United States v. Pugh

• Decision Date: 12 February 2016
• Docket Number: 15–CR–116(NGG)
• Parties: United States of America v. Tairod Nathan Webster Pugh, Defendant.
• Court: U.S. District Court — Eastern District of New York

162 F.Supp.3d 97

United States of America

v.Tairod Nathan Webster Pugh, Defendant.

15–CR–116(NGG)

United States District Court, E.D. New York.

Signed February 12, 2016

Samuel P. Nitze, Tiana A. Demas, United States Attorneys Office, Eastern District of New York, Brooklyn, NY, for United States of America.

Michael K. Schneider, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge

Before the court are the Government's and Defendant's respective first motions in limine. (See Gov't's First Mot. in Limine (“Gov't's Mem.”) (Dkt. 61); Def.'s First Mot. in Limine (“Def's Mem.”) (Dkt. 62).)

Defendant Tairod Nathan Webster Pugh (alternatively, “Pugh” or “Defendant”) seeks to exclude from trial (1) communications between Pugh and his wife (“M.H.S.”), including a draft letter addressed to M.H.S. found on Pugh's laptop, and (2) videos and photographs depicting violence or acts of terrorism that are not directly related to the charged conduct. (Def.'s Mem. at 3.) The Government moves to admit certain Islamic State of Iraq and the Levant (“ISIL”) propaganda videos and documents found on Pugh's laptop. (Gov't's Mem. at 1.)

For the reasons stated below, the court holds that (1) the draft letter found on Pugh's laptop is ADMISSIBLE and (2) the ISIL propaganda videos that the Government disclosed in its reply brief (see Reply in Supp. of Gov't's First Mot. in Limine (“Gov't's Reply”) (Dkt. 73)) are ADMISSIBLE except for the video entitled 09DDA5171C0F30D64151B38E2F35CB6A214572B5 (the “Obama Video”). The court further RESERVES ruling on (1) whether any marital communications, other than the draft letter, would be admissible, and (2) whether any videos or photographs, not disclosed in the Government's reply brief, would be admissible.

I. BACKGROUND

A. Charged Conduct

Defendant is charged by a two-count indictment with attempting to provide material support to a terrorist organization in violation of 18 U.S.C. § 2339B, and obstruction of justice in violation of 18 U.S.C. § 1512(c). (Indictment (Dkt. 11).) The court has previously, and extensively, discussed the Government's allegations in a Memorandum and Order approving an anonymous, partially sequestered jury (see Dec. 9, 2015, Mem. & Order (Dkt. 49)), and in a Memorandum and Order denying Defendant's omnibus pre-trial motions (see Dec. 21, 2015, Mem. & Order (Dkt. 53)); the court refers to those decisions for a detailed description of the allegations. Below, the court will only briefly describe the allegations relevant to the Government's and Pugh's respective motions in limine.

1. Attempted Material Support

The Government intends to prove at trial that Pugh attempted to provide material support to a terrorist organization by attempting to join ISIL. (Gov't's Mem. at 1.)

Accordingly, the Government intends to prove that ISIL is a designated terrorist organization. (Id. at 2.) The Government further seeks to show that ISIL aggressively sought to recruit foreign fighters. (Id. at 4.) To this end, ISIL produced a significant amount of propaganda, examples of which the Government intends to show were found in Defendant's possession. (Id.)

The Government also intends to introduce evidence recovered from Pugh's laptop (Def.'s Mem. at 1; Gov't's Mem. at 5-7), including a draft letter to Pugh's wife—M.H.S.—in which Pugh expresses a desire to join ISIL (Def.'s Mem. at 1). Pugh married M.H.S., an Egyptian citizen, in April of 2014. (Id. ) Pugh met M.H.S. just a few weeks before marrying her. (Gov't's Opp'n (Dkt. 68) at 2.) Pugh speaks and reads English, whereas M.H.S, speaks and reads Egyptian Arabic. (Id. ) Thus, they communicated using either Google Translate to translate text messages, or through an ad hoc network of friends, family, and strangers who served as translators. (Id. at 4.)

2. Obstruction of Justice

The Government further seeks to introduce evidence at trial showing that once Pugh was denied entry into Istanbul, he sought to—and did—destroy a number of electronic devices in his possession. (Id. at 5.)

II. LEGAL STANDARDS

A. Motion in Limine

“The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence.” United States v. Brown , 606 F.Supp.2d 306, 311 (E.D.N.Y.2009) ; see also United States v. Barret , No. 10–CR–809 (KAM), 2011 WL 6704862, at *3 (E.D.N.Y. Dec 21, 2011). “The trial court should exclude evidence on a motion in limine only when the evidence is clearly inadmissible on all potential grounds.” United States v. Ozsusamlar , 428 F.Supp.2d 161, 164 (S.D.N.Y.2006) ; see also United States v. Midyett , 603 F.Supp.2d 450, 454 (E.D.N.Y.2009) ; United States v. Chan , 184 F.Supp.2d 337, 340 (S.D.N.Y.2002). Thus, “[t]he movant has the burden of establishing that the evidence is not admissible for any purpose.” United States v. Goodale , 831 F.Supp.2d 804, 808 (D.Vt.2011).

A court considering a motion in limine may reserve judgment until trial in order to place the motion in the appropriate factual context. See United States v. Ferguson , 246 F.R.D. 107, 116 (D.Conn.2007) (Droney, J.). “Further, a court's ruling regarding a motion in limine is ‘subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the movant's proffer.’ ” Ozsusamlar , 428 F.Supp.2d at 165 (quoting Luce v. United States , 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) ).

B. Marital Communications Privilege

Federal Rule of Evidence 501 provides:

The common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court.

Fed. R. Evid. 501. Accordingly, where—as here—a party asserts a marital privilege, the court looks to federal common law to determine the scope and applicability of the privilege. See, e.g. , Engelmann v. Nat'l Broad. Co. , No. 94–CV–5616 (MBM) (AJP), 1995 WL 214500, at *2 (S.D.N.Y. Apr. 10, 1995).

“At common law, there are two marital testimonial privileges available to preclude certain statements from entering into evidence.” Scott v. Woodworth , No. 12–CV–0020 (LEK) (CFH), 2013 WL 3338574, at *8 (N.D.N.Y. July 2, 2013). “The adverse spousal testimony privilege permits an individual to refuse to testify in a criminal proceeding against her or his spouse.... The second marital privilege—the confidential marital communications privilege—is narrower than the adverse spousal testimony privilege and seeks only 'to protect the intimacy of private marital communications,' but it can be invoked by either spouse to prevent the revelation of such communications.” United States v. Premises Known as 281 Syosset Woodbury Rd. , 71 F.3d 1067, 1070 (2d Cir.1995) (quoting In re Grand Jury Subpoena , 755 F.2d 1022, 1027 (2d Cir.1985), vacated on other grounds sub nom. United States v. Koecher , 475 U.S. 133, 106 S.Ct. 1253, 89 L.Ed.2d 103 (1986) ).

The marital communications privilege “provides that ‘[communications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged.’ ” In re Reserve Fund Sec. & Derivative Litig. , 275 F.R.D. 154, 157 (S.D.N.Y.2011) (quoting Wolfle v. United States , 291 U.S. 7, 14, 54 S.Ct. 279, 78 L.Ed. 617 (1934) ). There are three prerequisites to the application of the spousal communications privilege:

(1) a valid marriage at the time of the communication; (2) the privilege applies only to utterances or expressions intended by one spouse to convey a message to the other; and (3) the communication must have been made in confidence, which is presumed.

Id. at 157 (internal quotation marks and citations omitted); see also Lorber v. Winston, No. 12–CV–3571 (ADS) (ETB), 2012 WL 5904522, at *12 (E.D.N.Y. Nov. 26, 2012) (citing the three requirements identified in Reserve Fund Securities ); L–3 Commc'ns Corp. v. Jaxon Eng'g & Maint. Inc. , No. 10–CV–02868 (MSK) (KMT), 2014 WL 183303, at *5 (D.Colo. Jan. 12, 2014) (report and recommendation of special master) (same); Engelmann , 1995 WL 214500, at *4 (“There are three prerequisites to the assertion of the communications privilege: (1) at the time of the communication, there must have been a marriage recognized as valid by state law; (2) there must have been a communication with respect to which the privilege is asserted; and (3) the communication [must have been] made in confidence.” (internal quotation marks, alterations, and citations omitted)); United States v. Estes , 609 F.Supp. 564, 571 (D.Vt.1985) (“To be privileged, the marital communications must be confidential and they must have occurred during the marriage.”).

“Because the marital privilege deprives fact-finders of potentially useful information,” United States v. Etkin , No. 07–CR–913(KMK), 2008 WL 482281, at *2 (S.D.N.Y. Feb. 20, 2008), “[t]he party asserting ... the marital communications privilege, bears the burden of establishing all of the essential elements involved,” In re Reserve Fund , 275 F.R.D. at 158 (S.D.N.Y.2011) (quoting United States v. Acker , 52 F.3d 509, 514–15 (4th Cir.1995) ); see also Campinas Found. v. Simoni , No. 02–CV–3965 (BSJ) (KNF), 2005 WL 1006511, at *3 (S.D.N.Y. Apr. 27,2005) (“The burden of establishing that all of the essential elements of a privilege exist is upon the party asserting the privilege, in this case the defendants.”). However, “[c]onversations between spouses are presumed confidential,” and therefore, the party opposing the applicability of the marital communication privilege bears “the burden of defeating this presumption by showing that the communication was not made privately.” United States v. Taylor , 92 F.3d 1313, 1332 (2d Cir.1996).

C. General Rules of Admissibility

Federal Rule of Evidence 402 provides that “[r]elevant evidence is admissible unless...