139.

Sample Motion in Limine to Bar Evidence or Argument on Selective and/or Vindictive Prosecution

INTRODUCTION Throughout the pretrial proceedings, defendants have voiced unsubstantiated claims that the government has unfairly selected them for prosecution. (See, e.g., Dkt. 97[FN1], 190[FN2]). In 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 as the Florida Department of Citrus. The defense apparently intends to attempt to try this issue before the jury, as indicated by a February 1993 filing requesting that 34 witnesses related to this claim be subpoenaed as defense witnesses.[FN3] While that filing was mooted by appointment of counsel, there is no reason to believe that the defense strategy has changed. For the reasons set forth below, this Court should not permit the trial to delve into these unsupported and irrelevant assertions. 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 other defendants, alleges: "This entire criminal prosecution is the brainchild of the Florida Citrus Commission." Dkt. 97, p. 20. FNX. XXXXX X. XXXX' "Motion . . . to Dismiss . . . for Prejudicial Misconduct" alleges, inter alia, that "The indictment . . . was bought and paid for by the Florida Department of Citrus[.]" Dkt. 190, p. 1. FN3. "Application for Attendance of Witnesses . . ." filed by defendant XXXXXX XXXX pro se. The "Subpoena List" attached to this document lists 17 witnesses from the Florida Department of Citrus, and 17 witnesses from the law firm that represents it in certain matters. Dkt. 200. ARGUMENT Evidence Regarding Defendants' Allegations of Selective Prosecution or Vindictive Prosecution Is Irrelevant under Fed. R. Evid. 401. "The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 413 (1988). Evidence relating to why the defendants were selected for 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 existence of any fact that is of consequence to the determination of the action more or less probable. The charges in this case center upon the defendants' participation in a wide-ranging conspiracy to violate federal law by, among other things, substituting beet sugar and other ingredients for orange solids 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 of Citrus are wholly unrelated to the charged conspiratorial activities of the defendants or to the government's prosecution of the defendants, evidence relating to other juice processors, to the prosecution of other juice processors, and to various actions taken by the Florida Department 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 failed to make the requisite prima facie showing. To establish a claim of selective prosecution, a defendant 'bears the heavy burden of establishing, at least prima facie, (1) that while others similarly situated have not generally been proceeded against because of conduct 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, religion, or the desire to prevent the exercise of his constitutional rights.' 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); United States v. Bustamante, 805 F.2d 201, 202 (6th Cir. 1986); accord Wayte v. United States, 470 U.S. 598, 608-09 and n. 10 (1985). Defendants have not come close to satisfying these threshold requirements; accordingly, they are not even entitled to a hearing on this claim. See United States v. Bustamante, 805 F.2d at 202. In this case, there is no evidence to support either of the two elements that defendants would have to establish to constitute a prima facie showing of selective enforcement. As to the first element, defendants have not even attempted to show--much less affirmatively establish--that they have been singled out for prosecution when others, similarly situated, have not been prosecuted. Indeed, the defendants cannot meet this requirement. The federal government has, on a nationwide basis, been vigilantly investigating juice adulteration and misbranding cases (as well as other food adulteration and misbranding matters), many of which involve schemes similar to that employed by the defendants in this case. These cases have resulted in numerous prosecutions, involving charges of conspiracy, mail and wire fraud, false claims, customs violations, and violations of the Federal Food, Drug, and Cosmetic Act--charges similar to the conduct being prosecuted in this case.[FN4] FN4. See, e.g., United States v. Paramount Citrus Association, Cr. No. 93-133 (E.D. Pa.); United States v. Mohammad Ali Karbalai, Cr. No. 93-151 (E.D. Pa.); United States X. XXXXXX XXXXX XXXXXXX, Cr. No. 1:93-CR-19 (W.D. Mich.); United States v. Flavor Fresh Foods Corp., et al., Cr. No. 1:93-CR-21 (W.D. Mich.); United States v. Apple Valley International, Cr. No. 1:93-CR-49 (W.D. Mich.); United States v. Mark R. Saur, Cr. No. 1:93-M-373 (W.D. Mich.); United States v. Edward Boden, et al., 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 Juice 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 the defendants conspired to, among other things, perpetrate a fraud on consumers by marketing adulterated and misbranded concentrated orange juice products containing undeclared ingredients such as beet sugar. In light of this evidence, the government's decision to prosecute the defendants is entirely proper. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("so long as the prosecutor had probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion"); see also Wayte, 470 U.S. at 607-08 (prosecutor has broad discretion in assessing factors such as the strength of a case, its general deterrence value, the government's enforcement priorities, and the case's relationship to the government's overall enforcement plan). Throughout the pretrial proceedings, the defendants have insinuated that they are being improperly prosecuted solely as a result of some undefined plot involving, among others, various individuals connected with the Florida Department of Citrus, a state organization. This assertion is entirely unsupported, but even if the record did support this claim, defendants still would not have met their prima facie burden of establishing a selective prosecution claim.[FN5] FN5. It is typical in law enforcement that the government obtains information regarding illegal conduct from entities, private or public, familiar with the industry in which the activity takes place. See, e.g., United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1185 (2d Cir.), cert. denied, 493 U.S. 933 (1989) (Processed Apple Institute detective involved in phony apple juice matter). Most of defendants' claims have been little 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 608; United States v. Schmucker, 815 F.2d 413, 418 (6th Cir. 1987). This requires proof that: (1)(a)the defendants belonged to a constitutionally protected class, or (b)the defendants engaged in constitutionally protected conduct; and (2)that the government chose to prosecute defendants because of this affiliation or activity. See United States v. Anderson, 923 F.2d at 453; United 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 government's prosecution decision in this matter. In sum, defendants have failed to make even a threshold, prima facie showing of selective prosecution. Defendants must meet this burden to show that their claim is not frivolous and to raise a reasonable doubt as to the prosecutor's purpose. United States v. Hazel, 696 F.2d at 475-76. Because they have failed to do so, they are not entitled to put evidence relating to selective prosecution before the jury or to argue to the jury that they has been unfairly singled out for prosecution. C. Defendants Cannot Establish a Basis for a Claim of Vindictive Prosecution. Defendants also should be barred from making arguments or presenting evidence suggesting that the government has acted vindictively in accepting information from various sources, including the Florida Department of Citrus, and in prosecuting this matter. Vindictive prosecution involves prosecutorial conduct taken to deter the exercise of a protected right by the person being prosecuted. United States v. Anderson, 923 F.2d at 453. To establish a claim of vindictive prosecution, a defendant "must show that the prosecutor has some 'stake' in deterring the petitioner's exercise of his rights, and that the prosecutor's conduct was somehow unreasonable." Id., at 453-54. Defendants have made no showing that they can satisfy either prong of this test. The defendants have identified no constitutional right 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 plot by entities such as the Florida Department of Citrus, which purportedly had a competitive interest in seeing defendants prosecuted, and that these entities are somehow solely responsible for the federal government's prosecution of this matter. Other than make this claim, however, defendants have yet to offer any evidence supporting this conspiracy theory. Nor can they be expected to do so, particularly in light of the fact that co-conspirator XXXXX XXXXXX and co-defendant XXXX XXXXXX XXXXXXXX have already agreed to plead guilty to charges in connection 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, 696 F.2d at 475. FN6. As the Sixth Circuit recently observed, certain lines of questioning by defense counsel--even if claimed to be offered for the purpose of eliciting the government's bias in prosecuting the case--may be excluded when that testimony is likely to confuse the jury as to the real issues in the case. United States v. Burge, 990 F.2d 244, 249 (6th Cir. 1992). In Burge, the Sixth Circuit upheld the decision to limit a defendant's direct examination of an investigating government agent who was not called as a witness by the government at trial, observing that "[t]rial judges retain wide latitude insofar as 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' safety, or interrogation that is repetitive or only marginally relevant." Id., at 249 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). The logic underlying the trial court's decision in Burge is equally applicable in this case, where the "heart of the government's case" (id.) consists of testimony of people involved in the events at issue, and physical evidence. Thus, evidence of the government's "motives in prosecuting the defendant would not, in any significant way, reflect on the credibility of those witnesses[,]" and can properly be excluded. Id. III. CONCLUSION Examination of witnesses and argument at trial regarding the topics discussed above would needlessly prolong the trial and confuse the jury. As shown above, this evidence and argument relates to no legitimate defense, and can properly be excluded. Accordingly, the Court should exclude all evidence and argument regarding allegations of selective or vindictive prosecution, and should not allow defendants to inject claims that private parties had an improper influence in the decision to prosecute this case. Dated: _____________, 1993 Respectfully submitted, [cited in USAM 4-8.240]