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United States v. Busch

United States District Court, S.D. Ohio, Western Division, Dayton

June 7, 2019

United States of America, Plaintiff,
v.
Michael D. Busch, et al., Defendant.

         ENTRY AND ORDER GRANTING WITHOUT PREJUDICE TO RECONSIDERATION AFTER A FOUNDATION OF RELEVANCY IS ESTABLISHED MOTION IN LIMINE TO EXCLUDE EVIDENCE REGARDING CASH SEIZED FROM SAFE (ECF 69), GRANTING IN PART MOTION IN LIMINE TO EXCLUDE ANY AND ALL DOCUMENTS OR MATERIALS FIRST PRODUCED BY THE GOVERNMENT TO THE DEFENSE ON MAY 17, 2019 (ECF 70) AND GRANTING MOTION IN LIMINE TO EXCLUDE OTHER ACTS (ALLEGED TAX VIOLATIONS) (ECF 71).

          THOMAS M. ROSE, UNITED STATES DISTRICT JUDGE

         This matter is before the Court for decision on Motion in Limine to Exclude Evidence Regarding Cash Seized From Safe (ECF 69), Motion in Limine to Exclude Any and All Documents or Materials First Produced by the Government to the Defense on May 17, 2019 (ECF 70), and Motion in Limine to Exclude Other Acts (Alleged Tax Violations) (ECF 71).

         Motion in Limine to Exclude Other Acts (Alleged Tax Violations) (ECF 71)

         The Government correctly states the standard for evaluating Rule 404(b) evidence:

Fed. R. Evid. 404(b) evidence provides that other crimes, wrongs, or acts are not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The Sixth Circuit has noted that Rule 404(b) “is actually a rule of inclusion rather than exclusion, since only one use is forbidden and several uses of such evidence are identified”. United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1985).
The Sixth Circuit has held that in determining whether bad acts evidence is admissible under Rule 404(b), a court must engage in a three-step analysis. First, a party seeking to admit 404(b) evidence must first demonstrate that the other bad acts occurred; [s]econd the party must then cite the specific purpose for which the evidence is offered; and [t]hird the court must next consider whether the probative value of the evidence is outweighed by its potential prejudicial effect. United States v. Huddleston, 811 F.2d 974, 976 (6th Cir. 1987)(per curiam; citations omitted)….

ECF 73, PageID 446-47.

         Then, the Government declines to provide a specific purpose for which the evidence is offered. Instead, the Government provides the entire list of permissible bases identified in Federal Rule of Evidence 404(b):

Each of said factual items are relevant and admissible to help prove defendant's motive, opportunity, intent, preparation, plan, knowledge, identity, and/or absence of mistake and/or accident in committing each of relevant charged offenses set forth in the Second Superseding Indictment.

ECF 73, PageID 448 (emphasis in original).

         “[A] party may not simply recite a ‘laundry list' of possible purposes, but instead must clearly specify the permissible purposes of the proffered evidence.” United States v. Brown, 90 F.Supp.2d 841, 844 (E.D. Mich. 2000) (citing United States v. Zelinka, 862 F.2d 92, 99 (6th Cir. 1988) and United States v. Kern, 12 F.3d 122, 125 n. 3 (8th Cir.1993)). “A laundry list of the enumerated 404(b) uses, such as the one included with the Government's motion, is insufficient to demonstrate that the evidence has a proper purpose.” United States v. Xavier, 1:08-CR-00018, 2010 WL 1006419, at *1 (D.V.I. Mar. 17, 2010) (citing United States v. Sampson, 980 F.2d 883, 888 (3d Cir.1992) and United States v. Morley, 199 F.3d 129, 133 (3d Cir. 1999)); see also van de Kamp v. Transdermal Specialties, Inc., No. 16-CV-02768, 2018 WL 6505538, at *5 (E.D. Pa. Dec. 10, 2018)(“I caution that a ‘laundry-list' is the kiss of death for 404(b)(2) arguments”).

         When Defendant confronted the Government with its failure to identify a “specific purpose” for which the proposed evidence is offered, ECF 76, PageID 475, the Government permitted itself to file a sur-reply that simply relisted all of 404(b)'s permitted uses in sentence form. ECF 77, PageID 484.

         The Government being unable to satisfy the second step of the analytical framework it proposed to the Court, Defendant's Motion in Limine to Exclude Other Acts (Alleged Tax Violations) (ECF 71) ...


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