United States District Court, C.D. Illinois, Springfield Division
SUE E. MYERSCOUGH, District Judge.
The Court held a Final Pretrial Conference on April 10, 2015. At the hearing, the Court GRANTED IN PART and DENIED IN PART the Government's Motion in Limine (d/e 94); DENIED the Defendant Chad Hansmeier's second Motion for Bill of Particulars (d/e 102); and DENIED the Defendant's Motion for Reconsideration of Decisions Regarding Suppression (d/e 109). The Court sets forth the basis for those rulings herein. This matter is set for a continued Final Pretrial Conference on April 17, 2015 at 1:30 p.m.
I. MOTION IN LIMINE
In the Motion in Limine, the Government seeks an Order from the Court to: (1) require that defense counsel only impeach cooperating witnesses with those prior felony convictions which occurred within the past 10 years, consistent with Rule 609; (2) prohibit defense counsel from eliciting references to Detective Mike Murphy's work records; (3) prohibit defense counsel from submitting as evidence a letter Defendant wrote several days after his arrest; and (4) prohibit defense counsel from referencing any prior communications between Defendant's attorney, Bruce Locher, and Defendant's co-defendant, Jason Walker.
"Evidence should be excluded in limine only where [the evidence] is clearly inadmissible on all potential grounds." United States v. Lillie, 669 F.Supp.2d 903, 905 (N.D. Ill. 2009). The party moving for exclusion of the evidence bears the burden of establishing that the evidence is not admissible for any purpose. Id. If the motion in limine is denied, the Court addresses the objections as they arise at trial. Id. at 906.
A. Defense Counsel May Not Impeach Walker With an Ordinance Violation Charge, and the Court Will Determine at Trial the Admissibility of the Other Conviction for Impeachment Purposes
The Government asks that defense counsel be limited to impeaching each cooperating witness with only those prior felony convictions which occurred within the past ten years, consistent with Rule 609. For example, the Government is concerned that defense counsel is going to try to impeach co-defendant Jason Walker with a pending charge for a city ordinance violation for "interference." The Government argues that a city ordinance violation is not appropriate for impeachment because (1) it is a charge, not a conviction; and (2) even if Walker is convicted of that ordinance violation prior to trial, that conviction would be improper impeachment material because it is only a city ordinance violation and does not involve a dishonest act or false statement because it stems from Walker's refusal to submit to a search, which has nothing to do with dishonesty. See United States v. Miles, 207 F.3d 988, 993-94 (7th Cir. 2000) (finding that the witness's city ordinance conviction for failing to register a gun did not involve fraud or dishonesty and, therefore, was not admissible under Federal Rule of Evidence 608(b)).
Federal Rule of Evidence 609 governs the admission of criminal convictions for purposes of impeachment. Fed.R.Evid. 609. Under Rule 609, a criminal conviction for a crime punishable by death or by imprisonment for more than one year must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect. Fed.R.Evid. 609(a)(1)(B). In addition, a criminal conviction for any crime may be admitted for impeachment if the court "can readily determine that establishing the elements of the crime required proving-or the witness's admitting-a dishonest act or false statement." Fed.R.Evid. 609(a)(2). If more than 10 years have passed since the conviction or the witness's release from confinement, whichever is later, the conviction may be admitted only if (1) its probative value substantially outweighs its prejudicial effect, and (2) the proponent gives the adverse party reasonable notice of the intent to use the conviction. Fed.R.Evid. 609 (b)(1), (2).
Additionally, Federal Rule of Evidence 608(b) prohibits the admission of specific instances of misconduct to attack or support a witness's character for truthfulness, with the exception of a criminal conviction under Rule 609. Fed.R.Evid. 608(b). The court may allow inquiry into specific acts of misconduct on cross-examination if the specific acts of misconduct are probative of the character for truthfulness or untruthfulness of the witness or another witness whose character the witness being cross-examined testified about. Id.
The Court agrees with the Government that Defendant cannot use the ordinance violation charge to impeach Walker. It is not a felony conviction and does not involve an act of misconduct probative of Walker's character for truthfulness or untruthfulness. Moreover, any other convictions Defendant intends to use as impeachment against any of the witness who testify at trial must comply with the requirements of the Federal Rules of Evidence. Specific objections to the use of those convictions will be addressed at trial. Therefore, the Government's Motion in Limine is granted as to Walker's alleged ordinance violation and denied with regard to any other convictions, subject to being raised again at trial.
B. Defendant May Not Elicit References to Detective Mike Murphy's Work Records and May Not Call Him to Testify Unless Defendant Demonstrates Detective Murphy Has Relevant Information
The Government indicates that it does not intend to call Detective Murphy to testify at trial. The Government asks that defense counsel be precluded from referencing Detective Murphy's work record or questioning other witnesses about it, as it is wholly irrelevant to anything to be addressed at trial.
Detective Murphy is the special agent with the Northeast Missouri Narcotics Task Force who executed an Affidavit for No-Knock Search Warrant which uncovered drugs in Defendant's home. In his Amended Supplemental Motion to Suppress Evidence (d/e 54), Defendant argued that Detective Murphy deliberately and recklessly omitted information about prior discipline he had received. The Court found that the information was not material and, even if the information had been included in the Affidavit, the Affidavit still set forth sufficient facts that would cause a reasonable person to believe that a search would uncover evidence of criminal activity. See Opinion (d/e 67).
Defense counsel asserts that he intends to call Detective Murphy to testify about what Detective Murphy put in the Affidavit in support of the search warrant and what happened during the search of Defendant's home. Defense counsel asserts that, if not for Detective Murphy, the search would not have occurred. The Court finds that the proposed testimony Defendant intends to elicit from Detective Murphy is not relevant. The Court previously denied Defendant's motion to suppress raising the argument about the omission of Detective Murphy's disciplinary record. Therefore, the Court grants the Government's motion in limine on this issue unless defense counsel can provide a basis for why Detective Murphy should ...