United States District Court, D. New Hampshire
ORDER
Joseph
N. Laplante United States District Judge
Before
the court are the parties’ respective motions in limine
seeking to exclude certain evidentiary items and areas of
inquiry from the upcoming trial in the above-captioned
criminal case.[1] Defendant Steven Petrillo, a former
pharmacist employed by the Veterans Administration, stands
charged with making a false statement to a department of the
United States in violation of 18 U.S.C. § 1001.
The
criminally actionable false statement alleged in the
indictment involved the defendant’s application for
employment as a pharmacist with the Veterans Administration,
a department of the United States government. Specifically,
the defendant wrote the answer “no” to questions
on a printed employment application form inquiring whether he
had been “discharged from any position for any
reason” in the previous five years, despite allegedly
having been fired by both Walmart and Lawrence (MA) General
Hospital. The defendant was eventually hired, employed, and
then terminated by the VA Hospital in Manchester, New
Hampshire.
Defendant’s
motion in limine
Petrillo
has moved to exclude any information regarding the
circumstances giving rise to the Walmart and Lawrence General
Hospital employment terminations, other than that the firings
occurred. He also seeks to exclude any evidence of his
alleged improper conduct occurring after the false statements
alleged in the indictment, during his subsequent employment
at the VA Hospital.
What
this amounts to is a request to exclude documents generated
upon his employment discharges--so-called “exit
documents”--by Walmart (indicating “Involuntary
Termination (Mandatory, No Rehire)” and “Gross
Misconduct Integrity Issue (Theft, Violent Act, Dishonesty,
Misappropriation of Company Assets”)), and by Lawrence
General Hospital (indicating “baseline competency
deficiencies despite enhanced training and extended probation
period”).
The
defendant, who disputes that he was terminated from those
prior positions for the reasons indicated on those
“exit documents, ” seeks to exclude those
documents, and any reference to the reasons for his prior
firings. He argues that the documents are (1) not relevant,
(2) too speculative to be admissible, (3) amount to
“uncharged allegations” deemed inadmissible under
Federal Rule of Evidence 404(b). He adds that even
if the exit documents are admissible as generally relevant
under Rule 401 and 402, or specially relevant under Rule
404, they are nonetheless impermissibly prejudicial,
misleading and time-wasting under Rule 403, and thus
inadmissible. See Fed.R.Evid. 403.
The
court views the evidence as relevant to a number of issues,
but ultimately finds it unduly prejudicial and thus subject
to exclusion, or at least redaction from the exit documents
generated by Walmart and Lawrence General Hospital. The
documents contain evidence (presumably corroborative of, or
corroborated by, witness testimony) that the defendant was
fired from two prior positions, and the reasons he was fired.
While only the occurrence of the previous terminations (and
not their precipitating reasons) goes to prove the falsehood
of the “no” answers on the VA Hospital employment
application, see 18 U.S.C. § 1001, the
prosecution’s burden of proof also includes the
materiality of the “no” answers denying prior job
firings. See id.; see also United States v.
Sebaggala, 256 F.3d 59, 65 (1st Cir. 2001). Since the
reasons for a job applicant’s prior terminations would
presumably be of interest to a prospective employer, likely
triggering further inquiry and investigation, evidence of
misconduct and incompetence could be relevant as to the
materiality of the “no” answers.
Second,
§ 1001 also requires proof that the defendant
made his false statement “knowingly and
willfully.” 18 U.S.C. § 1001(a). The exhibits in
question are purported to be records of meetings at which the
defendant was present, and in which he participated, and are
purported to have been reviewed by the defendant, making the
defendant’s knowledge of the falsehood of his
“no” answer more likely than it would be without
the evidence, and thus relevant and admissible. Fed.R.Evid.
401, 402. See also 404(b) (knowledge).
Third,
while the defendant’s motive for making the false
statements is not technically part of the prosecution’s
burden, it is certainly admissible in most circumstances.
See, e.g., United States v. Reveron Martinez, 836
F.2d 684, 689-90 (1st Cir. 1988) (evidence
sufficient to support conviction for knowingly made false
statement where, “taking into account the totality of
the evidence, direct and circumstantial, and giving due
weight to the indirect evidence anent appellant's motive
to falsify, the proof was adequate to underbrace a guilty
verdict”). And Rule 404(b) provides prior
uncharged misconduct is relevant to prove motive. See
Fed.R.Evid. 404(b) (“[Evidence of a crime, wrong, or
other act] may be admissible for another purpose, such as
proving motive . . . .”); United States v.
Mensah, 737 F.3d 789, 812 (1st Cir. 2013)
(“Federal Rule of Evidence 404(b) generally
bars the use of evidence of other crimes or acts to prove
‘a mere propensity to behave in a certain way, ’
but permits such evidence where it has ‘special
relevance, ’ i.e., if it tends to prove such material
facts as knowledge, motive or intent.”) While the
parties dispute the reasons for the defendant’s firings
from Walmart and Lawrence General, they both acknowledge the
existence of evidence that one or both of the prior firings
involved diversion by the defendant of pharmaceutical drugs.
A desire to obtain a new position at a VA Hospital that would
enable further drug seeking and drug diversion activity is
potentially relevant to show the motive to lie in order to
increase the likelihood of obtaining the position. Or, to put
it more plainly, a pharmaceutical drug abuser or addict might
have a motive to lie on an application for a job that would
provide access to pharmaceutical drugs.
Despite
the various purposes for which the information on the
“exit forms” could be relevant, “the court
may exclude relevant evidence if its probative value is
substantially outweighed by a danger” that it may
unfairly prejudice the defendant, confuse issues before the
jury or mislead the jury, among other things. Fed.R.Evid.
403; see also United States v. DeCicco, 370 F.3d
206, 211 (1st Cir. 2004) (“first, a court must
determine whether the evidence in question has any special
relevance exclusive of defendant's character or
propensity; and second, notwithstanding its special
relevance, whether the evidence meets the standard set forth
in Fed.R.Evid. 403.”). United States v. Smith,
292 F.3d 90, 99 (1st Cir. 2002) (“We usually defer to
the district court’s balancing under Rule 403
of probative value against unfair prejudice.”). Here,
the risk of unfair prejudice and confusion of these issues
outweighs the probative value provided by the evidence as to
knowledge, of materiality (probative, but fairly week) and
motive (also probative, but somewhat attenuated).
Although
the parties dispute this point, the defendant’s prior
terminations may have been at least partially caused by his
alleged drug seeking and drug diverting activity, and he was
also suspected of such misconduct during his eventual V.A.
Hospital employment, the application process for which was
the backdrop for the charged false statement in violation of
§ 1001. The potential for juror confusion
between the alleged drug-related occupational misconduct
occurring prior to, and then subsequent to, [2] his alleged false
statements requires little explanation. And the prejudice
resulting from introduction of this alleged misconduct would
likely be substantial, given that occupational drug
misconduct by a pharmacist is not only professionally
inappropriate, but also criminal and potentially dangerous to
public safety. The potential for the jury to unduly focus to
the defendant’s detriment on the purported reasons for
his prior firings, as opposed to the elements of the offense
charged, creates a prejudice that substantially outweighs the
probative value of the evidence to show materiality and
motive.
Excluding
the evidence of the purported reasons for the prior
terminations, however, does not necessarily require the
outright exclusion of the “exit documents”
altogether. Appropriate redactions of the offending notations
on the documents, accompanied if necessary by an appropriate
limiting instruction, see Fed. R. Evid. 105, would
render the exit documents admissible to prove the fact of the
prior terminations--in other words, simply that the
terminations took place--as well as the defendant’s
knowledge thereof, both of which are part of the
prosecution’s burden in this case, see 18 U.S.C. §
1001, while eliminating any potentially undue prejudice or
confusion.
The
defendant also seeks to exclude uncharged misconduct
occurring after the alleged false statements and during the
defendant’s V.A. Hospital employment, most notably the
defendant’s alleged (and apparently unproven) drug
diverting activities. The United States Attorney has
affirmatively stated that the prosecution ...