United States District Court, S.D. Georgia, Savannah Division
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.
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.
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.
Defendant’s First Motion in Limine
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.
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
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).
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.
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
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).
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.