Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02372-PSF-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2372-PSF-PAC JACK BARRECA Plaintiff, v. SOUTH BEACH BEVERAGE CO., INC.; LOTTE U.S.A.; and 7-ELEVEN, INC. Defendants.

DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE OR LIMIT DEFENDANTS' MENTION AT TRIAL OF PLAINTIFF'S PAST CRIMINAL RECORD

Defendants South Beach Beverage Company, Inc., 7-Eleven, Inc. and Lotte USA, Inc., by and through their attorneys, hereby respond to Plaintiff's Motion in Limine to Exclude or Limit Defendants' Mention at Trial of Plaintiff's Past Criminal Record. I. INTRODUCTION

Plaintiff's Motion in Limine seeks to prevent the jury from hearing relevant evidence regarding Plaintiff's conviction for attempted theft, a felony. Plaintiff, however, analyzes and relies on the wrong subsection of Federal Rule of Evidence 609: FRE 609(a)(1)). Under FRE 609(2), the section that is actually applicable here, the Court is required to admit evidence of Plaintiff's conviction, and does not engage in the balancing test under FRE 403 that is incorporated into FRE 609(1).

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Furthermore, even if the Court were to find that FRE 609(1) is applicable here, the balancing test that the Court must then engage in weighs strongly in favor of the unfettered admission of the evidence surrounding Plaintiff's criminal conviction. Exclusion of evidence under FRE 403 is an extraordinary remedy, and the facts relating to Plaintiff's felony conviction do not warrant such a drastic measure. Rather, Plaintiff's credibility will be central to the trial of this matter, and his prior conviction bears directly on the issue of his credibility. Given the high threshold for the exclusion of evidence, the significant probative value of the proffered evidence, and the lack of any true prejudice to Plaintiff if the evidence is admitted, it is clear that Plaintiff's Motion must be denied in its entirety. II. A. LAW AND ARGUMENT

The Governing Rules of Evidence.

Federal Rule of Evidence 609 governs the use of prior criminal convictions for the purpose of impeaching a witness. That Rule provides, in pertinent part: For the purpose of attacking the credibility of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. FRE 609(a). Thus, in a civil case, the Rule contemplates different analyses for different types of convictions. First, for conviction for a crime that does not involve dishonesty or a false

statement, a trial court employs the balancing test of Rule 403. Second, for a conviction of a

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crime that does involve dishonesty or a false statement, the balancing test of Rule 403 does not come into play. It is also important to note that, even if the conviction at issue does not involve dishonesty or false statement, the test employed under Rule 403 is whether the probative value of the proffered evidence "is substantially outweighed by the danger of unfair prejudice[.]" FRE 403 (emphasis added). On the issue of unfair prejudice, the Tenth Circuit has held that "[u]nfair prejudice in the context of Rule 403 means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Elliot v. Turner Construction Co., 381 F3d 995, 1004 (10th Cir. 2004). "Evidence is not unfairly prejudicial simply because it is damaging to an opponent's case." United States v. Martinez, 938 F.2d 1078, 1082 (10th Cir. 1991)(citation omitted). Furthermore, even if unfair prejudice is found, "it must substantially outweigh the probative value of the evidence in order to be excluded under Rule 403." United States v. Tan, 254 F.3d 1204, 1212 (10th Cir. 2001)(emphasis in original). Finally, and perhaps most importantly, "exclusion of evidence under Rule 403 that is otherwise admissible under the other rules 'is an extraordinary remedy and should be used

sparingly .'" Id. at 1211 (emphasis added)(citation omitted).
Using the appropriate analysis, evidence regarding Plaintiff's prior felony conviction is admissible for the purpose of impeaching his testimony at trial. B. Evidence Relating to Plaintiff's Felony Conviction Must be Admitted Under FRE 609(a)(2).

Plaintiff's entire Motion is premised on the assumption that FRE 609(a)(1), and its accompanying invocation of FRE 403, is applicable in this matter. Plaintiff is incorrect in this 3

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regard. FRE 609(a)(2) is applicable to convictions for crimes that involve dishonesty or false statement, which is the case here. As a result, evidence relating to the conviction is

automatically admissible, regardless of any alleged unfair prejudice. As is clear from the documents attached as Exhibit A, Plaintiff pled guilty to the crime of attempted theft, which is a felony. Furthermore, the nature of the crime was such that it involved an element of dishonesty. As the Tenth Circuit has noted: By the phrase "dishonesty and false statement," the Conference means crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully. United States v. Mejia-Alarcon, 995 F.2d 982, 989 (10th Cir. 1993)(emphasis added)(citation omitted). Here, the charges brought against Plaintiff, to which he ultimately pled guilty, involve an element of deceit. More specifically, Plaintiff pled guilty to a charge that he "feloniously, unlawfully, and knowingly obtain[ed] or exercise[d] control over a thing of value, to-wit: MONEY, which was the property of KEVIN RILEY with the value of fifteen thousand dollars or more without authorization, or by threat or deception and: (1) with the intent to permanently deprive KEVIN RILEY of the thing of value; and (2) knowingly used, concealed, and abandoned the thing of value in such a manner as to deprive permanently KEVIN RILEY of its use or benefit [.]" Exhibit A at 3 (emphasis added). Because Plaintiff's felony conviction falls within the class of convictions covered by FRE 609(a)(2), evidence relating to that conviction "shall be admitted," without regard to the balancing test found in FRE 403. Consequently, Plaintiff's Motion must be denied in its entirety.

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C.

Evidence Relating to Plaintiff's Felony Conviction is Also Admissible Under FRE 609(a)(1).

Even if the Court were to determine that Plaintiff's felony conviction somehow falls outside the scope of FRE 609(a)(2), such evidence is still admissible under FRE 609(a)(1). As noted above, that Rule requires the Court to employ the balancing test found in FRE 403 to determine if the probative value of the proffered evidence is substantially outweighed by the alleged danger of unfair prejudice in admitting the evidence. Another District Court in the Tenth Circuit has identified several factors to guide a court in engaging in the FRE 403 balancing test, which include the importance of the witness's testimony and the centrality of the credibility issue. See United States v Powell, 165 F.Supp.2d 1230, 1235 (D. Kan. 2001). In this case, these factors weigh strongly in favor of admission of the evidence regarding Plaintiff's felony conviction. First, the importance of Plaintiff's testimony cannot be overstated, particularly on the issue of his claimed damages. Indeed, Plaintiff's entire damages theory rests on his own

testimony regarding the type of business arrangement he would have allegedly negotiated and obtained at the time of the hypothetical negotiation. See, e.g., Final Pretrial Order at 6 ("Mr. Barreca will testify that, under the circumstances of this case, a reasonable person in his shoes in August, 2003 . . . would have licensed his patented technology to the Defendants in exchange for an upfront fee sufficient to cover his to-date expenses, currently estimated at approximately $1,000,000 and a running royalty that would be equal to about a 50/50 'sharing' of the profits from gum sales."). Second, the credibility of Plaintiff's testimony is central to this case. As noted above, Plaintiff plans to rest his entire damages theory on his own construct of the hypothetical 5

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negotiation between the parties.

Plaintiff, however, has come forward with no evidence

regarding what reasonable parties in Defendants' position would have agreed to at the time of the hypothetical negotiation. Rather, he has set forth only his own self-serving testimony regarding what type of arrangement he would have asked for as part of the negotiation. In essence, Plaintiff will be asking the jury to believe his version of events and award him damages based on what he claims he would have received. Consequently, Plaintiff's credibility is at the very core of this case. In stark contrast to the probative value of the evidence regarding Plaintiff's felony conviction and its bearing on his credibility is the lack of any unfair prejudice to Plaintiff if the evidence is admitted. As noted above, unfair prejudice means that there would be some

tendency for the jury to decide the case on an improper basis. Plaintiff, however, has not articulated any alleged unfair prejudice, other than his generalized claim that admission of the evidence "would distract the jury from the issues[.]" Plaintiff's Motion at 4. Plaintiff's claim in this regard does not, in any way, substantially outweigh the probative value of the evidence as it relates to Plaintiff's credibility, and it certainly does not rise to a level warranting the "extraordinary remedy" of exclusion of evidence under Rule 403. Furthermore, Plaintiff will have every opportunity at trial to explain the circumstances of his conviction to the jury. Consequently, Plaintiff's Motion must be denied. III. CONCLUSION

Based on the foregoing, Defendants respectfully request that Plaintiff's Motion be denied.

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Dated: July 26, 2005

s/ Adam J. Brody Adam J. Brody Kevin Abraham Rynbrandt Varnum, Riddering, Schmidt & Howlett LLP P.O. Box 352 Grand Rapids, MI 49501-0352 Tel. (616) 336-6000 Fax: (616) 336-7000 Emails: [email protected] [email protected] and Michael L. Hutchinson, No. 20853 Treece, Alfrey, Musat & Bosworth, P.C. 999 18th Street, Suite 1600 Denver, CO 80202 Tel. (303) 292-2700 Fax: (303) 295-0414 Email: [email protected] for Defendants South Beach Beverage Company, Inc., 7-Eleven, Inc., and Lotte U.S.A., Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 26th day of July, 2005, I presented the foregoing to the Clerk of Court for filing and uploading to the CM/ECF system which will send notification of such filing to the email addresses of the following persons: Joseph E. Kovarik, Esq. ([email protected]) Robert Brunelli, Esq. ([email protected]) Sheridan Ross, P.C. 1560 Broadway, Suite 1200 Denver, CO 80202-5141

s/Adam J. Brody

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