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United States v. Gregory

United States District Court, D. Kansas

January 15, 2019

TROY A. GREGORY, Defendant.



         Before the court is the government's Motion in Limine (Omnibus) to Exclude Irrelevant, Prejudicial, or Otherwise Inadmissible Evidence (Doc. 39). The motion contains nine types of evidence the government seeks to exclude under the Federal Rules of Evidence. The motion is fully briefed, and the court is prepared to rule.

         I. Evidence regarding the government's pre-Indictment charging decisions

         The government moves to exclude evidence that it twice declined to prosecute defendant prior to his Indictment. Defendant argues those prior charging declinations are relevant to “impeaching a government agent, or summary witness, that seeks to testify about the details of the years-long criminal investigation[.]” (Doc. 46, at 2.) The government maintains that this evidence is “irrelevant, unfairly prejudicial, and potentially misleading and confusing to the jury and should be excluded under [Federal] Rules [of Evidence] 401 and 403.” (Doc. 49, at 3.)

         Several circuits have upheld the exclusion of evidence of prior charging decisions on those grounds. See United States v. Reed, 641 F.3d 992, 993-94 (8th Cir. 2011) (collecting cases). This court does not believe the Tenth Circuit would break from its unanimous sister circuits. As the Eleventh Circuit put it:

The government's decision not to prosecute a defendant on certain charges reflects, at best, the government's opinion that the defendant is not guilty. Thus, the opinion has no more evidentiary value than the opinion of the defendant's attorney, expressed during argument to the jury, that the defendant is not guilty. Even if such evidence is relevant, it would not be admissible under Rule 403.

United States v. Delgado, 903 F.2d 1495, 1499 (11th Cir. 1990) (emphasis in original). For these reasons, the court will exclude evidence of the government's prior charging declinations under Rules 401 and 403.

         II. Evidence regarding the government's charging decisions as to unindicted co-conspirators

         The government moves to exclude evidence and argument of the government's decision not to charge other individuals who may have engaged in the same criminal conspiracy. Defendant first argues this evidence is admissible during cross-examination of the unindicted co-conspirators referenced in the Indictment (assuming they testify). The government does not contest this assertion. If a co-conspirator testifies at trial, defendant may cross-examine the witness about the government's decision not to charge him or her. To the extent defendant wishes to introduce the evidence in another context, the court will address the issue at trial.

         III. Evidence and argument about the 2008 OCC Report of Examination of the University National Bank

         In briefing this issue, the parties reached an agreed stipulation. Defendant offered to stipulate that it will agree not to introduce the 2008 OCC Report of Examination or elicit testimony about it if the government also agrees not to introduce or offer evidence of other OCC reports, the 2009 formal agreement, and third-party reports to include the 2010 BKD Report. The government agreed, provided it retained the right to offer that testimony should defendant open the door by implicating those materials.

         IV. Admission of State Court Rulings in a Civil Case between Private Third-Parties

         First, some background. For much of the investigation underlying this Indictment, there was a parallel civil case proceeding in state court. Neither defendant nor the government were parties to that case. In February 2016 in Douglas County, Kansas District Court, Judge Richard M. Smith issued a Journal Entry and Memorandum Decision (“Civil Order”) that included statements about the credibility of John Duncan. (Doc. 23-2.) Judge Smith devoted an entire, lengthy section entitled “The Affidavit of John Duncan.” (Id. at 4-12.) The entire section is relevant to the court's reasoning, but the court will not reproduce it here. In it, Judge Smith meticulously analyzes Duncan's testimony in that case, as of deciding summary judgment. Judge Smith did not find Duncan credible. He outlined numerous inconsistencies in Duncan's testimony both in that case and in an answer filed by Mr. Duncan, proceeding pro se, in another parallel civil case on the same facts in federal court. See Enneking v. Univ. Nat. Bank, No. 13-4070-JTM.

         The government moves to exclude the Civil Order as inadmissible hearsay under Rule 802. In its reply brief, the government clarifies that it moved primarily to “prohibit the defendant from introducing a state judge's summary judgment ruling as evidence of any fact in this case.” (Doc. 49, at 6 (emphasis added).) See, e.g., United States v. Grey, 891 F.3d 1054 (D.C. Cir. 2018); United States v. Sine, 493 F.3d 1021, 1036 (9th Cir. 2007) (A court judgment is hearsay ‘to the extent that it is offered to prove the truth of the matters asserted in the judgment.'” (quoting United States v. Boulware, 384 F.3d 794, 806 (9th Cir. 2004)); Greycas, Inc. v. Proud, 826 F.2d 1560, 1567 (7th Cir. 1987) (“We are aware that, with immaterial exceptions, civil judgments are said not to be usable in subsequent proceedings as evidence of the facts underlying the judgement; for as to those facts, the judgement is hearsay.”). Defendant offered no argument that the Civil Order be admitted as ...

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