Amobi v. Brown

• Court: District Court, District of Columbia
• Decided: June 19, 2018
• Docket: Civil Action No. 2008-1501
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) STEPHEN AMOBI, et al., ) ) Plaintiffs, ) ) v. ) Case No. 08-cv-1501 ) DEVON BROWN, et al., ) ) Defendants. ) )

MEMORANDUM OPINION AND ORDER REGARDING OUTSTANDING EVIDENTIARY ISSUES

The parties have submitted extensive objections and arguments regarding the

proposed exhibits and witnesses for the upcoming trial. This Court previously resolved

many of the objections Defendants submitted in their omnibus motion in limine (ECF

No. 235) during the Initial Pretrial Conference held on May 29, 2018, and the remaining

issues in the omnibus motion—motions F, G, J, and K—will be addressed at the Final

Pretrial Conference scheduled for June 21, 2018. (See Defs.’ Omnibus Mot. in Limine;

see also Pls.’ Opp’n to Defs.’ Omnibus Mot. in Limine, ECF No. 239; Defs.’ Reply for

Omnibus Mot. in Limine, ECF No. 241; Hr’g Tr. of May 29, 2018 (reflecting the

Court’s oral rulings on motions A, B, C, D, E, H, and I).)

Before this Court at present are the remaining evidentiary disputes, as raised and

briefed in various sets of filings. (See Revised Pls.’ Exhibit List and Defs.’ Objections,

ECF No. 247-3; see also Defs.’ Supp. Mot. in Limine, ECF No. 236; Pls.’ Opp’n to

Defs.’ Supp. Mot. in Limine, ECF No. 243; Defs.’ Reply for Supp. Mot. in Limine, ECF

No. 245; see also Pls.’ Proffer of Evid. and Mem., ECF No. 247; Defs.’ Resp. to Pls.’

1 Proffer of Evid. and Mem., ECF No. 252; Pls.’ Reply for Proffer of Evid. and Mem.,

ECF No. 253; Def. Brown’s Resp. to Pls.’ Proffer of Evid. and Mem., ECF No. 256.)

The Court has reviewed all of the objected-to exhibits and witnesses, as well as the

various arguments that the parties have offered pertaining to the evidentiary value and

admissibility of the proffered evidence. This Order reflects the Court’s rulings, which

will be expounded upon if necessary at the Final Pretrial Conference in this case, which

is scheduled for June 21, 2018 at 10:30 AM.

Notably, what follows is a brief statement of the reasons for the Court’s rulings

with respect to each exhibit that is addressed below; the Court’s conclusions were

reached based upon its careful consideration of the parties’ most meritorious arguments.

Given the number of objections and the myriad bases that were raised and briefed for

each disputed exhibit, the Court will not comment upon every argument raised by the

parties with respect to each exhibit that is discussed.

I. EVIDENCE FROM THE CRIMINAL TRIAL AND ARBITRATION PROCEEDING

A common theme underlying a significant number of the evidentiary disputes in

this case is the extent to which evidence related to the previous proceedings that form

the bases of the present common law malicious prosecution claims can be admitted at

trial, and for what purpose. Accordingly, in its Order Scheduling Pre-Trial Conference

and Submission of Joint Pre-Trial Statement, this Court instructed the parties to “brief,

among other issues, whether and to what extent evidence from and concerning the

previous administrative and criminal proceedings is relevant to the instant case and

should be admissible” in their renewed motions in limine. (ECF No. 231, para. 5(a);

see also Min. Order of Apr. 26, 2018 (instructing the parties to file such a supplemental

2 brief after seeing no such submission in the pretrial materials).) Because of the

importance of these evidentiary rulings to this case and the presentation of evidence

regarding the previous criminal trial and the administrative proceeding in the context of

Plaintiffs’ malicious prosecution claims, the Court finds it appropriate and helpful to

expound upon its reasoning with respect to these issues.

As a general matter, in resolving these evidentiary disputes, the Court faces a

tension between, on the one hand, allowing Plaintiffs to introduce evidence related to

the previous proceedings to the extent such evidence is probative of the remaining

claims in this case, and on the other, preventing the risk of prejudice to Defendants that

would occur if evidence unrelated to their alleged conduct becomes a dominate factor at

trial or if the prior proceedings are re-litigated in the context of the instant proceedings.

Accordingly, Federal Rule of Evidence 403, which governs the exclusion of relevant

evidence “if its probative value is substantially outweighed by a danger of . . . unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence[,]” Fed. R. Evid. 403, plays a large part in

the Court’s analysis of the evidence, and the Court has proceeded with an acute

awareness of the need for Plaintiffs to demonstrate how the evidence being offered is

probative of the elements of the claims that are bring tried in this case. This means that

Court has been, and will continue to be, focused on the elements of the claims, and will

not allow protracted engagement with the underlying facts of the previous proceedings

beyond what is relevant to and probative of the elements of the claims at issue.

A. Evidence Pertaining To The Prior Criminal Proceeding

Plaintiffs seek to offer a number of exhibits and witnesses with respect to the

prior criminal proceeding, including Exhibit 75 (Docket Sheet, United States v. Amobi,

3 2006 CMD 12120), Exhibit 77 (2007.06.04 Testimony of Derrick Brown from Criminal

Trial), Exhibit 80 (2007.06.04 Testimony of Elbert White from Amobi Criminal Trial),

and Exhibit 81 (Findings of the Court from Amobi Criminal Trial). In addition,

Plaintiffs also seek to offer the testimony of Danny Onorato, the attorney who

represented Amobi in his criminal trial. The Court has addressed each of these in turn.

1. The Criminal Court’s Findings (Exhibit 81)

With respect to the findings of the trial court in Amobi’s criminal case, this

Court finds that any probative value of this exhibit is significantly outweighed by the

danger of unfair prejudice and confusing the jury. See Fed. R. Evid. 403. “Within this

district, courts have consistently avoided potential jury confusion and unfair prejudice

in related actions by excluding judicial findings, convictions, and similar evidence on

Rule 403 grounds.” Moore v. Hartman, 102 F. Supp. 3d 35, 143 (D.D.C. 2015)

(internal quotation marks and alterations omitted) (quoting Athridge v. Aetna Cas. &

Sur. Co., 474 F. Supp. 2d 102, 109 (D.D.C. 2007).) Here, the presentation of the

criminal court’s findings to the jury carries with it the risk that the jury would “accord[]

more weight to the analysis of the evidence laid out in the [] [o]pinion than to their own

perceptions of the evidence simply because the opinion was authored by a judge.” Id.

Moreover, and in particular, it is clear that the criminal court’s findings

explicitly rest on that court’s own credibility determinations (see Exhibit 81 (noting

that “the Court observed the demeanor of the witnesses” and has found Amobi not

guilty on the basis on of its observations and the evidence in the case)), and in this

Court’s view, introducing such findings and determinations to the jury in the instant

malicious prosecution case carries the risk of interfering with the jury’s freedom to

determine the credibility of the same witnesses for itself. Furthermore, the criminal

4 court’s opinion may confuse the issues and mislead the jury with respect to the claims

in this case, because that court’s ‘not guilty’ finding was made on an entirely different

standard and a different factual inquiry than the issues of fact presented in the instant

case. See Fed. R. Evid. 403; Moore, 102 F. Supp. at 144. Therefore, much like other

courts in this jurisdiction that have contended with motions in limine seeking the

exclusion of the previous judicial opinions in the criminal cases underlying a malicious

prosecution claim, this Court will GRANT Defendants’ motion with respect to Exhibit

81 and exclude the court’s findings in Amobi’s criminal trial.

2. Transcripts of Prior Testimony (Exhibits 77, 80)

Plaintiffs seek to offer the prior testimony of then-inmate Derrick Brown and

former Defendant Major Elbert White as evidence in this case. As a threshold matter, it

is clear beyond cavil that former testimony implicates the hearsay rule, and thus must

be evaluated on a case-by-case (and perhaps even line-by-line) basis, to determine what

the out-of-court statements are being offered to prove and, if necessary, whether such

statements fit an exception to the rule against hearsay. See, e.g., Fed. R. Evid. 803,

804. As a general matter, Plaintiffs here have failed to indicate clearly the purposes for

which they seek to offer Inmate Brown and Major White’s prior testimony, and they

have also not uniformly pointed to particular hearsay exceptions to justify the

admission of this evidence. The Court has done its best to glean from Plaintiffs’

various filings the purposes for which this prior testimony is being offered, and it has

attempted to do so despite the fact that Plaintiffs have not identified particular

statements of interest.

With respect to inmate Brown’s testimony during Amobi’s the criminal trial, it is

unclear why this evidence is relevant to the elements of the malicious prosecution

5 claims at issue in this case, and in its current form (offered in its entirety) the testimony

is substantially more prejudicial than probative because no clear connection has been

made to show how inmate Brown’s testimony about the underlying events leading to

Amobi’s actions is probative of anything that Defendants Clay, Waldren, or Brown

knew or did with respect to procuring Amobi’s malicious prosecution. See Fed. R.

Evid. 403. Furthermore, inmate Brown’s prior testimony is hearsay, and Plaintiffs have

not demonstrated that this testimony fits into any exception to the hearsay rule. See,

e.g., Fed. R. Evid. 803, 804. Therefore, the Court will GRANT Defendants’ motion

with respect to Exhibit 77 and exclude inmate Brown’s criminal trial testimony.

With respect to Major White’s testimony, Plaintiffs likewise fail to overcome the

hearsay problem. There is no dispute that White is deceased, and is thus considered to

be an unavailable witness under Federal Rule of Evidence 804. See Fed. R. Evid.

804(a)(4). However, to the extent that Plaintiffs seek admission of his testimony under

the rule for former testimony under Rule 804(b)(1), it is not clear to this Court that

White’s testimony “is now offered against a party who had – or in a civil case, whose

predecessor in interest had – an opportunity and similar motive to develop it by direct,

cross-, or redirect examination[.]” Fed. R. Evid. 804(b)(1)(B) (emphasis added). The

individual defendants in the instant action were not parties to the criminal proceeding,

nor can they be considered predecessors in interest to a party that had a similar motive

to develop testimony pertaining to the actions that give rise to their purported civil

liability. What is more, the underlying inquiry in the criminal case (whether Amobi

was guilty of assault) and the present civil case (whether Defendants Clay, Waldren,

and Brown withheld information and otherwise took steps to malicious prosecute

6 Amobi) are very different, which means that these Defendants might be prejudiced by

the admission of testimony that was developed in an entirely different context by

questioners who did not share their motives.

Plaintiffs also argue that White’s statements may be offered as non-hearsay co-

conspirator’s statements under Rule 801(d)(2)(E), but they have not made any proffer to

the Court laying out the evidence that demonstrates (1) that White was part of a

conspiracy and (2) that the statements they seek to admit were made during the course

and in furtherance of the conspiracy. See Bourjaily v. United States, 483 U.S. 171, 175

(1987) (“Before admitting a co-conspirator’s statement over an objection that it does

not qualify under Rule 801(d)(2)(E), a court must be satisfied that the statement

actually falls within the definition of the Rule. There must be evidence that there was a

conspiracy involving the declarant and the nonoffering party, and that the statement was

made ‘during the course and in furtherance of the conspiracy.’”). This failure might be

attributable to fact that Plaintiffs seek the admission of the entire transcript of White’s

testimony, and have failed identify the specific statements they consider to be

statements made in furtherance of a conspiracy. In any event, the hearsay rule bars the

admission of this testimony in its current form for the reasons stated; therefore, the

Court will GRANT Defendants’ motion with respect to Exhibit 80 and exclude White’s

testimony. To the extent that Plaintiffs wish to identify specific statements in the

testimony that qualify as non-hearsay or a hearsay exception, they are free to do so.

3. Docket Sheet from Criminal Trial (Exhibit 75)

Although the Court agrees with Plaintiffs that courts are permitted to take

judicial notice of the dockets in other judicial proceedings, see Rogers v. District of

Columbia, 880 F. Supp. 2d 163, 166 (D.D.C. 2012), it is not at all clear how the docket

7 of the criminal trial is relevant to the remaining claims in this case. (See Pls.’ Opp’n to

Defs.’ Supp. Mot. in Limine at 31 (asserting without explanation that “[t]his

information is relevant to show elements of the malicious prosecution claim, as well as

what all transpired during the criminal proceeding[,]” and “is relevant to the claim for

damages” for the costs of defending the criminal case).) Because Plaintiffs have not

made this most basic showing, as is necessary for the Court to evaluate whether and to

what extent the docket of the criminal trial has any bearing on the issues of fact that the

jury must decide in this case, the Court must GRANT Defendants’ motion with respect

to Exhibit 75 and exclude the docket sheet from the criminal trial, pending Plaintiffs’

demonstration of its relevance. See Fed. R. Evid. 401.

4. Attorney Danny Onorato

In their supplemental motions in limine, Defendants seek the exclusion of the

testimony of Danny Onorato, the attorney who represented Amobi in the criminal trial.

(See Defs.’ Supp. Mot. in Limine at 16–17.) This Court has considered the suggested

nature and scope of Onorato’s testimony—the “discovery procedures in that [criminal]

case, the initial dismissal of the case for failure to comply with discovery requests, the

unprecedented re-instatement of the criminal case, [and] the acquittal of Cpl. Amobi”—

and finds that such testimony would be substantially more prejudicial than probative

under Rule 403. See Fed. R. Evid. 403. The discovery issues in the criminal case or

the dismissal and subsequent re-instatement of that case do not plainly pertain to

Defendants in the present case, as it is not clear that the individual defendants, who

have been accused of being civilly liable for malicious prosecution, had any

involvement in those decisions. Further, even if these facets of Onorato’s testimony are

probative of the claims in this case, Onorato’s testimony is likely to be unduly

8 prejudicial, given that he was Amobi’s criminal defense attorney (which indicates

significant bias with respect to his views of how the criminal case unfolded) and that

his testimony regarding the manner in which the criminal trial was prosecuted might be

improperly viewed by the jury as an opinion or an analysis of the conduct in the case.

Neither party has opted to present expert witnesses in this matter. See Fed. R. Evid.

702. And this Court is concerned that permitting a witness with unquestionable

criminal defense expertise to testify about the prior criminal proceedings upon which

Plaintiffs’ malicious prosecution claims are based comes perilously close to that,

especially when the probative value of any such testimony as it relates to the decisions

and actions of the individual defendants has not been established.

Accordingly, the Court will GRANT Defendants’ supplemental motion in limine

with respect to Onorato’s testimony regarding Amobi’s criminal trial, and will exclude

his testimony. To the extent that Plaintiffs wish to call Onorato to testify regarding

Amobi’s legal fees in connection with the criminal prosecution, they may re-raise the

issue of offering this limited testimony as it relates to damages at an appropriate time.

B. Evidence Pertaining To The Arbitration Proceeding

With respect to the prior arbitration proceeding, it appears that Plaintiffs seek to

offer the entirety of the arbitration hearing transcript—several hundred pages’ worth—

as reflected in Exhibit 28 (2007.10.02 Amobi Arbitration Transcript), and they also

wish to admit into evidence the arbitrator’s ultimate finding that Amobi was improperly

removed from his position, Exhibit 39 (2007.12.21 Arbitration Opinion and Award).

Importantly, it is through the arbitration transcripts that Plaintiffs seek to offer the

testimony of Phuoc Nguyen, who served as the hearing officer in Amobi’s removal

proceeding. In addition, Plaintiffs request that the live testimony of Ann Kathryn So,

9 an attorney who represented Amobi in the arbitration proceeding, be allowed during the

instant trial. The Court’s conclusions regarding this evidence (which pertains to the

arbitration proceeding that is at the heart of Plaintiffs’ claim of malicious prosecution

of administrative removal) are as follows.

1. The Arbitrator’s Opinion (Exhibit 39)

As an initial matter, the Court must address a new argument that Plaintiffs have

made with respect to the arbitrator’s opinion: that the arbitrator’s conclusions are

binding with respect to the issues that the jury must decide in the upcoming trial. (See

Pls.’ Proffer of Evid. and Mem. at 27–28 (arguing that “Defendants should be precluded

from disputing any issues of fact or conclusions that arose in the prior proceedings

under the doctrine of collateral estoppel” and that, specifically, “Defendants should be

precluded from challenging the findings of the arbitrator”). Plaintiffs’ “collateral

estoppel” contention is incorrect for several reasons.

First of all, the arbitrator’s opinion has no preclusive effect because the prior

arbitration proceeding addressed only whether or not there was cause for Amobi’s

removal from his Department of Corrections position as a general matter (see Exhibit

39 at 3), and the arbitrator did not specifically consider or decide the knowledge,

intentions, and actions of the individual defendants, which is what the jury will be

required to determine in this malicious prosecution of administrative removal case. See

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). Second, Plaintiffs have

pointed to no persuasive authority for their assertion that the results of the arbitration

can determine the outcome of issues litigated at trial. To the contrary, similar

precedents have generally denied that arbitral awards deserve deference or have

preclusive effect in the litigation context; indeed, the Supreme Court has emphasized

10 that labor arbitrations are not judicial proceedings for the purposes of the Federal Full

Faith and Credit Statute, 28 U.S.C. § 1738, and it has also noted that arbitrations cannot

“provide an adequate substitute for a judicial trial” because “arbitral factfinding is

generally not equivalent to judicial factfinding.” McDonald v. City of W. Branch,

Mich., 466 U.S. 284, 290 (1984); see also Alexander v. Gardner-Denver Co., 414 U.S.

36, 57–58 (1974). It is also clear to this Court that Plaintiffs have waived any collateral

estoppel argument by failing to either raise this issues at summary judgment or include

it in a timely filed motion in limine. (See Scheduling Order, ECF No. 231.) Plaintiffs

raised this argument for the first time in the context of a memorandum that it submitted

to the Court with its revised list of witnesses and exhibits, three weeks shy of trial.

(See Pls.’ Proffer of Evid. and Mem. at 27–28.) Thus, both substantively and

procedurally, the argument must be rejected.

Having decided that the arbitrator’s findings do not bind the participants in the

instant case or otherwise preclude the submission to the jury of issues of fact that the

previously arbitrator decided, the Court next considers the admissibility of the

arbitrator’s opinion as evidence in the upcoming trial. Similar to the Court’s concerns

regarding the opinion of the criminal court, see supra Part I.A.1, this Court is also of

the opinion that this evidence would be substantially more prejudicial than probative if

it is submitted to jury. See Fed. R. Evid. 403. Admission of the arbitrator’s opinion

would likely cause confusion given the scope of the inquiry the arbitrator conducted,

and its similarity to one of the elements of the malicious prosecution claim—i.e., “the

absence of probable cause for the proceeding[.]” Amobi v. D.C. Dep’t of Corr., 755

F.3d 980, 992 (D.C. Cir. 2014). The jury must make its own determination regarding

11 whether or not this element is satisfied, see Athridge, 474 F. Supp. 2d 102, 109 (D.D.C.

2007), and there is a substantial risk that it would defer to the arbitrator’s conclusion in

this regard, rather than undertaking its own evaluation, if such conclusion is admitted

into evidence.

Similarly, because the arbitrator’s findings rest on assessments of the credibility

of the witnesses who testified during the arbitration hearing (see Exhibit 39 at 23

(noting expressly that “the Arbitrator considered the witnesses’ demeanor, motivation

and the consistency of their rendition of the disputed facts”), there is a substantial risk

that the jury’s own determination of the credibility of these same witnesses in the

context of this trial will be influenced in a manner that is prejudicial to Defendants if

the arbitrator’s assessment is admitted into evidence at trial. Again, while Plaintiffs

would no doubt prefer to be able to rely on the arbitrator’s previous conclusions

regarding some of the same facts that the jury will be called upon to decide in the

context of the instant case, this Court is justifiably concerned that “the arbitrator’s

comments and findings regarding the credibility of witnesses who also testif[y] at trial

would either usurp the jury’s role in assessing credibility or would be unfairly

prejudicial[.]” Wilmington v. J.I. Case Company, 793 F.2d 909, 919 (8th Cir. 1986).

Therefore, this Court will GRANT Defendants’ motion in limine with respect to

Exhibit 39 and exclude arbitrator’s opinion. See Fed. R. Evid. 403.

2. Transcripts of Previous Arbitration Hearing Testimony, Including The Testimony Of Phuoc Nguyen (Exhibit 28)

Plaintiffs have further sought to introduce large swaths of the testimony that was

elicited during the arbitration proceeding. As a general matter, this testimony is

hearsay, see Fed. R. Evid. 801(c), and is significantly more prejudicial than probative in

12 bulk form, see Fed. R. Evid. 403. Plaintiffs have also failed to establish its relevance

with respect to the elements of the current claims, e.g., by connecting the offered

testimony to what the named Defendants knew or did, see Fed. R. Evid. 401, and

Plaintiffs have also failed to show how any hearsay exception applies. In addition, the

wholesale admission of such testimony has the potential to confuse the jury by

replaying the events of the arbitration proceeding unnecessarily. Thus, to the extent

that Plaintiffs seek to offer the entirety of Exhibit 28, this Court will GRANT

Defendants’ motion in limine with respect to that exhibit.

That said, it appears that Plaintiffs intend to introduce, in particular, the portion

of Exhibit 28 that contains the testimony of Phuoc Ngyuen (see Pls.’ Proffer of Evid.

and Mem. at 25); Defendants have sought the exclusion of any such evidence in their

supplemental motion in limine (see Defs.’ Supp. Mot. in Limine at 17). Plaintiffs

represent that they have attempted to secure Nguyen’s presence at trial by serving her a

subpoena, which was left with her husband, and speaking telephonically to family

members who indicated that Nguyen was “not well and [] refuses to come to D.C. to

testify” (Pls.’ Proffer of Evid. and Mem. at 25–26; see also id. at 26 (asserting that,

subsequently, Nguyen “did not answer any other phone call”).)

Given the representations of Plaintiffs’ counsel as an officer of the court, this

Court has no reason to believe Nguyen is not an unavailable witness under Rule

804(a)(5). And with respect to unavailable witnesses, Rule 804(b)(1) provides a

hearsay exception for testimony that was given at a hearing and is now offered against a

party or predecessor-in-interest who had a similar motive to develop the testimony. See

Fed. R. Evid. 804(b)(1). The Court finds that the requirements of Rule 804(b)(1) are

13 satisfied with respect to Nguyen’s prior testimony in the arbitration proceeding, because

Nguyen provided relevant testimony under oath, and was cross-examined in the context

of a defense of Defendant Brown’s decision to remove Amobi from his position, which

is essentially the same inquiry in the present case. Unlike the prosecution in the

criminal proceeding, the Department of Corrections had a similar motive for cross-

examining Nguyen as the individual defendants have in the instant context, such that

DOC can logically be considered the predecessor-in-interest to these Defendants for

this purpose—or at least sufficiently within the “community of interest” identified in

Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3d Cir. 1978)—such Defendants

would not be unduly prejudiced by the admission of Nguyen’s prior testimony in the

context of this case. See Athridge, 474 F. Supp. 2d at 115.

Therefore, the Court finds that Rule 804(b)(1) applies, and on that basis, it will

DENY Defendants’ supplemental motion in limine with respect to Nguyen’s testimony

and will admit her prior testimony for the purposes of trial.

3. Attorney Ann Kathryn So

Defendants also seek to exclude the testimony of Ann Kathryn So, an attorney

who represented Amobi during the arbitration proceeding, and who Plaintiffs have

offered to call to the stand in this case to “testify to the conduct of the DOC in

falsifying evidence and actions in the arbitration which tended to cover up misconduct

by DOC officials in the discipline of Cpl. Amobi.” (Pretrial Statement, ECF No. 244 at

16; see also id. (explaining that So “will also testify to the disciplinary record of

Director Devon Brown and his abuse of the remand process in this case”).) For the

reasons that this Court provided with respect to Onorato, see supra Part I.A.4, the Court

finds that So’s testimony would be substantially more prejudicial than probative, Fed.

14 R. Evid. 403, given So’s apparent bias in favor of Amobi and her connection to the law

firm that is handling the instant case.

Specifically, it appears that So was not only Amobi’s attorney in the context of

the administrative hearing, but also worked for Plaintiffs’ current counsel during that

administrative proceeding. (See Exhibit 39 at 1.) Thus, allowing her to testify would

be akin to permitting counsel for a party to create and present his or her own facts to

the jury at trial, and Plaintiffs have offered no cases that suggest that the Rules of

Evidence authorize such a prejudicial presentation. Moreover, because So’s testimony

about the conduct of the arbitration will be from the standpoint of a legal advocate (see

Pretrial Statement at 16), it raises the specter of the improper introduction of expert

opinion, as described above with respect to Onorato.

In short, Plaintiffs’ counsel will be permitted to make legal arguments about the

facts that are presented to the jury based on the evidence properly admitted at trial, but

counsel’s view of the facts is not evidence, and Plaintiffs are not entitled to present

their narrative as such by filtering it through the testimony of Amobi’s previous lawyer.

This Court has no doubt that such testimony is improper, and at the very least, its

limited probative value is substantially outweighed by the prejudice that such practice

would create with respect to the jury’s perception of Defendants. See Fed. R. Evid.

403. Accordingly, the Court will GRANT Defendants’ supplemental motion in limine

with respect to So’s testimony, and will exclude her testimony from trial.

15 II. OTHER EXHIBITS

Attached is a table that lists other disputed exhibits that Plaintiffs seek to offer

(see Amended Exhibit List and Defs.’ Revised Objections, ECF No. 247-3), followed by

the Court’s ruling with respect to each such exhibit.

Notably, with respect to both the criminal and administrative proceedings, it

appears that Plaintiffs have marked for admission entire transcripts, as well as nearly

the entire corpus of filings and briefings from these proceedings, without identifying

the particular portions they intends to use, and for what purposes he intends to offer

them. Consistent with the Court’s view that not all aspects of these prior proceedings

will be relevant to the remaining claims, the Court has granted Defendants’ motion with

respect to many if not all of these exhibits, and has thereby left it up to Plaintiffs to

identify the particular pieces of evidence, if any, that they intend to offer in their case-

in-chief and the purposes for such evidence is being offered.

Furthermore, and finally, in some instances, the Court determined that it could

not make a final decision regarding the admissibility of the evidence based on the

parties’ briefing, because the required analysis is context-specific and must be made on

a case-by-case basis. In such instances, the Court has denied the objection without

prejudice and has provided guidance concerning the requirements for potential

admission. Defendants are free to renew their objection at the time these exhibits are

offered.

As indicated in the attached table, any exhibits that have not been withdrawn and

that are not discussed in the instant Opinion will be addressed, and ruled upon, at the

Final Pretrial Conference. The parties should also be advised that the testimony of

witnesses is evidence in and of itself, which means that documentary evidence—i.e.,

16 transcripts or other written materials—might be deemed cumulative to the extent that

testimony regarding the information conveyed has already been elicited. The parties

are encouraged to be aware of the risk of confusing the jury in seeking the admission of

entire transcripts or documents.

DATE: June 19, 2018 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

17 Amobi, et al. v. Brown, et al. (08-cv-1501)

Court’s Rulings on Disputed Plaintiffs’ Exhibits

# Exhibit Court’s Evidentiary Reasons Requirements for Ruling on Basis Potential Admission Defs.’ Objections 1. 2006.07.14 Britton DENIED Not hearsay • Not offered for the truth of the matter -- Follow Up Letter to asserted; only offered to show what reasons Summary Removal were provided for Amobi’s firing Notice 2. 2006.06.06 Derrick DENIED Not hearsay • Not offered for the truth; in fact, being -- Brown Interview offered to show that what was asserted is not Memo true • Relevant to malicious prosecution claims b/c the memo was relied upon by Brown and sent to the U.S. Attorney’s Office

3. 2006.06.04 Taylor DENIED Not hearsay • Not offered for the truth of the matter -- DCDC-1 Incident asserted, but for the effect on the reader or Report listener (Defendants)

4. 2006.06.04 Harris DENIED Not hearsay • Not offered for the truth of the matter -- DCDC-1 Incident asserted, but for the effect on the reader or Report listener (Defendants)

5. 2006.06.04 Wallace DENIED Not hearsay • Not offered for the truth of the matter -- DCDC-1 Incident asserted, but for the effect on the reader or Report listener (Defendants)

6. DC Code § 23-581 GRANTED Rule 401 • Irrelevant to the remaining claims -- (2007) 9. 2006.06.04 White DENIED Not hearsay • Not offered for the truth of the matter -- DCDC-2 Incident asserted, but for the effect on the reader or Report listener (Defendants)

A-1 Amobi, et al. v. Brown, et al. (08-cv-1501)

# Exhibit Court’s Evidentiary Reasons Requirements for Ruling on Basis Potential Admission Defs.’ Objections 10. 2006.06.04 DENIED Not hearsay • Not offered for the truth of the matter -- Cunningham asserted, but for the effect on the reader or DCDC-1 Incident listener (Defendants) Report 11. 2006.06.04 Amobi DENIED Not hearsay • Not offered for the truth of the matter -- DCDC-1 Incident asserted, but for the effect on the reader or Report listener (Defendants)

14. 2006.08.11 Case DENIED Not • Court will need to make this determination Lay foundation; Referral Memo without necessarily based on a better understanding of the explain purpose for prejudice hearsay foundation and the purpose for which it is which it is being being offered offered

16. 2006.08.03 1st DENIED Not hearsay • Offered not for the truth but the demonstrate -- Nguyen Hearing the difference or change in Officer recommendation—not that either view was Recommendation the correct one • Patently relevant to malicious prosecution of administrative removal claim • Not more prejudicial than probative of decision-making regarding Amobi’s removal

18. 2006.08.21 2nd DENIED Not hearsay • Offered not for the truth but the demonstrate -- Nguyen Hearing the difference or change in Officer recommendation—not that either view was Recommendation the correct one • Patently relevant to malicious prosecution of administrative removal claim • Not more prejudicial than probative of decision-making regarding Amobi’s removal

A-2 Amobi, et al. v. Brown, et al. (08-cv-1501)

# Exhibit Court’s Evidentiary Reasons Requirements for Ruling on Basis Potential Admission Defs.’ Objections 20. 2006.10.23 GRANTED Rule 401 • Unclear what element in the remaining Show relevance; Administrative relevance claims this is relevant to explain intended use Leave Notice Hearsay • Unclear what purpose it is being offered for and what hearsay exception applies, if any

21. 2006.06.04 Derrick DENIED Not hearsay • Not offered for the truth but the potential -- Brown Inmate effect on the reader/listener Injury Report • Relevant to knowledge of Defendants with respect to disciplining Amobi

22. 2006.11.28 Fax of DENIED Not hearsay • Not offered for the truth b/c offered to show -- DOC Office of that representations were made Internal Affairs • Plainly relevant to malicious prosecution Amobi File to US claim Attorney’s Office • The Court will focus the jury on these Defs. as a matter of the instructions

23. DOC Office of DENIED Not hearsay • Not offered for the truth b/c offered to show -- Internal Affairs that representations were made Amobi File • Plainly relevant to malicious prosecution claim • The Court will focus the jury on these Defs. as a matter of the instructions

24. 2006.06.04 Incident DENIED Not hearsay • Not offered for the truth of the matter -- Report (DCDC-2) – asserted, but for the effect on the reader or Holzinger listener (Defendants) • Holzinger’s signature appears on the report; lack of knowledge is something to be explored on cross-examination

A-3 Amobi, et al. v. Brown, et al. (08-cv-1501)

# Exhibit Court’s Evidentiary Reasons Requirements for Ruling on Basis Potential Admission Defs.’ Objections 26. 2006.06.07 Clay DENIED Rule 106 • No requirement that a party put the entirety -- Incident of a document into evidence; Defs. can offer Memorandum to the rest if they so choose. Fed. R. Evid. 106. Director Brown 27. 2006.06.07 White DENIED Not • Might not be offered for the truth of the Demonstrate not Incident without necessarily matter asserted being used to prove Memorandum to prejudice hearsay • The Court can address with a limiting chain of command or Clay instruction other asserted matter

28. 2007.10.02 Amobi GRANTED Rule 403 [Addressed in Part II.B.2 of the Memorandum Identify specific Arbitration Hearsay Opinion] portions or Transcript • Wholesale use of arbitration transcript is statements that fit significantly more prejudicial than probative hearsay exception • Unclear what hearsay exceptions apply

29. 2007.11.06 OLRCB GRANTED Rule 401 • Relevance of this brief is unclear; unclear Explain purpose for Amobi Arbitration Rule 403 what it is being offered to show which it is offered Post-Hearing Brief • Lawyers’ legal arguments are not evidence and probative value • More prejudicial than probative given that probative value vis-à-vis the remaining claims is not established

32. 2007.05.30 Amobi GRANTED Rule 403 • Not admissible wholesale; substantially more Identify specific Criminal Trial Hearsay prejudicial and probative and potential to portions or Transcript confuse the issues and mislead jury statements subject to • Unclear what hearsay exceptions apply to showing of relevance admit former testimony of live witnesses who and that fit hearsay will testify in this trial exception

A-4 Amobi, et al. v. Brown, et al. (08-cv-1501)

# Exhibit Court’s Evidentiary Reasons Requirements for Ruling on Basis Potential Admission Defs.’ Objections 33. 2007.06.28 Hannon GRANTED Rule 403 • Concerned about prejudicial nature of a piece -- Letter to O’Neill Hearsay of evidence prepared by the lawyer who is offering it • Unclear what hearsay exception applies to allow admission

34. 2007.07.10 Hannon GRANTED Rule 403 • Concerned about prejudicial nature of a piece -- Letter to Montrosse Hearsay of evidence prepared by the lawyer who is offering it • Unclear what hearsay exception applies to allow admission

35. 2009.06.29 Docket GRANTED Rule 401 • Unclear for what purpose this exhibit is Explain purpose for Sheet, Amobi v. being offered, and what it shows that makes which it is being DOC, 2008 CA more or less probative an element of a offered, and 000027 B remaining claim relevance to remaining claims 36. ULP Flyer about GRANTED Rule 403 • Substantially more prejudicial than probative -- Warden Clay • No showing of foundation

37. 2007.10.01 Repunzelle Johnson (This exhibit is the subject of MIL K, which will be resolved the Final Pretrial Conference) Memo to Director Brown 39. 2007.12.21 GRANTED Rule 403 [Addressed in Part II.B.1 of the Memorandum -- Arbitration Opinion Opinion] and Award (FMCS) • Any probative value far outweighed by risk of confusing the issues and misleading the jury

A-5 Amobi, et al. v. Brown, et al. (08-cv-1501)

# Exhibit Court’s Evidentiary Reasons Requirements for Ruling on Basis Potential Admission Defs.’ Objections 40. 2008.01.03 Motion GRANTED Rule 403 • Potential for confusion b/c filed by -- to Confirm Plaintiffs’ counsel and consists of legal Arbitration, Amobi arguments that the jury need not be bothered v. DOC, 2008 CA with 000027B • Needlessly cumulative of any evidence or testimony that the award had to be enforced

46. 2008.04.01 Motion GRANTED Rule 403 • Potential for confusion b/c filed by -- to Show Cause why Plaintiffs’ counsel and consists of legal Defendant DOC arguments that the jury need not be bothered Should Not Be Held with in Contempt, Amobi • Needlessly cumulative of any evidence or v. DOC, 2008 CA testimony that the award had to be enforced 000027B 51. 2008.05.09 Order Confirming Chapter 13 Plan, Ngozi (This exhibit is the subject of MIL G, which will be resolved the Final Pretrial Conference) Amobi, Bankruptcy Petition #:07-17881 53. 2008.05.16 Status GRANTED Rule 401 • Wholesale admission of a hearing transcript Show purpose for Hearing Transcript, Rule 403 is confusing for the jury which it is being Amobi v. DOC, Hearsay • Plaintiffs have not demonstrated how a offered; identify 2008 CA 000027B hearsay exception applies to statements made portions to which during hearing hearsay exception applies 62. 2008.07.28 GRANTED Rule 401 • Relevance not shown Demonstrate Agency’s Rule 403 • Wholesale admission of prior pleadings is relevance; show Arbitration Review Hearsay confusing for the jury purpose for which it Request (PERB) • Pls. have not demonstrated how a hearsay is being offered; exception applies identify portions to which hearsay exception applies

A-6 Amobi, et al. v. Brown, et al. (08-cv-1501)

# Exhibit Court’s Evidentiary Reasons Requirements for Ruling on Basis Potential Admission Defs.’ Objections 63. 2008.08.18 GRANTED Rule 401 • Relevance not shown Demonstrate FOP/DOC’s Rule 403 • Wholesale admission of prior pleadings is relevance; show Opposition to Hearsay confusing for the jury purpose for which it Agency’s • Pls. have not demonstrated how a hearsay is being offered; Arbitration Review exception applies identify portions to Request (PERB) which hearsay exception applies 65. 2009.05.29 Chapter 13 Trustee Final Report and Account, (This exhibit is the subject of MIL G, which will be resolved the Final Pretrial Conference) Ngozi Amobi, Bankruptcy Petition #: 07-17881 70. 2013.03.20 DENIED Rule 401 • Court may take judicial notice of the -- Judgment of Rule 201 judgment Absolute Divorce • Relevant to loss of consortium claim and Consent Order • To the extent that document was not provided in discovery, no showing of prejudice to Defs.

71. Photos of D.C. Jail GRANTED Rule 403 • Photos appear to be reenactments, not -- Interior evidence; much more prejudicial than probative • At most, Pls. may use demonstrative evidence to show how things happened

72. Photos of D.C. Jail GRANTED Rule 401 • Unclear what the relevance of these photos -- Exterior are to the claims in this case

74. Docket Sheet, Ngozi Amobi, Bankruptcy (This exhibit is the subject of MIL G, which will be resolved the Final Pretrial Conference) Petition #: 07-17881

A-7 Amobi, et al. v. Brown, et al. (08-cv-1501)

# Exhibit Court’s Evidentiary Reasons Requirements for Ruling on Basis Potential Admission Defs.’ Objections 75. Docket Sheet, GRANTED Rule 401 [Addressed in Part I.A.3 of the Memorandum Show relevance of United States v. Rule 403 Opinion] docket sheet Amobi, 2006 CMD • Unclear what the relevance of the docket is 12120 and what purpose it is being offered for, and what elements of claims this exhibit is probative of

77. 2007.06.04 GRANTED Rule 403 [Addressed in Part I.A.2 of the Memorandum Identify specific Testimony of Hearsay Opinion] statements that are Derrick Brown from • Relevance of testimony w/r/t/ remaining probative of Criminal Trial claims is unclear, and substantially more remaining claims, prejudicial than probative and indicate hearsay • Prior testimony is hearsay exception

80. 2007.06.04 GRANTED Hearsay [Addressed in Part I.A.2 of the Memorandum Show applicable Testimony of Elbert Opinion] hearsay exception White from Amobi • Not admissible as unavailable witness’s prior Criminal Trial testimony under Rule 804(b)(1) because it is not being offered against a party whose predecessor in interest had a similar motive to develop testimony • Plaintiffs have not made showing sufficient for admission as co-conspirator statement under Rule 801(d)(2)(E)

81. 2007.06.04 Findings GRANTED Rule 403 [Addressed in Part I.A.1 of the Memorandum Pls. may offer it in of the Court from Opinion] redacted form with Amobi Criminal • Substantially more prejudicial than probative only the verdict of Trial • Likely to confuse the issues and mislead the not guilty if they jury, and usurp jury’s determination of the wish credibility of witnesses in this case

A-8 Amobi, et al. v. Brown, et al. (08-cv-1501)

# Exhibit Court’s Evidentiary Reasons Requirements for Ruling on Basis Potential Admission Defs.’ Objections 83. Sketch of Area of DENIED FRE permits • May be relevant to show the area where the Pls. must lay proper Incident Occurrence without demonstrativ incident took place foundation for prejudice es • Foundation is unclear—who authored the exhibit exhibit? On what basis?

84. Information on GRANTED Rule 403 • Photos are substantially more prejudicial Show relevance of Derrick Brown’s Rule 401 than probative and potentially cumulative, in inmate Brown’s Alleged Injuries Hearsay light of other available evidence to show injuries and non- inmate Brown’s injuries (e.g., Exhibit 21) hearsay purpose • The report section of the exhibit might be allowed, subject to showing of relevance and a proper non-hearsay purpose

87. 2006.06.04 Incident DENIED Not hearsay • Not offered for the truth of the matter -- Report – White asserted, but for the effect on the reader or listener (Defendants)

88. 2006.05.26 DC GRANTED Rule 403 • Substantially more prejudicial than probative -- DOC Disciplinary in drawing jury’s attention inmate Brown’s Report for Derrick history Brown 89. Derrick Brown GRANTED Rule 403 • Substantially more prejudicial than probative -- Criminal Papers in drawing jury’s attention inmate Brown’s history

91. 2006.08.06 Nguyen DENIED Not hearsay • Not offered for the truth of the matter Pls. must lay proper Hearing Officer Rule 401 asserted, but for the effect on the reader or foundation Report without listener (Defendants) letterhead

A-9 Amobi, et al. v. Brown, et al. (08-cv-1501)

# Exhibit Court’s Evidentiary Reasons Requirements for Ruling on Basis Potential Admission Defs.’ Objections 92. Amobi Fitness for DENIED Rule 401 • Might be relevant to claims of malicious Pls. must show Duty without prosecution related to Amobi’s purpose for which it prejudice administrative removal is offered • Can be offered not for the truth of the matter

99. Legal Fees of GRANTED Rule 401 • Court does not have a copy of this exhibit -- Hannon Law Group Rule 403 • The legal basis upon which Plaintiffs’ may recover attorney’s fees for the present litigation in the context of punitive damages is unclear

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