Case 2:11-cr HH-FHS Document 133 Filed 08/16/12 Page 1 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

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1 Case 2:11-cr HH-FHS Document 133 Filed 08/16/12 Page 1 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA UNITED STATES OF AMERICA * CRIMINAL NO. 11-CR-299 v. * SECTION: HH AARON F. BROUSSARD * VIOLATIONS: 18 U.S.C. 371 THOMAS G. WILKINSON 18 U.S.C. 666(a)(1)(B) * 18 U.S.C. 666(a)(1)(A) * 18 U.S.C * 18 U.S.C. 2 * * * GOVERNMENT S MOTION TO EXCLUDE EVIDENCE OF INSTANCES OF THE DEFENDANTS LAW-ABIDINGNESS OR ALLEGED GOOD DEEDS NOW INTO COURT, through the undersigned Assistant United States Attorneys, comes the United States, who respectfully moves this Honorable Court to exclude any and all evidence, argument, references, or inferences relating to any instances of law-abidingness or alleged good deeds on behalf of the defendants. The United States moves to exclude this evidence as being contrary to well-established law, as explained further in the accompanying memorandum in support. Dated: August 16, 2012 Respectfully Submitted, JIM LETTEN UNITED STATES ATTORNEY /s/ Matthew S. Chester MATTHEW S. CHESTER Texas Bar No BRIAN M. KLEBBA New York Bar Roll No Assistant United States Attorneys 650 Poydras Street, Suite 1600 New Orleans, Louisiana Phone: (504)

2 Case 2:11-cr HH-FHS Document 133 Filed 08/16/12 Page 2 of 2 CERTIFICATE OF SERVICE I hereby certify that on August 16, 2012, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a notice of electronic filing to defense counsel of record. /s/ Matthew S. Chester MATTHEW S. CHESTER Assistant United States Attorney

3 Case 2:11-cr HH-FHS Document Filed 08/16/12 Page 1 of 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA UNITED STATES OF AMERICA * CRIMINAL NO. 11-CR-299 v. * SECTION: HH AARON F. BROUSSARD * VIOLATIONS: 18 U.S.C. 371 THOMAS G. WILKINSON 18 U.S.C. 666(a)(1)(B) * 18 U.S.C. 666(a)(1)(A) * 18 U.S.C * 18 U.S.C. 2 * * * UNITED STATES S MEMORANDUM IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE EVIDENCE OF SPECIFIC INSTANCES OF THE DEFENDANTS LAW- ABIDINGNESS OR ALLEGED GOOD DEEDS NOW INTO COURT, through the undersigned Assistant United States Attorneys, comes the United States of America who respectfully moves this Honorable Court to exclude any and all evidence, references or inferences that the defendants performed good deeds on behalf of the citizens of Jefferson Parish, Louisiana, and, therefore, acted in conformity with the law on specific occasions. In support thereof, the United States respectfully submits the following: I. INTRODUCTION & SUMMARY OF ARGUMENT By virtue of the defendants position with Jefferson Parish, the defendants have interacted with constituents and citizens of the Greater New Orleans and Jefferson Parish area on many different types of projects and issues. The Government believes that the defendants will seek to use

4 Case 2:11-cr HH-FHS Document Filed 08/16/12 Page 2 of 7 specific instances where they were allegedly helpful to Jefferson Parish, either as a public servants or in their personal capacities, in attempt to persuade the jury that they are do-gooders, law abiding citizens, and/or honest public servants who would not commit the acts charged in the indictment. The defendants introduction of specific acts of law abidingness or situations where they acted with integrity will effectively thwart the jury s deliberation over the defendants criminal conduct in this case. Allowing evidence of the defendants other alleged good deeds, which are irrelevant to the acts charged in the indictment, will confuse, mislead and prejudice the jury into thinking the defendants are good people, and should not be held accountable for the crimes charged in indictment. This flawed logic is likely to lead a juror to conclude that persons who are capable of some good acts cannot be guilty of the crimes charged. In other words, such a tactic only negates the ultimate goal of achieving a fair and accurate application of the law to the relevant facts. This anticipated line of defense is prohibited by applicable authorites, and therefore, should be excluded. II. ARGUMENT AND AUTHORITIES A. SPECIFIC INSTANCES OF GOOD DEEDS ARE INADMISSABLE TO SHOW THE DEFENDANT S GOOD CHARACTER. 1. Evidence relating to prior instances of law-abidingness, good deeds, or honest acts are irrelevant to a fair and accurate application of law to the charges outlined in the indictment. It is well-settled that a defendant may not produce evidence of specific instances of lawabidingness as part of his defense in order to show that his good character. United States v. Hill, 40 F.3d 164, (7th Cir. 1994) (in prosecution for mail theft and forgery of Treasury check, evidence that postal employee-defendant did not take test letters was properly deemed 2

5 Case 2:11-cr HH-FHS Document Filed 08/16/12 Page 3 of 7 inadmissible since prior-honest-act evidence intending to show the defendant was a man of good character and acted in conformity therewith is prohibited); see also United States v. Cleveland, 1997 WL , at * 2 (E.D. La. May 14, 1997) (Vance, J.) (court excluded prior good acts of former legislator and defendant, Larry Bankston, on the ground that [a] defendant may not seek to establish his innocence... through proof of the absence of criminal acts on specific occasions ). Unless prior instances of law-abidingness are essential to the issues before the court, all references to them should be removed from the jury s consideration, since they are irrelevant to achieving a fair and accurate application of the law to the facts. See Cleveland, 1997 WL , at * 2. In this case, no circumstances exist which would make any of the defendants prior-honest-acts relevant to whether they committed the crimes outlined in the indictment. Even if they could show, for example, that on some occasions they helped constituents rather than the unlawful conduct charged in the Indictment (among other wrongful conduct), this would not be probative of whether they committed the crimes charged. 2. The Federal Rules of Evidence prohibit the use of specific instances of prior-honest-acts to prove the defendant s good character. While Rule 404(a)(1) of the Federal Rules of Evidence permits a criminal defendant to introduce evidence of a pertinent trait of character; Rule 405(a) precludes the introduction of specific instances in which the defendant acted in conformity with that trait, and only allows it in the form of reputation or opinion testimony. See FED. R. EVID. 404(a)(1); FED. R. EVID. 405(a) (emphasis added). Thus, [a] defendant may not seek to establish his innocence... through proof of the absence of criminal acts on specific occasions. United States v. Scarpa, 897 F.2d 63, 70 (2nd Cir. 1990) (emphasis added); Cleveland, 1997 WL at * 2; United States v. Camejo, 929 F.2d 610, 613 (11th Cir. 1991) (defendant s prior refusals of opportunities to join drug trafficking 3

6 Case 2:11-cr HH-FHS Document Filed 08/16/12 Page 4 of 7 conspiracy was properly excluded as inadmissible prior good acts, -- evidence of good conduct is not admissible to negate criminal intent); United States v. O Connor, 580 F.2d 38 (2nd Cir. 1978) (defendant may not seek to establish his innocence through proof of the absence of criminal acts on specific occasions -- tape recorded phone calls with no drug references was properly excluded). Consequently, evidence of specific instances of other so-called good deeds is inadmissible, even if law-abidingness is a pertinent or essential character consideration for the jury. See id. 3. Invoking sympathy through evidence of good deeds is also prohibited. The United States believes the defendants may attempt to inject sympathy through evidence of other alleged good deeds into the jury s deliberation over their guilt, in order to confuse and mislead them into violating their obligation to base [their] verdict solely upon the evidence, without prejudice or sympathy. See Fifth Circuit Pattern Jury Instructions, 1.04, Duty to Follow Instructions (2001) (stating that [i]t is also [the duty of the jurors] to base your verdict solely upon 1 the evidence, without prejudice or sympathy) (emphasis added). The defendants may attempt to persuade the jury that they were hard working public-servants who bestowed a host of benefits upon the citizens of Jefferson Parish, and consequently, should not be convicted because they are dogooders. By injecting sympathy into the jury s deliberations, the defense would effectively divert the jury from their sole obligation; the duty to decide guilt or innocence based upon the evidence. See Fifth Circuit Pattern Jury Instructions, 1.01, Preliminary Instruction, (2001) ( You, and you alone, are judges of the facts.... You must base [the decision about the defendant s guilt] only on 1 th See also United States v. Meshack, 225 F.3d 556, 557 (5 Cir. 2000) (approving efforts to remove th sympathy from the deliberative process), amended on reh'g, 244 F.3d 367 (5 Cir.), cert. denied, 534 U.S. 861, 122 S.Ct. 142, 151 L.Ed.2d 94 (2001), overruled on other grounds, United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). 4

7 Case 2:11-cr HH-FHS Document Filed 08/16/12 Page 5 of 7 the evidence in the case and my instructions about the law.... (emphasis added)). In the Court s pursuit of a fair trial for all parties, it is legally bound to exclude irrelevant matters and should prevent the injection of sympathy and prejudice into the jury s deliberations. Unless the evidence is relevant to the charges before the court, it is simply not admissible. Nothing in this record or existing jurisprudence supports the introduction of any alleged prior good deeds on the part of this defendant. Whether the defendants were responsible for providing any public benefit to the citizens of Jefferson Parish is completely irrelevant to the crimes outlined in the indictment. 2 Courts have consistently held that neither prejudice nor sympathy should play a role in a jury s decision. In fact, the Supreme Court has twice refused to disapprove of instructions directing jurors not to be swayed or influenced by mere sympathy. California v. Brown, 479 U.S. 538, (1987); see also Saffle v. Parks, 494 U.S. 491, 495 (1990). The Supreme Court clearly believes that if juries are permitted to consider their emotions or sympathies, the objectives of fairness and accuracy are more likely to be threatened than promoted. Saffle, 494 U.S. at 495. Simply put, a jury s decision, especially during the guilt phase of a criminal trial, should be based upon the evidence, and not upon their sympathy for either the defendant or the victim of a particular crime. See Byrne v. Butler, 847 F.2d 1135, (5th Cir. 1988). 2 It is also important to note that should the defendants seek to introduce character evidence they would be opening the door to the introduction of negative character evidence by the government, which can refer to specific instances of conduct. See FED. R. EVID. 405(a) (allowing inquiry into relevant specific instances of conduct on cross examination). 3 Both cases dealt with jury instructions in the sentencing phase of a capital prosecution. 5

8 Case 2:11-cr HH-FHS Document Filed 08/16/12 Page 6 of 7 III. CONCLUSION WHEREFORE, for the reasons outlined above, the United States respectfully moves this Court to exclude, any and all testimony, evidence or references to any alleged prior good deeds undertaken by the defendants as being prohibited by law and the authorities discussed above. Dated: August 16, 2012 Respectfully Submitted, JIM LETTEN UNITED STATES ATTORNEY /s/ Matthew S. Chester MATTHEW S. CHESTER Texas Bar No BRIAN M. KLEBBA New York Bar Roll No Assistant United States Attorneys 650 Poydras Street, Suite 1600 New Orleans, Louisiana Telephone: (504)

9 Case 2:11-cr HH-FHS Document Filed 08/16/12 Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that on August 16, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send a notice of electronic filing to all counsel of record. /s/ Matthew S. Chester Matthew S. Chester Assistant U.S. Attorney 7

10 Case 2:11-cr HH-FHS Document Filed 08/16/12 Page 1 of 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA UNITED STATES OF AMERICA * CRIMINAL NO. 11-CR-299 v. * SECTION: HH AARON F. BROUSSARD * VIOLATIONS: 18 U.S.C. 371 THOMAS G. WILKINSON 18 U.S.C. 666(a)(1)(B) * 18 U.S.C. 666(a)(1)(A) * 18 U.S.C * 18 U.S.C. 2 * * * ORDER Considering the foregoing Motion in Limine to Exclude Any Reference to Instances of Law- Abidingness or Good Deeds filed by the United States of America and the reasons set forth therein, IT IS HEREBY ORDERED that the defendants are prohibited from eliciting any evidence, argument, references, or inferences to instances of law-abidingness or good deeds. New Orleans, Louisiana, this day of, HONORABLE HAYDEN HEAD UNITED STATES DISTRICT JUDGE