The opinion of the court was delivered by: Stiehl, District Judge:
Before the Court are defendant's motions in limine to which the government has filed responses. Upon review of the record, the Court rules as follows:
1. Motion in Limine to Exclude Evidence of Erratic Driving (Doc. 66) to which the government filed a response (Doc. 76). In this motion, the defendant seeks to limit evidence from law enforcement officers that they observed defendant driving "erratically, making several evasive turns," and that thereafter surveillance on the defendant was terminated. Defendant asserts that the officers are only speculating as to their belief that the defendant's driving indicated an intention to evade observation by law enforcement. Defendant objects to the admission of this evidence because the officers do not have personal knowledge, nor can they testify as an expert on this topic, citing Daubert v. Merrell Dow Pharm., Inc.,509 U.S. 579, 590 (1993).
Initially, the Court notes that witnesses may testify as to their observations of fact. The defendant is free to challenge those observations and recollections on cross-examination, but that does not mean that such testimony is inadmissible on its face. Moreover, if the witness is testifying as to his experience as a law enforcement officer, he or she may testify as to experience with respect to drug investigations, including common behaviors, including evasive driving maneuvers. See United States v. Vargas,552 F.3d 550, 557 (7th Cir. 2008). These are issues for argument, not admissibility, and the defendant's motion to exclude this evidence is, accordingly, DENIED.
2. Motion in Limine to Exclude Phone Records (Doc. 67) to which the government has filed a response (Doc. 77). In this motion the defendant seeks to exclude phone records of the defendant and his co-defendant, Robert Griffin. Defendant asserts that the government has not indicated that it intends to call an expert to testify as to these records, and that if cooperating co-defendant, Griffin, testifies, there is no likelihood that he will have personal recollection of the records.
In its response, the government indicates that it does not intend to introduce evidence relating to the phone records for the defendant's phone. Therefore, to the extent that the motion seeks to exclude the defendant's phone records, that motion is DENIED as moot.
The government will, however, seek to introduce evidence relating to Griffin's phone records (a matter which is also the subject of a government's motion in limine-- Doc. 65). Initially, the Court notes that if Griffin testifies, and his testimony includes his phone use and records, the defendant can cross-examine Griffin as to his recollection and knowledge of calls, but that does not impact the admissibility of those records.
If the government seeks to admit Griffin's phone records as a business record, they may be separately admissible under the provisions of Fed. R. Evid. 803 if properly authenticated. See, United States v. Oros, 578 F.3d 703, 708 (7th Cir. 2009). The government must "present . . . testimony to establish that the records were kept in the course of a regularly conducted business activity, [or] provide a certification." This allows the government to lay "the foundation necessary to demonstrate the admissibility, under the business records exception, of the underlying records or the summaries of those records." Id.
Therefore, the Court will separately address the admissibility of the records under the business records exception in ruling on the government's motion in limine, and defendant's motion is DENIED.
3. Motion to Expand Scope of Cross-Examination Under Fed. R. Evid. 611 (Doc. 68) to which the government filed a response (Doc. 78). In this motion, the defendant seeks to cross-examine the government's law enforcement witnesses beyond the scope of the government's direct examination in order to avoid the need to recall these witnesses in the defendant's case. The government has indicated that it does not object to this motion, so long as the additional testimony is relevant and complies with all other Rules of Evidence. The Court will, of course, require all testimony to be in compliance with the Rules of Evidence and relevant to the issues in this case.
Accordingly, defendant's motion, with those limitations, is GRANTED. The Court will therefore, allow the government, in re-direct, to go into matters not covered in direct which may have been raised during cross-examination.
4. Motion for Early Production of Jencks Act Materials (Doc. 69) to which the government has filed a response (Doc. 79). The defendant seeks production of all Jencks Act materials, pursuant to 18 U.S.C. § 3500 at least 7 days before trial. In its response, the government notes that it has already provided all Jencks Act materials to the defendant, and has made available all information concerning the government's confidential informant which is in the government's control. The government notes that grand jury materials have not been provided, but the defendant has not made a showing of particularized need for grand jury materials, and has not sought these materials at all. Accordingly, the Court DENIES as moot the defendant's motion for early disclosure of Jencks Act materials as that information has already been provided to the defense in this case.
5. Motion to Exclude Evidence of Prior Convictions, and Any Prior Bad Acts (Doc. 70) to which the government has filed a response (Doc. 80). In this motion, the defendant seeks to preclude the government from introducing evidence under Fed. R. Evid. 404(b), including the defendants prior conviction for felony unlawful possession of a controlled substance in St. Clair County, Illinois; a 2006 misdemeanor DUI conviction and several traffic offenses; and his prior indictment in this District for narcotics offenses on which he was acquitted after a jury trial. In addition, he seeks to limit evidence that when he was arrested the government seized several rounds of firearms; and other charges.
In its response, the government has indicated that it will not seek to introduce this evidence as part of its case in chief, but if the defendant were to elect to testify, the government would then seek to ...