United States’ Motions in Limine 

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

UNITED STATES OF AMERICA § 

§ 

V. § Case No. 4:23-CR-225 

§ Judge Mazzant

KYLE CARTER § 

UNITED STATES’ MOTIONS IN LIMINE

The United States of America requests that this Court, before the beginning of 

evidence, direct the parties not to mention, refer to, interrogate concerning, or bring to the 

attention of the jury in any manner, including during jury selection, opening statements, 

closing argument, or witness examinations—directly or indirectly—any of the below listed 

matters without first approaching the bench and obtaining a ruling on their admissibility. 

The specific matters are as follows:

1) Impeachment of a witness with a statement that witness has neither written nor 

adopted as his or her own 

The Jencks Act at 18 U.S.C. § 3500 requires the government to furnish the defense 

with any statement made by a government witness which has been adopted or approved by 

the witness and which relates to his testimony at trial. The Congressional policy behind 

the Jencks Act was to protect witnesses from being impeached with words that are not their

own, or are an incomplete version of their testimony. Palermo v. United States, 360 U.S.

343 (1957). 

Statements made by a witness and summarized by a third person can be Jencks 

material but only if the witness has signed or otherwise adopted or approved them. United 

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States v. Newman, 849 F.2d 156 (5th Cir. 1988) (citing Campbell v. United States, 365 U.S. 

85 (1961)). Adoption or approval requires either that the agent read the entire statement to 

the witness or that the witness read the statement. Then the witness must manifest his or 

her assent by either signing or otherwise approving the statement. Newman at 160. 

In this case, the agents interviewed the witnesses, took notes, and drafted summaries 

of the interviews. However, unless it is specifically noted in an FBI 302, the witnesses 

have not adopted or approved of the statements. Consequently, the agents’ notes and 

reports are not the statements of the witnesses and cannot be used to impeach the witness. 

2) Discussion of the victim insurance company’s negligence

The defendant’s intent and alleged criminal conduct—not the insurance companies’ 

negligence or lack of diligence—are at issue in this case. It is improper under Fed. R. Evid. 

403 to argue, suggest, or blame the defendant’s conduct on the victim company’s 

negligence, as it both confuses the issues and misleads the jury. Furthermore, the Fifth 

Circuit has expressly held that a victim’s negligence is no defense to criminal conduct. 

United States v. Kreimer, 609 F.2d 126, 132 (5th Cir. 1980) (“The victim’s negligence is 

not a defense to criminal conduct. The truth about virtually every scheme to defraud could 

be obtained if the gull were clever and diligent enough. The truly careful are, perhaps, 

never defrauded because they are not deceived by the artifice. The laws protecting against 

fraud are most needed to protect the careless and the naive from lupine predators, and they 

are designed for that purpose.”) (internal citations omitted); Blachly v. United States, 380 

F.2d 665, 672 n. 13 (5th Cir.1967) (“[T] the monumental credulity of the victim is no shield 

for the accused.”) (internal citations omitted).

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3) Discussion of related civil lawsuits or civil or administrative remedies

Related civil lawsuits, regardless of their outcome, are irrelevant to the current 

federal criminal proceedings. Similarly, any suggestion that the insurance companies or a 

medical board may have or could have pursued civil or administrative action against the 

defendant has no bearing on this case. Raising the issue of or arguing about the potential 

availability of civil remedies is an improper call for jury nullification (see below). 

Furthermore, the existence of such remedies has no bearing on the elements of conspiracy 

to commit wire fraud, and should be excluded under Fed. R. Evid. 401 and 403. 

4) Any statement or argument calling overtly or tacitly for jury nullification 

Jury nullification is not a legally sanctioned function of the jury, and counsel is not 

permitted to present the concept of jury nullification to the jury, let alone encourage it. See, 

e.g., United States v. Perez, 86 F.3d 735, 736 (7th Cir. 1996) (holding that “defendant has 

no right to invite the jury to act lawlessly”). This prohibition includes any statement 

encouraging the jury not to follow the law or the Court’s instructions. This includes, but is 

not limited to, the following topics: 

a. Any discussion of nullification or invitation to contravene the law or this 

Court’s instructions related to conspiracy or wire fraud. 

b. Any testimony regarding the effect of these proceedings upon defendant’s 

families or any appeal for pity for the defendant or his family. 

c. Any argument, questioning, or discussion of the propriety of the 

government’s charges in this case or the return of the indictments by the 

Grand Jury. 

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5) Prohibited hearsay testimony

Additionally, counsel is barred by the rule against hearsay from eliciting testimony 

about what was told to a witness by someone else unless an exception to the hearsay rule 

applies. See Rule 801. For example, defense counsel is generally barred from eliciting 

from a witness what a defendant said to them. This would be an out of court statement by 

someone other than the witness offered to prove the truth of the matter asserted. Rule 

801(c). 

However, under the party opponent exception to the hearsay rule (Rule 

801(d)(2)(A)) the government is permitted to elicit this same testimony from the witness, 

because in this context it is being offered “against an opposing party.” Id. 

6) Raising an advice-of-counsel defense without notice or providing discovery

To date, the defense has not presented any discovery to the government or suggested 

that it is relying on any advice-of-counsel defense. Until it does so, the Court should 

disallow any testimony or evidence that the defendant engaged or involved counsel in the 

matters at issue in the case, including but not limited to, any assertion by counsel or 

defendant of a defendant’s good-faith reliance on advice of counsel; or any assertions by 

counsel or defendants that they acted in good faith because of their reliance on counsel, or 

on another co-conspirator’s counsel, and therefore did not willfully join the conspiracy. 

Prior to making such claims, the defendant must provide to the government all 

evidence pertaining to that advice, including the names of the attorneys on whose advice 

defendant relied, all statements of those attorneys and summaries of interviews with those 

attorneys, all correspondence and communications directed to those attorneys concerning 

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the subject matters at issue, all other facts relied upon by the attorneys when formulating 

the advice given, all communications containing the advice from counsel, and any other 

materials which tend to prove or disprove the advice-of-counsel defense, as well as provide 

access to such attorneys in order that the government may interview them concerning their 

representation and advice.

7) Probing into privileged communications

It would be highly inappropriate to question any government witness concerning the 

substance of privileged communications. It is “the duty of every lawyer to bring to the 

attention of the trial court possible ethical problems in the case.” United States v. White, 

743 F.2d 488, 494 (7th Cir. 1984). The ethical duty at issue is Texas Disciplinary Rule of 

Professional Conduct 4.04(a): “In representing a client, a lawyer shall not . . . use methods 

of obtaining evidence that violate the legal rights of such a [third] person.” Tex. R. Disc. 

Prof’l. Cond. 4.04(a). This Texas rule derives its language from the ABA’s Model Rule of 

Professional Conduct 4.4. See Model Rules of Prof’l Conduct R. 4.4 cmt 1. The first 

comment to the ABA Model Rule explains, 

Responsibility to a client requires a lawyer to subordinate the 

interests of others to those of the client, but that responsibility 

does not imply that a lawyer may disregard the rights of third 

persons. It is impractical to catalogue all such rights, but they 

include legal restrictions on methods of obtaining evidence 

from third persons and unwarranted intrusions into 

privileged relationships, such as the client-lawyer 

relationship. 

Id. (emphasis added). 

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8) Counsel’s personal beliefs

Counsel for all parties should be barred from mentioning their personal belief or 

opinion regarding anything related to this case or trial, including, but not limited to, any of 

the following: the innocence or guilt of the defendant; the United States’ prosecutorial 

determinations; the credibility of the defendant; the credibility of any witnesses presented 

during the trial; the evidence the parties present; and outcomes in other matters. 

9) Commenting on the government’s lawyers 

Any statement, question, or argument that directly or indirectly intimates that the 

Assistant United States Attorney(s) for the Eastern District of Texas control(s) the outcome 

of any case presented to the Grand Jury, including this case or the scheduling of any trial 

dates or dockets for any case, is inappropriate. Similarly, any statement accusing the 

Assistant United States Attorney(s) of prosecutorial misconduct, discovery violations, 

ethical violations, or any violation of federal or state law should be prohibited. 

10) Commenting on prosecutorial discretion and status of individuals in 

government’s investigation

Defendant should not be allowed to argue or otherwise comment that other people, 

who are witnesses and others who are not witnesses, and who may have been subjects or 

targets of the investigation or whose names may come up in testimony or evidence, were 

not or are not currently charged with a crime. The Executive Branch has exclusive 

authority and absolute discretion to decide whether to prosecute a case. Confiscation Cases, 

74 U.S. 454, 458-59 (1869); United States v. Nixon, 418 U.S. 683, 693 (1974). “By both 

tradition and constitutional mandate, the jury is given the responsibility of determining 

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guilt or innocence according to instructions of law delivered by the court.” United States 

v. Berrigan, 482 F.2d 171, 175 (3rd Cir. 1973). Accordingly, charging decisions are matters 

of prosecutorial discretions that are not relevant to or probative of the guilt or innocence of 

a defendant and reside outside the province of the jury. 

Further, Defendant should not inquire into whether the government has advised a 

witness that he or she is an unindicted coconspirator. This line of questioning is not 

appropriate in the presence of the jury, delves into irrelevant, inadmissible hearsay 

concerning a charging decision, and is meant to intimidate a witness. The Court is the 

appropriate party to inquire whether a witness is represented and to determine whether an 

unrepresented party requires stand-by counsel. 

11) Calls for sympathy 

Any action or statement to elicit pity or sympathy for defendant through their 

families, children, partners, or friends, or any statement regarding the effects on the 

defendant’s family, children, partners, or friends caused by this prosecution or possible 

convictions is improper and should be prohibited. 

12) Defendant’s family and children

Testimony or evidence about the defendant’s children or family is irrelevant and 

should be prohibited, unless the proponent can articulate a relevant and admissible basis to 

introduce such evidence. 

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13) Prison conditions

Conditions in federal prisons or prison camps are irrelevant and their mention 

should be prohibited. 

14) Sentence or punishment

Any reference to punishment or sentence the defendant may face should be 

prohibited. “Punishment is a matter exclusively within the province of the court and is not 

to be considered by the jury in arriving at an impartial verdict.” Rogers v. U.S., 422 U.S. 

35, 40 n. 2 (1975) (citation omitted). For the same reasons, Defendant should not reference 

the potential ramifications of a conviction on Defendant’s medical license, his medical 

practice and employees, or his ability to work. 

15) Convictions or pending charges

To the extent relevant, the United States will make every attempt to bring out on 

direct examination a witness’ criminal convictions or pending charges that could properly 

be used for impeachment. If the defense believes that there are additional convictions or 

pending charges that may be used for impeachment, the United States hereby requests that 

those additional convictions or pending charges be covered by this Motion in Limine and 

be brought to the attention of the Court and parties beforehand. 

16) Conduct of a witness outside Rule 609 and other bad acts

Any specific instances of conduct of a witness for the purpose of attacking or 

supporting his/her credibility should be prohibited, other than a conviction of a crime as 

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permitted in Fed. R. Evid. 609. Evidence should be barred regarding any prior bad acts 

any witness may have committed not resulting in a conviction or pending charge. 

17) Previous rulings from this Court

Without the express permission of the Court, evidence should be prohibited 

regarding any prior rulings by the Court, including, but not limited to, bond hearings, 

discovery motions, or other pretrial matters. 

18) Unrelated government misconduct, perceived or otherwise

Any government misconduct not related to this case, alleged or otherwise, is 

inappropriate for this trial. This includes any reference to current or former Presidents, 

FBI agents, or other public officials or issues. Such irrelevant comments are inappropriate 

under Rules 401, 402, and 403. 

19) Plea Offers and Negotiations with Counsel

It is improper for the jury to hear or consider any information relating to plea offers 

for the defendant. The nature of the offer made to the defendant is irrelevant under Rule 

401, as they have no material bearing on a fact pertaining to the elements of the charged 

offenses. Moreover, for the jury to hear about plea offers would also “confuse the issues” 

under Rule 403, in addition to expressly delving into a matter reserved for the Court—

punishment. See Rogers v. U.S., 422 U.S. 35, 40 n. 2 (1975) (citation omitted). 

20) Prior “good” behavior of the defendant and unapproved reputation and 

character testimony of the defendant

Reputation/character evidence pertaining to the defendant should be limited in the 

following ways: (1) the character trait at issue must be pertinent to the crimes charged in 

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the Indictment; (2) the defendant may not prove his character through specific acts of good 

conduct, only through reputation and/or opinion testimony; and (3) the trial court may limit 

the number of character witnesses a defendant may call. 

a. Character trait must be relevant

Before offering character evidence, a defendant must show that the evidence is 

relevant to the crimes charged in the indictment. Under Federal Rule of Evidence 

404(a)(1), a defendant may elect to offer evidence of “a pertinent trait of character.” The 

trait of character that the defendant is seeking to prove must be “pertinent” to the crimes 

charged in the indictment. In Rule 404(a)(1), “pertinent” is “read as synonymous with 

‘relevant’.” United States v. Angelini, 678 F.2d 380, 381(1st Cir. 1982). 

Courts have recognized that defendants may not introduce “good” character traits 

that are not relevant to the crimes charged. For instance, the First Circuit held that the traits 

of bravery, attention to duties as a police officer, and community spirit were not relevant 

in the prosecution of a police officer for mail fraud and perjury. United States v. Nazzaro, 

889 F.2d, 1158, 1168 (1st Cir. 1989). Similarly, the Second Circuit held that evidence that 

the defendant’s son suffered from cerebral palsy and that the defendant would never do 

anything to risk disabling himself from caring for the boy properly was not relevant in a 

RICO prosecution. United States v. Paccione, 949 F.2d 1183, 1201 (2nd Cir. 1991). 

However, if the defendant testifies, his character for truthfulness would be pertinent 

regardless of the crime charged. United States v. Darland, 626 F.2d 1235, 1237 (5th Cir. 

1980). But even where the defendant does not testify, the defendant’s character for 

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truthfulness would be pertinent in a prosecution for a crime involving deceit or 

falsification. Id. at 1237. 

Finally, it should be noted that Courts have held evidence of the general character 

trait of “law abiding” is pertinent no matter what crime is charged in the indictment. 

Angelini, 678 F.2d at 381-82; United States v. Hewitt, 634 F.2d 277, 279-80 (5th Cir. 1981).

b. Relevant character evidence must be in the form of opinion and/or 

reputation testimony.

Once the defendant has established that the character trait he seeks to prove is 

relevant, the defendant may then prove the character trait only through reputation and/ or 

opinion evidence. Fed. R. Evid. 405. A defendant may introduce specific instances of 

conduct only in cases where character or trait of character “is an essential element of a 

charge, claim or defense.” Fed. R. Evid. 405(b) (emphasis added). Here, traits such as 

Carter’s generosity as an employer, compassion for his wife, children, or parents, or even 

his capabilities as a doctor or past work with patients are not tangentially related to the 

elements of the conspiracy to commit wire fraud, let alone essential. 

As the Advisory Committee Notes explain (Fed. R. Evid. 405 Advisory Committee 

Notes (1972)): “the rule confines the use of evidence of [specific instances of conduct] to 

cases in which character is, in the strict sense, in issue and hence deserving of a searching 

inquiry. When character is used circumstantially and hence occupies a lesser status in the 

case, proof may be only by reputation and opinion.” Here, specific good deeds, such as 

the defendant’s’ care for his patients or donations to charity or religious groups cannot be 

introduced. Such acts are wholly irrelevant to the charged crimes and cannot be used by 

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the defendant to disprove the knowledge or intent elements of crimes. United States v. 

Marrero, 904 F.2d 251 (5th Cir. 1990); United States v. Doyle, 130 F.3d 523, 542 (2nd Cir. 

1997); United States v. Camejo, 929 F.2d 610, 612 (11th Cir. 1991) (“Evidence of good 

conduct is not admissible to negate criminal intent....[The witnesses’] proffered testimony 

was merely an attempt to portray [the defendant] as a good character through the use of 

prior ‘good acts.’ The trial judge properly exercised his discretion in excluding this 

testimony as inadmissible character evidence.”); see United States v. Hill, 40 F. 3d 164, 

169 (7th Cir. 1994) (concluding that the defendant’s failure to steal “test letters” was not 

probative of a character trait for law-abidingness in a case involving theft of mail by a 

postal employee). 

c. Limitation of the number of character witnesses

If the defendant shows that the character trait he seeks to prove is relevant and is 

using the proper means to prove the trait (opinion and/or reputation testimony), the final 

consideration is the number of character witnesses the trial court will allow. The trial court 

has discretion to limit the number of character witnesses. Michelson v. United States, 335 

U.S. 469, 480 (1948). Appellate courts have found no error when a trial court has limited 

the number of a defendant’s character witnesses. United States v. Scholl, 166 F.3d at 972 

(three witnesses); United States v. Johnson, 730 F.2d 683, 688 (11th Cir. 1984) (three 

witnesses); United States v. Koessel, 706 F.2d 271, 275 (8th Cir. 1983) (three witnesses); 

United States v. Henry, 560 F.2d 963, 965 (9th Cir. 1977) (two witnesses).

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21) Conflating rules, regulations, and laws related to the practice of medicine with 

rules, regulations, and laws related to the billing of health care services

Defendant should not conflate representations, rules, regulations, and laws related 

to the practice of medicine or provision of health care services with representations, rules, 

regulations, and laws related to the billing of health care services. Eliciting testimony or 

arguing in contravention of this motion in limine is irrelevant, confuses the issues, and 

would violate Rules 401, 402, and 403. 

22) Eliciting legal conclusion testimony from witnesses regarding their role in the 

charged conspiracy

Defendant should not elicit testimony from witnesses calling for a legal conclusion 

about whether they conspired with Defendant or whether they were engaged in a 

conspiracy. At the conclusion of trial, the Court will instruct the jury on the law and on 

the legal definition of a conspiracy. Asking witnesses to testify whether they meet the legal 

test for conspiracy calls for a legal conclusion in violation of Rule 701 and Rule 702, 

invades the province of both the Court and jury, is misleading to the jury, and confuses the 

issues.

Respectfully submitted,

DAMIEN M. DIGGS

United States Attorney

Eastern District of Texas

/s/ Adrian Garcia 

ADRIAN GARCIA

Assistant U.S. Attorney 

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Texas State Bar No. 24084522 

E-mail: Adrian.Garcia@usdoj.gov

/s/ Anand Varadarajan 

ANAND VARADARAJAN

Assistant United States Attorney

Texas State Bar No. 24088576 

Email: anand.varadarajan@usdoj.gov 

/s/ G.R. Jackson 

G.R. JACKSON

Assistant United States Attorney

Texas State Bar No. 00784874 

Email: GRoque-Jackson@usdoj.gov 

101 East Park Boulevard, Suite 500

Plano, Texas 75074

972-509-1201 

Fax: 972-509-1209 

CERTIFICATE OF CONFERENCE

The government conferred with counsel for the defendant, who indicated that they 

would file a separate response explaining their position. 

 

/s/ Adrian Garcia 

ADRIAN GARCIA

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