United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
L. FRIEDMAN U.S. DISTRICT JUDGE.
matter is before the Court on Defendant's Motion in
Limine to Admit Evidence of Subsequent FSA Loan
Transactions [Dkt. No. 212]. Plaintiff opposes the motion.
The matter has been fully briefed, and the Court heard oral
argument on the motion at the final pretrial conference on
July 23, 2018. For the reasons that follow, the Court will
grant defendant's motion and admit the evidence at trial.
part of its defense against plaintiff Rodney Bradshaw's
discrimination claim under the Equal Credit Opportunity Act
(“ECOA”), 15 U.S.C. § 1691 et seq.,
defendant Sonny Perdue, Secretary of the United States
Department of Agriculture (“USDA”), proposes to
introduce evidence of nine subsequent loan applications
and/or transactions between Mr. Bradshaw and the Federal Farm
Service Agency (“FSA”), a division of USDA, that
occurred between 2005 and 2008. Defendant USDA argues that
this evidence is relevant to its defense at trial because it
tends to negate two aspects of plaintiff's claim - his
claim that FSA, rather than plaintiff, stopped processing the
loan and, more importantly, his allegation that Dwight Jurey,
a farm loan manager at FSA, acted with discriminatory intent.
Defendant's position is that Mr. Jurey worked diligently
over many years to assist Mr. Bradshaw with loan
applications, and particularly in 2003 to process Mr.
Bradshaw's 2002-2003 loan application that is the subject
of the discrimination claim in this case. USDA argues that
the proffered evidence of these nine subsequent loan
applications and how they were handled by Mr. Jurey is
probative of Mr. Jurey's motive and intent and therefore
should be admitted under Rule 404(b)(2) of the Federal Rules
Bradshaw responds through counsel that the nine subsequent
loan transactions are not probative of Mr. Jurey's or
USDA's motive or intent in 2002 or 2003. First, he
contends that the evidence of transactions from 2005 to 2008
is too remote in time to be relevant, having occurred after
Mr. Bradshaw filed this lawsuit and many years after the
2002-2003 loan application at issue. Second, and relatedly,
he argues that by the time of these later transactions, he
had already filed this lawsuit and put USDA and Mr. Jurey on
notice that their actions were under scrutiny. Plaintiff
contends that Mr. Jurey could well have changed his conduct
in light of the allegations in the lawsuit. According to Mr.
Bradshaw, rather than serving as evidence of motive or intent
under Rule 404(b)(2), this evidence is inadmissible
propensity evidence which must be excluded under Rule
404(b)(1). Plaintiff maintains that the subsequent
transaction evidence is irrelevant to Mr. Jurey's motive
and intent in 2003.
USDA has the better of the argument. Though evidence of
“crimes, wrongs, or other acts” is never
admissible to establish the propensity to engage in similar
behavior, evidence of other acts similar to the act at issue
in the underlying lawsuit may be admitted to show motive or
intent, provided that the relevance of the evidence is not
outweighed by its tendency to unfairly prejudice the opponent
of the evidence. See Fed.R.Evid. 403, 404(b);
Williams v. Johanns, 245 F.R.D. 10, 13 (D.D.C.
2007). Furthermore, so long as the danger of unfair prejudice
does not substantially outweigh the probative value of the
evidence, Fed.R.Evid. 403, Rule 404(b) does not automatically
bar evidence of a “bad act” merely because it
occurred subsequent to the events underlying the claim at
issue in the case. See United States v. Watson, 894
F.2d 1345, 1349 (D.C. Cir. 1990). While the passage of time
between a defendant's later acts and his earlier state of
mind certainly might attenuate the relevance of such evidence
and make such evidence somewhat less probative, see
id. at 1349, that is a matter that goes to the weight to
be accorded to the evidence, not to its admissibility.
See Nuskey v. Hochberg, 723 F.Supp.2d 229, 234
(D.D.C. 2010) (“[s]ubsequent actions . . . may be less
probative of . . . intent than prior actions . . . . [but]
they may still be relevant to intent.”); see also
Elion v. Jackson, 544 F.Supp.2d 1, 9 (D.D.C. 2008).
does not dispute that he must prove by a preponderance of the
evidence that his 2002-2003 loan application was denied
because of his race and that Mr. Jurey's state of mind is
relevant to that inquiry. It follows that evidence concerning
the subsequent loan transactions would tend to show how Mr.
Jurey handled these matters and dealt with Mr. Bradshaw over
many years - with care and diligence or, as plaintiff
maintains, with racial animus. It therefore is relevant to
rebutting Mr. Bradshaw's claim that Mr. Jurey and others
at FSA were motivated by racial discrimination. While plaintiff
is free to argue at trial that this subsequent transaction
evidence is not incompatible with discriminatory intent or
that some or all of it should be given little weight because
of its remoteness, these arguments go to the weight of the
evidence, not its admissibility.
concluded that the proffered evidence is probative of Mr.
Jurey's and USDA's motive and intent under Rule
404(b)(2), the Court also notes that any danger of unfair
prejudice under Rule 403 of the Federal Rules of Evidence is
particularly unlikely in this case, as this is a bench trial.
See DL v. District of Columbia, 109 F.Supp.3d 12, 29
(D.D.C. 2015). Furthermore, because USDA plans to introduce
this evidence primarily through a summary chart, there is
little, if any, danger of wasted trial time sufficient to
outweigh the probative value of the evidence. See Elion
v. Jackson, 544 F.Supp.2d at 9. For the foregoing
reasons, it is hereby
that Defendant's Motion in Limine [Dkt. No. 212]
to Admit Evidence of Subsequent FSA Loan Transactions is
GRANTED; and it is
ORDERED that defendant shall be permitted to introduce
evidence at trial concerning the nine loan applications
and/or transactions between plaintiff and FSA that occurred
subsequent to the November 2002 application at issue, as
described in Exhibit A to defendant's motion.
 USDA also argues in the alternative
that this evidence is admissible under Rule 406 of the
Federal Rules of Evidence governing habit and routine
practice. Because the Court agrees with USDA that the
evidence is admissible under Rule 404(b)(2), it need not
reach this issue.
 To the extent that this evidence tends
to show that FSA stopped processing Mr. Bradshaw's loan
for reasons other than Mr. Jurey's discriminatory intent
(such as Mr. Bradshaw's decision to withdraw the
application), the ...