United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE
before the Court are:
• Defendant Randell G. Shelton's Second Motion in
Limine to Preclude the Government's Use of the Terms
"Bribe, " "Kickback, " or Their Synonyms
at Trial (Doc. 304) and Memorandum in Support (Doc. 305); and
the Government's Response (Doc. 306);
• The Government's Second Motion in Limine (Doc.
302) and Brief in Support (Doc. 303); and the Joint Motion
and Brief in Response to Government's Second Motion in
Limine (Doc. 307) filed by Defendants Jonathan E. Woods, Oren
Paris III, and Mr. Shelton;
• Mr. Shelton's Motion to Compel Disclosure of
Evidence pursuant to Brady and the Sixth Amendment
to the United States Constitution (Doc. 310);
• Mr. Shelton's Motion for Severance of Defendants,
or in the Alternative, Severance of Count Four of the Second
Superseding Indictment (Doc. 311); and
• The Government's Notice of Intent to Introduce
404(b) Evidence (Doc. 309); and Mr. Woods's Response
reasons given below, Mr. Shelton's Second Motion in
Limine is DENIED, the Government's
Second Motion in Limine is GRANTED IN PART AND DENIED
IN PART, Mr. Shelton's Motion to Compel is
DENIED, and Mr. Shelton's Motion for
Severance is DENIED.
MR. SHELTON'S SECOND MOTION IN LIMINE (Doc. 304)
Shelton asks the Court to "issue an order precluding the
Government from using the terms 'bribe, '
'bribery, ' kickback, ' or their synonyms at
trial except during opening statement (with limitations),
closing arguments (with limitations), and instructions."
(Doc. 304, p. 1). He offers two arguments in support of this
Motion. First, Mr. Shelton argues that the term
"bribe" would constitute improper testimony
regarding the Defendants' mental state under Fed.R.Evid.
701. Second, he argues that the probative value of the term
"bribe" would be substantially outweighed by the
danger of unfair prejudice under Fed.R.Evid. 403. The Court
finds neither of these arguments persuasive.
701 states that "[i]f a witness is not testifying as an
expert, testimony in the form of an opinion is limited to one
that is: (a) rationally based on the witness's
perception; (b) helpful to clearly understanding the
witness's testimony or to determining a fact in issue;
and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702." Mr.
Shelton contends that if a witness were to use the word
"bribe" or some similar word in his or her
testimony at trial, then it would be inadmissible lay opinion
testimony because none of these three requirements under Rule
701 would be satisfied. The Court disagrees, and can imagine
countless scenarios under which use of the word
"bribe" by a witness at trial could comport with
the requirements of Rule 701. To give but one simple example,
a witness could testify that he received a cash payment in
exchange for the performance of an official act, and that he
understood the payment to be a bribe, based on his
conversations with the person who handed him the cash.
Rule 403, it permits the Court to "exclude relevant
evidence if its probative value is substantially outweighed
by a danger of . . . unfair prejudice." Mr. Shelton
speculates that if the Government were to ask a hypothetical
witness "[o]n what dates were these bribes (or
kickbacks) made, " such a question "would
improperly contain an improper assumption of the witness that
a bribe or kickback was paid." See Doc. 305, p.
5 (emphasis in original). But this argument simply assumes,
without explanation, that the questions preceding this one
will have failed to lay any foundation for this question. The
Court sees no reason to assume right now that the Government
will never be able to lay any such foundation with respect to
any witness at trial, given that the Government's central
theory of this case is that these Defendants conspired to
bribe Mr. Woods.
Court will remain mindful throughout trial of the
requirements of Rules 701 and 403. And the Court does not
mean to say that, in the face of proper and specific
objections, it will permit the Government or any other party
to pose questions to witnesses that lack proper foundations
or that are gratuitously and unfairly prejudicial. But there
is no reason at this time to issue the sort of blanket
prohibition that Mr. Shelton requests. Therefore, Mr.
Shelton's Second Motion in Limine will be DENIED.
THE GOVERNMENT'S SECOND MOTION IN ...