Case 2:19-cv-00463-RAJ-LRL Document 571 Filed 02/23/21 Page 1 of 8 PageID# 20892
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`UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF VIRGINIA
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`Norfolk Division
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`IN RE PEANUT FARMERS
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`ANTITRUST LITIGATION
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`CIVIL ACTION NO. 2:19cv463
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`OMNIBUS ORDER
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`This class action is based on allegations by Plaintiff peanut growers that the Defendant
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`Golden Peanut Company ("Golden Peanut" or "Defendant"), with others, engaged in a multi-year
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`conspiracy to fix the price of Runner peanuts. Before the Court now are three Motions in Limine
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`filed by Plaintiffs which require resolution prior to trial, including: (1) Motion in Limine to
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`Preclude Reference to Named Plaintiff Lonnie Gilbert's Text Message Sent on May 9, 2019
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`Seeking Money from His Nephew (ECF No. 317); (2) Motion in Limine to Preclude Reference to
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`Plaintiffs' Socially Disadvantaged, Limited Resource and Beginning Farmer or Rancher
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`Certifications and Changes in Racial Identification (ECF No. 331); (3) Motion in Limine to
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`Preclude Reference to Administrative Actions and Insurance Claims Involving Plaintiffs and the
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`U.S. Department of Agriculture's Noninsured Crop Disaster Relief Program (ECF No. 342).
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`Plaintiffs filed a separate memorandum in support of each motion. ECF Nos. 318-320, 333-336,
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`343-346.' Golden Peanut filed a joint memorandum in opposition to these Motions. ECF Nos.
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`423,432 attach. 5-8.^ Plaintiffs filed a joint memorandum in reply. ECF Nos. 453,454.^ Because
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`' Both parties submitted redacted (and publicly filed) and unredacted (and under seal) versions of their briefmg and
`exhibits. Except as where otherwise noted, the Court's citations are to the publicly filed briefs.
`^ See n.l.
`^ See n.l.
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`the arguments advanced involve the same or similar legal issues and since the parties ultimately
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`addressed these three Motions in joint memoranda, the Court does the same in this Omnibus Order,
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`and decides the Motions without a hearing pursuant to Fed. R. Civ. P. 78(b) and E.D. Va. Local
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`Civil Rule 7(J).
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`A. Legal Standard
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`This Court has previously noted: "[ajlthough not specifically provided for in the Federal
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`Rules of Evidence, motions in limine ha[ve] evolved under the federal courts' inherent authority
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`to manage trials. The purpose of a motion in limine is to allow a court to rule on evidentiary issues
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`in advance of trial in order to avoid delay, ensure an even-handed and expeditious trial, and focus
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`the issues the jury will consider." However, a motion in limine should be granted only when the
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`evidence is clearly inadmissible on all potential grounds." Intelligent Verification Sys., LLC v.
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`Microsoft Corp., No. 2:12-CV-525, 2015 WL 1518099, at *9 (E.D. Va. Mar. 31, 2015), affdsub
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`nom. Intelligent Verification Sys., LLC v. Majesco Entm't Co., 628 F. App'x 767 (Fed. Cir. 2016)
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`(citations and internal quotation marks omitted).
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`B. Discussion
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`1. ECF No. 317: Motion in Limine to Preclude Reference to Named Plaintiff Lonnie Gilbert's
`Text Message Sent on May 9, 2019 Seeking Money from His Nephew
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`This Motion seeks to exclude any evidence or testimony regarding the substance of a text
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`message Plaintiff Gilbert sent to his nephew. Plaintiffs contend that such evidence is not relevant
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`to any of the claims against Golden Peanut or to its defenses, is impermissible character evidence
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`under Rule 404(b), and is unfairly prejudicial under Rule 403. ECF No. 320. Golden Peanut
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`contends that the content of the message "proposed an insurance fraud scheme", and therefore is
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`the proper subject of cross-examination of Gilbert under Rule 608(b) tending to show his character
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`for untruthfulness. ECF No. 423. It does not intend to offer extrinsic evidence of such conduct
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`under Rule 404(b). Id. Defendant further argues that any prejudice from such cross-examination
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`does not outweigh its probative value under Rule 403. Id. In their reply, Plaintiffs argue that, even
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`under Rule 608(b), the Court must still weigh the unfairly prejudicial impact of the evidence,
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`especially if it involves a single instance of conduct, as is alleged here. ECF No. 454.
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`Rule 608(b) provides
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`Except for a criminal conviction under Rule 609, extrinsic 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;
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`As applicable here, the Fourth Circuit has held that in the discretion of the court, specific instances
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`of the conduct of a witness, "if probative of truthfulness or untruthfulness, be inquired into on
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`cross-examination of the witness ... conceming his character for truthfulness or untruthfulness,"
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`for the purpose of attacking the witness's credibility. United States v. Leake, 642 F.2d 715, 718
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`(4th Cir. 1981). That discretion is not absolute, however. Id. "Rule 608 authorizes inquiry only
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`into instances of misconduct that are 'clearly probative of truthfulness or untruthfulness,' such as
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`perjury, fraud, swindling, forgery, bribery, and embezzlement." Id. (citation omitted). Because
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`extrinsic evidence may not be admitted under Rule 608(b) except for a criminal conviction, a
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`"cross-examiner may inquire into specific incidents of conduct, but does so at the peril of not being
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`able to rebut the witness' denials. The purpose of this rule is to prohibit things from getting too far
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`afield-to prevent the proverbial trial within a trial." United States v. Bynum, 3 F.3d 769, 772 (4th
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`Cir. 1993).
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`Applying these principles, the Court finds that the evidence sought to be elicited from
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`Gilbert on cross-examination is not sufficiently probative of the witness's character for
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`untruthfulness to outweigh the unfair prejudice admission of such evidence might engender.
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`Golden Peanut claims that this single text message is evidence of a "proposed [] insurance fraud
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`scheme." ECF No. 423 at 3. Even if true, review of the deposition transcript where the text
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`message was discussed reveals that this was no more than an idea expressed to Gilbert's nephew.
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`See ECF No. 432, attach. 6 (filed under seal). Golden Peanut does not contend and the evidence
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`does not suggest that Gilbert ever engaged in a single act to bring about this "proposed insurance
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`fraud scheme." Consequently, rather than demonstrating that Gilbert engaged in "conduct" as
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`required by Rule 608(b), the evidence instead suggests that Gilbert engaged in thoughts which he
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`expressed to his nephew. The nature of this evidence therefore doubtfully qualifies as the type of
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`"conduct'" contemplated by Rule 608(b), and in the Court's judgment is not sufficiently probative
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`of Gilbert's character for untruthfulness under the Rule. Moreover, the unfair prejudice of raising
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`the specter of a "proposed insured fraud scheme" from a single text message outweighs the scant
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`probative value such evidence under Rule 403.
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`Under these circumstances, in accordance with the discretion afforded the Court by Rule
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`608(b), Plaintiffs' Motion, ECF No. 317, is GRANTED.
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`2. ECF No. 331: Motion in Limine to Preclude Reference to Plaintiffs' Socially Disadvantaged,
`Limited Resource and Beginning Farmer or Rancher Certifications and Changes in Racial
`Identification
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`The subject of this Motion is Golden Peanut's apparent intention to cross-examine
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`Plaintiffs Dustin Land and Mark Hasty regarding their efforts to "chang[e] their racial
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`identification from White to Native American for the purpose of obtaining financial benefits from
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`the USD A [United States Department of Agriculture]." ECF No. 423 at 2. Plaintiffs seek relief
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`through this Motion on the grounds that the unfair prejudice outweighs the probative value of such
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`evidence, contending it would create a side issue on the subject of race totally unrelated to any of
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`the claims or defenses in this case. ECF No. 335. Golden Peanut argues that this evidence is
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`properly the subject of cross-examination under Rule 608(b) bearing on the witnesses' character
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`for untruthfulness, and it does not intend to offer extrinsic evidence of such conduct under Rule
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`404(b). ECFNo.423.
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`Under Rule 608(b) as discussed supra, "specific instances of a witness's conduct in order
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`to attack or support the witness's character for truthfulness" are admissible on cross-examination
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`"//they are probative of truthfulness or untruthfulness." (emphasis added). Golden Peanut fails
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`to explain in any detail how or why this evidence bears on Land's or Harty's character for
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`untruthfulness. The deposition excerpt attached, ECF No. 432, attach. 8 (filed under seal), fails to
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`demonstrate evidence of untruthfulness. The witness Hasty describes his actions and the USDA's
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`response, which apparently constituted USDA's acceptance of such actions. Id. Given the
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`testimony offered by the witness, under Rule 608(b) Golden Peanut is foreclosed from offering
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`any extrinsic evidence which might tend to rebut or disprove such testimony. Since the testimony
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`itself is not sufficiently relevant to Lands' or Hasty's character for untruthfulness, there is no other
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`basis on which it may be admitted.
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`Moreover, testimony about these Plaintiffs' representations regarding their racial identity
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`is, as Plaintiffs' contend, fraught with the potential to create such a distracting side issue that it
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`would create a danger to unfairly prejudice Plaintiffs, confuse the issues, mislead the jury, unduly
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`delay the proceedings, and waste time in violation of Rule 403. See Leake, 642 F.2d at 718 ("The
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`rule [608(b)] recognizes that the trial court must have discretion to apply the overriding safeguards
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`of rule 403 (excluding evidence if its probative value is substantially outweighed by dangers of
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`prejudice, confusion or delay) and rule 611 (barring harassment and undue embarrassment of a
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`witness)"); see also Christovich v. Pierce, 59 Fed. Appx. 543, 547 (4^^ Cir. 2003) ("In determining
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`whether to admit testimony under Rule 608(b), a district court must still conduct a Rule 403
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`balancing test and must exclude testimony if its probative value is substantially outweighed by the
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`dangers of prejudice.").
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`Therefore, in accordance with the discretion afforded the Court by Rule 608(b), Plaintiffs'
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`Motion, ECF No. 331, is GRANTED.
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`3. ECF No. 342: Motion in Limine to Preclude Reference to Administrative Actions and Insurance
`Claims Involving Plaintiffs and the U.S. Department of Agriculture's Noninsured Crop Disaster
`Relief Program
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`The subject of this Motion is Golden Peanut's apparent intention to cross-examine Plaintiff
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`Dustin Land under Rule 608(b) regarding the USDA's investigation and sanction of him "for
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`fraudulent crop insurance claims." ECF No. 423 at 3. Plaintiffs seek relief through this Motion
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`on the grounds that the unfair prejudice outweighs the probative value of such evidence,
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`contending it is merely a single incident totally unrelated to any of the claims or defenses in this
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`case."^ ECF No. 345, 454. Plaintiffs also sought to exclude such evidence as impermissible
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`character evidence under Rule 404(b). ECF No. 345. Golden Peanut argues that this evidence is
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`properly the subject of cross-examination under Rule 608(b) bearing on the witness's character for
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`untruthfulness, and it does not intend to offer extrinsic evidence of such conduct under Rule
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`404(b). ECF No. 423.
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`As noted, pursuant to Rule 608(b), the Court must determine, in the exercise of its
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`discretion, whether a specific instance of a witness's conduct is probative of the witness's character
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`for truthfulness or untruthfulness in order to be admissible on cross-examination. If it is probative,
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`the Court must then determine whether the probative value outweighs the unfair prejudice under
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`Rule 403. See Leake, 642 F.2d at 718. In this case, the Court finds that the USDA's determination
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`'' Plaintiffs originally sought relief to exclude evidence regarding Land and two other Plaintiffs, ECF No. 343 at 3, but
`Golden Peanut in its opposition made clear that it just seeks to cross-examine Land pursuant to Rule 608(b), since he
`is the only Plaintiff it discussed. ECF No. 423, passim. Therefore, this Order only applies to Plaintiff Land.
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`that the witness made "fraudulent crop insurance claims"—as Golden Peanut contends happened
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`with Land—is probative of that witness's character for untruthfulness. "Fraudulent conduct is an
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`' instance [ ] of misconduct... clearly probative of truthfulness or untruthfulness' and such evidence
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`is admissible under Rule 608(b)." United States v. Parker, 790 F.3d 550, 559 (4th Cir. 2015)
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`quoting Leake, 642 F.2d at 718-19.
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`Having found such evidence probative, the Court also finds that such evidence is not
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`unfairly prejudicial or otherwise inadmissible under Rule 403. As the Leake court noted. Rule
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`608(b) specifically authorizes inquiry into instances of fraud because it is "clearly probative of
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`truthfulness or untruthfulness." 654 F.2d at 718. Moreover, it can be an abuse of discretion not
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`to admit evidence of fraudulent conduct under Rule 608(b) if the evidence is sufficiently probative.
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`See Christovich, 59 Fed. Appx. at 546 (finding the district court abused its discretion in not
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`permitting cross-examination of a defendant's prior fraud conviction, although such error was
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`harmless). According to Golden Peanut, Land may testify regarding "peanut acres planted,
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`interactions with the USD A, and/or claims with respect to what [he] is owed for [his] crops." ECF
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`No. 423 at 3. Evidence that a named plaintiff was found by the USDA to have made a fraudulent
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`crop insurance claim may very well demonstrate, to some extent, the witness's character for
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`truthfulness or untruthfulness, and therefore affect his credibility. Such evidence on cross-
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`examination is not unfairly prejudicial, nor will it tend to confuse the issues, mislead the jury,
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`unduly delay the proceedings, or waste time under Rule 403. Of course, should Golden Peanut
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`choose to cross-examine Land on this subject, it "does so at the peril of not being able to rebut the
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`witness' denials" since [t]he purpose of this rule is to prohibit things from getting too far afleld-to
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`prevent the proverbial trial within a trial." Bynum, 3 F.3d at 772. Certainly, the trial judge can
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`circumscribe any examination "from getting too far afield."
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`Therefore, in accordance with the discretion afforded the Court by Rule 608(b), Plaintiffs'
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`Motion, ECF No. 342, is DENIED.
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`C. Conclusion
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`Plaintiffs Motion in Limine to Preclude Reference to Named Plaintiff Lonnie Gilbert's
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`Text Message Sent on May 9, 2019 Seeking Money from His Nephew, ECF No. 317, is
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`GRANTED.
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`Plaintiffs Motion in Limine to Preclude Reference to Plaintiffs' Socially Disadvantaged,
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`Limited Resource and Beginning Farmer or Rancher Certifications and Changes in Racial
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`Identification, ECF No. 331, is GRANTED.
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`Plaintiffs Motion in Limine to Preclude Reference to Administrative Actions and
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`Insurance Claims Involving Plaintiffs and the U.S. Department of Agriculture's Noninsured Crop
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`Disaster Relief Program, ECF No. 342, is DENIED.
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`The Clerk is DIRECTED to forward a copy of this Order to all counsel of record.
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`IT IS SO ORDERED.
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`Norfolk, Virginia
`February 23, 2021
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`LAWRENC^ltrLFONARD
`UNITED STATES MAGISTRATE JUDGE
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