United States v. Joseph N. Hall et al. — Opinion and Order, Western District of Virginia (Document 646)

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An opinion and order in United States of America v. Joseph N. Hall, Wesley W. Hickman, John C. Johnson, Sr. and Marissa L. Kiser, Case No. 1:21CR00024, in the United States District Court for the Western District of Virginia, filed February 18, 2022 as Document 646. The defendants are charged over an alleged scheme to obtain benefit payments through applications to the Virginia Employment Commission falsely claiming job losses from the COVID-19 pandemic. The court overrules objections to testimony about drug use, finding it admissible as intrinsic to the alleged conspiracy and not barred by Rule 403, and overrules Hickman's objection to a video visit. It grants Johnson's motion in limine in part, admitting an alleged co-conspirator's statements in a jail visit video but excluding the other speaker's response. It is signed /s/ by Senior United States District Judge James P. Jones.

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Case 1:21-cr-00024-JPJ-PMS Document 646 Filed 02/18/22 Page 1 of 5 Pageid#: 4398




                   IN THE UNITED STATES DISTRICT COURT
                  FOR THE WESTERN DISTRICT OF VIRGINIA
                            ABINGDON DIVISION


 UNITED STATES OF AMERICA                     )
                                              )
                                              )      Case No. 1:21CR00024
                                              )
 v.                                           )      OPINION AND ORDER
                                              )
 JOSEPH N. HALL, WESLEY W.                    )      JUDGE JAMES P. JONES
 HICKMAN, JOHN C. JOHNSON,                    )
 SR., and MARISSA L. KISER,                   )
                                              )
              Defendants.                     )


       In this criminal case the parties have filed motions in limine and evidentiary

 objections in advance of trial. A hearing was held, and the court took one of the motions

 and the objections under advisement. This Opinion and Order resolves them.

       The defendants are charged with various offenses arising out of their alleged

 participation in a fraudulent scheme to obtain government benefit payments by the

 submission of applications to the Virginia Employment Commission falsely claiming that

 they had lost their jobs because of the COVID-19 pandemic.

       Pretrial rulings on motions in limine and other evidentiary issues are generally

 conditional and a motion to reconsider may be made based upon events at trial or

 other changed circumstances. United States v. Peterson, No. 1:19CR00054, 2020

 WL 5039504, at *1 n.1 (W.D. Va. Aug. 26, 2020).
Case 1:21-cr-00024-JPJ-PMS Document 646 Filed 02/18/22 Page 2 of 5 Pageid#: 4399




     I.      Objections to Government’s 404(b) Notice Regarding Drug Use.

          Defendants Hall and Johnson have objected to the government’s Notices of

 Intent under Federal Rule of Evidence 404(b). In one Notice, the government

 proposes to introduce evidence of the following at trial:

     Testimony by Danielle Chytka and Greg Tackett that they knew Marissa Kiser
     and Ms. Kiser’s boyfriend (Curtis Mullins) through their common drug use
     activities; and

     Testimony by Danielle Chytka and Misty Evans that they knew one another and
     Joseph N. Hall through their common drug use activities.

 Notice 1, ECF No. 606.      As to defendant Johnson, the government’s other Notice

 proposed to introduce evidence as follows:

  In his video-taped interview, the defendant [Johnson] told investigators that after
   he was released from jail, he went over to Greg Tackett’s and Danielle Chytka’s
   house on several occasions to do drugs and to “get high.” . . . .

  In his video-taped interview, the defendant told investigators that he would get
   very small amounts of drugs from Greg Tackett following his release from jail.
   ...

 Notice 1, ECF No. 602.

          While in its Notices the government asserts this testimony to be admissible

 under Rule 404(b), at the hearing it contended that the testimony was primarily

 admissible as intrinsic to the proof of a conspiracy, in order to establish the

 relationship among the co-conspirators, Greg Tackett and Danielle Chytka being the


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Case 1:21-cr-00024-JPJ-PMS Document 646 Filed 02/18/22 Page 3 of 5 Pageid#: 4400




 alleged leaders of the conspiracy. I find that the evidence is admissible under this

 theory, rather than as proper Rule 404(b) evidence.

          The defendants also object to the proposed testimony as unduly prejudicial

 under Federal Rule of Evidence 403. I must thus consider whether the evidence

 “has the potential to cause undue prejudice, and if so, whether the danger of such

 undue prejudice substantially outweighs its probative value.” United States v. Boyd,

 53 F.3d 631, 637 (4th Cir. 1995) (internal quotation marks omitted). This will not

 be the case “where such evidence did not involve conduct any more sensational or

 disturbing than the crimes with which the defendant was charged.” United States v.

 Byers, 649 F.3d 197, 210 (4th Cir. 2011) (internal quotation marks and alteration

 omitted). I do not find such evidence inadmissible under Rule 403. Illegal drug

 use is common and hardly more disturbing than the crimes charged. If requested, I

 may instruct the jury not to consider the defendants’ drug use as proof of bad

 character.

    II.      Objection to Government’s 404(b) Notice Regarding Guilty Conscience.

          Defendant Hickman has objected to the government’s Notice of Intent to

 introduce evidence of his guilty conscience, ECF No. 604.         The evidence in

 question is a video visit between Hickman and a friend in which Hickman tells the

 friend that he has been talking with Jeff Tackett, another alleged leader of the

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Case 1:21-cr-00024-JPJ-PMS Document 646 Filed 02/18/22 Page 4 of 5 Pageid#: 4401




 conspiracy, “trying to get Tackett to write something to say that he ‘didn’t know

 what it was’ and that he was ‘trying to play it cool and smart.’” Id. Hickman

 contends that the evidence is inadmissible because it is too vague to apply to the

 charges in this case.

           I have reviewed the video and I do not find it inadmissible at this point. The

 government’s evidence may likely provide the background circumstances to show

 the context of the defendant’s statements.

    III.      Motion in Limine Regarding Brianna Johnson Video.

           Defendant Johnson has filed a Motion in Limine seeking to exclude a video

 of a jail visit on December 14, 2020, between Brianna Johnson, a jail inmate, and

 Jeff Tackett. Tackett attempts to persuade Johnson to submit an application for

 benefits, which she refuses, stating, “I’m not tryn’a to fuckin’ catch no fed charges

 over that.” Mot. in Limine 2, ECF No. 636. Brianna Johnson is not alleged to be

 a coconspirator.

           I have reviewed the video and I will grant the Motion in Limine in part. I

 will allow the initial introductory greeting between the two, and the statements by

 Tackett attempting to persuade Johnson to sign up for the scheme. Assuming the

 government presents the predicate evidence, Tackett’s statements would be

 admissible as coming from a coconspirator during and in furtherance of the

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Case 1:21-cr-00024-JPJ-PMS Document 646 Filed 02/18/22 Page 5 of 5 Pageid#: 4402




 conspiracy. Fed. R. Evid. 801(d)(2)(E).         However,     I   find   that   Johnson’s

 response is not admissible because it is not sufficiently relevant to the charges. Id.

 401.

    VI. Conclusion.

        For the reasons given, it is ORDERED that (1) the objections to the

 government’s Notices of Intent, ECF Nos. 602, 604, and 606, are DENIED; (2)

 Defendant Johnson’s Motion in Limine, ECF No. 636, is GRANTED in part and

 DENIED in part.

                                                 ENTER: February 18, 2022

                                                 /s/ JAMES P. JONES
                                                 Senior United States District Judge




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