United States District Court, D. Nevada
ORDER DENYING MOTION IN LIMINE [ECF NO. 272]
Jennifer A. Dorsey, United States District Judge
Defendant
Robert Kincade is charged with three counts of federal bank
robbery and two firearm charges. Trial on the two 2014
robberies and accompanying § 924(c) charges is scheduled
for May 23, 2017, and trial on the severed 2011 robbery count
is scheduled for August 8, 2017. Kincade moves to preclude
(1) the government's agents from testifying as experts,
(2) the introduction of all of Kincade's jailhouse phone
calls to his girlfriend, and (3) any reference to the 2011
robbery.[1] I deny all three of Kincade's
requests.
Discussion
A.
Motions in limine
The
Federal Rules of Evidence do not explicitly authorize motions
in limine, but under the district courts'
trial-management authority, judges can rule on pretrial
evidentiary motions.[2] Limine rulings are provisional; they are
“not binding on the trial judge [who] may always change
[her] mind during the course of a trial.”[3] Denying a motion
in limine does not guarantee that all evidence raised in the
motion will be admissible at trial;[4] it “merely means that
without the context of trial, the court is unable to
determine whether the evidence in question should be
excluded.”[5]
1.
Government agent testimony
Kincade
moves to preclude “the government's agents from
offering expert testimony and opinions” and from
“offering testimony regarding characteristics of bank
robbers generally, describing the suspect's physical
appearance, modus operandi, describing the robberies as
caught on tape, or any other issue that would invade the
province” of the jury.[6] The government responds that it
has not noticed and does not intend to call any of the case
agents as experts, that the described testimony would be
based on the agents' training and experience and is
relevant in terms of how the investigation unfolded and is
thus admissible, and that Kincade's request is both vague
and premature.[7]
I agree
that Kincade's request is both vague and premature at
this juncture, and it may ultimately be moot depending on
whom the government calls at trial and what line of
questioning it pursues. Without the context of trial, I am
unable to determine that all of the case agents'
testimony describing robberies in general, the robberies in
this case, or the resulting investigation would be improper,
as urged by Kincade. I therefore decline Kincade's
request to preclude case-agent testimony at this time. Should
the government seek to elicit testimony at trial that Kincade
believes to be in appropriate, Kincade's remedy is to
timely object.
2.
Jailhouse phonecalls
Kincade's
next request is even broader: he moves to exclude
all jailhouse calls between himself and his
girlfriend, arguing that they contain irrelevant domestic
disputes that unfairly prejudice Kincade.[8] The government
responds that it has identified only one call that it
anticipates presenting at trial.[9] I have listened to the
recording of the phone call, and I find that portions of the
call-like those in which Kincade asks his girlfriend if she
has been able to locate a witness on the bank surveillance
video-are relevant as evidence of consciousness of guilt.
Kincade contends that the government “misunderstands
the call.”[10] But both parties will be free to argue
their interpretation of the call at trial; that Kincade
disputes the government's characterization of the phone
call does not warrant exclusion at this juncture. I also find
that the recording can be edited so that any irrelevant and
unfairly prejudicial portions of the phone call-such as
Kincade and his girlfriend squabbling and cursing at each
other-is excluded. I therefore deny Kincade's request to
preclude all jailhouse phone calls at this time. The parties
are instructed to meet and confer before trial in an effort
to agree on as much redaction as possible.
3.
The 2011 robbery
Finally,
Kincade moves to preclude any reference to the severed 2011
robbery count. The government represents that it does not
intend to reference the 2011 robbery at trial, and it
requests that I deny Kincade's request as moot. Kincade
indicates that he anticipates that the government may attempt
to offer the 2011 robbery as impermissible propensity
evidence.[11] Because the government represents that
it does not intend to reference or offer any evidence of the
2011 robbery at Kincade's trial on the 2014 charges, and
it has not noticed Kincade of its intention to do so, I deny
as moot this portion of Kincade's request.[12]
Conclusion
Accordingly,
IT IS HEREBY ORDERED that Kincade's motion in limine ...