Free Motion in Limine - District Court of Delaware - Delaware

Case 1:07-cr-00103-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff v. STANLEY LUM, Defendant

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Criminal Action No. 07-103-JJF

DEFENDANT'S MOTION IN LIMINE REGARDING AGENT'S NOTES AND REPORT AND NOW comes the defendant, Stanley Lum, by his attorney Edson A. Bostic, Federal Public Defender, and files this Motion In Limine, seeking to preclude testimony regarding the notes and report of ATF Agent Scott C. Curley. 1. 2. Defendant Stanley Lum is charged with gun and drug offenses. The government alleges that defendant made certain inculpatory statements when he

was interviewed by Wilmington Police Officer George Pigford and ATF Agent Scott C. Curley. 3. The prosecutor has informed defense counsel that Officer Pigford will be called to

testify at trial, but that Agency Curley will not be called to testify. 4. In discovery, defense counsel was provided with copies of Agent Curley's interview

notes and interview report. 5. Defense counsel wishes to preclude government questioning which refers to the notes

and report of the absent ATF witness.

Case 1:07-cr-00103-JJF

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6.

The notes and report of the ATF agent are hearsay. See FRE 803(8)(B) (police

reports not within the "public record" hearsay exception). 7. Defense counsel is concerned that the hearsay documents could be made known to

the jurors during questioning under FRE 612, captioned "Writing Used to Refresh Memory." 8. Specifically, defense counsel is concerned that the government may refer to the ATF

notes or reports in an attempt to "refresh" the recollection of the local police officer. 9. Such questioning might lead the jurors to conclude that the absent witness had made

statements consistent with the testimony of the live witness; in this way, the hearsay notes and report would be improperly used to bolster the credibility of the government's witness. 10. The government may not, "under the rubic of refreshing recollecton . . . present

testimony to the jury by indirection which would not otherwise be admissible." United States v. Zackson, 12 F.3d 1178, 1185 (2d Cir. 1993) (cite omitted). WHEREFORE, it is respectfully requested that defendant's motion in limine be granted, and that the government and its witness be precluded from making reference to the notes and report of ATF Agent Curley.

Respectfully submitted,

Dated: July 10, 2008

/s/ Edson A. Bostic Edson A. Bostic, Esquire Federal Public Defender One Customs House 704 King Street, Suite 110 Wilmington, DE 19801 (302) 573-6010 [email protected] Attorney for Stanley Lum 2

Case 1:07-cr-00103-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA, Plaintiff v. STANLEY LUM, Defendant

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Criminal Action No. 07-103-JJF

ORDER OF COURT

AND NOW, this ____ day of July, 2008, upon consideration of defendant's motion in limine, it is hereby ordered that the motion is GRANTED. The government and its witnesses are precluded from making any reference to the notes or report of Special Agent Curley.

BY THE COURT:

HON. JOSEPH J. FARNAN, JR. United States District Court Judge