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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

United States of America, 

Plaintiff,

v. Case No. 3:18-cr-079

Judge Thomas M. Rose

Michael D. Busch, et al.,

Defendant.

ENTRY AND ORDER GRANTING WITHOUT PREJUDICE TO 

RECONSIDERATION AFTER A FOUNDATION OF RELEVANCY IS 

ESTABLISHED MOTION IN LIMINE TO EXCLUDE EVIDENCE 

REGARDING CASH SEIZED FROM SAFE (ECF 69), GRANTING IN 

PART MOTION IN LIMINE TO EXCLUDE ANY AND ALL DOCUMENTS 

OR MATERIALS FIRST PRODUCED BY THE GOVERNMENT TO THE 

DEFENSE ON MAY 17, 2019 (ECF 70) AND GRANTING MOTION IN 

LIMINE TO EXCLUDE OTHER ACTS (ALLEGED TAX VIOLATIONS)

(ECF 71). 

This matter is before the Court for decision on Motion in Limine to Exclude Evidence 

Regarding Cash Seized From Safe (ECF 69), Motion in Limine to Exclude Any and All 

Documents or Materials First Produced by the Government to the Defense on May 17, 2019 

(ECF 70), and Motion in Limine to Exclude Other Acts (Alleged Tax Violations) (ECF 71). 

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Motion in Limine to Exclude Other Acts (Alleged Tax Violations) (ECF 71)

The Government correctly states the standard for evaluating Rule 404(b) evidence: 

Fed. R. Evid. 404(b) evidence provides that other crimes, 

wrongs, or acts are 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. The Sixth Circuit has noted 

that Rule 404(b) “is actually a rule of inclusion rather than 

exclusion, since only one use is forbidden and several uses of such 

evidence are identified”. United States v. Blankenship, 775 F.2d 

735, 739 (6th Cir. 1985). 

The Sixth Circuit has held that in determining whether bad 

acts evidence is admissible under Rule 404(b), a court must engage 

in a three-step analysis. First, a party seeking to admit 404(b) 

evidence must first demonstrate that the other bad acts occurred; 

[s]econd the party must then cite the specific purpose for which the 

evidence is offered; and [t]hird the court must next consider 

whether the probative value of the evidence is outweighed by its 

potential prejudicial effect. United States v. Huddleston, 811 F.2d 

974, 976 (6th Cir. 1987)(per curiam; citations omitted)....

ECF 73, PageID 446-47. 

Then, the Government declines to provide a specific purpose for which the evidence is 

offered. Instead, the Government provides the entire list of permissible bases identified in 

Federal Rule of Evidence 404(b): 

Each of said factual items are relevant and admissible to 

help prove defendant’s motive, opportunity, intent, preparation, 

plan, knowledge, identity, and/or absence of mistake and/or 

accident in committing each of relevant charged offenses set forth 

in the Second Superseding Indictment.

ECF 73, PageID 448 (emphasis in original). 

“[A] party may not simply recite a ‘laundry list’ of possible purposes, but instead must 

clearly specify the permissible purposes of the proffered evidence.” United States v. Brown, 90 

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F. Supp. 2d 841, 844 (E.D. Mich. 2000) (citing United States v. Zelinka, 862 F.2d 92, 99 (6th 

Cir. 1988) and United States v. Kern, 12 F.3d 122, 125 n. 3 (8th Cir.1993)). “A laundry list of 

the enumerated 404(b) uses, such as the one included with the Government's motion, is 

insufficient to demonstrate that the evidence has a proper purpose.” United States v. Xavier, 

1:08-CR-00018, 2010 WL 1006419, at *1 (D.V.I. Mar. 17, 2010) (citing United States v. 

Sampson, 980 F.2d 883, 888 (3d Cir.1992) and United States v. Morley, 199 F.3d 129, 133 (3d 

Cir. 1999)); see also van de Kamp v. Transdermal Specialties, Inc., No. 16-CV-02768, 2018 WL 

6505538, at *5 (E.D. Pa. Dec. 10, 2018)(“I caution that a ‘laundry-list’ is the kiss of death for 

404(b)(2) arguments”). 

When Defendant confronted the Government with its failure to identify a “specific 

purpose” for which the proposed evidence is offered, ECF 76, PageID 475, the Government 

permitted itself to file a sur-reply that simply relisted all of 404(b)’s permitted uses in sentence 

form. ECF 77, PageID 484. 

The Government being unable to satisfy the second step of the analytical framework it 

proposed to the Court, Defendant’s Motion in Limine to Exclude Other Acts (Alleged Tax 

Violations) (ECF 71) is GRANTED. The Government is prohibited from introducing

evidence that indicates during the charged time period, Ms. Busch 

continually failed to accurate[ly] report, and/or under report 

revenue and income generated from cash sales at [the Busch 

Country Corner] retail store to state and federal taxing authorities,” 

and that AJB and MDB “illegally pa[id] store employees ... ‘under 

the table’ cash salaries that were not accurately reported to state 

and federal taxing authorities.

ECF 71, PageID 415. 

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Motion in Limine to Exclude Evidence Regarding Cash Seized From Safe (ECF 69)

Defendants, Amanda Jo Busch, Michael D. Busch and Busch's Country Corner, Inc.,

have moved the Court to prohibit the United States from introducing evidence relating to 

$191,135.00 in United States currency recovered from a safe located in the Busch family home 

in connection with a search warrant obtained and executed on the residence. Defendants assert 

that the cash in the safe has nothing to do with the subject matter of the crimes charged in the 

Second Superseding Indictment in this matter. ECF 69, PageID 361. 

The Government responds that it also: 

found at the residence...a large number of “bundles” of daily BCC 

business receipts. Included in each bundle were BCC cash 

register “ZTapes” which document the daily cash sales and 

receipts. Co-defendant AMANDA JO BUSCH ... never tallied or 

reported the cash sales figures documented on the daily “Z-Tapes” 

to BCC’s external bookkeeper .... 

The Government is prepared to show that the co-defendants 

SNAP fraud scheme was funded through a combination of 

techniques, to wit: skimming cash from BCC’s cash register, and 

co-defendants MICHAEL D. BUSCH’s and AMANDA JO 

BUSCH’s large cash withdrawals from the BCC bank account held 

at MainSource Bank, Acct # xxxx9510. This is the same account 

that all the SNAP reimbursement funds were deposited into by 

U.S. Government authorities. This is also the same account that codefendants MICHAEL D. BUSCH and AMANDA JO BUSCH 

were listed as owners.

ECF 73, PageID 445. 

The Government is BARRED from introducing evidence relating to cash found at the 

Busch residence until it has proven what it alleges above and moves the Court for permission to 

introduce it. 

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Motion in Limine to Exclude Any and All Documents or Materials First Produced by the 

Government to the Defense on May 17, 2019 (ECF 70)

Defendants seek suppression of evidence that the Government first provided to them on 

May 17, 2019. 

The Government protests that much of this information, concerning raw “SNAP 

redemption data,” is simply being provided in a different format, a format that would be 

necessary for a party to be able to utilize that data so as to produce materials for summary 

demonstrative charts. ECF 74, PageID 457 (“The Government elected to provide this more 

expansive version of the data in order to establish the necessary foundation under Fed. R. Evid. 

1006 for the in-court presentation of summary demonstrative charts.”). Apparently, the 

Government is the only party who needs this information in a usable format. The Government 

may use this information in the format provided to Defendants on July 17, 2018. 

The Government lists the rest of the discovery Defendants seek to suppress, defending its 

failure to disclose items a-f as forgivable because Defendants already had access to them:

The balance of the discovery items referenced in the Defense Motion in 

Limine is listed in the Government’s May 17, 2019 disclosure letter. (See 

Attachment “A”). 

a. The co-defendants had independent access to their own 

MainSource Bank records since they have been the listed owners 

of the two subject accounts for over 20 years. 

b. The FCN Bank account records were provided to the defense 

within three days after the Defense first requested them. These 

records include in part bank records of the co-defendants, Randall 

S. Busch, and Cheryl Busch. ...

c. The Fifth Third Bank records concern mortgage the co-defendants’ 

mortgage loan documents. The defendants independently had 

access to these records long before the Government ever had. 

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d. The tax records and associated documents subpoenaed from the 

offices of Joseph A. Burnett, CPA. Defendant AMANDA JO 

BUSCH independently received copies of all this material directly 

from Mr. Burnett’s CPA firm on or before the July 2018. 

e. The U.S. Bank documents concern a car loan involving the 

defendants’ GMC Denali motor vehicle. The defendants 

independently had access to all of these records long before the 

Government ever had. 

f. The miscellaneous purchase documents of the defendants’ other 

motor vehicles. The defendants independently had access to all of 

these records long before the Government ever had.

ECF 74, PageID 457-58. 

“Rule 16(a)(1)(E) require[s] production of specified information if the government 

intends to ‘use’ the information ‘in its case-in-chief at trial.’” Fed. R. Crim. P. 16 (2002 

commentary). The 2002 amendment to Rule 16 intended to make certain discovery burdens on 

defendants reciprocal with those already placed on the government. Id. Courts’ interpretation of 

that rule is fatal to the Government’s position: 

In United States v. Hsia, 2000 WL 195067, *1 (D.D.C. Jan. 21, 

2000), the court found, “Under the plain language of the Rule, 

defendant is required to turn over all such documents, regardless of 

their source or the means by which she came to possess them. 

The fact that the government is already in possession of the 

documents does not eliminate a defendant’s duty to disclose them.” 

Courts have reasoned, “Although 16(b)(2) contains specific 

exemptions from Defendant’s reciprocal-discovery obligations for 

work product and statements made by the defendant and potential 

witnesses,... the Rule does not exclude materials originally 

obtained from the government.” For example, in United States v. 

Lin Lyn Trading, Ltd., the court ordered defendants to disclose the 

U.S. Customs rules, decisions and internal rulings that defendants 

intended to introduce or otherwise rely upon in their case-in-chief. 

The Defendants are required to produce documents, objects, and 

reports of examinations and tests, as described Rule 16(b)(1)(A) 

and 16(b)(1)(B), if the item is within the Defendants' possession, 

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custody, or control and the Defendant intends to use the item in his 

or her case-in-chief at trial. 

United States v. Crinel, No. CR 15-61, 2016 WL 5779778, at *2 (E.D. La. Oct. 4, 2016). The 

burden on the Government under Rule 16(a)(1)(E) cannot be any less. 

Defendants’ motion is GRANTED as regards the version of the “SNAP redemption 

data” first provided to Defendants on May 17, 2019 and to items a-f in the list above. It is 

DENIED as regards items g, h, and i listed at ECF 74, PageID 458. 

DONE and ORDERED in Dayton, Ohio on Friday, June 7, 2019. 

s/Thomas M. Rose

________________________________

THOMAS M. ROSE 

UNITED STATES DISTRICT JUDGE

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