LEDFORD 404(B) MOTION

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

vs. ) CRIMINAL ACTION

) NO. xxxxxxxxxx

xxxxxxxxxxxxxx )

__________________________________________)

MOTION IN LIMINE TO

EXCLUDE EVIDENCE OF ARRESTS

COMES NOW DEFENDANT, xxxxxxx, by and through undersigned counsel, and, pursuant to Federal Rules of Evidence 402, 403 and 609, moves this Honorable Court to prohibit the prosecution or its witnesses from introducing into evidence or otherwise referring to Mr. xxxxxxxx's arrest record. Defendant requests that this Motion be decided prior to trial. In support of this Motion, Mr. xxxxxxxx shows the Court as follows:

Mr. xxxxxxxx is charged with violations of the immigration laws under 8 U.S.C. 壯1325 and 1326. Mr. xxxxxxxx has never been convicted of a crime. Documents provided in discovery, however, indicate that Mr. xxxxxxxx was arrested for disorderly conduct by state authorities on two different occasions. Indeed, Mr. xxxxxxxx came to the attention of the Immigration Service when local authorities notified the INS that Mr. xxxxxxxx was under arrest and being held at a local jail.

Mr. xxxxxxxx is concerned that the Government may seek to introduce at trial this evidence of prior arrests either through the testimony of the agents, through documentary evidence, or in cross-examination. Mr. xxxxxxxx moves this Court for an Order prohibiting the Government from introducing the prior arrests into evidence.

The law in this Circuit is clear. Evidence of a prior arrest is not admissible to impeach a witness. United States v. Hodnett, 537 F.2d 828, 829 (5th Cir. 1976); Federal Rule of Evidence 609. Accordingly, the Government should not be permitted to question Mr. xxxxxxxx concerning prior arrests if Mr. xxxxxxxx chooses to testify at trial.

In the event Mr. xxxxxxxx does not testify at trial, this evidence is equally inadmissible. Federal Rule of Evidence 402 states that only relevant evidence is admissible. The evidence of prior arrests bears no connection to the immigration issues in this case. The probative value of the evidence is minimal. Conversely, informing the jury of a person's prior arrests, when he was not convicted of the charges, is unduly prejudicial. Any probative value of the evidence is substantially outweighed by its risk of prejudice. Under the balancing test outlined by Federal Rule of Evidence 403, this evidence must be excluded.

WHEREFORE, Defendant respectfully requests that this Court enter an Order prohibiting all reference and introduction into evidence of Mr. xxxxxxxx's prior arrests. The defense asks for a ruling on this Motion prior to trial.

Dated: This ______ day of June, 1996.

______________________________

VIONNETTE REYES

ATTORNEY FOR AYODEJI xxxxxxxx

STATE BAR NO. 601290

Federal Defender Program, Inc.

Suite 3512, 101 Marietta Tower

Atlanta, Georgia 30303

(404) 688-7530

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

)

vs. ) CRIMINAL ACTION

) NO. xxxxxxxxxxx

AYODEJI xxxxxxxx )

__________________________________________)

CERTIFICATE OF SERVICE

This is to certify that I have this day served a copy of the foregoing Motion in Limine to Exclude Evidence of Arrests upon:

Joe Plummer, Esquire

Assistant United States Attorney

1800 Richard B. Russell Building

75 Spring Street, S.W.

Atlanta, Georgia 30335

via facsimile.