Order Denying Motion in Limine (Doc. 42) — United States v. Kelli Prather, No. 1:21-cr-38 (Dkt. 45, S.D. Ohio)

Summary

In this order filed 07/17/23 in United States v. Kelli Prather, Case No. 1:21-cr-38 (S.D. Ohio), Judge Matthew W. McFarland denies the government's motion in limine (Doc. 42), to which the defendant failed to timely respond. The government sought rulings that bank records, Small Business Administration loan records and other business records are self-authenticating under Rule 902, that the defendant be barred from arguments blaming the alleged victims, such as Fifth Third Bank and the Small Business Administration, and that the defendant's past statements about income, assets and financial resources be admitted under Rule 404(b). The Court finds each request too general to decide before trial and defers the rulings to trial, noting that a victim's negligence is not a defense to fraud but good faith by the defendant is.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

Case: 1:21-cr-00038-MWM Doc #: 45 Filed: 07/17/23 Page: 1 of 7 PAGEID #: <pageID>

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI

UNITED STATES OF AMERICA, Case No. 1:21-cr-38

Plaintiff, Judge Matthew W. McFarland

KELLI PRATHER,

Defendant.

ORDER DENYING MOTION IN LIMINE (Doc. 42)

This matter is before the Court on the Government's Motion in Limine (Doc. 42).

In the motion, the Government moves in limine (1) for a pre-trial ruling that certain

documents are self-authenticating, (2) to preclude Defendant from presenting evidence

or arguments that blame the alleged victims in this case, and (3) for a pre-trial ruling that

evidence of past statements by the Defendant concerning her income, assets, and financial

resources be admissible. Defendant failed to timely respond to the Government's motion.

Thus, the matter is ripe for review.

For the reasons below, the Government's Motion in Limine (Doc. 42) is DENIED.

I. Standard

The purpose of motions in limine is "to avoid delay and ensure an evenhanded

and expedient trial by ruling on certain evidentiary issues in advance of trial." Enoch v.

Hamilton Cnty. Sheriff, 588 F. Supp. 3d 806,811 (S.D. Ohio 2022). This Court adjudicates

motions in limine under its "inherent authority to manage the course of trials." Luce v.
Case: 1:21-cr-00038-MWM Doc #: 45 Filed: 07/17/23 Page: 2 of 7 PAGEID #: <pageID>

United States, 469 U.S. 38, 41 n. 4 (1984). Only when evidence is clearly inadmissible on all

potential grounds should a court exclude evidence in limine. Enoch, 588 F. Supp. 3d at

811. "Unless evidence meets this high standard, evidentiary rulings are generally

deferred until trial[,] so that questions of foundation, relevance, and potential prejudice

may be resolved in the [trial] context." Id. It is the moving party's burden to show that

the evidence it seeks to exclude is clearly inadmissible. Corp. Comm'n. Serv. of Dayton, LLC

v. MCI Commc'n. Serv., Inc., No. 3:08-cv-046, 2010 U.S. Dist. LEXIS 45571, *1 (S.D. Ohio

Apr. 12, 2010).

Denial of a motion in limine does not mean that the evidence is guaranteed to be

admitted at trial; the Court will hear objections to such evidence if and when they arise

at trial. Gresh v. Waste Servs. of Am., Inc., 738 F. Supp. 2d 702, 706 (E.D. Ky. 2010). And, the

court has the discretion to alter a previous in limine ruling during trial. Luce, 469 U.S. at

41-42.

II. Self-Authenticating Documents

The Government first requests that the Court find that certain documents are self-

authenticating under Federal Rule of Evidence 902. (Motion in Limine, Doc. 42, Pg. ID

221-22.) These documents include bank records, Small Business Administration loan

records, and "other records of regularly conducted business activity." (Id.) The

Government contends that these records are self-authenticating as records of "regularly

conducted activity" under Rule 902(11) and as "certified records generated by an

electronic process or system" under Rule 902(13). (Id.)

2
Case: 1:21-cr-00038-MWM Doc #: 45 Filed: 07/17/23 Page: 3 of 7 PAGEID #: <pageID>

Federal Rule of Evidence 901 prescribes the process for evidentiary authentication.

Under Rule 901, in order "[t]o satisfy the requirement of authenticating or identifying an

item of evidence, the proponent must produce evidence sufficient to support a finding

that the item is what the proponent claims it is." United States v. Jones, 107 F.3d 1147, 1150

n.1 (6th Cir. 1997) (citation omitted). However, certain items are self-authenticating. Fed.

R. Evid. 902. These items "require no extrinsic evidence of authenticity in order to be

admitted." Id.

Rule 902(11) provides that business records are self-authenticating if (1) "a

certification of the custodian or another qualified person" shows that the "original or a

copy of a domestic record" complies with Federal Rule of Evidence 803(6); (2) the

certification "complies with a federal statute or a rule prescribed by the Supreme Court";

and (3) "[b]efore the trial ..., the proponent ... give[s] an adverse party reasonable

written notice of the intent to offer the record" and "make[s] the record and certification

available for inspection [by the adverse party]." Fed. R. Evid. 902(11). Rule 803(6)

provides that evidence is "not excluded by the rule against hearsay" if (1) "the record

was made at or near the time by- or from information transmitted by- someone with

knowledge"; (B) "the record was kept in the course of a regularly conducted activity of a

business, organization, occupation, or calling, whether or not for profit"; and (C) "making

the record was a regular practice of that activity." Fed. R. Evid. 803(6). Lastly, Rule 902(13)

provides that a "record generated by an electronic process or system that produces an

accurate result" is self-authenticating so long as it is certified by a qualified individual

3
Case: 1:21-cr-00038-MWM Doc #: 45 Filed: 07/17/23 Page: 4 of 7 PAGEID #: <pageID>

under the process described in Rule 902(11). Fed. R. Evid. 902(13).

Here, the Court must defer ruling on whether certain documents are self-

authenticating. The Government has not identified the specific exhibits that they wish to

be deemed self-authenticating. Instead, the Government's request applies generally to

"bank records, [Small Business Administration] loan records, and other records."

(Motion in Limine, Doc. 42, Pg. ID 221 .) Without a more specific identification, the Court

cannot ensure that these documents meet the certification requirements of Rule 902 or the

business records requirements of Rule 803. Thus, the Court defers ruling on this issue

until the Government attempts to admit the specific exhibits at trial.

III. Victim Blaming Arguments

Next, the Government requests that this Court prohibit Defendant from

presenting evidence or arguments that "blame the victims." (Motion in Limine, Doc. 42,

Pg. ID 222-23.) The Government maintains that this sort of argument may occur if

Defendant "accus[es] Fifth Third Bank, the Small Business Administration, or their

employees of negligence" or if Defendant "assert[s] that these institutions lacked

adequate internal controls or could have prevented the fraud perpetrated." (Id. at Pg. ID

222.) The Government maintains that this restriction is appropriate because negligence is

not a defense for bank fraud. (Id.)

Other circuit courts have explicitly found that a victim's negligence is not a defense

to fraud. See, e.g., United States v. Lindsey, 850 F.3d 1009, 1015 (9th Cir. 2017); United States

v. Rennert, 374 F.3d 206,213 (3d Cir. 2004) ("fraud victim's negligence or lack of diligence

4
Case: 1:21-cr-00038-MWM Doc #: 45 Filed: 07/17/23 Page: 5 of 7 PAGEID #: <pageID>

in uncovering the fraud is not a defense"). The Sixth Circuit has indicated that it takes a

similar stance. See United States v. Winkle, 477 F.3d 407,421 n.3 (6th Cir. 2007) ("the victim

of a bank fraud is the bank, not the CEO of the bank, and approval of a bank officer does

not relieve a defendant of liability for bank fraud.").

Nevertheless, at this time, it is inappropriate for the Court to restrict Defendant's

arguments for trial. As noted, a victim's negligence cannot be used as a defense to fraud.

But, good faith by the defendant is a defense to fraud. See United States v. Frost, 125 F.3d

346,372 (6th Cir. 1997) (endorsing an instruction that stated, among other things, "good

faith on the part of a defendant is inconsistent with an intent to defraud."). In turn,

Defendant may cite to behavior by the bank and its employees in presenting a good faith

defense. But, before trial, the Court cannot know the exact arguments that Defendant

intends to present. So, while a negligence defense should be excluded, the Court is

hesitant to make an overbroad ruling that restricts Defendant from making any argument

that "blames the victim." To be sure, if Defendant makes an argument that the victims'

negligence waives Defendant's culpability, the Court will rule on any objection

accordingly.

Thus, the Court defers ruling on this evidentiary issue until trial.

IV. Statements Regarding Income, Assets, and Resources

Finally, the Government requests that this Court admit "statements" made by

Defendant concerning her income, assets, and resources. (Motion in Limine, Doc. 42, Pg.

ID 223-25.) These statements include, but are not limited to, other loan applications

5
Case: 1:21-cr-00038-MWM Doc #: 45 Filed: 07/17/23 Page: 6 of 7 PAGEID #: <pageID>

submitted by Defendant, income tax records, and bankruptcy records. (Id. at Pg. ID 223.)

As these documents may constitute "other acts" prohibited under Federal Rule of

Evidence 404(b), the Government requests that this evidence be admitted to show

"motive, knowledge, planning, absence of mistake, modus operandi, and intent." (Id. at

Pg. ID 224.)

Under Rule 404(b)(l), "[e]vidence of any other crime, wrong, or act is not

admissible to prove a person's character in order to show that on a particular occasion

the person acted in accordance with the character." Fed. R. Evid. 404(b)(l). Such evidence

may be admissible, however, if provided for another purpose. Fed. R. Evid. 404(b)(2).

These other purposes include "motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident." Id.

To determine the admissibility of evidence under Rule 404(b), the Court uses a

three-step analysis. United States v. Lattner, 385 F.3d 947, 955 (6th Cir. 2004). First, the

Court must make a preliminary determination of whether there is sufficient evidence that

the" other acts" took place. Id. Second, the Court must determine whether the" other acts"

evidence is admissible for a proper purpose under Rule 404(b). Id. Finally, the Court must

determine whether the "other acts" evidence is more prejudicial than probative. Id.

Here, the Court does not have enough information available to make a Rule 404

determination. The request applies broadly to an array of documents, which restricts the

Court's ability to determine whether all of the documents constitute "other acts" that

actually took place. Additionally, the "other purpose" that the Government intends to

6
Case: 1:21-cr-00038-MWM Doc #: 45 Filed: 07/17/23 Page: 7 of 7 PAGEID #: <pageID>

use these exhibits for is not yet clear to the Court. In turn, a Rule 404 determination on

these documents is more appropriate for resolution at trial.

V. Conclusion

Based on the foregoing, the Government's Motion in Limine (Doc. 42) is DENIED,

as the requested admissibility determinations are better suited for consideration at trial.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

By: ~ ~ - ~~
JUDGE MATTHEWW. McFARLAND

File and source

File: 45-order-denying-motion-in-limine-doc-42.pdf
Size: 2,517,395 bytes
SHA-256: cc1a8576bc50cbea965e2a6780a9bc20269d01aa9e56b02c3b820368ae0a1a41
Our copy: 45-order-denying-motion-in-limine-doc-42.pdf
Original: No public link identified.