DEFENDANT'S FIRST MOTION IN LIMINE

AND INCORPORATED MEMORANDUM OF LAW

COMES NOW, the defendant, Dr. *, and hereby moves this Honorable Court in Limine, as follows:

1. The indictment filed in this cause contains allegations that Dr.'s licensed to practice dentistry was suspended by the State of Florida from 7/2/91 through 1/3/92.

2. Based upon this allegation, it is reasonable to conclude that the government intends to elicit evidence to this effect from one or more witness during the trial in this cause.

3. The status of Dr. *'s license as alleged in the indictment is not probative of any issue in the government's case.

4. Evidence suggesting that the State of Florida felt compelled to suspend Dr.* license would be highly prejudicial, and would greatly outweigh any probative value.

The issue regarding the client's license suspension should be treated like any other "other bad acts" case. Determinations in these matters are similar to those in instances where the government attempts to admit evidence regarding other criminal acts they are attributing to the Defendant. Evidence of extrinsic misconduct is generally not admissible at trial. It can be admitted only upon showing that certain exceptions contained in Fed.R.Evid. 404(b) are met. The test for the admissibility of extrinsic act evidence is whether the evidence is relevant to an issue other than defendant's character and whether its probative value is outweighed by its prejudicial effect. United States vs. Chilcote, 724 F.2d 1498, (llth Cir. 1984). Under Rule 403, the trial judge is to weigh the probative value of the evidence against the danger of unfair prejudice, confusion, misleading the jury, or undue delay or waste of time. United States vs. Beechum, 582 F.2d 898 (5th Cir. 1978).

The common characteristic must be the "significant one for the purpose of the inquiry at hand." Beechum, supra. For example, if the relevant issue is intent, the acts must require similar states of mind. United States vs. Williford, 764 F.2d 1493 (llth Cir.1985), citing United States vs.Guerrero, 650 F.2d 728 (5th Cir. 1981)

Going to the facts of this case, it is obvious that except for the issue of the character of the Defendant, the status of his license to practice dentistry has no relevance. The government alleges only two acts which even occurred within the time frame of the suspension. The government's theory is that Dr. * had unlicensed technicians and others perform services that could only be performed by a licensed dentist. There is no indication that the government intends to try and establish that Dr. * personally performed services while his license was suspended. There is no characteristic common to the fraud charges and the license suspension which would permit the government to admit such evidence under 404. Notwithstanding, if the Court were to permit such evidence to be admitted, the prejudicial effect on Dr. * would be considerable, and would far outweigh the probative value, if any.

WHEREFORE, on behalf of our client, we move this Honorable Court to prohibit the introduction by the government of any evidence or testimony regarding the suspension of his license to practice dentistry by the State of Florida.

Dated this___ day of September, 1995.

Respectfully submitted,

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