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Nostrum Laboratories Inc. v. Balboa Capital Corp.

United States District Court, W.D. Missouri, Western Division

July 19, 2018

NOSTRUM LABORATORIES, INC., and NOSTRUM PHARMACEUTICALS, LLC, Plaintiffs,
v.
BALBOA CAPITAL CORPORATION, Defendant.

          ORDER AND OPINION (1) GRANTING PLAINTIFFS' OBJECTIONS TO DEFENDANT'S DESIGNATION OF DEPOSITION TESTIMONY AND MOTION IN LIMINE TO EXCLUDE EVIDENCE OF STALE FELONY CONVICTION, AND (2) GRANTING DEFENDANT'S MOTION TO EXCLUDE DEPOSITION TESTIMONY DESIGNATED BY PLAINTIFFS

          ORTRIE D. SMITH, SENIOR JUDGE

         Pending are Plaintiffs' Objections to Defendant's Designation of Deposition Testimony and Motion in Limine to Exclude Evidence of Stale Felony Conviction (Doc. #117), and Defendant's Motion to Exclude Deposition Testimony Designated by Plaintiffs (Doc. #118). For the following reasons, both motions are granted.

         I. Plaintiffs' Motion

         Prior to 2008, Anil Anand served as Chief Financial Officer for Plaintiff Nostrum Pharmaceuticals LLC (“Nostrum”). Doc. #81-1, at 3-4. Since 2008, Anand has been a financial advisor to both Plaintiffs. Id. According to the United States District Court for the Southern District of New York's records, Anil Anand pleaded guilty on May 14, 2004, to conspiracy to commit bank fraud, mail fraud, and wire fraud; bank fraud; conspiracy to commit money laundering; income tax evasion; and false statements. United States v. Anand, No. 02-CR-00673-RMB-2 (S.D.N.Y.) (Docs. #211, 237-38, and Court Entry dated 5/14/2004). On June 17, 2008, Anand was sentenced to time served[1] and five years of supervised release. No. 02-CR-00673-RMB-2 (Doc. #422). Anand was ordered to pay $683, 632, 800.23 in restitution, and his interest in $600, 000, 000 was forfeited. Id. (Doc. #428).

         Plaintiffs ask the Court to prohibit Defendant from introducing designated deposition testimony or attempting to introduce any evidence about, elicit testimony concerning, or refer to Anand's felony conviction. Plaintiffs argue Anand's conviction lacks any probative value, and even if it had probative value, it does not substantially outweigh the prejudicial effect. Defendant argues evidence of Anand's conviction for false and dishonest statements in connection with financial transactions is relevant and crucial to the jury's assessment of his character for truthfulness and his credibility about the master lease at issue in this matter.

         A. Federal Rule of Evidence 609(b)

         “[I]f more than 10 years have passed since the witness's conviction or release for confinement for it, whichever is later, ” evidence of the witness' conviction is admissible only if the following two conditions are met:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Fed. R. Evid. 609(b)(1)-(2). Rule 609(b) creates a “rebuttable presumption against the admissibility of prior convictions more than ten years old.” United States v. Felix, 867 F.2d 1068, 1073 (8th Cir. 1989) (citations omitted). Consequently, evidence of a stale conviction “should be admitted very rarely and only in exceptional circumstances.” United States v. Babb, 874 F.3d 1027, 1030 (8th Cir. 2017) (quoting United States v. Stoltz, 683 F.3d 934, 939-40 (8th Cir. 2012)).

         B. Reasonable Written Notice of Intent to Use Conviction

         The Court will first address whether Defendant gave Plaintiffs reasonable written notice of its intent to use Anand's conviction. Plaintiffs argue they were unaware of Defendant's intent to use Anand's conviction until Plaintiffs, after they filed their motions in limine, were served with Defendant's deposition designations on June 7, 2018. Doc. #99. Plaintiffs argue that had they been given reasonable notice, they would have filed a motion in limine seeking to exclude Anand's conviction. Defendants contend Plaintiffs have known since January 2018 - when Anand's deposition was taken - that Defendant may potentially use Anand's conviction. But Defendant fails to cite to authority concluding the questioning of a witness about his or her conviction complied with the written notice requirement of Rule 609(b)(2) of the Federal Rules of Evidence.

         Nonetheless, Defendant's designation of those portions of Anand's deposition pertaining to his conviction notified Plaintiffs, in writing, that it intended to use Anand's conviction. Plaintiffs had a fair opportunity to contest its use by filing the pending motion more than three weeks before trial is scheduled to commence. Accordingly, the Court finds Plaintiffs were given reasonable written notice of Defendant's intent to use Anand's conviction.

         C. Probative Value and Prejudicial Effect

         To allow admission of evidence regarding Anand's conviction, the Court must find the conviction's “probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.” Fed.R.Evid. 609(b)(1). Defendant argues evidence bearing on Anand's credibility is paramount to the jury's evaluation of his credibility, particularly with regard to assessing his credibility as to what was said, understood, and intended between Anand and Hansen about the master lease.[2]Defendant also contends Anand's conviction for false and dishonest statements is “directly relevant” to the jury's assessment of his character for truthfulness. But Defendant does not set forth specific facts and circumstances establishing the probative value of Anand's conviction. This case is about a master lease executed in 2011. Other than a general observation that Anand was convicted of making false statements to law enforcement, ...


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