United States District Court, D. Montana, Billings Division
P. WATTERS UNITED STATES DISTRICT JUDGE
the Court is Defendant Terrance Tyrell Edwards' Motions
in Limine. (Doc. 163). For the reasons set forth below, the
Court DENIES Edwards' motions.
motion in limine "is a procedural mechanism to limit in
advance testimony or evidence in a particular area."
United States v. Heller, 551 F.3d 1108, 1111 (9th
Cir. 2009). District courts have broad discretion to make
evidentiary rulings conducive to the conduct of a fair and
orderly trial. Amarel v. Connell, 102 F.3d 1494,
1515 (9th Cir. 1996). This wide discretion includes
determinations of relevancy and weighing the probative value
of proffered evidence. Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 384 (2008). "To exclude
evidence on a motion in limine the evidence must be
inadmissible on all potential grounds." BNSFRy. Co.
v. Quad City Testing Lab., Inc., 2010 WL 4337827, at *1
(D. Mont. 2010) (citation omitted). Finally, rulings on
motions in limine are provisional and "not binding on
the trial judge [who] may always change [her] mind during the
course of a trial." Id. (citation omitted).
Motion in Limine #1
first asks the Court to caution the government and its
witnesses against referring to certain witnesses as
"victims." Edwards asserts that the word
"victim" is "loaded, conclusory, and
sympathy-evoking, " and that it is improper vouching.
(Doc. 164 at 5, 7). The government asserts that it will not
refer to non-victim witnesses as victims, but that referring
to victim witnesses as victims does not violate the law, is
not vouching, and comports with the definition of a person
directly or proximately harmed under Federal law. (Doc. 169
Court agrees with the government. In People of Territory
v. Guam, 14 F.3d 1344, 1347-48, the Ninth Circuit
rejected this very same argument. There, the appellant argued
that using the term "child-victim" rather than
"child-witness" improperly prejudiced his defense.
The Ninth Circuit found that a simple explanation from the
court that the victim was the person the defendant
allegedly subjected to the crime was an adequate
safeguard against any potential prejudice that might flow
from the word "victim." Id. at 1348
(emphasis in original). In other words, the use of the term
"victim" is not prejudicial to the defendant's
rights when the presentation of evidence taken as a whole
clarifies the government's burden of proving all of the
elements of the crime. See United States v.
Washburn, 444 F.3d 1007, 1013 (8th Cir. 2006)
persuasive to this Court is that the term "victim"
has a legal definition that describes the individual's
status in the case. See 18 U.S.C. § 3771(e).
Standing alone, the term does not comment on Edwards'
guilt or the burden of proof. Further, using a legal term
does not equate to improper vouching. The jury will not be
unduly prejudiced against Edwards if the government refers to
certain witnesses as victims.
Motion in Limine #2
next argues that the Court should conduct a Daubert
hearing to assess FBI SA James Hardie's qualifications
for his expert opinion. (Doc. 164 at 8). The government
proposes to offer the expert testimony of Agent Hardie under
Federal Rule of Evidence ("FRE") 702. (See
Doc. 77). Agent Hardie would offer testimony about the
pimp-prostitute relationship and subculture. (Id. at
3). Agent Hardie has interviewed numerous individuals
involved in prostitution, including adult prostitutes and
pimps. (Id. at 2) He has attended and taught several
courses on sex trafficking, has previous experience as an
expert; regularly attends training on the investigation of
child prostitution; and has previously specialized in matters
related to sex-trafficking of juveniles. (Id.).
governs the introduction of expert opinion testimony. Plainly
stated, "[t]estimony is admissible under [FRE] 702, if
the subject matter at issue is beyond the common knowledge of
the average layman, the witness has sufficient expertise, and
the state of the pertinent art or scientific knowledge
permits the assertion of a reasonable opinion. United
States v. Winters, 729 F.2d 602, 605 (9th Cir. 1984).
FRE 702, the district judge must perform a gatekeeping
function to ensure that the evidence is "not only
relevant, but reliable." Daubert v. Merrell Dow
Pharm., 509 U.S. 579 (1993). The test of reliability is
a "flexible" one, and Daubert's list
of specific factors neither necessarily nor solely applies to
all experts or in every case. Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (1999). As a result, FRE
702 leaves a trial judge "considerable leeway in
deciding . . . how to go about determining whether particular
expert testimony is reliable, " id. at 152, and
whether a Daubert hearing is even required. See
United States v. Alatorre, 222 F.3d 1098, 1100-02 (9th
Cir. 2000) (trial courts are not compelled to conduct
pretrial hearings in order to discharge the gatekeeping
function under Daubert as to expert testimony).
the Court does not find that a pre-trial evidentiary hearing
is necessary. The proposed expert testimony in this case
regarding pimp culture and the pimp-prostitute relationship
does not involve a new scientific theory or novel idea but it
does require expert testimony. "By and large, the
relationship between prostitutes and pimps is not the subject
of common knowledge." See United States v.
Brooks, 610 F.3d 1186, 1195-96 (9th Cir. 2010) (internal
testimony is also relevant. See Id. (finding expert
testimony from qualified detectives on the pimp-prostitute
subculture relevant to child sex trafficking charges and
assists the jury); see also United States v. Taylor,239 F.3d 994, 998 (9th Cir. 2001) (testimony reflected
specialized knowledge that ...