United States v. 434 Main Street, Tewksbury, Massachusetts

Filing 112

Magistrate Judge Judith G. Dein: ORDER entered granting 101 Claimants Motion in Limine To Strike Proposed Witness Bernard Prude. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA,
Plaintiff,
v.
434 MAIN STREET, TEWKSBURY,
MASSACHUSETTS,
Defendant.
_______________________________
RUSSELL H. CASWELL, as Trustee
of the Tewksbury Realty Trust,
Claimant.

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CIVIL ACTION
NO. 09-11635-JGD

ORDER ON CLAIMANT’S MOTION IN LIMINE
TO STRIKE PLAINTIFF’S PROPOSED WITNESS
November 7, 2012
DEIN, U.S.M.J.
This matter is presently before the court on the “Claimant’s Motion in Limine to
Strike United States’ Proposed Witness Bernard Prude” (Docket No. 101). By his
motion, the claimant is seeking to strike Bernard Prude from the United States’ trial
witness list on the grounds that Mr. Prude was not disclosed as a potential witness
pursuant to Fed. R. Civ. P. 26(a)(1)(A), and on the grounds that his proposed testimony is
irrelevant to the issues before this court. After consideration of the parties’ written
submissions and their oral arguments, the motion is ALLOWED.

Pursuant to Fed. R. Civ. P. 26(a)(1)(A), a party is required to disclose witnesses
that “the disclosing party may use to support its claims or defenses, unless the use would
be solely for impeachment.” As explained in the Advisory Committee Notes to Rule 26,
this obligation “requires a party to disclose information it may use to support its denial or
rebuttal of the allegations, claim, or defense of another party.” Fed. R. Civ. P. 26(a)(1)
at cmt. to 2000 Amendment (emphasis added). Therefore, the fact that the United States
proposes to use Mr. Prude solely for purposes of rebutting the claimant’s innocent owner
defense does not constitute an adequate excuse for its failure to identify Mr. Prude as a
potential witness under Rule 26(a)(1)(A). To the extent the plaintiff believed that Mr.
Prude may have been needed as a witness at trial, it had an obligation to disclose him.
Nevertheless, this court does recognize that under Rule 26(a)(1)(A), “[a] party is
no longer obligated to disclose witnesses . . . that it does not intend to use[,]” as long as it
supplements its disclosures “when it determines that it may use a witness . . . that it did
not previously intend to use.” Id. This court has no reason not to accept the United
States’ representation that it did not intend to call Mr. Prude as a witness until just prior
to the October 15, 2012 deadline for filing its pre-trial disclosures pursuant to Fed. R.
Civ. P. 26(a)(3). However, given the plaintiff’s long-term knowledge about the
claimant’s reliance on the innocent owner defense, and in light of this court’s prior efforts
to have the parties identify additional witnesses who would need to be deposed before
trial, it is disappointing that the plaintiff waited until October 15, 2012 to disclose Mr.
Prude as a witness.
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The United States’ omission of Mr. Prude from its Rule 26(a)(1)(A) disclosures
also is problematic because it deprived the claimant of notice as to the existence and
efficacy of procedures which the government may be claiming should have been
implemented at the Motel Caswell. As the United States has represented, Mr. Prude is
being offered to provide testimony regarding procedures that have been used at the Motel
6 to reduce crime and identify suspicious customers. Because the claimant had no prior
notice of this testimony, and has not had an opportunity to depose Mr. Prude, he has not
had a chance to address whether such procedures may or may not have been appropriate
at the Motel Caswell. Moreover, allowing a deposition at this late stage, in the midst of
trial, would not solve the problem. For example, Mr. Caswell would not have the
opportunity to explore the physical practicalities or costs of any security measures Mr.
Prude may suggest, or the efficacy of any procedures actually implemented at Motel 6,
much less research any legal issues that may be presented by the screening of proposed
customers.1
In addition to the plaintiff’s failure to disclose Mr. Prude until a few weeks prior to
trial, Mr. Prude’s proposed testimony is not relevant to the issues raised by the parties’
claims and defenses. As described above, Mr. Prude is proposing to testify regarding
procedures that are used at the Motel 6. He is not being offered as an expert on such

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Since despite this court’s invitation the government has not detailed the substance of
Mr. Prude’s proposed testimony, it is impossible to determine precisely what avenues Mr. Caswell
would want to explore if given the time.
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procedures. Nor is he expected to provide testimony on industry standards. Therefore,
his proposed testimony will reflect nothing more than Mr. Prude’s personal opinions as to
what procedures and identification methods are appropriate for use at a separate facility.
The United States has not shown how such personal opinions are relevant to the Motel
Caswell.
In order to establish his innocent owner defense, the claimant must show, by a
preponderance of the evidence, that he “(i) did not know of the conduct giving rise to
forfeiture; or (ii) upon learning of the conduct giving rise to the forfeiture, did all that
reasonably could be expected under the circumstances to terminate such use of the
property.” 18 U.S.C. § 983(d)(2). However, Mr. Prude’s proposed testimony addresses
only the procedures that were implemented at the Motel 6. It does not identify what
procedures may have been reasonable under the circumstances faced by the claimant at
the Motel Caswell. Furthermore, there is no evidence that any of Mr. Prude’s personal
thoughts about making the Motel 6 secure were ever conveyed to the claimant. This
court cannot assess whether Mr. Caswell acted reasonably based on options which were
never suggested to Mr. Caswell. Moreover, this court cannot, without extensive
testimony, determine if the two properties were remotely comparable on any number of
relevant levels, such as size, location, general customer base, or the resources available to
their respective owners, just to name a few. Because the United States has provided no
foundation for this court to conclude that the two properties and their owners were

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similarly situated, Mr. Prude’s testimony is irrelevant to show what could have been done
or should have been done at the claimant’s facility.
Finally, the United States has argued strenuously that the evidence of criminal
activity at locations other than the defendant property is irrelevant to any of the claims
and defenses asserted in this case. (See Docket No. 90). However, in order to draw any
conclusions about the effectiveness of the procedures used at the Motel 6, and about
whether such procedures potentially could have been effective at the Motel Caswell, this
court would need to have an understanding as to the nature and volume of the criminal
activity that was occurring at the Motel 6. At present, the record includes testimony from
the police that there remains a drug problem at Motel 6, so the level of drug activity
would have to be explored. In short, Mr. Prude’s proposed testimony raises issues
beyond the scope of what the United States has argued is relevant in this case. For this
reason as well, this court finds that Mr. Prude is not an appropriate trial witness at this
stage and that the claimant’s motion to exclude him should be allowed.

/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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