Opinion
Criminal No. 03-700.
March 1, 2004
MEMORANDUM ORDER
The government has filed a Motion in Limine, seeing to preclude defense counsel from introducing certain evidence, testimony, cross-examination and/or arguments at the retrial of this case, now scheduled to begin March 8, 2004. The government and defense counsel have filed briefs on the issues, and a hearing was held on February 27, 2004.
The major focus of the government's Motion is on the testimony of Michael Jeffrey, who was a government informant in this case, but was called by the defense at the first trial. There are several issues regarding the testimony of Michael Jeffrey presented by this Motion.
1. The first issue is the extent of cross-examination that should be permitted of Michael Jeffrey as to his prior convictions. The government, of course, recognizes the validity of cross-examination of a witness on the fact of convictions. Mr. Jeffrey has two prior convictions, one for a state court narcotics offense, which involved selling crack cocaine; and a second conviction for corrupting the morals of a minor, the underlying facts of which concern sexual contact with a minor female — and although it appears that Mr. Jeffrey was initially charged with rape, the conviction is limited to corrupting the morals of a minor child. The Defendant wants to cross-examine Mr. Jeffrey on the details of these underlying convictions. Under the reasoning of (then) Judge Breyer in United States v. Pandozzi, 878 F.2d 1526 (1st Cir. 1989), and United States v. Mebust, No. 93-CR-436, 1994 U.S. Dist. LEXIS 3843 (N.D. Ill. Mar. 30, 1994) (allowing a defendant to inquire about the fact and nature of a cooperating witness's prior felony convictions for auto theft and LSD, but not about the underlying details), the Court will limit the examination of Mr. Jeffrey to defense counsel establishing the narcotics offense without any details and that the corrupting charge concerned conduct with a minor female. No further cross-examination as to the underlying facts of those offenses will be permitted.
2. There was also testimony at the first trial that Mr. Jeffrey was assaulted with a firearm. The government has provided discovery of its evidence as to the circumstances of this assault. It does not appear from any of the evidence that Mr. Jeffrey was committing any crime, and the Court finds that the proposed cross-examination as to Mr. Jeffrey suffering injuries is collateral, not relevant, and introduction of this evidence would be confusing to the jury.
3. Mr. Jeffrey wears a tattoo on his arm with the initials "MOB," which as Mr. Jeffrey testified at the first trial, stands for the phrase, "money over bitches" — which both counsel agree signifies Mr. Jeffrey's acknowledgment of the heightened importance of money in his life. Since Mr. Jeffrey is being paid by the government for his cooperation in this and other matters, the Court will allow defense counsel to bring out the fact that Mr. Jeffrey has this tattoo on his arm and what the initials stand for, but he will not be required to display the tattoo or to give any further explanation as to why he has the tattoo.
Several other issues were raised by the government's Motion, but they have been resolved by the parties or eliminated as issues for the Court's decision by the discussion at the pretrial argument on February 27, 2004. To briefly review the status of these matters:
1. The government has made available the names of all witnesses and defense counsel may subpoena those witnesses whom the government does not intend to call at the second trial.
2. Defense counsel has the right to display the Defendant's scar to the jury, without the Defendant taking the witness standSee United States v. Bay, 762 F.2d 1314 (9th Cir. 1984). However, the government may argue, without pointing out that Defendant does not take the witness stand, that there is no evidence as to how or when the scar arose and that it may have been incurred after the offenses.
3. Defense counsel has agreed not to cross-examine any of the eyewitnesses about so-called "cross-racial identification."
4. Defense counsel has agreed that government witnesses' recollections may be refreshed on reports they gave to the investigating agents.
ORDER
AND NOW, this 1st day of March, 2004, the Government's Motion in Limine (Docket No. 38) is granted in part and denied in part.