1

The government previously filed a Rule 404(b) Notice, setting forth its intent to

use this evidence. See Dkt. # 59, filed October 30, 2009. 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 09-20025

D-4, SAMUEL L. RIDDLE, JR., HONORABLE AVERN COHN

Defendant.

___________________________________/

ORDER GRANTING

DEFENDANT’S MOTION IN LIMINE (Dkt. # 97)

I.

This is a criminal case. Trial is underway. Before the Court is defendant’s

Motion in Limine to prohibit the use of evidence which the government contends is

admissible under Fed. R. Evid. 404(b).1

 Defendant says the evidence is not admissible

and more prejudicial than probative. The Court deferred ruling on the motion until after

opening statements. For the reasons that follow, the motion is GRANTED. However,

the government has a right to move for reconsideration as the trial progresses.

II.

Generally, “other acts evidence” is not admissible “to prove the character of a

person in order to show action in conformity therewith.” Fed. R. Evid. 404(b). “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....” Id. The

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Sixth Circuit has established a three-part test for determining if evidence falls under

Rule 404(b), and is thus admissible. First, the district court must decide whether the

proponent has demonstrated that the other act in question actually occurred. United

States v. Hardy, 228 F.3d 745, 750 (6th Cir. 2000). The district court need not make a

finding that the proponent proved the other act by a preponderance of the evidence;

“such evidence should be admitted if there is sufficient evidence to support a finding by

the jury that the defendant committed the similar act.” Huddleston v. United States, 485

U.S. 681, 685 (1988). Second, the proponent must identify a specific purpose, other

than the defendant's character, for which the evidence is offered, and the district court

must determine whether this identified purpose is “material” or “at issue” in the case.

United States v. Merriweather, 78 F.3d 1070, 1076-77 (6th Cir. 1996). Finally, the court

must engage in a Rule 403 analysis and determine whether the “probative value of the

evidence is substantially outweighed by the danger of unfair prejudice.” Id. at 1077.

After conducting this analysis, if the evidence is admitted, the district court “must

‘clearly, simply, and correctly’ instruct the jury as to the specific purpose for which they

may consider the evidence.” Id. (quoting United States v. Johnson, 27 F.3d 1186, 1193

(6th Cir. 1994)).

III.

The evidence at issue is testimony from William Lattimore, a member of the

Southfield City Council. The government says Lattimore will testify that defendant paid

him $12,500 to obtain Lattimore’s support in an attempt to obtain approval from the City

of Southfield for the relocation of a jewelry store. Lattimore plead guilty to taking bribes

in another case in this district, in which defendant is also charged. The government

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says the evidence is admissible to show defendant acted with unlawful intent when he

received money in return for the officials acts or promises by Monica Conyers. The

government says this evidence is probative because defendant has raised the defense

that the money he received was for legitimate consulting services.

In support, the government cites United States v. Tuchow, 768 F.2d 855 (7th Cir.

1985). In Tuchow, the defendant was a public official charged with extortion under 18

U.S.C. § 1951 by obtaining money from a construction project that needed a building

permit. Tuchow, who apparently did not testify, argued that the money was given for his

legal services, not as payment for his official acts. The government presented evidence

that Tuchow offered to bribe a judge to dismiss a speeding ticket. The evidence came

in the form of a recorded conversation between Tuchow and his barber in which he

offered to bribe the judge.

Tuchow is distinguishable. Significantly, there is no indication that the bribe at

issue in Tuchow was the subject of a pending criminal proceeding against Tuchow;

indeed, the testimony was that a bribe was offered but apparently not delivered. Here,

Lattimore is expected to testify that he received a money from defendant in exchange

for him performing an official act. Under Sixth Circuit precedent for admitting evidence

under Rule 404(b), the Court is required to first determine whether the act occurred, i.e.

whether defendant bribed Lattimore. While Lattimore has plead guilty to the offense,

the bribe is the subject of a pending criminal case against defendant for which he is

entitled to the presumption of innocence. The potential for prejudice is plain. 

Also, while the government contends defendant has raised the defense that the

money he received was for consulting services, the Court does not believe the defense

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has been clearly raised. Although defense counsel alluded to defendant performing

consulting work in his opening statement, the evidence adduced so far has not

convinced the Court that the defense has been squarely presented. Accordingly,

defendant’s motion in limine is GRANTED. However, the government has the right to

renew its request to admit the evidence as the trial progresses.

SO ORDERED.

 s/ Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: January 27, 2010

I hereby certify that a copy of the foregoing document was mailed to the attorneys of

record on this date, January 27, 2010, by electronic and/or ordinary mail.

 s/ Julie Owens 

Case Manager, (313) 234-5160

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