United States District Court, M.D. Alabama, Southern Division
KEITH WATKINS UNITED STATES DISTRICT JUDGE
the court are the Government's First, Second, and Third
Motions in Limine. The Government moves to exclude
references to evidence of Defendant Ricky Ladon Smith's
good conduct (Doc. # 22), to exclude references to potential
punishment that could be imposed upon conviction (Doc. # 23),
and to exclude references to the Government's failure to
call equally available witnesses (Doc. # 24). Mr. Smith did
not file a response to any of these motions.
in limine are not favored under the law. “The
movant has the burden of demonstrating that the evidence is
inadmissible on any relevant ground.” Bowden v.
Wal-Mart Stores, Inc., No. CIV. A. 99-D-880-E, 2001 U.S.
Dist. LEXIS 7213, at *3 (M.D. Ala. Feb. 20, 2001).
“[I]t 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. at *2-3
(internal citations omitted); see also Murphy v.
Precise, No. 1:16-cv-143, 2017 U.S. Dist. LEXIS 197798,
at *3 (M.D. Ala. Dec. 1, 2017) (quoting Bowden on
THE GOVERNMENT'S FIRST MOTION IN LIMINE
Government moves to exclude reference to “evidence of,
or reference to, the defendant's general good character
and specific instances of good conduct, including but not
limited to, evidence of awards, commendations, recognition,
or good acts.” (Doc. # 22.)
Government correctly notes in its motion that evidence of a
defendant's character is generally inadmissible to prove
that he or she acted in accordance with that character.
Fed.R.Evid. 404(a)(1). “Evidence of good conduct,
” generally speaking, “is not admissible to
negate criminal intent.” United States v.
Ellisor, 522 F.3d 1255, 1270 (11th Cir. 2008) (holding
that evidence that a defendant had conducted some legitimate
business activities was not admissible to show that she did
not defraud some of her investors); United States v.
Camejo, 929 F.2d 610, 612- 613 (11th Cir. 1991) (holding
that evidence that a defendant refused to join one drug ring
was not admissible to show that he did not sell drugs on his
a criminal defendant may introduce evidence of his own
“pertinent” character trait. Fed.R.Evid.
404(a)(2)(A); see United States v. Hewitt, 634 F.2d
277, 279 (5th Cir. Unit A Jan. 1981) (defining
“pertinent” as “relevant”). This rule
permits admission of “evidence of character for
obedience to law.” Hewitt, 634 F.2d at 280;
see Id. at 278 (holding that it was error in an
unlawful-possession-or-receipt-of-a-firearm case to exclude
evidence of a defendant's character as a law-abiding
citizen); United States v. Darland, 626 F.2d 1235,
1237 (5th Cir. 1980) (holding that the defendant's
“reputation for honesty, for integrity, as a
law-abiding citizen” was relevant in a robbery case).
Government's motion does not specifically identify any
good character evidence that it expects Mr. Smith to offer.
In the abstract, all such evidence is not “clearly
inadmissible.” See Bowden, 2001 U.S. Dist.
LEXIS 7213, at *3. Therefore, ruling will be reserved on
whether such evidence relates to a pertinent trait until it
is offered at trial, so the Government's First Motion
in Limine will be denied.
THE GOVERNMENT'S SECOND MOTION IN LIMINE
Government additionally moves to “exclude all direct or
indirect reference to, or evidence of, the sentence that
might be imposed if Smith is convicted of the offenses
charged, or other collateral consequences of
conviction.” (Doc. # 23.) This motion is due to be
granted because “[t]he jury's role is to determine
guilt or innocence, and it should reach its verdict without
regard to the potential sentence imposed.” United
States v. Bergman, 852 F.3d 1046, 1073 (11th Cir. 2017).
“Information regarding the consequences of a verdict is
therefore irrelevant to the jury's task. Moreover,
providing jurors sentencing information invites them to
ponder matters that are not within their province, distracts
them from their factfinding responsibilities, and creates a
strong possibility of confusion.” Shannon v. United
States, 512 U.S. 573, 579 (1994). Referencing potential
punishment is an implicit jury nullification argument,
United States v. Johnson, 62 F.3d 849, 850-51 (6th
Cir. 1995), and defense counsel cannot encourage
nullification, United States v. Trujillo, 714 F.2d
102, 106 (11th Cir. 1983); see United States v.
Roberts, 215 Fed.Appx. 842, 847 (11th Cir. 2007) (per
curiam). Thus, the Government's Second Motion in
Limine will be granted.
THE GOVERNMENT'S THIRD MOTION IN LIMINE
Government's Third Motion in Limine, it moves
“to prohibit reference to the government's failure
to call equally available witnesses.” (Doc. # 24.)
witness is “equally available” to both the
Government and a defendant, then “no unfavorable
inference against the government could be drawn from its
failure to call [the] witness.” Luttrell v. United
States, 320 F.2d 462, 465 (5th Cir. 1963); see
United States v. Chapman, 435 F.2d 1245, 1247 (5th Cir.
1970) (“The long-standing rule in this circuit is that
any inference from a party's failure to call a certain
witness equally available to both parties is
impermissible.”). On the other hand, “[w]hen a
witness is peculiarly within the control of one party, and
the witness' testimony would elucidate facts in issue, an
instruction is appropriate regarding the permissible
inference which the jury may draw from the party's
failure to call the witness.” United States v.
Nahoom, 791 F.2d 841, 846 (11th Cir. 1986); see also
United States v. Richard, 678 Fed.Appx. 927, 941 (11th
Cir. 2017) (discussing this rule).
Government assures the court that all potential witnesses in
this case are available to both sides, and Mr. Smith has not
contradicted that assertion. The ...