Marks v. St. Tammany Parish Sheriffs Office, et al

Filing 136

ORDER AND REASONS granting 90 Motion in Limine to exclude evidence of the Plaintiff's past arrests and convictions; granting 91 Motion in Limine to exclude evidence of the Plaintiff;s involvement in a sting operation. Signed by Judge Susie Morgan on 5/19/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JENNIFER R. MARKS,
Plaintiff

CIVIL ACTION

VERSUS

NO. 15-5454

SHERIFF RANDY SMITH, IN HIS
CAPACITY AS SHERIFF OF THE
PARISH OF ST. TAMMANY, ET AL.,
Defendants

SECTION: “E” (2)

ORDER AND REASONS
Before the Court are two motions in limine filed by the Plaintiff.1 The motions are
opposed.2 The Court rules on the motions as set forth below.
BACKGROUND
This is a case brought under 42 U.S.C. § 1983. On or about October 23, 2014, upon
leaving her employment, Plaintiff, Jennifer Marks, alleges she stopped at Acadia Gas
Station in Slidell, Louisiana to purchase a pack of cigars.3 After leaving the gas station,
Deputy Bryan Steinert conducted a traffic stop of the Plaintiff.4 Deputy Samuel Hyneman
arrived on the scene while Deputy Steinert searched the Plaintiff’s vehicle.5 Deputy
Steinert found drug paraphernalia in the vehicle. Corporal Amore Neck then arrived on
the scene to conduct a search of the Plaintiff’s person. It is at this point that the parties’
accounts of the incident diverge.

R. Docs. 90, 91.
R. Docs. 95, 96.
3 R. Doc. 2 at ¶ 6.
4 Id. at ¶ 5.
5 Id. at ¶ 9.
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The Plaintiff alleges Corporal Neck conducted “an illegal and unconstitutional full
body cavity search at the traffic stop which amount to a sexual assault.”6 According to the
Plaintiff, Corporal Neck “forced Ms. Marks to bend over while handcuffed, putting her
hand down Ms. Marks’ pants, and with her fingers, entering Ms. Marks’ vagina and then
separately, her rectum. Deputy Amore then checked Ms. Marks’ feet and mouth without
changing gloves.”7
The Defendants’ accounts, however, differ significantly from the Plaintiff’s. Deputy
Hyneman, who observed the search performed by Corporal Neck, provided testimony that
the search was a “basic pat down” and Corporal Neck did not search the Plaintiff’s body
cavities.8 Corporal Neck testified the search she conducted on the Plaintiff was a usual
pat-down search, which did not include searching any of the Plaintiff’s body cavities.9
The Plaintiff filed this lawsuit, bringing claims against the St. Tammany Parish
Sheriff’s Office and Sheriff Randy Smith in his official capacity under 42 U.S.C. § 1983
and other state-law causes of action. The Plaintiff also brings claims against Corporal
Amore Neck, Deputy Samuel Hyneman, and Deputy Bryan Steinert in their individual
capacities under section 1983 for violations of her Eighth and Fourteenth Amendment
rights.
Defendant Corporal Amore Neck filed a counterclaim against Marks, alleging the
allegation in Marks’s complaint are completely false and rise to the level of defamation.

Id. at ¶ 10.
Id. at ¶ 11.
8 R. Doc. 46-4 at 26–27.
9 R. Doc. 46-5 at 15–16.
6
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LAW AND ANALYSIS
I.

Past Arrests and Criminal Record

The Plaintiff filed a motion in limine to exclude evidence of her criminal arrests
and convictions.10 The Plaintiff seeks to exclude evidence relating to the following past
arrests and convictions: (1) October 14, 2004 arrest and guilty plea to possession of
cocaine, which was later expunged; (2) arrest for domestic violence in March of 2011; (3)
October 2, 2009 arrest and conviction for driving while intoxicated; (4) 2009 arrest for
drug possession; and (5) 2007 arrest for drug possession.11
The Plaintiff argues evidence related to her prior arrests and convictions is
inadmissible because (1) Federal Rule of Evidence 404(b) prohibits the introduction of
evidence of other crimes, wrongs, or other acts for the purpose of showing the person’s
character; (2) the evidence is irrelevant under Rule 401; and (3) the evidence is more
prejudicial than probative under Rule 403.12
Defendants, in response, contend they do not seek to admit evidence and
testimony of the Plaintiff’s criminal history to attack her character. Instead, Defendants
seek to use such evidence under Rule 404(b) to demonstrate bias against the St. Tammany
Sheriff and motive to fabricate the alleged body cavity search.13
The Court will examine whether the evidence is admissible under Rule 609 or Rule
404(b).
Under Federal Rule of Evidence 609, evidence of a felony conviction may be
admissible to attack a witness’s character for truthfulness.14 Rule 609(b) places limits on

R. Doc. 90.
Id. at 1.
12 R. Doc. 90-1.
13 R. Doc. 95.
14 FED. R. EVID. 609.
10
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the use of such evidence if “more than 10 years have passed since the witness’s conviction
or release from confinement” for that conviction.15 Only one of the Plaintiff’s past criminal
encounters— her October of 2009 conviction for driving while intoxicated—is admissible
under Rule 609 for impeachment purposes, subject to its admissibility under Rule 403.16
Rule 403 provides, in pertinent part, that the court “may exclude evidence if its
probative value is substantially outweighed by a danger of . . . unfair prejudice.” 17 The
Plaintiff’s conviction for driving while intoxicated occurred nearly eight years ago, and
did not involve the officers named in this lawsuit. Moreover, the Court notes that the
Plaintiff’s conviction for driving while intoxicated is not one that involves dishonesty or
the making of false statements and does not raise questions with respect to her propensity
to tell the truth.
The Court has broad discretion in determining “whether to allow or disallow use
of a conviction based upon whether its probative value exceeds its prejudicial effect.” 18
For the reasons stated above, the Court finds that any probative value the Plaintiff’s 2009
conviction for driving while intoxicated may have is substantially outweighed by the
danger of unfair prejudice to her. The Defendants may not introduce evidence of the
Plaintiff’s October of 2009 conviction for driving while intoxicated under Rule 609.
For the same reasons, the Court will not admit under Rule 404(b) the evidence of
the Plaintiff’s prior arrests and convictions. Under Rule 404(b), “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to

FED. R. EVID. 609(b).
The only other criminal conviction listed by the parties is a 2004 conviction for possession of cocaine.
Because this conviction occurred more than ten years ago, it is inadmissible pursuant to Rule 609(b).
17 FED. R. EVID. 403.
18 Howard v. Gonzales, 658 F.2d 352, 359 (5th Cir. 1981) (citing Shingleton v. Armor Velvet Corp., 621
F.2d 180, 183 (5th Cir. 1980)).
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show action in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.”19 Any evidence that is admissible under Rule 404(b)
must survive the balancing of competing considerations under Rule 403.
The Court finds the probative value of the Plaintiff’s past arrests and convictions is
negligible with respect to whether the Plaintiff is biased against the St. Tammany Parish
Sheriff’s Office or whether she was motivated to bring this action because of bias.
Importantly, none of the Plaintiff’s past arrests was effectuated by any of the three
Defendants in this action. The Court finds the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice.20 The Defendants may not
introduce evidence of the Plaintiff’s past arrests or convictions.
II.

Past Sting Operation

The Plaintiff seeks to exclude evidence or testimony related to a sting operation for
which she was a confidential informant for the St. Tammany Parish Sheriff’s Office.21 The
Plaintiff argues this evidence is irrelevant, speculative, and unduly prejudicial, and
therefore should be excluded.22
Defendants argue evidence related to the sting operation is relevant under Rule
401 because it shows that “Ms. Marks developed a bias against the sheriff when her son
did not receive the expected leniency from her participation in the undercover
operation.”23 Defendants contend they should be allowed to present relevant evidence
FED. R. EVID. 404(b).
See Barber v. City of Chicago, 725 F.3d 702, 714 (7th Cir. 2013) (“Presenting a section 1983 plaintiff’s
criminal history to the jury presents a substantial risk that the jury will render a defense verdict based not
on the evidence but on emotions or other improper motives, such as belief that bad people should not be
permitted to recover from honorable police officers.”).
21 R. Doc. 91.
22 R. Doc. 91-1 at 3.
23 R. Doc. 96 at 5.
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and testimony demonstrating the Plaintiff’s bias and motivation for the lawsuit, leaving
it to the jury to make any necessary credibility determinations. 24 Finally, Defendants
argue evidence of the sting operation is not “wholly prejudicial” such as to warrant
exclusion under Rule 403.
The Plaintiff aided the St. Tammany Parish Sheriff’s Office in a sting investigation,
which led to the arrest of a local attorney. The Plaintiff admits she “offered information
and assistance to STPSO . . . in exchange for [her] son being let out of jail while his
criminal case was adjudicated.”25 The Plaintiff further admits her son was released from
jail on the evening the sting operation was effectuated.26
In addition to the Plaintiff’s son being released from jail, the Defendants contend
the Plaintiff and the detective in charge of the sting operation agreed the detective would
write a letter to the district attorney requesting consideration of the Plaintiff’s son’s case.
The detective in charge of the sting operation testified he told the Plaintiff that “any
consideration given to [her son’s] case was at the discretion of the District Attorney’s
office.”27 The parties agree that the detective did indeed write a letter to the Twenty
Second Judicial District Court’s District Attorney’s Office, pointing out the Plaintiff’s
participation in the sting operation and requesting assistance on the Plaintiff’s son’s
pending charge.28 It appears to the Court that the Sheriff and the detective adhered to the
agreement between the Sheriff’s Office and the Plaintiff. The Court sees no basis for the
Defendants’ argument that this episode caused the Plaintiff to be biased against the St.
Tammany Parish Sheriff’s Office. As a result, this evidence does not make it more likely

Id.
R. Doc. 91-1 at 1.
26 Id. at 2.
27 Exhibit D to R. Doc. 96 (filed under seal).
28 Exhibit 2 to Exhibit D to R. Doc. 86 (filed under seal).
24
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that the Plaintiff’s bias impeaches her credibility. The evidence is therefore irrelevant and
inadmissible.
Even if evidence of the sting operation were admissible under Rule 401, the Court
finds the evidence inadmissible under Rule 403. Rule 403 provides, in pertinent part, that
the court “may exclude evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice.”29 The prejudice to the Plaintiff from the introduction of
this evidence is great and substantially outweighs any slight probative value it might have.
As a result, The Defendants may not introduce evidence of the Plaintiff’s involvement in
the sting operation.
CONCLUSION
IT IS ORDERED that the motion in limine to exclude evidence of the Plaintiff’s
past arrests and convictions30 is hereby GRANTED.
IT IS FURTHER ORDERED that the motion in limine to exclude evidence of
the Plaintiff’s involvement in a sting operation31 is hereby GRANTED.
New Orleans, Louisiana, this 19th day of March, 2017.
____ ________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

FED. R. EVID. 403.
R. Doc. 90.
31 R. Doc. 91.
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