United States District Court, N.D. Illinois
FREDERICK J. KAPALA, District Judge.
Enter omnibus pre-trial order. The government's first, second, third, fourth, sixth and seventh motions in limine  are granted. The government's fifth motion in limine regarding defendant's prior conviction under Federal Rule of Evidence 609  is denied.
Defendant, Jarvis Washington, is charged with possessing with intent to distribute 108.5 grams of heroin and 270.5 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count I); possessing with intent to distribute 390 grams of marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count II); possessing ammunition having previously been convicted of a felony, in violation of 18 U.S.C. § 922(g) (Count III); possessing a firearm having previously been convicted of a felony, in violation of 18 U.S.C. § 922(g) (Count IV); and possessing a firearm in furtherance of the drug trafficking crime alleged in Count II (Count V). Defendant is proceeding to jury trial which is scheduled to commence on March 30, 2013. Before the court are seven motions in limine filed by the government.
Judges have broad discretion when ruling on motions in limine. Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). Evidence should be excluded under an order in limine only where it is clearly inadmissible for all purposes, otherwise evidentiary rulings should be deferred until trial. Alexian Bros. Health Providers Ass'n, Inc. v. Humana Health Plan Inc., 608 F.Supp.2d 1018, 1021 (N.D. Ill. 2009). Therefore, the party moving to exclude evidence in limine has the burden of establishing that the evidence is not admissible for any purpose. Euroholdings Capital & Inv. Corp. v. Harris Trust & Savings Bank, 602 F.Supp.2d 928, 934 (N.D. Ill. 2009). Denial of a motion in limine seeking the exclusion of evidence does not mean the evidence will necessarily be admitted at trial but, rather, denial indicates that the court could not determine the issue in advance of trial. Id . A ruling in limine is not final and is subject to change as the case unfolds. Id. at 935.
A. Motion in Limine Regarding Argument about Missing Witnesses 
The government seeks an order precluding defendant from introducing evidence about or arguing that any relevant inference can be drawn from the fact that additional witnesses, who are available to either party did not testify. Defendant objects. "[W]hen the witness is equally available to both sides, the preferred practice is to preclude the [missing witness] argument rather than to leave the jury free to speculate about a lot of non-evidence." United States v. Simpson, 974 F.2d 845, 848 (7th Cir. 1992). In accordance with this authority, the government's motion is granted. If defendant concludes that he has a basis to make out an exception to the rule pronounced in Simpson he may raise the contention but must do so outside the presence of the jury and well in advance of referencing any uncalled witnesses.
B. Motion in Limine Regarding Improperly Using a Summary Police Report In an Attempt to Impeach a Witness at Trial 
The government seeks an order precluding defendant from impeaching a witness by suggesting that a police report summary is the statement of a witness referenced in the report, attempting to publish the contents of such a report to the jury, or otherwise suggesting to the jury that the police report is a statement of a witness who neither wrote nor adopted the report. Defendant agrees, but contends that he should be permitted to point out to a testifying officer that his report does not include a matter that his testimony did include. The government agrees with defendant's contention. Thus, the government's motion is granted.
C. Motion in Limine Regarding Penalties the Defendant Faces If Convicted 
The government seeks an order precluding defendant from introducing evidence, making argument, or otherwise mentioning the potential penalties faced by defendant if convicted. When, as in this case, the jury has no role in sentencing, it is improper to argue punishment to a jury. See United States v. Lewis, 110 F.3d 417, 422 (7th Cir. 1997) ("[T]he practice of informing juries about the sentencing consequences of their verdicts is strongly disfavored."); Shannon v. United States, 512 U.S. 573, 579 (1994) (stating that a jury must "reach its verdict without regard to what sentence might be imposed" and that "[i]nformation about the consequences of a verdict are irrelevant to a jury's task"). Defendant does not object. Thus, the government's motion is granted and, in accordance with the foregoing authority, defendant will not be permitted to argue or mention the potential penalties he faces if convicted.
D. Motion in Limine Regarding Discovery Requests in the Presence of the Jury 
The government seeks an order precluding counsel from requesting discovery from witnesses or opposing counsel, moving the court for such discovery, or otherwise commenting on discovery matters, in the presence of the jury. Defendant does not object. This motion is well-taken and it is so ordered. Any issue regarding ...