United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION
R.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
The
court previously granted the Government's Motion in
Limine (Doc. 72) to Exclude Cultural Defense Evidence. (Doc.
103.) This Memorandum Opinion supplements the court's
reasons for granting the motion, in addition to the reasons
stated at the pretrial conference on February 5, 2019. (Doc.
103.). It also explains that the government's motion is
granted without prejudice to Defendant Justina Ngozi
Ozuligbo's[1] right to ask the court to revisit its
ruling should she decide to testify.
In general, the term “in limine” “refer[s]
to any motion, whether made before or during trial, to
exclude anticipated prejudicial evidence before the evidence
is actually offered.” Luce v. United States,
469 U.S. 38, 40 n.2 (1984). A ruling on evidence in limine
“aid[s] the trial process by enabling the Court to rule
in advance of trial on the relevance of certain forecasted
evidence, as to issues that are definitely set for trial,
without lengthy argument at, or interruption of, the trial.
[It] also may save the parties time, effort and cost in
preparing and presenting their cases.” Bowden ex
rel. Bowden v. Wal-Mart Stores, Inc., No. CIV. A.
99-D-880-E, 2001 WL 617521, *1 (M.D. Ala. Feb. 20,
2001)(internal citations and quotations omitted).
Nevertheless, “it is the better practice to wait until
trial to rule on objections when admissibility substantially
depends upon what facts may be developed there. Thus, the
motion in limine is an effective approach only if the
evidence at issue is clearly inadmissible.”
Id. (citations omitted).
Murphy v. Precise, No. 1:16-CV-0143-SLB-DAB, 2017 WL
6002581, *1 (M.D. Ala. Dec. 1, 2017).
The
Indictment charges that Ozuligbo was a knowing and willful
member of a conspiracy to commit health care fraud in
violation of 18 U.S.C. § 1347. “The object of the
conspiracy was to maximize personal financial gain by
defrauding health care benefit programs, including Medicare
and Private Insurers, of money, to which the defendants were
not entitled, for fraudulent and medically unnecessary
allergy services and procedures.” (Doc. 1 at 13.) For
her part, Ozuligbo is alleged to have “administer[ed]
and caus[ed] to be administered, allergen immunotherapy to
pre-selected allergy patients for whom the treatment was not
medically indicated, ” and to have “knowingly and
willfully record[ed], and caus[ed] to be recorded, false
patient records, including false symptoms, false test
results, and false treatments.” (Id. at
15-16.) The Indictment also charges that Ozuligbo submitted
“false and fraudulent claims” to Medicare and
Private Insurers for the allergen immunotherapy,
(id. at 20), and engaged in money laundering using
the proceeds from the false and fraudulent claims, (see
id. 31-38).
The
Government asks the court to preclude Ozuligbo “from
introducing any evidence of differences between Nigerian and
American cultural norms, ” on the ground that
“[s]uch evidence is irrelevant to the charged crimes
and its prejudicial effect outweighs any probative
value.” (Doc. 72 at 1; see also Id. at 2
(“The United States anticipates that defendant Ozuligbo
will attempt to offer a pseudo defense of duress or coercion
by testifying - or calling other witnesses who will testify -
that in Nigerian culture women are often subordinate to,
subjugated by, or exploited by their male counterparts; in
this case, defendant [Patrick Emeka] Ifediba (Ms.
Ozuligbo's brother).”)). In response, Ozuligbo
contends:
Defendant Ozuligbo believes while evidence of
“culture” may not be relevant and admissible, the
relationship between this Defendant and her brother,
Co-Defendant Patrick Ifediba[, ] may be relevant to any
defense that her actions were not intentional or of her own
will but caused by duress. While not stating [her] defense at
this point, Defendant Ozuligbo believes she should be allowed
to argue to the jury that based upon the relationship she had
with her brother, she was compelled to act in a subservient
manner and follow his directions.
Ozuligbo should have an opportunity to present evidence
[that, ] because of the family/cultural situation she found
herself in[, ] her ability to act in an intentional manner
[was affected]. It would greatly restrict her ability to
present a defense to the charges in this case [to exclude
such evidence]. This Court should be allowed to hear the
evidence at the time it is presented and determine what may
be relevant towards a defense to the intentional acts
required to be guilty of the frauds alleged in the
indictment. The Court can adequately charge the jury as to
the law to determine what may be a valid defense to the
charges against [Ozuligbo] in the indictment.
(Doc. 86 at 3-4.)
Ozuligbo
has not disclosed what evidence she intends to present of her
“family/cultural situation.” Rather, she asserts
that cultural evidence “may be relevant to any defense
that her actions were not intentional or of her own will but
caused by duress.” (Id. at 3.) The Eleventh
Circuit has established the following required evidentiary
showing to establish “duress”: [Defendant] must
show that [she] performed or . . . consented to the unlawful
act because (1) [she] was under an immediate threat of death
or serious bodily injury, (2) [she] had a well grounded fear
that the threat would be carried out, and (3) [she] had no
reasonable opportunity to escape [or inform the authorities
of her predicament].” United States v. Sixty Acres
in Etowah Cty., 930 F.2d 857, 860 (11th Cir. 1991)
(quoting United States v. Blanco, 754 F.2d 940, 943
(11th Cir.1985)); see also United States v. Alvear,
181 Fed.Appx. 778, 780 (11th Cir. 2006) (citing United
States v. Alzate, 47 F.3d 1103, 1104 (11th Cir.1995)).
“[A] general concern that a coconspirator
might retaliate does not establish
the duress defense;” only evidence showing that
“the coercive party threaten[ed] immediate harm which
the coerced party [could not] reasonably escape”
justifies a duress defense. Sixty Acres, 930 F.2d at
860-61 (emphasis added). Nothing before the court indicates
that Ozuligbo intends to produce such evidence of threats of
immediate harm.
The
court notes that neither the Supreme Court nor the Eleventh
Circuit have endorsed a “cultural
defense”[2] in federal criminal law that would excuse
a defendant's criminal conduct perpetrated due to his or
her subservience to a third party.[3] Nevertheless, courts have
rejected defendants' attempts to excuse their criminal
behavior based on threats and/or domination by a third party
that do not rise to the level of affirmative defenses of
duress or necessity. See Sixty Acres, 930 F.2d at
860 (describing wife/defendant as husband's
“slave” but finding wife's
“generalized fear of persecution from her
husband [did] not allow her to escape the consequences [of ]
her consent to his illegal acts;” noting the court
“may not substitute . . . a vaguely-defined theory of
‘battered wife syndrome' for the showing of
duress”). See United States v. Cameron, 907
F.2d 1051, 1061 (11th Cir. 1990) (“Congress meant to
eliminate any form of legal excuse based upon one's lack
of volitional control. This includes a diminished ability or
failure to reflect adequately upon the consequences or nature
of one's actions. While scholars might debate the subtle
distinctions in moral culpability occasioned by a
person's relative capacity to consider her actions or
resist unconscious motivation, Congress chose to eliminate
any form of legal excuse based upon psychological impairment
that does not come within the carefully tailored definition
of insanity in section 17(a).”).[4] The court need
not decide whether, and to what extent, a defense based on
Nigerian culture and heritage (without proof of the elements
of an affirmative defense of duress) is admissible because
Ozuligbo has not proffered any evidence in opposition to the
Government's Motion in Limine.
“To
be able to pursue a defense of duress, a defendant must (if
asked) proffer evidence sufficient to prove each of the
elements of that defense.” United States v.
Alvear, 181 Fed.Appx. 778, 780 (11th Cir. 2006) (citing
United States v. Bailey, 444 U.S. 394, 415 (1980);
United States v. Montgomery, 772 F.2d 733, 736 (11th
Cir. 1985)). Although given the opportunity to respond to the
Government's motion in limine, Ozuligbo did not provide
any indication of the nature and/or substance of her evidence
of a defense based on her “cultural/family
situation.” Under these circumstances, granting the
motion in limine to exclude the unidentified evidence of this
defense is appropriate. United States v. Aguinaga,
643 Fed.Appx. 858, 861 (11th Cir. 2016) (“Generally,
courts should not prohibit a defendant from presenting a
defense theory to the jury, but there must be a factual basis
for the defense.”) (citing United States v.
Thompson, 25 F.3d 1558, 1564 (11th Cir. 1994)); see
United States v. Alvarado, 808 F.3d 474, 488 n.10 (11th
Cir. 2015); United States v. Moss, 297 Fed.Appx.
839, 841 (11th Cir. 2008); United States v. Harmon,
213 Fed.Appx. 914, 916 (11th Cir. 2007); Alvear, 181
Fed.Appx. at 780.
The
court finds that Ozuligbo has failed to demonstrate a prima
facie case of duress; therefore, evidence of duress based on
her culture and/or heritage defense is due to be excluded.
Ozuligbo may ask the court to revisit this ruling should she
elect to testify and ...