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United States v. Edwards

United States District Court, D. Kansas

October 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RAYMOND EDWARDS and RENATA EDWARDS, Defendants.

          MEMORANDUM & ORDER

          CARLOS MURGUIA UNITED STATES DISTRICT JUDGE

         This criminal matter between the United States of America and defendants Raymond and Renata Edwards comes before the court for decision on various outstanding pretrial motions and other filings- filings not presented as motions but nonetheless requesting pretrial rulings on the admissibility of specific evidence. After careful consideration of the parties' positions and relevant law, the court rules as follows:

1. Defendants' Motion to Dismiss The Trademark Counts (Doc. 173) is denied.
2. Defendants Ray and Renata Edwards's Motion To Dismiss Counts 28-42 (Doc. 174) is denied.
3. Defendants Raymond and Renata Edwards's Motion To Strike Surplusage (Doc. 175) is denied.
4. Government's Motion To Strike Asset $3, 467.00 From Second Superseding Indictment (Doc. 167) is granted.
5. Joint Motion Of Defendants Raymond and Renata Edwards For Reconsideration Of Motion To Suppress Electronic Information Obtained In Violation Of Fourth Amendment (Doc. 177) is denied.
6. Defendants' Motion In Limine To Exclude All Evidence Collected, Generated Or Having Any Connection To Deceased Witness (Doc. 116) is denied without prejudice in part and denied in part.
7. Government's Motion In Limine (Doc. 93) is granted in part and denied without prejudice in part.
8. Defendants' Joint Motion In Limine And Memorandum In Support To Exclude Reference To Agent Morrow's Death (Doc. 112) is granted.
9. Defendants' Motion In Limine Regarding The Use Of The Term Counterfeit (Doc. 115) is denied.
10. Government's Notice Of Intent To Offer Evidence Pursuant To Federal Rule Of Evidence 902(11), And Motion In Limine To Determine Admissibility Of The Business Records (Doc. 81) is granted in part and denied without prejudice in part.
11. Government's Supplement Notice Of Intent To Offer Evidence Pursuant To Federal Rule Of Evidence 902(11), 902(14), And Motion In Limine To Determine Admissibility Of The Business Records (Doc. 183) is granted in part and denied without prejudice in part.
12. Government's Motion In Limine, Alternatively, Notice Pursuant To Rule 404(b) (Doc. 85) is granted in part and denied without prejudice in part.
13. Government's Supplemental Notice Pursuant To Rule 404(b) (Doc. 105) is granted.
14. Defendants Raymond and Renata Edwards's Motion To Exclude Evidence Of Other Crimes, Wrongs, Or Acts (Doc. 176) is denied.
15. Government's Motion In Limine (Doc. 92) is denied without prejudice.
16. Government's Consolidated Motions In Limine (Doc. 114) is denied without prejudice.

         Below, these rulings are more fully explained.

         1. Defendants' Motion to Dismiss The Trademark Counts (Doc. 173)

         2. Defendants Ray and Renata Edwards's Motion To Dismiss Counts 28-42 (Doc. 174)

         The court first addresses defendants' two recently filed motions to dismiss, Docs. 173 and 174.

         In Doc. 173, defendants move to dismiss Counts 1-22 of the Second Superseding Indictment. These counts charge, in relevant part, that defendants conspired to and, in fact did, traffic in goods bearing a counterfeit mark, in violation of 18 U.S.C. § 2320(a)(1). As to Count 1, the conspiracy count, defendants argue the two-fold position that the indictment fails to state an offense because: (1) it fails to allege all four of 18 U.S.C. § 2320(f)(1)(A)'s components defining a “counterfeit mark” and (2) instead alleges that defendants trafficked in genuine goods-conduct that defendants believe § 2320(g) immunizes from prosecution. As to Counts 2-22, the counts alleging specific acts of trafficking in computer batteries and power adapters bearing a counterfeit mark, defendants seek dismissal under Federal Rule of Criminal Procedure 16 as a sanction for the government's alleged failure to produce evidence that would enable defendants to determine whether the computer batteries and power adapters at issue are, in fact, non-genuine as alleged; because, again, if only genuine goods are involved, defendants argue § 2320(g) immunizes their conduct from prosecution. The government responds that affixing a counterfeit mark to a genuine good makes the good counterfeit. That being so, the government argues that it alleged in the indictment and produced to defendants all required information.

         At its core, defendants' motion to dismiss the trademark counts begs the legal question: Must one necessarily traffic in a non-genuine good to traffic in “goods” bearing a “counterfeit mark”? The answer, this court finds, is no.

         To interpret § 2320 to criminalize trafficking in only non-genuine goods would require this court to ignore Congress's chosen language. In 21 of the 22 instances “good” or “goods” appear throughout § 2320-subsection (a)(1) included-Congress made no distinction between genuine and non-genuine goods. It chose simply to speak generally of “goods.” This lack of specificity appears intentional. Only once, in § 2320(g), did Congress carve out an exception; there, it specified that the statute is not directed at “genuine goods” repackaged so as “not . . . to deceive or confuse.” Read in its entirety, § 2320's language convinces this court of two things. First, had Congress intended to limit criminal liability to trafficking in specifically non-genuine goods, it knew but never used the language appropriate to achieve that aim. Second, by expressly excluding from the general term “goods” only “genuine goods” repackaged so as “not . . . to deceive or confuse, ” Congress kept open the possibility that even genuine goods trafficked in a deceptive or confusing manner could violate the statute. No. doubt, that scenario presents a rare and more-difficult-to-prove case, as it requires evidence that the purchasing public is likely to be deceived or confused by receiving a trademark holder's genuine product bearing a mark substantially similar to the trademark holder's registered mark. Still, Congress's chosen language supports such a case's prosecution.

         To summarize, § 2320 criminalizes trafficking in “counterfeit goods.” But a good need not necessarily be non-genuine to be a “counterfeit good.” To be a “counterfeit good” requires only that the combination of a particular good and mark result in a product likely to leave consumers deceived, confused, or mistaken as to the good's actual origin or quality.[1]

         What this all means for defendants' motion to dismiss the trademark counts is plain. The government's Second Superseding Indictment need not allege goods of any particular genuine or non-genuine character. The indictment need not allege all four of § 2320(f)(1)(A)'s components defining a “counterfeit mark.” Pleading a legally sufficient violation of § 2320(a)(1) simply requires allegations tracking the statute's language that defendants trafficked in “goods” and “knowingly use[d] a counterfeit mark on or in connection with such goods.”[2] As such, use of the general descriptor “goods” and “counterfeit mark” suffices.[3] Having reviewed the indictment's allegations, the court concludes that Counts 1-22 set forth the elements of the offenses intended to be charged and with sufficient added factual detail to satisfy the Fifth and Sixth Amendment concerns that the grand jury “only return an indictment when it finds probable cause to support all the necessary elements of the crime” and that, once returned, the indictment “inform[] the defendant of the nature and cause of the accusation.”[4]

         Understanding that one need not necessarily traffic in non-genuine goods to violate § 2320(a)(1), it follows that the government need not, as argued by defendants, produce evidence of non-genuine goods. The government's discovery obligations, moreover, only require that the government not withhold discoverable evidence in its possession. The withholding of such evidence, however, is not what defendants argue. What defendants argue, rather, is that the government's produced discovery shows a lack of evidence they believe necessary to support a conviction. That argument must be resolved by the jury at trial, not pretrial by this court. Accordingly, defendants' motion to dismiss trademark counts is denied.

         The court now considers defendants' other motion to dismiss, Doc. 174. Counts 28-42 charge that defendants devised a scheme to defraud the U.S. Postal Service by placing shortpaid parcels in the mail, in violation of 18 U.S.C. § 1341. Defendants argue the court should dismiss these mail-fraud charges as a sanction. Defendants' argument begins from the “now settled” position, originating from McNally v. United States, 483 U.S. 350 (1987), that “by including the phrase ‘obtain money or property'” within § 1341, “Congress intended to limit the reach of mail fraud ‘to the protection of property rights.'”[5]From this, defendants argue that the government must identify an impaired property interest. And the evidence allegedly relied on by the government before the grand jury to substantiate that property interest-statements that defendants' business entities entered into “agreements” with the U.S. Postal Service to use postage evidencing systems-was, according to defendants, requested of but never produced by the government-at least, not in the form of any sort of written agreements. The evidence of “agreements” considered by the grand jury was therefore, in defendants' view, either (1) falsified or (2) true but withheld from defense. Either way, defendants argue the government's conduct justifies dismissing the mail-fraud counts.

         Defendants are correct that the government must identify a property interest.[6] But their position on the government's evidence incorrectly presupposes three things this court declines to accept.

         First, this court declines to accept that the lack of produced written agreements necessarily means the testimony of “agreements” referred to before the grand jury is false. Defendants complain that the grand jury was told about “agreements.” Initially, this court would note that this testimony, at least as set out in defendants' motion, never specified the agreements took a written form. Nonetheless, uncontested representations from the government show that defendants' requests for written agreements or emails that would substantiate such agreements were forward to the U.S. Postal Service. The U.S. Postal Service responded that no such information exists. At a September 25, 2019 pretrial hearing, the government elaborated that, owing to the routine operation of the U.S. Postal Service's email retention policy, such information would have been irretrievably discarded no more than 120 days after its creation. Given that the current indictment alleges mail-fraud occurring between April 2014 and June 2015, it seems that documents created prior to or contemporaneously with these mailings would, absent specific intervention, have been discarded well before the government's initial July 7, 2016 indictment. And defendants make no argument that anything obligated the U.S. Postal Service to take such specific-intervention measures. This in mind, the court lacks a sufficient basis to accept defendants' characterization that the testimony the grand jury received of “agreements” was false. And to the extent defendants argue the government lacked support for the presented testimony of agreements, United States v. Calandra, 414 U.S. 338, 345 (1974), makes clear that “an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.”

         Second, this court declines to accept defendants' implied position that a written agreement is necessary to establish that the U.S. Postal Service had a property interest. Section four of the Restatement (Second) of Contracts explains that “[a] promise may be stated in words either oral or written, or may be inferred wholly or partly from conduct.” Comment “a.” further illustrates that point by describing this implied agreement: “A telephones to his grocer, ‘Send me a ten-pound bag of flour.' The grocer sends it. A has thereby promised to pay the grocer's current price therefor.” Here, defendants directed the U.S. Postal Service to send certain mail items. The U.S. Postal Service delivered those mail items, thereby entitling it to payment from defendants for the price of its services. That value in its rendered mailing services is a property interest. That interest is no less valid because it arises under a non-written agreement.

         Which leads the court to the third presupposition it declines to accept, that the government must prove actual loss to the U.S. Postal Service's property interest. Defendants' frustrations over the lack of any written agreements actually seem to focus on the difficulty they are having trying to independently verify or disprove the government's alleged figures for actual loss to U.S. Postal Service. But “pecuniary loss is not required under § 1341.”[7] As stated in United States v. Kelley, 929 F.2d 582, 585 (10th Cir. 1991), “[t]he gist of . . . mail fraud . . . is devising and executing, or intending to execute, a scheme to defraud, and the ultimate success or failure of the scheme is immaterial. In other words, the government does not have to prove that the [mail-fraud] victim suffered actual pecuniary loss from the scheme.”

         With these things in mind, the court finds no basis to dismiss the mail-fraud charges as a sanction. Generally, “a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors . . . significant[ly] infringe[d] on the grand jury's ability to exercise independent judgment.”[8]On the facts presented concerning the complained-of testimony, this court cannot say that the government knowingly introduced false testimony and, thereby, (1) erred (2) in so serious a manner that this court should doubt the grand jury's decision to indict.[9] The court also finds neither the bad faith nor prejudice required to justify imposing the “extreme” discovery sanction of dismissing the indictment.[10]To the extent the government's failure to produce written agreements amounts to a discovery violation, no facts show that the government withheld such information in bad faith. Any prejudice to defendants from the lack of written agreements, moreover, is minimal. Such written agreements are unnecessary to proving the U.S. Postal Service's property interest. And if necessary to any factual matter, such agreements are necessary only to deciding the legally immaterial matter of actual loss. Defendants' motion to dismiss the mail-fraud counts is therefore denied.

         3. Defendants Raymond and Renata Edwards's Motion To Strike Surplusage (Doc. 175)

         Turning to Doc. 175, defendants argue that the Second Superseding Indictment's paragraph 29 should be struck of the alleged specific figures for average-per-mailing and approximate-aggregate loss. Defendants argue the specific dollar amount figures are not essential mail-fraud elements but are prejudicial. The government responds that, while not essential to proving a scheme to defraud, the specific figures are nonetheless relevant to showing the breadth of defendant's scheme and their motive for the scheme.

         Federal Rule of Criminal Procedure 7(d) authorizes a court to exercise its discretion to strike from an indictment “surplusage, ” including “allegations not relevant to the charge at issue and inflammatory and prejudicial to the defendant.”[11] Here, the court finds that the specific figures are relevant to the charged mail-fraud scheme and not overly prejudicial. To be clear, the specific figures are irrelevant in the sense that the government does not have to prove actual pecuniary loss from the alleged mail-fraud scheme.[12] But still, the government does have to prove a scheme to defraud.[13] And the specific figures are relevant to and probative of defendants' motive to commit the scheme.[14] The court further finds that any prejudice resulting from including the figures is minimal and may be tempered by appropriate instruction upon defendants request.[15] Defendant's motion to strike paragraph 29's specific figures is therefore denied.

         4. Government's Motion To Strike Asset $3, 467.00 From Second Superseding Indictment (Doc. 167)

         In Doc. 167, the government moves the court to strike from the Second Superseding Indictment's Forfeiture Allegation I the asset described as “$3, 467.00 in U.S. currency from 14117 Parkhill Lane, Overland Park, KS.” Defendants present no objection to this request. Accordingly, the court grants the government's motion to strike asset.

         5. Joint Motion Of Defendants Raymond and Renata Edwards For Reconsideration Of Motion To Suppress Electronic Information Obtained In Violation Of Fourth Amendment (Doc. 177)

         In Doc. 177, defendants ask this court to reconsider its earlier ruling denying their March 26, 2019 Motion In Limine To Exclude Reference To Various Forms of Electronic Information Obtained in Violation Of Fourth Amendment (Doc. 117).

         Generally, reconsideration is appropriate only “when the court has misapprehended the facts, a party's position, or the law. Specific situations where circumstances may warrant reconsideration include: ‘(1) an intervening change in the controlling law,' (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.”[16] However, a motion to reconsider “should not be used to . . . advance arguments that could have been raised earlier.”[17]

         Here, defendants have advanced no argument that reconsideration is necessary based on an intervening change in the controlling law or a need to correct clear error or prevent manifest injustice. Defendants do not argue the court misapprehended the facts, their original position, or the controlling law. Defendants do argue, rather, that evidence previously unavailable to them further supports arguments raised in their original untimely (and mislabeled) motion to suppress. But alleging the existence of new supporting evidence-even supporting evidence recently discovered-is not the same as alleging new evidence that supports a previously unavailable legal argument. Stated otherwise, when this court refused to consider the suppression issues identified in Doc. 117, it did so by finding that defendants had provided nothing rising to the level of good cause to excuse their tardiness in challenging the government's search warrants some 21 months after the court's June 20, 2017 deadline. Claiming now that freshly discovered evidence-using the words of defendants' motion-“provides additional insight”[18] supporting those previously untimely suppression arguments still does nothing to explain defendants' original delinquency. The court finds that now, just as when defendants first presented these suppression issues, the essential information necessary for defendants to frame these legal arguments was available to defendants but never used prior to the original deadline. As such, the court still finds no good cause to consider defendants' arguments. Defendants' motion to reconsider is denied.

         6. Defendants' Motion In Limine To Exclude All Evidence Collected, Generated Or Having Any Connection To Deceased Witness (Doc. 116)

         The parties have filed various motions in this case concerning the admissibility of evidence in light of the cancer-related death of the case's lead investigator, FBI Special Agent Melissa Morrow. In Doc. 116, defendants initially move to exclude “any evidence collected, generated or having any connection to Ms. Morrow” on the bases that admitting such evidence would violate defendants' constitutional confrontation, compulsory process, and due process rights.[19] For the following reasons, defendants' motion is denied without prejudice in part and denied in part.

         Defendants first argue that admitting any evidence collected, generated, or having any connection with Special Agent Morrow will violate their Sixth Amendment right to “be confronted with the witnesses against [them].”[20] Consistent with the Confrontation Clause, “out-of-court testimonial statements may be admitted against a defendant only if . . . the declarant is now unavailable and the defendant had a prior opportunity to cross-examine the declarant.”[21] Special Agent Morrow is unavailable for trial. Defendants had no prior opportunity to cross-examine Special Agent Morrow. And statements taken or created by Special Agent Morrow in aid of this case's investigation qualify as “testimonial.”[22] “A defendant's confrontation rights are implicated by the admission of testimonial statements against the defendant, however, only when they are admitted to establish the truth of the matter asserted in the statement.”[23] Apart from the specific undercover recordings identified by the Government's Motion in Limine (Doc. 93), which the court will take up shortly, this court simply is not positioned to determine pretrial whether broadly “any evidence collected, generated or having any connection to Ms. Morrow” will be offered by the government and specifically to prove the truth of the matter asserted.[24] Accordingly, defendants' motion is denied without prejudice. Recognizing the importance of defendants' confrontation rights, however, this court orders that the government not introduce any out-of-court statements by Special Agent Morrow until it first identifies the evidence at a bench conference with defense counsel present. At that time, the court will take up any objection to the evidence and rule on its admissibility.

         Defendants next argue that, by doing nothing to convey to defense Special Agent Morrow's terminal health condition, the government deprived them of an opportunity to preserve her testimony and, thereby, their Fifth and Sixth Amendment rights “to present a defense by compelling the attendance, and presenting the testimony, of [their] own witnesses.”[25] Where defendants have claimed that government action has deprived them of a witness, courts, following United States v. Valenzuela-Vernal, 458 U.S. 858 (1982) and Arizona v. Youngblood, 488 U.S. 51 (1988), have required defendants to show: (1) the government acted in bad faith by allowing the witness to become unavailable and (2) the witness' unavailability prejudiced defendant by eliminating testimonial evidence that would have been both material and favorable to the defense.[26] Defendants fail to make the initial showing of bad faith.

         “‘The presence or absence of bad faith . . . must necessarily turn on the [government's] knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.' Negligence is not enough to establish bad faith. There must be (1) willful conduct motivated by a desire to obtain a tactical advantage over the defense or (2) a departure from the government's normal . . . procedures.”[27]Here, no evidence suggests that the government should have viewed its own lead agent as an exculpatory witness for the defense. Indeed, any claim the government should have viewed Special Agent Morrow as having exculpatory testimony to offer defense is difficult to reconcile with defendants' own sweeping efforts to exclude, under the Confrontation Clause, “any evidence collected, generated or having any connection to Ms. Morrow.”[28] No. evidence, moreover, shows that pursuit of a tactical advantage motivated the government not to disclose Special Agent Morrow's cancer diagnosis. Rather, from representations made by the government at the court's April 5, 2019 pretrial hearing, it seems that, if anything other than ordinary negligence motivated the government's nondisclosure, it was optimism for Special Agent Morrow's prognosis-a faith this court will not label “bad faith.” Even more, it is difficult to imagine what tactical advantage the government could have gained by failing to disclose Special Agent Morrow's cancer diagnosis. Had she lived, the nondisclosure would neither advantage nor disadvantage either party. And now, no doubt, Special Agent Morrow's death makes presenting the government's case against defendants more difficult. The government now may not introduce any of Special Agent Morrow's out-of-court statements to prove the truth of the matter asserted.[29] Finally, defense has not identified any normal procedures that the government's nondisclosure ignored. Under these circumstances, the court finds the government did not act in bad faith. Accordingly, this court need not assess the value to the defense of Special Agent Morrow's hypothetical testimony.[30]

         7. Government's Motion In Limine (Doc. 93)

         The court now turns to the government's motion in limine seeking a pretrial ruling on the admissibility of two undercover recordings, Doc. 93. Both recordings contain statements from two undercover special agents, including Special Agent Morrow. The first recording also contains statements from an employee of defendants' business. The second recording also contains statements from both defendants. Defendants take issue with the admissibility of statements from Special Agent Morrow, their business's employee, and their own statements.

         Defendants challenge the admissibility of Special Agent Morrow's statements on the already-mentioned basis that their admission would violate defendants' constitutional confrontation rights. As recently discussed, “[a] defendant's confrontation rights are implicated by the admission of testimonial statements . . . only when they are admitted to establish the truth of the matter asserted in the statement.”[31] Here, the government asserts that it is offering Special Agent Morrow's statements for no purpose other than “to provide context for the defendants' statements.”[32] The government argues that presenting defendants' statements in isolation, without Special Agent Morrow's statements for context, risks confusing the jury. Further, the government notes that, due to Special Agent Morrow's undercover role, many of her statements are in fact deliberately untrue and, as such, would not be offered for their truth. The court finds the government's arguments persuasive. As Special Agent Morrow's statements are being offered for a purpose other than the truth of the matter asserted, defendants' confrontation rights are not implicated.[33]

         Defendants next challenge the admissibility of statements by their business's employee. Defendants argue that, while the employee's statements may qualify as admissible against the defendants' business under Rule 801(d)(2)(D) of the Federal Rules of Evidence, the employee's statements are inadmissible against the defendants indicted only in their individual capacity. Defendants provide no authority for so limiting the rule excluding from the definition of hearsay statements made by an opposing “party's agent or employee on a matter within the scope of that relationship and while it existed.”[34] The Tenth Circuit, in contrast, in United States v. Young, 736 F.2d 565 (10th Cir. 1983), states that when, at a criminal trial, a corporate employee's “statement is offered against another corporate employee, instead of the corporation, proper admission under Rule 801(d)(2)(D) will necessarily depend on the nature of the relationship between the declarant and the defendant. . . . [I]f the factors which normally make up an agency relationship are present, the evidence should not be excluded simply because the statement is offered against a corporate officer, rather than the corporation.”[35] Here, proper admission of the employee's statements-and thus the first undercover recording-will depend on the government laying the proper foundation for the agency relationship between the employee and the defendants. As to the first undercover recording, therefore, the government's motion to rule such evidence admissible in advance of trial is denied without prejudice. The court will reconsider admission of the evidence at trial should the government lay the proper foundation.

         Defendants' remaining challenge concerns the admissibility of their own statements on the second undercover recording. Defendants argue that, while each defendants' statements may be admissible by the government as statements made by an opposing party offered against the respective defendant-speaker, the statements are inadmissible against the defendant non-speaker without proof the statements meet Rule 801(d)(2)(E)'s hearsay exception for statements “made by a party's coconspirator during and in furtherance of the conspiracy.”[36] But the statements' admissibility or inadmissibility on one alleged basis does not change their admissibility on a separate, independent basis. In other words, whether or not the statements qualify under the coconspirator exception to the hearsay rule, the statements are nonetheless independently admissible under Rule 801(d)(2)(A)'s party admission exception.[37] And to the extent defendants suggest that admission of the statement might raise Confrontation Clause issues if the defendants do not testify, the court disagrees. Under United States v. Clark, 717 F.3d 790 (10th Cir. 2013), the statements-made neither at a hearing, trial, or police interrogation, nor, given the undercover nature of the operation, under circumstances where defendants objectively would have foreseen that the statements would be used in the investigation or prosecution- do not qualify as testimonial and thus would “fall outside the protective ambit of the Confrontation Clause and, by extension, Burton[‘s]” “narrow rule” limiting the admission of a non-testifying codefendant's statements.[38] As to the second undercover recording, therefore, the government's motion to rule such evidence admissible in advance of trial is granted.

         8. Defendants' Joint Motion In Limine And Memorandum In Support To Exclude Reference To Agent Morrow's Death (Doc. 112)

         Turning to Doc. 112, defendants seek to exclude any references to the fact and cause of Special Agent Morrow's death, including any reference to “death, cancer, terminal illness or related terms.”[39]Defendants argue that this information is irrelevant (makes no fact of consequence to the action more or less probable) and unduly prejudicial (gives the government an unfair advantage in gaining juror sympathy). Defendants further represent the government can adequately explain Agent Morrow's absence by saying she is “unavailable to testify.”[40]

         The government agrees that Special Agent Morrow's death, terminal illness, cancer, or related terms, are “not relevant to the issues to be decided by the jury in this trial.”[41] The government advises that it will inform its witnesses not to mention these subjects. As such, the government urges the court to deny the motion as moot. The government argues, however, that such testimony should not be excluded at trial if defense counsels' questioning of any witness opens the door to reveal such information.

         The court, like the government, agrees with defendants. Evidence explaining the cause and circumstances of Special Agent Morrow's unavailability for trial is irrelevant and unduly prejudicial. Though the government intends to advise its witnesses to avoid such subjects, such precautions do not change the evidence's generally inadmissible character. Accordingly, defendants' motion is granted. The court cautions, however, that it may reconsider its ruling should defendants introduce evidence at trial that alters the relevance-prejudice analysis for evidence explaining Special Agent Morrow's unavailability.

         9. Defendants' Motion In Limine Regarding The Use Of The Term Counterfeit (Doc. 115)

         In motion Doc. 115, defendants seek to exclude (1) “all references to counterfeit goods under Fed.R.Evid. 403” and (2) “use of the term ‘counterfeit mark.'”[42] In support of the first request, defendants argue that “counterfeit” is a technical term defined by statute that requires factfinding by the jury and, as such, it should not be confused at trial with the layperson use of the word “counterfeit, ” in relation to goods, to mean “imitation” or “fake.” Defendants argue use of the word “counterfeit” is “not necessary to describe a good that is not authentic” but does, when so used, risk confusing the jury.[43]Witnesses, according to defendants, should therefore “be precluded from describing goods that are not authentic or genuine as counterfeit.”[44] In support of their second request, defendants argue that ...


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