MARK W. BENNETT, District Judge.
In an Indictment (docket no. 2), filed June 23, 2011, Bruce Armstrong, the sole defendant, is charged with eight offenses involving methamphetamine and firearms. Somewhat more specifically,
On August 22, 2011, when Armstrong was represented by different counsel and the trial on the charges against him was set to begin on September 6, 2011, Armstrong filed a Motion In Limine (docket no. 15), seeking to exclude several categories of evidence, primarily on the grounds that the evidence was irrelevant or that the probative value of the evidence was substantially outweighed by its potential for prejudice. No timely response to that Motion In Limine was filed. However, the day after Armstrong filed his Motion In Limine, Armstrong filed a motion for a new attorney, which was granted on August 26, 2011. See Order (docket no. 21). Also on August 26, 2011, out-going counsel filed a Motion To Continue Trial (docket no. 22), which was granted, and the trial was reset to begin on October 3, 2011. See Order (docket no. 23). After additional continuances, trial was eventually set to begin on February 8, 2012. See Order (docket no. 40).
On January 12, 2012, in the course of my review of cases set for trial in January and February, it came to my attention that the prosecution had not yet responded to the Motion In Limine filed by Armstrong's prior counsel. In an Order (docket no. 45), I noted that Armstrong's current counsel had repeatedly indicated, in interim Status Reports, that the Motion In Limine was awaiting ruling by the court, which I concluded was an indication that present counsel intended to stand on prior counsel's Motion In Limine. Under the circumstances, I deemed it appropriate to set a deadline of January 25, 2012, for the prosecution to file a response to Armstrong's Motion In Limine. See id.
The prosecution did, in fact, file a Response To Defendant's Motion In Limine (docket no. 49) on January 25, 2012. In that Response, the prosecution resisted exclusion of some of the evidence that Armstrong challenges, but represented that other challenged evidence simply would not be offered.
I have considered Armstrong's Motion In Limine on the written submissions.
As a preliminary matter, I note that Rule 104 of the Federal Rules of Evidence provides, generally, that "[p]reliminary questions concerning . . . the admissibility of evidence shall be determined by the court. . . ." FED. R. EVID. 104. Such preliminary questions may depend upon such things as whether the factual conditions or legal standards for the admission of certain evidence have been met. See id., Advisory Committee Notes, 1972 Proposed Rule. This rule, like the other rules of evidence, must be "construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that truth may be ascertained and proceedings justly determined." FED. R. EVID. 102. I conclude that preliminary determination of the admissibility of the evidence put at issue in defendant Armstrong's Motion In Limine will likely serve the ends of a fair and expeditious presentation of issues to the jury. Therefore, I turn to the merits of Armstrong's evidentiary challenges.
In light of the prosecution's belated Response, it appears that the admissibility of some of the evidence that Armstrong challenges is no longer in dispute. I will address that evidence first.
In the second of two paragraphs number "2." in Armstrong's Motion, prior counsel asserted that "Informant 2," identified for the first time in certain discovery materials disclosed on August 15, 2011, was a client of his office, so that, if that witness was called, he would have a conflict of interest and would be required to withdraw. In its Response, the prosecution states that there is no longer any conflict of interest, because Armstrong's prior counsel has been allowed to withdraw and has been replaced with new counsel. Moreover, the prosecution represents that it does not intend to call "Informant 2" as a witness. To the extent that Armstrong's Motion In Limine sought to exclude evidence from "Informant 2," that portion of his Motion is now denied as moot.
In the paragraph numbered "6." in Armstrong's Motion, he seeks to exclude evidence of a prior misdemeanor conviction for possession of marijuana. The prosecution represents that it does not, and never did, intend to present evidence of this prior conviction, and that it had so notified both Armstrong's prior counsel and his new counsel. Under these circumstances, this portion of Armstrong's Motion In Limine is also denied as moot.
Similarly, in the paragraph numbered "7." in Armstrong's Motion, he seeks to exclude evidence of two uncharged controlled purchases of methamphetamine from him in December of 2009, that is, outside the time of the charged conspiracy. The prosecution represents that it does not, and never did, intend to present evidence of these uncharged offenses, and that it had so notified both Armstrong's prior counsel and his new counsel. Again, under these circumstances, this portion of Armstrong's Motion In Limine is also denied as moot.
Some of the evidence that Armstrong challenges does remain in dispute. Armstrong challenges most of that evidence on relevance or prejudice grounds, but he also challenges some of it on hearsay grounds. I turn to consideration of those remaining categories of evidence.
Before addressing the merits of Armstrong's challenges to evidence based on relevance and prejudice, I will summarize the standards for exclusion of evidence on relevance and prejudice grounds under the Federal Rules of Evidence and applicable case law.
Rule 401 of the Federal Rules of Evidence defines relevant evidence as evidence that "(a) . . . has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Rule 402 provides that relevant evidence is generally admissible, but irrelevant evidence is not.
Rule 403 provides for exclusion of even relevant evidence on various grounds, as follows:
FED R. EVID. 403.
United States v. Muhlenbruch, 634 F.3d 987, 1001 (8th Cir. 2011) (emphasis in the original); United States v. Myers, 503 F.3d at 676, 681 (9th Cir. 2007) ("Rule 403 `does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party's case. The rule protects against evidence that is unfairly prejudicial, that is, if it tends to suggest decision on an improper basis.'" (quoting Wade v. Haynes, 663 F.2d 778, 783 (8th Cir. 1981), aff'd sub nom. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L. Ed. 2d 632 (1983)).
The Advisory Committee Notes to Rule 403 explain that a decision on an "improper basis" is "commonly, though not necessarily, an emotional one." FED. R. EVID. 403, Advisory Committee Notes; see also United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir. 2007) (quoting this note); United States v. Dierling, 131 F.3d 722, 730-31 (8th Cir. 1997) (considering whether evidence was unfairly prejudicial, because it might lead to a decision on an improper basis, where it purportedly had no connection to the charged offense and revealed grisly or violent behavior that made the defendant appear "dangerous"). Unfairly prejudicial evidence has also been described as evidence that is "`so inflammatory on [its] face as to divert the jury's attention from the material issues in the trial.'" United States v. Adams, 401 F.3d 886, 900 (8th Cir. 2005) (quoting United States v. Shoffner, 71 F.3d 1429, 1433 (8th Cir. 1995)). "Under Rule 403, district courts have broad discretion to assess unfair prejudice, and are reversed only for an abuse of discretion." Myers, 503 F.3d at 681 (citing United States v. Henderson, 416 F.3d 686, 693 (8th Cir. 2005), cert. denied, 546 U.S. 1175, 126 S.Ct. 1343, 164 L. Ed. 2d 57 (2006)); accord Muhlenbruch, 634 F.3d at 1001 ("We review the district court's decision not to exclude evidence under Rule 403 for an abuse of discretion.").
Armstrong also asserts that some of the evidence should be excluded pursuant to Rule 404(b). As the Eighth Circuit Court of Appeals has recently explained,
United States v. Maxwell, 643 F.3d 1096, 1101 (8th Cir. 2011).
Even where evidence might otherwise be admissible pursuant to Rule 404(b), however, it may still be subject to exclusion, if its probative value is substantially outweighed by its potential for prejudice or confusion. See Maxwell, 643 F.3d at 1102 (explaining that such a balancing analysis may be "folded into" or separate from determination of whether evidence is admissible pursuant to Rule 404(b)); see also Clark, 295 F.3d at 814 (holding that Rule 403 applies to evidence otherwise admissible pursuant to Rule 404(b)); United States v. Mound, 149 F.3d 799, 801-02 (8th Cir. 1998) (same), cert. denied, 525 U.S. 1089 (1999). In the Rule 404(b) context, "[a]lthough an issue for which an item of evidence is offered as proof need not be in dispute for the item to be admissible, the probative value of an item of evidence is calculated with respect to the other evidence available to prove the same point." Clark v. Martinez, 295 F.3d 809, 813 (8th Cir. 2002) (citations omitted).
Where evidence may otherwise be inadmissible pursuant to Rule 403 or 404(b), the Eighth Circuit Court of Appeals and the Federal Rules of Evidence recognize that a limiting instruction on the proper uses of certain evidence may mitigate potential prejudice from such evidence. See, e.g, United States v. Cowling, 648 F.3d 690, 699 (8th Cir. 2011) ("Moreover, the risk of unfair prejudice was reduced by a cautionary instruction to the jury, given when the evidence was first admitted."); United States v. Young, 644 F.3d 757, 761 (8th Cir. 2011) (concluding that the district court did not abuse its discretion in admitting evidence for the limited purpose set forth in its instruction); United States v. Walker, 470 F.3d 1271, 1275 (8th Cir. 2006) ("[A] limiting instruction [concerning proper use of evidence of a prior conviction] diminishes the danger of unfair prejudice arising from the admission of the evidence."); see also FED. R. EVID. 105 (requiring a limiting instruction when the court admits evidence for a limited purpose).
With these rules in mind, I turn to consideration of the admissibility of the evidence that Armstrong challenges on relevance or prejudice grounds.
In the first of two paragraphs numbered "2." in his Motion, Armstrong seeks to exclude information from "Informant 1" that he had purchased methamphetamine from Armstrong "a few times," in quarter gram or smaller quantities, with the last such purchase on November 2, 2010. Similarly, in paragraph "8." of his motion, Armstrong seeks to exclude evidence from "Informant 3" that he began using methamphetamine with Armstrong in September of 2010, then began buying methamphetamine from Armstrong in December 2010, and did so about "1/2 dozen times." In his Motion, Armstrong asserts, baldly, that this evidence is unfairly prejudicial and should be excluded pursuant to Rule 403. In his supporting brief, however, he clarifies that the potential for unfair prejudice from this evidence is that jurors might improperly attribute drug quantities from outside of the conspiracy period to the conspiracy or simply rely on this evidence as showing his propensity to commit criminal acts.
Although the prosecution represented that it did not intend to present other confidential informants who made controlled buys from Armstrong in December of 2009, as set out in paragraph "7." of Armstrong's Motion, the prosecution does resist exclusion of the prior drug activity identified in paragraphs "2." and "8." The prosecution asserts that the evidence from "Informant 1," although it involves drug activity from outside the period of the charged conspiracy, is relevant, probative, and not unfairly prejudicial, with no explanation of why this is so. As to the evidence from "Informant 3," the prosecution argues, somewhat more expansively, that the evidence of drug activity is from just outside the period of the drug conspiracy and involved the same informant who conducted all of the controlled buys from Armstrong that are charged as substantive distribution counts. Thus, the prosecution argues that the evidence from this informant is relevant, probative, and not unfairly prejudicial, because it involves the same drug, methamphetamine, the same kinds of conduct, distribution and/or conspiracy to distribute methamphetamine, and shows the informant's knowledge of and relationship with Armstrong, including their drug use.
I recognize that prior drug activity, and sometimes even subsequent drug activity, of the defendant may be admissible pursuant to Rule 404(b). In United States v. Jones, 145 F.3d 959 (8th Cir. 1998), the Eighth Circuit Court of Appeals reiterated that "`[e]vidence of similar drug activity is admissible in a drug prosecution case because "a defendant's complicity in other similar transactions serves to establish intent or motive to commit the crime charged."'" United States v. Jones, 145 F.3d at 964. The court held that this was true, even of subsequent, uncharged drug activity. Id. In United States v. Logan, 121 F.3d 1172 (8th Cir. 1997), the Eighth Circuit Court of Appeals held that "evidence of prior possession of drugs, even in an amount consistent only with personal use, is admissible to show such things as knowledge and intent of a defendant charged with a crime in which intent to distribute drugs is an element." Logan, 121 F.3d at 1178; see also United States v. Ironi, 525 F.3d 683, 687 (8th Cir. 2008) (recognizing that even possession of user-quantities of a controlled substance is relevant under Rule 404(b) to show knowledge and intent to commit a current charge of conspiracy to distribute drugs); United States v. Hessman, 493 F.3d 977, 983 (8th Cir. 2007); United States v. Marquez, 462 F.3d 826, 830 (8th Cir. 2006) (noting that the Eighth Circuit Court of Appeals has "frequently upheld the admission of prior drug convictions to show knowledge and intent when the defendant denied the charged drug offense").
Nevertheless, in this case, the prosecution has completely failed to identify any permissible reason under Rule 404(b) for admitting the evidence of the prior drug activity identified in the first of the two paragraphs numbered "2." of Armstrong's Motion. Instead, the prosecution simply recites that such evidence "is relevant, probative and not unfairly prejudicial under Rule 403 of the Federal Rules of Evidence." Prosecution's Response To Defendant's Motion In Limine (docket no. 49) at 1. The prosecution's somewhat more expansive response to Armstrong's attempt to exclude the evidence of the prior drug activity identified in paragraph "8." of Armstrong's Motion also falls short of identifying a permissible reason under Rule 404(b) for admitting that evidence. Although the prosecution is correct that this evidence shows the informant's knowledge of and relationship with Armstrong, which may make the informant's testimony about Armstrong's drug activity within the time frame of the conspiracy more credible, the proper Rule 404(b) purpose for which this evidence may be offered is not to show the informant's knowledge of drug activity, but to show Armstrong's knowledge of and intent to participate in drug activity. See FED. R. EVID. 404(b) (evidence of prior acts is not admissible to show the actor's character or action in conformity therewith, but is admissible for purposes "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"). The prosecution also asserts "this evidence/testimony is relevant evidence of defendant's commission of a charged offense (methamphetamine distributions and/or conspiracy to distribute methamphetamine)." Prosecution's Response To Defendant's Motion In Limine (docket no. 49) at 4-5. While one might read this language to suggest that the prosecution believes that the evidence shows Armstrong's knowledge of and intent to commit drug transactions, I read it simply as relying on the evidence of prior drug activity to show "that on a particular occasion [Armstrong] acted in accordance with the character" of being a drug dealer, a purpose expressly prohibited by Rule 404(b). See FED. R. EVID. 404(b). More should be required to demonstrate admissibility of evidence pursuant to Rule 404(b) than simply mouthing the words "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident," as purposes for which the evidence is offered, and the prosecution does not even mouth the words. The prosecution falls well short of showing that the evidence does, in some way, show Armstrong's "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident" as purposes for which the evidence is offered. Therefore, the prosecution has not shown that the evidence of the prior drug activity challenged here meets the first factor in the test for admissibility of the evidence in question pursuant to Rule 404(b), as well as Rule 403, relevance to a material issue. See McGilberry, 620 F.3d 887 (stating factors for determining the admissibility of similar acts evidence pursuant to Rule 404(b)); Muhlenbruch, 634 F.3d at 1001 (stating that Rule 403 requires the balancing of probative value of evidence against its potential for unfair prejudice).
Therefore, paragraphs "2." and "8." of Armstrong's Motion seeking to exclude evidence of his drug activity outside the period of the charged conspiracy are granted.
In numbered paragraph "4." of his Motion, Armstrong seeks to exclude from recordings of controlled buys introductory and concluding remarks of law enforcement officers of what was about to occur and what had transpired. He contends that these remarks are not evidence and, therefore, not relevant, so that they should be excluded pursuant to Rule 401. The prosecution points out that Armstrong has not identified any specific recordings or comments and that the nature of the remarks, if any, differs from transaction to transaction. The prosecution also asserts that these remarks are merely "documentary" in nature, because they identify the time, date, and sometimes the circumstances of the recording in question, and that they actually appear to be more helpful than prejudicial to the determination of the relevance of the evidence. The prosecution asserts that potentially prejudicial statements or remarks can also be redacted from any recording or corresponding transcript.
I note, first, that Armstrong has not adequately identified any introductory or concluding comments on any recording that he believes are unfairly prejudicial. Nevertheless, I note that the authenticity of the recordings, including the circumstances in which they were made, should be established through testimony of a witness present at the time that the recordings were made. See, e.g., United States v. Wells, 347 F.3d 280, 288 (8th Cir. 2003). Thus, any "documentary" comments on the recordings serve no non-cumulative purpose. Moreover, "`[t]he tape recording itself . . . is the primary evidence of its own contents,'" see United States v. Gutierrez, 367 F.3d 733, 735-36 (8th Cir. 2004) (noting that such language is patterned after Eighth Circuit Manual of Model Criminal Jury Instructions § 2.06, and that it is appropriate for recorded conversations in English), not the comments of a law enforcement officer about what the officer believed might happen or may have happened. Thus, such comments are potentially substantially more prejudicial than probative, as they might invite jurors to accept the officer's expectations or conclusions as the truth, rather than what the jurors find in the contents of the recordings. See Muhlenbruch, 634 F.3d at 1001 (evidence is unfairly prejudicial within the meaning of Rule 403 when it has an undue tendency to suggest a decision on an improper basis). Thus, in an abundance of caution, I will direct the prosecution to redact all introductory and concluding comments by law enforcement officers on the recordings.
This part of Armstrong's Motion is granted.
The remaining evidence that Armstrong seeks to exclude, identified in the paragraph numbered "3." in his Motion, is the comment of a female in the recording of a controlled buy on May 25, 2011, suggesting that Armstrong take a "piece" with him. Armstrong asserts that law enforcement officers testified at the preliminary hearing that the "piece" was a weapon. The prosecution asserts that the full context of the statement/question from the female, since identified as Armstrong's neighbor, Crystal Rashedi, who will be called as a witness at trial, shows that, during a controlled buy, a confidential informant was not able to obtain methamphetamine from Armstrong until Armstrong left his residence to obtain methamphetamine from a source. During a conversation among the informant, Rashedi, and Armstrong, Armstrong's response to Rashedi's statement that he should take a "piece" was, "I should when I go down there. . . ." The prosecution asserts that there was then further discussion between Armstrong and Rashedi on the same topic. Finally, the prosecution asserts that during this transaction and in the context of these statements, Armstrong was observed by the informant to take his larger handgun (a .357 handgun subsequently seized by law enforcement), as well as a smaller handgun (a .22 caliber two-shot derringer), put the .357 handgun in his pocket, leave to obtain a supply of methamphetamine, and return a short time later with methamphetamine from which the informant then obtained a portion.
Armstrong argues that Rashedi's comment about the "piece" is hearsay and, consequently, inadmissible pursuant to Rule 802 of the Federal Rules of Evidence. Somewhat more specifically, he argues that the statement made by Rashedi of her impression that Armstrong should take a "piece" is an out-of-court statement offered to prove the truth of the matter asserted—that she believed that Armstrong should take a "piece." He also argues that this evidence is inadmissible pursuant to Rule 403 of the Federal Rules of Evidence, because Rashedi's thoughts or statement have no bearing on Armstrong's thoughts or intent. The prosecution contends that the evidence from the recording, and testimony consistent with it, is not hearsay pursuant to Rule 801(d)(1) of the Federal Rules of Evidence, because it is a prior statement by a witness, and the witness is available to testify and be cross-examined regarding the statement. The prosecution also contends that the evidence is relevant, probative, and not unfairly prejudicial under Rule 403.
Rule 801(c) of the Federal Rules of Evidence defines "hearsay" as follows:
FED. R. EVID. 801(c). Rule 801(d)(1) states the following:
FED. R. EVID. 801(d)(1) (as amended effective December 1, 2011).
Only subsection (d)(1)(B) could be applicable here, because the prior statement was not given under penalty of perjury at a trial, hearing, or other proceeding, see FED. R. EVID. 801(d)(1)(A), nor did it identify a person as someone the declarant perceived earlier, see id. at (d)(1)(C). A predicate for application of Rule 801(d)(1)(B) is that the declarant must testify at the trial and be subject to cross-examination concerning her out-of-court statement. See United States v. Bordeaux, 400 F.3d 548, 557 (8th Cir. 2005). The out-of-court statement must also have been made before any improper influence to encourage the witness to lie had been brought to bear. Id. Moreover, the purpose of Rule 801(d)(1)(B) evidence is to rebut an alleged motive to lie; "[i]t is not to be used to bolster the veracity of the witness's story as told on direct examination," nor to "bolster a discredited witness or to counter all forms of impeachment." United States v. Hoover, 543 F.3d 448, 454 n.2 (8th Cir. 2008). Thus, "prior consistent statements may be admitted for rehabilitative purposes even if they are not admissible as substantive evidence under Rule 801(d)(1)(B)." Id. at 454.
Assuming for the moment that what is at issue is an out-of-court statement being offered to prove the truth of the matter asserted, see FED. R. EVID. 801(c) (defining hearsay), it must be Rashedi's statement on the recording that Armstrong should take a "piece." Armstrong has not identified nor sought to exclude any statement from Rashedi that Armstrong did, in fact, take a "piece" when he left the apartment to obtain methamphetamine. That being the case, I cannot properly assess at this point the validity of the prosecution's assertion that the statement actually at issue is not hearsay, pursuant to Rule 801(d)(1). Rule 801(d)(1)(B) cannot be used as a sword, to admit evidence on direct examination, but only as a shield, to rebut an assertion of recent fabrication. See FED. R. EVID. 801(d)(1)(B); Hoover, 543 F.3d at 454 & n.2. It is not apparent from the present context that Armstrong is asserting, expressly or impliedly, that Rashedi's suggestion that Armstrong take a "piece" during the controlled buy in question was a recent fabrication, nor is there any indication that the statement occurred before Rashedi was subject to any improper influence to encourage her to lie about whether or not she encouraged Armstrong to take a "piece" with him. See Bordeaux, 400 F.3d at 557.
On the other hand, it does not appear likely to me that the prosecution is actually offering the portion of the recording including Rashedi's comment that Armstrong should take a "piece" for its truth, that is, that she did believe that Armstrong should take a "piece," so that the statement is not hearsay. See FED. R. EVID. 801(c); United States v. Street, 548 F.3d 618, 625 (8th Cir. 2008) ("[S]tatements would not be hearsay if they were not offered to prove the matters asserted."). Rather, it appears that the comment is simply part of a recording offered to prove that Armstrong engaged in a controlled buy in the course of which he discussed whether or not he should take a firearm with him when he left to obtain methamphetamine. The evidence that Armstrong did, in fact, take a firearm with him will come from the confidential informant, not from Rashedi's comments about whether or not Armstrong should take a firearm. Thus, it appears unlikely to me that Rules 801(d)(1)(B) and 802 are even implicated by this evidence. Because the purpose for which the out-of-court statement is offered is determinative of whether or not it is hearsay, see FED. R. EVID. 801(c)(2); Street, 548 F.3d at 625, I must await trial to determine the purpose for which Rashedi's comment is offered and whether it is challenged as a recent fabrication to determine its admissibility under Rules 801(c) and 801(d)(1)(B).
Even if the hearsay rules are not implicated, Armstrong argues that Rashedi's comment that he should take a "piece" should be excluded pursuant to Rule 403 as more prejudicial than probative. He argues that the evidence invites jurors to determine his intent with regard to a firearm based on Rashedi's intent. He cites United States v. Worman, 622 F.3d 969 (8th Cir. 2010), in support of this argument. In Worman, in which I was the trial judge, in a pretrial ruling on a motion in limine, I excluded statements by the defendant's wife's co-workers that the wife blamed the target of the defendant's pipe bomb for the termination of a contract that the wife's company had with her husband, on the ground that the co-workers' statements were substantially more prejudicial than probative. I reasoned that the wife's thoughts provided little insight into what the defendant thought or believed, invited unfair bias against him based on his wife's purported animosity, and distracted the jurors from evidence that was more probative of the defendant's own mental state and involvement of the offense. Worman, 622 F.3d at 975. At trial, however, I admitted the statements of the co-workers to show the defendant's motive, because if the defendant's wife knew that the target of the pipe bomb had canceled the contract with the defendant, the defendant would also know that. Id. The Eighth Circuit Court of Appeals concluded that I got it right the first time, not the second. That court concluded that the statements "unfairly diverted the jury from focusing on [the defendant's] own mental state, intent, motive, or involvement in the crime." Id.
Here, however, the prosecution asserts that there is direct evidence that Armstrong shared Radeshi's belief that he should take a firearm with him when he went to retrieve some methamphetamine to give the confidential informant, because Armstrong's response to Rashedi's statement was, "I should when I go down there. . .," and the confidential informant will testify that Armstrong did, in fact, take two firearms with him. Under these circumstances, Rashedi's comment that Armstrong should take a "piece" with him not only has relatively little probative value on Armstrong's state of mind, it has little or no potential for unfair prejudice, in light of other evidence that more directly demonstrates Armstrong's state of mind and actions. Cf. Clark, 295 F.3d at 813 (observing, in the Rule 404(b) context, "[a]lthough an issue for which an item of evidence is offered as proof need not be in dispute for the item to be admissible, the probative value of an item of evidence is calculated with respect to the other evidence available to prove the same point." (citations omitted)). Indeed, this challenge to Rashedi's comment seems like an attempt to make a mountain out of a molehill, when other evidence against Armstrong is the real mountain.
This portion of Armstrong's motion in limine is denied.
Upon the foregoing, defendant Armstrong's August 22, 2011, Motion In Limine (docket no. 15) is
1. The challenge to evidence identified in the first of two paragraphs of the Motion numbered "2." is
2. The challenge to evidence identified in the second of two paragraphs of the Motion numbered "2." is
3. The challenge to evidence identified in paragraph "3." of the Motion is
4. The challenge to the evidence identified in paragraph "4." of the Motion is
5. The challenge to the evidence identified in paragraph "6." of the Motion is
6. The challenge to the evidence identified in paragraph "7." of the Motion is
7. The challenge to the evidence identified in paragraph "8." of the Motion is
IT IS FURTHER ORDERED that, to avoid exposure of potential jurors to information about excluded evidence, this ruling shall be sealed until ten days after completion of trial or any guilty plea, unless a party files a motion within that ten-day period showing good cause why the ruling should remain sealed.
