United States of America v. Gumbaytay et al

Filing 397

MEMORANDUM OPINION AND ORDER that the United States' 274 First MOTION in Limine is conditionally GRANTED in accordance with this opinion. Signed by Honorable Judge Mark E. Fuller on 6/23/2011. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
MATTHEW BAHR, et al.,
Defendants.

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CASE NO. 2:08-cv-573-MEF

MEMORANDUM OPINION AND ORDER
This cause is before the Court on the Plaintiff United States of America’s (“United
States”) Motion in Limine to exclude evidence of the victims’ sexual history. (Doc. #
274). Defendants Abraham Campbell, Woody Franklin, and Terrill Jorgensen have
opposed this motion. (Docs. # 293 and 295).1 For the following reasons, that motion is
due to be conditionally GRANTED.
FACTUAL AND PROCEDURAL HISTORY
On July 17, 2008, the United States brought suit against several defendants
pursuant to Title VIII of the Civil Rights Act of 1968, as amended, 42 U.S.C. §§ 36013619 (“Fair Housing Act”). (Doc. #1, 45, 107, 168). The United States alleges that

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Margie Campbell, Lori Williams, and Todd Chamelin also opposed the motion,
but they have since been dismissed as parties to this suit either on the motion of the
government or because of settlement. (See Docs. # 320, 367).

Jamarlo Gumbaytay2 (“Gumbaytay”) engaged in a pattern of unlawful discrimination on
the basis of sex in connection with the rental of the defendants’ properties. The United

States alleges that from at least 2005, Gumbaytay subjected actual and prospective
female tenants at the defendants’ properties to discrimination on the basis of sex,
including severe, pervasive, and unwelcome sexual harassment. This includes
“unwanted verbal sexual advances; unwanted sexual touching; unwanted sexual
language; granting and denying tangible housing benefits based on sex; and taking
adverse action against female tenants when they refused or objected to his sexual
advances.”
The Attorney General may bring this lawsuit against the defendants in the
following circumstances:
Whenever the Attorney General has reasonable cause to believe that any
person or group of persons is engaged in a pattern or practice of resistance
to the full enjoyment of any of the rights granted by [the Fair Housing Act],
or that any group of persons has been denied any of the rights granted by
[the Fair Housing Act] and such denial raises an issue of general public
importance, the Attorney General may commence a civil action in any
appropriate United States district court.
42 U.S.C. § 3614(a). Therefore, the Attorney General “has standing to sue” whenever he
or she has reasonable cause to believe that “(1) there is an ‘individual’ or a ‘group’
pattern or practice violative of the Fair Housing Act or (2) whenever a group of persons

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Gumbaytay was originally a defendant in this lawsuit, but passed away during
the course of the litigation. He has since been dismissed as a defendant, and the United
States chose not to substitute his estate. (Doc. # 378).
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has been denied rights granted by the Act and that denial raises an issue of general public
importance.” United States v. Bob Lawrence Realty, Inc., 474 F.2d 115, 122–23 (5th
Cir. 1973).3
In this case, the United States has alleged that it has standing on the basis of both
grounds. The United States, among other things, seeks damages and civil penalties on
behalf of the victims in this case “for injuries caused by the Defendants’ discriminatory
conduct.” (Doc. # 168). Specifically, the United States seeks damages based on the
allegation that Gumbaytay infected the victims with a sexually transmitted disease. (Doc.
# 273). The United States sought discovery of Gumbaytay’s medical records on this
basis. Magistrate Judge Walker permitted the United States to subpoena hospital records
relating to Gumbaytay’s treatment for sexually transmitted diseases. (Doc. # 381).
The defendants in this case have indicated a desire to introduce evidence of the
victims’ sexual history. (See Doc. # 274). The United States seeks to exclude any
testimony regarding the victims’ sexual history, arguing that any such evidence would be
inadmissible under Federal Rules of Evidence 402, 403, and 412. Id. The defendants
argue that such evidence would be relevant in the event that the United States seeks
damages based on the victims’ exposure to sexually transmitted diseases.

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In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. Nov. 3, 1981)
(en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions
handed down prior to the close of business on September 30, 1981.

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DISCUSSION
The Federal Rules of Evidence caution against admitting evidence regarding a
victim’s past sexual history or sexual predisposition, especially in cases involving sexual
misconduct. In fact, Federal Rule of Evidence 412 provides that evidence that a victim
engaged in other sexual behavior or to show that the victim has a sexual predisposition is
generally inadmissible in a civil case involving sexual misconduct. Such evidence is
permissible, however, if the victim has put his or her reputation in controversy and the
probative value of the evidence outweighs its prejudicial nature. Fed. R. Evid. 412. The
United States has not yet put the victims’ reputations in controversy. Accordingly, Rule
412 precludes the admission of evidence regarding the victims’ sexual history.
Therefore, the United States’ motion is due to be conditionally granted.
However, if the United States chooses to seek damages on behalf of the victims to
compensate them for contracting any sexually transmitted diseases from Jamarlo
Gumbaytay, then the Court will consider admitting such evidence. By seeking such
damages, the United States would effectively be putting the victims’ reputations in
controversy, and the evidence would be admissible if its probative value outweighed its
prejudicial nature.
The Eleventh Circuit has found that evidence of a victim’s prior sexual
relationship is relevant in a case where the victim seeks damages based on contracting a
sexually transmitted disease. See Judd v. Rodman, 105 F.3d 1339, 1343 (11th Cir.

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1997). Accordingly, if the United States opens the door and seeks damages for the
victims’ acquisition of a sexually transmitted disease, the Court will likely allow
evidence regarding the victims’ sexual history. However, because this motion is due to
be conditionally granted, the defendants will be required to approach at sidebar and seek
the Court’s permission before putting any evidence regarding the victims’ sexual history
before the jury.
In accordance with the above opinion, it is hereby ORDERED that the United
States’ Motion in Limine is conditionally GRANTED.
Done this the 23rd day of June, 2011.

/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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