UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

UNITED STATES OF AMERICA,

                                    Plaintiff,

                                                                                    Case No. 8:02-CR-

MELISSA Doe,

                                    Defendant.

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MOTION IN LIMINE & PRETRIAL MATTERS RE:

DISCRIMINATORY TREATMENT OF COUNSEL

            COMES NOW the Defendant MELISSA Doe, by and through undersigned counsel, and hereby moves this Honorable Court to make arrangements to protect the defendants right to a fair jury trial by preventing jurors from seeing the disparate treatment between counsel for the government and counsel for all of the defendants in this case. This type of motion was previously made and granted in the case of U.S. v. Scotty Swinger, case # 8:01-Cr (it was either granted or the AUSA stipulated to it, to the extent of going through the search procedures during trial).

            Defendant asks this Honorable Court to make arrangements to protect the defendant’s right to a fair jury trial by preventing jurors from seeing the disparate treatment between counsel for the government and counsel for all of the defendants in this case. This courthouse is one of those courthouses where, under present conditions potential jurors and selected jurors will constantly see the prosecutor walk into the courthouse (perhaps carrying large boxes and bags) and the prosecutor will pass uninterrupted without being stopped or searched. In comparison, every morning, during lunch, and at every break, or whenever any or all defense counsel stop one foot outside the search gauntlet, then the relevant defense counsel will have to stop, stand in line, be detained, asked for identification, empty pockets, have their baggage searched, and possibly be personally frisked either with a magnetometer, or even physically.

            As the court (and jurors and potential jurors) may already be aware there are courthouses where the foregoing does not occur, where neither prosecutors nor defense counsel are searched. There are also courthouses where both parties are given the same search procedures. Indeed, at one time that was the case in this court.

            The present disparate treatment does not bode well for a fair trial for any defendant. It is analogous to the jurors being told "the prosecutor is trustworthy and not dangerous. Defense counsel are not trustworthy and are feared as potentially violent criminals. In fact, defense counsel are so untrustworthy that even if we break for lunch, or even a 10 minute break, if they set one foot outside at all, when they re-enter they have to be searched to make sure they aren't trying to sneak in guns, bombs or other illegal items." Such statements would be improper if they were made verbally to jurors by any prosecutor or by any court, especially if the statement was repeated each time jurors left and re-entered a courthouse. Yet the physical demonstration of that statement is starkly made to jurors every time the attorneys for both sides leave and re-enter the courthouse.

            If the search procedure is really "no big deal," then that holds true for prosecutors, meaning that it would be no big deal for prosecutors to undergo the procedure –especially in the interest of a fair trial for defendants. Although counsel hasn't specifically inquired, it seems likely that all prosecutors would not object to this motion, and would either agree that defense counsel should be treated as prosecutors, or that all prosecutors would voluntarily go through the search procedures.

            The problem can be corrected in a number of very simple ways:

            1. Direct that defense counsel and prosecutors be treated equally, in a non-discriminatory fashion. Either by allowing defense counsel to enter in the manner of prosecutors, or vice versa. This was once the procedure in the courthouse. At the very least, this could be done before and during jury selection and during trial.

            WHEREFORE, For the foregoing reasons, the defendant respectfully urges the Court to grant the Motion in Limine, enter an order excluding the above-named items, and grant the other relief requested.

MEMORANDUM OF LAW

            The defendant, by and through counsel, respectfully moves the Court to grant the Motion in Limine and direct that Government and defense counsel be treated in the same manner.

            Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to a district court's inherent authority to manage trials. A motion in limine is authorized under Fed. R. Crim. P. 17.1 (regarding pretrial conferences) and the doctrine enunciated in Luce v. U.S., 469 U.S. 38 (1984), and U.S. v Cook, 608 F.2d 1175, 1183-87 (9th Cir. 1979) (en banc), cert. denied, 444 U.S. 1034 (1980).

            The request to prevent jurors from seeing the disparate treatment between opposing counsel is akin to a motion in limine.

            Remarks in trial can demonstrate such bias and prejudice that it unfairly prejudices one of the parties. United States v. Ramos, 933 F.2d 968 (11th Cir. 1991).

            Repeated efforts by prosecutor to discredit defense counsel with disparaging remarks was prejudicial error not cured by efforts of judge to rectify the error with instruction to disregard the comments. United States v. McClain, 823 F.2d 1457 (11th Cir. 1987).

Respectfully submitted,

                                                            ________________________________

                                                            Ellis Rexwood Curry IV

                                                            Attorney for the Defendant

                                                            P.O. Box 8816

                                                            Tampa, FL 33674-8816

                                                            (813) 238-5371