United States District Court, S.D. Ohio, Western Division, Dayton
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
M. ROSE, UNITED STATES DISTRICT JUDGE
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)
in Limine to Exclude Other Acts (Alleged Tax
Violations) (ECF 71)
Government correctly states the standard for evaluating Rule
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
ECF 73, PageID 446-47.
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
ECF 73, PageID 448 (emphasis in original).
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)
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.
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) ...