The opinion of the court was delivered by: Judge Nora Barry Fischer
Presently before the Court are the Government's Motion in Limine Regarding the Admissibility of the Testimony of Retired Bishop John Bernard McDowell (Docket No. 149), the trial deposition transcript of Bishop John Bernard McDowell (Docket No. 149-2, Defendants' Exhibit C), and Defendants' Exhibit A used during the deposition (Docket No. 149-3, Defendants' Exhibit D), the Defendants' Brief in Opposition (Docket No. 150), the Government's Supplemental Brief in Support (Docket No. 168), and the Defendants' Supplemental Brief in Opposition (Docket No. 169).*fn1
The legal issues to be resolved with respect to the Government's motion are fairly narrow: whether opinion testimony regarding the Defendants' character trait of "generosity" is admissible pursuant to Rules 404(a)(1) and 405(a) of the Federal Rules of Evidence and whether evidence of specific instances of the Defendants' honesty, truthfulness, integrity, or generosity are admissible pursuant to Rule 405(b). Upon consideration of these submissions, and after hearing oral argument from counsel on October 27, 2009, the Government's Motion in Limine  is GRANTED. Accordingly, the Defendants shall be precluded from presenting character evidence in the form of opinion testimony regarding their generosity and will also be precluded from presenting character evidence of specific instances of their honesty, truthfulness, integrity, generosity or other charitable acts at trial.
While the Government's motion pertains primarily to the testimony of Bishop McDowell, and Defendants' Exhibits C and D, this ruling also applies to Defendants' Exhibits E-L as well as any other potential witness testimony akin to that proffered from Bishop McDowell.
The admissibility of character evidence is governed by the interplay of Rules 404, 405 and 403 of the Federal Rules of Evidence. Rule 404(a)(1) provides that:
(a) Character evidence generally.--Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused.--In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;
Fed.R.Evid.R. 404(a)(1)(emphases added). Rule 405 provides that:
(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.
Fed.R.Evid. 405 (emphasis added). The admissibility of evidence offered pursuant to these Rules is governed by the balancing test of Rule 403, that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403.
In United States v. Logan, the United States Court of Appeals succinctly described a criminal defendant's use of character ...