Order — No. 1:21-cr-20242 (Dkt. 165, S.D. Fla.)

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An order in United States v. Mark Scott Grenon, Jonathan David Grenon, Jordan Paul Grenon, and Joseph Timothy Grenon, Case No. 21-20242-CR-ALTONAGA, in the U.S. District Court for the Southern District of Florida, entered June 12, 2023 as Document 165 (13 pages), with the signature block of Chief Judge Cecilia M. Altonaga. It grants in part and denies in part the Government's Motion in Limine [ECF No. 155], which seeks to exclude seven categories of evidence at trial. The Indictment [ECF No. 16] charges conspiracy under 18 U.S.C. section 371 tied to distribution of an unapproved drug, and two counts of criminal contempt under 18 U.S.C. section 401(3). The Court declines to preemptively exclude a justification or necessity defense.

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Case 1:21-cr-20242-CMA Document 165 Entered on FLSD Docket 06/12/2023 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-20242-CR-ALTONAGA

UNITED STATES OF AMERICA,

Plaintiff,
v.

MARK SCOTT GRENON,
JONATHAN DAVID GRENON,
JORDAN PAUL GRENON, and
JOSEPH TIMOTHY GRENON,

Defendants.
_____________________________/

ORDER

THIS CAUSE came before the Court on the Government’s Motion in Limine [ECF No.

155], filed on May 5, 2023. Defendants, Mark Scott Grenon, Jonathan David Grenon, Jordan Paul

Grenon, and Joseph Timothy Grenon — proceeding pro se and refusing to accept service of the

Government’s Motion 1 — have not filed a response. 2 The Court has carefully reviewed the

Motion and applicable law. For the following reasons, the Motion is granted in part and denied in

part.

I. BACKGROUND

Defendants are accused of participating in a conspiracy to defraud the United States by

manufacturing, marketing, and distributing an unlicensed drug — Miracle Mineral Solution

1
See Notice [ECF No. 156].
2
While the failure to file a response may be sufficient ground for the Court to grant the Motion, the “failure
to file any opposition does not automatically mean that the Motion is due to be granted.” Oatis v. City of
Gadsden, No. 4:16-cv-1264, 2017 WL 1649973, at *2 (N.D. Ala. May 2, 2017). Further, “district courts
possess broad discretion to admit evidence[,]” United States v. Sanders, 663 F. App’x 781, 783 (11th Cir.
2016) (alteration added; citation omitted), as well as an independent duty to guide the admission of evidence
at trial, see, e.g., Fed. R. Evid. 103. In that spirit, the Court addresses the Government’s requests.
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CASE NO. 21-20242-CR-ALTONAGA

(“MMS”) — that was not approved by the Federal Drug Administration (the “FDA”) and was

being distributed in violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. section 301

(the “FDCA”). (See generally Indictment [ECF No. 16]). Defendants are members of Genesis II

Church of Health and Healing (“Genesis”), which the Government alleges is “an explicitly non-

religious entity that [Defendant, Mark Scott Grenon] co-founded[.]” (Id. 5 (alterations added)). 3

Under the guise of Genesis, Defendants promoted MMS as a miracle cure to various illnesses and

ailments, even though “[w]hen ingested orally as directed by [] Defendants, MMS became chlorine

dioxide, a powerful bleaching agent typically used for industrial water treatment or bleaching

textiles, pulp, and paper.” (Mot. 2 (alterations added)).

Seeking to halt this violation of the FDCA, the Government first filed a civil action against

Defendants and Genesis in United States v. Genesis II Church of Health and Healing, No. 20-cv-

21601 (S.D. Fla. 2020). (See Indictment 6–7). In that civil case, the court entered a temporary

restraining order, and then a preliminary injunction, enjoining Defendants’ distribution of MMS.

(See id.). Despite those court orders, Defendants continued to distribute and promote MMS. (See

generally id.). The Government now charges Defendants with conspiracy to defraud and commit

offenses against the United States, in violation of 18 U.S.C. section 371, for their conspiracy to

violate the FDCA by introducing into interstate commerce an unapproved and misbranded new

drug (Count I); and two charges of criminal contempt for their failure to comply with the civil

court orders, in violation of 18 U.S.C. section 401(3) (Counts 2 and 3). (See id. 7–14).

II. DISCUSSION

The Government seeks to exclude seven categories of evidence at trial, stating the potential

evidence “is irrelevant to the charges against [Defendants] or based upon legally insufficient

3
The Court relies on the pagination generated by the Case Management/Electronic Case Files system,
which appears in the header on all filings.
2
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CASE NO. 21-20242-CR-ALTONAGA

defenses.” (Mot. 1 (alteration added)). For the most part, the Motion is due be denied, although

limited aspects of the Government’s requests are granted. The Court addresses each of the

categories of evidence below.

1. Raising a defense under the Free Exercise Clause

The Government first seeks to prevent Defendants from suggesting that their conduct was

“a religious exercise, constitutionally protected under the First Amendment.” (Mot. 6); see also

U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof[.]” (alteration added)). The Government asserts that

Defendants’ distribution of MMS was not an “actual religious exercise[;]” even if it was valid

religious conduct, that conduct would not be protected by the First Amendment. (Mot. 6 (alteration

added)). Accordingly, the Government asks that Defendants be precluded “from invoking the First

Amendment as a defense[.]” (Id. 8 (alteration added)).

The Government is indeed correct that “a jury should not be burdened with testimony

regarding a defense where that defense has already been determined to be legally insufficient.”

United States v. Anderson, 872 F.2d 1508, 1516 n.12 (11th Cir. 1989) (citation omitted); (see Mot.

8). And Supreme Court precedent makes clear that “the Free Exercise Clause ‘does not relieve an

individual of the obligation to comply with a valid and neutral law of general applicability on the

ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”

(Mot. 6–7 (quoting Emp. Div., Dep’t of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990)).

But the Government’s recitation of Free Exercise jurisprudence (see id. 6–9) does not convince

the Court that it should, at this stage, preclude Defendants from discussing their religious beliefs,

nor is the Court willing to exclude references to the First Amendment — notably, Defendants have

not yet indicated they might even assert a defense under the Free Exercise clause.

3
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Furthermore, considering the Government’s accusations regarding Defendants and Genesis

(see generally Indictment), it would likely be impossible to conduct this trial without discussion

of Defendants’ alleged religion, as well as their personal beliefs regarding the First Amendment

(see also Mot. 2–3 (accusing Defendants of utilizing religious protections to shield their

distribution of MMS)). And the Government’s concern that Defendants might “confuse the jury

into believing [they] had a constitutional right to violate the law” (Mot. 9 (alteration added)),

strikes the Court as far-fetched — surely there is no a risk of substantial prejudice or confusion

under Federal Rule of Evidence 403, particularly as the Government seems readily prepared to

rebut any of Defendants’ claims regarding their religious beliefs (see, e.g., Mot. 2–3 (describing

Government’s evidence that Genesis was a false church created to protect the distribution of

MMS)).

Finally — and perhaps most problematically — the Government does not identify a single

piece of specific evidence it seeks to exclude, but rather asks the Court to sanction a general ban

on references to the First Amendment and its ability to protect certain religious conduct. (See

generally Mot.). Simply put, this goes too far. See Holley v. Carnival Corp., No. 20-cv-20495,

2021 WL 5299836, at *4 (S.D. Fla. Nov. 15, 2021) (“To be appropriate, motions in limine should

address specific pieces of evidence[.]” (alteration added; citation omitted)). Therefore, this

request is denied. The Government’s objections are better left for trial.

2. Raising a defense under the Religious Freedom Restoration Act of 1993 (“RFRA”),
42 U.S.C. § 2000bb

The Government next asks the Court to preclude any argument from Defendants raising a

defense under the Religious Freedom Restoration Act, 42 U.S.C. section 2000bb (“RFRA”). (See

Mot. 9–17). As with the hypothetical defense under the First Amendment, Defendants have not

4
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actually indicated they will be asserting a RFRA defense. Nevertheless, the Government seeks to

preemptively remove the defense and any reference to it by Defendants. (See id.).

To the extent the Government moves merely to prevent Defendants from putting the

question of whether the RFRA applies to the jury, its request is granted. “[W]hether the RFRA

applies is a ‘pure question of law,’” and “the determination of pure questions of law in criminal

cases [is] not the province of the jury.” United States v. Duncan, 356 F. App’x 250, 253 (11th Cir.

2009) (alterations added; citations omitted). Consequently, courts should deny a “requested jury

instruction” on a RFRA defense. Id. at 254.

But aside from restating what defenses are — or are not — appropriately put to the jury,

the Court need go no farther. As explained, Defendants have not sought to raise a defense under

the RFRA, whether by filing a motion to dismiss the Indictment under Federal Rule of Criminal

Procedure 12(b) or otherwise. See United States v. Kelly, No. 2:18-cr-22, 2019 WL 5077546, at

*18 n.29 (S.D. Ga. Apr. 26, 2019) (noting that “[i]t is appropriate for the Court to consider

Defendants’ RFRA defense in the context of a Rule 12(b) motion to dismiss” (alteration added)).

Even if they had, the Government’s request for a general prohibition on “evidence or argument in

furtherance of a RFRA defense” (Mot. 17), asks for too much, see Holley, 2021 WL 5299836, at

*4.

It appears that the Government is requesting the Court resolve certain evidentiary

questions, such as the sincerity of Defendants’ beliefs. (See Mot. 11 (“Defendants cannot come

close to meeting [the] burden [of establishing a RFRA claim], because their purported religious

beliefs regarding MMS are not sincerely held.” (emphasis added))). The Court will not make such

determinations on a motion in limine. See United States v. Stevens, No. 20-20270-cr, 2022 WL

2704522, at *11 (S.D. Fla. May 2, 2022), report and recommendation adopted, No. 1:20-cr-20270,

5
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2022 WL 2702658 (S.D. Fla. July 12, 2022) (noting, in a criminal fraud case, that the “[d]efendant

may present a defense that she was simply pursuing her religious practices, which may be

antithetical with criminal intent . . . [b]ut that is a matter for trial” (alterations added)); see also

Soliday v. 7-Eleven, Inc., No. 2:09-cv-807, 2011 WL 1837807, at *1 (M.D. Fla. Apr. 20, 2011)

(noting that a motion in limine should not be used “to determine the sufficiency of the evidence or

merits of an issue” (citation omitted)).

This request is therefore granted in part — Defendants may not put the question of a RFRA

defense to the jury. But the Court will not, at this time, bar any evidence which might have the

effect of furthering such a defense, so long as it otherwise meets appropriate grounds for relevance

and admissibility. See Seifert v. SF&P Advisors, Inc., No. 19-cv-80877, 2021 WL 2915351, at *1

(S.D. Fla. July 12, 2021) (“[I]f evidence is not clearly inadmissible, evidentiary rulings must be

deferred until trial to allow questions regarding foundation, relevancy, and prejudice.” (alteration

added; citation and quotation marks omitted)).

3. Evidence regarding the safety or effectiveness of MMS

The Government next asks the Court to “preclude [] Defendants from offering anecdotal

or testimonial evidence regarding the safety or effectiveness of MMS.” (Mot. 20 (alteration

added)). According to the Government, anecdotal evidence is irrelevant. (See id.). The Court

does not share the Government’s narrow view of relevancy.

The Government begins by explaining that “[t]here is only one issue in this case on which

evidence of MMS’s safety and effectiveness is relevant: whether [] Defendants conspired to violate

the FDCA by introducing into interstate commerce an unapproved new drug, as charged in Count

1.” (Mot. 18 (alterations added; citing Indictment 7)). At first glance, this would seem to render

the Government’s request plainly inappropriate. If “evidence of MMS’s safety and effectiveness

6
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is relevant” to this case (id.), and the Government intends to present its own evidence that MMS

is in fact not safe and effective (see, e.g., id. 27 (noting “the dangerousness of MMS”), it would

make little sense to prevent Defendants from offering their own rebuttal evidence, see Peace

United, Ltd. v. 1906 Collins, LLC, No. 17-21881-Civ, 2022 WL 2802796, at *4 (S.D. Fla. July 18,

2022) (“A motion in limine is not an appropriate vehicle to resolve conflicting evidence.” (citation

omitted)).

Undeterred, the Government points to the standards under which a “new drug” is

considered “unapproved” and is thus distributed in violation of the FDCA. (Mot. 18). The FDCA

bars the distribution of drugs, like MMS, that are not “generally recognized as safe and effective

(‘GRASE’) under the proposed conditions of use.” (Id.). And because the Supreme Court instructs

that “[a]necdotal evidence regarding safety and effectiveness cannot establish that a new drug is

GRASE[,]” the Government insists that Defendants’ anecdotal evidence is irrelevant. (Id. 19–20

(alterations added; discussing Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609

(1973))).

The Government confuses whether a fact is dispositive with whether that fact is

relevant. Anecdotal evidence, standing alone, may be insufficient to establish that a drug is

GRASE. See United States v. Sene X Eleemosynary Corp., 479 F. Supp. 970, 977 (S.D. Fla.

1979). But the Court will not prematurely exclude all such evidence, particularly as Defendants’

claims regarding the safety of MMS are central to the Government’s theory of prosecution. (See,

e.g., Indictment 8 (explaining that Defendants “claimed that MMS could be used to treat, prevent,

and cure a variety of serious diseases and disorders”)). Should the Government remain worried

about potential hypothetical evidence, it remains free to request appropriate instructions to the jury.

7
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(See Mot. 20 (citing past-used jury instructions regarding anecdotal evidence in United States v.

Vanmoor, 06-cr-60064 (S.D. Fla. 2009))).

Putting aside the issue of GRASE, the Government further speculates that the admission

of anecdotal “evidence would open the door to a potential parade of lay defense witnesses[.]” (Mot.

18 (alteration added)). The Court does not share those concerns — Defendants have already been

warned that the names of any witnesses they intend to present must be provided to the Government

“no later than the calendar call scheduled for June 27, 2023” and that “the Court may disallow any

undisclosed witnesses from testifying at trial.” (June 1, 2023 Order [ECF No. 162] 1 (emphasis

omitted)). Should Defendants proffer witnesses, the Government will have ample time to prepare

its objections and rebuttal evidence — indeed, the Government’s contention that these potential

defense witnesses “have been duped” suggests the Government is already well-prepared. (Mot.

18). Further, a “parade of lay defense witnesses” (id.) providing similar testimony might

eventually run afoul of Federal Rule of Evidence 403. But the Court cannot make that

determination at this juncture; accordingly, this request is denied, and the Government’s

objections are better left for trial. See Seifert, 2021 WL 2915351, at *1.

4. Evidence regarding Defendants’ lack of intent to cause harm

Next, the Government seeks to prevent Defendants from arguing “that they did not intend

to harm anyone by distributing MMS.” (Mot. 21). The Government admits that Defendants have

provided no indication that they will actually argue this at trial; rather, the Government seeks to

preclude this evidence “[b]ased upon [Defendants’] public statements[.]” (Id. (alterations added)).

Certainly, the Government is correct that whether Defendants intended to harm individuals

by their distribution of MMS is irrelevant to the question whether Defendants intended “to defraud

or mislead the FDA” or whether they willfully violated “a court order[.]” (Id. (alteration added;

8
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collecting authority)). Putting aside the Government’s reductive rendering of the issues, however,

there are other avenues for the relevance of this information.

For example, the Government’s Motion — to say nothing of the entire substance of the

Indictment — makes clear that the Government intends to present evidence regarding both the

alleged dangers of MMS, as well as Defendants’ knowledge of such. (See, e.g., id. 21 (explaining

the Government’s belief that Defendants’ lack of intent to harm is “false”); id. 27 (“The idea of a

‘greater good’ defense in this case is particularly absurd given the dangerousness of MMS and the

profits that [] Defendants knowingly reaped from the scheme.” (alteration added))). It makes little

sense to allow the Government to present its own version of events yet prevent the ability of

Defendants to respond.

Furthermore, the Government, once again, asks the Court to exclude hypothetical, general

categories of evidence. See Holder v. Anderson, No. 3:16-cv-1307, 2018 WL 4956757, at *1

(M.D. Fla. May 30, 2018) (“Motions in limine should be limited to specific pieces of evidence[.]”

(alteration added; citations omitted)). And so, the Court, once again, declines to take the

Government up on its offer. This request is denied.

5. Evidence regarding alleged corruption of the FDA or pharmaceutical industry

The Government voices its concern that Defendants will assert “that both the FDA and the

pharmaceutical industry are corrupt and in cahoots to deny the public access to cheaper and more

effective drugs” like MMS, and “the instant prosecution is in furtherance of that plan.” (Mot. 21–

22). As with the other arguments the Government makes in its Motion, Defendants have not

9
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indicated that they intend to present such a defense; rather, the Government intuits that they will

based on their public statements. (See id. 22 n.3).

According to the Government, such evidence “is plainly irrelevant to the charges in this

case and should be precluded.” (Id. 22). The Court is not persuaded by this conclusory assertion.

This prosecution arises from Defendants’ alleged violation of the FDA’s authority to regulate the

pharmaceutical industry and distribution of drugs. (See Indictment 10–12). Given the charges and

crimes alleged, it is difficult to imagine how the Court might conduct a trial which excludes all

“references to . . . prescription pharmaceuticals or the ‘drug industry’/’Big Pharma’ generally”

(Mot. 22 (alteration added); see generally Indictment).

The Court is similarly unconvinced by the Government’s fear of jury nullification. (See

Mot. 23–24). Of course, “[t]he law is well settled that a jury cannot be encouraged to exercise the

power of nullification.” United States v. Williams, No. 17-14050-cr, 2017 WL 11607837, at *7

(S.D. Fla. Nov. 13, 2017) (alteration added; collecting cases). But the Government goes too far

when it suggests that “[t]here is no reason” other than jury nullification “for the defense to be

discussing any of those topics, or the pharmaceutical industry generally, at trial.” (Mot. 22

(alteration added)).

Despite the lack of response from Defendants, the Court can envision permissible uses of

this hypothetical evidence, such as to establish bias of the Government’s witnesses. See Sheffield

v. State Farm Fire & Cas. Co., No. 5:14-cv-38, 2016 WL 3548550, at *8 (S.D. Ga. June 23, 2016)

(“Proof of bias is almost always relevant because the jury, as finder of fact and weigher of

credibility, has historically been entitled to assess all evidence which might bear on the accuracy

and truth of a witness [sic] testimony.” (quoting United States v. Abel, 469 U.S. 45, 52 (1984))).

Of course, any evidence that Defendants ultimately do offer, for bias or otherwise, “must be

10
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relevant and is inherently subject to the [] limitations” of the Federal Rules of Evidence. United

States v. Jones, 479 F. App’x 874, 877 (11th Cir. 2012) (alterations added). And the Government

remains free at trial to raise its objections or request a limiting instruction, as appropriate. But the

Court declines to preemptively exclude evidence which is not, on its face, “clearly inadmissible[.]”

Seifert, 2021 WL 2915351, at *1 (alteration added).

Accordingly, this request is denied. The Government’s objections are better suited for trial.

6. Evidence in furtherance of a “selective prosecution” defense

The Government next seeks to bar Defendants from “offer[ing] evidence going only to a

potential selective prosecution claim, or argu[ing] to the jury that they must or should be acquitted

because they are being prosecuted selectively.” (Mot. 26 (alterations added)). Once again,

Defendants have not — aside from “public pronouncements” — asserted such a defense, nor

moved to dismiss the Indictment on such ground. (Id. 25). But the Government worries that

Defendants will argue to the jury “that they are being targeted for impermissible reasons, in

particular their faith.” (Id.).

Much of the Government’s request hinges on the well-settled proposition that “[s]elective

prosecution is a defect that has no bearing on the determination of a defendant’s factual guilt, and,

thus, is an issue for the district court to decide, not the jury.” United States v. Medina, 631 F.

App’x 682, 686 (11th Cir. 2015) (alteration added; citing United States v. Jones, 52 F.3d 924, 927

(11th Cir. 1995)). To the extent Defendants might suggest to the jury that they should be acquitted

based on a theory of selective prosecution, that would plainly be inappropriate. See id.; United

States v. Chugay, No. 21-10008-cr, 2022 WL 1782583, at *2 (S.D. Fla. June 1, 2022) (noting

“selective prosecution is a matter for the Court to decide, not the jury”). Thus, as with the

11
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Government’s request regarding an RFRA defense, this request is granted, and Defendants may

not put the actual question of a selective prosecution defense to the jury.

Nonetheless, the Court can envision other scenarios where Defendants might wish to

present potential evidence of their being targeted — for example, to expose the bias of certain

witnesses. See Medina, 631 F. App’x at 685–86 (explaining that the court retains “discretion”

over the admissibility of evidence during cross-examination). Thus, this request is granted in part,

as described above. But the Court will not yet exclude all references to Defendants being

“targeted” (Mot. 25) — especially given that, once again, the Government fails to identify the

specific evidence it wishes to exclude from trial, see Holley, 2021 WL 5299836, at *4.

7. Evidence in furtherance of a justification or necessity defense.

Finally, the Government seeks to preclude Defendants from raising a defense of

justification or necessity. (See Mot. 26–28). This last request mostly continues the theme of

curtailing Defendants’ ability to mention or present argument regarding their religious beliefs.

(See id. 27 (asking the Court to preclude Defendants from arguing “their conduct was necessary,

or [that] it was morally, politically, or religiously justified” (alteration added; citation omitted)).

Again, Defendants have not indicated that they intend to raise this defense; regardless, the Court

sees little reason to decide the issue now and instead reserves determination of the issue for trial,

where Defendants shall have a chance to offer evidence to support the defense. See, e.g., United

States v. Singer, 963 F.3d 1144, 1162 (11th Cir. 2020) (explaining that “a criminal defendant has

a right to a jury instruction on his proposed theory of defense, provided that theory of defense is a

valid one and some evidence at trial supports the instruction” (citation omitted)).

Admittedly, the Government is correct that “the Eleventh Circuit [] generally require[s] a

showing of ‘extraordinary circumstances’” in order for a defendant to raise a defense of

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justification or necessity. (Mot. 27 (alterations added; quoting United States v. Deleveaux, 205 F.

3d 1292, 1297 (11th Cir. 2000))). Should Defendants provide sufficient evidence at trial to support

those extraordinary circumstances, then the Court will give the appropriate instruction to the jury;

should Defendants fail to do so, then the Court will not. See Singer, 963 F.3d at 1162; United

States v. Lanzon, 639 F.3d 1293, 1302 (11th Cir. 2011). But “determin[ing] the sufficiency of the

evidence or merits” of the defense — especially based solely on the Government’s one-sided

description — is not an appropriate use of a motion in limine. Soliday, 2011 WL 1837807, at *1

(alteration added; citation omitted). Accordingly, the Court will not preemptively exclude this

defense, and the Government’s request is denied.

III. CONCLUSION

For the foregoing reasons, it is

ORDERED AND ADJUDGED that the Government’s Motion in Limine [ECF No. 155]

is GRANTED in part and DENIED in part, as described above.

DONE AND ORDERED in Miami, Florida, this 12th day of June, 2023.

_______________________________________
CECILIA M. ALTONAGA
CHIEF UNITED STATES DISTRICT JUDGE

cc: counsel of record
Defendants, pro se

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