UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

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 Government’s Motion in Limine (Doc. 114). The

Defendant has responded and this matter is now ripe for review. 

The Government seeks to restrict the scope of cross-examination of certain Government

witnesses. The Government notes that Defendant Murphy is very familiar with one or more of its

witnesses. Given this familiarity, the Government is “concerned that the Defendant will attempt

to offer improper extrinsic evidence or attempt to illicit testimony on cross-examination which

does not fit within the parameters of Rule 608(b) and Rule 609 of the Federal Rules of Evidence. 

In response, the Defendant argues that his counsel intends to cross-examine Robert

Doucette and David Nassor on all of their previous convictions pursuant to Rule 609 of the

Federal Rules of Evidence. Rule 609 “Impeachment by Evidence of Conviction of Crime,”

specifically provides in pertinent part:

(a) General rule.—For the purpose of attacking the character for truthfulness of a

witness,

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(1) evidence that a witness other than an accused has been convicted of a

crime shall be admitted, subject to Rule 403, if the crime was punishable by death

or imprisonment in excess of one year under the law under which the witness was

convicted, and evidence that an accused has been convicted of such a crime shall

be admitted if the court determines that the probative value of admitting this

evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be

admitted regardless of the punishment, if it readily can be determined that

establishing the elements of the crime required proof or admission of an act of

dishonesty or false statement by the witness. 

Thus, the witnesses prior convictions may be admissible if, in accordance with Rule 609,

the conviction was punishable by imprisonment in excess of one year and the probative value

outweighs the prejudical effect; or the conviction constitutes a crime of dishonesty or false

statement. Further, pursuant to Rule 609(b), convictions over 10 years old “should be admitted

very rarely and only in exceptional circumstances.” United States v. Sloman, 909 F.2d 176, 181

(6th Cir. 1990). Additionally, there is a “rebuttable presumption that convictions over ten years

old are more prejudicial than helpful and should be excluded.” United States v. Sims, 588 F.2d

1145, 1150 (6th Cir. 1978). 

Defendant acknowledges that under Rule 608(b), a witness can be cross-examined about

specific acts that probe the witnesses’ character for truthfulness. Rule 608(b) specifically

provides: 

(b) Specific instances of conduct. 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, in the discretion of the court, if probative

of truthfulness or untruthfulness, be inquired into on crossexamination of the

witness (1) concerning the witness’s 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.

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The giving of testimony, whether by an accused or by any other witness, does not

operate as a waiver of the accused’s or the witness’ privilege against

self-incrimination when examined with respect to matters that relate only to

character for truthfulness.

The Defendant contends that as long as he has a good faith basis for asking the question on cross,

relating to a witness’ failure to respect the law, rules or regulations, then he is permitted to do so. 

Both the Government and the Defendant cite cases supporting their positions. The Court

acknowledges the cases cited by both the Government and the Defendant, however, absent

knowledge of the specific question defense counsel plans to ask, it is difficult to make a ruling at

this time. However, the Court warns the Defendant that improper extrinsic evidence will be

excluded. Further, any attempt to illicit testimony on cross-examination that is outside the

parameters of Rule 608(b) and Rule 609 is discouraged. If defense counsel has specific questions

in mind of such areas of inquiry that may draw an objection by the Government, he is encouraged

to raise them during a break at trial so this matter can be addressed outside the presence of the

jury. 

The Government further argues that evidence of prior drug use by a government witness,

intended to impeach that witness’ credibility or to show bias, is properly excluded under Rule

608(b). The Government relies on United States v. Phillips, 888 F.2d 38 (6th Cir. 1989). Defense

counsel specifically states that he intends to ask questions about these witnesses drug activities

because of the degree of their usage and their trafficking. Defendant relies on United States v.

Brown, 946 F.2d 1191, 1195-96 (6th Cir. 1991). 

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In Phillips, Larry and Rebecca Layne, witnesses for the Government admitted past drug

use on direct examination and were cross-examined extensively about past drug use, however,

they denied using cocaine at a party hosted by Mr. Bray. The defendant proffered testimony of

two witnesses who observed the Laynes sniffing cocaine during that party. The trial judge

excluded this testimony because it was “so far removed from [the] case” and “might be more

damaging than it would be probative.” The Sixth Circuit held that “the extrinsic evidence of prior

drug use by the government’s witnesses was properly excluded under the trial judge’s exercise of

his discretion.” Phillips, 888 F.3d at 42. 

However, the Phillips holding was distinguished in United States v. Atkinson, 2005 U.S.

Dist. LEXIS 36369 (N.D. Ohio 2005), where the Court noted that Rule 608 “relates solely to the

admissibility of extrinsic evidence regarding specific instances of conduct - - it would not preclude

questioning the government’s witnesses on cross-examination regarding their alleged drug use.” 

Further, the Sixth Circuit in United States v. Martinez, 59 Fed. Appx. 638 (6th Cir. 2003), limited

the cross-examination of the government witness’ drug use to the period in which Defendant was

alleged to have committed the instant offense. The Matinez Court further noted that a witnesses’

use of drugs is relevant only to his ability to perceive the underlying events and to be able to

testify lucidly at trial. Id. at 645-46 (citing United States v. Lanier, 33 F.3d 639, 657 (6th Cir.

1994)). 

Therefore, to the extent that defense counsel plans to question the Government witnesses

on their past drug use as it relates to matters other than the witnesses’ character for truthfulness,

such as the witnesses’ mental capacity, motive and bias, it need not be excluded under Rule 608. 

Further, “[e]vidence of a witnesses’ prior drug use may be admitted insofar as it relates to his

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possible inability to recollect and relate.” Atkinson, 2005 U.S. Dist. LEXIS at *3 (quoting United

States v. Mojica, 185 f.3d 780, 788 (7th Cir. 1999)). Defense counsel is further limited to

questioning the Government witnesses’ about their drug use during the period of the alleged

conspiracy. 

Defense counsel also seeks to question David Nassor regarding an injury he sustained on

August 8, 2008, and its effect on his memory and communication skills. Similar to the

aformentioned questioning regarding a witness’ prior drug use, the Defendant may question a

witness regarding his possible inability to recollect and relate. 

Finally, defense counsel seeks to question one of the Government’s witnesses who is out

on bond and under Pretrial Supervision. Defense counsel specifically references questioning this

witness about his possible violations while under Pretrial Supervision. However, the Court has

checked with our Pretrial Office regarding the Government’s witness who is under their

supervision and there have been no reports of any possible violations. Defendant is not permitted

to go on a fishing expedition and ask questions about potential violations without substantial basis

to do so. However, if the Defendant is aware of specific pretrial violations, this shall be raised

with the Court during a break in the trial before Defendant’s cross-examination of this witness. 

In conclusion, the Court encourages both parties to abide by the Federal Rules of

Evidence during both direct and cross-examination of all witnesses. With respect to some specific

testimony that may be sought, the aforementioned rulings shall provide guidance to counsel.

Defense counsel is encouraged to request that the Court hear any further related issues during a

break in the trial. Accordingly, the Government’s Motion in Limine is GRANTED. 

The Clerk of this Court shall remove Document 114 from the Court’s pending motions

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list.

IT IS SO ORDERED.

 /s/ George C. Smith 

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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