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MICHAEL BAILEY 

United States Attorney 

ANNA WRIGHT

Assistant U.S. Attorney 

NATHANIEL J. WALTERS 

Assistant U.S. Attorney 

State Bar No.: 029708 

405 West Congress, Suite 4800 

Tucson, Arizona 85701-5040 

Telephone: (520) 620-7300 

E-mail: anna.wright@usdoj.gov nathaniel.walters@usdoj.gov Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 vs. 

Scott Daniel Warren, 

 Defendants.

CR-18-00223-RCC (DTF) 

GOVERNMENT’S MOTION IN LIMINE 

TO PRECLUDE DEFENDANT FROM 

INTRODUCING SELF-SERVING 

HEARSAY STATEMENTS 

The United States of America, by and through its undersigned attorneys, files its 

motion in limine to preclude the defendant from introducing his own self-serving, out-ofcourt statements through any method, i.e., (1) cross-examination of the government’s 

witnesses; (2) direct examination of the defendant himself; and/or (3) direct examination 

of any other defense witness. 

I. Discussion 

The United States may use a defendant’s statements against him under Federal Rule 

of Evidence 801(d)(2) because a defendant is an opposing party. In this context, the 

statements would not be hearsay. But a defendant cannot rely on this same Rule to 

introduce his own out-of-court statements because, if he does so, the statements are no 

longer being offered against him; rather, they are being offered on his behalf. Rule 

801(d)(2) does not apply in this context by its own terms. Cf. United States v. Ortega, 203 

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F.3d 675, 682 (9th Cir. 2000) (citing Williamson v. United States, 512 U.S. 594, 599 

(1994)). 

Restricting a defendant’s ability to elicit inadmissible hearsay statements on crossexamination of government witnesses or through other means is not an unconstitutional 

infringement on his due process, Fifth Amendment and/or Confrontation Clause rights. 

See Ortega, 203 F.3d at 682-83. 

Rather, to let the defendant present his story through cross-examination of 

government witnesses or through examination of other defense witnesses would allow the 

defendant to place his own statements “before the jury without subjecting [himself] to 

cross-examination, precisely what the hearsay rule forbids.” United States v. Fernandez, 

839 F.2d 639, 640 (9th Cir. 1988). The law does not permit him to slip his story in through 

the back door. See Ortega, 203 F.3d at 683. 

Federal Rule of Evidence 106 (the Rule of Completeness) does not lead to a different 

conclusion. Rule 106 applies only to written and recorded statements, and it does not 

compel the admission of otherwise inadmissible hearsay evidence. See id. at 682; see also

United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996); United States v. Liera-Morales, 

No. 12-10548, 2014 WL 3563356, *6 (9th Cir. July 21, 2014) (no abuse of discretion for 

District Judge Zipps to refuse to allow defendant to present otherwise inadmissible, 

exculpatory portions of post-arrest interview on Rule 106 theory). 

II. Conclusion 

As in Ortega, the government’s requested limitation merely serves to preclude the 

possibility that the defendant will be able to evade cross-examination on his explanation 

for why he committed the charged acts. Accordingly, the United States respectfully seeks 

an order precluding the defendant from introducing his own hearsay statements through 

the testimony of other witnesses or by other improper means. 

/// 

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 Respectfully submitted this 21st day of May 2019. 

MICHAEL BAILEY

United States Attorney 

 District of Arizona 

 /s/ Anna R. Wright & Nathaniel J. Walters

 ANNA WRIGHT &

 NATHANIEL J. WALTERS 

 Assistant U.S. Attorneys 

Copy of the foregoing served electronically or by 

other means this 21st day of May 2019, to: 

All ECF participants 

Case 4:18-cr-00223-RCC-DTF Document 218 Filed 05/21/19 Page 3 of 3