IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) CR. NO. 2:06cr202-WKW

)

EUGENE CLECKLER and )

KIM CLECKLER )

UNITED STATES’ MOTION IN LIMINE

Comes now the United States of America, by and through Leura G. Canary, United States

Attorney for the Middle District of Alabama, and hereby moves in limine as follows.

I. STATEMENT OF FACTS

The Indictment charges Eugene Cleckler (“Eugene”) and Kim Cleckler with conspiracy to

defraud the United States and with obstructing an Internal Revenue Service (“IRS”) audit. The

Government anticipates that the defendants’ former employees will testify that, at the defendants’

instructions and with the defendants’ assistance, the employees created fraudulent records and caused

them to be presented to the IRS. Based on discussions with Eugene’s counsel, the Government

believes that the defendants intend to attempt to impeach one or more of the Government’s witnesses

with evidence and/or cross-examination regarding conduct unrelated to the events in question. The

Government moves in limine so that the Court can rule on the propriety of any such evidence prior

to cross-examination of the witness.

On a separate issue, pre-indictment, Eugene’s counsel offered to have Eugene take a

polygraph examination. The Government wrote back, proposing a time and conditions for the

examination. The Government’s recollection was that there was some further limited discussion on

the issue, with Eugene’s counsel raising a question concerning the terms of the examination and the

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Government raising the possibility of Eugene retaining his own examiner and providing the results

to the Government. No examination was performed by the Government, and to the Government’s

knowledge, no defense exam was performed either. The Government moves in limine to preclude

any argument or evidence concerning Eugene’s willingness to take a polygraph.

II. THE COURT SHOULD RESOLVE OUTSIDETHE HEARINGOF THE JURY ANY

ISSUES RELATING TO THE PROPER SCOPE OF CROSS EXAMINATION

Motions in limine are a proper method for the Court to determine issues relating to the scope

of cross-examination. See Luce v. United States, 469 U.S. 38, 41 n.4 (1984). In particular, in limine

motions allow such matters to be considered outside the presence of the jury, thus limiting the risk

that the jury will hear inadmissible evidence, as well as protecting the witness from undue

harassment and embarrassment. See Fed. R. Evid. 103(c) (“In jury cases, proceedings shall be

conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested

to the jury by any means, such as making statements or offers of proof or asking questions in the

hearing of the jury.”); Fed. R. Evid. 611(a)(3) (“The court shall exercise reasonable control over the

mode . . . of interrogating witnesses . . . so as to . . . protect witnesses from harassment or undue

embarrassment.”).

At this point, the Government cannot address the merits at length, since the Government does

not know the details of the potential cross-examination. However, the Government has no

information indicating that any of its witnesses have been convicted of a crime, and therefore the

evidence in question presumably relates to other conduct of the witnesses relating to their character

for truthfulness. Accordingly, Fed. R. Evid. 608(b) applies. It provides:

Specific instances of the conduct of a witness, for the purpose of attacking or

supporting the witness’ character for truthfulness, other than conviction of crime as

provided in rule 609, may not be proved by extrinsic evidence. They may, however,

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in the discretion of the court, if probative of truthfulness or untruthfulness, be

inquired into on cross-examination of the witness (1) concerning the witness'

character for truthfulness or untruthfulness, or (2) concerning the character for

truthfulness or untruthfulness of another witness as to which character the witness

being cross-examined has testified.

Before the Court can even consider permitting Rule 608(b) cross-examination, the defendants

must make a showing that the conduct in question occurred. See Michelson v. United States,

335 U.S. 469, 480-81 & n.18 (1948) (district judge acted properly when, “out of presence of the

jury . . . [h]e satisfied himself that counsel was not merely taking a random shot at a reputation

imprudently exposed or asking a groundless question to waft an unwarranted innuendo into the jury

box”); United States v. Ndiaye, 434 F.3d 1270, 1290 (11 Cir.) (“The Government must have a good th

faith basis for the instances of conduct inquired about . . . .”), cert. denied, 127 S. Ct. 128 (2006);

United States v. Crutchfield, 26 F.3d 1098, 1102 & n.7 (11 Cir. 1994) (Rule 608(b) cross- th

examination was improper when prosecutor lacked good faith basis for questions and never

substantiated underlying facts to the court.); United States v. Crippen, 570 F.2d 535, 538 (5 Cir. th

1978) (before allowing cross-examination under Rule 608(b), “the trial judge made certain that there

was a factual basis for the attempted impeachment”). Therefore, the Court should first require the

defendant to demonstrate that the alleged conduct occurred. The Government is not suggesting a

mini-trial with live evidence; however, at a minimum the Court should require the defendant to

proffer the documents and/or witness statements that would show that defendant could introduce

competent evidence to prove the underlying facts. If in fact defendant has nothing more than rumor

or hearsay, the Court should preclude the cross-examination.

Even if the defendant establishes a factual basis for the impeachment, the conduct must be

“probative of truthfulness or untruthfulness.” Fed. R. Evid. 608(b). “Acts probative of

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untruthfulness under Rule 608(b) include such acts as forgery, perjury, and fraud.” Ad-Vantage

Telephone Directory Consultants, Inc. v. GTE Directories Corp., 37 F.3d 1460, 1463 (11 Cir. th

1994); accord United States v. Novation, 271 F.3d 968, 1006 (11 Cir. 2001). While bankruptcy

th

fraud would qualify, merely “seeking discharge in bankruptcy does not show a disregard for truth

that would cast doubt on a witness’s veracity.” Ad-Vantage, 37 F.3d at 1464. Mere unethical

conduct is also insufficent. See id.(holding that fact that expert accounting witness had “borrow[ed]

from his clients, while ethically questionable, is . . . irrelevant to his truthfulness as an expert”).

Finally, even if the conduct would tend to prove the witness’s character for truthfulness, the

Court must still determine whether the conduct’s relevance is substantially outweighed by the

possibility of unfair prejudice. See Novation, 271 F.3d at 1006-07 (district court did not abuse its

discretion in finding that relevance of misconduct charges against testifying law enforcement officers

was outweighed by its prejudicial nature); Ad-Vantage, 37 F.3d at 1464-65 (trial judge erred in

failing to prohibit cross-examination of accountant concerning (a) allegation of forgery that resulted

in no sanctions, and (b) allegation of overreliance on partner’s work that resulted in sanctions more

than twenty years before trial testimony).

Therefore, the Government requests that the Court hold a hearing prior to the crossexamination of its witnesses concerning any potential examination regarding acts of misconduct.

III. THE COURT SHOULD PRECLUDE ANY EVIDENCE OF ANY WILLINGNESS BY

THE DEFENDANTS TO TAKE A POLYGRAPH EXAMINATION

As noted above in the statement of facts, the discussions relating to the possible taking of a

polygraph examination were quite abbreviated. However, any evidence concerning such the

possibility of such an examination should be excluded. See United States v. Vigliatura, 878 F.2d

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Accord United States v. Russo, 796 F.2d 1443, 1452-53 (11 Cir. 1986); United States v. Hilton,

1 th

772 F.2d 783, 785 (11 Cir. 1985); United States v. Phillips, 664 F.2d 971, 1028 (5 Cir. Unit B Dec. 28, th th

1981); United States v. Martino, 648 F.2d 367, 389 (5 Cir. June 19, 1981).

th

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1346, 1349 (11 Cir. 1989) (“A witness’s or defendant’s willingness to submit to a polygraph th

examination is inadmissible to prevent the improper bolstering of credibility.”).1

CONCLUSION

For the reasons set forth above, the United States requests that the Court grant its Motion in

Limine.

Respectfully submitted this the 22 day of December, 2006. nd

LEURA G. CANARY

UNITED STATES ATTORNEY

s/Andrew O. Schiff

ANDREW O. SCHIFF

Assistant United States Attorney

One Court Square, Suite 201

Montgomery, AL 36104

Phone: (334) 223-7280

Fax: (334) 223-7135

E-mail: andrew.schiff@usdoj.gov

Bar ID 43641

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IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) CR. NO. 2:06cr202-WKW

)

EUGENE CLECKLER and )

KIM CLECKLER )

CERTIFICATE OF SERVICE

I hereby certify that on December 22, 2006, I electronically filed the foregoing with the Clerk

of the Court using the CM/ECF system which will send notification of such filing to the following:

George Beck, Esq., and Ronald Brunson, Esq.

Respectfully submitted,

s/Andrew O. Schiff

ANDREW O. SCHIFF

Assistant United States Attorney

One Court Square, Suite 201

Montgomery, AL 36104

Phone: (334) 223-7280

Fax: (334) 223-7135

E-mail: andrew.schiff@usdoj.gov

Bar ID 43641

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