United States District Court, E.D. Michigan, Southern Division
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 ...