United States v. Frazier, No. 3:17-cr-00130

• Court: United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
• Writing for the Court: WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
• Parties: UNITED STATES OF AMERICA v. [1] JAMES WESLEY FRAZIER [2] AELIX SANTIAGO [3] KYLE HEADE [8] MICHAEL FORRESTER, JR. [10] JAMIE HERN [15] DEREK LEIGHTON STANLEY [17] WILLIAM BOYLSTON [18] JASON MEYERHOLZ
• Docket Number: No. 3:17-cr-00130
• Decision Date: 05 March 2020

UNITED STATES OF AMERICA
v.
[1] JAMES WESLEY FRAZIER [2] AELIX SANTIAGO [3] KYLE HEADE
[8] MICHAEL FORRESTER, JR. [10] JAMIE HERN [15] DEREK LEIGHTON STANLEY
[17] WILLIAM BOYLSTON [18] JASON MEYERHOLZ

No. 3:17-cr-00130

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

March 5, 2020

MEMORANDUM OPINION AND OMNIBUS ORDER III

In advance of the three month trial scheduled to begin on April 6, 2020 against the eight remaining Defendants, the parties have filed over forty motions in limine. Although a pretrial conference and hearing on pending motions is scheduled for March 9 and 10, 2020, the majority of the motions in limine can be resolved without a hearing or the presentation of evidence. By separate Memorandum Opinion and Omnibus Order III, the Court addressed those that relate to proposed expert testimony. The remaining motions in limine are addressed below, deferred for further argument, or will be considered at trial.¹

1. Frazier's Motion in Limine No. 3 to Exclude Reference to Case as "United States v. Frazier" (Doc. No. 1183)

This Motion is GRANTED. The parties will be required to simply refer to this matter as "this case" or "this matter." Additionally, and to further insure that the jury will not attribute alleged culpability by the number designated for each Defendant in the Third Superseding Indictment, the

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Court will randomly assign seats for each Defendant and his counsel. The designation of assigned seating will be made before the final pretrial counsel, and will remain the assigned seating throughout the course of the trial.

2. Joint Motion in Limine filed by Frazier, Boylston, and Meyerholz to require Government to Refer to Mongol Motorcycle Club as a "Club" and Not a "Gang" (Doc. No. 1186)

In this motion, Defendants ask this Court to require the Government to refer to the Mongols as a motorcycle "club" because "of the lack of probative value and substantial risk of unfair prejudice attached to the term 'gang.'" (Doc. No. 1186 at 2). In support, they quote United States v. Carr, 2:13-cr-00250-JAD, 2016 U.S. Dist. LEXIS 64822 (D. Nev. May 16, 2016), in which the court prohibited the Government from "use [of] the word 'gang' at trial to describe the motorcycle organizations at issue in this prosecution," writing:

I find that referring to the defendants as "gang" members is unfairly prejudicial and must be precluded under FRE 403. Referencing these motorcycle groups, organizations, or clubs as a "gang" is not probative of any of the elements of conspiracy to interfere with commerce by extortion. Although the defendants' shared affiliations and group memberships are relevant to proving that they conspired together, referring to those groups as "gangs" (as opposed to clubs, organizations, or groups) does not make any fact of consequence more or less likely, and the danger of unfair prejudice flowing from the term "gang" is great. I therefore grant Carr's motion. The government is precluded from using the word "gang" at trial to describe the motorcycle groups at issue in this case. The parties and witnesses should use the word "club," "organization," or "group" instead.

Id. at *2. They also cite the ruling in United States v. O'Reilly, No. 05-80025, 2009 WL 3837877, at *1 (E.D. Mich. Nov. 17, 2009), where the court ordered the Government at trial to use the word "club" instead of "gang" because the latter had a "negative connotation."

At first blush, Defendants' argument has some superficial appeal because a jury might "associate gangs with 'criminal activity and deviant behavior,' such that the admission of gang

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evidence raises the specter of guilt by association or a verdict influenced by emotion." United States v. Santiago, 643 F.3d 1007, 1011 (7th Cir. 2011). However, Defendants do not consider the context in which both Carr and O'Reilly were written and the differences in charges between those cases and this one.

Carr involved a conspiracy to interfere with commerce by extortion, and there was no opposition to defendant's motion from the Government. O'Reilly dealt with bank robberies. Here, in contrast, the charges are quite different because they include an over-arching RICO conspiracy.

More specifically, the Third Superseding Indictment alleges that all Defendants were prospective and/or founding members of the Clarksville Chapter of the "Mongols Motorcycle Gang," that the "Mongols Motorcycle Gang" was an enterprise within the meaning of RICO, and that Defendants were a part of that enterprise and committed predicate acts in furtherance of that enterprise. In fact, the "Mongols Motorcycle Gang" is mentioned thirty-two times in the Third Superseding Indictment. The "Mongols Motorcycle Club" is not mentioned, even once.

To be sure, the factual and legal contentions in the Third Superseding Indictment are at this point mere allegations, nothing more, and it will be for the Government to prove the existence of the "Mongols Motorcycle Gang" of which Defendants were alleged to be members. Given this burden, it would be strange indeed to require the Government to sanitize its allegations by requiring it to call the Mongols a club. It would be stranger still if the jury months from now questions why the Government kept referring to the enterprise as the "Mongols Motorcycle Club," when the charging document identifies the organization as the "Mongols Motorcycle Gang."

Accordingly, the Joint Motion in Limine to refer to the Mongols as a "club" and not a "gang" (Doc. No. 1186) is DENIED, and the Court will not bar the Government from using the word

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"gang" in reference to the Mongols. Nevertheless, the Government should strive to strictly limit its use of the word "gang" in relation to the Mongols. That is, referring to the Mongols as a "gang" should be the exception, and an extremely limited one at that. Even if the Government does not want to go so far as to call it a club, it can simply refer to the "Mongols," the "Clarksville Chapter," the "Clarksville Mongols," etc. This ruling, of course, in no way precludes Defendants from calling the Mongols a "club," or from arguing that the Mongols are a motorcycle club and not a gang. Further, the Court will entertain giving the jury a cautionary instruction on this issue should one be tendered by Defendants.

3. Government's Motion in Limine to Exclude Improper Character Evidence (Doc. No. 1178)

The admission of character evidence is governed by Federal Rules of Evidence 404 and 405. So far as it pertains to this case, Rule 404(a) provides that "[e]vidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." Fed. Rule Evid. 404(a)(1). This rule is subject to two exceptions: a defendant may offer evidence of his or her "pertinent trait," or "an alleged victim's pertinent trait," both of which may be rebutted by the prosecutor. Id. (a)(2)(A) & (B). This general rule and exception do not apply to evidence of a witness's character, which may be admitted under Rules 607, 608, and 609. Id. (a)(3). All of this, of course, is also subject to the probative value/prejudicial effect balancing test of Rule 403. See United States v. Franco, 484 F.3d 347, 352 (6th Cir. 2007) ("[A] district court is required to perform a Rule 403 weighing of evidence falling under Rule 404(a) just as it is required to do for evidence falling under Rule 404(b).").

Recognizing the applicable rules, the Government seeks to "to exclude at trial (1) improper character evidence regarding any victims of the alleged offenses, and (2) evidence of the defendants'

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character, except for reputation or opinion evidence of a pertinent character trait that is offered by a character witness, in accordance with Federal Rule of Evidence 405(a)." (Doc. No. 1178 at 1). This is hardly earth-shattering: evidence that does not meet the admissibility requirements of the Federal Rules of Evidence is, naturally, inadmissible.

The Government, however, goes much further. It provides what is effectively a mini-survey on the law of character evidence, presumably to educate either the Court, counsel, or both. For example, it argues Defendants "should not be permitted to claim that a victim has a character for violence"; "should be precluded from attacking any non-testifying victim's character for truthfulness, for example with respect to any deceased victims"; and should not be allowed to "introduce evidence of a victim's specific, past bad acts or crimes to support an argument that the victim acted aggressively on a particular occasion." (Id. at 3-5). Among several other things, the Government also "moves to bar character evidence regarding any defendant's prior military service, including evidence of distinguished service, combat injuries, awards, commendations, or other service records," while at the same time acknowledging that military service may be relevant, such as helping to explain why Defendants lived in the Clarksville area, or to show that they violated military policy by associating with what the Government characterizes as an Outlaw Motorcycle Gang or OMG. (Id. at 8).

The Government's approach to these issues is interesting given its response to some of Defendants' motions in limine wherein the Government chastises them for "attempting to litigate, in advance of trial" admissibility issues by "seeking the whole scale exclusion of evidence," when, in fact, the exclusion of evidence through a motion is limine is proper only where "the evidence [is] inadmissible on all potential grounds." (Doc. No. 1724 at 1-2). Even more fundamentally, the

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Government offers no specific concrete examples of any evidence it seeks to exclude. The Court will decline the Government's invitation to rule in a factual vacuum. The Government's Motion (Doc. No. 1178) is DENIED AS PREMATURE because, while improper character evidence is not admissible, the Government only "ant...