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Case 1:22-cr-00154-AKB Document 53 Filed 10/30/23 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA, Case No. 1:22-cr-00154-AKB-1
Plaintiff, MEMORANDUM DECISION AND ORDER
RE GOVERNMENT’S MOTIONS IN
v. LIMINE
KHADIJAH X. CHAPMAN,
Defendant.
Before the Court are the Government’s unopposed motions in limine. (Dkt. 42). For the
reasons discussed, the Court grants in part and denies in part the Government’s motions.
I. BACKGROUND
Chapman has been charged with bank fraud in violation of 18 U.S.C. § 1344. (Dkt. 1 at
pp. 5-6). The Government alleges that from February 2021 through at least March 2021, Chapman
defrauded a Boise-based lender in connection with a fraudulent Paycheck Protection Program
(“PPP”) loan application that sought over three hundred thousand dollars for a company Chapman
owned and controlled. (Dkt. 1 at pp. 2-5). The Government further alleges that the funds were
purportedly sought to cover the company’s business-related expenses but that Chapman did not
intend to use the funds for such expenses because the company did not have any employees or
legitimate business operations. (Id.). Chapman’s jury trial is set to begin on November 13, 2023.
(Dkt. 46).
II. LEGAL STANDARD
Motions in limine are 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). Like other
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pretrial motions, motions in limine are “useful tools to resolve issues which would otherwise
clutter up the trial.” City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1070 (9th Cir. 2017).
A motion in limine should not be used, however, to resolve factual disputes or weigh evidence.
C&E Servs., Inc., v. Ashland Inc., 539 F. Supp. 2d 316, 323 (D.D.C. 2008). Further, rulings on
motions in limine are provisional and are “not binding on the trial judge [who] may always change
his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3 (2000). As
such, “a ruling on a motion in limine is essentially a preliminary opinion that falls entirely within
the discretion of the district court.” City of Pomona, 866 F.3d at 1070; see Luce v. United States,
469 U.S. 38, 41 n.4, (1984).
III. ANALYSIS
In motions one through five, the Government essentially asks the Court to apply the rules
of evidence and other standard, well-established criminal procedures. Specifically, the
Government requests the Court preclude Chapman from victim-blaming, referencing punishment,
introducing purportedly self-exculpatory statements without testifying, improperly impeaching
Government witnesses, and encouraging jury nullification. (Dkt. 42 at pp. 4-12). Because the
motions are unopposed and because the Court would apply the rules anyway, the Court grants the
Government’s motions one through five. See, e.g., United States v. Lindsey, 850 F.3d 1009, 1014-
16 (9th Cir. 2017) (victim-blaming); United States v. Frank, 956 F.2d 872, 879 (9th Cir. 1991), as
amended on denial of reh’g (Feb. 11, 1992) (punishment); United States v. Fernandez, 839 F.2d
639, 640 (9th Cir. 1988) (self-exculpatory statements without testifying); Palermo v. United States,
360 U.S. 343, 350 (1959) (improper impeachment of Government witnesses); United States v.
Lynch, 903 F.3d 1061, 1079 (9th Cir. 2018) (jury nullification).
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In motion six, the Government seeks to introduce out-of-court co-conspirator statements
under Federal Rule of Evidence 801(d)(2)(E). “For illustrative purposes,” the Government
provides the Court with “examples” of the types of out-of-court co-conspirator statements it seeks
to introduce. (Dkt. 42 at pp. 12-14). Under Rule 801(d)(2)(E), a statement made by a party’s co-
conspirator during and in furtherance of the conspiracy is not hearsay. If the defendant disputes
the rule applies to a statement, the Government must prove the rule’s requirements by a
preponderance of the evidence. United States v. Saelee, 51 F.4th 327, 342 (9th Cir. 2022). The
Government must establish that: (1) a conspiracy or scheme existed at the time the statement was
made; (2) the defendant had knowledge of and participated in the conspiracy or scheme; and (3) the
statement was made in furtherance of the conspiracy or scheme. See, e.g., United States v.
Bowman, 215 F.3d 951, 960 (9th Cir. 2000). In evaluating whether the rule applies, the Court
must consider the statement, but the statement does not by itself establish the existence of the
conspiracy or participation in the conspiracy. Saelee, 51 F.4th at 342. Indeed, the Government
must present independent evidence to establish the requisite connection between the defendant and
the alleged conspiracy. Id.
As the Government acknowledges, the Government must, among other things, establish a
conspiracy existed prior to introducing alleged co-conspirator statements to the jury. See, e.g.,
Bourjaily v. United States, 483 U.S. 171, 175 (1987); Bowman, 215 F.3d at 960. At this time, the
Court cannot determine whether the examples of the types of statements listed in the Government’s
motion are co-conspirator statements under Rule 801(d)(2)(E). As the Government requests, the
Court will apply the applicable evidentiary rules. Without specific statements to consider and the
independent evidence of a conspiracy, the Court denies the Government’s motion six. The Court
will determine the applicability of Federal Rule of Evidence 801(d)(2)(E) to potential co-
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conspirator statements with the benefit of the evidence presented at trial for context. Chapman
will be required to object during trial as to whether a statement was made in furtherance of the
alleged conspiracy, and the Court can resolve that issue based on the statement’s context in the
evidence.
IV. ORDER
IT IS ORDERED:
1. The Government’s Motion in Limine (Dkt. 42) is GRANTED in PART and DENIED in
PART.
October 30, 2023
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