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United States v. Ejiofor

United States District Court, W.D. Oklahoma

March 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
AKUNNA BAIYINA EJIOFOR, Defendant.

          ORDER

          TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.

         Defendant has filed motions in limine to exclude the following evidence: (1) certain text conversations taken on the “WhatsApp” Messenger; (2) photographs of debit/credit cards found at Defendant's residence and InComm records that relate to said photographs; (3) photographs of a gun found at Defendant's residence; (4) personal photographs allegedly of Defendant found on WhatsApp; (5) Defendant Ken Ezeah's plea agreement; and (6) the search warrant of Defendant's home [Doc. Nos. 153-159].[1] The government has submitted its omnibus response in opposition [Doc. No. 164]. The matter is fully briefed and at issue.

         DISCUSSION[2]

         Although motions in limine are not formally recognized under the Federal Rules of Civil Procedure, courts have long recognized their utility under the courts' inherent power to manage the course of trial proceedings. Luce v. United States, 469 U.S. 38, 41 n. 4 (1984); Jones v. Stotts, 59 F.3d 143, 146 (10th Cir. 1995). “A motion in limine presents the trial court with the opportunity ‘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.'” Wilkins v. Kmart Corp., 487 F.Supp.2d 1216, 1218 (D. Kan. 2007) (quoting Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996)).

         Although such pretrial rulings can save time and avoid interruptions at trial, “a court is almost always better situated during the actual trial to assess the value and utility of evidence. Consequently, a court should reserve its rulings for those instances when the evidence plainly is ‘inadmissible on all potential grounds' ... and it should typically defer rulings on relevancy and unfair prejudice objections until trial when the factual context is developed[.]” Id. (citations omitted); see also Hawthorne Partners v. AT & T Tech., Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993) (“Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.”). Lastly, “the district court may change its ruling at any time for whatever reason it deems appropriate.” Jones, 59 F.3d at 146 (citations omitted); see also Luce, 469 U.S. at 41 (“The ruling is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer. … [E]ven if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.”).

         I. Whatsapp Messenger

         WhatsApp is a program that allows users to send and receive text, picture, audio, and video messages over an internet connection rather than through a phone carrier's network. As part of its case in chief, the government intends to introduce several text conversations conducted on WhatsApp between Defendant and her alleged co-conspirator, Ken Ezeah, that were extracted from Mr. Ezeah's phone. Defendant contends such evidence should be excluded because a plain reading of the messages shows that many are either missing and/or tampered with, rendering them unauthentic and fundamentally unreliable. Alternatively, Defendant contends that WhatsApp's hacking vulnerabilities render the application unreliable and the text messages constitute inadmissible hearsay.

         Defendant's objection that the text messages have been compromised and/or altered is made without any persuasive evidence and is overruled. The Court, however, reserves its ruling on the remainder of Defendant's objections. The government may be allowed to offer the text messages so long as they are relevant, the proper foundation and authentication are laid, and the messages do not constitute inadmissible hearsay.[3] Ruling on this issue is therefore deferred until the trial record is more fully developed.

         II. Photographs of Debit and Credit Cards And Accompanying Records

         During the search of Defendant's home, agents found numerous debit and credit cards. The agents photographed some of the cards as they were found, others were arranged and then photographed. Records were subsequently obtained from the cards' provider, InComm, which showed a large number of transactions relevant to the instant case. Defendant seeks to exclude this evidence on the grounds that (1) the photographs violate the “best evidence rule” and (2) such evidence is irrelevant and unfairly prejudicial because the government cannot prove Defendant was either an authorized user or otherwise connected to the cards. Defendant also seeks to exclude evidence of other photographs that allegedly depict immaterial items.

         Defendant's objection that the photographs do not constitute the best evidence is overruled. “The ‘best evidence' rule as it is generally applied does not relate to situations such as this, but is ordinarily limited to cases or situations where the question relates to the contents of written documents.” Chandler v. United States, 318 F.2d 356, 357 (10th Cir. 1963) (citations omitted). Defendant's remaining objections (i.e., that she cannot be directly connected to the cards or the InComm records) go to the weight of such evidence rather than admissibility, and are thus overruled as well. Defendant's request for the wholesale exclusion of photographs that contain irrelevant material is not only overruled for its sheer overbreadth, but also because Defendant has not carried her burden of showing that probative value is substantially outweighed by a danger of unfair prejudice or any of the other enumerated grounds in Fed.R.Evid. 403.

         III. Photographs of Gun

         Defendant next seeks to exclude photographs of a gun found at her home. The government has no objection to the relief requested, and ...


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