United States District Court, M.D. Pennsylvania
MEMORANDUM OPINION
ROBERT
D. MARIANI UNITED STATES DISTRICT JUDGE.
In a
twelve-count Second Superseding Indictment filed on December
11, 2018 (Doc. 47), Defendant Shawn Christy was charged with
a number of federal crimes, including threats made against
the President of the United States (Count 1) and other
individuals (Counts 2-4), interstate transportation of stolen
vehicles (Counts 5-6), and various firearms offenses (Counts
7-12). As relevant to the present motion, Count 1 charges
Christy with Threats Against the President of the United
States in violation of 18 U.S.C. § 871, and Counts 2, 3,
and 4, charge Christy with Transmitting Threatening
Communications in violation of 18 U.S.C. § 875(c).
Presently
before the Court is Defendant Christy's Motion in Limine
requesting that the Court "restrict the way in which the
government can refer to Mr. Christy's allegedly
threatening communications in the course of examining
witnesses" (Doc. 82). More specifically, due to the
nature of the charges in Counts 1-4, Defendant's motion
appears to request that this Court entirely prevent
Government's counsel from using the word
"threat" when questioning any witness on
direct-examination as well as on cross-examination. The basis
for this motion arises from the presence of the word
"threat" within 18 U.S.C. §§ 871 and
875(c), which Defendant asserts is a legal term of
art.[1]
Thus, Defendant argues that if the Government used the word
"threat" in a question, the use of this word would
necessarily render a question an improper leading question.
Pursuant
to Federal Rule of Evidence 611, "[l]eading questions
should not be used on direct examination except as necessary
to develop the witness's testimony." However,
"[o]rdinarily, the court should allow leading questions:
(1) on cross-examination; and (2) when a party calls a
hostile witness, an adverse party, or a witness identified
with an adverse party." Fed.R.Evid. 611(c). Section (c)
of Rule 611 "continues the traditional view that the
suggestive powers of the leading question are as a general
proposition undesirable." Nonetheless, "[w]ithin
this tradition ... numerous exceptions have achieved
recognition: The witness who is hostile, unwilling, or
biased; the child witness or the adult with communication
problems; the witness whose recollection is exhausted; and
undisputed preliminary matters." Fed.R.Evid. 611
advisory committee's note to subdivision (c) (citing 3
Wigmore §§ 774-778). See also, United States v.
Cephus, 684 F.3d 703, 707 (7th Cir. 2012)("There is
no blanket prohibition of [leading] questions. They are
permissible when used ... with friendly witnesses to move
direct examination along rather than to elicit testimony
damaging to the opposing party that the witness might not
have given in response to a neutral question.").
It is a
widely-accepted principle that the trial judge has wide
discretion to determine whether the circumstances justify the
use of leading questions. United States v. Long, 649
Fed.Appx. 200, 202 (3d Cir. 2016); Fed.R.Evid. 611 advisory
committee's note to subdivision (c) ("The matter
clearly falls within the area of control by the judge over
the mode and order of interrogation and presentation and
accordingly is phrased in words of suggestion rather than
command."). See also, St. Clair v. United
States, 154 U.S. 134, 150, 14 S.Ct. 1002, 38 L.Ed. 936
(1894).
The
Government here acknowledges that "it is well within the
court's discretion to prohibit leading questions and
sustain proper objections to leading questions," but
asserts that "the defendant's motion in limine
sweeps too broadly." (Doc. 90, at 3). This Court agrees.
The Court is unaware of the identity of each witness whom the
Government may choose to call during its case-in-chief and is
not in a position to determine whether any of those
individuals are among those to whom Rule 611 permits the
posing of leading questions. Similarly, the Court cannot
determine whether a question is, in fact, leading and
objectionable for that reason until the question is asked.
The Court declines to make an all-encompassing ruling as to
whether Government's counsel may use the word
"threat", divorced from the circumstances where any
actually-uttered question is being challenged. Indeed, the
Court has no way of knowing at this point what testimony will
be offered by the Government during its case-in-chief, for
what purposes the Government will offer such testimony, or
how the Government will attempt to elicit this testimony.
Further, the Government's ability to ask leading
questions is much broader on cross-examination, and the Court
is, again, not now in a position to determine the propriety
of any question Government's counsel may choose to ask
during cross-examination.
For
these reasons, Defendant's motion in limine (Doc. 82)
will be denied without prejudice. To the extent that
Defendant seeks a blanket ban on the Government's use of
the word "threat" when questioning witnesses, such
request will be denied. However, if at trial the Government
poses a question during examination of a witness which the
Defendant believes is impermissibly leading, Defendant shall
timely object and set forth the specific basis for such
objection, at which time the Court can better evaluate the
propriety of the question in light of its scope, content, and
purpose.
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Notes:
[1] Count I alleges a violation of §
871, which states:
Whoever knowingly and willfully deposits for
conveyance in the mail or for a delivery from any post office
or by any letter carrier any letter, paper, writing, print,
missive, or document containing any threat to take
the life of, to kidnap, or to inflict bodily harm upon the
President of the United States... or knowingly and willfully
otherwise makes any such threat against the
President... shall be fined under this title or imprisoned
not more than five years, or both.
18 U.S.C. § 871(a) (underline added).
Counts ll-IV charge Defendant with violations of
§ 875(c), which states: Whoever transmits in interstate
or foreign commerce any communication containing any
threat to kidnap any person or any threat
to injure the person of another, shall be fined under this
...