United States District Court, E.D. Louisiana
SECTION
“E” (2)
ORDER AND REASONS
SUSIE
MORGAN, UNITED STATES DISTRICT JUDGE
Before
the Court is Defendant Michael Jones' Motion to Exclude
Inadmissible Evidence.[1] The Government opposes this
motion.[2] For the following reasons, Defendant
Michael Jones' Motion to Exclude Inadmissible Evidence is
DENIED.
BACKGROUND
On
September 20, 2016, the Government provided Defendant Michael
Jones with an FBI 302 report prepared on May 12, 2005 by
Special Agent David Sneed following an interview with
Defendant Michael Jones in connection with an investigation
regarding a health care conspiracy to defraud Medicaid (the
“Interview”).[3] On September 29, 2016, Defendant
Michael Jones filed his Motion to Exclude Inadmissible
Evidence.[4] Defendant Michael Jones requests the
exclusion of evidence from the Interview because it concerns
an investigation into a different healthcare
provider.[5] The Government filed an opposition to
Defendant Jones' motion on October 7, 2016[6] and a surreply on
February 15, 2017.[7]Defendant Michael Jones filed a response to
the Government's surreply on February 21,
2017.[8]
The
investigation ultimately led to the June 5, 2008 indictment
of seven individuals, including the owner of A New Beginning,
Akasia Lee.[9] Defendant Michael Jones was not a named or
indicted party in the case.[10] The Government argues that
“[d]uring the interview, where Jones was represented by
counsel, ” (1) “Jones admitted that he saw
patients at Lee's clinic but billed those visits as
‘home visits' because the service ‘was
performed outside of Jones's
office'”[11]; (2) “Jones also stated that he
signed plans of care for patients that were ‘cookie
cutter' and that were already written when Jones saw
patients”[12]; (3) “Jones denied signing blank
prescriptions for Lee to fill out and use with patients, but
could not explain why the FBI found a blank prescription slip
with his signature”[13]; and (4) Jones “admitted
that that Lee paid him $2, 500 in one month in return for
referring long term care patients to A New
Beginning.”[14]
The
Government does not intend to use information related to the
Interview in its case-in-chief and “only intends to use
this information during cross examination, ” should
Defendant Michael Jones choose to testify.[15] The
Government argues the statements in the FBI 302, “are
relevant to rebut Michael Jones's claim of lack of intent
in the Abide conspiracies and health care fraud scheme,
” and to show his character regarding
truthfulness.[16]
LAW
AND ANALYSIS
I.
Was the FBI 302 Report Timely Produced?
Defendant
Michael Jones argues that, even though the Government has
indicated it does not plan to use the Interview in its
case-in-chief, the Interview still should have been produced
when initially requested.[17] Defendant Michael Jones
maintains that if a party fails to comply with Federal Rule
of Criminal Procedure 16, the Court may “order that
party to permit the discovery or inspection . . .; grant a
continuance; prohibit that party from introducing the
undisclosed evidence; or enter any other order that is just
under the circumstances.”[18] Defendant Michael Jones
states that on April 1, 2015, he requested production of all
oral statements made by Dr. Jones to any person known to be
an agent of the Government, as provided in Federal Rule of
Criminal Procedure 16(a)(1)(A).[19] On April 13, 2015, the
Government responded that it had no such statements in its
possession.[20] “On September 20, 2016, nearly a
year and a half later after the original request, the
government provided defense counsel with an FBI 302 report
prepared by Special Agent David Sneed on May 12, 2005,
following an interview with Dr. Jones.”[21]
On
October 28, 2016, the trial was continued until April 10,
2017 at the request of all parties.[22] The Court finds that any
prejudice resulting from a late disclosure has been cured by
the Court's granting of the joint motion to continue.
Rule 404(b) requires only reasonable notice which was given
in this case. As a result, evidence related to the Interview
will not be excluded on this basis.[23]
II.
Is Evidence Related to the Interview Admissible Under
Rule 404(b) or Rule 608(b)?
In its
February 7, 2017 Order, [24] the Court examined Rule 404(b) and
608(b) of the Federal Rules of Evidence. In its November 1,
2016 Order, [25] the Court ruled with reasons with
respect to the use of prior inconsistent statements made in
an FBI 302 report under Rules 607 and 613(b). Those decisions
are instructive for the issues now facing the Court.
A.
Is the Evidence Admissible Under Rule 404(b)?
The
Government seeks to use evidence regarding the
Interview[26] if Defendant Michael Jones
testifies.[27] The Government argues that, “To
the extent cross-examination of Michael Jones on this conduct
hinges on admissibility under Rule 404(b), the [] prior
conduct summarized in the FBI 302, not the 302 itself, are
[sic] proper subjects for cross examination. The contents of
the 302 show Jones knew that his conduct with Abide, which is
factually similar to his conduct with A New Beginning, was
unlawful.”[28] The Government argues it is entitled to
use the evidence to show intent under Rule 404(b), whether or
not Defendant Michael Jones mentions Akasia Lee or A New
Beginning in his testimony on direct.
Federal
Rule of Evidence 404(b) governs the introduction of extrinsic
evidence. Under Federal Rule of Evidence 404(b),
“[e]vidence 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.”[29]
In
order to be admissible under Rule 404(b), the evidence in
question must satisfy the two-pronged test articulated in
United States v. Beechum.[30] The first prong of the
test is whether “the extrinsic offense evidence is
relevant to an issue other than the defendant's
character.”[31] As a threshold matter, the relevancy of
extrinsic act evidence is conditioned on whether the
defendant, in fact, committed the extrinsic
act.[32] Rule 104(b) of the Federal Rules of
Evidence provides: “When the relevance of evidence
depends on whether a fact exists, proof must be introduced
sufficient to support a finding that the fact does exist. The
court may admit the proposed evidence on the condition that
the proof be introduced later.”[33]
“Therefore, as a predicate to a determination that the
extrinsic offense is relevant, the Government must offer
proof demonstrating that the defendant committed the offense.
If the proof is insufficient, the judge must exclude the
evidence because it is irrelevant” under Rule
104(b).[34]
When
“determin[ing] whether there is sufficient evidence for
the jury to find the defendant in fact committed the
extrinsic offense[, ] . . . [t]he judge need not be convinced
beyond a reasonable doubt that the defendant committed the
extrinsic offense, ” and the Government need not
“come forward with clear and convincing
proof.”[35] Rather, the standard for the
admissibility of extrinsic offense evidence is whether there
is evidence sufficient to permit a reasonable jury to find
the preliminary facts by a preponderance of the
evidence.[36]
Once it
is established that the defendant committed the other act,
the Court must look at other indicia of relevance. When
determining whether extrinsic act evidence is relevant to an
issue other than the defendant's character, as required
to be admissible under 404(b), “relevance is a function
of [the extrinsic offense's] similarity to the offense
charged.”[37] “[S]imilarity means more than that
the extrinsic and charged offense have a common
characteristic”-the common characteristic must be
“the significant one for the purpose of the inquiry at
hand.”[38]
The
Third Circuit, in United States v. Brown, explained
what the Government must demonstrate in order to show that
proposed 404(b) evidence is relevant to the charged
conduct:[39]
It is not enough for the Government to merely identify a
valid non-propensity purpose under Rule 404(b)(2). Crucially,
the Government must also show that the evidence is relevant
to that purpose. To do so, the prosecution ‘must
clearly articulate how that evidence fits into a chain of
logical inferences, no link of which can be the inference
that because the defendant committed the proffered prior
offense, he therefore is more likely to have committed the
charge offense.[40]
The
second step of the Beechum test is that “the
evidence must possess probative value that is not
substantially outweighed by its undue prejudice and must meet
the other requirements of rule 403.”[41] “The
task for the court in its ascertainment of probative value
and unfair prejudice under rule 403 calls for a commonsense
assessment of all the circumstances surrounding the extrinsic
offense.”[42] “Some of the factors [a court]
must consider include: (1) the extent to which the
defendant's unlawful intent is established by other
evidence; (2) the overall similarity of the extrinsic and
charged offenses; and (3) how much time separates the
extrinsic and charged offenses because temporal remoteness
depreciates the probity of the extrinsic
offense.”[43]
The
Government argues the first prong of the Beechum
test is met because the Interview is relevant to show that
Michael Jones knew his conduct with Abide was
unlawful[44] and that he had the intent to commit
healthcare fraud.[45] This satisfies only the first prong of
Beechum. Using a commonsense assessment of all the
circumstances surrounding the extrinsic offense, the Court
finds that evidence regarding the Interview fails to satisfy
the second prong of the Beechum test. The Interview
occurred twelve years ago, which is temporally remote in time
to the crimes charged now. Furthermore,, the Fifth Circuit
has explained that the probative value of an extrinsic act
“must be determined with regard to the extent to which
the defendant's unlawful intent is established by other
evidence, stipulation, or interference.”[46] The
Government has not attempted to establish, or even discussed,
the other evidence available to establish Defendant Michael
Jones' unlawful intent. As a result, the Government has
failed to establish the evidence is needed in light of the
other evidence available to the Government. The risk of undue
prejudice resulting from the admission of this twelve
year-old evidence to prove the Defendant's intent to
commit the currently charged crimes is high. The Court finds
the risk from admitting the evidence outweighs its probative
value. The evidence regarding the Interview is not admissible
under Rule 404(b).
B.
Is the Evidence Admissible Under Rule 608(b)?
The
Government alternatively argues that evidence regarding the
Interview is admissible under Rule 608(b) because the
statements and conduct described involve fraud and implicate
Defendant Michael Jones' character for
truthfulness.[47]
“Federal
Rule of Evidence 608 governs proof of a witness's
truthful or untruthful character if offered to attack or
rehabilitate the witness's
credibility.”[48] Rule 608(a) sanctions the use of
reputation and opinion testimony to establish the truthful or
untruthful character of a witness.[49] Rule 608(b) permits
cross-examination of a witness about specific instances of
his conduct that bear on his truthful or untruthful
nature.[50] Rule 608(b) provides:
Specific Instances of Conduct. Except for a criminal
conviction under Rule 609, extrinsic evidence is not
admissible to prove specific instances of a witness's
conduct in order to attack or support the witness's
character or truthfulness. But the court may, on
cross-examination, allow them to be inquired into if they are
probative of the character for truthfulness or untruthfulness
of:
(1) The witness; or
(2) Another witness whose character the witness being cross
examined has testified about.[51]
This
Rule “permit[s] inquiry on cross examination into
specific instances of conduct which may bear on a
witness' credibility in order to impeach the credibility
of the witness.”[52] Although the rule permits inquiry on
cross examination into specific instances, Rule 608 serves as
an “absolute prohibition on extrinsic evidence . . .
when the sole reason for proffering that evidence is to
attack or support the witness' character for
truthfulness.”[53]
To be
admissible under this Rule, “the alleged bad act must
have a basis in fact and . . . the incidents inquired about
must be relevant to the character traits at issue in the
trial.”[54] A prosecutor, however, “may not
use impeachment as a guise for submitting to the jury
substantive evidence that is otherwise
unavailable.”[55] Rather, as explained above, “Rule
608 authorizes inquiry only into instances of misconduct that
are ‘clearly probative of truthfulness or
untruthfulness, ' such as perjury, fraud, swindling,
forgery, bribery and embezzlement.”[56] Stated
differently, “The application of Rule 608(b) to exclude
extrinsic evidence of a witness's conduct is limited to
instances where the evidence is introduced to show a
witness's general character for
truthfulness.”[57] As the Fifth Circuit has
explained, “Rule 608(b) [is] inapplicable in
determining the admissibility of relevant evidence introduced
to contradict a witness's testimony as to a material
issue.”[58]
The
Fifth Circuit has determined that a district court is granted
broad discretion to make determinations concerning
admissibility of impeachment evidence under Rule
608(b).[59] In addition, as the Fifth Circuit has
also explained, “[E]ven if character evidence is deemed
...