United States District Court, D. South Dakota, Central Division
OPINION AND ORDER ON THE GOVERNMENT'S MOTIONS IN LIMINE
ROBERTO A. LANGE, District Judge.
On June 18, 2014, the Government filed Motions in Limine, Doc 57, which Defendant Michael Heath Thetford (Thetford) opposes. The Government requested that this Court exclude evidence of a land transaction that took place in 2004 between Doug Leischer (Leischer) and Shirley and William Jack Winslett (the Winsletts). The Government also sought an order precluding reference to a handwritten document found in the Winsletts' Alabama shop office, as well as precluding the defense from calling Government's counsel, Timothy Maher (Maher), as a witness regarding that document. Finally, the Government requested a ruling from this Court to admit Thetford's plea agreements, factual basis statements, and admissions made in a federal court in Alabama as evidence on the charges against Thetford in the District of South Dakota. This Court held hearings on July 31, 2014, and September 8, 2014, at which evidence and arguments relating to the motions in limine were heard. For the reasons discussed below, the Government's motions in limine are granted in part and denied in part.
The Superseding Indictment in this case charges Thetford with five counts: (1) Felon in Possession of a Firearm, (2) Impersonating a Federal Officer, (3) Interstate Stalking, and (4) and (5) two counts of Tampering with a Witness. Doc. 37. The Government alleges that Thetford posed as an FBI special agent, purportedly investigating the Winsletts for offenses against the United States. Doc. 37 at 1-2. Thetford allegedly asked the Winsletts to submit to a polygraph examination, transported them part of the way from Hughes County, South Dakota, to Sioux City, Iowa, but never completed the trip. Doc. 45 at 2. Thetford later allegedly tampered with the Winsletts to attempt to have them end cooperation with the Government. Doc. 37.
In November 2011, during the course of the investigation into Thetford's alleged conduct, FBI Special Agent Megan Breining inspected a machine shop in Alabama, which is owned by the Winsletts. Doc. 57 at 1. In the shop, Special Agent Breining found a handwritten note listing "RoseAnn" near the top and "Bill Gallagher" immediately below, as well as a fax number and a phone number. Doc. 57-1. Farther below that writing and separated by a hand-drawn line, "States Attorney" and "Tim Maher" were written, as well as a seven-digit phone number. Doc. 57-1. Below all of that writing, an "800" number was written on the paper. Doc. 57-1. Shirley Winslett's testimony at the July 31, 2014 motions hearing established that her husband wrote the notes while she was present. Doc. 69 at 22. Shirley Winslett also testified that her husband wrote the note around the time of, and relating to, the confinement of Doug Leischer for civil contempt relating to his divorce proceedings, Doc. 69 at 23, which was sometime between November 9, 2006, and February 28, 2007. Doc. 69 at 49. At that time, Maher, who is currently Government's counsel, was the Hughes County State's Attorney, and the seven-digit number on the paper was the number to the State's Attorney's office. However, the Winsletts never contacted Maher about the case. Doc. 69 at 23-24.
Following the investigation of Thetford's alleged conduct, three separate federal criminal cases were brought against Thetford-two cases in the Northern District of Alabama, docket numbers 2:12-cr-00349-KOB-HGD and 2:11-cr-00495-KOB-HGD, and this case in the District of South Dakota. Thetford signed plea agreements in each case agreeing to plead guilty to some counts in exchange for the dismissal of others within each respective indictment. Doc. 6; Doc. 57-7; Doc. 57-9.
The Northern District of Alabama, the Honorable Karen O. Bowdre presiding, held a change of plea hearing in Thetford's Alabama cases on March 11, 2013. Doc. 57-10. During the hearing, Thetford was placed under oath and was warned by Judge Bowdre that making false statements was punishable by perjury charges. Doc. 57-10 at 3. Thetford told Judge Bowdre that he had signed the two Northern District of Alabama plea agreements and that he understood the terms of the agreements at the time he signed them. Doc. 57-10 at 6-7. Pursuant to the plea agreement in case 2:11-cr-00495-KOB-HGD, Thetford pleaded guilty to Felon in Possession of a Firearm and Wire Fraud. Doc. 57-10 at 32-33. In case 2:12-cr-00349-KOB-HGD, Thetford pleaded guilty to the offenses of Production of Child Pornography and Receipt of Child Pornography. Doc. 57-10 at 40-43. Thetford affirmed to Judge Bowdre that he committed the offenses described in the factual basis statements. Doc. 57-10 at 33, 41-43. Judge Bowdre accepted Thetford's guilty pleas as made freely, voluntarily, knowingly, and understandingly. Doc. 57-10 at 34-35, 42-43. Judge Bowdre entered judgment in the Alabama cases on September 23, 2013, and sentenced Thetford to a total of 318 months imprisonment, as well as supervised release thereafter and restitution. Doc. 57-6; Doc. 57-8.
Thetford's plea negotiations in Alabama, which he handled in part himself, included discussion of guilty pleas to two of the counts in this case (Counts 2 and 3) with a joint recommendation that Thetford receive a total sentence of eight years to be served concurrent with his sentence from Alabama. Doc. 6. However, Thetford chose not to avail himself of the benefits of that plea agreement, has shown himself in hearings and personal filings before this Court to be quite an independent thinker, and has exercised his right to have a jury trial. Docs. 15, 22, 35, 36, 68, 79. On February 12, 2014, the Government filed the Superseding Indictment in this case, Doc. 37, and trial of this case is to start on October, 20, 2014.
A. Evidence Relating to the Hughes County Land Transaction Between Doug Leischer and the Winsletts, the Writing from the Wins letts' Shop Office, and Subpoena of Government's Counsel
In preparation for trial, the Government filed Motions in Limine, requesting preliminary evidentiary rulings on two categories of evidence. Doc. 57. First, the Government requests an order restricting any "comment or reference, whether direct or indirect, to Doug Leischer's Hughes County land transaction with the Winsletts; papers from Winsletts' Alabama shop office referencing attorney RoseAnn Wendell, Deputy Bill Gallagher, and prosecutor Tim Maher; as well as from subpoenaing or calling Government's counsel Tim Maher as a jury trial witness, absent a pretrial ruling from this Court." Doc. 57 at 3-4. Second, the Government requests a preliminary ruling allowing admission of the Alabama plea agreements, the factual basis statements, and the transcript of the Alabama change of plea hearing. Doc. 57 at 4.
Generally, relevant evidence is admissible unless other rules of evidence, the Constitution, federal statute, or rulings by the Supreme Court require exclusion. Fed.R.Evid. 402. "Irrelevant evidence is not admissible." Id . Evidence is relevant if it has "any tendency" to make a "fact of consequence in determining the action" more or less likely to be true. Fed.R.Evid. 401. Evidence that is otherwise admissible may be excluded by the court if its probative value is substantially outweighed by the risk of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed.R.Evid. 403.
The note from the Winsletts' shop office in Alabama has no tendency to make any fact of consequence to the charges against Thetford more or less likely. The charges in this case accuse Thetford of coming to Hughes County, South Dakota, in May of 2010 and posing as an FBI agent in an interaction with the Winsletts in which he hoped to gain information about the couple. The charges further allege that Thetford, who has a prior felony conviction, was in possession of a firearm at that time. Finally, the charges allege that in February of 2013, Thetford wrote a letter to the Winsletts with the intent to intimidate, threaten, or corruptly persuade them not to testify against him in his trial. The note found at the Winsletts' shop was written by Mr. Winslett no later than February of 2007, more than three years prior to Thetford's alleged contact with the Winsletts. The note concerned a wholly unrelated transaction, which no party claims has anything to do with Thetford's alleged conduct. Thus, the handwritten note found in the Winsletts' shop office is irrelevant under Rule 402 and inadmissible at trial. The inclusion on the note of Maher's name and number with the Hughes County State's Attorney's Office also poses a risk of confusing the issues and misleading of the jury.
Defense counsel, however, asserts that references to the Winsletts' land transaction from 2004 with Doug Leischer are relevant to impeach the credibility of the Winsletts, on whose testimony much of the South Dakota charges presumably will rest. "The credibility of an accuser is generally relevant." United States v. No Neck , 472 F.3d 1048, 1054 (8th Cir. 2007). However, the rules of evidence limit the ways in which a witness' character for truthfulness may be challenged. See Fed.R.Evid. 608. Except for certain criminal convictions, extrinsic evidence of specific conduct which shows a witness's character for truthfulness or untruthfulness is generally not admissible. Id . 608(b); see also United States v. Martz , 964 F.2d 787, 789 (8th Cir. 1992) ("While documents may be admissible on cross-examination to prove a material fact or bias, they are not admissible under Rule 608(b) merely to show a witness's general character for truthfulness or untruthfulness" ...