Case 2:18-cr-00134 Document 39 Filed 08/28/18 Page 1 of 5 PageID #: 294

UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON

UNITED STATES OF AMERICA

v.

CRIMINAL NO. 2:18-cr-00134

ALLEN H. LOUGHRY II

UNITED STATES MOTION IN LIMINE FOR ORDER
TO PRECLUDE IMPROPER CHARACTER EVIDENCE
The United States files this Motion in Limine to preclude impermissible character
evidence about defendant Allen H. Loughry II at trial and to ensure that any relevant evidence
of defendant Loughry’s character is admitted following the methods permitted by the Federal
Rules of Evidence.
The Federal Rules of Evidence circumscribe when and how a party may introduce
evidence of a person’s character at trial. Generally, “[e]vidence of a person's character or
character trait is not admissible to prove that on a particular occasion the person acted in
accordance with the character or trait.” Fed. R. Evid. 404(a)(1). In a criminal case, however, “a
defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted,
the prosecutor may offer evidence to rebut it.” Fed. R. Evid. 404(a)(2) (emphasis supplied).
So what is a pertinent trait? “In the criminal context, a pertinent character trait is one
that is relevant to the offense charged.” United States v. John, 309 F.3d 298, 303 (5th Cir. 2002);
see also United States v. Angelini, 678 F.2d 380, 381 (1st Cir. 1982) (in Rule 404(a), “pertinent
is read as synonymous with relevant”). In this case, in which defendant Loughry stands charged

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with fraud, tampering with a witness, obstruction of justice, and lying to an FBI agent, the
character traits of being honest or being a law-abiding citizen are relevant. See, e.g., United
States v. Hewitt, 634 F.2d 277, 279 (5th Cir. 1981).
But, defendant Loughry might seek to introduce evidence of other character traits that
are not pertinent or relevant to the case. For example, he might try to present evidence of a
character trait for generosity or for having an abiding love of West Virginia. Generosity,
however, is not a pertinent character trait in this case. See United States v. Langford, 647 F.3d
1309, 1329 (11th Cir. 2011) (trial court properly barred evidence of a defendant’s “generous
and philanthropic character” in a bribery, fraud, and money laundering case); United States v.
Manfredi, 2009 WL 3762966, at *3 (W.D. Pa. 2009) (holding that “generosity” or
“charitableness” not germane to issue of willfulness for tax charges). Nor is love for his home
state. Cf. United States v. Hedgcorth, 873 F.2d 1307, 1313 (9th Cir. 1989) (trial court properly
excluded evidence that defendant was “patriotic” and “pro-government” in case involving
firearms, explosives, and conspiracy to destroy property charges); United States v. Morison, 622
F. Supp. 1009, 1010 (D. Md. 1985) (holding that defendant could not present evidence of his
patriotism where he was charged with willfully passing national defense photographs to persons
not entitled to receive them). 1
These are but examples of possible character traits that defendant Loughry might try to
offer at trial. The United States seeks to avoid having inadmissible evidence even solicited.
Consequently, the United States respectfully requests an order from this Court directing defendant

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Indeed, defendant Loughry should not be permitted to present an irrelevant defense, such as that
he could not have intended, and indeed did not intend, to defraud the State of West Virginia,
because he has such a deep and abiding love for his home state.
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Loughry to proffer any character evidence at the beginning of the defense case, before calling any
witnesses, so that the parties may litigate whether any particular trait is in fact pertinent.
Furthermore, even if a particular trait is deemed pertinent, the Rules of Evidence limit how
such evidence may be presented. Under Rule 405(a), a defendant may prove a relevant character
trait about himself through testimony about his reputation or testimony in the form of an opinion.
To be sure, when a character trait is an essential element of a charge or a defense, the defendant
may present evidence of relevant specific instances of his conduct. Fed. R. Evid. 405(b). The Rule,
however, confines evidence of specific instances of conduct “to instances in which character is in
issue ‘in the strict sense,’ [Rule 405 advisory committee’s Note], which occurs where ‘a material
fact that under the substantive law determines rights and liabilities of the parties.’” United States
v. Piche, 981 F.2d 706, 713 (4th Cir. 1992) (quoting McCormick on Evidence § 187, at 551 (3d
ed. 1984) and omitting case quoting McCormick). Thus, according to the Advisory Committee
Notes to Rule 405, “[w]hen character is used circumstantially and hence occupies a lesser status
in the case, proof may be only by reputation and opinion.” See Hedgcorth, 873 F.2d at 1313
(defendant may show a character for lawfulness through opinion or reputation testimony, but not
through evidence of specific acts).
Accordingly, even if defendant Loughry has evidence of a pertinent character trait, the
Rules set strict limits on how that evidence may be presented. These limited methods of proving
character under Rule 405 offer yet another reason to require defendant Loughry to proffer any
anticipated character evidence, and to explain how he intends to prove it, before the beginning of
the defense case at trial.
For the foregoing reasons, the United States respectfully requests this Court to order that,
prior to the beginning of the defense case at trial, defendant Allen H. Loughry II proffer to the

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Court any anticipated character evidence and explain his intended methods of proof, to ensure that
the anticipated evidence will satisfy the Rules of Evidence.
Respectfully submitted,
MICHAEL B. STUART
United States Attorney
By:
s/Philip H. Wright
PHILIP H. Wright
Assistant United States Attorney
WV State Bar No. 7106
300 Virginia Street, East
Charleston, WV 25301
Telephone: 304-345-2200
Fax: 304-347-5104
E-mail: philip.wright@usdoj.gov

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CERTIFICATE OF SERVICE
It is hereby certified that service of the foregoing “MOTION IN LIMINE FOR ORDER TO
PRECLUDE IMPROPER CHARACTER EVIDENCE” has been electronically filed and service
has been made on opposing counsel by virtue of such electronic filing on this 28th day of August,
2018, to:
John A. Carr, Esq.
John A. Carr Attorney at Law, PLLC
179 Summers Street, Suite 209
Charleston, WV 25301

s/Philip H. Wright
PHILIP H. Wright
Assistant United States Attorney
WV State Bar No. 7106
300 Virginia Street, East
Charleston, WV 25301
Telephone: 304-345-2200
Fax: 304-347-5104
E-mail: philip.wright@usdoj.gov

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