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United States v. Loftis

United States District Court, D. Montana, Butte Division

March 8, 2018




         Before the Court is Defendant Joseph Brent Loftis' (“Loftis”) Motions in Limine (Doc. 129) seeking exclusion of certain evidence during trial. Specifically, Loftis requests that the Court exclude documents protected by the attorney-client privilege, evidence of Loftis' previous felony conviction, evidence of various civil judgments entered against him, disparaging opinion evidence, and all evidence that was not presented to the grand jury for indictment. For the following reasons, Loftis' Motion will be granted in part, denied in part, and the Court will reserve ruling in part.


         A motion in limine is used to preclude prejudicial or objectionable evidence before it is presented to the jury. The decision on a motion in limine is consigned to the district court's discretion-including the decision of whether to rule before trial at all. United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999). A motion in limine “should not be used to resolve factual disputes or weigh evidence.” BNSF Ry. v. Quad City Testing Laboratory, Inc., 2010 WL 4337827 at *1 (D. Mont. 2010). Evidence shall be excluded in limine only when it is shown that the evidence is “inadmissible on all potential grounds.” Id. “Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.” Id. “This is because although rulings on motions in limine may save time, costs, effort and preparation, a court is almost always better situated during the actual trial to assess the value and utility of evidence.” Id. Rulings on motions in limine are provisional and the trial judge may always change his mind during the course of trial. Luce v. United States, 469 U.S. 38, 41-42 (1984).

         I. Documentary evidence protected by the attorney-client privilege

         Loftis' Motion is unopposed and, consequently, will be granted. The United States indicates that it does not “intend to introduce any evidence protected by attorney-client privilege” but reserves the right to admit the October 13, 2011, email from Chad Bassett to Loftis in the event that Loftis attempts to defend himself by arguing that he acted in reliance on advice of counsel. (Doc. 137 at 2- 3.) The Court notes Loftis reserves the right to dispute whether the Government may be allowed to admit Chad Bassett's communications to third parties as Loftis' agent or employee under Federal Rule of Evidence 801(d)(2)(D). (Docs. 137 at 2-3; 145 at 2.)

         II. Testimony or Exhibits Related to Previous Fraud Conviction

         In 1995, Loftis pled guilty to bank fraud and false statement to a financial institution causing a criminal act. (Doc. 145 at 3.) In the Third Superseding Information it is alleged that it “was part of [his] scheme that . . . LOFTIS would and did represent that he did not have a criminal record when in truth he did have a criminal record.” (Doc. 98 at 3.) Loftis contends that evidence of this prior conviction should be excluded from trial.

         In summary, Loftis argues the following: (1) Federal Rule of Evidence 609(a)(1)(B) prohibits introduction of the prior conviction because more than ten years have passed and the Government has not given him written notice; (2) Loftis was not required to inform potential investors that he had a prior conviction; (3) under Rule 404(b), the prior conviction is too old to be relevant to show Loftis' intent to defraud; and (4) the unfair prejudice which would result from this evidence substantially outweighs its probative value. (Doc. 130 at 4-9.) The Government counters that Rule 609 is inapplicable because the prior conviction is not being introduced to attack Loftis' character for truthfulness but to show that he lied about his criminal record to induce trust in his victims. (Doc. 137 at 4-5.) Moreover, the Government contends that the past conviction is not evidence of “other” crimes under Rule 404 because it will be used to show the falsity of the misrepresentations by which Loftis implemented his scheme to defraud his victims as indicted. (Id. at 4-5.) For these reasons, the Government contends that any prejudice Loftis will experience as a result of this evidence does not substantially outweigh its probative value. (Id. at 6.)

         The Court is convinced that it is highly relevant that Loftis lied to his victims when they specifically asked him about his criminal record because it constitutes part of the means he employed to implement his scheme to defraud. For this same reason, the Court is satisfied that Rule 609 is inapplicable here. However, it is not as clear whether or not the specifics of the underlying offense are relevant. The Court is not satisfied that the remoteness of the conviction is controlling or that it necessarily renders this evidence inadmissible. As this Court has previously noted in United States v. Villarreal, 2017 WL 4621784 at *5 (D. Mont. Oct. 16, 2017), the elapsed length of time is not the only consideration at play when deciding whether evidence of a prior crime is admissible under Rule 404. Rather,

The better test . . . is whether the prior crime is similar in nature and in its material elements to have clearly probative value with respect to the intent of the accused at the time of the offense charged. Under this test, prior crimes involving deliberate and carefully premeditated intent-such as fraud and forgery-are far more likely to have probative value with respect to later acts than prior crimes involving a quickly and spontaneously formed intent-such as assault.

Id. (quoting United States v. San Martin, 505 F.2d 918, 922-23 (5th Cir. 1974)). It follows that past convictions involving fraud or forgery may have a longer shelf-life than other convictions in regard to proving intent to defraud which is also why a number-of-years rule is unwieldly in these circumstances. Nonetheless, the Court need not decide this issue at this time.

         The Court will reserve ruling on this issue until trial. If a witness testifies that Loftis was asked, or he volunteered, that he had no criminal record, then evidence of only a prior conviction is admissible. However, if a witness testifies that the witness asked Loftis specifically about a fraud conviction, and he denied it, then evidence of the nature of the prior conviction will become admissible at that time. Further, the Government is prohibited from discussing the prior conviction in its opening statement.

         III. Testimony Related ...

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