United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, District Judge.
This case arises from defendants' alleged storage of hazardous waste without a permit in violation of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et. seq. Before the court are Motions in Limine by the government seeking to allow overview testimony by two government witnesses (Dkt. 35) and seeking sanctions for defendants' failure to provide reciprocal discovery (Dkt. 36).
Defendants Sean M. Riley, Brian J. Riley, Jack E. Gibbons, and Integrated Plastic Solutions, LLC were indicted for allegedly storing hazardous waste without a permit in violation of the RCRA. The government submitted its initial discovery to defendants on November 18, 2013. (Dkt. 36, at 1). The court issued a General Order on Discovery and Scheduling ("scheduling order") on November 26, 2013. (Dkt. 23), and a jury trial was scheduled for January 28, 2014. (Dkt. 23, at 6). The government produced its final round of discovery on April 17, 2014. (Dkt. 36, at 2). The trial date has since been continued to January 13, 2015, by a joint motion dated September 9, 2014. (Dkts. 37; 38).
II. Motion in Limine Standards
The motion in limine provides a trial court the opportunity "to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial." United States v. Cline, 188 F.Supp.2d 1287, 1291 (D. Kan. 2002) (quoting Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996)). The power to make evidentiary rulings in limine is not expressly provided by statute or rule; it stems from the court's authority to administer and try cases. Luce v. United States, 469 U.S. 38, 41 n.4 (1984); see FED. R. EVID. 103(d), 104(c), 402, 403, 611(a). Such rulings may increase judicial efficiency, but many evidentiary rulings "should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in the proper context." Mendelsohn v. Sprint/United Mgmt. Co., 587 F.Supp.2d 1201, 1208 (D. Kan. 2008) (citing Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975)). An in limine evidentiary ruling is subject to change, at the court's discretion, "when the case unfolds" in trial. Luce, 469 U.S. at 41-42.
The government filed two motions in limine. The first (Dkt. 35) seeks to admit overview testimony by EPA Special Agent Eddie McGlasson and RCRA Compliance Officer Dierdre Newsome. The second (Dkt. 36) seeks sanctions for defendants' alleged failure to provide reciprocal discovery under Federal Rule of Criminal Procedure 16 and the scheduling order.
A. Motion in Limine to Admit Overview Testimony (Dkt. 35) is Denied
Overview testimony is a broad category of evidence typically offered to preview the government's case at the beginning of a trial. United States v. Brooks, 736 F.3d 921, 930 (10th Cir. 2013). It occurs when a witness testifies before any evidence is admitted and provides a roadmap of the evidence to follow. Id. at 929-30. Overview testimony is not directly addressed by the Federal Rules of Evidence, but is simply a form of lay or expert opinion testimony pursuant to Rules 701 and 702. Id.; see also United States v. Griffin, 324 F.3d 330, 349 (5th Cir. 2003); United States v. Casas, 356 F.3d 104, 119 (1st Cir. 2004). Lay opinion testimony is admissible if it is "rationally based on the witness's perception, " is "helpful to clearly understanding the witness's testimony or to determining a fact in issue, " and is not based on information within the scope of expert testimony under Rule 702. FED. R. EVID. 701. Expert opinion testimony is admissible if "the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." FED. R. EVID. 702.
Overview testimony is fraught with inherent danger: "such testimony raises the very real specter that the jury verdict could be influenced by statements of fact or credibility assessments in the overview but not in evidence." Casas, 356 F.3d at 119. The evidence presented after the overview may not be as predicted therein, and "juries may place greater weight on evidence perceived to have the imprimatur of the government." Id. at 120; accord United States v. Garcia-Morales, 382 F.3d 12, 16-18 (1st Cir. 2004).
The Tenth Circuit has accordingly expressed caution with overview testimony, acknowledging that it is susceptible to abuse because "[i]t can stray into matters that are reserved for the jury, such as opinions about a defendant's guilt." Brooks, 736 F.3d at 930. As the Brooks court noted:
Other potential problems [with overview testimony] include the government's ability (1) to spin the evidence in its favor before it is admitted (assuming it is ever admitted), (2) to give its official imprimatur to certain evidence, and (3) to allow its witnesses (usually law enforcement) to testify on matters about which they have no personal knowledge or that are based on hearsay.
Id. at 930. Its use is therefore limited; permissible uses include describing "how an investigation began, the law enforcement agencies involved, or the investigative techniques used." Id. Overview testimony is also admissible to describe the roles played by participants within the alleged illegal ...