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United States v. Prokop

United States District Court, D. Nevada

April 11, 2014



MIRANDA M. DU, District Judge.


Defendants have filed two motions in limine (dkt. nos. 297, 302) and the Government has filed two motions in limine (dkt. nos. 316, 317). On April 3, 2014, the Court heard oral argument on the motions ("April 3 Hearing") and issued summary rulings on each motion. (Dkt. no. 356.) The Court will expand on its oral ruling and will address each motion in turn below.

A summary of the general allegations in the Indictment are outlined in the Court's April 8, 2014, order denying Defendants' Motion to Dismiss. (Dkt. no. 357.)


A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a particular area. See United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). It is a preliminary motion that is entirely within the discretion of the Court. See Luce v. United States, 469 U.S. 38, 41-42 (1984). To exclude evidence on a motion in limine, "the evidence must be inadmissible on all potential grounds." See, e.g., Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004). "Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." Hawthorne Partners v. AT&T Tech., Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). This is because although rulings on motions in limine may save "time, costs, effort and preparation, a court is almost always better situated during the actual trial to assess the value and utility of evidence." Wilkins v. Kmart Corp., 487 F.Supp.2d 1216, 1219 (D. Kan. 2007).

In limine rulings are provisional. Such "rulings are not binding on the trial judge [who] may always change his mind during the course of a trial." Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to change, especially if the evidence unfolds in an unanticipated manner). "Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded." Ind. Ins. Co., 326 F.Supp.2d at 846.


A. Defendants' Motion in Limine No. 1 (dkt. no. 297)

The Government filed a number of notices and supplements regarding its intent to introduce summary evidence and expert testimony at trial. (Dkt. nos. 289, 291, 294.) On March 4, 2014, Defendant Coolidge filed an opposition to the Government's use of such evidence at trial. Defendants Rodrigues and Prokop have both joined in Coolidge's motion (dkt. nos. 309, 313) and joinder was granted at the April 3 Hearing.

1. Summary Exhibits

On February 19, 2014, the government filed a notice of intent to use summaries of voluminous evidence pursuant to Federal Rule of Evidence 1006 and summary charts, testimony, and demonstratives pursuant to Rule 611(a). (Dkt. no. 289.) Defendants oppose the use of any summary evidence related to the government's expert witness, Internal Revenue Service ("IRS") agent Evelyn Kay Fall. As the Government did not attach the summary exhibits it intended to use to its notice, the Court directed the Government to deliver copies of its proposed exhibits to both the Court and Defendants. (Dkt. no. 351.) The Government filed drafts of its three proposed summary exhibits on March 30, 2014. (Dkt. no. 353.)

The Governments proposed summary exhibit 1 includes a summary of items claimed by taxpayers using the Tax Break 2000 product that Ms. Fall will testify should be disallowed under the Internal Revenue Code ("IRC"). (Dkt. no. 353-1.) The Government's proposed summary exhibit 2 provides a summary of the total tax liability based on IRS analysis of the returns of the taxpayers referenced in exhibit 1. (Dkt. no. 353-2.) There does not appear to be a dispute that the underlying evidence summarized in the exhibits is admissible. While the number of taxpayers (14) is relatively small, the Indictment involves multiple tax years. In light of the volume of documents and the documents being tax filings, the Court determines that the summary exhibits will assist the trier of facts. As a result, the Court finds that the Government's proposed summary exhibits 1 and 2 are admissible under Rule 611(a). See United States v. Gardner, 611 F.2d 770, 776 (9th Cir. 1980) ("The use of the chart in court contributed to the clarity of the presentation to the jury, avoided needless consumption of time and was a reasonable method of presenting the evidence."). As noted in the April 3 Hearing, however, the Government is directed to review its labels on the draft exhibits to ensure that (1) the labels are consistent and (2) the labels do not include language implying conclusions about Defendants' intent. The Court also expects the parties to continue to work together in finalizing the summary exhibits prior to trial.

The Government's proposed exhibit 3 lists what the Government asserts to be the ultimate total tax loss associated with the sale of the Tax Break 2000 product by NADN. (Dkt. no. 353-3.) Given the parties' disputes regarding the evidence that these summaries are based upon, the Court reserves its decision on exhibit 3 until it has the opportunity to consider the evidence admitted at trial.

2. Expert Testimony

Defendants also challenge the proposed scope of Ms. Fall's testimony. Defendants' briefs do not challenge Ms. Fall's qualifications although at the April 3 hearing Defendant Rodrigues in particular contends that she is not qualified to provide legal opinions on the ultimate issue ...

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