United States District Court, E.D. Michigan, Northern Division
ORDER DENYING GOVERNMENT'S MOTION IN LIMINE,
DIRECTING DEFENDANT TO FILE A RULE 12.3 DISCLOSURE, DIRECTING
THE GOVERNMENT TO RESPOND TO DEFENDANT'S MOTION FOR
RECONSIDERATION, AND SETTING DATES
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
government has moved in limine to exclude Defendant's
entrapment-by-estoppel defense. On May 20, 2019, the Court
entered an order directing the Defendant to file a surreply
to new arguments made by the government in its reply brief.
ECF No. 75. A full factual and procedural summary can be
found in that order. (ECF No. 75).
motion in limine is “any motion, whether made before or
during trial, to exclude anticipated prejudicial evidence
before the evidence is actually offered.” Louzon v.
Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013). A
motion in limine is not, however, “a proper procedural
device for the wholesale disposition of theories or
defenses.” Id. Although the government's
motion purports to seek the exclusion of “evidence,
” it scarcely identifies any pieces of
“evidence” that are potentially excludable.
fact, the motion seeks to preclude Defendant from raising any
defense that would “suggest to the jury that Brandon
Putman was acting lawfully with regards to the auto sear . .
.” The government has the burden to prove that
Defendant acted knowingly. This burden would not be
particularly meaningful if the Defendant was precluded from
contesting the knowledge requirement. Generally speaking,
evidentiary rules cannot be applied so as to prevent a
defendant from presenting his defense. Chambers v.
Mississippi, 410 U.S. 284 (1972).
reply brief, the government focused exclusively on the
“entrapment-by estoppel” defense, suggesting that
it no longer maintains that Defendant ought to be precluded
from challenging his criminal intent. ECF No. 71. The
government contends that Defendant has waived his
entrapment-by-estoppel defense under Federal Rule of Criminal
Procedure 12.3 because Defendant has not filed and served a
notice of his intent to assert the defense. Although Rule
12.3 is not expressly applicable to an entrapment-by-estoppel
defense, the Sixth Circuit has extended the rule to that
defense. United States v. Theunick, 651 F.3d 578,
590 (6th Cir. 2011). The rule requires a defendant to file
and serve a notice containing: a) the law enforcement agency
or federal intelligence agency involved; b) the agency member
on whose behalf the defendant claims to have acted; and c)
the time during which the defendant claims to have acted with
the rule requires the defendant to file the notice
“within the time provided for filing a pretrial
motion.” As explained previously, although the
court's initial scheduling order set a motion deadline,
the parties' most recent stipulated extension omitted the
motion deadline. ECF No. 62. Because the original scheduling
order set a motion deadline 1-week prior to the plea cutoff,
the government's motion in limine is itself arguably
untimely. Nevertheless, the Court permitted the filing, and
will permit Defendant to file a notice compliant with Rule
government also argues that the defense of entrapment by
estoppel is legally insufficient. The government contends
that Defendant has only argued that he was led to believe he
was “covered” by Ephesians 610 LLC's
The government argues that even if he attained responsibility
party status attendant to the FLL, neither Brandon nor any
other family member could lawfully possess the auto-sear
because it was unregistered and did not bear a serial number.
In his surreply, Defendant makes the remarkable assertions
that 1) “the ATF inspector told the entire Putman
family that they could lawfully possess machine guns, Mr.
Putman's fingerprints and photographs were on file with
ATF, and auto sears are by definition ‘machine
guns'”, and 2) “based on the ATF
inspector's advice that Mr. Putman could operate under
the [Ephesians] FFL and Class 3 tax stamp, Mr. Putman
reasonably believed that he could legally possess the auto
sear.” Surreply at 5, ECF No. 76, PageID.685.
Defendant could establish that he was erroneously led to
believe that he was a responsible party attendant to the
Ephesians 610 LLC FFL and SOT, it remains unclear why he
believes that would constitute a defense to any of the three
counts charged in the third superseding indictment. Perhaps
the alleged statements by the unknown ATF agent might have
some theoretical relevance to Count 2, which charges that
Brandon Putman knowingly possessed a firearm not registered
to him in the National Firearms Registration and Transfer
Record. If the DIAS was registered to Ephesians 610 LLC, and
not to Brandon Putman, it would seem potentially relevant
that Brandon was led to believe he was entitled to operate
under Ephesians 610 LLC's FFL and SOT. However, the
Defendant has never contended that the DIAS was properly
registered to Ephesians 610 LLC, or to anyone for that
matter, in the National Firearms Registry.
even if the DIAS was registered to Ephesians, and
Defendant was entitled to market or sell firearms utilizing
Ephesians 610 LLC's FFL and SOT (based on the ATF
agent's statement), it is entirely unclear why Defendant
believes that would undermine the allegations in Counts 1 and
3 of the superseding indictment which charge that the DIAS in
question was made in violation of law and did not bear a
serial number. That is, even if the ATF agent stated that
any/all Putman family members were entitled to possess
“machine guns” generally, that would not appear
to justify the possession of this particular DIAS if
it was 1) made in violation of law, 2) missing a serial
number, and 3) not registered to anyone in the National
unexplained suggestion is that the ATF agent's statement
somehow granted the Putman family members carte
blanche to possess any machine gun without regard to its
registration status, without regard to the presence of a
serial number, and without regard to how it was manufactured
or obtained. Defendant has not contended that the ATF agent
expressly made such a broad sweeping statement, nor does
Defendant explain why he was justified in interpreting the
ATF agent's statement the way he did.
it is still premature to preclude the defense. In the case
relied upon by the government, U.S. v. Theunick, the
Sixth Circuit affirmed the district court's decision to
deny the defendant's jury instruction on
entrapment by estoppel. United States v.
Theunick, 651 F.3d 578, 590 (6th Cir. 2011). The
district court determined that Garnett's testimony at
trial failed to establish a factual basis to support the
defense as he only testified that an unnamed agent had told
him his conduct was lawful:
The testimony was first fairly vague and non-specific.
Secondly, the nature and scope of the official's duties
and position remains unexplained. Third, the statements
allegedly made by the official remain fairly vague and
unlikely to establish the kind of predicate factually that is
ordinarily required to justify the giving of this
instruction. Finally, and probably most importantly, all of
these things are merely the defendant relating what he
heard.... unsupported by any documentation, unsupported by
any testimony from any Government agent, unsupported by any
data sheets, physical evidence or the like.
Id. The court did not, however, grant a motion in
limine prior to the trial precluding the defendant from
raising the defense in the first place. To the contrary, he
was permitted to raise the defense at trial, after which the
court concluded that he had not met his burden to establish
the factual basis for the defense. ...