United States v. Johnson

          ORDER GRANTING GOVERNMENT'S MOTION IN LIMINE IN PART AND GRANTING DEFENDANT'S MOTION TO EXCLUDE 404B EVIDENCE IN PART

          THOMAS L. LUDINGTON, UNITED STATES DISTRICT JUDGE

         On March 5, 2019, Plaintiff filed a “motion to suppress victim's prior allegations of sexual assault” pursuant to Federal Rule of Evidence 412, the federal rape-shield law. The Court denied the motion without prejudice, explaining that the Rule 412 is inapplicable as Defendant is not charged with sexual misconduct. ECF No. 36.

         On May 20, 2019 Plaintiff filed another motion to exclude evidence relating to C.J.'s (the alleged victim in this case) prior allegations of sexual assault against another man, F.T. ECF No. 37. It is important to note at the outset that the Court initially denied Plaintiff's motion solely because Rule 412 is inapplicable, and Plaintiff identified no other reason for exclusion. Plaintiff now identifies additional bases for the exclusion of any evidence, questioning, or argumentation relating to C.J.'s prior allegations of sexual assault against F.T.

         I.

         According to the Defendant, he maintained an intimate, live-in domestic relationship with C.J. from March 2018 through October 24, 2018. ECF No. 50, PageID.211. The government's first superseding indictment charges, among other things, that Defendant unlawfully imprisoned C.J., sought to strangle and suffocate her and then sought, by intimidation and threats, to convince her to lie when called as a witness. ECF No. 9. The government contends that C.J. is not the first of the Defendant's victims: it seeks to offer the testimony (under Rule 404(b)) of R.T., a former girlfriend of the Defendant, that he stalked, assaulted, and unlawfully imprisoned her at some unidentified period of time. ECF No. 21.

         By supplemental filing, the government (applying similar reasoning) added S.R. to its witness list, contending that she is a former wife of Defendant who was similarly mistreated. ECF No. 38. Indeed, in the government's latest filing the government contends that it has learned of yet another witness, Defendant's mother Robin Johnson, who will testify that not only did she personally observe Defendant holding R.T. against R.T.'s will but, in fact, Defendant held Robin Johnson against her will as well. ECF No. 51.

         Defendant alleges with some force that C.J.'s testimony about his mistreatment of her is false and that in fact she has falsely accused prior romantic partners, specifically F.T., of assaulting her as well. Defendant contends that he should be permitted to introduce evidence of F.T. and C.J.'s relationship because if reflects a pattern of falsely accusing prior romantic partners of misbehavior. According to the Defendant, he is at least the second victim of C.J.'s scorn and retaliation.

         II.

         A.

         Plaintiff argues that evidence of C.J.'s alleged prior false accusation about F.T. is not admissible under Federal Rule of Evidence 608. Rule 608(a) provides that “a witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.” However, rule 608(b) provides that “extrinsic evidence is not admissible to prove specific instances of a witnesses conduct in order to attack or support the witness's character for truthfulness.” Fed.R.Evid. 608(b) (emphasis added). But, “the court may, on cross-examination, allow them to be inquired into if they are probative of [the witnesses] character for truthfulness.” Id. (emphasis added).

         Here, Defendant blurs the distinction between the evidence he seeks to offer about C.J's character generally (including her character for truthfulness), and the “evidence” he seeks to offer as to whether she lied in the specific instance of her rape allegations against F.T.. Defendant is entitled to cross examine CJ about whether she made prior false accusations but will be prohibited from offering any extrinsic evidence.

         Plaintiff contends that Defendant should not be permitted to inquire of C.J. about F.T. at all:

When defendant's “evidence” that the prior allegations are false consist of the fact that they were not prosecuted, the Court has held that to be insufficient to show that the allegations were false. United States v. Crow Eagle, 705 F.3d 325, 329 (8th Cir. 2013). In another case, the Court found that even a finding by the Department of Children and Family Services that sexual assault allegations are “unfounded” is not sufficient proof that the prior allegations were false. Cookson v. Schwartz, 556 F.3d 647, 655 (7th Cir 2009). Even a criminal trial resulting in an “acquittal regarding the victim's prior allegation of sexual assault was not dispositive of the falsity of the allegation.” United States v. Erikson, 76 M.J. 231 (2017).

         But these cases do not support the proposition that the defendant must satisfy the court that he will be able to prove C.J.'s allegation against F.T. false (or legitimately call the allegation into question), before he is even permitted to ask her if she was telling the truth. Plaintiff does identify one case in support of this argument:

The Court addressed this very issue in United States v. Crowley, 318 F.3d 401, 417-18 (2nd Cir. 2003). In that case, the Court held it was appropriate to preclude the inquiry all together when the only thing that would happen before the jury would be the question and the denial by the witness because “the prejudicial impact of the engendering speculation about the subject outweighed the minimal probative value of permitting the jury to evaluate [the ...