Amonoo, Kwesi v. Washetas et al

Filing 121

ORDER that Defendant's motion in limine for permission to cross-examine Amonoo about the judicial finding of fabrication in Amonoo v. Sparling is GRANTED, subject to ground rules that will be established at the pretrial conference. Amonoo 's corresponding motion to exclude such evidence is DENIED. Defendant's motion in limine to exclude evidence of other legal proceedings involving Dr. Syed is DEFERRED. Defendant's motion in limine to exclude reference to other lawsuits against theDOC or its employees is GRANTED. Signed by Magistrate Judge Stephen L. Crocker on 9/12/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

KWESI AMONOO,
Plaintiff,

ORDER ON
MOTIONS IN LIMINE

v.
16-cv-125-slc
SALAM SYED,
Defendant.

Before the court are the following motions in limine: (1) defendant’s motion for
permission to cross-examine Amonoo with specific instances of untruthful conduct, dkt. 103,
and plaintiff’s motion to prohibit such cross-examination, dkt. 83; (2) defendant’s motion
to exclude reference to other legal proceedings involving defendant, dkt. 103; and (3)
defendant’s motion to exclude reference to any other lawsuits against the Department of
Corrections or its current or former employees, dkt. 103. The court’s rulings are as follows:

I. Amonoo’s Past Instances of Untruthful Conduct
In Amonoo v. Sparling, et al., 15-cv-603-slc, this court found that plaintiff Amonoo had
falsified a property receipt to make it look like correctional officers had confiscated and
destroyed his prayer oil; as a sanction, the court dismissed his lawsuit and imposed a strike
under 28 U.S.C. § 1915(g). Opin. and Order, July 14, 2017, dkt. 65. Defendant in the
present case wants permission during cross-examination to ask Amonoo about that finding.
Amonoo objects. Dkts. 83, 111.

Fed. R. Evid. 608(b) provides that, except for a criminal conviction,
extrinsic evidence is not admissible to prove specific instances
of a witness’s conduct in order to attack or support the
witness’s character for truthfulness. But the court may, on
cross-examination, allow them to be inquired into if they are
probative of the [witness’s] character for truthfulness or
untruthfulness[.]
Under this rule, only extrinsic evidence related to the witness’s character for truthfulness or
untruthfulness is prohibited; lines of questioning are not, including those “regarding the
punishment imposed on a witness for a given course of conduct.” United States v. Dvorkin,
799 F.3d 867, 883 (7th Cir. 2015) (quoting United States v. Holt, 486 F.3d 997, 1002 (7th
Cir. 2007)); see also United States v. Dawson, 434 F.3d 956, 958-59 (7th Cir. 2006). As the
Seventh Circuit noted in Varhol v. Nat’l R.R. Passenger Corp., 909 F.2d 1557, 1567 (7th Cir.
1990), “[t]he reason for allowing cross-examination under Rule 608(b) is to allow a party
to attempt to cast doubt on a witness's reliability for telling the truth.”
This court’s previous determination that Amonoo fabricated evidence undoubtedly
casts doubt on Amonoo’s reliability for telling the truth. Accord Varhol, 909 F.2d at 1567
(buying and using stolen tickets sufficiently reflected on witness’s honesty to be admissible
under Rule 608(b)); Dawson, 434 F.3d at 958-59 (past judicial determination finding witness
not to be credible not barred by Rule 608(b)); United States v. Whitmore, 359 F.3d 609,
619–22 (D.C. Cir. 2004) (holding district court erred in refusing to allow the defendant to
cross-examine an officer about a judge's conclusion that “I think [the officer] lied”). The fact
that the Sparling case involved religion and not medical care is irrelevant. As defendant
points out, the rule permits any act of dishonesty to be raised on cross-examination. See, e.g.
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United States v. Smith, 80 F. 3d 1188, 1193 (7th Cir. 1996) (allowing cross-examination of
uncharged thefts because “acts of theft . . . are, like acts of fraud or deceit, probative of a
witness’s truthfulness or untruthfulness”); United States v. Wilson, 985 F.2d 348, 351 (7th
Cir. 1993) (witness’s failure to file federal income tax returns and bribery were probative of
untruthful character).
If there is any basis to prohibit defense counsel from asking Amonoo about the
Sparling case, it would be under Fed. R. Evid. 403, which gives the district court discretion
to exclude relevant evidence if its probative value is “substantially outweighed by a danger
of . . . unfair prejudice,” Fed. R. Evid. 403. See also Thompson v. City of Chicago, 722 F.3d 963,
977 (7th Cir. 2013) (Rule 403 applies to evidence otherwise admissible under Rule 608(b));
Dawson, 434 F.3d at 959 (not “every question a lawyer might want to ask about a third
party’s opinion of the credibility of a witness would be proper cross-examination”). To be
sure, testimony that Amonoo fabricated evidence in a prior court proceeding will be
prejudicial to him, but not unfairly so. The outcome of this case will turn largely on who the
jury finds more credible. The fact that Amonoo was found to have fabricated evidence for
gain in a previous civil rights lawsuit is directly relevant to and highly probative of his
credibility. It is not unfair for defendant to elicit this information from Amonoo on crossexamination, subject to ground rules that the court will discuss with the parties at the
pretrial conference.

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II. Other Legal Proceedings Involving Dr. Syed
Defendant moves to exclude evidence of any other legal proceedings involving Dr.
Syed, regardless of the facts or the outcome, on the ground that such evidence is not relevant
and in any case would be unduly prejudicial. See F. R. Ev. 401 & 403. In response, Amonoo
cites a list of cases involving Dr. Syed that he says “are of recent vintage and are sufficiently
similar to the matter at issue.” Dkt. 111, at 2. Unfortunately, Amonoo does not provide any
details about any of these cases.
If Amonoo can identify a case in which either a judge or jury determined that Dr.
Syed committed medical malpractice or was deliberately indifferent to an inmate’s serious
medical needs, then the court would consider allowing Amonoo to ask Dr. Syed about that
case, depending on the circumstances. However, the mere fact that Dr. Syed is a named
plaintiff in a lawsuit or entered into a settlement before liability was found is not relevant
and would be likely to confuse the jury.
Because the State has better access to this information on short notice, the Attorney
General’s Office must advise the court at the pretrial conference if there are specific cases
that resulted in a finding of liability against Dr. Syed on a medical malpractice or 8th
Amendment deliberate indifference claim. The court defers ruling on this motion until that
time.

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III. Other Lawsuits Against DOC or its Employees
Finally, defendant seeks to exclude reference to any other lawsuits against the DOC
or its current or former employees. The only employees whom Amonoo has identified are
nurses Candace Warner and Tony Hentz, who are not being called as witnesses at trial.
Accordingly, evidence regarding lawsuits against them is irrelevant and excluded under Fed.
R. Ev. 401.

ORDER
1. Defendant’s motion in limine for permission to cross-examine Amonoo about the
judicial finding of fabrication in Amonoo v. Sparling is GRANTED, subject to ground rules
that will be established at the pretrial conference. Amonoo’s corresponding motion to
exclude such evidence is DENIED.
2.

Defendant’s motion in limine to exclude evidence of other legal proceedings

involving Dr. Syed is DEFERRED.
3. Defendant’s motion in limine to exclude reference to other lawsuits against the
DOC or its employees is GRANTED.

Entered this 12th day of September, 2018.
BY THE COURT:
/s/
________________________
STEPHEN L. CROCKER
Magistrate Judge

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