Free Response to Motion - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Rachel Love Halvorson, Bar #019881 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone No.: (602) 263-1700; Facsimile No.: (602) 263-1784 E-Mail: [email protected]; [email protected] Attorneys for Defendants, Corrections Corporation of America and Stolc IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Cheryl Allred Plaintiff, v. Corrections Corporation of America, Inc.; Bruno Stolc Defendants. NO. CIV 03-2343 PHX-DGC DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION IN LIMINE NO. 3 TO EXCLUDE EVIDENCE OF CRIMINAL PROCEEDINGS AND CONVICTIONS

Defendants Corrections Corporation of America ("CCA") and Warden Stolc respond in opposition to Plaintiff's Motion in Limine No. 3, which seeks to exclude evidence of Plaintiff's criminal proceedings and convictions. Despite Plaintiff's request otherwise, this case cannot be tried in a vacuum, and evidence of the underlying criminal proceedings is crucial to the defense of this case. I. Evidence Of Criminal Proceedings Plaintiff has been convicted of several felonies associated with her arrest less than four months before she was allegedly raped. The felony convictions arose from Plaintiff's false identification and check forging schemes which intertwined with her

methamphetamine abuse and manufacture. Plaintiff was sent to FMC-Carswell to be evaluated for competency to stand trial and to address her claims she suffered from MS or fibromyalgia. During the pendency of Plaintiff's criminal proceedings, Plaintiff embarked upon a campaign to convince the United States District Court that Plaintiff should be released on house arrest, lest she decompose in a prison or halfway house because of

Case 2:03-cv-02343-DGC

Document 160

Filed 01/11/2006

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medical conditions and emotional distress stemming from the alleged rape.1 Later, she was sent to a halfway house where UA's came back positive for illegal drugs and she was kicked out of the halfway house after she threatened suicide. Four months after finding herself arrested, Plaintiff alleges she was raped. There are no witnesses to the rape nor is there any forensic physical evidence to support it. The only evidence to prove the rape occurred is Plaintiff's word, but she has told at least twelve different stories regarding the rape. Defendants' defense is that the rape did not occur. Rather, the allegations were fabricated to get out of prison and for secondary gain. Evidence of Plaintiff's convictions and criminal proceedings is admissible under F ED.R.E VID . 404(b), not to prove character in conformity therewith, but rather as evidence of motive, opportunity, intent, preparation and plan of Plaintiff's campaign to convince the court to release her on house arrest during the pendency of her criminal proceedings, rather than be incarcerated or housed in a halfway house. The chronology of Plaintiff's underlying criminal proceedings are also relevant under F ED.R.E VID . 401 and 402 because it provides the jury for a framework to understand why Plaintiff was housed at CCA. Otherwise, Defendants will be prejudiced where the jury is led to believe Plaintiff was an innocent person wrongfully incarcerated, with no criminal history or unfettered past. II. Evidence of Criminal Convictions Plaintiff was convicted in the United States District Court, District of New M exico of: (1) Conspiracy to Commit Fraud in Connection With Identification Documents; and (2) Possession With Intent to Use Unlawfully and Transfer Unlawfully Five or More False Identification Documents and Other Identification Documents That Were Not Issued Lawfully for Her Own Use. Before that, Plaintiff was also convicted in District Court of Conspiracy to Violate 18 U.S.C. § 472. Plaintiff was also convicted of: (1) Possession of

See Deposition of Kristy Dromgoole at 39-40; 54-55; 58-59, attached hereto as Exhibit 1; Letter from Queta VanWyngarden to District Court dated 3/14/02, Letter from Queta VanWyngarden to Judge Parker dated 8/29/02, Letter from Dr. Flores to Judge Parker dated 9/4/02 attached hereto as Exhibit 2. Document 160 2 Filed 01/11/2006 Page 2 of 4

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a Controlled Substance (Methamphetamine); and (2) Conspiracy to Commit Possession of a Controlled Substance (Methamphetamine) in the Bernanillo, New M exico Superior Court. These crimes are all felonies. First, Plaintiff's felony convictions are admissible to impeach credibility. F ED.

R.E VID . 609(a)(2) provides that "evidence that a witness has been convicted of a crime shall be admitted [for the purpose of attacking the credibility of a witness] if it involved dishonesty or false statement, regardless of the punishment." Plaintiff's fraud convictions constitute crimes of dishonesty. The remaining felonies are admissible under Rule

609(a)(1) to impeach Plaintiff's credibility where the only issue is whether Plaintiff's story is true. Second, Plaintiff's criminal conviction are further admissible under F ED.R.E VID . 404(b). This evidence of Plaintiff's criminal convictions, like the surrounding criminal proceedings, are not sought to be admitted to prove conduct in conformity. Rather, this evidence is admissible to prove Plaintiff's motive, intent and plan to convince the criminal court that she was not a good candidate for prison and would decompose both physically and mentally if incarcerated. Accordingly, Plaintiff's convictions and criminal proceedings are relevant to proving motive, opportunity, intent, preparation and plan to fabricate the rape allegations in order to convince the criminal court to release Plaintiff from prison and place her instead on house arrest. Finally, the convictions and evidence elicited from the criminal proceedings are relevant in defense of Plaintiff's damages claims. For the foregoing reasons, Defendants request this Court deny Plaintiff's Motion in Limine No. 3 to exclude conviction and criminal proceedings evidence. DATED this 11th day of January, 2006. J ONES, S KELTON & H OCHULI, P.L.C. By s/ Rachel Halvorson Daniel P. Struck Rachel Love Halvorson 2901 North Central Avenue Suite 800 Document 160 Filed 01/11/2006 3 Page 3 of 4

Case 2:03-cv-02343-DGC

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Phoenix, Arizona 85012 Attorneys for Defendants Corrections Correction of America and Stolc Foregoing filed ELECTRONICALLY this 11 th day of January, 2006 with the United States District Court, District of Arizona. COPY of the foregoing mailed even date to: Leon Schydlower, Esq L AW O FFICE O F L EON S CHYDLOWER 210 North Campbell Street El Paso, Texas 79901 and Brett Duke, Esq. L AW O FFICES OF B RETT D UKE 4157 Rio Bravo El Paso, Texas 79902 Attorneys for Plaintiff, Cheryl Allred

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