United States v. Lussier

          ORDER ON MOTIONS IN LIMINE

          Nancy E. Brasel United States District Judge.

         Defendant Darwin Lee Lussier, Sr. is charged with Assault with a Dangerous Weapon in violation of 18 U.S.C. §§ 113(a)(3), 1151, and 1153(a) and Assault Resulting in Serious Bodily Injury in violation of 18 U.S.C. §§ 113(a)(6), 1151, and 1153(a). Trial is set to begin June 17, 2019, and a pretrial conference was held June 14, 2019, where the parties argued motions in limine. [ECF Nos. 68, 69, 70, 75, 76, 77, 78, 79, 80.]

         BACKGROUND

         At approximately 1:22 p.m. on October 7, 2018, D.M.N. placed an emergency call to the Red Lake Department of Public Safety Dispatch Center requesting help from the Red Lake Police Department. The dispatcher was unable to get any specifics regarding D.M.N.'s need for assistance and the call was disconnected. D.M.N. called the Red Lake Department of Public Safety Dispatch two more times in rapid succession. The second telephone call was disconnected almost immediately. On the third call, D.M.N. informed dispatch that she was at Defendant's residence in Circle Pines and that she needed help because she had been abused, sustained injuries, and was being threatened with a weapon. D.M.N. placed a final emergency call at approximately 1:28 p.m. D.M.N. reported to the dispatcher that she had been clubbed over the head. D.M.N. told dispatch that after Defendant assaulted her, he fled their residence. D.M.N. requested medical assistance because she was bleeding from head. Law enforcement responded to D.M.N.'s request for assistance.

         As a result of the events of October 7, 2018, a grand jury returned an indictment charging Defendant with Assault with a Dangerous Weapon in violation of Title 18, United States Code, Sections 113(a)(3), 1151, and 1153(a), and Assault Resulting in Serious Bodily Injury in violation of Title 18, United States Code, Sections 113(a)(6), 1151, and 1153(a). The parties have filed several motions in limine and other pretrial motions. The Court addresses each pending motion, in turn.

         ANALYSIS

         I. Government's Motions in Limine

         A. To Allow 404(b) Evidence

         The government moves the Court for an order regarding the admissibility of evidence of prior bad acts under Federal Rule of Evidence 404(b). [ECF No. 68.] The government seeks to offer evidence of Lussier's prior alleged assaultive behavior towards D.M.N. The government indicated at the pretrial that it was withdrawing its motion with respect to Lussier's alleged prior alleged assaults of G.B. (2016 and 2017 assaults) because it is unable to locate G.B. Lussier argues that the prior allegations should be excluded because they are propensity evidence and constitute mere allegations of quasi-assaultive behavior.

         Rule 404(b) of the Federal Rules of Evidence provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b)(1). But a party may admit that evidence “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). Rule 404(b) is a “rule of inclusion, such that evidence offered for permissible purposes is presumed admissible absent a contrary determination.” United States v. Johnson, 439 F.3d 947, 952 (8th Cir. 2006). “Evidence of prior bad acts is admissible if (1) the evidence is relevant to a material issue; (2) the prior bad acts are similar in kind and reasonably close in time to the crime charged; (3) there is sufficient evidence to support a finding by the jury that the defendant committed the prior acts; and (4) the potential prejudice of the evidence does not substantially outweigh its probative value.” United States v. Anderson, 879 F.2d 369, 378 (8th Cir. 1989). The Eighth Circuit has ruled that rule 404(b) permits admission of such evidence “unless it tends to prove only the defendant's criminal disposition.” United States v. Adams, 898 F.2d 1310, 1313 (8th Cir. 1989) (quoting United States v. O'Connell, 841 F.2d 1408, 1422 (8th Cir. 1988)).

         The two alleged prior offenses proffered by the government of assaultive behavior by Lussier towards D.M.N. meet the requirements of 404(b). They are similar in kind and close in time to the charged offense, and they are relevant to the issues of intent, absence of mistake, and lack of accident. To prove the prior alleged assaults, the government proffers that it intends to call D.M.N. to testify as to the events she experienced first-hand. Admission of the prior offenses is more probative than prejudicial. Evidence of past crimes can be probative of a defendant's intent to commit a similar act, especially in domestic violence cases. See United States v. Littlewind, 595 F.3d 876, 881 (8th Cir. 2010) (The “relative probative value of prior crime evidence is increased by the fact that [both] offenses were associated with the same victim.”) While the Court understands the concerns regarding propensity, in this case the evidene is more probative than prejuicial, and concerns regarding propensity will be addressed with a limiting instruction. See United States v. Lucas, 521 F.3d 861, 866 (8th Cir. 2008) (“A limiting instruction diminishes the danger of unfair prejudice.”). The government's motion is granted with respect to D.M.N.

         B. Regarding Bad Acts/Convictions of Witnesses

         The government requests that the Court preclude the defense from offering evidence of or cross-examining any witness regarding prior bad acts or convictions of a witness to only those matters permitted under Fed.R.Evid. 404(b), 608, and 609, without first providing a basis for inquiry of the alleged bad act or conviction outside the presence of the jury so that the government can be heard on the admissibility of such evidence. [ECF No. 69.] Lussier opposes this motion. This motion, as it relates to G.B., is now moot as the government no longer intends to call G.B. to testify.

         With respect to any prior bad acts of D.M.N., Lussier indicated at the pretrial that he does not intend to offer evidence relating to the government's decision not to charge the Defendant with kidnapping based upon D.M.N.'s report to law enforcement. The two issues that were raised at the pretrial were (1) D.M.N.'s alleged lies to a federal agent, and (2) her alleged EBT card fraud. The parties appear in agreement that cross-examination on these issues is allowable as cross-examination by contradiction, and the Court agrees. Any ruling regarding extrinsic evidence of these allegations is reserved for trial.

         C. To Preclude Mention of Punishment

         The government requests to preclude Lussier from making any reference to the sentence he may receive if convicted. [ECF No. 70.] Lussier does not object. This motion is granted as unopposed.

         II. Lussier's Motions in Limine

         A. To Exclude Character Crimes, Wrongs, Other Acts, and Prior Convictions

         Lussier requests that the Court preclude the government from impeaching the Defendant or otherwise offering (1) inadmissible character, crimes, wrongs, or other acts evidence, and (2) prior conviction evidence. [See ECF No. 75.] Specifically, the Defendant argues, first, that all character and “other bad acts evidence” regarding allegations of assaultive behavior towards D.M.N. should be excluded as irrelevant and impermissible propensity evidence, remote in time to the crimes charged, not provable by the preponderance of the evidence gatekeeping standard, and more prejudicial than probative. Second, the Defendant argues that his prior conviction from 2005 for possession of an unregistered firearm should be excluded under Fed.R.Evid. 609.

         The first portion of this motion, regarding Lussier's alleged prior assaultive behavior, is addressed above, and the motion is denied.

         With respect to Lussier's conviction from 2005, the use of convictions greater than 10 years old is limited by Fed.R.Evid. 609(b). The government concedes this. Thus, the 2005 conviction is inadmissible and the motion is granted.

         B. For Attorney-Conducted Voir Dire

         Lussier requests that the Court allow counsel to question the jury on the topic of implicit bias. [ECF No. 76.] The government does not object. The Court will allow each party 15 minutes of voir dire.

         C. Regarding Irrelevant and Prejudicial Evidence and Argument

         Lussier seeks preclusion of certain evidence and argument as irrelevant and prejudicial per Federal Rules of Evidence 402 and 403. [ECF No. 77.] The Court addresses each subpart of this motion in turn.

         i. ...