United States v. Brown

          OPINION AND ORDER REGARDING MOTIONS IN LIMINE (ECF NOS. 80, 81, 82, 84, 85, AND 103)

          SEAN F. COX UNITED STATES DISTRICT JUDGE.

         A grand jury indicted Defendant Adam Dean Brown on five drug charges: (1) conspiracy to distribute and to possess with intent to distribute a controlled substance (death resulting) (Count I); (2) possession with intent to distribute a controlled substance (Count III); (3) possession with intent to distribute a controlled substance (Count IV); (4) distribution of a controlled substance (death resulting) (Count V); (5) distribution of a controlled substance (serious bodily injury resulting) (Count VI) (ECF No. 20).

         The indictment included charges against Brown's alleged co-conspirators, James “Stoney” Sharp and Terence Robinson. Sharp and Robinson pleaded guilty pursuant to Rule 11 plea agreements. Brown is the only defendant going to trial, which is set to begin on August 20, 2019.

         To prepare for trial, Brown and the Government filed a total of six motions in limine. Brown filed four motions: (1) a motion for the disclosure of Robinson's Pre-Sentence Investigation Report (“PSR”) and to unseal the transcript from Robinson's plea hearing; (2) a motion to exclude the testimony of the Government's proposed laboratory expert or, in the alternative, for a Daubert hearing; and (3) a motion for a Daubert hearing and to exclude the testimony of the Government's proposed expert cellular analysis; and (4) a motion to exclude evidence regarding a drug sale that Sharp made on October 5, 2016. The Government has filed two motions: (1) a motion concerning the admissibility of photographs at trial; and (2) a motion concerning the admissibility of certain out-of-court statements.

         Each side has responded to the other side's motions. Only one reply was filed (by the Government, in support of their motion for the admissibility of the out-of-court statements). The Court heard oral arguments on the six motions in limine on July 16, 2019.

         For the reasons below, the Court will dispose of these motions as follows:

Defendant Brown's Motions

• ECF No. 80 (Robinson's PSR and Plea Transcript): DENIED as to Robinson's PSR and GRANTED as to the plea transcript.

• ECF No. 81 (Challenge to Lab Report): DENIED WITHOUT PREJUDICE

• ECF No. 82 (Challenge to Cell-site Analysis): DENIED WITHOUT PREJUDICE

• ECF No. 103 (Evidence of Sharp's October 2016 drug deal): DENIED

The Government's Motions

• ECF No. 84 (Photographs of A.B.): DENIED WITHOUT PREJUDICE

• ECF No. 85 (A.B's out-of-court statements): GRANTED as to Statements One, Two, Three, and Four and DENIED as to Statements Five and Six

         BACKGROUND^[1]

         The Government believes that Brown was a drug dealer. The Government contends that, on May 27, 2017 and June 15, 2017, Brown was found in possession of large quantities of heroin and cash. The Government also contends that Brown's heroin contained fentanyl and endangered the lives of his customers. Specifically, the Government alleges that, on October 16, 2017, Brown sold a mix of heroin and fentanyl to “A.B., ” who overdosed and died after taking the drugs. The Government also alleges that, on January 22, 2018, Brown sold a mix of heroin and fentanyl to “J.K., ” who overdosed on the drugs and sustained serious bodily injury. A.B's death and J.K.'s overdose are the basis for the “death resulting” and “serious bodily injury” penalty enhancements.

         ANALYSIS

         I. Motions in Limine Generally

         Trials are dynamic, and a district court should grant a motion to in limine “only when that evidence is clearly inadmissible on all potential grounds.” Palmer v. Allen, 2017 WL 218077 at*1 (E.D. Mich. Jan. 19, 2017) (quoting Ind. Ins. Co. v. GE, 326 F.Supp.2d, 844, 846 (N.D. Ohio 2004)). In cases where that high standard is not met, “evidentiary rulings should be deferred until trial so that questions of foundation, relevancy, and potential prejudice may be resolved in a proper context.” Id. Denial of a motion to exclude evidence in limine does not necessarily mean that the Court will admit the evidence at trial. See Luce v. United States, 469 U.S. 38, 41 (1984). “[E]ven if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.” Id. at 41-42.

         BROWN'S MOTIONS

         II. ECF No. 80: Brown's Motion for Disclosure of Robinson's PSR and Sealed Plea Transcript

         In this motion, Brown asks the Court to unseal his co-conspirator Robinson's plea transcript and to order the Government to disclose Robinson's PSR to defense counsel or, alternatively, to this Court for an in camera inspection. Brown argues that these materials fall within the scope of Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), the Jencks Act, 18 U.S.C. § 3500 et seq., or Fed. R. Crim. P. 16.

         In response, the Government represents that it has already produced Robinson's Rule 11 plea agreement, Robinson's cooperation agreement, Robinson's grand jury testimony, all investigative interview reports pertaining to Robinson, and the substance of Robinson's criminal history. The Government argues that Robinson's PSR is not discoverable as exculpatory under Brady or the Jencks Act, and that it is not discoverable under Rule 16. The Government also argues that Robinson's guilty plea hearing transcript is not Brady o r Giglio material and is “subsumed” into the materials it has already provided to Brown.

         A. The PSR

         “PSRs are confidential reports created by an arm of the court and designed for use by a judge in reaching a fair sentence.” United States v. Pendleton, 832 F.3d 934, 940 (8th Cir. 2016). They “occupy a unique position, ” In re Morning Song Bird Food Litig., 831 F.3d 765, 773 (6th Cir. 2016), and “ha[ve] always been jealously guarded by the drafters of the federal rules and by the federal courts.” United States v. Trevino, 89 F.3d 187, 192 (4th Cir. 1996). “The commonly invoked reasons underlying PSRs' special status are threefold: (1) the defendant's interest in privacy and in preventing the dissemination of inaccurate information, (2) law enforcement's and cooperating informants' interest in confidentiality, and (3) the sentencing court's interest in encouraging the free flow of information during the presentencing process.” In re Morning Song, 831 F.3d at 773.

         “Neither Brady nor the Federal Rules of Criminal Procedure mandate that a trial court produce a copy of a presentence report concerning a government witness, prepared for the court, to the defense upon request.” United States v. Sherlin, 67 F.3d 1208, 1218 (6th Cir. 1995) (emphasis added). Additionally, “presentence reports are not statement of the defendant within the meaning of Jencks, ” but are “reports prepared by probation officers used primarily as an aid to district courts at sentencing” and contain “the government's version of the offense, ” to which defendants rarely object. United States v. McGee, 408 F.3d 966, 973 (7th Cir. 2005).

         “Before a court determines that a PSR-or a portion of it-should be disclosed to a defendant, it should first conduct an in camera review if the defendant has clearly specified the information in the report that [defendant] expects will reveal exculpatory or impeachment evidence.” United States v. Trumbo, 2019 WL 652303 at *2 (E.D.Mich. February 15, 2019) (citing United States v. Allen, 716 F.3d 98, 104 (4th Cir. 2013) (internal citations omitted) (emphasis in original). “A defendant must plainly articulate how the information contained in the PSR will be both material and favorable to his defense.” Id.; see also United States v. Trevino, 89 F.3d 187, 192 (4th Cir. 1996) (“a district court is under no duty to conduct an in camera review of a requested PSR unless the accused has first clearly specified the information contained in the report that he expects will reveal exculpatory or impeachment evidence”). To meet this standard, Brown must make a “threshold showing of a good faith belief that a particular PSR contains exculpatory evidence not available elsewhere.” Trumbo, 2019 WL 652303 at *3 (collecting cases).

         Here, Brown argues that Robinson's PSR should be disclosed because:

Defendants routinely make statements regarding the offense that are included in the PS[R] and cover matters that the defendant will testify to at trial. The PS[R] also will contain statements about [Robinson's] substance abuse during the time of the alleged offense. Finally, the PS[R] contains a comprehensive criminal history (well-beyond any lien check offered up by the government). It is not uncommon for the probation department to uncover a criminal history or criminal activity of the defendant not disclosed by the government.

(ECF No. 80, PageID 579-80).

         Brown has not set forth a good faith belief that Robinson's PSR has any exculpatory or impeachment evidence. Instead, Brown appears to be requesting the PSR in an attempt to discover if it contains any exculpatory or impeachment evidence. This speculative intent is evident in his assertion that defendants “routinely” make statements regarding the offense, and that it is “not uncommon” for the probation department to uncover a more-detailed criminal history. Moreover, to the extent that Brown argues that the PSR contains information about Robinson's substance abuse and criminal history, there is no indication that this information is “not available elsewhere.” Trumbo, 2019 WL 652303 at *3. Thus, Brown is not entitled to Robinson's PSR.

         B. Plea Transcript

         “Transcripts, so long as they exist, are kept by the clerk of the court.” United States v. Conteh, 234 Fed.App'x 374, 389 (6th Cir. 2007). The Court has considered the parties' arguments and will order the Clerk of the Court to provide Brown with a copy of the transcript from Robinson's plea hearing.

         C. Conclusion

         As described above, the Court will grant this motion in part and deny it in part.

         II. ECF No. 81: Brown's Motion to Exclude Testimony of Government's Proposed Laboratory Expert Or, in the Alternative, for a Daubert Hearing

         In this motion, Brown moves to exclude some testimony from Melissa Earles, the Government's forensic scientist, arguing that it does not meet the requirements of Fed.R.Evid. 702 or 403. Earles tested white powder that was found at the scene of A.B.'s death and determined that it was fentanyl. In her report, she also stated that “cocaine was detected but not confirmed due to poor concentration.” Brown seeks to exclude this observation about cocaine.

         In response, the Government argues that “there are no novel issues at play here.” Earles, a ten-year veteran of the Michigan State Police's Northville Forensic Lab, performed “microscopic, chemical and/or instrumental analyses” on the white powder and reported her results. “That [Brown] is unhappy with the results is irrelevant, because Earle[s] is qualified and her methodology sound.” Gov't's Res. 5 (ECF No. 93, PageID 751).

         A. The Admissibility of Expert Opinions

         “District court judges must determine whether an expert's testimony is both relevant and reliable when ruling on its admission.” Clay v. Ford Motor Company, 215 F.3d 663, 667 (6th Cir. 2000). A trial judge's determinations regarding the admissibility of expert testimony are guided ...