United States District Court, D. Colorado
ORDER ON DEFENDANTS' MOTION IN LIMINE
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants Daryl and Wendy
Yurek's Motion In Limine. (ECF No. 187
(Defendants' “Motion.”)) The Motion indicates
that the Government opposes the relief sought (id.
at 1), but the Government inexplicably failed to file any
response or opposition brief as directed by Court Order and
the undersigned's practice standards. (See ECF
No. 180.) For the reasons stated below, Defendants'
Motion is GRANTED IN PART and DENIED IN PART.
Photographs or Videos
Motion moves for a pretrial order excluding
“photographic evidence depicting possessions
purportedly owned by the Yureks, prior residences of the
Yureks, and the Pinhurst [sic] Country Club.”
(ECF No. 187 at 3.) They argue such evidence is irrelevant
and would be unduly prejudicial, and should therefore be
excluded under Federal Rules of Evidence 401-03.
(Id. at 1-3.)
the Government's failure to file any opposition or
response, the Court might grant this motion as having been
confessed. However, Defendants' Motion fails to present
its request in a manner amenable to a pretrial exclusionary
order. While Defendants recite that they have received
photographs or similar materials to which they object in
discovery (ECF No. 187 at 3), their Motion does not attach
any examples, nor does it identify particular photographs or
potential exhibits to which Defendants object (e.g.,
by Bates number, exhibit number, or otherwise). They seek
only vaguely to exclude all “photographic
evidence” of the things described. Thus any pretrial
order the Court might enter would, by necessity, be equally
indeterminate. The Court cannot determine in the abstract
whether photographs that it has not seen are relevant,
irrelevant, or unduly prejudicial. Moreover, even if the
Court were to grant Defendants' Motion on this point,
such an order would not be self-executing. Inevitably,
disputes would arise at trial as to whether any particular
exhibit the Government might offer was subject to exclusion.
Thus there would be little to no benefit to entering a
Defendants' Motion is GRANTED IN PART and DENIED IN PART
on this issue, given the Government's failure to respond.
The Motion is granted to the extent that the Government is
DIRECTED not to seek to admit such photographs, nor to raise
or discuss photographs fairly subject to Defendants'
motion in any way with any witness without first
presenting them to the Court outside of the jury's
presence or at a sidebar for a ruling on admissibility. The
Motion is DENIED IN PART to the extent it seeks a blanket
pretrial exclusionary order, and the Court instead DEFERS
RULING on the admissibility of any particular
“photographic evidence” until the Court can
review and rule on specific photographs in the context of
other evidence presented at trial.
next seek a pretrial order “directing that the
Government be prohibited from offering personal opinions
concerning the credibility of the Defendants or other
witnesses in the case.” (ECF No. 87 at 3-4.) Defendants
correctly state the rule that “[i]t is error for the
prosecution to personally vouch for the credibility of its
witnesses.” United States v. Bowie, 892 F.2d
1494, 1498 (10th Cir. 1990). “Impermissible vouching
occurs when the jury could reasonably believe that the
prosecutor is indicating a personal belief in the
witness'[s] credibility, either through explicit personal
assurances of the witness'[s] veracity or by implicitly
indicating that information not presented to the jury
supports the witness'[s] testimony.'”
Hanson v. Sherrod, 797 F.3d 810, 837 (10th Cir.
2015) (internal quotation marks omitted).
Defendants' Motion does not give any particular reasons
to believe the Government will violate this rule here, nor
does it provide any examples of how this issue might arise at
trial. Defendants' Motion therefore seeks no relief
separate and apart from asking that the Court enforce the
Federal Rules of Evidence and controlling evidentiary law.
This request is not amenable to a pretrial ruling or
exclusionary order. Of course the Court will, in its sound
discretion, apply and enforce the Federal Rules of Evidence
and controlling evidentiary law, based on objections and
requests for rulings timely raised and preserved by counsel
in the usual course at trial, pursuant to Federal Rule of
Evidence 103. Defendants' request for a pretrial
exclusionary order on this point is therefore DENIED.
Defendants seek “an order directing that evidence
obtained during any post-bankruptcy audits . . . of the
Defendants be excluded from this trial.” (ECF No. 187.)
Defendants argue that evidence obtained from any such audit
conducted after they filed a bankruptcy petition should be
excluded because, they argue, such audit(s) were pursued in
violation of the automatic stay provisions of the Bankruptcy
Code, 11 U.S.C. § 362. (ECF No. 187.)
Defendants fail to identify any specific evidence to which
they object, and for that reason the Court again cannot enter
a pretrial order excluding unidentified evidence. Moreover,
Defendants fail to cite any authority demonstrating that an
audit conducted by the Internal Revenue Service after a
taxpayer has filed for bankruptcy is in violation of the
§ 362 automatic stay, in all cases, or in this case.
See 11 U.S.C. § 362(b)(9)(A) (filing a petition
“does not operate as a stay * * * of  an audit by a
governmental unit to determine tax liability”).
Likewise, while Defendants argue for something akin to a
Fourth Amendment exclusionary remedy based on the Government
obtaining evidence in alleged violation of the § 362
automatic stay, they cite no legal authority recognizing such
a rule, or holding that materials unearthed in a proceeding
which violated the § 362 stay are therefore inadmissible
in a later and separate court proceeding.
these reasons, Defendants' request for a pretrial
exclusionary order on this point is DENIED. This denial is
without prejudice to Defendants renewing this objection at
trial, but only if ...