United States v. Ledbetter

• Decision Date: 23 May 2016
• Docket Number: 2:14-CR-127,Case Nos. 2:15-CR-080
• Citation: 188 F.Supp.3d 674
• Parties: United States of America, Plaintiff, v. Robert B. Ledbetter, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

188 F.Supp.3d 674

United States of America, Plaintiff,

v.Robert B. Ledbetter, et al., Defendants.

Case Nos. 2:15-CR-080

2:14-CR-127

United States District Court, S.D. Ohio, Eastern Division.

Signed May 23, 2016

David A. Devillers, Kevin W. Kelley, Brian Martinez, U.S. Attorney's Office, Columbus, OH, for Plaintiff.

Cheryll A. Bennett, Federal Public Defender, Aaron G. Durden, Dayton, OH, Diane M. Menashe, Diane M. Menashe Co. LPA, Gregory William Meyers, Kirk A. McVay, Richard Allen Cline, Jeffrey Allen Berndt, Office of the Ohio Public Defender, Michael S. Probst, Probst Law Office, LLC, Thomas F. Hayes, Law Office of Thomas F. Hayes LLC, James Lloyd Ervin, Jr., Frederick Douglas Benton, Jr., Roetzel & Andress LPA, Kort W. Gatterdam, Kevin Patrick Durkin, Carpenter Lipps & Leland LLP, S. Michael Miller, Isabella Dixon, Kegler Brown Hill & Ritter, Paula Milsom Brown, Kravitz, Brown & Dortch, LLC, Gregory Scott Peterson, Zachary Swisher, Peterson, Conners, Fergus & Peer LLP, Todd Aaron Long, Dennis Celestino Belli, Koenig & Long, LLC, Mark C. Collins, Mark C. Collins Co. LPA, David H. Thomas, Taft Stettinius & Hollister LLP, Alan John Pfeuffer, The Law Office of Alan Pfeuffer, Steven S. Nolder, Scott & Nolder Law Firm, Jon Joseph Saia, Saia & Piatt PLL, Keith Eric Golden, Golden & Meizlish Co., LPA, Larry Wayne Thomas, Andrew P. Avellano, Robert F. Krapenc, Kevin R. Conners, W. Joseph Edwards, Columbus, OH, David Jan Graeff, Stephen Dwight Dehnart, Westerville, OH, Andrew Sanderson, J. Kristin Burkett, Burkett & Sanderson, Inc., Newark, OH, James David Gilbert, Law Offices of James D. Gilbert, LLC, Steven Martin Brown, Dublin, OH, for Defendants.

OPINION & ORDER

ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on the Government's motion to display the tattoos of four defendants standing trial in the first trial grouping ("Trial I") of this sprawling RICO-conspiracy case: Robert B. Ledbetter, Christopher A. Harris, Rashad A. Liston, and Deounte Ussury (Doc. 1100).¹ For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART the Government's request.

I. BACKGROUND

This case centers on an alleged racketeering enterprise known as the "Short North Posse"—a purported criminal street gang that allegedly operated in the Short North area of Columbus, Ohio, from roughly 2005 until 2014. In Count One of the Superseding Indictment, the Government alleges that Defendants Ledbetter, Harris, Liston, and Ussury were members or associates of the Short North Posse. To help prove that these defendants were members or associates of the Short North Posse, the Government seeks to display tattoos that the defendants have on their bodies which the Government contends both: (1) exist; and (2) "are arguably gang-related or are otherwise relevant to the issues in Trial One." (Id. ).

Despite preparing this case since July 2014, and despite considerable pretrial briefing on a host of substantive and procedural issues, including nearly a dozen motions in limine regarding contentious evidentiary issues, the Government did not indicate that it wished to display the defendants' tattoos until the sixth week of trial. (Id. ("At the conclusion of trial proceedings on May 9, 2016, counsel for the United States advised the Court that the government wishes to display the tattoos of four defendants...before the close of evidence.")). By then, counsel for the defendantshad already given their opening statements to the jury and had cross-examined a majority of the Government's witnesses—including the Government's expert witness on gang culture, who testified about gang-related tattoos, and several indicted and unindicted co-conspirators who had purportedly gang-related tattoos on their bodies.

Upon learning of the Government's request, the Court ordered simultaneous briefing from the parties. The Government submitted its motion to display the defendants' tattoos on Monday, May 16, 2016. (Id. ). Harris (Doc. 1101) and Liston (Doc. 1102) filed memoranda in opposition the same day. Collectively, Harris and Liston argue that evidence of any tattoos they might have would be irrelevant, unfairly prejudicial, a violation of their Fifth Amendment right against self-incrimination, and, in any event, would be admitted too late in the game given those portions of the case already completed. In the interest of judicial efficiency, Ledbetter later moved to join in Harris's memorandum in opposition. (Doc. 1104). Ussury, however, opted not to file any response in opposition and, for strategic reasons, seems to have consented to the display of his tattoos to the jury.²

II. LEGAL STANDARDS

Under the Federal Rules of Evidence, evidence is relevant, and therefore generally admissible, so long as it "has any tendency to make a fact more or less probable," and so long as "the fact is of consequence in determining the action." Fed. R. Evid. 401. Evidence can be relevant even if it does not relate to an element of a charged offense or to a fact in dispute, provided the evidence supplies background information about the defendant or the offenses. See Advisory Committee Notes to 1972 Proposed Rules ("Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding."). The Government thus faces a "low threshold" for establishing that evidence is relevant, Tennard v. Dretke , 542 U.S. 274, 285, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), and defendants "face[ ] a significant obstacle in arguing that evidence should be barred because it is not relevant," United States v. Boros , 668 F.3d 901, 907 (7th Cir.2012). See generally United States v. Collins , 799 F.3d 554, 578 (6th Cir.2015) ("This Circuit applies an ‘extremely liberal’ standard for relevancy." (citation omitted)).

Assuming evidence is relevant, Rule 403 nonetheless grants trial courts discretion to exclude that evidence "if its probative value is substantially outweighed" by the risk of "unfair prejudice." Fed. R. Evid. 403 ; United States v. Gibbs , 797 F.3d 416, 422 (6th Cir.2015). The term "unfair prejudice" does not, however, encompass "the damage to a defendant's case that results from the legitimate force of the evidence." United States v. Ford , 761 F.3d 641, 648 (6th Cir.2014) (quotation omitted). After all, most evidence is prejudicial in one way or another. Instead, the term "unfair prejudice" refers only to evidence which tends to lead jurors to make a decision on an improper basis. Id.

The Fifth Amendment to the United States Constitution provides in part that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. The right against self-incrimination bars only "compelled incriminating communications...that are ‘testimonial’ in character." United States v. Hubbell , 530 U.S. 27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). Put differently, to qualify for protection under the Fifth Amendment, a statement or other communication must be: (1) testimonial; (2) incriminating; and (3) compelled. Hiibel v. Sixth Judicial Dist. Ct. , 542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004).

Finally, trial courts possess wide discretion to control both "the mode and order of examining witnesses and presenting evidence" so as to "make those procedures effective for determining the truth" and so as to "avoid wasting time." See Fed. R. Evid. 611(a). Trial courts, moreover, possess inherent authority to enforce pretrial orders through the exclusion of evidence that does not comply with those orders. See, e.g. , United States v. Urena , 659 F.3d 903, 908 (9th Cir.2011) ("The district court has broad traditional powers to manage its docket and to manage the presentation of evidence through designated witnesses in a trial before it."); United States v. Garza , 448 F.3d 294, 299 (5th Cir.2006) ("This Circuit has held that a trial court's decision to exclude evidence as a means of enforcing a pretrial order must not be disturbed absent a clear abuse of discretion."); White v. United States , 148 F.3d 787, 792 (7th Cir.1998) ("[T]he district court was also justified in excluding the evidence because it was not brought to the attention of the court or opposing counsel in a timely manner."); United States v. McCarthy , 473 F.2d 300, 304–05 n. (2d Cir.1972) ("If the government had considered the presence of tattoo marks on [defendant's] arms to be critical on the issue of identification, it undoubtedly could have obtained an order, upon timely application, requiring him to submit his arms for inspection.").

III. ANALYSIS

As this Court previously ruled in connection with Clifford Robinson's motion in limine regarding evidence of the Short North Posse's alleged subsets, the "Cut Throat Committee" and "Homicide Squad"—evidence of the defendants' association with the Short North Posse is both relevant under Rule 401 and not unfairly prejudicial under Rule 403. (Doc. 905). Nevertheless, evidence of such gang affiliation through the compelled production of some of the defendants' tattoos violates the defendants' Fifth Amendment right against self-incrimination and, in any event, runs afoul of the Court's pretrial orders regarding the disclosure of witnesses, exhibits, and the filing of motions in limine. Accordingly, the Court GRANTS IN PART and DENIES IN PART the Government's request to display the defendants' tattoos.

A. The Evidence Is Relevant Under Rule 401.

In this Circuit, "[e]vidence of gang affiliation is relevant where it demonstrates the relationship between people and that relationship is an issue in the case, such as in a conspiracy case." Ford , 761 F.3d at 648 ; see also United States v. Gibbs , 182 F.3d 408, 430 (6th Cir.1999) ("Gang affiliation is particularly relevant, and has been held admissible, in cases where the interrelationship between people is a central issue.") (Short North Posse forerunner case). Evidence of gang...