UNITED STATES v. AUGUST (2022)

ORDER GRANTING DEFENDANT'S MOTION TO PRECLUDE REFERENCE TO ANY INDIVIDUAL AS A “VICTIM”

Before the court are “Motion in Limine and Incorporated Memorandum of Law to Preclude Reference to Any Person as a ‘Victim’ ” (“Motion”) [ECF No. 39], filed November 12, 2021 by Brian James August (“Defendant”) and “Government's Response to Defendant's Motion in Limine to Preclude Reference to Any Person as a ‘Victim’ ” (“Response”) [ECF No. 43], filed November 23, 2021 by the United States of America (“Government”). Defendant requests the court prohibit the Government “from referring to any party, witness, or decedent as a ‘victim’ during questioning of witnesses or other comments in front of the jury.”¹ After due consideration of the Motion, Response, and applicable law, the Motion is GRANTED.

I. BACKGROUND

Defendant is a doctor who, in May 2021, was indicted with the following: five counts of distribution of a controlled substance, causing death or serious bodily injury in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(C); five counts of distribution of a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(C); and five counts of healthcare fraud resulting in death in violation of 18 U.S.C. § 1347.²

Defendant requests the court prohibit the Government from referring to “any party, witness, or decedent” as a “victim” as doing so would unduly prejudice him.³ Despite Defendant's broad request, he concedes “the Government is free to state in its opening that it will prove that the decedents listed in the indictment are victims and argue in its closing that it has proved they were․”⁴ Otherwise, Defendant argues “any reference to an individual or party or decedent as a victim is tantamount to stating that a crime was committed, a conclusion that is unproven at present․”⁵ This, Defendant continues, is a violation of the Federal Rules of Evidence and protections promised to him under the Due Process Clause of the Fifth Amendment.⁶ In response, the Government contends prohibiting it from referring to individuals as “victims” violates the rights guaranteed under the Crime Victims' Rights Act (“CVRA”).⁷ The Government further argues referring to certain patients and decedents as “victims” is not unfairly prejudicial as “[t]he term ‘victim,’ much like the term ‘defendant,’ is not an argument [about Defendant's] guilt. Instead, the terms are meant to appropriately distinguish between various individuals involved in the trial including victims, witnesses, and the defendant.”⁸ Finally, the Government argues the term “victim” is legally defined and does not create an inference as to Defendant's guilt.⁹

After Defendant filed the Motion, the Government filed a Superseding Indictment, charging Defendant with the following: five counts of distribution of a controlled substance, causing death or serious bodily injury in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(C); ten counts of distribution of a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(C); one count of conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 846 and 841(a)(1); one count of conspiracy to commit healthcare fraud in violation of 18 U.S.C. §§ 1349 & 1347; five counts of healthcare fraud resulting in death in violation of 18 U.S.C. § 1347; and three counts of healthcare fraud in violation of 18 U.S.C. §§ 1347.¹⁰ The Superseding Indictment also included the mention of three more of Defendant's patients.¹¹ After the Superseding Indictment was filed in December 2021, neither Defendant nor the Government filed additional briefing on the issue before the court.

II. APPLICABLE LAW

The Due Process Clause of the Fifth Amendment requires each element of an offense be proven beyond a reasonable doubt.¹² Federal Rule of Evidence (“Rule”) 403 allows the court to “exclude relevant evidence if its probative value is substantially outweighed by a danger of ․ unfair prejudice.”¹³ District courts have “wide discretion in determining the admissibility of evidence under the Federal Rules.”¹⁴ Balancing the probative value of proposed evidence against “any factors counseling against admissibility is a matter first for the district court's sound judgment under Rules 401 and 403 and ultimately, if the evidence is admitted, for the trier of fact.”¹⁵ This is especially true regarding Rule 403 “since it requires an on-the-spot balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant.”¹⁶ Finally, “[e]vidence is not unfairly prejudicial because it tends to prove guilt, but because it tends to encourage the jury to find guilt from improper reasoning.”¹⁷

III. DISCUSSION

Although statements and arguments made by attorneys are not evidence, testimony by witnesses is.¹⁸ Attorneys are vehicles for the evidence triers of fact consider during deliberations. Thus, if an attorney elicits testimony labeling a particular individual a “victim,” Rule 403 could provide Defendant protection if use of the term is substantially more prejudicial than probative. Having determined Rule 403 is applicable, the court turns to whether the probative value of using “victim” substantially outweighs the danger of unfair prejudice.

Black's Law Dictionary defines a “victim” as “[a] person harmed by a crime, tort, or other wrong.”¹⁹ Likewise, the CVRA defines a “crime victim” as “a person directly and proximately harmed as a result of the commission of a Federal offense.”²⁰ Both definitions necessarily imply a crime has been committed. Core issues in this cause include not just whether Defendant distributed controlled substances, but whether his alleged distribution caused death or serious bodily injury to the individuals the Government seeks to address as victims.²¹ That is to say, while an individual might have been harmed, there is still a question as to whether he or she was harmed as a result of Defendant's alleged criminal conduct. Therefore, reference to an individual as a “victim” is unfairly prejudicial as it “encourage[s] the jury to find guilt from improper reasoning,” i.e., due to the implication that a crime has already been committed by Defendant.²²

The Government argues it should not be prohibited from referring to certain individuals as victims as the “victims in this case should not bear the burden of proving their status beyond a reasonable doubt before the government may refer to them at trial as ‘victims.’ ”²³ The court does not make the present decision lightly. The alleged victims in this cause surely have suffered great harm. However, Defendant has Constitutional and statutory rights that require unfairly prejudicial evidence be precluded at trial.²⁴ In the present context, use of the term “victim” creates an inference that Defendant has committed a crime. As a result, use of the term is likely to improperly color the jury's decision-making by creating an assumption that the Government has already proved a core element of its case. The Government can still ensure the allegedly harmed individuals are treated with fairness, dignity, and respect for their privacy without referring to them as victims.

Accordingly, it is HEREBY ORDERED that “Motion in Limine and Incorporated Memorandum of Law to Preclude Reference to Any Person as a ‘Victim’ ” [ECF No. 39] is GRANTED.

FOOTNOTES

1.   “Motion in Limine and Incorporated Memorandum of Law to Preclude Reference to Any Person as a ‘Victim’ ” (“Mot.”) 1, ECF No. 39, filed Nov. 12, 2021.

2.   See generally “Indictment” 1–11, ECF No. 4, filed May 26, 2021.

3.   Mot. at 1–2. See also Fed. R. Evid. 403.

4.   Mot. at 3.

5.   Id. at 3.

6.   Id. at 2.

7.   See “Government's Response to Defendant's Motion in Limine to Preclude Reference to Any Person as a ‘Victim’ ” (“Resp.”) 1–2, ECF No. 43, filed Nov. 23, 2021.

8.   Id. at 2.

9.   Id. at 3.

10.   See generally “Superseding Indictment” 1–19, ECF No. 49, Dec. 15, 2021.

11.   See generally id.

12.   See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

13.   Fed. R. Evid. 403.

14.   United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). See also Ramos v. Liberty Mut. Ins. Co., 615 F.2d 334, 340 (5th Cir. 1980).

15.   Abel, 469 U.S. at 54, 105 S.Ct. 465.

16.   Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008) (internal quotations omitted).

17.   United States v. Looking Cloud, 419 F.3d 781, 785 (8th Cir. 2005). See also United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979) (“[T]he application of Rule 403 must be cautious and sparing. Its major function is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect. As to such, Rule 403 is meant to relax the iron rule of relevance, to permit the trial judge to preserve the fairness of the proceedings by exclusion despite its relevance.”).

18.   See Pattern Jury Instructions (Crim. Cases) § 1.06 (Dist. Judges Ass'n Fifth Cir. 2019).

19.   Victim, Black's Law Dictionary (11th ed. 2019).

20.   18 U.S.C. § 3771(e)(2)(A).

21.   See generally Superseding Indictment.

22.   United States v. Looking Cloud, 419 F.3d 781, 785 (8th Cir. 2005).

23.   Resp. at 3.

24.   See Fed. R. Evid. 403; Sullivan v. Louisiana, 508 U.S. 275, 277–78, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)) (“What the factfinder must determine to return a verdict of guilty is prescribed by the Due Process Clause. The prosecution bears the burden of proving all elements of the offense charged ․ and must persuade the factfinder ‘beyond a reasonable doubt’ of facts necessary to establish each of these elements․).

FRANK MONTALVO, UNITED STATES DISTRICT JUDGE