United States v. Ledbetter

188 F. Supp. 3d 674, 2016 U.S. Dist. LEXIS 67347, 2016 WL 2956250
CourtDistrict Court, S.D. Ohio
DecidedMay 23, 2016
DocketCase Nos. 2:15-CR-080, 2:14-CR-127
StatusPublished

This text of 188 F. Supp. 3d 674 (United States v. Ledbetter) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ledbetter, 188 F. Supp. 3d 674, 2016 U.S. Dist. LEXIS 67347, 2016 WL 2956250 (S.D. Ohio 2016).

Opinion

OPINION & ORDER

ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on the Government’s motion to display the tattoos of four defendants standing trial in the first trial grouping (“Trial I”) of this sprawling RICO-conspiracy case: Robert B. Ledbetter, Christopher A. Harris, Rashad A. Liston, and Deounte Ussury (Doc. 1100).1 For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the Government’s request.

I. BACKGROUND

This case centers on an alleged racketeering enterprise known as the “Short North Posse”—a purported criminal street gang that allegedly operated in the Short North area of Columbus, Ohio, from roughly 2005 until 2014. In Count One of the Superseding Indictment, the Government alleges that Defendants Ledbetter, Harris, Liston, and Ussury were members or associates of the Short North Posse. To help prove that these defendants were members or associates of the Short North Posse, the Government seeks to display tattoos that the defendants have on their bodies which the Government contends both: (1) exist; and (2) “are arguably gang-related or are otherwise relevant to the issues in Trial One.” (Id,).

Despite preparing this case since July 2014, and despite considerable pretrial briefing on a host of substantive and procedural issues, including nearly a dozen motions in limine regarding contentious evidentiary issues, the Government did not indicate that it wished to display the defendants’ tattoos until the sixth week of trial. (Id. (“At the conclusion of trial proceedings on May 9, 2016, counsel for the United States advised the Court that the government wishes to display the tattoos of four defendants.. .before the close of evidence.”)). By then, counsel for the de[678]*678fendants had already given their opening statements to the jury and had cros's-ex-amined a majority of the Government’s witnesses—including the Government’s expert witness on gang culture, who testified about gang-related tattoos, and several indicted and unindicted co-conspirators who had purportedly gang-related tattoos on their bodies.

Upon learning of the Government’s request, the Court ordered simultaneous briefing from the parties. The Government submitted its motion to display the defendants’ tattoos on Monday, May 16, 2016. (Id.). Harris (Doc. 1101) and Liston (Doc. 1102) filed memoranda in opposition the same day. Collectively, Harris and Liston argue that evidence of any. tattoos they might have would be. irrelevant, unfairly prejudicial, a violation of their Fifth Amendment right against self-incrimination, and, in any event, would be admitted too late in the game given those portions of the case already completed. In the interest of judicial efficiency, Ledbetter later moved to join in Harris’s memorandum in opposition. (Doc. 1104). Ussury, however, opted not to file any response'in opposition and, for strategic reasons, seems to have consented to the display of his tattoos to the jury.2

II. LEGAL STANDARDS

.Under the Federal Rules of Evidence, evidence is relevant, and’therefore generally admissible, so long as it .“has any tendency to make a fact more or less probable,” and so long as “the fact is of consequence in determining the action.” Fed. R. Evid. 401. Evidence can be relevant even if it does not relate to an element of a charged offense or to a fact in dispute, provided the evidence supplies background information about the defendant or the offenses. See Advisory Committee Notes to 1972 Proposed Rules (“Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding.”). The Government thus faces a “low threshold” for establishing that evidence is relevant, Tennard v. Dretke, 542 U.S. 274, 285, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), and defendants “face[ ] a significant obstacle in arguing that evidence should' be barred because it is not relevant,” United States v. Boros, 668 F.3d 901, 907 (7th Cir.2012). See generally United States v. Collins, 799 F.3d 554, 578 (6th Cir.2015) (“This Circuit applies an ‘extremely liberal’ standard for relevancy.” (citation omitted)).

Assuming evidence is relevant, Rule 403 nonetheless grants trial courts discretion to exclude that evidence “if its probative value is substantially outweighed” by the risk of “unfair prejudice.” Fed. R. Evid. 403; United States v. Gibbs, 797 F.3d 416, 422 (6th Cir.2015). The term “unfair prejudice” does not, however, encompass “the damage to a defendant’s case that results from the legitimate force of the evidence.” United States v. Ford, 761 F.3d 641, 648 (6th Cir.2014) (quotation omitted). After all, most evidence is prejudicial in one way or another. Instead, the term “unfair prejudice” refers only to evidence which tends to lead jurors to make a decision on an improper basis. Id.

[679]*679The Fifth Amendment to the United States Constitution provides in part that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The right against self-incrimination bars only “compelled incriminating communications. . .that are ‘testimonial’ in character.” United States v. Hubbell, 530 U.S. 27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). Put differently, to qualify for protection under the Fifth Amendment, a statement or other communication must be: (1) testimonial; (2) incriminating; and (3) compelled. Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004).

Finally, trial courts possess wide discretion to control both “the mode and order of examining witnesses and presenting evidence” so as to “make those procedures effective for determining the truth” and so as to “avoid wasting time.” See Fed. R. Evid. 611(a). Trial courts, moreover, possess inherent authority to enforce pretrial orders through the exclusion of evidence that does not comply with those orders. See, e.g., United States v. Urena, 659 F.3d 903, 908 (9th Cir.2011) (“The district court has broad traditional powers to manage its docket and to manage the presentation of evidence through designated witnesses, in a trial before it.”); United States v. Garza, 448 F.3d 294

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Bluebook (online)
188 F. Supp. 3d 674, 2016 U.S. Dist. LEXIS 67347, 2016 WL 2956250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ledbetter-ohsd-2016.