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Case 4:24-cr-40137-RAL Document 85 Filed 06/04/25 Page 1 of 19 PageID #: 461
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA, 4:24-CR-40137-RAL
Plaintiff,
OPINION AND ORDER ON MOTIONS IN
vs. LIMINE AND OTHER EVIDENTIARY
ISSUES
LAMONT VICTOR GARRETT,
Defendant.
A grand jury indicted Lamont Victor Garrett with one count ofPossession of Ammunition
by a Prohibited Person for knowingly possessing ammunition while being both a felon and an
unlawful user of a controlled substance. Doc. 59. Garrett has pleaded not guilty to the charged
offense and has exercised his right to a jury trial. In preparation for trial, the Government filed a
Notice of Expert Witness: Scott Lee, Doc. 65, Notice of Expert Witness: Eric Bogenhagen, Doc.
66, Notice of Expert Witness: Carson Klinkhammer, Doc. 67, Notice of Intent to Offer Evidence
Pursuant to Fed. R. Evid. 404(b), Doc. 69; Notice ofIntent to Offer Evidence Pursuant to Fed. R.
Evid. 609, Doc. 77, and motions in limine. Doc. 78. Garrett filed his own Notice of Expert
Witness: Carson Klinkhammer, Doc. 64, an objection to the Government's Notice of Intent to
Offer Evidence Pursuant to Fed. R. Evid. 404(b), Doc. 73, and motions in limine. Doc. 75. On
June 4, 2025, this Court held a pretrial conference and motion hearing where it heard argument
and ruled on the motions in limine and objections. This Court now formalizes its rulings with this
Opinion and Order.
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I. Legal Standard
Rulings on motions in limine are by their nature preliminary. United States v. Spotted
Horse, 916 F.3d 686, 693 (8th Cir. 2019). They are "developed pursuant to the district court's
inherent authority to manage the course of trials," Luce v. United States. 469 U.S. 38, 41 n.4
(1984), and are "specifically designed to streamline the presentation of evidence and avoid
unnecessary mistrials," Spotted Horse.'916 F.3d at 693. This practice helps safeguard the jury
from hearing evidence so prejudicial that its mention could not be remedied through a corrective
instruction. Motion in limine. Black's Law Dictionary (11th ed. 2019). Rulings on motions in
limine necessarily occur before the nature and relevance of the evidence can be placed in full
context. See Snotted Horse. 916 F.3d at 693. Therefore, a district court has broad discretion when
ruling on motions in limine and retains the authority to revisit and change its rulings based on how
the case unfolds. Luce. 469 U.S. at 41-42. If this Court grants a motion in limine to exclude
certain information, that information must not be mentioned during voir dire, opening statements,
questioning or answering by witnesses, or closing arguments, unless coimsel outside the hearing
ofthe jury obtain a contrary ruling.
II. Discussion
A. Rule 404(b)Evidence^
Pursuant to Fed. R. Evid. 404(b), the Government seeks to admit testimony that Garrett
kept a .22 revolver on his person and that he had a firearm in his possession in mid-July 2024.
Doc. 69. Garrett objects to the Government's notice to admit such evidence and attaches to
counsel's affidavit interviews where witnesses spoke of Garrett allegedly distributing 30 to 40
This Court is not assuming that Garrett committed the prior acts by conducting this analysis.
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pounds of methamphetamine weekly, trafficking in firearms, and on or about August 28, 2024,
brandishing a firearm while making a threat to kill someone and her family. Does. 73, 74.
Under the Federal Rules ofEvidence 404(b), while "[ejvidenee ofa crime, wrong,or other
act is not admissible to prove a person's character," it is admissible in a criminal case to prove
"motive, opportunity, intent, preparation, plan, knowledge,identity, absence of mistake, or lack of
accident." "Rule 404(b) is a rule ofinclusion, prohibiting only evidence that tends solely to prove
the defendant's criminal disposition." United States v. Ali. 799 F.3d 1008, 1026 (8th Cir. 2015)
(cleaned up and citation omitted). In the Eighth Circuit, a prior act is admissible under Rule 404(b)
if it is: "(1) relevant to a material issue;(2) similar in kind and not overly remote in time to the
crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than
prejudicial effect."^ United States v. LaRoche. 83 F.4th 682,690(8th Cir. 2023)(cleaned up and
citation omitted).
Testimony about Garretfs involvement with controlled substances and firearm trafficking
is relevant to whether he knowingly possessed ammunition and whether he did so unlawfully as a
drug user. Whether the evidenee is similar in kind and not overly remote in time to the crime
charged is a somewhat more difficult inquiry given the nature of Garretfs positive drug test.
"[T]he prior acts need not be duplicates, but must be sufficiently similar to support an inference of
criminal intent." United States v. Walker. 470 F.3d 1271, 1275 (8th Cir. 2006)(cleaned up and
citation omitted). In Walker, the Eighth Circuit held that a prior armed robbery conviction was
2 The Eighth Circuit has expressed the fourth element ofthe test in different ways in different cases.
See United States v..Tohnson. 860 F.3d 1133, 1142(8th Cir. 2017)(expressing fourth element as
"not have a prejudicial value that substantially outweighs its probative value" borrowing from Rule
403 ofthe Federal Rules of Evidence); see also United States v. Johnson. 439 F.3d 947, 952(8th
Cir. 2006). This Court will follow how the Eighth Circuit framed the fourth element in LaRoche
as its most recent case on the Rule 404(b)test.
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sufficiently similar to a felon-in-possession offense because "each involved his possession of a
firearm in conneetion with a eriininal act." Moreover,"there is no fixed period within which
the prior aets must have oecurred." United States v. Baker. 82 F.3d 273, 276 (8th Cir. 1996).
Rather, this Court must "apply a reasonableness standard, evaluating the facts and circumstances
ofeach case." Walker,470 F.3d at 1275. However,the Eight Circuit has "generally been reluctant
to uphold the introduetion ofevidence relating to acts or crimes whieh oecurred more than thirteen
years prior to the conduct challenged." United States v. Halk. 634 F.3d 482, 487(8th Cir. 2011).
The testimony appears to eonnect Garrett to street drugs and guns in and around July and August
of 2024, close in time to the prohibited possession of ammunition on August 21, 2024. Drug
dealing of pound quantities of methamphetamine is not particularly similar to Garrett's alleged
unlawful drug use, which appears to involve marijuana.
Whether the prior acts are supported by sufficient evidence is something this Court cannot
gauge fully until trial. Whether the evidence's probative value is higher than its prejudicial effect
is the most difficult question here. Testimony that Garrett had street drugs or possessed any
firearm close in time to August 21, 2024, is not more unfairly prejudicial than probative. But
testimony that Garrett allegedly was selling 30 to 40 pounds of methamphetamine per week or
used a handgim to threaten to kill someone and her family strikes this Court as more unfairly
prejudicial than probative. Thus, such testimony of the alleged quantity of methamphetamine
trafficking and the use of a firearm to threaten to kill someone should not be mentioned during
voir dire, opening statements, or witness testimony. But Garrett's possession of a firearm around
the time ofthe alleged offense appears to be admissible.
B. Rule 609 Evidence
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Pursuant to Fed. R. Evid. 609, the Government next seeks to admit the following prior
felony eonvietion of Garrett if he testifies: "Conspiracy to Manufacture and Distribute 50 Grams
or More Crack Cocaine and 500 Grams or More ofPowder Cocaine and Aiding and Abetting the
Distribution of27.3 Grams ofCrack Cocaine,on or about June 22,2006, with thejudgment entered
on June 29, 2006, in United States District Court for the Northern District ofIowa." Doc. 77.
Under Rule 609(a), a defendant's prior conviction may be used to attack the defendant's
character for truthfulness, should the defendant choose to testify, if the crime of conviction was a
felony offense and "the probative value ofadmitting this evidence outweighs its prejudicial effect"
to the defendant. United States v. Collier. 527 F.3d 695,699(8th Cir. 2008);^United States v.
Stoltz. 683 F.3d 934, 938-39 (8th Cir. 2012)(discussing how Rule 609(a) applies to witnesses
generally, not a defendant who testifies). However,"for any crime regardless ofthe punishment,
the evidence must be admitted if the court can readily determine that establishing the elements of
the crime require proving—or the witness's admitting—a dishonest act or false statement." Fed.
R. Evid. 609(a)(2); United States v. Smart. 60 F.4th 1084, 1092 (8th Cir. 2023). "Evidence of a
conviction requiring proof or admission ofan act of dishonesty or false statement is automatically
admissible and not subject to Rule 403 balancing." Collier. 527 F.3d at 700.
If more than ten years have passed since the offered conviction or the witness's release
from confinement for the conviction, whichever is later, the evidence is admissible only if "its
probative value, supported by specific facts and circumstances, substantially outweighs its
prejudicial effect" and "the proponent gives an adverse party reasonable written notice ofthe intent
to use it." Fed. R. Evid. 609(b). When admitting evidence of a prior felony conviction, courts
may limit the evidence to "whether a conviction was obtained, when the conviction was obtained,
and what the conviction was for." See United States v. Weslev.990 F.2d 360,366(8th Cir. 1993).
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But see United States v. White. 222 F.3d 363, 370 (7th Cir. 2000)(holding that details of prior
conviction are usually not given to the jury but can be when the defendant "opens the door" to
further details by trying to deny, minimize, or explain the conviction away).
Here,the parties are entering into a stipulation regarding Garrett's prior felony conviction
in the United States District Court for the Northern District ofIowa. The Government agrees that
details ofthe conviction or punishment are inadmissible unless Garrett testifies in a way that opens
the door to admissibility. This Court agrees.
C. Government's Motions in Limine
The Government's Motions in Limine,Doc. 78, has eight suhparts and seeks to(1)exclude
reference to penalty and punishment; (2) exclude opining on the guilt or innocence of the
Defendant;(3)exclude reference to matters required to he raised by pretrial motion under Fed. R.
Crim. P. 12(b)(3);(4)exclude reference to the Government's charging decisions in this matter;(5)
exclude evidence or argument relating to the jury's power of nullification; (6) exclude hearsay
statements of Garrett offered by Garrett;(7)permit Sioux Falls Police Detective Scott Seiner to sit
at counsel's table during trial; (8) sequester witnesses &om the courtroom. Each is addressed
below.
1. Reference to Penalty or Punishment
Under subpart one, the Government moves to preclude Garrett, his attorney, and any
witness from referring to the possible penalty or punishment Garrett will face if convicted of the
crime charged. "It is well established that when a jury has no sentencing function, it should be
admonished to reach its verdict without regard to what sentence might be imposed." Shannon v.
United States. 512 U.S. 573, 579(1994)(cleaned up and citation omitted). The jury's role "is to
find the facts and to decide whether, on those facts, the defendant is guilty of the crime charged."
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Id. "[PJroviding jurors sentencing information invites them to ponder matters ... not within their
province, distracts them from their factfinding responsibilities, and creates a strong possibility of
confusion." Id.(citation omitted). The jury must be able to carry out its role iminfluenced by the
consequence of its verdict. jfr at 578 (citation omitted); United States v. Fisher. 10 F.3d 115,
121 (3d Cir. 1993) ("[Fjederal criminal juries are almost never instructed concerning the
consequences ofverdicts."). Accordingly,this Court grants the Government's motion as to subpart
one. There shall be no reference to or comment on the possible penalty or punishment Garrett
could receive if convicted. This does not, however, preclude Garrett from referring to the charge
as a "serious" or "felony" offense.
2. Opining on Guilt or Innocence
Under subpart two,the Government requests an order barring Garrett, his attorney, and any
witnesses from expressing their opinion about the guilt or innocence of Garrett. Evidence
expressing an opinion on a defendant's innocence or guilt "invades the province of the jury" and
is inadmissible. See United States v. Thirion. 813 F.2d 146, 156(8th Cir. 1987)(reasoning that a
government witness's opinion that defendant was innocent "is not truly exculpatory evidence
because it is inadmissible as it invades the province of the juiy"); Wesson v. United States. 164
F.2d 50, 55 (8th Cir. 1947)("And any such urmecessary opinion evidence in a criminal case that
will inescapably be a plain expression ofthe witness's opinion ofthe defendant's guilt... should
be scrupulously avoided."). Therefore, neither Garrett,the attorneys, nor any witnesses may opine
on the guilt or innocence of Garrett. This, of course, does not preclude Garrett from potentially
testifying about his innocence nor prevent his attorney from asserting dctual innocence or arguing
that the evidence presented at trial does not establish guilt beyond a reasonable doubt.
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3. Reference to Matters Required to Be Raised by Pretrial Motion(Fed.
R. Crim.P. 12(b)(3))
Next, the Government seeks to prohibit Garrett from referencing matters that should have
been brought before this Court by pretrial motion under Fed. R. Grim. P. 12(b)(3). In relevant
part, Rule 12(b)(3) provides that:
The following defenses, objections, and requests must be raised by pretrial motion
if the basis for the motion is then reasonably available and the motion can be
determined without a trial on the merits:
(A)a defect in instituting the prosecution, including:
(i) improper venue;
(ii) preindictment delay;
(ill) a violation ofthe constitutional right to a speedy trial;
(iv) selective or vindictive prosecution; and
(v) an error in the grand-jury proceeding or preliminary bearing;
(B)a defect in the indictment or information, including:
(i)joining two or more offenses in the same count (duplicity);
(ii) charging the same offense in more than one count(multiplicity);
(iii) lack of specificity;
(iv)improper joinder; and
(v)failure to state an offense;
(C)suppression of evidence;
(D)severance of charges or defendants imder Rule 14; and
(E)discovery under Rule 16.
Additionally, although not explicitly listed imder Rule 12(b)(3), a defendant's argument that law
enforcement engaged in "outrageous government conduct"^ is a question oflaw and therefore must
be "raised as a pre-trial motion to dismiss the indictment." United States v. Nguven,250 F.3d 643,
645-46 (8th Cir. 2001)(stating that the failure to file a pre-trial motion to dismiss the indictment
^ Outrageous governmental conduct refers to "conduct of law enforcement agents [that] is so
outrageous that due process principles would absolutely bar the governmentfrom invoking judicial
processes to obtain a conviction." United States v. Russell. 411 U.S. 423, 431-32 (1973). The
United States Court of Appeals for the Eighth Circuit has stated that"[t]he level ofoutrageousness
needed to prove a due process violation is 'quite high,' and the government's conduct must'shock
the conscience ofthe court.'" United States v. Hunt. 171 F.3d 1192,1195(8th Cir. 1999)(quoting
United States v. Pardue. 983 F.2d 835, 847(8th Cir. 1993)).
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based on outrageous government conduct "waives the issue")(citing United States v. Henderson-
Durand. 985 F.2d 970, 973 n.4 (8th Cir. 1993)); see also United States v. Duncan. 896 F.2d 271,
274-75 (7th Cir. 1990) (agreeing "with the Second Circuit that an outrageous governmental
conduct defense must be made the subject of a pre-trial motion"(citing United States v. Nunez-
Rios. 622 F.2d 1093,1098(2nd Cir. 1980)).
Unless otherwise,set by the court, the deadline to file motions under Rule 12(b)(3) is the
start oftrial. Fed. R. Crim. P. 12(c)(1),(c)(3)("If a party does not meet the deadline for making a
Rule 12(b)(3) motion,the motion is untimely.");^United States v. Trancheff. 633 F.3d 696,697
(8th Cir. 2011). In this case, the deadline for filing such motions was May 27, 2025. Doc. 63. A
party's failure "to [timely] file a pretrial motion by the deadline" constitutes a waiver ofthat issue.
Trancheff 633 F.3d at 697. Although a court has the discretion to excuse a waiver and review an
untimely filed pretrial motion, id., the party seeking the court's review must show good cause,
meaning they "must show both cause and prejudice." United States v. Maver. 63 F.4th 680, 683
(8th Cir. 2023)(citation omitted). Thus, absent good cause shown, Garrett may not raise or argue
a defense, objection, or request enumerated under Rule 12(b)(3) at trial.
4. Reference to Government's Charging Decisions in This Matter
The Government requests an order preventing Garrett, defense counsel, and any witness
from making direct or indirect reference to the Government's charging decision in this matter.
References to the Government's charging decisions generally offer "minimum probative value"
and are typically "outweighed by the danger of unfair prejudice, confusion of issues, and
misleading the jury." United States v. Reed. 641 F.3d 992, 993-94 (8th Cir. 2011)(collecting
cases where other courts of appeal upheld exclusion of evidence of prior charging decisions);
United States v. Noske. 117 F.3d 1053, 1058 (8th Cir. 1997)(affirming district court's exclusion
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ofIRS agent's recommendation against prosecuting defendant). This Court grants subpart four of
the Government's motion in limine.
5. Jury Nullification
Subpart five seeks to prevent Garrett, defense counsel, and any witness from making direct
or indirect reference to jury nullification. Such information is not relevant to Garrett's guilt or
innocence. See also United States v. Thomas. 116 F.3d 606,615(2d Cir. 1997)("[T]he power of
juries to 'nullify' or exercise a power of lenity is just that - a power; it is by no means a right or
something that ajudge should encourage or permit if it is within his authority to prevent."). This
Court grants subpart five ofthe Government's Motions in Limine.
6. Hearsay Statements Made by Garrett Offered by Garrett
In subpart six, the Government seeks to prevent Garrett from admitting into evidence out-
of-court statements that he may have made regarding his guilt or innocence. The Government
specifically seeks to exclude Garrett from admitting a denial through a witness to avoid taking the
stand. The Government argues that such statements are hearsay and inadmissible under Rule 801
of the Federal Rules of Evidence. Unless an exception otherwise applies, a defendant's out-of-
court statements, if offered by the defendant to prove the truth of the matter asserted, are
inadmissible as hearsay. Fed. R. Evid. 801(c)-(d);^United States v. White Horse. 177 F. Supp.
2d 973, 977 (D.S.D. 2001)(reasoning that defendant's statements to a doctor were inadmissible
hearsay because they were offered by the defendant and were not offered under the exception for
statements made for the purpose of diagnosis or treatment). Accordingly, any out-of-court
statement made and offered by Garrett to prove the truth of the matter asserted is inadmissible
unless Garrett can show that the statement is admissible under an exception to the rule against
hearsay. Under Fed. R. Evid. 801(d)(2)(A), out-of-court statements made by a party and offered
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against that party is not hearsay. Thus, when offered by the Government, Garrett's out-of-court
statements are not hearsay under Fed. R.Evid. 801(d)(2)(A). However, absent some other hearsay
exception, Garrett is prohibited from admitting into evidence his own out-of-court statements. See
United States v. Waters. 194 F.3d 926,931 (8th Cir. 1999)(holding that defendant could not admit
his own out-of-court statements to FBI agent because they were inadmissible hearsay).
7. Request for Detective to Sit at Counsel Table
Subpart seven requests that Sioux Falls Police Detective Scott Seiner be allowed to sit at
coimsel table during trial. Garrett,in his motions in limine,seeks to prohibit Detective Seiner from
sitting at counsel's table. "At a party's request, the court must order witnesses excluded so that
they cannot hear other witnesses' testimony." Fed. R. Evid. 615. However, Fed. R. Evid. 615
does not authorize the exclusion of"one officer or employee of a party that is not a natural person
if that officer or employee has been designated as the party's representative by its attomey." "A
person designated as a party's representative can be present in the courtroom during witness
testimony, and [t]he decision whether to allow the government's agent to testify even though the
agent sits at the counsel table throughout the trial is left to the trial court's discretion." United
States V. Engelmann. 701 F.3d 874, 877(8th Cir. 2012)(cleaned up and citation omitted).
Detective Scott Seiner is the main case agent involved in the case. The Government asserts
that his presence is essential to presenting its case, and as such, has designated Detective Seiner as
a party representative. Accordingly, Fed. R. Evid. 615 "does not authorize [this Court from]
excluding" Detective Seiner from the courtroom under a sequestration order. Detective Seiner has
written reports and recorded his interaction with Garrett so there is little risk that being in the
courtroom somehow "will influence him to change his testimony; much of what he could testify
about is in those reports written prior to the start of trial. Garrett cited no authority to support
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arguments for excluding the Government's case agent from the courtroom. This Court grants
subpart seven ofthe Government's motion in limine.
8. Sequestration ofWitnesses
Subpart eight of the Govermnent's Motions in Limine requests an order sequestering all
witnesses, except for Detective Scott Seiner. "The purpose ofsequestration is to prevent -witnesses
from tailoring their testimony to that of prior witnesses and aid in the detection of dishonesty."
Engelmann. 701 F.3d at 877 (citation omitted). "At a party's request, the court must order
witnesses excluded from the courtroom so that they carmot hear other witnesses' testimony." Fed.
R. Evid.615: see Engelmann. 701 F.3d at 877. Generally, a "district court is granted wide latitude
in implementing sequestration orders." Engelmann. 701 F.3d at 877(citation omitted). And "the
decision whether to allow the government's agent to testify even though the agent sits at the
counsel table throughout the trial is left to the trial court's discretion." Ifr (cleaned up and citation
omitted). Therefore, all fact witnesses—whether for the Government or Garrett—^will be
sequestered, except for Detective Seiner. Garrett of course is entitled to be in the courtroom
throughout the trial.
D. Garrett's Motions in Limine
Garrett's Motions in Limine, Doc. 75, has fourteen subparts and seeks to (1) sequester
witnesses from the courtroom;(2) prohibit Detective Scott Seiner or any law enforcement-officer
from sitting at counsel table with the Assistant United States Attomey; (3) prohibit any
Government agent other than the Assistant United States Attomey from "de-briefing" any
Government witness who testifies pursuant to a plea agreement;(4) exclude evidence related to
the nature or specifics of any prior conviction of Garrett if Garrett chooses to testify;(5) prohibit
or limit the Government from eliciting testimony from a witness about the witness's observations
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Garrett buying or selling drugs;(6) prohibit any law enforcement officer or Government witness
from stating an opinion on whether Garrett knowingly possessed a firearm; (7) prohibit
Government from offering evidence ofany arrests, adjudications of guilt, or convictions of Garrett
that have not been stipulated to;(8) exclude any discussion regarding Garrett's choice whether to
testify or not;(9) prohibit evidence of Garrett's crimes, wrongs, or bad acts probative of crimes
with which he is charged but are substantially more prejudicial; (10) to provide names of
informants; (11) require the Government to disclose all inducements given to Government
witnesses to testify; (12) require the Government to disclose any evidence that would impeach
government witnesses or show bias;(13)require the Government to disclose grand jury testimony
and evidence; and (14)allow Garrett to appear in civilian clothing during trial. Doc. 75.
1. Sequestration of Witnesses
Subpart one is granted to the extent outlined above for subpart eight of the Government's
Motions in Limine.
2. Detective Seiner Sitting at Counsel Table
Subpart two is denied as outlined for subpart seven of the Government's Motions in
Limine.
3. Government De-Briefing
Subpart three seeks to prohibit any Government agent, other than the Assistant United
States Attorney, from de-briefing any of the Government's witnesses who testify pursuant to a
plea or cooperation agreement with the Government after the witness has testified. The purpose
of a sequestration order is "to prevent witnesses from tailoring their testimony to that of prior
witnesses." United States v. Engelmann. 701 F.3d 874. 878 fSth Cir. 2012). However,"[ujnless
a district court specifies otherwise in a particular sequestration order, sequestration orders
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under Rule 615 do not forbid all contact with all trial witnesses at all times." Id at 877. This
Court will direct that the Government not discuss the testimony of any witness with the witness
between the time the witness is called and when the witness is released from subpoena or no longer
subject to being recalled, but otherwise the motion is denied.
4. Nature or Specifics of Prior Convictions
Subpart four is granted to the extent already discussed above regarding the Government's
intent to offer evidence pursuant to Fed. R. Evid. 609.
5. Testimony Regarding Drug Sales
The issue raised in subpart five is addressed in Part TLA. above.
6. Opinion Evidence on Mental State
Subpart six seeks to exclude any Government witness from offering an opinion on whether
Garrett knowingly possessed the ammunition that is the subject of the Superseding Indictment.
"An opinion is not objectionable just because it embraces an ultimate issue." Fed. R.Evid. 704(a).
However, an expert in a criminal case "must not state an opinion about whether the defendant did
or did not have a mental state or condition that constitutes an element ofthe crime charged or ofa
defense. Those matters are for the trier offact alone." Fed. R.Evid. 704(b); see also United States
V. Brown. 241 F. Appx. 890, 893(3d Cir. 2007)(stating that an "expert witness is thus prohibited
from testifying that a defendant knowingly possessed or had the intent to distribute a controlled
substance" where defendant was charged with violating 21 U.S.C. § 841(a)(1)). "The exception
does not apply in civil cases or affect lay witness testimony." Diaz v. United States.602 U.S. 526,
534(2024).
None of the Government's three proposed expert witnesses have been offered to give an
opinion on whether Garrett knowingly possessed ammunition. Docs.65,66,67. The Government
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appears not to intend to elicit opinion testimony on Garrett's possession of ammunition, but rather
evidence about where the ammunition was found and who stayed in the room and other such
matters to tie the ammunition allegedly to Garrett.
7. Arrests, Adjudications of Guilt, or Prior Convictions
Subpart seven seeks to exclude evidence regarding any arrests, adjudication of guilt, or
conviction of Garrett which has not been stipulated to by the parties. The Government does not
oppose the motion, except regarding Garrett's prior felony conviction and arrest on the charges at
issue in this case. This motion in Ihnine is thus granted to exclude other arrests and convictions
besides the prior federal felony offense and his arrest on the charges in this case.
8. Garrett's Decision to Testify or Not
Subpart eight seeks to preclude the Government or any other witnesses from making
comments or references as to Garrett's decision to testify or not. No person "shall be compelled
in any criminal case to be a witness against himself." U.S. Const, amend. V. Accordingly,"the
Fifth Amendment 'forbids either comment by the prosecution on the accused's silence or
instructions by the court that such silence is evidence of guilt.'" United States v. Long, 721 F.3d
920, 925-26 (quoting Griffin v. California, 380 U.S. 609, 615 (1965)). Thus, this Court grants
subpart eight of Garrett's Motions in Limine.
9. Prior Bad Acts
Subpart nine seeks to prohibit the Government from presenting any other evidence ofprior
bad acts that is substantially more prejudicial than probative. Under Fed. R. Evid. 404(b)(3), the
Government must provide written notice ofthe Government's intent to offer such evidence at trial.
The Government provided notice of an intent to offer evidence that Garrett kept a .22 revolver on
his person and that he had a firearm in his possession in mid-July 2024. Doc. 69. This Court
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addressed Garrett's opposition to that specific evidence above. To the extent the Government
seeks to offer any additional prior bad act evidence other than what is addressed in party II.A. of
this opinion and order, subpart nine of Garrett's Motions in Limine is granted.
10. Names ofInformants
Subpart ten seeks an order from this Court requiring the Government to disclose the
identities of the Government's confidential informants. "[T]he government has an obligation to
disclose the identity of a confidential informant [wjhere the disclosure of an informer's identity,
or ofthe contents of his communication, is relevant and helpful to the defense of an accused, or is
essential to a fair determination ofa cause." United States v. Sanchez.429 F.3d 753,756(8th Cir.
2005)(citing Roviaro v. United States. 353 U.S. 53,60-61 (1957)). "[IJfthe informant is an active
participant in the conduct charged, the informant's identity is almost always material and thus the
government must make every reasonable effort to have the informant made available to the
defendant." Id (cleaned up and citation omitted). "If, on the other hand, the informant is a mere
'tipster,' there is generally a strong presumption against disclosure." United States v. Clark. 2021
WL 6427712, at *14(D. Minn. Sept. 15, 2021)(cleaned up and citation omitted). A "tipster" is
"someone who conveys information to the government but who does not participate in the
offense." United States v. Gonzalez-Rodriguez. 239 F.3d 948,951 (8th Cir. 2001). Discussion at
the motion hearing revealed that Garrett has received this information regarding those informants
or cooperators potentially testifying against him.
11. Inducements
Subpart eleven seeks an order from this Court requiring the Government to disclose any
inducements given to Government witnesses. Under Bradv v. Maryland, "suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
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evidence is material either to guilt or to punishment, irrespective ofthe good faith or bad faith of
the prosecution." 373 U.S. 83,87(1963). Included among the evidence that Bradv obligates the
prosecution to disclose is both exculpatory evidence and impeachment evidence,that is,"evidence
affecting credibility," Giglio v. United States. 405 U.S. 150, 154 (1972), or "evidence that the
defense might [use] to impeach the Government's witnesses by showing bias or interest," United
States V. Baglev.473 U.S.667,676(1985). Evidence affecting the credibility ofa witness includes
"promises that may have been made to that witness." United States v. Rushing. 313 F.3d 428,436
(8th Cir. 2002). For example,"a defendant is entitled to know ofa promise to drop charges against
a key witness ifthat witness testifies for the government," United States v. Morton,412 F.3d 901,
906 (8th Cir. 2005). Accordingly, the Government is obligated to disclose to Garrett any
inducements provided to Government witnesses. To the extent the Government has not yet
disclosed to Garrett any inducements, subpart eleven of Garrett's Motions in Limine is granted.
12. Government Witness Impeachment Evidence
Subpart twelve of Garrett's motion in limine seeks an order from this Court requiring the
Government to produce any evidence tending to impeach government witnesses. As outlined
above, the Government has an obligation under Bradv and Giglio to disclose such evidence to the
defense. Thus, to the extent there is additional evidence not previously disclosed to Garrett,
subpart twelve of Garrett's Motions in Limine is granted.
13. Grand Jury Evidence
In subpart 13 of Garrett's Motions in Limine, Garrett seeks an order requiring the
Government to disclose grand jury testimony and exhibits presented to the grand jury. Garrett is
seeking this evidence in order to "determine whether there were violations ofFed. R. Crim.P. 6(e)
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. . . which would allow Defendant Garrett to file a second Motion seeking dismissal of the
Indictment." Doc. 75 at 3-4.
There is a "long-established policy that maintains the secrecy of grand jury proceedings in
the federal courts." Dennis v. United States. 384 U.S. 855, 869 (1966)(cleaned up and citation
omitted). However, Federal Rule of Criminal Procedure 6(e)(3)(E)(ii) authorizes disclosure of
grand jury materials to a defendant"who shows that a ground may exist to dismiss the indictment
because of a matter that occurred before the grand jury," but the defendant must show a
"particularized need" for the material. United States v. Broyles, 37 F.3d 1314, 1318 (8th Cir.
1994). "[Bjare allegation[s] that the reeords [of a grand jury] are necessary to determine if there
may be a defect in the grand jury process does not satisfy the 'particularized need' requirement."
Id. (citation omitted). The Government in the District of South Dakota typically discloses grand
jury transcripts on the Friday before the jury trial, which in turn typically starts on the next
Tuesday. This jury trial starts on Monday afternoon, Jime 9, 2025. The Government agreed to
aim for its disclosure of the grand jury transcripts by end of day Thursday, June 5, 2025, and that
is what this Court orders for any transcript then available.
14. Civilian Clothing
"A prisoner may not be compelled to go to trial in prison clothing." United States v. Roias,
35CF.3d 876, 879(8th Cir. 2004) Cciting Estelle v. Williams. 425 U.S. 501, 504-05 (1976). The
Supreme Court in Estelle v. Williams reasoned that "the constant reminder of the accused's
condition implicit in such distinctive, identifiable attire may affect a juror's judgment." 425
U.S. at 504-05. Accordingly, Garrett cannot be compelled to wear prison clothing during trial,
and subpart fourteen of Garrett's Motions in Limine is granted.
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III. Conclusion
Therefore, it is hereby
ORDERED that the Government's Motions in Eimine, Doc. 78, are granted to the extent
stated herein. It is further
ORDERED that Garrett's Motions in Eimine, Doc. 75, are granted to the extent stated
herein. It is further
ORDERED that Garrett's objections to the Notice of Intent to Offer Fed. R. Evid. 404(b) are
overruled in part as set forth herein.
DATED this^day of June, 2025.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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