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United States v. Bynes

United States District Court, S.D. Georgia, Savannah Division

September 26, 2019

UNITED STATES OF AMERICA,
v.
FRANK H. BYNES, JR., Defendant.

          ORDER

          CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.

         Before the Court are defendant’s First and Second Motions in Limine, docs. 123 & 124, and the Government’s Motion in Limine, doc. 125. The Government opposes defendant’s motions. Doc. 133. The Government’s motion stands unopposed.

         BACKGROUND

         Defendant was indicted in a 48-count indictment in June of 2018. Doc. 3. Counts 1-39 were for unlawful dispensation of controlled substances in violation of 21 U.S.C. § 841(a)(1) and counts 40-48 were for health care fraud in violation of 18 U.S.C. § 1347. Id. An initial appearance was held on June 21, 2018, and he was arraigned on June 27, 2018. Doc. 8, doc. 27. Discovery commenced and defendant requested that the Court approve an expenditure for an expert on October 31, 2018 and November 28, 2018. Docs. 54 & 56. The Court granted that motion on December 3. Doc. 57. However, the case did not proceed to trial as a superseding indictment was filed on April 3, 2019, reducing the number of counts to 17. Doc. 71. As with his initial indictment, the charges are divided into two types; counts 1-14 are for unlawful dispensation of controlled substances in violation of 21 U.S.C. § 841(a)(1) and counts 15-17 are for health care fraud in violation of 18 U.S.C. § 1347. Id.

         ANALYSIS

         I. Defendant’s First Motion in Limine

         Defendant first requests that the Government be precluded from eliciting testimony about the alleged opioid epidemic/crisis in the United States and abroad and that the alleged conduct of defendant contributed to the epidemic. Doc. 123 at 2. He also requests that the Court instruct the jury that it cannot consider extraneous, wide-spread public outcries and concerns over the illicit and illegal use of opioids. Id. He argues that such evidence would be extraordinarily prejudicial to the defendant under Fed.R.Evid. 403.

         Fed. R. Evid. 403 states that “[t]he 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.” As the Court of Appeals for the Eleventh Circuit has noted,

“The term ‘unfair prejudice, ’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged[, such as] an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Old Chief v. United States, 519 U.S. 172, 180, (1997) (quotations and citations omitted). However, exclusion of evidence under “Rule 403 is an extraordinary remedy, which should be used only sparingly, and the balance should be struck in favor of admissibility.” United States v. Edouard, 485 F.3d 1324, 1344 n.8 (11th Cir. 2007) (quotations and citations omitted).

United States v. Holland, 2019 WL 2560019, at *21 (N.D.Ga. June 21, 2019). However “[e]vidence not part of the crime charged but pertaining to the chain of events explaining the context is properly admitted if linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime to complete the story of the crime for the jury.” United States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004) (alterations, quotations and citations omitted).

         The first question is whether references to the opioid epidemic are relevant. Defendant is concerned that the Government will refer to the epidemic as “a motive for the charges alleged in the indictment.” Doc. 123 at 2. The Government volunteers that, on the contrary, it “has no intention of eliciting testimony or arguing to the jury that Bynes should be convicted because he contributed to the nationwide opioid epidemic, ” doc. 133 at 2, and less emphatically that it “does not anticipate arguing or introducing evidence during trial that the actions of Dr. Bynes ‘contributed’ to the epidemic, ” id. at 3 n. 1. To the extent that the Government intends to refer to the epidemic, it intends to introduce “warnings, education letters, and guidance” which refer to the epidemic as motivation for their creation or dissemination. Id. It also discloses that “testifying medical professionals” may refer to the epidemic as an influence on the relevant standard of care. Id. at 2-3.

         Evidence of the opioid epidemic is, therefore, relevant to this case, as it provides context to the prosecution. However, there is no question that it is only tangentially relevant; the Government’s own arguments identify, at most, its contextual value. So, the Court must determine whether the prejudicial effect outweighs the probative value. Evidence of a currently existing opioid epidemic is certainly prejudicial to defendant. This is particularly true given that he is charged with distributing opioids. A generalized social awareness of the dangers of consuming opioids combined with evidence of defendant’s distribution of those same opioids is likely to mislead and confuse the jury. Considering the minimal relevance of the existence of the opioid epidemic to defendant’s charged crimes, the Court concludes that such evidence is inadmissible under Rule 403; at least to the extent the Government might imply a specific connection between Bynes and the epidemic.[1]

         To the extent that the opioid epidemic amounts to no more than relevant factual context for otherwise relevant documents or is, in the opinion of medical experts, relevant to the applicable standard of care, however, the Court cannot prevent the Government from mentioning it at all. Other courts have permitted limited reference to “epidemics, ” where relevant to criminal cases, but with an “admonition that there would be no undue focus on the so-called . . . epidemic.” United States v. Feldman, 2016 WL 3002418, at * 5 (M.D. Fla. May 20, 2016) (finding that reference to an “epidemic of prescription drug abuse . . . was certainly relevant to put this case in its proper perspective.”); see also United States v. Minas, 697 F. App’x 531, 532 (9th Cir. 2017) (finding that expert testimony about a policy “adopted . . . in part because of concerns over Idaho’s opioid epidemic” was properly admitted).

         In the necessarily abstract context of a motion in limine, the Court simply cannot anticipate and evaluate every possible reference to the “opioid epidemic.” The parties’ respective briefs have identified some indisputably impermissible references and some, at least arguably, permissible ones. The Court will, therefore, GRANT the motion, in part. Doc. 123. The Government will not elicit testimony or present argument implicating defendant in the “opioid crisis” or “opioid epidemic.” It will, however, DENY the motion, in part, and permit the Government to elicit testimony or present argument that refers to the crisis or epidemic as relevant context for otherwise admissible evidence (e.g., in establishing or informing the applicable standard of care). The Government should avoid any unnecessary reference to or undue focus upon the “crisis” or “epidemic.” As the parties prepare for trial, they are encouraged to anticipate and, if possible, resolve any references that approach the line between the permissible and impermissible.

         II. Defendant’s ...


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