United States District Court, M.D. Louisiana
RULING AND ORDER ON MOTIONS IN LIMINE
W. deGRAVELLES JUDGE
matter comes before the Court on (1) the Motion in Limine
to Exclude Other Crimes, Statements, Wrongs, or Bad Acts
(Doc. 25) filed by Defendant Khum Son, also known as Son Khum
(“Defendant”), and (2) the Motion in Limine
to Preclude Defendant from Referring to Post-Indictment Sex
Offender Registration During Trial (Doc. 30) filed by
the United States of America (the “Government”).
Both motions are opposed. (See Docs. 19,
Oral argument on both motions was heard on January 5, 2017.
The Court has carefully considered the law, the facts in the
record, and the arguments of the parties and finds that both
motions should be denied.
Indictment alleges that, from in or about January of 2016
through on or about April 23, 2016, the Defendant, who was
convicted of a sexual offense in California and who, after
said conviction, traveled in interstate commerce, knowingly
failed to register and update a registration where in resided
in Louisiana, as required by the Sex Offender Registration
and Notification Act. (Doc. 1.) The Indictment claims this is
a violation of 18 U.S.C. § 2250(a).
to the Fifth Circuit pattern instructions, this crime
requires the government to prove the following beyond a
First: That the defendant was required to register
under the Sex Offender Registration and Notification Act, as
Second: That the defendant traveled in interstate
Third: That the defendant knowingly failed to
register and keep a current registration as required by the
Sex Offender Registration and Notification Act.
Circuit Pattern Jury Instructions (Criminal) § 2.83
(2015). The pattern jury charges further provide:
These three elements must be proven to have occurred in
sequence. . . .
The government must prove beyond a reasonable doubt that the
defendant knew he had to register and that he intentionally
did not do so, but the government does not have to prove that
the defendant knew he was violating federal law.
the Defendant has represented that he intends to pursue an
affirmative defense listed in the statute. Specifically, 18
U.S.C. § 2250(c) provides:
In a prosecution for a violation under subsection (a) or (b),
it is an affirmative defense that-
(1) uncontrollable circumstances prevented the individual
(2) the individual did not contribute to the creation of such
circumstances in reckless disregard of the requirement to
(3) the individual complied as soon as such circumstances
ceased to exist.
The Defendant's Motion in Limine to Exclude Other Crimes,
Statements, Wrongs, or Bad Acts (Doc. 25)
The Parties' Arguments
Government seeks to introduce certain evidence under Federal
Rule of Evidence 404(b) to prove knowledge, intent, and
absence of mistake. The Government's proposed evidence
falls into three main categories. First, the Government wants
to use documents from a California criminal proceeding in
which the Defendant pled guilty to and was sentenced for
failure to register as a sex offender under California state
law. (See U.S. Exs. 1-5.)
the Government asks to introduce documents from California
showing that the Defendant updated yearly his registration
requirements. (See U.S. Ex. 6.) These include
documents that list registration requirements, one of which
is: “If I move outside of California, I am required by
federal law to register in the new state within three (3)
working days.” The Defendant initialed by this
requirement on each of the documents. These updates are also
signed by the Defendant beneath a paragraph saying that he
read and understood the requirements. One update also
includes a signature by the translator of the document.
third, U.S. Ex. 7 is a plea hearing document from
Defendant's 2001 conviction in California. This document
reflects that the Defendant pled guilty to violating Cal.
Penal Code § 288 (Lewd Act Upon a Child and False
Defendant argues this evidence has minimal probative value
and that, even if there were probative value, it would be
substantially outweighed by the danger of unfair prejudice
(i.e., convicting the Defendant for the previously
committed crime or for being a sex offender rather than the
crime at issue).
Law Governing Rule 404(b) Evidence
The Standard Regarding Rule 404(b) Evidence
Rule of Evidence 404(b) provides:
Evidence of other crimes, wrongs, or acts is 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. . . .
United States v. Beechum, the Fifth Circuit
“outlined a two-step test to determine the
admissibility of evidence of a defendant's prior wrongful
acts.” United States v. Cheramie, 51 F.3d 538,
541 (5th Cir. 1995) (citing United States v.
Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc)).
“Under Beechum, evidence of extrinsic offenses
is admissible if it is (1) relevant to an issue other than
the defendant's character, and (2) the incremental
probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice to the