UNITED STATES DISTRICT COURT

SOUTHERN OHIO DISTRICT

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. CASE NO.: 2:11-CR-010(1)

JUDGE SMITH

SEAN MURPHY,

Defendant.

OPINION AND ORDER

This matter is before the Court on the Defendant’s Motion in Limine (Doc. 93). The

Government has responded, Defendant has filed a Reply and this Motion is now ripe for review. 

Defendant’s Motion consists of a list of nine references or items he seeks to exclude at trial. The Court

will discuss each in turn.

1. Exclude any reference to Sean Murphy being placed under arrest on January 23, 2009.

The Government responds that it intends to note the date of the Defendant’s arrest on January

23, 2009, because Defendant’s arrest caused his co-conspirators to react in a material manner. The

Government further states that it will not object to a limiting instruction relative to the arrest of

Defendant Murphy. The Defendant does not offer any further argument on this issue. 

 The Court therefore finds that the Government is permitted to note the date of Defendant

Murphy’s arrest for the sole purpose of showing how his co-conspirators reacted in furtherance of the

conspiracy. However, the Court will give a limiting instruction regarding the purpose for which this

testimony was received. 

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2. Exclude any reference to Sean Murphy being in jail since January 23, 2009.

The Government agrees that it does not intend to mention how long the Defendant has been in

jail. Therefore, Defendant’s Motion is GRANTED. There shall not be any reference to Defendant’s

incarceration, other than the date of his arrest discussed above. 

The letters referenced by the Government will be addressed in detail below, but they should be

redacted to reflect this ruling.

3. / 4. Exclude any letters Sean Murphy wrote to any law enforcement official dealing with

proffer issues and Exclude any letters not relating to the instant offense that contain

prejudicial information.

The Government represents that it met with Defendant’s counsel to discuss the letters the

Government will seek to admit into evidence. There are a number of letters that the Government agrees

it will not seek to introduce. There are seven letters currently in dispute that the Defendant agrees may

be probative to establish the alleged conspiracy consistent with United States v. Sanders, 95 F.3d 449,

453 (6th Cir. 1996), however, the Defendant argues that each of these letters is unfairly prejudicial. 

The Government does not specifically state the purpose for which it intends to introduce these

letters into evidence, however, the Defendant does not dispute that they are probative to the alleged

conspiracy. This Court must therefore apply the standard Rule 403 balancing test to determine whether

the probative value of each letter is substantially outweighed by the danger of unfair prejudice.

Huddleston v. United States, 485 U.S. 681, 688 (1988); United States v. Merriweather, 78 F.3d 1070,

1077 (6th Cir. 1996). The Sixth Circuit interprets “unfair prejudice” to mean “the undue tendency to

suggest a decision based on improper considerations; it does not mean the damage to a defendant’s case

that results from legitimate probative force of the evidence.” Sutkiewicz v. Monroe County Sheriff, 110

F.3d 352, 360 (6th Cir. 1997). The following is a summary of each of the letters the Government plans

to introduce:

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(A) In a letter from “Ruben Sanchez” to “Dawn Doucette”, postmarked May 11, 2009, defendant

Murphy who further identifies himself as “Nig,” uses code words which a witness will be able

to identify and explain to the jury. 

(B) In a letter from “Jason Departo” to “Dawn Doucette”, postmarked July 31, 2009, defendant

Murphy who further identifies himself as “Nigga,” discusses the use of the warehouse and the

activities of both Rob Doucette and “Joe.” 

(C) In a letter from Sean Murphy to Rob Doucette, dated November 2, 2009, defendant Murphy

discusses his “money chasing” skills. He further discusses co-conspirator “Joe” and how he

worked very hard for his “$$$.” He further discusses the “Great Wall” and how it was a “little

light of some coin.”

(D) In a letter from “Barry Troy” to Rob Doucette, postmarked December 3, 2009, defendant

Murphy who further identifies himself as “Nig,” discusses Rob Doucette’s access to his

(Murphy’s) property.

(E) In a letter from Sean Murphy to F.B.I. Special Agent (SA) Jason Costello, postmarked October

27, 2009, and dated September 21, 2009, defendant Murphy identifies himself as a “Master

Thief”who “is hanging up his hat.” He further advises that there is no honor among thieves.

(F) In a letter from “Murphy” to Brian Stevens, postmarked September 14, 2009, and dated August

19, 2009, defendant Murphy identifies himself as a “professional criminal” and advises that he

has been involved in legal maneuvering and manipulation “my whole life.”

(G) In a letter from Sean Murphy to Detective Timothy Ferrari, postmarked April 18, 2009, and

dated April 17, 2009, defendant Murphy describes himself as being a “non-violent offender” for

25 years. Murphy also discusses his ownership interest in a cellular telephone jammer which is

a unique device.

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During the pretrial, the parties again agreed to meet to discuss a possible resolution with respect

to these letters. The Court does find that some of the letters are admissible; however, there are some

parts that may need to be redacted. Further, the Court is concerned with the potential proffers by the

Defendant and any mention of the Defendant’s incarceration. Nonetheless, the Court will give the

parties the opportunity to agree to the admissibility of the letters with the agreed upon redactions. The

parties shall notify this Court with any outstanding issues that need to be resolved. 

5. Exclude any information obtained or evidence seized from the execution of the 1-23-2009

Search Warrant. (Carnival Folio, Brian Hetherman ID, William Palavacini ID, PA

Storage Bin Key).

The Government responds that it “intends to present a minimal amount of evidence seized during

the January 23, 2009 execution of a lawfully issued search warrant at defendant Murphy’s residence.” 

(Gov’t Response at 4, Doc. 100).

The Defendant has failed to offer any further explanation or argument as to why the information

described above should be excluded. Therefore, Defendant’s motion is denied as premature. The

Defendant is encouraged to file a supplemental motion regarding specific evidence he seeks to exclude

and to provide legal support for the exclusion. 

6. Exclude any information not provided in discovery.

The Government responds that it “has provided the defendant with items of evidence it intends

to introduce at trial. Supplemental discovery has been, and will continue to be provided upon its receipt

by undersigned counsel.” (Gov’t Response at 4, Doc. 100). 

The Court has previously ordered that the Government and the Defendant exchange any and all

evidence discoverable under Rule 16(a) of the Federal Rules of Criminal Procedure. (See Doc. 90). The

Court will again encourage counsel for the Government and the Defendant to comply with the Federal

Rules of Criminal Procedure in providing all discoverable information to opposing counsel. The Court

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will not issue a blanket ruling excluding all information not provided in discovery as requested by the

Defendant because circumstances do arise in the course of a trial where newly discovered evidence may

be introduced. However, the Court warns that such late production of evidence will not be viewed

favorably. 

Accordingly, Defendant’s Motion is DENIED. 

7. Make no reference to Sean Murphy's criminal records, prior bad acts and/or offenses.

The Government asserts that it does not intend to mention Defendant’s criminal record, however,

“Defendant should be put on notice that we are aware of that record in addition to prior acts that we may

attempt to utilize in our case in rebuttal depending on the nature of the evidence the defendant intends

to submit during its case.” (Gov’t Response at 4, Doc. 100). 

The Court acknowledges that such evidence may be relevant on rebuttal pursuant to Rule 404(b)

of the Federal Rules of Evidence. Rule 404(b) specifically provides:

Other Crimes, Wrongs, or Acts.—Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident, provided that upon request by the accused, the prosecution in a criminal case

shall provide reasonable notice in advance of trial, or during trial if the court excuses

pretrial notice on good cause shown, of the general nature of any such evidence it intends

to introduce at trial.

The Government must notify the Defendant and this Court immediately following any testimony

or evidence presented by the Defendant that it intends to rebut with other crimes, wrongs or bad acts

of the Defendant. The Court will then proceed with the following analysis.

A court presented with evidence submitted under Rule 404(b) must first decide whether there

is sufficient evidence that the other act in question actually occurred. United States v. Jenkins, 345 F.3d

928, 937 (6th Cir.2003) (citing United States v. Haywood, 280 F.3d 715, 719-20 (6th Cir.2002)). Next,

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a court must determine whether one of the factors justifying the admission of “other acts” evidence is

material. Id.; United States v. Acosta-Cazares, 878 F.2d 945, 948-49 (6th Cir. 1989), cert. denied, 493

U.S. 899. In other words, the factor must be “at issue” in the case. Acosta-Cazares, 878 F.2d at

948-49. If so, the court must then determine whether the "other acts evidence is probative of such

factors. Id. Finally, a court must determine, in accordance with Rule 403, whether the probative value

of the evidence is substantially outweighed by its prejudicial value. Id. 

Therefore, Defendant’s Motion is DENIED at this time, but may be reconsidered upon notice

of the Government of its intent to introduce any such evidence. 

8. Make no reference to Sean Murphy as a Ring Leader or Mastermind.

The Government responds that it believes that “defendant Sean Murphy was the leader of this

criminal enterprise. Depending on the nature of evidence admitted at trial, the government reserves the

right to express to the jury that defendant Murphy indeed led this criminal enterprise.” (Gov’t Response

at 4, Doc. 100). 

The Court agrees with the Government’s representation that it depends on the evidence admitted

at trial. If the evidence shows that the Defendant acted in a leadership role, then the term ring leader or

mastermind may be appropriate. If and when such term is used, the Court will consider any objection

carefully to make sure there is sufficient evidence to justify its use. Therefore, Defendant’s Motion is

DENIED.

9. Prevent the Government from coaching witnesses about the case before or during trial.

The Government asserts that “it is aware of its ethical obligations with respect to its presentation

of evidence. While we will prepare witnesses for their trial testimony, there will be no ‘coaching’

involved in that preparation.” (Gov’t Response at 5, Doc. 100). Accordingly, the Defendant’s Motion

is GRANTED and there shall be no “coaching” of witnesses before or during the trial. 

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DISPOSITION

Based on the aforementioned, Defendant’s Motion in Limine is GRANTED IN PART AND

DENIED IN PART. 

The Clerk shall remove Document 93 from the Court’s pending motions list.

IT IS SO ORDERED.

 /s/ George C. Smith 

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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