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United States v. Mack

United States District Court, W.D. Louisiana, Monroe Division

November 12, 2019

UNITED STATES OF AMERICA
v.
JMARREON MACK

          MAG. JUDGE KAREN L. HAYES

          MEMORANDUM ORDER

          TERRY A. DOUGHTY UNITED STATES DISTRICT JUDGE

         Pending before the Court is an “Objection to Ruling, Document 82 and Motion to Reconsider Denial to Defendant's Motion in Limine of Government's Exhibits” (“Motion to Reconsider”) [Doc. No. 84] filed by Defendant Jmarreon Mack (“Mack”). Mack objects to and moves the Court for reconsideration of its November 6, 2019 Memorandum Order [Doc. No. 82] denying Mack's Motion in Limine regarding potential Government exhibits [Doc. No. 65].

         First, to the extent that Mack re-urges his Motion in Limine with regard to 107 of the 108 videos of Mack during visitation while he was incarcerated on these charges, the Motion to Reconsider is DENIED. The Government indicated that it does not intend to offer any videos except one, and the Court can rely on counsel's representation as an officer of the Court.

         Second, the Court finds no reason to set aside or modify its constitutional analysis with regard to photographs of the grinder, digital scale, and clear plastic bags seized at the time of Mack's arrest, but which were later destroyed pursuant to Louisiana State Police policy. Thus, to this extent, Mack's Motion to Reconsider is also DENIED.

         However, Mack has raised issues which must be addressed by the Court. Mack moves the Court to exclude the one video that the Government intends to offer into evidence because it contains double hearsay, reveals information conveyed during an attorney-client conversation, and has no probative value because Mack merely reports what counsel allegedly “told” him. In the cited conversation, Mack is discussing the vehicle in which he was stopped by police. The car had been obtained from Latrice Manning, and Mack allegedly states the following on the video:

. . . he [referring to counsel] said he called Trice [Latrice Manning]. . . she was like . . what he say? Oh yeah she picked me up and dropped me off and all and I used the car, but I was telling him . . . you know, like man I just write you questions . . . .

[Doc. No. 84-1, p. 2].

         Given the fact that trial is set to begin tomorrow, Wednesday, November 13, 2019, the Court will tentatively rule on this issue without briefing from the Government. If the Government intends to offer this portion of the video, Mack's Motion to Reconsider is GRANTED. The purported statement has little, if any probative value, and invokes concerns about the attorney-client privilege. However, to the extent that the Government may intend to offer other portions of the video, the Court will consider arguments on the issue during an in-Chambers conference prior to the beginning of trial. Counsel should be present in Chambers by 8:45 a.m. if they wish to address this or any other issues.

         Mack also raises an additional issue with the Court's Memorandum Order. Mack argues that Federal Rule of Evidence 1008 applies to photographs, as well as recordings and writings, and, thus, the Court should reconsider that portion of its ruling related to the best evidence rule. Federal Rule of Evidence 1002, commonly called the “best evidence rule, ” provides that “to prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.” The “‘original' of a photograph includes the negative or a print from it.” Fed.R.Evid. 1001.

1
the original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if--
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Original not obtainable. No. original can be obtained by any available judicial ...

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