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United States v. $114

United States District Court, D. Colorado

November 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
$114, 700.00 IN UNITED STATES CURRENCY, Defendant.

          ORDER ON MOTIONS IN LIMINE

          CHRISTINE M. ARGUELLO United States District Judge

         This matter is before the Court on the Parties' Motions in Limine. (Doc. ## 115, 116.) The Government filed a Response (Doc. # 119) to Claimant Richard Schwabe's Motion on November 14, 2019, and Claimant filed a Response (Doc. # 120) to the Government's Motion on the same date. For the following reasons, the Government's Motion is granted in part and denied in part, and Claimant's Motion is denied.

         I. BACKGROUND

         This civil forfeiture case arises from the Government's seizure of the defendant currency during a search of Claimant's property, which was conducted pursuant to a valid[1] search warrant. At issue is whether the defendant currency “constitutes proceeds traceable to the exchange of marijuana and, therefore, is subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6).” (Doc. # 111 at 2.)

         The Government alleges that Claimant had been cultivating marijuana for at least a year prior to the seizure of the defendant currency, and “the most likely source of [the] defendant currency is from the sale and distribution of marijuana . . . .” (Id.) Claimant, on the other hand, alleges that the defendant currency has legitimate sources. This case is set for a five-day jury trial beginning on December 2, 2019.

         II. DISCUSSION

         The Motions in Limine either seek to preclude evidence from being admitted at trial or request that the Court rule in advance on the admissibility of certain statements. The Court will address the Government's Motion before turning to Claimant's Motion.

         A. THE GOVERNMENT'S MOTION

         The Government's Motion raises four separate arguments. Specifically, the Government asserts that the following evidence should be precluded: (1) issues regarding the legality of the search of Claimant's property; (2) arguments involving the disposition of the defendant currency if the Government prevails at trial; (3) issues regarding marijuana policy; and (4) arguments that could result in jury nullification. The Court will analyze each argument in turn.

         1. Issues Regarding the Legality of the Search of Claimant's Property

         This Court has already determined that the search of Claimant's property was lawful. (Doc. # 86.) As a consequence, the Government argues that “it would serve no useful or proper purpose for the jury to be informed . . . that the address on the warrant was incorrect, the number of officers present, that some officers were in camouflaged attire and carrying firearms, or that Claimant . . . allegedly felt intimidated.” (Doc. # 115 at 3.) In response, Claimant indicates that he does not intend to relitigate the legality of the search. Rather, Claimant argues that information regarding the search is independently relevant for two reasons.

         First, Claimant asserts that if the Government introduces statements that Claimant made during the search, information regarding the manner in which officers executed the search is relevant to Claimant's theory that his statements were made because he felt intimidated. (Doc. # 120 at 2.) Second, Claimant asserts that information regarding errors made by the officer whose affidavit supported the search warrant is relevant to attack the credibility of that officer's observations during the search itself. (Id. at 2-3.) The Court agrees with Claimant's first argument but not his second argument.

         Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Fed.R.Evid. 401. However, the Court may exclude relevant evidence “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.

         Evidence regarding the manner in which officers executed the search warrant is relevant. At issue is whether the defendant currency constitutes proceeds of drug trafficking. If Claimant made statements during the search of his property that suggest that the defendant currency did constitute such proceeds, Claimant could reasonably pursue the theory that he made the statements because he felt intimidated and not because they were true. If the statements were not true, the jury could determine it is less likely that the defendant currency constitutes proceeds of drug trafficking. Importantly, even if Claimant made the statements in question because he subjectively felt intimidated, that does not raise a significant risk that the jury would reach the conclusion that the search was unlawful.[2]

         By contrast, there is a substantial danger that the jury could mistakenly reach the conclusion that the search was somehow invalid if Claimant presents evidence regarding errors in the affidavit underlying the warrant. Although Claimant indicates that the evidence would have the limited purpose of casting doubt on the credibility of the officer who made the errors, it is very likely that jurors could become confused as to whether the errors invalidated the warrant. Additionally, a limiting instruction would not sufficiently reduce the risk of confusion because the introduction of the issue is misleading and correcting the misimpression analogous to unscrambling an egg.

         Therefore, the Government's Motion is granted to the extent that it seeks to preclude evidence regarding errors in the search warrant. However, the Motion is denied as to information regarding the manner in which officers executed the search.

         2. Arguments Involving the Disposition of the ...


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