Sample Motion in Limine to Bar Evidence or Argument on Selective and/or
Throughout the pretrial proceedings, defendants have voiced
unsubstantiated claims that the government has unfairly selected
for prosecution. (See, e.g., Dkt. 97[FN1], 190[FN2]).
these claims, which this Court has rejected, the defendants have
asserted that this prosecution is tainted due to some relationship
between the federal government and private or state entities such
Florida Department of Citrus. The defense apparently intends to
to try this issue before the jury, as indicated by a February 1993
filing requesting that 34 witnesses related to this claim be
as defense witnesses.[FN3] While that filing was mooted by
of counsel, there is no reason to believe that the defense strategy
changed. For the reasons set forth below, this Court should not
the trial to delve into these unsupported and irrelevant
Rather, the Court should exclude from the upcoming trial all such
irrelevant evidence, as well as evidence and argument regarding
selective or vindictive prosecution.
FN1. XXXX X. XXXX' "Motion to Suppress," joined by
defendants, alleges: "This entire criminal prosecution is the
of the Florida Citrus Commission." Dkt. 97, p. 20.
FNX. XXXXX X. XXXX' "Motion . . . to Dismiss . . . for
Prejudicial Misconduct" alleges, inter alia, that
indictment . . . was bought and paid for by the Florida Department
Citrus[.]" Dkt. 190, p. 1.
FN3. "Application for Attendance of Witnesses . . ."
by defendant XXXXXX XXXX pro se. The "Subpoena List"
attached to this document lists 17 witnesses from the Florida
of Citrus, and 17 witnesses from the law firm that represents it in
certain matters. Dkt. 200.
"The accused does not have an unfettered right to offer
that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence." Taylor v. Illinois, 484 U.S.
413 (1988). Evidence relating to why the defendants were selected
prosecution that is unrelated to the charges in the Indictment is
irrelevant and should be excluded. Pursuant to Fed. R. Evid. 401,
evidence is relevant only if it has any tendency to make the
of any fact that is of consequence to the determination of the
more or less probable.
- Evidence Regarding Defendants' Allegations of
Selective Prosecution or Vindictive Prosecution
Is Irrelevant under Fed. R. Evid. 401.
The charges in this case center upon the defendants'
in a wide-ranging conspiracy to violate federal law by, among other
things, substituting beet sugar and other ingredients for orange
in products that are marketed and sold as pure concentrated orange
juice. Because the activities of other juice manufacturers and
processors as well as any actions taken by the Florida Department
Citrus are wholly unrelated to the charged conspiratorial
the defendants or to the government's prosecution of the
evidence relating to other juice processors, to the prosecution of
juice processors, and to various actions taken by the Florida
of Citrus is irrelevant.
B. Defendants Have Failed to Establish a Prima
Facie Case of Selective Prosecution.
Defendants should be prohibited from presenting evidence or
argument on the issue of selective prosecution because they have
to make the requisite prima facie showing. To
claim of selective prosecution, a defendant
'bears the heavy burden of establishing, at
least prima facie, (1) that while others
situated have not generally been proceeded against because of
the type forming the basis of the charge against him, he has been
singled out for prosecution, and (2) that the government's
discriminatory selection of him has been invidious or in bad faith,
i.e., based upon impermissible considerations as race,
or the desire to prevent the exercise of his constitutional
United States v. Sammons, 918 F.2d 592, 600 (6th Cir. 1990)
(quoting United States v. Hazel, 696 F.2d 473, 474 (6th Cir.
1983)) (emphasis in Hazel); see also United
States v. Anderson, 923 F.2d 450, 453 (6th Cir. 1991);
States v. Bustamante, 805 F.2d 201, 202 (6th Cir. 1986);
accord Wayte v. United States, 470 U.S. 598, 608-09
10 (1985). Defendants have not come close to satisfying these
requirements; accordingly, they are not even entitled to a hearing
this claim. See United States v. Bustamante, 805 F.2d
In this case, there is no evidence to support either of the
elements that defendants would have to establish to constitute a
prima facie showing of selective enforcement. As to
first element, defendants have not even attempted to show--much
affirmatively establish--that they have been singled out for
when others, similarly situated, have not been prosecuted.
Indeed, the defendants cannot meet this requirement. The
government has, on a nationwide basis, been vigilantly
juice adulteration and misbranding cases (as well as other food
adulteration and misbranding matters), many of which involve
similar to that employed by the defendants in this case. These
have resulted in numerous prosecutions, involving charges of
mail and wire fraud, false claims, customs violations, and
the Federal Food, Drug, and Cosmetic Act--charges similar to the
being prosecuted in this case.[FN4]
FN4. See, e.g., United States v.
Citrus Association, Cr. No. 93-133 (E.D. Pa.); United States
Mohammad Ali Karbalai, Cr. No. 93-151 (E.D. Pa.); United
X. XXXXXX XXXXX XXXXXXX, Cr. No. 1:93-CR-19 (W.D. Mich.);
States v. Flavor Fresh Foods Corp., et al., Cr. No. 1:93-CR-21
Mich.); United States v. Apple Valley International, Cr. No.
1:93-CR-49 (W.D. Mich.); United States v. Mark R. Saur, Cr.
1:93-M-373 (W.D. Mich.); United States v. Edward Boden, et
89 CR 645 (N.D. Ill.); United States v. Beech-Nut Nutrition
Corp., No. 86 CR 715 (E.D.N.Y); United States v. Allsun
Corp., Cr. No. 88-331-CRT 15B (M.D. Fla.).
Similarly, defendants are incapable of establishing the second
requirement of the two-part test. The government has evidence that
defendants conspired to, among other things, perpetrate a fraud on
consumers by marketing adulterated and misbranded concentrated
juice products containing undeclared ingredients such as beet
light of this evidence, the government's decision to prosecute the
defendants is entirely proper. Bordenkircher v. Hayes, 434
357, 364 (1978) ("so long as the prosecutor had probable cause to
believe that the accused committed an offense defined by statute,
decision whether or not to prosecute, and what charge to file or
before a grand jury, generally rests entirely in his discretion");
see also Wayte, 470 U.S. at 607-08 (prosecutor
broad discretion in assessing factors such as the strength of a
its general deterrence value, the government's enforcement
and the case's relationship to the government's overall enforcement
Throughout the pretrial proceedings, the defendants have
that they are being improperly prosecuted solely as a result of
undefined plot involving, among others, various individuals
with the Florida Department of Citrus, a state organization. This
assertion is entirely unsupported, but even if the record did
this claim, defendants still would not have met their prima
facie burden of establishing a selective prosecution
FN5. It is typical in law enforcement that the
obtains information regarding illegal conduct from entities,
public, familiar with the industry in which the activity takes
See, e.g., United States v. Beech-Nut Nutrition
Corp., 871 F.2d 1181, 1185 (2d Cir.), cert.
493 U.S. 933 (1989) (Processed Apple Institute detective involved
phony apple juice matter). Most of defendants' claims have been
more than runaway allegations related to this mundane fact of life.
To support a claim of selective prosecution, defendants must
establish that the decision to prosecute was motivated by a
discriminatory purpose. Wayte v. United States, 470 U.S. at
United States v. Schmucker, 815 F.2d 413, 418 (6th Cir.
This requires proof that:
(1)(a)the defendants belonged to a constitutionally
protected class, or
(b)the defendants engaged in constitutionally protected
(2)that the government chose to prosecute defendants
because of this affiliation or activity.
See United States v. Anderson, 923 F.2d at 453;
States v. Schmucker, 815 F.2d at 419. Defendants have not, and
indeed, cannot identify a constitutionally protected class or a
constitutionally protected form of conduct underlying the
prosecution decision in this matter.
In sum, defendants have failed to make even a threshold,
prima facie showing of selective prosecution.
must meet this burden to show that their claim is not frivolous and
raise a reasonable doubt as to the prosecutor's purpose. United
States v. Hazel, 696 F.2d at 475-76. Because they have failed
so, they are not entitled to put evidence relating to selective
prosecution before the jury or to argue to the jury that they has
unfairly singled out for prosecution.
C. Defendants Cannot Establish a Basis for a Claim
Defendants also should be barred from making arguments or
presenting evidence suggesting that the government has acted
vindictively in accepting information from various sources,
the Florida Department of Citrus, and in prosecuting this matter.
Vindictive prosecution involves prosecutorial conduct taken to
exercise of a protected right by the person being prosecuted.
States v. Anderson, 923 F.2d at 453. To establish a claim of
vindictive prosecution, a defendant "must show that the prosecutor
some 'stake' in deterring the petitioner's exercise of his rights,
that the prosecutor's conduct was somehow unreasonable."
Defendants have made no showing that they can satisfy either
of this test. The defendants have identified no constitutional
that they were exercising, much less a "stake" that the federal
government has in deterring such a right.
On the basis of prior pleadings, the government expects that
defendants may seek to argue that they are innocent victims of a
entities such as the Florida Department of Citrus, which
a competitive interest in seeing defendants prosecuted, and that
entities are somehow solely responsible for the federal
prosecution of this matter. Other than make this claim, however,
defendants have yet to offer any evidence supporting this
theory. Nor can they be expected to do so, particularly in light of
fact that co-conspirator XXXXX XXXXXX and co-defendant XXXX XXXXXX
XXXXXXXX have already agreed to plead guilty to charges in
with their participation in defendants' illegal conspiracy.
Absent a prima facie showing which raises a
reasonable doubt as to the government's purpose in prosecuting this
matter as retaliation for defendants' legitimate exercise of their
constitutional rights, defendants should be barred from making such
claims to the jury.[FN6] Cf. United States v. Hazel,
F.2d at 475.
FN6. As the Sixth Circuit recently observed, certain
of questioning by defense counsel--even if claimed to be offered
purpose of eliciting the government's bias in prosecuting the
be excluded when that testimony is likely to confuse the jury as to
real issues in the case. United States v. Burge, 990 F.2d
249 (6th Cir. 1992). In Burge, the Sixth Circuit upheld the
decision to limit a defendant's direct examination of an
government agent who was not called as a witness by the government
trial, observing that "[t]rial judges retain wide latitude insofar
the Confrontation Clause is concerned to impose reasonable limits
on . .
. cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness'
interrogation that is repetitive or only marginally relevant."
Id., at 249 (quoting Delaware v. Van Arsdall, 475
673, 679 (1986)). The logic underlying the trial court's decision
Burge is equally applicable in this case, where the "heart
government's case" (id.) consists of testimony of people
in the events at issue, and physical evidence. Thus, evidence of
government's "motives in prosecuting the defendant would not, in
significant way, reflect on the credibility of those witnesses[,]"
can properly be excluded. Id.
Examination of witnesses and argument at trial regarding the
discussed above would needlessly prolong the trial and confuse the
As shown above, this evidence and argument relates to no legitimate
defense, and can properly be excluded. Accordingly, the Court
exclude all evidence and argument regarding allegations of
vindictive prosecution, and should not allow defendants to inject
that private parties had an improper influence in the decision to
prosecute this case.
Dated: _____________, 1993 Respectfully submitted,
[cited in USAM 4-8.240]