United States District Court, N.D. California, San Jose Division
SECOND ORDER REGARDING MOTIONS IN LIMINE [RE: ECF
153, 154, 204, 225, 235, 240, 248, 263]
LABSON FREEMAN UNITED STATES DISTRICT JUDGE.
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:
GOVERNMENT'S MOTION TO EXCLUDE TESTIMONY OF DEFENSE
EXPERT WITNESS RICHARD CARL
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Carl's testimony is WITHDRAWN.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.
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 Carl's testimony is WITHDRAWN.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.
DEFENSE MOTION IN LIMINE TO ADMIT IRS AUDIT
TECHNIQUES GUIDE ON SCRAP METAL BUSINESS
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.
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.
GOVERNMENT'S MOTION TO PRECLUDE TESTIMONY OF DEFENSE
WITNESS EDWARD ROBBINS
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.
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.
HENRY HORNG'S REQUEST FOR ...