United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
7, 2015 a grand jury indicted Kenneth Hampton, Ellis Hampton,
Terrell Hampton and Roxanne Mason for violations of 18 U.S.C
§§ 2, 371, 1343, 1349, and 1028A. (ECF No. 1.) A
superseding indictment was filed April 19, 2016, and a second
superseding indictment, necessitated by Ellis Hampton's
death, followed on September 20, 2016. (ECF Nos. 86 &
124.) The second superseding indictment alleges that the
Defendants conspired to identify abandoned properties, forged
deeds to those properties and then, among other things, used
them for housing and defrauded government programs and
third-party buyers. Trial begins on June 1, 2017. On April 6,
2017, Kenneth filed a motion in limine to admit
evidence of Roxanne Mason's prior testimony in an
unrelated trial. (ECF No. 217.) The Government filed its
response on April 12, 2017. (ECF No. 219.) For the reasons
that follow, the Court denies the motion.
seeks to admit Mason's counseled testimony from a
suppression hearing in a prior, unrelated prosecution of
Terrell Hampton, Kenneth's son. As part of her testimony,
Mason suggested that she slept with numerous men while
Kenneth was in prison; she also noted that she was in an
intimate relationship with Terrell. Kenneth contends this
evidence undermines the Government's position in this
case that Kenneth was in a romantic relationship with Mason
and suggests Mason and Terrell acted independently in
carrying out the conspiracy. The Government argues that there
is no logical connection between Mason's dalliances and
Kenneth's role in the conspiracy. (Gov't Mem., at
9-11.) It asserts that the prior testimony is inadmissible
under Rules 401 and 403. (Id.)
401 “does not raise a high standard.” Moyer
v. United Dominion Idus., Inc., 473 F.3d 532, 544-54 (3d
Cir. 2007) (quoting Gibson v. Mayor & Council of
Wilmington, 355 F.3d 215, 232 (3d Cir. 2004)). Instead,
relevant evidence is defined broadly: evidence is irrelevant
only if “it has no tendency to prove a consequential
fact.” United States v. Starnes, 583 F.3d 196,
212-14 (3d Cir. 2009).
evidence is at least minimally relevant to Kenneth's
alleged role in the conspiracy. If the government introduces
evidence of Kenneth and Mason's “closeness of
relationship” to support their case, Mason's prior
statements would be relevant to rebut that evidence. At oral
argument, Kenneth's counsel also argued that if Terrell
or Mason's counsel suggest they were under Kenneth's
control and only acted to appease him, Mason's prior
testimony could rebut this and show she and Terrell acted
without Kenneth's control. Though tenuous, this evidence
could therefore have some tendency to prove a consequential
fact at issue in this case.
Government also addresses whether Mason's prior testimony
is relevant to Kenneth withdrawing from the conspiracy.
(Gov't Mem., at 10.) It is not. Withdrawal from a
conspiracy requires either that a defendant “gave
notice to his co-conspirators that he disavows the purpose of
the conspiracy or that he did acts inconsistent with the
object of the conspiracy.” United States v.
Allen, 492 F. App'x 273, 277 (3d Cir. 2012). Because
this evidence does not make either of those possibilities
more probable, it is not relevant to withdrawal.
that Mason's prior testimony is minimally relevant, its
probative value is substantially outweighed by its potential
for unfair prejudice, confusing the issues and creating undue
delay. See Fed. R. Evid. 403. The testimony would
also invite jurors to make judgments about the character of
the Defendants rather than their participation in the alleged
conspiracy. This sort of salacious evidence carries a high
risk of unfair prejudice.
prior testimony will also invite rebuttal by the Government.
If the evidence is admitted to show Mason was unfaithful to
Kenneth-and thus that Mason and Terrell were acting alone-the
Government plans to introduce evidence to undermine that
inference, including evidence to show that Kenneth was not
only aware of Mason's fling with Terrell but that he
approved of “keeping in the family.” All of this
risks wasting time and confusing the issues, inviting a
“mini-trial” on a minimally relevant, but highly
distracting issue. Cf., e.g., United States v.
Jimenez, 513 F.3d 62, 76 (3d Cir. 2008) (holding that
“[t]he marginal relevance and the risk of delay and
confusion created by a mini-trial to explain [it]”
supported the district court's decision to exclude
evidence). It thus fails under Rule 403 for that reason as
appropriate Order follows.