United States of America v. Second Chance Body Armor Inc

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA, ex rel., ) AARON J. WESTRICK, Ph.D., ) ) Plaintiffs, ) ) v. ) Civil Action No. 04-0280 (PLF) ) SECOND CHANCE BODY ARMOR, INC., ) et al., ) ) Defendants. ) __________________________________________)

MEMORANDUM OPINION AND ORDER

The Court held a motions hearing in the above-captioned case on January 25,

2018. Prior to the hearing, the United States filed a motion in limine [Dkt. No. 500] to exclude

at trial any evidence relating to – and any argument concerning – the counterclaim and motion

for sanctions filed by pro se defendant Thomas E. Bachner, Jr. alleging prosecutorial

misconduct, tortious interference with contracts, unlawful investigatory and litigation tactics,

invasion of privacy, and submission of false statements and documents. In its motion, the United

States argued that, because this Court had dismissed Mr. Bachner’s counterclaim and denied his

sanctions motion, any related allegations would not be relevant to the trial and, if introduced,

would be unfairly prejudicial. 1

1 The Court dismissed the counterclaims and denied the request for sanctions in a written Memorandum Opinion and Order issued by Judge Richard W. Roberts, to whom this case was assigned prior to his retirement, on September 30, 2012. See United States ex rel. Westrick v. Second Chance Body Armor, Inc., 893 F. Supp. 2d 258 (D.D.C. 2012). Mr. Bachner did not consent to the government’s motion. He filed a response in

opposition [Dkt. No. 519] on January 18, 2018, and the United States filed a reply brief [Dkt.

No. 515] on the same day. At the hearing on January 25, however, Mr. Bachner did not reassert

his opposition to the motion. Rather, he explained that he would defer to the Court in limiting

the trial to only those matters deemed relevant to the remaining claims in this case. Based upon

his representations, as well as those of pro se defendant Richard C. Davis, the Court believes that

both Mr. Bachner and Mr. Davis now understand that, at trial, the Court will require that they

observe the applicable rules limiting testimony, questions, and arguments to only those matters

relevant to the claims in the case.

Having reviewed the government’s motion, Mr. Bachner’s opposition, the

government’s reply, and the entire record in this case, the Court concludes that evidence and

argument related to Mr. Bachner’s dismissed allegations would not be relevant to the claims that

remain in this case. See FED. R. EVID. 401; FED. R. EVID. 402; United States ex rel. El-Amin v.

George Washington Univ., 533 F. Supp. 2d 12, 20-22 (D.D.C. 2008); Halcomb v. Washington

Metro. Area Transit Auth., 526 F. Supp. 2d 24, 31 (D.D.C. 2007). Even were the Court to find

such evidence marginally relevant, its probative value would be substantially outweighed by the

risk of unfair prejudice to the United States at trial. See FED. R. EVID. 403; Nuskey v. Hochberg,

723 F. Supp. 2d 229, 233 (D.D.C. 2010); Halcomb v. Woods, No. 02-1336, 2009 WL 9087346,

*1 (D.D.C. Oct. 30, 2009). Accordingly, it is hereby

ORDERED that the motion in limine [Dkt. No. 500] filed by the United States to

exclude any evidence of the allegations made in Mr. Bachner’s counterclaim or sanctions motion

is GRANTED; and it is

2 FURTHER ORDERED that the Court EXCLUDES all evidence and any

argument or references concerning Mr. Bachner’s allegations against the United States for

prosecutorial misconduct, tortious interference with contracts, unlawful investigatory and

litigation tactics, invasion of privacy, and submission of false statements and documents by the

Department of Justice attorneys in federal courts, including as alleged in Mr. Bachner’s

counterclaim and sanctions motion.

SO ORDERED.

_________/s/_______________ PAUL L. FRIEDMAN United States District Judge DATE: January 30, 2018