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United States v. Lin

United States District Court, N.D. California, San Jose Division

May 23, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MEILI LIN a/k/a/ ALLY LIN & JYH-CHAU HORNG a/k/a/ HENRY HORNG, Defendants.

          SECOND ORDER REGARDING MOTIONS IN LIMINE [RE: ECF 153, 154, 204, 225, 235, 240, 248, 263]

          BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE.

         During trial, outside the presence of the jury, the Court heard oral argument and ruled on the following motions in limine. For the reasons explained below and those stated on the record, the motions are decided as follows:

         I. GOVERNMENT'S MOTION TO EXCLUDE TESTIMONY OF DEFENSE EXPERT WITNESS RICHARD CARL

         On May 22, 2018, the Government moved pursuant to Federal Rule of Evidence 702 and Federal Rule of Criminal Procedure 16 to exclude the testimony of defense expert witness Richard Carl. See ECF 263. Defendants filed an opposition, describing the focus of Mr. Carl's proposed expert testimony. ECF 264. For the reasons discussed on the record on May 23, 2018, the Government's motion to exclude Mr. Carl's testimony is WITHDRAWN. The Government stated on the record that Defendants' representations in their opposition brief about the subject of Mr. Carl's testimony alleviated the Government's concerns regarding Mr. Carl's qualifications. See ECF 264 at 2, lines 20-27. The defense confirmed on the record that Mr. Carl's testimony will be in accordance with the disclosure made in the opposition brief. Id. Defendants also do not intend to offer summaries through Mr. Carl-rather, he will offer expert opinion and analysis based on the Government's exhibits.

         For the reasons stated on the record, and based on Defendants' response to the Government's motion, the Government's motion to exclude Mr. Carl's testimony is WITHDRAWN. The Government retains the right to make specific objections to Mr. Carl's qualifications and testimony offered at trial.

         II. DEFENSE MOTION IN LIMINE TO ADMIT IRS AUDIT TECHNIQUES GUIDE ON SCRAP METAL BUSINESS

         The defense moves in limine to admit Chapter 16 of the IRS Audit Techniques Guide (“ATG”) for Cash Intensive Businesses, referred to as the Scrap Metal Auditing Guide (“SMAG”). ECF 248. Defendants argue that the SMAG is relevant to determining the adequacy and quality of the Government's investigation, and is admissible as a statement of the opposing party under Federal Rule of Evidence 801(d)(2)(C) or (D). The Government expressed concern that portions of the SMAG refer to several statutes and court decisions, which conflict with the Court's ruling that the jury should not receive the law.

         The Court agrees with the defense that the SMAG is relevant to the extent that it provides a step-by-step approach to how an audit is conducted in the scrap metal business. In particular, it puts in controversy Agent Garrison's testimony that she did not think the SMAG was relevant. Defendants' motion in limine to admit this exhibit into evidence is GRANTED. However, as stated on the record, the Court requires redactions of the descriptions of what the law requires. To the extent that there is other extraneous information in the SMAG, the Court does not find it prejudicial or confusing under Rule 403.

         III. GOVERNMENT'S MOTION TO PRECLUDE TESTIMONY OF DEFENSE WITNESS EDWARD ROBBINS

         The Government moves to preclude the testimony of defense witness Edward Robbins on the grounds that his proposed testimony is hearsay and not exempt under Rule 801(d)(1) as a prior consistent statement. ECF 240. Defendants proffer that Mr. Robbins will testify about “what [Robbins] told the government about the nontaxable sources of funds in defendants' accounts.” ECF 239. The Government argues that what Mr. Robbins told the Government on this topic could only be based on what Defendants told Mr. Robbins, and therefore is based entirely on hearsay. ECF 240. Defendants urge the Court to find that Mr. Robbins' testimony is necessary to rebut charges of recent fabrication and satisfies Rule 801(d)(1)(B) because Mr. Robbins made these statements before the indictment and therefore before any motive to fabricate arose. ECF 239 (citing Tome v. United States, 513 U.S. 150, 167 (1995)). In contrast, the Government argues that Defendants had a motive to fabricate exculpatory explanations about their 2006 and 2007 income as soon as they were audited in 2009. ECF 240.

         The Court agrees with the Government that under Tome and other relevant authority on Rule 801(d)(1)(B), the statements at issue are not pre-motive and therefore are inadmissible hearsay. The Court finds the reasoning in United States v. Kubini persuasive:

Further, “Rule [801(d)(1)(B)(i) ] permits the introduction of a declarant's consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive.” Tome v. United States, 513 U.S. 150, 167, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995) (emphasis added). Here, the statements by Smith to the polygraph examiner were made in 2012 or after he was aware that he was under investigation for fraud and tax offenses, had engaged counsel and was disputing the prospective charges. Thus, he clearly had a motive to avoid the charges at the time he made the statements to Mr. Barrett, rendering this subsection inapplicable.

No. CRIM. 11-14, 2015 WL 418220, at *9 (W.D. Pa. Feb. 2, 2015). Accordingly, and for the reasons stated on the record, the Government's motion in limine to preclude Mr. Robbins from testifying about what he told the Government regarding nontaxable sources of funds in Defendants' accounts is GRANTED.

         IV.DEFENDANT HENRY HORNG'S REQUEST FOR ...


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