United States District Court, District of Columbia
UNITED STATES OF AMERICA, ex rel., AARON J. WESTRICK, Ph.D., Plaintiffs,
SECOND CHANCE BODY ARMOR, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER
L. FRIEDMAN UNITED STATES DISTRICT JUDGE
January 5, 2018, plaintiff-relator Aaron J. Westrick filed a
motion in limine [Dkt. No. 502] to exclude evidence
of or reference to the relator's character or prior acts.
The motion sought to prohibit defendants Toyobo America, Inc.
and Toyobo Co. Ltd. (collectively, “Toyobo”) and
pro se defendants Thomas E. Bachner, Jr. and Richard
C. Davis from submitting evidence, questioning witnesses, or
making arguments before the jury related to four specific
matters, described as: (1) the false and incendiary
allegations against Mr. Westrick concerning inappropriate
contact with a minor; (2) the related polygraph test taken by
Mr. Davis; (3) the accidental shooting of Mr. Davis by Mr.
Westrick during product testing for a bulletproof shield in
2000 or 2001 and related events; and (4) the videotape
recording of a 1997 fireworks accident at a show run by
Second Chance Body Armor or Mr. Davis. The United States
joined Mr. Westrick's motion.
initially consented to the relief sought regarding the first
two matters. On January 19, 2018, Toyobo filed a response
[Dkt. No. 517] indicating that it also consented to the
relief sought regarding the third and fourth matters. In
doing so, however, Toyobo noted that it reserved the right
under the applicable Federal Rules to introduce evidence and
testimony at trial concerning Mr. Westrick's credibility
and character for truthfulness other than the four specific
matters raised in the instant motion. Mr. Bachner emailed his
response [Dkt. No. 520] to the motion in limine on
January 20, 2018, and it was docketed on January 22, 2018. In
his response, Mr. Bachner expressly stated that he does not
oppose the relief sought regarding the first two matters. His
response does not address, and thus does not provide any
substantive opposition to, the relief sought regarding the
third and fourth matters. Although Mr. Davis was served with
the motion in limine, he has not filed any response
the consent of Toyobo and the lack of opposition from any
other party, the Court treats the motion in limine
as conceded with regard to the allegations against Mr.
Westrick concerning inappropriate contact with a minor and
the related polygraph test taken by Mr. Davis. The Court thus
turns to the remaining two matters - the accidental shooting
and the fireworks accident.
404 of the Federal Rules of Evidence prohibits a party from
introducing evidence of a person's character, including
evidence of a crime, wrong, or other act, to prove that on a
particular occasion the person acted in accordance with that
character trait. As a result, Rule 404(b) permits admission
of evidence of a crime, wrong, or other act only in limited
circumstances. Fed.R.Evid. 404(b). In determining whether
such evidence is admissible under Rule 404(b), the Court
applies a two-step analysis. First, the Court must determine
whether “the evidence [is] probative of some material
issue [in the case] other than character.” United
States v. Clarke, 24 F.3d 257, 264 (D.C. Cir. 1994).
Evidence of a crime, wrong, or other act may be used to
prove, for example, “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident.” See Fed.R.Evid. 404(b). This is
not an exclusive list of permissible purposes, however, so
long as the evidence is not offered solely to prove character
or criminal propensity. See United States v. Miller,
895 F.2d 1431, 1436 (D.C. Cir. 1990); cf. United States
v. Mahdi, 598 F.3d 883, 891 (D.C. Cir. 2010); United
States v. Pettiford, 517 F.3d 584, 588-89 (D.C. Cir.
2008). Second, if the Court determines that the evidence is
admissible for a relevant and proper purpose, the Court must
decide whether it nevertheless should be excluded under Rule
403 of the Federal Rules of Evidence because “its
probative value is substantially outweighed by a danger of .
. . unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed.R.Evid. 403; see also
United States v. Clarke, 24 F.3d at 264 (“The
second step requires that the evidence not be inadmissible
under Rule 403.”). Because virtually all material
evidence is prejudicial in one way or another, Rule 403
applies only where the prejudice is unfair. See
United States v. Pettiford, 517 F.3d at 590; United
States v. Cassell, 292 F.3d 788, 796 (D.C. Cir. 2002).
both the accidental shooting and the fireworks accident
occurred more than fifteen years ago (the former in 2000 or
2001 and the latter in 1997). No further civil,
administrative, or criminal investigations have occurred, nor
have any charges been brought against Mr. Westrick for the
underlying conduct. The Court thus finds that both incidents
are irrelevant to the matters at issue in this False Claims
Act case, see Fed.R.Evid. 401; Fed.R.Evid. 402, and
are not offered for any purpose other than as improper
character evidence, see Fed. R. Evid. 404(b).
Furthermore, even if such evidence were relevant and offered
for a proper purpose, any probative value would be
substantially outweighed by the risk of unfairly prejudicing
Mr. Westrick and confusing the jury if presented at trial.
See Fed.R.Evid. 403; United States ex rel.
El-Amin v. George Washington Univ., 533 F.Supp.2d 12,
45-47 (D.D.C. 2008). Evidence of the accidental shooting and
the fireworks accident, therefore, is inadmissible under Rule
404(b) and Rule 403.
only potential ground for admission of this evidence would be
Rule 608(b) of the Federal Rules of Evidence. Rule 608(b)
provides, in relevant part:
[E]xtrinsic 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 character for truthfulness
or untruthfulness of: (1) the witness; or (2) another witness
whose character the witness being cross-examined has
the accidental shooting nor the videotape of the fireworks
are probative of Mr. Westrick's character for
“truthfulness or untruthfulness.” Furthermore, as
discussed above, even were this evidence marginally relevant,
the Court would exclude it under Rule 403 because its
probative value is far outweighed by the risk of unfairly
prejudicing Mr. Westrick and confusing the jury. See
Fed.R.Evid. 403; United States v. O'Neal, 844
F.3d 271, 276 (D.C. Cir. 2016).
of the foregoing reasons, it is hereby
that Mr. Westrick's motion in limine [Dkt. No.
502] to exclude evidence of or reference to his character or
prior acts is GRANTED; and it is
ORDERED that Toyobo, Mr. Bachner, and Mr. Davis shall be
prohibited, pursuant to Federal Rules of Evidence 401, 402,
403, 404(b), and 608(b), from introducing any evidence,
questioning any witness, or presenting any argument to the
jury regarding: (1) the allegations against Mr. Westrick
concerning inappropriate contact with a minor; (2) the
related polygraph test taken by Mr. Davis; (3) the accidental
shooting of Mr. Davis by Mr. Westrick during product testing
for a bulletproof shield in 2000 or 2001 and ...