UNITED STATES OF AMERICA v. $307,970.00 in U. S. Currency

Filing 286

ORDER granting in part and denying in part 260 Motion in Limine To Exclude Evidence Due To Spoliation; Alternative Request For Spoliation Jury Instruction; denying 275 Motion To Exclude Testimony By Witness Thurman Bohne. Counsel is reminded to read the order in its entirety for critical information. Signed by District Judge Louise Wood Flanagan on 9/13/2019. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:12-CV-136-FL
UNITED STATES OF AMERICA,
Plaintiff,
v.
$307,970.00 IN U.S. CURRENCY,
Defendant,
APOLINAR GARCIA-ANCELMO,
CIRILA PINEDA GARCIA, and LUCIA
COVARRUBIAS,
Claimants.

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ORDER

This matter comes before the court on claimants’ motion in limine to exclude evidence due
to spoliation, or in the alternative a request for spoliation jury instruction (DE 260). Also before the
court is claimants’ motion in limine to exclude testimony by Thurman Bohne (“Bohne”) and request
for hearing to assess competency (DE 275). The issues raised are ripe for ruling. For the reasons
that follow, claimants’ motion for sanctions due to spoliation is granted in part and denied in part.
Claimants’ motion to exclude testimony by Bohne is denied.
BACKGROUND
This matter, set for trial commencing October 21, 2019, concerns whether $307,970.00 in
United States currency seized from claimant Apolinar Garcia-Ancelmo (“Garcia-Ancelmo”) during
a traffic stop was used or intended to be used in exchange for controlled substances, represented
proceeds of trafficking in controlled substances, or was used or intended to be used to facilitate a
violation of Title II of the Controlled Substances Act, 21 U.S.C. §§ 801 et seq. Where this case has

a complex procedural history and lengthy factual background, the court recounts the following facts
and procedure pertinent to the issues now under consideration.
A.

The Currency
Claimant Garcia-Ancelmo met with an undercover drug interdiction officer, Special Agent

Gilbert Trillo (“Trillo”), in order arrange transport of the currency to Mexico. While driving to
deliver the currency to Trillo on February 16, 2012, claimant Garcia-Ancelmo was stopped by FBI
Task Force Officer Matthew Miller (“Miller”), then investigating claimant Garcia-Ancelmo. Miller
allegedly observed claimant Garcia-Ancelmo commit traffic violations, and initiated a traffic stop.
During the traffic stop, Miller asked for and received consent to search claimant Garcia-Ancelmo’s
car.1 Upon searching the car, Miller discovered the currency buried under a pile of laundry in a bin,
concealed within two black trash bags and packaged in vacuum-sealed plastic bags.
Following Miller’s discovery of the currency in claimant Garcia-Ancelmo’s car, Officer
Kenneth Prevost (“Prevost”) and police canine Iko arrived at the scene to conduct a sniff for drugs.
According to Prevost, Iko alerted to drugs on the currency. Thereafter, Miller explained to claimant
Garcia-Ancelmo that the money would be seized and he would be given a property receipt and then
released. Miller’s report of investigation makes no mention of Prevost and Iko’s search of the car,
though Miller observed the search and the search was recorded on dash camera video.
Shortly after seizing the currency, Miller and another deputy sheriff transported the
currency back to the Wayne County Sheriff’s Office (“WCSO”) Annex, where the currency was
turned over to Drug Enforcement Administration (“DEA”) agent Nicholas J. Giacobbe

1

The court notes that, at summary judgment, the parties did not dispute that the car in fact was registered to
claimant Covarrubias. However, since claimant A. Garcia was the one stopped by Miller, the court refers to the car as
claimant A. Garcia’s vehicle.

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(“Giacobbe”). The currency was photographed by Giacobbe and Trillo, transported from the WCSO
Annex to the DEA’s Wilmington Regional Office (“WRO”), and secured in an overnight high value
storage safe. On February 17, 2012, the currency was taken by other DEA agents to RBC Bank,
Princess Street, Wilmington, NC, and converted into a cashier’s check. Trillo and Giacobbe’s
reports of investigation do not mention the drug dog search of claimant Garcia-Ancelmo’s car.
In June 2017, the government reviewed the dash camera footage of the traffic stop and
discovered that a drug dog search had been conducted. After conferring with Miller, the government
was able to confirm Prevost’s identity and amended its discovery disclosures to say that they
intended to offer evidence of the drug dog search. Claimants sought discovery sanctions, asking the
court to exclude evidence of the drug dog search for failing to timely disclose the evidence. The
court denied the motion, finding the government timely disclosed the information, and that in any
event the evidence should be permitted at trial. The court also denied claimants’ motion to exclude
expert testimony of Prevost and Dr. Kenneth Furton (“Furton”) that Iko alerted to drugs recently in
contact with defendant currency, pursuant to Federal Rules of Evidence 403, 702, and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
B.

Interviews and Testimony of Thurman Bohne
The government does not rely solely on contamination of the currency to support its

argument that the currency is substantially connected to drug trafficking. They also rely on
witnesses that testify claimants gave them drugs. One of those witnesses is Thurman Bohne
(“Bohne”). Bohne testifies that, from the beginning of 2010 to the middle of 2012, he received
significant quantities of cocaine from claimant Garcia-Ancelmo and other members of his family.
Claimants seek to preclude Bohne’s testimony. First, they argue that the government

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despoiled evidence used in Bohne’s interviews, including a list containing the names of individuals
who sold Bohne drugs, and photographs used by the government to confirm that Bohne was
referring to claimants. Claimants argue such purported spoliation requires exclusion of any
identification testimony by Bohne. Second, they challenge Bohne’s competency. Relying on the
expert opinions of Dr. Len Lecci (“Lecci”) and Dr. Heather Ross (“Ross”), claimants argue that
Bohne’s substance abuse and Antisocial Personality Disorder bar him from testifying at trial.
DISCUSSION
A.

Claimants’ Motion for Spoliation Sanctions (DE 260)
“Spoliation refers to the destruction or material alteration of evidence or to the failure to

preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”2
Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). “The right to impose sanctions
for spoliation arises from a court’s inherent power to control the judicial process and litigation, but
the power is limited to that necessary to redress conduct ‘which abuses the judicial process.’” Id.
(quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991)). “[S]poliation does not result
merely from the ‘negligent loss or destruction of evidence.’” Turner v. United States, 736 F.3d 274,
282 (4th Cir. 2013) (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995)).
“Rather, the alleged destroyer must have known that the evidence was relevant to some issue in the
anticipated case, and thereafter willfully engaged in conduct resulting in the evidence’s loss or
destruction.” Turner, 736 F.3d at 282; Vulcan Materials Co. v. Massiah, 645 F.3d 249, 259–60 (4th
Cir. 2011); Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th Cir. 2004). “Although the

2

Here, litigation was reasonably foreseeable because Miller explained to claimant Garcia-Ancelmo that
the currency was being seized and that claimant Garcia-Ancelmo was being given a property receipt. (Miller Decl. (DE
220-2) ¶ 13).

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conduct must be intentional, the party seeking sanctions need not prove bad faith.” Turner, 736 F.3d
at 282 (citing Vodusek, 71 F.3d at 156); see Cole v. Keller Indus., Inc., 132 F.3d 1044, 1046–47 (4th
Cir. 1998).
1.

The Currency

To manage funds seized by the government in forfeiture proceedings, Congress created the
Asset Forfeiture Fund, as well as holding accounts associated with the Asset Forfeiture Fund. See
28 U.S.C. § 524(c). Pursuant to applicable regulations, “[s]eized U.S. currency . . . must be
deposited promptly in the Seized Asset Deposit Fund pending forfeiture.” 28 C.F.R. § 8.5(b). For
the government to be provisionally relieved of the obligation to comply with this mandate, the Chief
of the Asset Forfeiture and Money Laundering Section (AFMLS) must first “determine[] in writing
that the currency is reasonably likely to serve a significant, independent, tangible evidentiary
purpose.” 28 C.F.R. § 8.5(b)(2).
On February 16, 2012, government agents seized $307,970.00 from claimant GarciaAncelmo after observing the cash was packaged in a manner consistent with drug trafficking, in a
quantity consistent with drug trafficking, and after having Iko, a narcotics detection canine, conduct
a sniff of the car. The evidence was turned over to agents with the DEA, who photographed the
currency for evidence. (See Currency Photos (DE 235-4)). The currency was held in an overnight
high value storage safe, and converted into a cashier’s check on February 17, 2012. (February 17,
2012 ROI (DE 261-1) at 9). The government’s deposit of the currency is plainly intentional, as it
was done according to DOJ regulations and guidance. See 28 C.F.R. § 8.5(b) (mandating prompt
deposit of currency); (February 17, 2012 ROI (DE 261-1) at 9).
Moreover, the government should have known that the currency was potentially relevant

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evidence for testing contamination. See 28 C.F.R. § 8.5(c) (“Seized currency has a significant
independent, tangible evidentiary purpose” if, for example, it “contains a traceable amount of
narcotic residue or some other substance of evidentiary significance.”); United States v. Funds in
Amount of One Hundred Thousand One Hundred & Twenty Dollars ($100,120.00), 730 F.3d 711,
720 n.1 (7th Cir. 2013) (“By failing to perform such testing (and failing to preserve the Funds until
the conclusion of this proceeding), the government eliminated laboratory testing as a source of
evidence.”). Miller observed Prevost and Iko conduct a drug dog sniff of the car. (Miller ROI (DE
196-2) at 13–16). Additionally, the dash camera recorded the purported drug dog sniff. (See Dash
Camera Video (DE 215-11) 26:07–27:46).3 This should have put the government on notice that
contamination of currency was a relevant issue in the case, making testing of the currency relevant
to an innocent contamination defense. Instead, the reports of investigation in this case indicate that
the DEA agents responsible for depositing the currency did not know that contamination of the
currency was an issue in this case. (See Feb. 17, 2012 ROI (DE 261-1) at 1–9 (failing to discuss the
drug dog test conducted by Prevost and Iko)). Thus, the court in its discretion will consider an
appropriate sanction to cure the prejudice to claimants arising from this apparent miscommunication
among law enforcement agents.
When determining an appropriate sanction for spoliation, “the applicable sanction should be
molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation
doctrine.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (internal citation
omitted). “In addition, a court must find some degree of fault to impose sanctions.” Id. “The trial
court has discretion to pursue a wide range of responses both for the purpose of leveling the
3
All citations herein to this dash camera video are to the time stamp in minutes and seconds (for
example, “00:00”) appearing in the player on which the court viewed the videos, VLC Media Player.

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evidentiary playing field and for the purpose of sanctioning the improper conduct.” Vodusek, 71
F.3d at 156.
Under these circumstances, a permissive adverse inference instruction is a remedy that is fair
to both the government and claimants. The instruction leaves ultimate determination of the facts to
the jury, who will be able to base their assessment of the parties’ contamination theories on the
extensive testimony forecasted for trial. However, a permissive instruction also punishes the
government for eliminating evidence relevant to claimants’ defense due to its failure to appreciate
the potential relevance of the currency to the dog sniff it conducted. In addition, claimants may
question the government’s agents regarding why they failed to preserve the currency in this case.

Claimants ask the court to exclude the government’s evidence of Iko and expert testimony,
or alternatively for a mandatory adverse inference instruction. The court declines to impose those
sanctions where they are excessively punitive on the facts of this case. Claimants are still able to
effectively raise their innocent contamination defense by cross-examination and relying on their own
expert witnesses to attack the reliability of Iko’s alleged alert, which is the government’s only basis
for alleging the currency was contaminated with cocaine at the time of the seizure. Moreover, the
agents’ failure to realize contamination was an issue in the case supports an inference that the
government acted “in good faith and accord with their normal practice” of avoiding “[t]he security,
budgetary, and accounting problems caused by retention of large amounts of cash.” United States
v. $433,980 in U.S. Currency, 473 F. Supp. 2d 672, 683 (E.D.N.C. 2006) (quoting Arizona v.
Youngblood, 488 U.S. 51, 56 (1988)); U.S. Department of Justice, Asset Forfeiture Policy Manual
58

(2019),

available

at

https://www.justice.gov/criminal-afmls/file/839521/download

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[https://perma.cc/7Z2E-5QWD]. Under these circumstances, the court leaves to the factfinder the
ultimate determination of whether an adverse inference is warranted.
2.

Bohne’s List of Suppliers

During the interview with government agents, Bohne asked his then-girlfriend Jackie
Rodriguez-Acosta4 to provide him with a handwritten list of names of persons he claimed were
involved in drug trafficking with claimants. (See Bohne Dep. (DE 261-3) 37:18–39:8). Bohne took
the list to his interview with government agents, and the agents “used their own paper and they
wrote down the names and everything, who I was telling them about.” (Bohne Dep. (DE 269-2)
39:12–18; see July 2, 2015 Report of Investigation (“ROI”) (DE 269-3) at 3–4). Although the
government agents wrote down a copy of the list, Bohne kept the original list. (See Bohne Dep. (DE
269-2) 39:19–25). When asked by claimants’ counsel, Bohne testified that he mailed the list home
to his family, and the list was placed in his safe. (See Bohne Dep. (DE 269-2) 71:8–72:19).
The only possible basis that claimants have for arguing spoliation is the suggestion by Bohne
that government agents “[took] a picture” or “made a copy” of the list. (Bohne Dep. (DE 269-2)
39:19–22). The government denies having a photograph or other duplicate of Bohne’s list, aside
from the copy of the list transcribed in the July 2, 2015 ROI by task force officer Jason Corprew
(“Corprew”). (See Gov. Resp. (DE 269) at 6 n.2). That report has been made available to claimants.
(See July 2, 2015 ROI (DE 269-3) at 3–4). Even assuming the government did willfully create and
destroy a photograph of photocopy of Bohne’s list however, claimants have not shown that the list
was lost or destroyed.
Bohne’s original list was never property in the possession of the government. See Hodge,

4

Jackie Rodriguez is the sister of Hilaria Rodriguez, another government witness.

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360 F.3d at 450–51 n.1. If claimants were dissatisfied with the accuracy of the July 2, 2015, ROI
produced by the government, at any time following deposition of Bohne they could have subpoenaed
the original list of individuals. (See Bohne Dep. (DE 269-2) 71:8–72:19 (giving claimants’ counsel
the requisite names, address, and location for finding the list)). Claimants declined to do so.
Claimants argue that the subjects of the subpoena “certainly would have refused to comply,” relying
on the court to assume the result of a process they never initiated. (Cl. Reply (DE 274) at 12). Since
claimants failed to use process available to them to obtain the original list, which Bohne testified
was preserved in a safe place for his own protection, the court will not sanction the government for
loss or destruction of evidence. See Silvestri, 271 F.3d at 590 (holding sanctions for spoliation
appropriate only to curb abuses of the judicial process).
3.

Interview Photographs

As discussed above, at an interview on July 2, 2015, Bohne identified claimants GarciaAncelmo, Cirila Garcia, Ofelio Garcia, and Felipe Garcia (among others) as drug traffickers. (See
July 2, 2015 ROI (DE 269-3) at 3–4). The following month, officer Brian Fleming (“Fleming”)
went with Corprew to debrief Bohne. (Fleming Dep. (DE 269-4) 31:4–7). As part of the debriefing,
he brought pictures of claimant Garcia-Ancelmo, claimant Cirila Garcia, Ofelio Garcia, Felipe
Garcia, other photos associated with their address and a google maps picture of the house claimant
Garcia-Ancelmo lived in. (Fleming Dep. (DE 269-4) 31:10–14, 31:21–32:1; see Bohne Dep. (DE
269-2) 49:4–13). The government agents put the photos in front of Bohne and asked him if he knew
the person. (Fleming Dep. (DE 269-4) 32:9–25). Bohne was not told by the officers who was going
to be in the photos he was shown; he identified the individuals in the photos as Stantonsburg, his
wife, and his son, but was unable to conclusively identify Felipe Garcia, Stantonsburg’s partner.

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(Bohne Dep. (DE 261-3, DE 269-2) 50:12–51:22). Bohne referred to claimant Garcia-Ancelmo as
Stantonsburg. (See Bohne Dep. (DE 220-8) 42:23–43:18; Fleming Dep. (DE 269-4) 32:18–25).
The only evidence that claimants raise to advance their spoliation argument is that the
government failed to produce the photos for claimants. (Cl. Brief (DE 261) at 5). However, a
finding of spoliation requires loss or destruction of evidence that is willful, as opposed to merely
negligent. Turner, 736 F.3d at 282. Where claimants fail to show the government willfully lost or
destroyed the photographs used in Bohne’s interview, a sanction for spoliation is not appropriate.5
B.

Claimants’ Motion to Exclude Testimony by Thurman Bohne (DE 275)
“The court must decide any preliminary question about whether a witness is qualified, a

privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules,
except those on privilege.” Fed. R. Evid. 104(a). “The question of the competence of the witness
. . . [is] for the [c]ourt and not for the jury.” United States v. Barnes, 368 F.2d 567, 568 (4th Cir.
1966). “If the competency of a witness is challenged before testifying, it is the duty of the [c]ourt
to make such examination as will satisfy it of the competency or incompetency of the witness.”
United States v. Odom, 736 F.2d 104, 111 (4th Cir. 1984). “[T]here is no requirement for an in
camera preliminary hearing on the competency of witnesses.” Id.
“Every witness is presumed competent to testify, . . . unless it can be shown that the witness
does not have personal knowledge of the matters about which he is to testify, that he does not have
the capacity to recall, or that he does not understand the duty to testify truthfully.” United States

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Claimants raise for the first time in their reply brief a challenge under the due process clause,
suggesting Bohne’s identification testimony, both in court and at his debriefing, should not be allowed because using
photographs to visually identify claimants was impermissibly suggestive. (Cl. Reply (DE 274) at 10–11 (citing Manson
v. Brathwaite, 432 U.S. 98 (1977)). As this issue has not been fully briefed, and as claimants requested relief on grounds
of spoliation, claimants must raise their due process challenge in a separate motion in limine.

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v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982) (citing Fed. R. Evid. 601); see also Fed. R. Evid.
602, 603. As the United States Court of Appeals for the Fourth Circuit succinctly put it, “[i]t is
better to let the witnesses be heard and trust the practical sagacity of the jurors who have been made
fully aware of their informants’ shortcomings.” Schoppel v. United States, 270 F.2d 413, 416 (4th
Cir. 1959).
Claimants argue that Bohne is incompetent to testify that claimant Garcia-Ancelmo and his
son supplied him with drugs from 2010–2012. Relying heavily on the opinion of Dr. Len Lecci
(“Lecci”), claimants assert Bohne lacks personal knowledge because he frequently used drugs, and
is unable tell the truth because he has been diagnosed with antisocial personality disorder. (See
Lecci Suppl. Decl. (DE 276-1) ¶¶ 3, 4). The court addresses each of these claims in turn.
1.

Bohne’s Substance Abuse

“The fact that a witness is a narcotics user goes not to his competency, but to his credibility.”
United States v. Jackson, 576 F.2d 46, 48 (5th Cir. 1978); United States v. Sinclair, 109 F.3d 1527,
1536–37 (10th Cir. 1997); United States v. Ramirez, 871 F.2d 582, 583–84 (6th Cir. 1989); United
States v. Parker, 428 F.2d 488, 491 (9th Cir. 1970); see United States v. Rockwell, 38 F. App’x 859,
860 (4th Cir. 2002) (discussing issues relevant to determining the credibility of a witness). In United
States v. Killian, the United States Court of Appeals for the Fifth Circuit considered whether a
witness “was incompetent because of being a user of some nature of drugs.” 524 F.2d 1268, 1275
(5th Cir. 1975). There, the court found that, while the witness “was a heavy user of drugs and that
he suffered from time to time from hallucinations,” his testimony was nonetheless admissible
because the witness “testified at the trial that he had not been under the influence of drugs for several
days.” Id.

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Bohne testifies that, from the beginning of 2010 to the middle of 2012, he sold approximately
150 kilograms of cocaine. (Bohne Dep. (DE 220-8) 91:9–19). The source of the cocaine was
claimant Garcia-Ancelmo’s son in Mexico and his partner. (Bohne Dep. (DE 220-8) 92:14–23).
Approximately every four to six weeks the course of the year, he allegedly took drugs from
claimants’ house and brought money to claimants’ house.

(See Bohne Dep. (DE 220-8)

95:3–96:13).
Regarding his substance abuse, Bohne testifies that, due to hallucinations induced by drug
usage, he “had several times where [he] couldn’t clarify what was going on, maybe middle 2010.”
(Bohne Dep. (DE 276-2) 75:2–8). Specifically, he mixed cocaine, percocet, and methadone,
inducing hallucinations that, at that time, preventing him from telling the difference between what
was real and what was not real. (Bohne Dep. (DE 276-2) 74:17–20, 77:4–78:2). However, Bohne
also testified that mixing these drugs “wasn’t an everyday thing.” (Bohne Dep. (DE 276-2) 77:10).
According to him, his ability to tell the difference between what was real and not real would
diminish “after being up three or four days at a time.” (Bohne Dep. (DE 276-2) 77:20–21).
Lecci opines that Bohne’s substance abuse “would negatively impact [his] ability to properly
perceive information at the time it occurred.” (Lecci Suppl. Decl. (DE 276-1) ¶ 3). However,
Lecci’s deposition testimony markedly qualifies this opinion. He repeatedly notes that the extent
and frequency of drug use affects how many lucid periods there are when experiencing drug induced
psychosis. (See Lecci Dep. (DE 249-4) 41:6–11, 42:19–25, 45:12–46:6). When asked if a person
can have periods within an overall psychotic episode where the person would be lucid enough to
recall information, Lecci stated: “psychotic experiences are more intermittent. If it’s like a typical
experience, it would be more intermittent versus constant. That would be more typical. So of

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course, you would have some periods of greater lucidity and less lucidity.” (Lecci Dep. (DE 249-4)
51:2–6). Lecci also emphasized that it is not possible for him to definitively say whether a particular
memory is a hallucination or real. (Lecci Dep. (DE 249-4) 71:16–21).
Dr. Heather Ross’ (“Ross”) testimony was even more circumspect, saying only that Bohne’s
“ability to perceive and recall events accurately could be affected by his drug use; further, this would
be potentially pertinent only to the period in which he was actively abusing substances and
experiencing psychotic symptoms.” (Ross Dep. Cl. Ex. 1 (DE 234-6) at 27 (emphasis in original)).
Furthermore, Ross opined that “[n]o diagnosis I offered is indicative that [] Bohne cannot offer
reliable information.” (Ross Dep. Cl. Ex. 1 (DE 234-6) at 28).
In light of applicable law and the facts in the record, Bohne’s substance abuse does not rebut
the presumption under the Federal Rules of Evidence that he is competent to testify. Bohne testified
that, for a period of almost two and a half years, claimant Garcia-Ancelmo and his son supplied him
with drugs to sell every several weeks. Bohne’s testimony is evidence of his personal knowledge.
See Fed. R. Evid. 602. Claimants’ position rests on the argument that Bohne was constantly
hallucinating for the entirety of the relevant two and a half year period. However, as claimants’ own
expert testified, such episodes are typically more intermittent than constant, the impact of the drugs
in any case varies by extent and usage, and the effect of hallucinations on any one of Bohne’s
particular memories is uncertain. To conclude that Bohne has no personal knowledge of an entire
two and a half year period because of substance abuse is an extraordinary finding, which the court
refuses to make on the facts presented. Claimants must advance their position by impeaching
Bohne.
2.

Bohne’s Antisocial Personality Disorder

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A witness may be found incompetent where they do not understand the duty to testify
truthfully. Lightly, 677 F.2d at 1028. A witness fails to understand this duty where he or she is
unable to distinguish a truth from a lie, or is unable to uphold the oath to give truthful testimony in
court. See Kentucky v. Stincer, 482 U.S. 730, 733 (1987). Merely pointing to a record of prior false
or inconsistent statements goes to a witness’ credibility, rather than competency. See Schoppel, 270
F.2d at 416 (“Even a convicted perjurer may competently testify in a Federal Court.”); United States
v. Bedonie, 913 F.2d 782, 799–801 (10th Cir. 1990) (“The jury system has served us well. We
would not serve it well by holding that jurors are incapable of making credibility determinations.”).
Ross diagnosed Bohne with Antisocial Personality Disorder, marked by pathological
personality traits including deceitfulness and manipulativeness. (See Lecci Supp. Decl. (DE 276-1)
¶ 4). Lecci opines that “[g]iven the tendency not to be truthful, especially when he has something
to gain, there would be little to (internally) motivate the individual to be truthful if doing so would
not be in his best interest.” (Lecci Supp. Decl. (DE 276-1) ¶ 4).
The record does not support claimants’ argument that Bohne’s Antisocial Personality
Disorder prevents him from distinguishing a truth from a lie, or giving truthful information. Lecci
testified that, for people with Antisocial Personality Disorder, it “would be very unusual that they
wouldn’t understand what the difference is.” (Lecci Dep. (DE 249-4) 68:4–15). In Bohne’s case,
he admitted to lying about having hallucinations to obtain a downward departure on his sentence.6
(Bohne Dep. (DE 276-2) 80:10–81:10, 81:23–82:5, 82:11–20). Ross noted in her interview with
Bohne that he “provided some information that was corroborated by records, suggesting he was able

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False testimony under oath exposes a witness to potential criminal liability for perjury. See 18 U.S.C.
§ 1623(a). As Bohne has apparently taken an interest in minimizing his time spent in prison, the court has sufficient
reason to believe he understands the obligation to testify truthfully.

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to be truthful in his reporting.” (Ross Dep. Cl. Ex. 1 (DE 234-6) at 28). As noted above, Ross also
opined that “[n]o diagnosis I offered is indicative that [] Bohne cannot offer reliable information.”
(Ross Dep. Cl. Ex. 1 (DE 234-6) at 28). While Bohne’s admissions are ideal fodder for crossexamination, they are insufficient to deem him incompetent.
Claimants argue that the court should hold a hearing to determine whether Bohne is
competent to testify as a witness. On the record before it, the court concludes hearing as to Bohne’s
competency is not necessary. See Odom, 736 F.2d at 111. Claimants also argue that Bohne’s
testimony is false because it is inconsistent with that of other witnesses. Claimants may advance
this argument through traditional means of impeachment. See Odom, 736 F.2d at 112; Schoppel,
270 F.2d at 416. Claimants’ motion to exclude Bohne’s testimony is denied.
CONCLUSION
Based on the foregoing, claimants’ motion to exclude evidence due to spoliation or
alternative request for spoliation jury instruction (DE 260) is GRANTED IN PART. The court will
give a permissive adverse inference instruction, and will allow claimants to question why the
government converted defendant currency into a check. Claimants’ motion is DENIED IN
REMAINING PART. Claimants’ motion to exclude witness testimony by Thurman Bohne and
request for hearing to assess competency (DE 275) is DENIED.
SO ORDERED, this the 13th day of September, 2019.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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