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United States v. Brown

United States District Court, D. Maryland

April 12, 2017

UNITED STATES OF AMERICA
v.
DEMARIO LAMAR BROWN, Defendant.

          MEMORANDUM ORDER

          RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE

         The Government has filed a three count criminal indictment against defendant Demario Lamar Brown (“defendant” or “Brown”) alleging conspiracy to distribute heroin, 21 U.S.C. § 846, possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c). (Indictment, ECF No. 1.) Trial in this case is scheduled to begin on Monday, April 17, 2017.

         Now pending before this Court is defendant's Motion in Limine (“Defendant's Motion”) to exclude as inadmissible hearsay several pieces of documentary evidence which the Government may seek to introduce at trial. (ECF No. 13.) The Government has filed a Response in Opposition to Defendant's Motion (“Government's Response”), and the Court heard argument on the Motion at the April 11, 2017 Pretrial Conference. (ECF No. 16.) For the reasons stated below, Defendant's Motion (ECF No. 13) is DENIED.

         STANDARD OF REVIEW

         A motion in limine is “any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 U.S. 38, 40, n. 2 (1984). “Such motions are ‘designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.” Changzhou Kaidi Elec. Co. v. Okin Am., Inc., 102 F.Supp.3d 740, 745 (D. Md. 2015) (quoting Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013)). The United States Court of Appeals for the Fourth Circuit reviews a district court's denial of a motion in limine for abuse of discretion. United States v. Hernandez, 212 F. App'x 229, 230 (4th Cir. 2007) (citing United States v. White, 405 F.3d 208, 212 (4th Cir. 2005)).

         ANALYSIS

         Under Rule 801 of the Federal Rules of Evidence, a “statement” is “hearsay” when “the declarant does not make [the statement] while testifying at the current trial or hearing, ” and “a party offers [the statement] in evidence to prove the truth of the matter asserted” therein. Fed.R.Evid. 801(c). A “statement” under the Federal Rules is a “person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Fed.R.Evid. 801(a). Rule 802 provides that hearsay generally is not admissible, but provides enumerated exceptions, including those set forth in Rule 803 of the Federal Rules. Fed.R.Evid. 802.

         Defendant seeks to exclude as hearsay several pieces of documentary evidence, including credit cards, state identification cards, insurance cards, receipts, envelopes, and bills. (ECF No. 13 at 2.) In support of his position, defendant merely asserts that these “documents and cards constitute inadmissible hearsay evidence” which “would be offered to prove the truth of the matter asserted therein; to wit: that Demario Brown lives or frequents 1037 Blackwell Road.” (Id.)

         The Government argues in opposition that “the identification cards, credit cards, debit cards, and mailings in the Defendant's name and aliases are not hearsay because they are not being offered in evidence to prove the truth of the information contained in the documents. Rather, they are being offered in evidence because the location where the documents were found is relevant to” the crimes alleged. (ECF No. 16 at 1) (emphasis in original).

         In Lorraine v. Markel American Insurance Company, Judge Paul W. Grimm of this Court undertook a detailed and thoughtful (and, now, widely cited) analysis of the hearsay rule in the context of a dispute over the admissibility of electronically stored information (“ESI”). Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 563 (D. Md. 2007). While the instant motion does not involve the admissibility of ESI, Judge Grimm's careful parsing of the hearsay rule explains why Defendant's Motion is without merit and must be denied.

         Focusing on the text of Rule 801, and citing several leading treatises and the notes of the advisory committee, Judge Grimm explained that:

The use of the word ‘statement' in Rule 801(a) is a critical component of the hearsay rule…. The word is used in a very precise, and non-colloquial sense-it only applies to verbal conduct (spoken or written) or non-verbal conduct that is intended by a human declarant to be asserti ve.
Although there is not universal agreement on this point, it appears that for verbal or nonverbal conduct to fall within the definition of the hearsay rule as defined under the federal rules of evidence, it must be either an expressly assertive written or spoken utterance, or nonverbal conduct expressly intended to be an assertion… The advisory committee's note to Rule 801(a) supports the notion non-verbal conduct that is not assertive, and verbal conduct (spoken or written) that is non-assertive should be viewed the same way-falling outside the definition of a ‘statement:'

Lorraine, 241 F.R.D. at 563-64 (internal citations omitted) (emphasis in bold added). Of particular interest to the pending Motion is the opinion's example of ‘nonassertive written verbal conduct: “An example of nonassertive written verbal conduct would be to write a person's name and address on an envelope.” Id. at 563, n. 39. As Judge Grimm's comment suggests, the mere fact that defendant's name appears on several documents and cards recovered by police does not mean that such writings are statements, much ...


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