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United States v. Scarborough

United States District Court, M.D. Tennessee, Nashville Division

April 9, 2015



MARVIN E. ASPEN, District Judge.

The three-count indictment against Defendant Daniel Ray Scarborough charges that he threatened to assault and murder a Federal law enforcement officer, Karen Pickens, on three separate occasions in March 2013, in violation of 18 U.S.C. § 115(a)(1)(B). A jury trial is scheduled to begin on April 21, 2015. Presently before us are three motions in limine filed by the parties in preparation for trial.

As set forth below, we grant Defendant's motion to exclude evidence of prior criminal convictions and deny his motion to prevent witnesses from using the words "threat" and "threatening." We also partially allow the Government's motion to preclude evidence of the parties' longstanding land dispute and order the parties to confer and submit an appropriate stipulation.


"A district court's inherent authority to manage the course of its trials encompasses the right to rule on motions in limine. " Highland Capital Mgmt., L.P. v. Schneider, 551 F.Supp.2d 173, 176-77 (S.D.N.Y. 2008) (citing Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 463 (1984)). "The Federal Rules of Evidence, the Federal Rules of Criminal and Civil Procedure and interpretive rulings of the Supreme Court and this court all encourage, and in some cases require, parties and the court to utilize extensive pretrial procedures-including motions in limine -in order to narrow the issues remaining for trial and to minimize disruptions at trial." United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999); see United States v. Huff, 10 CR 73, 2011 WL 4916195, at *1 (E.D. Tenn. Oct. 27, 2011). Because a ruling on a motion in limine is "subject to change as the case unfolds, " this ruling constitutes a preliminary determination in preparation for trial. See Luce, 469 U.S. at 41, 105 S.Ct. at 163; United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994). A district court's rulings on in limine motions will be reversed only where the court abuses its discretion, that is, "when it relies on clearly erroneous findings of fact, when it improperly applies the law, or when it employs an erroneous legal standard." United States v. Gunter, 551 F.3d 472, 483 (6th Cir. 2009); United States v. Cline, 362 F.3d 343, 348-49 (6th Cir. 2004).


A. Defendant's Motion to Exclude Evidence of Prior Convictions

In his first motion, Defendant asks that we exclude any evidence of his prior convictions under Federal Rules of Evidence 404(b) and 609(b). (Dkt. No. 79.) Rule 404(b) prohibits the use of "evidence of a crime, wrong, or other act... 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). While impermissible to show character or propensity, evidence of prior crimes or other acts "may be admissible 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).

Here, Defendant seeks to exclude evidence of a 1987 conviction for grand larceny and a 1988 conviction for fraud breach of trust. (Dkt. No. 79 at 1.) Defendant contends that these convictions, which are more than ten years old, are irrelevant and unduly prejudicial. ( Id. at 1-2.)

The Government did not respond to this motion. Nor has the Government notified Defendant of its intent to use this evidence at trial, as required by Rule 404(b)(2), although the Government has provided notice about other evidence it seeks to introduce. ( See Dkt. No. 97.) Based on Defendant's reasoning and the Government's apparent acquiescence, we grant this motion. The Government shall not introduce any evidence of these two prior convictions.

B. Defendant's Motion to Prohibit Characterization of His Statements as "Threats" or "Threatening"

Defendant also asks that we preclude Government witnesses from characterizing his allegedly unlawful communications as "threats" or "threatening." (Dkt. No. 80.) Defendant contends such testimony would be inappropriate and unduly prejudicial, because the jury alone must ultimately determine whether his statements were "threats" within the meaning of 18 U.S.C. § 115(a)(1)(B). ( Id. at 2) Defendant also argues that the words "threat" and "threatening" are legal terms with distinct meanings and, as such, witnesses should not use them to testify as to a legal conclusion. ( Id. ) The Government responds that use of the word "threat" is not inherently prejudicial and, moreover, that the jury instructions and arguments from counsel will eliminate any potential confusion. (Dkt. No. 86.)

Section 115(a)(1)(B) prohibits anyone from "threaten[ing] to assault, kidnap, or murder, a... Federal law enforcement officer... with intent to impede, intimidate, or interfere with such official, ... or with intent to retaliate against such official." 18 U.S.C. § 115(a)(1)(B); United States v. Cope, 293 F.Appx. 384, 387 (6th Cir. 2008); United States v. Andrews, 48 F.Appx. 151, 155 (6th Cir. 2002); see also United States v. Ream, 506 F.Appx. 842, 845 (10th Cir. 2013); United States v. Stefanik, 674 F.3d 71, 74-75 (1st Cir. 2012). "Under the First Amendment, threatening expression can be criminally punished if the communication at issue is a true threat, ' that is, if the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.'" Ream, 506 F.Appx. at 845 (quoting Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 1548 (2003)); see Cope, 283 F.Appx. at 387-88; United States v. Jeffries, 692 F.3d 473, 477-78 (6th Cir. 2012) (discussing the "true threat" analysis in the somewhat related context of a § 875(a) prosecution, concerning threats transmitted interstate). Under 18 U.S.C. § 115(a)(1)(B), the Government can prevail by proving that: "(1) the defendant conveyed a threat of physical harm to a federal official or [her] family; (2) the threat was intended as an act of retaliation [or to impede, intimidate, or interfere with the official]; and (3) this threat could reasonably be construed by the person in receipt of the threat to be actually carried out." Andrews, 48 F.Appx. at 155; see Cope, 283 F.Appx. at 387-88; United States v. Veach, 455 F.3d 628, 633 (6th Cir. 2006). The Government need not show that the defendant "intended to carry out the threat" so long as it shows that "a reasonable person would have taken [the defendant's] statements seriously." Andrews, 48 F.Appx. at 155 (quoting U.S. v. Vincent, 681 F.2d 462, 464 (6th Cir. 1982)); Stefanik, 674 F.3d at 75; see United States v. D'Amario, 330 F.Appx. 409, 413-14 (3d Cir. 2009).[1]

Although Defendant is correct that the jury must determine whether his communications were "true threats, " the perceptions of Government witnesses are certainly relevant for trial. The Sixth Circuit has explained that "the credibility of the threat is examined from the vantage point of the reasonable recipient." Andrews, 48 F.Appx. at 156; see Stefanik, 674 F.3d at 75 (stating that, under the objective listener approach, "the fact-finder may consider other evidence, including the effect of the statement on the recipient"). As such, ...

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