Opinion
Case No. 3:05-cr-159-J-32HTS.
August 2, 2006
ORDER
Under the E-Government Act of 2002, this is a written opinion and therefore is available electronically. However, it has been entered only to decide the motion or matter addressed herein and is not intended for official publication or to serve as precedent.
This case is before the Court on defendant Ronald Robert Evans, Sr.'s Second Motion to Sever Counts (Doc. 303) and Ronald Robert Evans, Sr.'s Supplemental Motion to Sever (Doc. 509), Ronald Robert Evans Sr.'s Motion to Dismiss Count Seven of the Third Superseding Indictment (Clean Water Act) (Doc. 491), Ronald Robert Evans, Sr.'s Motion In Limine to Admit Result of Polygraph Test (Doc. 453), Ronald Robert Evans, Sr. and Jequita Dumbar Evans' Joint Objections to Magistrate Judge's Reports and Recommendations Regarding Motions to Suppress (Docs. 518, 476 495), Ronald Robert Evans, Sr.'s Motion to Permit Counsel to Meet with Ronald Robert Evans, Jr., a Person Represented by Counsel (Doc. 517), the government's Motion to Exclude Evidence Not Produced in Reciprocal Discovery (Doc. 492), and the government's Consolidated Motion in Limine (Doc. 494). The government responded to the motion to dismiss (Doc. 508), motion to admit polygraph results (Doc. 496), motion to sever (Doc. 353) and supplemental motion to sever (Doc. 510). Defendant Ronald Robert Evans, Jr. responded to the motion to permit a meeting with counsel (Doc. 520). Defendants did not respond in writing to the government's motions in limine set forth above.
The motion to dismiss was filed before the government returned the Fourth Superseding Indictment. The Clean Water Act count in the Fourth Superseding Indictment is Count V. Thus, as confirmed by defense counsel during the August 1, 2006 hearing, the motion to dismiss is directed to Count V of the Fourth Superseding Indictment.
On August 1, 2006, the Court held a hearing, during which the undersigned rendered oral rulings on many of these motions. The Court, however, did not rule on the record concerning the motion to sever (Docs. 303 509), the motion in limine to admit Ronald Robert Evans, Sr.'s polygraph test results (Doc. 453) or defendants' Objections to Magistrate Judge Marcia Morales Howard's Reports and Recommendations Regarding Motions to Suppress (Docs. 518, 476 495).
I. Motion to Sever
Having reviewed Defendant Ronald Roberts Evans, Sr.'s ("Evans Sr.") motion to sever and the supplement thereto, the Court finds that all counts in the Fourth Superseding Indictment are properly joined under Rule 8(a), Federal Rules of Criminal Procedure.See United States v. Dowd, 451 F.3d 1244, 1249-50 (11th Cir. 2006); United States v. Hersh, 297 F.3d 1233, 1241-42 (11th Cir. 2002). Further, defendant failed to proffer and the Court could not discern any cognizable prejudice that would warrant a severance of any claim or claims charged in the Fourth Superseding Indictment. See Fed.R.Crim.P. 14(a). Thus, the motion to sever is due to be denied.
II. Motion In Limine to Admit Polygraph Test Results
During the hearing, the parties agreed that if the Court was to deem Evans Sr.'s polygraph test results admissible underDaubert, but exclude it under Rule 403, Federal Rules of Evidence, the Court could forego the Daubert hearing and simply rule on the basis of Rule 403. The parties announced during the August 1 hearing that they rested on the arguments presented in their respective papers and declined to present any additional oral argument. While the Court has reviewed and considered the arguments contained in the parties' filings related to the polygraph test results, it is necessary to obtain a more complete evidentiary basis in order to either admit or exclude the polygraph evidence under Daubert, and to perform a sufficient Rule 403 analysis. Thus, the Court will hold aDaubert and Rule 403 hearing concerning the polygraph evidence on Thursday, August 10, 2006, after the conclusion of jury selection.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Accordingly, it is hereby ORDERED:
1. Ronald Robert Evans, Sr.'s Second Motion to Sever Counts (Doc. 303) and Ronald Robert Evans, Sr.'s Supplemental Motion to Sever (Doc. 509) are DENIED.
2. The ruling on Ronald Robert Evans, Sr.'s Motion In Limine to Admit Result of Polygraph Test (Doc. 453) is DEFERRED pending the August 10, 2006 hearing.
3. Upon independent and de novo review of defendants' motions to suppress, defendants Ronald Robert Evans, Sr. and Jequita Dumbar Evans' Joint Objections to Magistrate Judge Marcia Morales Howard's Reports and Recommendations Regarding Motions to Suppress (Doc. 518) are OVERRULED and the Reports and Recommendations (Docs. 476 495) are ADOPTED as the opinion of the Court. All motions to suppress (Docs. 249, 251, 258, 259, 331, 385 387) are DENIED.
4. For the reasons set forth on the record during the August 1, 2006 hearing, Ronald Robert Evans Sr.'s Motion to Dismiss the Clean Water Act Count (Count V in the Fourth Superseding Indictment) (Doc. 491) is DENIED.
5. For the reasons set forth on the record during the August 1, 2006 hearing, Ronald Robert Evans, Sr.'s Motion to Permit Counsel to Meet with Ronald Robert Evans, Jr., a Person Represented by Counsel (Doc. 517) is DENIED.
6. For the reasons set forth on the record during the August 1, 2006 hearing, the government's Motion to Exclude Evidence Not Produced in Reciprocal Discovery (Doc. 492) is held in ABEYANCE.
7. For the reasons set forth on the record during the August 1, 2006 hearing, the government's Consolidated Motion in Limine (Doc. 494) is DENIED WITHOUT PREJUDICE.
DONE AND ORDERED.