United States District Court, W.D. Louisiana, Lake Charles Division
E. WALTER, UNITED STATES DISTRICT JUDGE
the Court are the following motions: Motion in Limine [Doc.
#50] and Motion to Compel Disclosure of Exculpatory
(Brady) Evidence [Doc. #51], both filed by Defendant
Kohll's Pharmacy and Homecare, Inc. (02)
("Kohll's"); and Motion to Compel Disclosure of
Specific Exculpatory (Brady) Evidence [Doc. #54] and
Motion to Strike Surplusage and In Limine to Exclude Evidence
[Doc. #57], both filed by Defendant Kyle James Hebert (01)
("Hebert"). The Government responded to each of the
motions [Docs. ## 58, 59, 60], and Defendants Kohll's
(02) [Docs. ##61, 62 via Doc. #70] and Hebert (01)
[Docs. ## 67, 69] filed replies. Upon due consideration, the
Court hereby rules, as follows:
Defendant Kohll's Motion in Limine [Doc. #50] is
DENIED IN PART AND DENIED AS MOOT, in
accordance with the following rulings. Insofar as Defendant
Kohll's seeks to exclude opinion testimony as to criminal
intent or state of mind (Item 1), criminal
or wrongful acts not included in the indictment (Item
2), and criminal history or prior bad acts
(Item 6), the Motion [Doc. #50] is
DENIED AS MOOT. As to Items 2 and 6, the
Government should approach the bench, outside the presence of
the jury, prior to offering any such evidence in rebuttal.
Insofar as Defendant Kohll's seeks to exclude references
to, and use of, the term "drug" (Item
4), the Motion [Doc. #50] is
DENIED. Insofar as Defendant Kohll's
seeks exclusion of any characterization of recorded
conversations (Item 5), the Motion [Doc.
#50] is DENIED; a witness who participated
in a conversation may testify as to his or her personal
understanding or perception of the conversation. Insofar as
Defendant Kohll's seeks exclusion of any reference to, or
use of, the term "frog juice" (Item
3), the Motion [Doc. #50] is
DENIED; cross-examination, rather than
exclusion, is the proper means of attacking any such
Defendant Hebert's Brady Motion [Doc. #54] is
DENIED AS MOOT, and Defendant Kohll's
Brady Motion [Doc. #51] is DENIED IN PART
AND DENIED AS MOOT, as follows. With the exception
of one specific request by Kohll's, discussed in more
detail below, both defendants have indicated their
satisfaction with the Government's relevant compliance
thus far. The Court recognizes that the defendants'
requests are continuing, such that the Government is under an
affirmative duty to comply with its Brady and
Giglio obligations and/or supplement its response to
the defendants' requests, as may be or become necessary.
Insofar as Defendant Kohll's seeks disclosure of evidence
regarding LSU's testing of dermorphin [Doc. #51, p. 2
(Item 6)], the Motion [Doc. #51] is
DENIED, based on the Government's
representation that it has already produced LSU's test
results and files on the eleven horses about which it intends
to present evidence in its case-in-chief, and it does not
possess test results on any other horses. Not only has the
Government disclaimed possession of any other testing
performed by LSU on or with dermorphin, but Kohll's has
also failed to establish the relevance of any such testing.
Finally, in his Motion to Strike Surplusage and In Limine to
Exclude Evidence [Doc. #57], Defendant Hebert argues that
Count One of the Indictment improperly alleges a conspiracy
to defraud state agencies, namely the Louisiana Racing
Commission and the Louisiana State Police, without
establishing a federal nexus. In so arguing, Defendant Hebert
concedes that the Indictment properly charges a federal
conspiracy, under 18 U.S.C. § 371, to violate 21 U.S.C.
§§ 331(a), 331(c) and 331(k) and 333(a)(2), which
are provisions of the federal Food, Drug, and Cosmetic Act,
21 U.S.C. § 301 etseq ("the FDCA
violations"). He contends, however, that the portions of
the Indictment which fail to charge a federal crime, namely
those charging an "intent to defraud and mislead . . .
the Louisiana Racing Commission of its regulatory authority
over horse racing, and the Louisiana State Police of its law
enforcement authority over matters involving horseracing,
" should be stricken, and any related evidence excluded.
this Court to strike allegedly excessive language from an
indictment, it must be "irrelevant, inflammatory and
prejudicial[;]" this is an "exacting"
standard. See United States v. Bullock, 451 F.2d
884, 888 (5th Cir. 1971). The Indictment alleges that Hebert
and Kohll's "knowingly, willfully, and unlawfully
combined, confederated, conspired, and agreed together to
commit offenses against the United States, " namely, the
FDCA violations, which pertain to the introduction, receipt,
delivery, proffered delivery, dispensing, sale, or offer for
sale of misbranded and/or adulterated drugs. [Doc. #1, pp.
8-9]. The FDCA violations, substantively charged in Counts
Two through Six, are incorporated by reference as "overt
acts" in furtherance of the Count One conspiracy.
Id. at pp. 14-16, 13. As recognized by Defendant
Hebert, Count One also references section 333(a)(2), which is
the penalty provision applicable to felony-grade violations
of section 331, and requires that a defendant act "with
intent to defraud and mislead[.]" 21 U.S.C. §
333(a)(2). Each of the FDCA violations charged in Counts Two
through Six also contains an allegation that the violation
was committed "with intent to defraud and "Section
371 has two prongs: it prohibits a conspiracy to commit an
offense against the United States, or one to defraud the
United States." United States v. Wright, 211
F.3d 233, 237 (5th Cir. 2000) (citing 18 U.S.C. § 371).
Here, the Indictment meets the first prong, properly charging
a conspiracy, under 18 U.S.C.§371, "to commit an
offense against the United States, " namely, to commit
felony-grade FDCA violations, which require the Government to
charge and prove an "intent to defraud and
mislead[.]" 21 U.S.C. § 333(a)(2). Accordingly,
Defendant Hebert's Motion [Doc. #57] is
DONE AND SIGNED in ...