United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
the Court is the United States' Motion in Limine
(Doc. 197). Defendant Walter Glenn and Thomas James
filed oppositions. (Docs. 202, 213). The Government seeks to
introduce evidence that Walter Glenn, Thomas James, and Larry
Walker had criminal histories at the time they were stopped
for a traffic violation on September 2, 2014. (Doc. 197 at p.
1). While Sgt. Dawsey questioned Glenn during the traffic
stop, Glenn said: “None of us have any histories under
our name, we don't have any drug history, we don't
have any of that.” (Gov. Ex. 1, Video of Traffic Stop).
The Government claims that when Glenn indicated that the trio
did not have criminal histories, he lied because they did
have criminal histories. (Doc. 197-1 at p. 4). The Government
states that it is willing to introduce only the fact that
Glenn, Walker, and James had criminal histories, without
going into detail about their specific convictions. (Doc.
197-1 at p. 4).
threshold matter, the Government's Motion in Limine is
untimely. Under Federal Rule of Criminal Procedure 12(c),
courts may “set a deadline for the parties to make
pretrial motions[.]” The intent of Rule 12(c) is to
encourage the efficient resolution of pretrial motions.
See Fed. R. Crim. P. 12, Advisory Committee's
Notes. Here, the Government filed the pending motion nearly
two months after the Court ordered deadline for all pre-trial
motions expired on October 10, 2017. (See Doc.
164).The Government has not shown good cause for
filing its motion late. Indeed, the Government failed to
provide any explanation whatsoever to explain why it failed
to timely file its motion in limine. The Court will
nonetheless address the merits of the Government's
arguments because even if the Government had timely filed its
motion, the Court would have denied it.
Government provides two grounds for introducing evidence of
Glenn, James, and Walker's criminal histories to impeach
Glenn's statement that the three did not have criminal
histories. First, the Government claims that lies and
inconsistent statements to law enforcement are circumstantial
evidence of guilty knowledge. Three of the four cases cited
by the Government are entirely inapposite. (Doc. 197-1 at p.
5). The cases do not even address whether false statements
are admissible at trial, but rather they address whether
certain false statements contributed to the sufficiency of
the evidence at trial. See United States v. Francisco
Mendoza, 522 F.3d 482, 489-490 (5th Cir. 2008);
United States v. Jose Mendoza, 226 F.3d 340, 346
(5th Cir. 2000); United States v. Gallo, 927 F.2d
815, 821 (5th Cir. 1991). Here, however, the Defendants have
specifically challenged the admissibility of the criminal
histories at issue.
only relevant case cited by the Government is United
States v. Daniels, 352 Fed.Appx. 929 (5th Cir. 2009), in
which the defendant told a police officer that he had $2, 000
in his car, when, in fact, the officer discovered $15, 000 in
the defendant's car. The United States Court of Appeals
for the Fifth Circuit concluded that it was not plain error
for the district court to introduce evidence of the
defendant's false statement about how much money was in
the car because the statement “could be viewed as
designed to persuade the officer to refrain from searching
him or his bags” and it was “circumstantial
evidence of guilty knowledge of the contents of his bags that
he did not want to disclose.” Id. at 931. This
case, however, does not provide guidance on the introduction
of criminal histories, which are given heightened
protections. And unlike here, where the Defendants have
objected to the introduction of their criminal histories, the
defendant in Daniels did not even object to the
introduction of the evidence at issue.
the Government argues that when Glenn indicated that neither
he, James, nor Walker had criminal histories, he took an
affirmative step to help the conspiracy evade law
enforcement. (Doc. 197-1 at p. 6). But again, all the cases
cited by the Government for this proposition address the
sufficiency of evidence at trial, and the cases fail to
address whether the evidence was admissible in the first
place. See Gallo, 927 F.2d at 821; United States
v. Richards, 204 F.3d 177, 210 (5th Cir. 2000). And
here, the Defendants have, in fact, objected to the admission
of their criminal histories.
the Government could show that the trio's criminal
histories were admissible to impeach Glenn's purported
lie, the Court concludes that the probative value of the
existence of the Defendants criminal histories is
substantially outweighed by a danger of unfair prejudice
under Federal Rule of Evidence 403. The Committee Notes to
Rule 403 explain that “[u]nfair prejudice' within
its context means an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an
emotional one.” Fed.R.Evid. 403, Advisory
Committee's Notes. The Fifth Circuit has also held that
“the application of Rule 403 must be cautious and
sparing. Its major function is limited to excluding matter of
scant or cumulative probative force, dragged in by the heels
for the sake of its prejudicial effect.” United
States v. Pace, 10 F.3d 1106, 1116 (5th Cir. 1993).
evidence of the fact that Glenn, Walker, and James have
criminal histories for the purpose of impeaching a single
statement made by Glenn would result in unfair prejudice for
several reasons. First, the probative value of the evidence
is extremely weak. The Government seeks to admit the evidence
to establish that Glenn lied when he said: “None of us
have any histories under our name, we don't have any drug
history, we don't have any of that.” (Gov. Ex. 1,
Video of Traffic Stop). Glenn made this statement in direct
response to Sgt. Dawsey implicitly accusing Glenn of being
involved in drug trafficking, when Sgt. Dawsey said:
“Alright we've gotta big problem going this way
from Houston with you know something like a hundred pounds of
Marijuana, couple kilos of Cocaine, large amounts of U.S.
Currency.” Id. Therefore, taken in context,
Glenn appears to have been only indicating that neither he,
James, nor Walker had any past drug convictions. The
Government does not even claim that Glenn or Walker had past
drug convictions; it only claims that James has past drug
convictions. (Doc. 197-1 at p. 4).
evidence of the trio's criminal history is also unfairly
prejudicial because the jury would hear that James has a
criminal history solely based on a statement made by Glenn.
There is no evidence that James directed Glenn to tell the
police that he lacked a criminal history, and there is no
evidence that James overhead Glenn say that he had a criminal
history, which would have caused James to tell Sgt. Dawsey
that Glenn was incorrect. The Court must consider not only
the prejudice to Glenn but also the unfair prejudice to James
that would result.
Government argues that any prejudice could be cured by a
limiting instruction. However, as the Fifth Circuit has noted
“the jury may not always have the mental discipline to
consider [criminal history] only for impeachment
purposes.” United States v. Martinez, 555 F.2d
1273, 1275 (5th Cir. 1977). In this situation, the danger is
particularly significant because the Government seeks to
introduce evidence that all three passengers in the car had
criminal histories. Even with a limiting instruction, there
is a serious risk that the jury will infer that Glenn,
Walker, and James were engaged in criminal conduct merely due
to the fact that they have criminal histories.
IT IS ORDERED that the Motion in
Limine (Doc. 197) is DENIED.
 The Court initially set November 23,
2015, as the motion filing deadline. (Doc. 9). On September
29, 2016, after the Court suppressed all evidence relating to
Larry Walker, the Government appealed the Court's ruling.
(Doc. 133). After the United States Court of Appeals for the
Fifth Circuit issued its mandate on September 14, 2017,
affirming the Court's ruling, the Court set a motions