Free Motion in Limine - District Court of Colorado - Colorado

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

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Filed 07/06/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 1:03-cv-02372-PSF-PAC JACK BARRECA Plaintiff, v. SOUTH BEACH BEVERAGE CO., INC.; LOTTE U.S.A; and 7-ELEVEN, INC. Defendant. ________________________________________________________________________ PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE OR LIMIT DEFENDANTS' MENTION AT TRIAL OF PLAINTIFF'S PAST CRIMINAL RECORD ________________________________________________________________________ Plaintiff moves the Court under Fed. R. Evid. 402 and 403 for an Order that limits Defendants and Defendants' witnesses mentioning of any evidence relating to Plaintiff's past criminal record. INTRODUCTION Eight years ago, in 1997, Mr. Barreca plead guilty to a class five felony (one level above the misdemeanor category) for "attempted theft" with respect to an issue relating to "profits" owed to a supplier of aerobic flooring. He was given probation and has paid over $10,000 of restitution from an original total of $22,500. Such conviction has no relevance whatsoever in the present case. Mr. Barreca's prior criminal record is immaterial, irrelevant and inadmissible for any purpose in the instant case. If the conviction was made known to the jury, it would be improper, unduly prejudicial and, potentially, error. Moreover, the Court sustaining an objection and/or instructing the jury

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to disregard the conviction could not erase the prejudice and harm to Barreca. At best, there would be only slight probative value to the conviction in assessing Plaintiff's character. Any evidence related to the single eight year old prior criminal conviction would distract the jury's attention detrimentally from the unrelated issue before it concerning the liability of the three Defendants for willfully infringing the `839 patent. The Court should grant Plaintiff's Motion in Limine to preclude any mention of Barreca's criminal record. APPLICABLE LAW Federal Rule of Evidence 609(a) provides: "General Rule. For the purpose of attacking the credibility of a witness, (1) evidence that the witness 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 this evidence outweighs its prejudicial effect to the accused, or (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." (emphasis added) Rule 609 does not preclude a trial court from employing the balancing test of Rule 403 when faced with conviction evidence used for impeachment in civil cases. (See e.g. Zola v. Kelley, 826 A.2d 589 (N.H. 2003). "Rule 403 is a rule of exclusion that cuts across the rules of evidence, Czajka v. Hickman, 703 F.2d 317, 319 (8th Cir. 1983) (quotation omitted), providing for judicial discretion in excluding prejudicial evidence.") The Tenth Circuit has held that the Rule 403 balancing is mandatory. See United States v. Turner, 285 F.3d 909 (10th Cir. 2002). Moreover, the Tenth Circuit has held that a District Court did not abuse its discretion in disallowing impeachment by use of a prior conviction for shoplifting. United States v. Gottlieb, 140 F.3d 865 (10th Cir. 1998). The

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Advisory Committee Notes with regard to Rule 609(a), acknowledges that "[T]he amendment [adding the reference to Rule 403] provides the same protection against unfair prejudice arising from prior convictions used for impeachment purposes as the rules provide for other evidence. The amendment finds support in decided cases. See, e.g., Petty v. Ideco, 761 F.2d 1146 (5th Cir. 1985); Czaka v. Hickman, 703 F.2d 317 (8th Cir. 1983)." ARGUMENT Despite the evidentiary rule permitting the admission of prior criminal convictions to attack a witness' credibility, such evidence is not always admissible. As with all evidentiary matters, the Court possesses the authority to exclude such evidence where its prejudicial effect outweighs its probative value. In the present case, the Court should properly exercise its discretion and preclude any proffered evidence of Barreca's eight year old criminal conviction. Evidence that a litigant is a convicted felon tends to shift a jury's focus from the worthiness of the litigant's position to the moral worth of the litigant himself. See Shows v. M/V Red Eagle, 695 F.2d 114, 118 (CA5 1983)(prior felony impeachment of plaintiff alleging injuries because of employer's negligence "presented the risk that a jury would not be fair to Shows' claim, not because it did not believe him, but because as a convict he was not deserving of their justice"); see also Foster, Rule 609(a) in the Civil Context: A Recommendation for Reform, 57 Ford. L. Rev. 1 (1988); Note, Prior Convictions Offered for Impeachment in Civil Trials: The Interaction of Federal Rules of Evidence 609(a) and 403, 54 Ford. L. Rev. 1063, 1067 (1986). The introduction of such evidence

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in this case would distract the jury from the issues and, therefore, the probative value of the proffered evidence will be out-weighed by its prejudicial impact on the jury. While Plaintiff respectfully contends that this Court possesses the authority to exclude such evidence where its prejudicial effect outweighs its probative value (see State v. Morgan, 70 Conn. App. 255, 271­72, 797 A.2d 616, cert. denied, 261Conn. 919, 806 A.2d 1056 (2002)), in the event this Court believes to the contrary, Plaintiff requests that the Court limit the use of Plaintiff's prior criminal record to the mere admission into evidence of the written records thereof and a brief instruction from the Court to the jury that Mr. Barreca's eight year old prior plea bargain to accept a guilty plea for a nonviolent offense, should not be viewed as affecting Mr. Barreca's right to enforce his patent rights against the Defendants. Defendants should not be able to unfairly prejudice the jury against Mr. Barreca by additionally mentioning his past criminal record during cross examination. Such record simply has nothing to do with whether Defendants are infringing the '839 patent. CONCLUSION For the foregoing reasons, Plaintiff requests that the Court grant the present Motion and provide an appropriate preclusion and/or limitation on the use of Plaintiff's prior criminal record during the course of this trial.

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DATED: July 6, 2005

Respectfully submitted,

/s Joseph E. Kovarik Joseph E. Kovarik, Esq. ([email protected]) Robert R. Brunelli, Esq. ([email protected]) Sheridan Ross P.C. 1560 Broadway, Suite 1200 Denver, Colorado 80202 (303) 863-9700

ATTORNEYS FOR PLAINTIFF JACK BARRECA

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CERTIFICATE OF SERVICE

I hereby certify that on July 6, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

/s Brenda A. Carpenter Brenda A. Carpenter Assistant to Joseph E. Kovarik Attorney for Plaintiff SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, CO 80202-5141 Telephone: 303-863-9700 Facsimile: 303-863-0223 Email: [email protected] [email protected]

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