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United States v. Burnett

United States District Court, N.D. Alabama, Northeastern Division

June 23, 2017

UNITED STATES OF AMERICA,
v.
FREDERICK LAMAR BURNETT, Defendant.

          MEMORANDUM OPINION AND ORDER

          SHARON LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE

         The court orally ruled on the record with regard this evidentiary issue, but is issuing this opinion to give further rartionale for the court's ruling during trial. The Government filed a Motion in Limine to Exclude Legal Opinion Testimony, (doc. 65), and defendant Frederick Lamar Burnett filed a Motion in Limine to Admit Testimony of Kimberly Ford, (doc. 70). The Government asked the court “to limit the possible testimony about legal advice provided to Defendant.” (Doc. 65 at 1.) Burnett asked the court to allow Kimberly Ford to testify as to advice given to Burnett on the ground that her testimony was not inadmissible hearsay and was relevant to Burnett's defense of good faith reliance on counsel's advice and his mental state. (See generally doc. 70.)

         As noted above, the court orally ruled on these Motions during trial. For the reasons set forth herein, the court finds, as it held during trial, that Burnett's Motion in Limine to Admit Testimony of Kimberly Ford was due to be denied. Therefore, the Government's Motion in Limine to Exclude Legal Opinion Testimony was rendered moot.

         According to Burnett, “Ms. Ford will testify regarding her work at the law firm of Dick, Riggs, Miller & Stem, LLP and the advice given by an attorney at that firm, Howell Riggs, to Mr. Burnett regarding his compliance with the relevant contracts.” (Doc. 70 ¶ 1.) Outside the presence of the jury, the court heard testimony from Kimberly Ford for the purpose of determining whether there was some foundation for the admission of her testimony regarding advice given to Burnett during a bid protest on one of three government contracts at issue in this case, the contract for backpacks. (See doc. 71 at 5-6, 10.) Ford testified:

From what I recall, it was for - [Burnett] needed some guidance regarding whether or not he could use components in some product that he was making available to the Government for sale, and whether those components, because those individual components were from overseas, that it would still comply with the Buy American Act.
. . .
. . . [As a law clerk, ] I did a lot of the research into determining whether or not Mr. Burnett would comply with [the Buy American Act]. So I did research and presented that to Mr. Riggs for his review . . . .
And then we worked on a letter to, I believe, the contracting officer, someone within the Government. And I sat in on the telephone conference calls that we had with Mr. Burnett and the Government in regards to their questioning of him and his components.
. . .
Q. . . . [W]hat do you remember about what [Burnett] told you about how he planned to fulfill the contracts or how he wanted to fulfill the contracts?
A. Some -- there may be some snaps or something really small -
. . .
. . . Some snaps or some small component of whatever the product was he was providing to the Government . . . .

(Doc. 71 at 4-5.) Specifically, she testified that she understood the backpack was to be made in the United States, with only small pieces of the product were coming from overseas and these small components - part of the larger backpack ...


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