Opinion
No. 04 CR 237.
January 18, 2006
MEMORANDUM OPINION AND ORDER
On March 11, 2004, a grand jury returned an indictment against Defendant, Amen E. Jumah, charging Jumah with knowingly and intentionally possessing and distributing pseudoephedrine, knowing and having reasonable cause to believe it would be used to manufacture a controlled substance in violation of 21 U.S.C. § 841(c). The Government alleges that Jumah distributed pseudoephedrine to Ali Quasem, a DEA confidential source ("CS") and government witness. Presently pending before the Court are the Government's Motions in Limine.
Evidence is excluded on a motion in limine only if the evidence is clearly inadmissible for any purpose. Hawthorne Partners v. ATT Tech., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) ( Hawthorne). "This court has the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds. . . . Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context. . . . Denial of a motion in limine [in this order] does not necessarily mean that all evidence contemplated by the motion will be admitted at trial. Denial merely means that, without the context of trial, the court is unable to determine whether the evidence
Federal Rule of Evidence 104(b) provides:
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
The affirmative defense of public authority contains four elements: (1) the defendant was affirmatively told that his conduct would be lawful, (2) he was told this by an official of the United States government, (3) he actually relied on what the official told him in taking the action, and (4) his reliance on what he was told by the official was reasonable in light of the circumstances. See Seventh Circuit Committee 6.07 (1999); United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n. 18 (7th Cir. 1994); United States v. Neville, 82 F.3d 750, 761-62 (7th Cir. 1995).
In support of his public authority defense, Jumah intends to offer, inter alia, evidence that he worked as a paid CS for the FBI in Chicago and the DEA in Chicago and Los Angeles. Jumah intends to present documents and phone messages indicating that he was working as a CS for the United States government officials in relation to the pseudoephedrine trade, including the pseudoephedrine trade involving Quasem.
At this stage of the case, it cannot be concluded that the evidence sought to be excluded is irrelevant to Jumah's defense or that his defense fails as a matter of law. While the Government believes that the evidence of which it knows is insufficient to raise the defense, Jumah's proffer establishes that at this stage of the case, it cannot be said that his affirmative defense fails as a matter of law. Accordingly, the Government's Motions in Limine I, II, and III are denied without prejudice to raise the same objections at the appropriate time during trial. The failure to object during trial will be deemed a waiver of these objections.
The Government's Motion in Limine IV seeks to preclude evidence or argument designed to elicit jury nullification. Jumah does not object to the Government's motion. The Government's Motion in Limine IV is granted.
For the foregoing reasons, the Government's Motions in Limine I, II, and III are denied without prejudice to raise the same objections at the appropriate time during trial. The failure to object during trial will be deemed a waiver of these objections. The Government's Motion in Limine IV is granted without objection.