United States v. Rought

UNITED STATES OF AMERICA v. JAMES EUGENE ROUGHT Defendant

CRIMINAL NO. 3:18-353

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

October 2, 2019

(JUDGE MANNION)

MEMORANDUM

Presently before the court are the following motions filed by the defendant James Eugene Rought ("Rought"): (1) motion in limine pursuant to Fed.R.Evid. 801 and 802, (Doc. 39); (2) motion in limine pursuant to Fed.R.Evid. 404, (Doc. 63); (3) motion in limine pursuant to Fed.R.Crim.P. 16, (Doc. 65); and (4) motion to dismiss Count I of the superseding indictment pursuant to Fed.R.Crim.P. 12(b)(3)(B)(v), (Doc. 67). The matters have been briefed and are ripe for disposition.¹ For the reasons set forth below, the motions will be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

On October 16, 2018, Rought was indicted with one count of distribution and possession with the intent to distribute a controlled substance that resulted in the serious bodily injury of Cara Giberson and the death of Dana Carichner. (Doc. 1). Rought pleaded not guilty to the indictment. (Doc. 11). On June 25, 2019, a superseding indictment was filed against Rought, charging him with an additional count of possession with the intent to distribute a controlled substance and one count of conspiracy to possess with the intent to distribute a controlled substance that resulted in the serious bodily injury of Ms. Giberson and the death of Mr. Carichner. (Doc. 48). On June 28, 2019, Rought pleaded not guilty to the superseding indictment. (Doc. 56).

II. LEGAL STANDARD

a. Motions in Limine

"The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence." United States v. Tartaglione, 228 F.Supp.3d 402, 406 (E.D.Pa. 2017) (citation omitted). On a motion in limine, evidence should only be excluded "when the evidence is clearly inadmissible on all potential grounds." Id. Evidentiary rulings on motions in limine are subject to the trialjudge's discretion and are therefore reviewed for an abuse of discretion. Abrams v. Lightolier, Inc., 50 F.3d 1204, 1213 (3d Cir. 1995); Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 161 (3d Cir. 1994). "The Court is vested with broad inherent authority to manage its cases, which carries with it the discretion and authority to rule on motions in limine prior to trial." Ridolfi v. State Farm Mutual Auto. Ins. Co., 2017 WL 3198006, *2 (M.D.Pa. July 27, 2017) (citations omitted). Further, "[c]ourts may exercise this discretion in order to ensure that juries are not exposed to unfairly prejudicial, confusing or irrelevant evidence." Id. (citation omitted).

"A trial court considering a motion in limine may reserve judgment until trial in order to place the motion in the appropriate factual context." United States v. Tartaglione, 228 F.Supp.3d 402, 406 (E.D.Pa. 2017) (citation omitted). "Further, a trial court's ruling on a motion in limine is 'subject to change when the case unfolds, particularly if actual testimony differs from what was contained in the movant's proffer.'" Id. (citing Luce v. United States, 469 U.S. 38, 41 (1984)).

b. Motion to Dismiss

"In deciding a motion to dismiss, [the court] must accept factual allegations [in the indictment as true] and disregard legal conclusions to determine whether the alleged facts constitute a crime." United States v.Harder, 168 F.Supp.3d 732, 737 (E.D.Pa. 2016) (citing United States v. Zauber, 857 F.2d 137, 144 (3d Cir. 1988)). Also, the court "must dismiss counts based on a statutory misinterpretation." Id. at 738 (citing United States v. Enmons, 410 U.S. 396 (1973) ("dismissing indictment when statute does not proscribe the conduct charged"); United States v. Ferriero, 2015 WL 225806, *5 (D.N.J. Jan. 15, 2015) ("[A] district court must find that 'a charging document fails to state an offense if the specific facts alleged in the charging document fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation.'"). "A motion to dismiss is 'not a permissible vehicle for addressing the sufficiency of the government's evidence.'" Id. (quoting United States v. DeLaurentis, 230 F.3d 659, 660 (3d Cir. 2000)).

In United States v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989), the Third Circuit stated,

An indictment is generally deemed sufficient if it[] (1) contains the elements of the offense intended to be charged; (2) sufficiently apprises the defendant of what he must be prepared to meet; and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.

See also Hamling v. United States, 418 U.S. 87, 117 (1974); United States v. Olatunji, 872 F.2d 1161, 1168 (3d Cir. 1989). The court in Rankin alsostated that "no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution." Rankin, 870 F.2d at 112.

III. DISCUSSION

a. Motion in Limine Pursuant to Fed.R.Evid. 801 and 802

Rule 801(d)(2)(E) provides that a statement is not hearsay when it is offered against an opposing party and was made by the party's coconspirator during the furtherance of the conspiracy. There are four requirements for a statement to be admissible under this exception:

It must appear: (1) that a conspiracy existed; (2) the declarant and the party against whom the statement is offered were members of the conspiracy; (3) the statement was made in the course of the conspiracy; and (4) the statement was made in furtherance of the conspiracy. The district court must be able to find these requirements by a preponderance of the evidence.

United States v. McGlory, 968 F.2d 309, 333 (3d Cir. 1992).

Here, Rought seeks to preclude testimony from Ms. Giberson related to the source from whom Mr. Carichner obtained fentanyl. More specifically, Rought asserts that Ms. Giberson's statements—such as that Mr. Carichner told her he was getting the fentanyl from a person going by the nickname"Fat Kid," whom she later learned was Rought—constitute inadmissible hearsay. (Doc. 40-1, at 3).

In response, the government asserts that Ms. Giberson's out-of-court statements that Rought was the source of the fentanyl should be admitted under Rule 801(d)(2)(E) because they were statements made in furtherance of the conspiracy. The government asserts, "It has long been held that in a drug conspiracy 'statements of a coconspirator identifying a fellow coconspirator as his source of narcotics are statements made in furtherance of the conspiracy.'" (Doc. 54, at 15-16) (quoting United States v. Lambros, 564 F.2d 26, 30 (8th Cir. 1977)). The government further argues that statements regarding the money and location involved and the drug sought furthered the conspiracy because they went toward achieving the conspiracy's objective, to wit, possession of fentanyl with the intent to distribute it. The government observes that the statements may also be considered in the context of verbal acts to the extent they involve planning, directing, or agreement of conspiracy.

The court agrees that the proffered statements are properly characterized as statements of a coconspirator in furtherance of the conspiracy and are legally admissible. Accordingly, the court will DENY Rought's motion in limine, (Doc. 39).

b. Motion in Limine Pursuant to Fed.R.Evid. 404

Rule 404(b) precludes the admission of other crimes, wrongs, or acts "to prove the character of a person in order to show conformity therewith." However, under Rule 404(b), such evidence is admissible for legitimate evidentiary purposes such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake."

Evidence is admissible under Rule 404(b) if (1) it has a proper purpose under Rule 404(b); (2) it is relevant under Rules 401 and 402; (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice under Rule 403; and (4) the court charges the jury to consider it only for the limited purpose for which it is admitted. United States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002).

The government is required to provide notice of its intention to introduce evidence pursuant to Rule 404(b). "While Rule 404(b) provides no specific time limit for pretrial notice," the timeframe should "constitute reasonable notice." Id.

Here, Rought asserts that he requested notice from the government on October 19, 2018, as to whether it intends to offer evidence under Rule 404(b), but the government has not provided such notice to date. Rought asks that this evidence be ruled inadmissible if the government fails toprovide him reasonable pretrial notice or, alternatively, allow him to move for its exclusion if the government does provide notice.

In response, the government states that it "will endeavor to provide defense counsel with reasonable pretrial notice of Rule 404(b) evidence," but states that such evidence often does not become known until serious trial preparation is underway. The government notes that courts have found notice provided seven days prior to trial, and in some cases less time, can constitute sufficient notice of intent to use Rule 404(b) evidence. However, because trial in this matter is set for October 16, 2019, which is a little more than two weeks away, the court will GRANT Rought's motion in limine, (Doc. 63), insofar as it seeks information under Rule 404(b), and direct the government to provide him with all material to which he is entitled under Rule 404(b), if it has not already done so, on or before Friday, October 4, 2019.

c. Motion in Limine Pursuant to Fed.R.Crim.P. 16

Rule 16(a)(1)(G) requires the government to "give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence [...