020, 1024 (7th Cir. 1998). Since Westerfield signed an agreement providing that her proffered statements could be used against her under certain circumstances, the Government may introduce Westerfield's proffered statements if Westerfield elicits testimony through cross-examination of the Government's witnesses that contradicts the proffer or if Westerfield presents evidence that contradicts the proffer, either through her own testimony or the testimony of her witnesses. Id. at 1025. Therefore, the court denies Westerfield's motion to bar the introduction of any statements she provided the Government during her proffer. Westerfield is free to object to the introduction of such statements at trial, should the Government attempt to improperly introduce such statements.

B. Prior Felony Conviction

Westerfield seeks to bar the introduction of any evidence relating to her prior felony conviction for wire fraud in Case Number 06 CR 758. Westerfield contends that the probative value of such evidence is substantially outweighed by the unfair prejudice the introduction of such evidence would cause to Westerfield, since Westerfield is also charged with wire fraud in this case. (West. 2nd Mot. 1). The Government argues that Westerfield's prior felony conviction can be used to impeach Westerfield pursuant to Federal Rule of Evidence 609 (Rule 609) and that the probative value of the conviction is not substantially outweighed by its prejudicial effect on Westerfield. (Gov. Resp. 4-5). For the limited purpose of impeachment, Rule 609 generally permits the Government to introduce "evidence that any witness has been convicted of a crime . . . , if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness" and if the conviction or release from prison occurred less than ten years prior to the trial. Fed. R. Evid. 609. In addition, Federal Rule of Evidence 608(b) permits the Government to "cross-examine [a defendant] regarding the facts underlying his . . . convictions [if the defendant is] a witness and the convictions relate[] to his character for truthfulness." United States v. Barnhart, 599 F.3d 737, 747 (7th Cir. 2010). Federal Rule of Evidence 403 does not "limit or prohibit this line of questioning . . . [when the] central focus of [the] case [is the defendant's] intent to defraud." Id. In this case, should Westerfield decide to testify, her prior fraud conviction will be highly relevant to determining Westerfield's character for truthfulness. Therefore, the court denies Westerfield's motion to bar the introduction of any evidence relating to her prior felony conviction. Westerfield is free to object to the introduction of such evidence at trial, should the Government attempt to improperly admit such evidence. In addition, if the Government properly introduces evidence of Westerfield's conviction at trial, the court will give a limiting instruction to the jury, advising them that such evidence is not to be considered for the purposes of showing Westerfield's propensity to commit fraud, but instead should be considered only for the limited purpose of determining Westerfield's credibility as a witness.

C. Pre-trial Production of Charts, Summaries, or Calculations Westerfield has moved for an order requiring the Government to produce final versions of any charts, summaries, or calculations it intends to introduce at trial at least fourteen days prior to trial. Westerfield contends that fourteen days is necessary for her to assess and counter such evidence by possibly retaining an expert or compiling her own charts, summaries, or calculations. (West. 3rd Mot. 1). The Government argues that such evidence will not be finalized so far in advance of trial and that Westerfield has all the underlying information that will form the basis of such evidence. (Gov. Resp. 6). The Government has also agreed to produce such evidence in a timely fashion prior to trial. (Gov. Resp. 6). Therefore, the court denies Westerfield's motion for an order requiring the Government to produce final versions of any charts, summaries, or calculations to be used at trial at least fourteen days prior to trial.

II. Mumin's Motion for Attorney Conducted Voir Dire

Defendant Khadija Mumin (Mumin) has filed a motion requesting that the court allow the attorneys to conduct the voir dire questioning of prospective members of the jury, or alternatively to include Mumin's proposed voir dire questions in the court's questioning of such jurors. Mumin argues that she is entitled to be tried by an impartial and indifferent jury, and that attorney conducted voir dire is necessary to gain th necessary information upon which to base strikes. However, Mumin has not shown how the court's procedure relating to the questioning of prospective jury members would be insufficient to achieve these purposes, and thus Mumin has not presented a compelling reason to allow the attorneys to conduct voir dire. In addition, Mumin has not cited to any controlling precedent indicating to show that the attorney conducted voir dire is necessary. Therefore, Mumin's motion is denied. The court will conduct voir dire of the jury members consistent with court's indications to the parties during the pre-trial conference.

III. Government's Motions

A. General Objection to Government's Motions

Mumin has filed a general objection to the Government's motions in limine. Without further argument or explanation, Mumin contends that the Government has used a "shot-gun approach to pretrial motion in limine practice." (Mumin Resp. 1). None of the Government's motions are inherently improper. Therefore, the court declines to deny any of the ...


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