Order Granting in Part and Denying in Part Government's Motion in Limine (Doc. 56) — No. 1:22-cr-00064 (Dkt. 58, S.D. Ohio)

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Order Granting in Part and Denying in Part Government's Motion in Limine, Doc. 58 filed August 22, 2024 in United States v. Lashawnda Alexander, Case No. 1:22-cr-64 in the Southern District of Ohio. The Government's motion (Doc. 56), to which Alexander did not timely respond, sought to admit other statements she made about her business, income, assets and resources, and evidence of a prior Economic Injury Disaster Loan (EIDL) application, under the res gestae doctrine and Rule 404(b). Judge Matthew W. McFarland applies the three-step Rule 404(b) analysis of United States v. Lattner, 385 F.3d 947, admits the evidence of the prior EIDL application, and defers until trial any ruling on her income tax records, grant applications, pandemic unemployment assistance application, credit card application and related correspondence.

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  Case: 1:22-cr-00064-MWM Doc #: 58 Filed: 08/22/24 Page: 1 of 6 PAGEID #: 209



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

 UNITED STATES OF AMERICA,                          Case No. 1:22-cr-64

                      Plaintiff,                    Judge Matthew W. McFarland

               V.


 LASHAWNDA ALEXANDER,

                      Defendant.


              ORDER GRANTING IN PART AND DENYING IN PART
                GOVERNMENT'S MOTION IN LIMINE (Doc. 56)


       This matter is before the Court on the Government's Motion in Limine (Doc. 56).

Defendant has not filed a timely response, so this matter is ripe for the Court's review.

For the reasons below, the Government's Motion in Limine (Doc. 56) is GRANTED IN

PART AND DENIED IN PART.

                                          LAW

      Courts have the discretion to determine motions in limine pursuant to their

"inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41

n. 4 (1984). The purpose of motions inlimine 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) (quotation omitted).

"When a court is unable to determine whether or not certain evidence is clearly

inadmissible, evidentiary rulings should be deferred until trial so that questions of
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foundation, relevancy and potential prejudice can be resolved in the proper context."

United States v. Kistler, No. 2:22-CR-067, 2023 WL 1099726, at *2 (S.D. Ohio Jan. 30, 2023)

(quotation omitted). Following this principle, courts often defer ruling on broad

categories of evidence in limine. See id.

       A ruling on a motion in limine is a preliminary ruling that the Court may change

at trial "for whatever reason it deems appropriate." United States v. Yannott, 42 F.3d 999,

1007 (6th Cir. 1994). The Court will hear objections to such evidence if and when they

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

                                         ANALYSIS

       The Government moves to admit as evidence "other statements the Defendant has

made concerning her business, income, assets, and resources," as well as evidence of a

prior Economic Injury Disaster Loan ("EIDL") application. (Motion, Doc. 56, Pg. ID 203.)

These requests implicate res gestae and Rule 404(b) evidence.

       Federal Rule of Evidence 404(b)(1) provides that "[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." That said, such

evidence may be admissible for a non-propensity purpose, "such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack

of accident." Fed. R. Evid. 404(b)(2).

       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 regarding whether there is sufficient

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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 weigh the probative value of the "other acts" evidence in relation to

potential unfair prejudice. Id.

       Res gestae evidence is also an exception to Rule 404(b). United States v. Clay, 667

F.3d 689, 697 (6th Cir. 2012). The Sixth Circuit has recognized "the admissibility of res

gestae, or background evidence, in limited circumstances when the evidence includes

conduct that is 'inextricably intertwined' with the charged offense." United States v.

Churn, 800 F.3d 768, 779 (6th Cir. 2015) (quotation omitted). "Proper background

evidence has a causal, temporal or spatial connection with the charged offense." Id.

(quotation omitted). This "may include evidence that is a prelude to the charged offense,

is directly probative of the charged offense, arises from the same events as the charged

offense, forms an integral part of the witness's testimony, or completes the story of the

charged offense." Id. (quotation omitted).

       Similarly, "Rule 404(b) does not apply when the prior bad act forms the basis of

the charges for which a defendant is being tried." United States v. Sadler, 24 F.4th 515, 554

(6th Cir. 2022). Such intrinsic evidence "tends to logically prove an element of the crime

charged." United States v. Peete, 781 F. App'x 427,434 (6th Cir. 2019) (quotation omitted).

For instance, "uncharged financial misconduct that is 'inextricably intertwined with the

charged conduct may be admitted as 'evidence of a single criminal episode."' United

States v. Lang, 717 F. App'x 523, 531 (6th Cir. 2017) (citing United States v. Aldridge, 455

Fed. App'x 589,594 (6th 2012)); Churn, 800 F.3d at 779 (explaining that "even unindicted

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activity can be 'inextricably intertwined' with the actual charges"). With these rules in

mind, the Court turns to the substance of the Government's motion.

    I.      Prior EIDL Application

         First, the Court considers the Government's request to admit evidence of a prior

EIDL application as res gestae evidence. (Motion, Doc. 56, Pg. ID 203-04.) This prior EIDL

application was allegedly submitted on June 23, 2020, in the name of Defendant's child.

(Id.) It was allegedly submitted "within hours" of the EIDL application referenced in

Count 1 of the Indictment, using the same device as those submitted in Defendant's name.

(Id.) The other counts of wire fraud against Defendant involve EIDL applications she

allegedly submitted on June 24 and June 25, 2020. (Indictment, Doc. 24, Pg. ID 93.)

         The Court agrees that evidence related to this prior EIDL application is admissible

as res gestae evidence. The prior EIDL application serves as a prelude to the charged

offenses, shares a close temporal relationship with the charged offenses, and is expected

to form an integral part of agent testimony. (See Motion, Doc. 56, Pg. ID 204.) Defendant

is alleged to have devised a scheme "to obtain money and property from the [Small

Business Association], namely EIDL proceeds" from June 2020 to August 2020.

(Indictment, Doc. 24, Pg. ID 90-91.) So, the prior EIDL application is inherently connected

with the charged conduct. See United States v. Luna, 94 F.3d 1156, 1162 (8th Cir. 1996)

(explaining that courts should admit evidence "so blended or connected ... [with the

indicted charge] that proof of one incidentally involves the other [ ] or explains the

circumstances or tends to logically prove an element of the crime charged"); Chum, 800

F.3d at 779. This evidence is therefore admissible as res gestae evidence, and Rule 404(b)

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is not implicated. At this time, the Court also finds that the probative value of this

evidence is not substantially outweighed by the danger of unfair prejudice to Defendant.

Thus, evidence related to this prior EIDL application shall be admitted.

   II.      Other Evidence

         The Government also seeks to admit evidence as to "Defendant's income tax

records, applications for various grants, application for pandemic unemployment

assistance, application for a credit card, and other correspondence memorializing

Defendants' statements concerning her business and income." (Motion, Doc. 56, Pg. ID

203.) The Government asserts that this evidence is admissible as opposing party

statements and comports with Rule 404(b). (Id. at Pg. ID 204-05.)

         The Government's request applies broadly to an array of documents. (See Motion,

Doc. 56, Pg. ID 203.) Without more specific information, the Court is restricted in its

ability to determine whether such evidence constitutes "other acts" and whether they

actually took place. Lattner, 385 F.3d at 955. Additionally, without more, the "other

purpose" that the Government intends to use these exhibits for is not yet clear to the

Court. See id. While this evidence may be probative of the charged offenses, such

determinations are better suited for a piece-by-piece analysis within the context of trial.

See Gresh, 738 F. Supp. at 708. The potential prejudice to Defendant is similarly uncertain

at this time. Thus, the Court reserves making an admissibility determination on these

statements and documents for trial.




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                                   CONCLUSION

       Based on the foregoing reasons, the Government's Motion in Limine (Doc. 56) is

GRANTED IN PART AND DENIED IN PART. Evidence related to the prior EIDL

application shall be admitted. The Court defers ruling on the admissibility of

"Defendant's income tax records, applications for various grants, application for

pandemic unemployment assistance, application for a credit card, and other

correspondence memorializing Defendants' statements concerning her business and

income" for trial.

       IT IS SO ORDERED.



                                             UNITED STATES DISTRICT COURT
                                             SOUTHERN DISTRICT OF OHIO


                                          B
                                          :Jlitt:1t~1W
                                             JUDGE MATTHEW W. McFARLAND




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