UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

CRIMINAL NO. 09-20295

vs. HON. MARIANNE BATTANI

D-2 SAMUEL L. RIDDLE, JR.

and

D-3 MARY WATERS,

 Defendants.

______________________________/

UNITED STATES’ MOTION IN LIMINE

TO PRECLUDE EVIDENCE OR ARGUMENT

CONCERNING IMPROPER PROSECUTION

The United States of America, by and through its attorneys, Robert Cares and David

A. Gardey, Assistant United States Attorneys, for the Eastern District of Michigan, moves

in limine to preclude evidence or argument related to any claims by defendants Samuel L.

Riddle, Jr. and Mary Waters of selective, vindictive, or other improper prosecution. More

particularly, the government asks that the defendants be precluded from asking questions

during voir dire, or asking questions or submitting evidence or arguing at trial, relating to the

following:

1. The general claim that they are being selectively and/or vindictively prosecuted, or

that their prosecution violates the First Amendment or their other rights as United States

citizens;

2. Any claim that they are being prosecuted for who they are, or because they are “fall

guys,” and any other claim that they have been chosen for prosecution for any reason other

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 1 of 19
2

than the fact that the government had allegations, which were substantiated, that they violated

the law as described in the indictment;

3. The claim that the government has failed to investigate or prosecute the “enablers

of corruption” or other people or companies that gave bribes in the transactions at issue in

this case;

4. The claim that the Department of Justice, the United States Attorney’s Office, or

the law enforcement personnel in this case have brought this case because of politics or any

other improper considerations; 

5. The claim that the defendants’ conduct is simply consistent with “politics as usual”;

6. The claim that the government engaged in some sort of outrageous misconduct

during the investigation of this case; and 

7. The claim that the jury should acquit the defendants because jurors should not

condone the government’s use of cooperating individuals. 

The government further asks that the defendants be required to obtain leave of the

Court prior to referring to any of the areas outlined above.

The government’s efforts to seek concurrence in this motion from defense counsel

were unsuccessful.

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 2 of 19
3

For the reasons supported by the attached brief, the United States asks that its motion

in limine be granted.

Respectfully submitted,

BARBARA L. MCQUADE

United States Attorney

s/Robert Cares 

ROBERT CARES

Assistant U.S. Attorney

s/David A. Gardey 

DAVID A. GARDEY

U.S. Department of Justice

211 West Fort Street, Suite 2001

Detroit, Michigan 48226-3211

Telephone: (313) 226-9591

DATED: May 12, 2010

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 3 of 19
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

CRIMINAL NO. 09-20295

vs. HON. MARIANNE BATTANI

D-2 SAMUEL L. RIDDLE, JR.

and

D-3 MARY WATERS,

 Defendants.

______________________________/

BRIEF IN SUPPORT OF UNITED STATES’ MOTION

IN LIMINE TO PRECLUDE EVIDENCE OR ARGUMENT

CONCERNING IMPROPER PROSECUTION

BARBARA L. MCQUADE

United States Attorney

ROBERT CARES

Assistant United States Attorney

211 W. Fort Street, Suite 2001

Detroit, MI 48226

Phone: (313) 226-9736

E-Mail: robert.cares@usdoj.gov

DAVID A. GARDEY (P48990)

Assistant United States Attorney

211 W. Fort Street, Suite 2001

Detroit, MI 48226

Phone: (313) 226-9591

E-Mail: David.Gardey@usdoj.gov

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 4 of 19
ii

TABLE OF CONTENTS

CONTROLLING AUTHORITIES. ......................................... iii

STATEMENT OF ISSUES. ............................................... iv

I. INTRODUCTION. ................................................. 1

II. ARGUMENT. ..................................................... 1

A. Improper Prosecution Is A Matter of Law For the Court. . . . . . . . . . . . . . . 1

B. Politics As Usual Is An Improper Argument.. . . . . . . . . . . . . . . . . . . . . . . . 3

C. Government Misconduct Is An Improper Argument.. . . . . . . . . . . . . . . . . . 5

D. Admission of Argument or Evidence of Improper Prosecution

or Unfair Trial Would Violate Rules of Evidence.. . . . . . . . . . . . . . . . . . . . 7

III. CONCLUSION.................................................... 11

CERTIFICATE OF SERVICE. ............................................ 12

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 5 of 19
iii

TABLE OF CONTROLLING AUTHORITIES

United States v. Abboud, 438 F.3d 554 (6th Cir. 2006)

United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973)

United States v. Fieger, 2008 WL 996401 (E.D. Mich. April 8, 2008)

United States v. Riddle, Case No. 09-20025 (E.D. Mich. January 6, 2010)

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 6 of 19
iv

STATEMENT OF ISSUE

The issue presented by this motion is as follows:

1. Whether the defendants should be allowed to introduce evidence or argument

regarding claims of improperly motivated or conducted investigation and prosecution,

where the Sixth Circuit has held that such evidence and argument should not be

placed before the jury and where such evidence and argument are irrelevant to the

charges in the indictment.

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 7 of 19
1

I. INTRODUCTION

The law is clear that a claim of selective, vindictive, or other improper prosecution is

not a defense on the merits of the case and may not be addressed to the jury. Rather, such

a claim is a legal argument that may be directed only to the Court. Permitting the defendants

to raise these issues at trial would serve, at best, to unduly prolong the proceedings and

confuse the jury. At worst, allowing the defendants to explore this area would inflame the

passions of the jury, unfairly prejudice the government, and invite a miscarriage of justice.

Evidence and argument on the matters raised in the defendants’ various media and public

relations efforts and on any other claim that the prosecution is improper, have no place before

the jury.

II. ARGUMENT

The defendants’ possible improper prosecution claims essentially break down into the

categories outlined above in the Motion in Limine. The law is clear, however, that such

arguments or evidence regarding these points must be excluded from trial.

A. Improper Prosecution Is a Question of Law for the Court

The issue of whether the government engaged in selective or vindictive prosecution

of the defendants is a legal question for the Court, not a factual issue for the jury. United

States v. Abboud, 438 F.3d 554, 579-580 (6th Cir. 2006). As the Sixth Circuit explained in

Abboud:

[B]ecause the defense of selective prosecution is a matter that is independent of

a defendant’s guilt or innocence ... it is not a matter for the jury. “By both tradition

and constitutional mandate the jury is given the responsibility of determining guilt

or innocence according to instructions of law delivered by the court. The question

of discriminatory prosecution relates not to the guilt or innocence of appellants,

but rather addresses itself to a constitutional defect in the institution of the

prosecution.” 

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 8 of 19
2

Id. at 579 (quoting United States v. Berrigan, 482 F.2d 171, 175 (3d Cir. 1973) (emphasis

added)). While Abboud only explicitly addresses claims of selective prosecution, its

reasoning applies equally to any claim that the prosecution itself is improper. That is why

evidence and argument that the prosecution is improper may only be raised in a pre-trial

motion to dismiss the indictment. See Fed.R.Cr.P. 12(b)(3)(a) (requiring a motion alleging

a defect in instituting the prosecution to be raised before trial); see also Berrigan, 482 F.2d

at 175 (same). 

In United States v. Fieger, 2008 WL 996401 (E.D. Mich. April 8, 2008), Judge

Borman addressed similar claims of improper and politically-motivated prosecution made

by the defense. Judge Borman granted almost every area of the government’s motion in

limine and ordered the defense not to raise its claims of a political or improper prosecution

during the trial. Id. at *1-3. 

In the same way, in United States v. Riddle, Case No. 09-20025 (E.D. Mich.), the

United States filed a similar motion concerning claims of improper prosecution by defendant

Riddle. See Docket No. 102 in Case No. 09-20025. Judge Cohn granted this request and

precluded defendant Riddle from introducing evidence or arguing to the jury that he was

faced with an improper or selective prosecution. United States v. Riddle, Case No. 09-

20025, Order Regarding Pretrial Motions (E.D. Mich. January 6, 2010) (Docket No. 104).

The defendants should also be precluded from suggesting that they were selectively

or otherwise improperly investigated or prosecuted during opening statement, closing

argument, and while presenting their case in chief. They should also be restricted, in the

same fashion, while cross examining government witnesses, for the same reasons that similar

arguments were forbidden on cross examination in Berrigan.

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 9 of 19
3

In Berrigan, a priest and a nun were charged with smuggling letters from a prison,

among other crimes. At trial, they attempted to introduce evidence that they were being

prosecuted, in part, because of “their outspoken views and position of leadership in deeply

opposing the war in Viet Nam.” Berrigan, 482 F.2d at 177. They also argued that the

smuggling of letters out of prison was commonplace and that very few prosecutions resulted

therefrom. Id. at 179. The Third Circuit affirmed the trial court’s decision to limit the crossexamination of two government witnesses through questions which would have gone to these

points. Id. at 180. Such questions are “separate and distinct” from the witness’s bias or the

credibility of his testimony. Abboud, 438 F.3d at 580.

B. “Politics As Usual” Is An Improper Argument

One subset of the arguments that the United States seeks to exclude is any claim that

the payment of bribes to public officials is just politics as usual that should not be punished

criminally. In this regard, the defendants may well suggest that the law is unfair or

burdensome because their conduct is simply consistent with the way the political system is

set up. Likewise, the defendants may argue that their conduct is simply what all lobbyists

do and, to the extent their conduct violates the law, then the law is unrealistic or unfair. Such

argument, which concedes the conduct but simply suggests to the jury that even if such

conduct is technically illegal it is proper, necessary, or simply the way of life in politics,

seeks jury nullification and should be barred. See, e.g., United States v. Warledo, 557 F.2d

721, 730 (10th Cir. 1977) (affirming exclusion of evidence offered to explain the defendants’

motives as irrelevant to whether their activity was “wrongful” under the Hobbs Act); United

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 10 of 19
4

States v. Boardman, 419 F.2d 110, 114 (1st Cir. 1969) (affirming exclusion of evidence

regarding the defendant’s political beliefs because it was irrelevant to whether he acted

knowingly and deliberately).

In addition, any defense premised on a theory that a defendant’s actions were “politics

as usual” would necessarily implicate evidence or argument (or both) related to politics,

politicians, lobbyists, or activities not relevant to the instant charges. In an analogous

situation, the Second Circuit in United States v. Stirling, 571 F.2d 708, 735 (2d Cir. 1978)

strongly denounced efforts to defend a securities fraud case on the basis of defense

questioning which implied that the charged criminal activities amounted to proper and

routine business practice:

[The defendants] argue that they were prejudiced by the district court’s

decision to bar questions put by them to their witnesses regarding the

“normalcy” or “usualness” of certain Greater Gulf practices. The district court

instructed counsel not to ask witnesses about “the legal consequences of

things,” such as whether activities were “wrong,” “misleading,” “proper,” or

“ethical.” For example, in response to a question from counsel for the

appellants, a state court judge from Mississippi testified that because

prominent people with good reputations were involved in Greater Gulf, he

assumed that it was “normal” for a non-profit corporation to be used to

implement the project. Such testimony is not even arguably admissible. It

would have been an abdication of responsibility if the trial judge had not

interrupted, as he did, to instruct counsel not to ask such questions.

571 F. 2d at 735-36.

Evidence regarding the acts or conduct of other politicians, lobbyists, consultants, or

individuals is irrelevant to the issues in this case and, if allowed, would distract and confuse

the jury. No one is on trial in this case other than the defendants, and the jury should not be

presented with evidence as to whether other individuals committed similar acts. Accordingly, the defendants should be precluded from making argument or presenting evidence

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 11 of 19
5

regarding similar “political” or “lobbying” acts engaged in by others or suggesting that the

defendants’ conduct was simply part of politics or “politics as usual.”

C. Government Misconduct Is An Improper Argument

Another subset of the arguments that the United States seeks to exclude are claims of

outrageous government conduct. There is an “increasing tendency in criminal cases to try

some person other than the defendant and some issues other than his guilt.” United States v.

Griffin, 867 F. Supp. 1347, 1347 (N.D. Ill. 1994) (citation omitted), aff’d, 84 F.3d 820 (7th

Cir. 1996). The “thrust of the defense” in these types of cases “is this: the prosecution was

not nice or could have done it better and so the jury ought to acquit, whether or not guilt has

been proved beyond reasonable doubt.” Griffin, 867 F. Supp. at 1347. In the face of this

increasing tendency to interject themes of “government misconduct” into a defense strategy,

courts routinely have granted motions in limine “to bar defendants from presenting evidence

or making arguments to the jury suggesting that they should be acquitted because the

government engaged in misconduct in the course of its investigation.” United States v.

Shields, 1991 WL 236492, at *3 (N.D. Ill. 1991); see United States v. Simpson, 226 Fed.

Appx. 556, 562 (6th Cir. 2007) (upholding district court decision barring defense from

presenting vindictive prosecution claim to jury).

The impropriety of arguing allegations of governmental misconduct to the jury is

twofold. First, and most fundamentally, courts have rejected the outrageous government

conduct defense and have held that such claims afford no defense to a criminal prosecution

as a matter of law. See, e.g., United States v. Boyd, 55 F.3d 239, 241-42 (7th Cir. 1995).

Boyd is unequivocal in its holding that “outrageous government conduct” is no defense to

a criminal charge, and the jury thus should not be exposed to irrelevant allegations of this

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 12 of 19
6

sort. Second, even before the Abboud decision, the Sixth Circuit and other courts have held

that the issue of government misconduct is a matter of law for determination by the court:

“the issue of outrageous government conduct is not an issue for the jury.” United States v.

Swiatek, 819 F.2d 721, 726 (7th Cir. 1987) (noting that every circuit which has considered

the issue has held that the issue is not a jury question) (citations omitted); United States v.

Payne, 962 F.2d 1228, 1232 (6th Cir. 1992) (defense of outrageous government conduct is

to be decided by the court and not a jury).

There are numerous ways in which the defendants may attempt, either directly or

subtly, to improperly argue alleged government misconduct as a defense. Certain of these

arguments may occur in statements to the jury, while others may occur through improper

cross-examination of either government or defense witnesses. By way of illustration, the

defendants could attempt to improperly argue alleged government misconduct as a defense

by suggesting the government’s investigation was abusive and, itself, violated the law or

ethical requirements. None of these allegations are appropriate for consideration by the jury

and merely attempt to shift the focus from the defendants’ criminal conduct to the

government’s conduct, which is not an issue for the jury. Indeed, none of the arguments are

legally relevant and simply invite the jury to acquit the defendants without regard to

admissible evidence. To the extent the defendants wish to raise these issues, they are only

appropriate for consideration by the Court, not the jury.

As one subset of the potential improper arguments of “outrageous government

conduct” noted above, it is improper to argue that the jury should acquit the defendants

because jurors should not condone the government’s use of cooperating individuals, the

decision to enter into plea agreements with certain individuals, or the decision to immunize

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 13 of 19
7

individuals in order to obtain testimony. Of course, the defendants may properly crossexamine any witness as to the benefits they received as a cooperating individual, the nature

of their plea agreement with the government, or any grant of immunity, so as to raise issues

regarding the credibility of the particular witness as a consequence thereof. However, while

the defendants may permissibly argue that none of the cooperating witnesses testifying in the

case should be believed because of benefits they have received, the defendants should not

be permitted to argue that the jury should acquit them because it is, or should be, improper

for the government to engage in the practice of using cooperating individuals, or offering

plea agreements or immunity to witnesses in exchange for testimony. Such an attack upon

the prosecutorial decisions in this case constitutes a “government misconduct” argument, as

discussed above, and seeks only to incite jury nullification.

D. Admission of Argument or Evidence of Improper Prosecution

or Unfair Trial Would Violate Rules of Evidence

Federal Rule of Evidence 402 precludes evidence or argument about the defendants’

theories of improper prosecution on the grounds of relevance. It is black-letter law that a

defendant “does not have an unfettered right to offer testimony that is incompetent,

privileged, or otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois,

484 U.S. 400, 410 (1988). As explained above, evidence or argument suggesting that the

defendants were improperly investigated or prosecuted, or that other companies or

individuals should have been prosecuted, are irrelevant to their guilt or innocence.

Accordingly, it is inadmissible under Rule 402.

If Abboud were not the controlling law of this Circuit, and if this evidence were

somehow marginally relevant, these arguments and this evidence would still be excluded

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 14 of 19
8

from trial by Federal Rule of Evidence 403. Rule 403 directs the Court to exclude even

relevant evidence, when its “probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury.”

Indeed, even before Abboud was decided, the Sixth Circuit affirmed a trial judge’s

Rule 403 ruling which precluded questioning of a government agent regarding the

government’s motives in prosecuting a defendant. In United States v. Burge, the defendant

attempted to call a government agent to show that “the current prosecution was but one part

of a pattern of government harassment of Defendant aimed at coercing his cooperation in

other government investigations.” 990 F.2d 244, 248 (6th Cir. 1992) (internal quotations

omitted). In upholding the trial court’s evidentiary ruling, the Sixth Circuit noted that “[t]rial

judges retain wide latitude insofar as the Confrontation Clause is concerned to impose

reasonable limits on cross-examination based on concerns about, among other things, . . .

confusion of the issues . . . or interrogation that is . . . only marginally relevant.” Id. at 249.

The Sixth Circuit explained that the inquiry was relevant because it may have “cast doubt on

the credibility of evidence or testimony presented by the government.” Id. at 248.

Nevertheless, “the defendant’s right to examine a government witness to elicit evidence of

bias is not absolute.” Id. at 248-249. The Sixth Circuit concluded that the trial court retained

discretion to bar the inquiry, noting that the “testimony excluded certainly had a potential to

confuse the jury as to the issues in the case.” Id. at 249.

In this case, the prior statements of Riddle underscore that the only effect of an

improper prosecution argument would be to inflame the passions of the jury, unfairly

prejudice the government, and confuse the issues at trial. Since the investigation of Riddle

and Waters became public in June 2009, defendant Riddle in particular has continuously and

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 15 of 19
9

publicly used sensational rhetoric to denounce the investigation. For example, on December

19, 2009, Riddle stated, “What is occurring here is you have one of the most political

divisions of the United States Department of Justice operating right here in Detroit. These

punks think they are going to intimidate us and beat us down and I call ‘em punks because

we’re not seeing the administration of justice. What we’re seeing is they’re trying to cover

their tracks after they lost the Geoffrey Fieger case. The terrorists beat ‘em down. Now a

motorcycle gang is beating ‘em down. Well, I’m not going down.” Riddle Interview on Real

Talk, WADL-38 Television Broadcast, December 19, 2009. 

In a June 2009 television interview, Riddle attacked the political nature of the

investigation against him and Mary Waters. Riddle claimed that the prosecution of him and

Waters was political in nature, with Congresswoman Carolyn Kilpatrick directing the

prosecution based on his claim that the Justice Department was seeking to eliminate Waters

as a political opponent. Let It Rip, Interview of Samuel Riddle by Huel Perkins, WJBK-Fox

2, June 18, 2009.

When the Indictment was unsealed, Riddle stated, “‘I am not going to be the fall

guy.’” The Detroit News, “Riddle Vows ‘Tooth and Nail’ Court Fight,” July 16, 2009 at 17A.

According to the article, “Riddle unleashed a diatribe against federal authorities and Synagro

Technologies Inc.” Id. “‘The culture of corruption will go nowhere until they go after the

enablers of corruption . . .,’ Riddle said.” Id. On July 1, 2009, Mr. Riddle appeared for an

interview with Paul W. Smith on the radio on WJR-AM. During that interview, Riddle

criticized the government and the FBI for failing to “go after the enablers of corruption,” and

instead for pursuing “salacious” allegations. In a different radio interview conducted on June

17, 2009, Riddle also criticized the government’s prosecution saying that “you also have to

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 16 of 19
10

understand the motivations of the Department of Justice. You know this is a department of

justice that is one of the most political in the nation.” The Mitch Albom Show, WJR-AM,

June 17, 2009. 

During the course of the case against defendant Riddle pending before Judge Cohn,

both before and during trial, Riddle did not hesitate to attack Judge Cohn directly and imply

that he was not receiving a fair trial. Riddle may seek to pursue similar tactics by eliciting

sympathy from the jury by claiming that this Court is not giving him a fair trial. For

example, in the case before Judge Cohn, Riddle attacked Judge Cohn and the fairness of the

upcoming trial in that case, calling Judge Cohn a “tyrant” and a “bully.” In a December 3,

2009 story in The Detroit News, the newspaper reported that Riddle stated: “‘It’s not fair,’

Riddle said Wednesday. ‘He’s giving me less time to prepare for the case than he is giving

to sentence (former Detroit City Councilwoman) Monica Conyers,’ a co-defendant in the

case. Conyers pleaded guilty this summer and awaits sentencing.” Riddle added: “‘I may

well be being denied the right to effective counsel in terms of case preparation.’” 

Were Riddle to make similar accusations against this Court, such statements would

have nothing to do with whether or not the defendants engaged in a conspiracy to commit

bribery, aided and abetted bribery, or committed the other crimes charged in the Indictment,

which are the only issues for the jury to decide. At the same time, there is no doubt that

allowing such argument or evidence to be introduced at trial would unfairly prejudice the

government.

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 17 of 19
11

III. CONCLUSION

For these reasons, the government respectfully requeststhat the Court grant its motion

in limine and preclude the defendants from introducing questions, evidence or argument, as

detailed in our motion, to the jury at any stage of this proceeding.

Respectfully submitted,

BARBARA L. MCQUADE

United States Attorney

s/Robert Cares 

ROBERT CARES

Assistant U.S. Attorney

s/David A. Gardey 

DAVID A. GARDEY

U.S. Department of Justice

211 West Fort Street, Suite 2001

Detroit, Michigan 48226-3211

Telephone: (313) 226-9591

DATED: May 12, 2010

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 18 of 19
CERTIFICATE OF SERVICE

I hereby certify that on May 12, 2010, I electronically filed the foregoing

document with the Clerk of the Court using the ECF system which will send notification

of such filing to the following:

John McManus, Esq.

Richard Convertino, Esq.

s/David A. Gardey 

DAVID A. GARDEY

Assistant United States Attorney

211 W. Fort Street, Suite 2001

Detroit, MI 48226

Phone: (313) 226-9591

E-Mail: David.Gardey@usdoj.gov

Bar No. P48990

DATED: May 12, 2010

Case 2:09-cr-20295-MOB-RSW Document 75 Filed 05/12/10 Page 19 of 19