COMES NOW the Defendant, William Lloyd, by and through counsel, Laura Poschen, and requests the Court to exclude from evidence at the trial of this matter the alleged statement “Street Vice Lords rule” as overheard by Ms. Mary Martinez. In support of this motion in limine, the Defendant offers the arguments and authorities contained herein. Facts
1. On May 12, 2011, at approximately 10:00 a.m., the First Security Bank, located at 100 Main Street, Nita City, Nita, was robbed. 2. Ms. Mary Martinez stated that two men began robbing the bank. Upon completing the robbery, the robbers left the bank. 3. Ms. Mary Martinez reported hearing one of the bank robbers yell, “Street Vice Lords rule.” The defendant moves in limine to exclude this testimony and any reference of gang affiliation from the trial of this matter.
Arguments and Authorities The purpose of motions in limine is “ ‘to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.’ ” Palmieri v. Defaria, 88 F.3d 136, 141 (2nd Cir.1996) (quoting Banque Hypothecaire Du Canton De Geneve v. Union Mines, Inc., 652 F.Supp. 1400, 1401 (D.Md.1987)). Additionally, the motion in limine is useful to ensure that only evidence that is relevant to the case is presented.
“Relevant evidence” is that evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. However, the court may exclude relevant evidence when “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403.
A Rule 403 inquiry focuses on whether the evidence results in “unfair prejudice,” that is, does the evidence have “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Fed.R.Evid. 403 adv. comm. note. “The decision whether to exclude evidence as unfairly prejudicial under Rule 403 is one for which the trial judge, because of his familiarity with the full array of evidence in the case, is particularly suited.” United States v. Keys, 899 F.2d 983, 987 (10th Cir.1990).
This Court has stated that “[e]vidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.” United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir.1999). In this case, there is no evidence, apart from the alleged comment, that the Defendant has any ties to gangs, either presently or in the past. The evidence of the statement from Ms. Martinez will serve only to unfairly prejudice the jury.
The probative value of the evidence in this case is minimal at best. Therefore, because there is no factual basis indicating that the defendant has ties to gang members or gang activities, and because evidence of Ms. Martinez’ statement would be highly prejudicial, the testimony regarding gang related statements made during the course of the bank robbery must be excluded from trial of this matter. WHEREFORE, for the reasons set forth above, the Defendant requests that this Court grant his Motion in Limine to exclude testimonial evidence of alleged gang affiliated comments because of the prejudicial effect outweighs the probative value of the evidence. Respectfully submitted,
Laura Poschen Defense Counsel for William Lloyd Law Firm of Justice Nita City, Nita
CERTIFICATE OF SERVICE I, Laura Poschen, hereby certify that I have electronically delivered a true and correct copy of the above Motion in Limine this 15th day of April, 2012 to: R. Justin Tynksy Assistant U.S. Attorney 10th Judicial District Nita City, Nita