UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 15-cr-192-01-JL Opinion No.

Steven Petrillo

ORDER

Before the court are the parties’ respective motions in

limine seeking to exclude certain evidentiary items and areas of

inquiry from the upcoming trial in the above-captioned criminal

case.1 Defendant Steven Petrillo, a former pharmacist employed

by the Veterans Administration, stands charged with making a

false statement to a department of the United States in

violation of

.

The criminally actionable false statement alleged in the

indictment involved the defendant’s application for employment

as a pharmacist with the Veterans Administration, a department

of the United States government. Specifically, the defendant

wrote the answer “no” to questions on a printed employment

application form inquiring whether he had been “discharged from

any position for any reason” in the previous five years, despite

allegedly having been fired by both Walmart and Lawrence (MA)

1The court preliminarily addressed these motions at the final pretrial conference held on April 22, 2016. This order memorializes those rulings and their rationale. General Hospital. The defendant was eventually hired, employed,

and then terminated by the VA Hospital in Manchester, New

Hampshire.

Defendant’s motion in limine

Petrillo has moved to exclude any information regarding the

circumstances giving rise to the Walmart and Lawrence General

Hospital employment terminations, other than that the firings

occurred. He also seeks to exclude any evidence of his alleged

improper conduct occurring after the false statements alleged in

the indictment, during his subsequent employment at the VA

Hospital.

What this amounts to is a request to exclude documents

generated upon his employment discharges--so-called “exit

documents”--by Walmart (indicating “Involuntary Termination

(Mandatory, No Rehire)” and “Gross Misconduct Integrity Issue

(Theft, Violent Act, Dishonesty, Misappropriation of Company

Assets”)), and by Lawrence General Hospital (indicating

“baseline competency deficiencies despite enhanced training and

extended probation period”).

The defendant, who disputes that he was terminated from

those prior positions for the reasons indicated on those “exit

documents,” seeks to exclude those documents, and any reference

2 to the reasons for his prior firings. He argues that the

documents are (1) not relevant, (2) too speculative to be

admissible, (3) amount to “uncharged allegations” deemed

inadmissible under Federal Rule of Evidence 404(b). He adds

that even if the exit documents are admissible as generally

relevant under Rule 401 and 402, or specially relevant under

Rule 404, they are nonetheless impermissibly prejudicial,

misleading and time-wasting under Rule 403, and thus

inadmissible. See Fed. R. Evid. 403.

The court views the evidence as relevant to a number of

issues, but ultimately finds it unduly prejudicial and thus

subject to exclusion, or at least redaction from the exit

documents generated by Walmart and Lawrence General Hospital.

The documents contain evidence (presumably corroborative of, or

corroborated by, witness testimony) that the defendant was fired

from two prior positions, and the reasons he was fired. While

only the occurrence of the previous terminations (and not their

precipitating reasons) goes to prove the falsehood of the “no”

answers on the VA Hospital employment application, see

, the prosecution’s burden of proof also includes the

materiality of the “no” answers denying prior job firings. See

id.; see also United States v. Sebaggala,

(1st

Cir. 2001). Since the reasons for a job applicant’s prior 3 terminations would presumably be of interest to a prospective

employer, likely triggering further inquiry and investigation,

evidence of misconduct and incompetence could be relevant as to

the materiality of the “no” answers.

Second, § 1001 also requires proof that the defendant made

his false statement “knowingly and willfully.”

(a). The exhibits in question are purported to be records

of meetings at which the defendant was present, and in which he

participated, and are purported to have been reviewed by the

defendant, making the defendant’s knowledge of the falsehood of

his “no” answer more likely than it would be without the

evidence, and thus relevant and admissible. Fed. R. Evid. 401,

402. See also 404(b) (knowledge).

Third, while the defendant’s motive for making the false

statements is not technically part of the prosecution’s burden,

it is certainly admissible in most circumstances. See, e.g.,

United States v. Reveron Martinez,

(1st

Cir. 1988) (evidence sufficient to support conviction for

knowingly made false statement where, “taking into account the

totality of the evidence, direct and circumstantial, and giving

due weight to the indirect evidence anent appellant's motive to

falsify, the proof was adequate to underbrace a guilty

verdict”). And Rule 404(b) provides prior uncharged misconduct 4 is relevant to prove motive. See Fed. R. Evid. 404(b)

(“[Evidence of a crime, wrong, or other act] may be admissible

for another purpose, such as proving motive . . . .”); United

States v. Mensah,

(1st Cir. 2013) (“Federal

Rule of Evidence 404(b) generally bars the use of evidence of

other crimes or acts to prove ‘a mere propensity to behave in a

certain way,’ but permits such evidence where it has ‘special

relevance,’ i.e., if it tends to prove such material facts as

knowledge, motive or intent.”) While the parties dispute the

reasons for the defendant’s firings from Walmart and Lawrence

General, they both acknowledge the existence of evidence that

one or both of the prior firings involved diversion by the

defendant of pharmaceutical drugs. A desire to obtain a new

position at a VA Hospital that would enable further drug seeking

and drug diversion activity is potentially relevant to show the

motive to lie in order to increase the likelihood of obtaining

the position. Or, to put it more plainly, a pharmaceutical drug

abuser or addict might have a motive to lie on an application

for a job that would provide access to pharmaceutical drugs.

Despite the various purposes for which the information on

the “exit forms” could be relevant, “the court may exclude

relevant evidence if its probative value is substantially

outweighed by a danger” that it may unfairly prejudice the 5 defendant, confuse issues before the jury or mislead the jury,

among other things. Fed. R. Evid. 403; see also United States

v. DeCicco,

(1st Cir. 2004) (“first, a court

must determine whether the evidence in question has any special

relevance exclusive of defendant's character or propensity; and

second, notwithstanding its special relevance, whether the

evidence meets the standard set forth in Fed. R. Evid. 403.”).

United States v. Smith,

(1st Cir. 2002) (“We

usually defer to the district court’s balancing under Rule 403

of probative value against unfair prejudice.”). Here, the risk

of unfair prejudice and confusion of these issues outweighs the

probative value provided by the evidence as to knowledge, of

materiality (probative, but fairly week) and motive (also

probative, but somewhat attenuated).

Although the parties dispute this point, the defendant’s

prior terminations may have been at least partially caused by

his alleged drug seeking and drug diverting activity, and he was

also suspected of such misconduct during his eventual V.A.

Hospital employment, the application process for which was the

backdrop for the charged false statement in violation of § 1001.

The potential for juror confusion between the alleged drug-

related occupational misconduct occurring prior to, and then

6 subsequent to,2 his alleged false statements requires little

explanation. And the prejudice resulting from introduction of

this alleged misconduct would likely be substantial, given that

occupational drug misconduct by a pharmacist is not only

professionally inappropriate, but also criminal and potentially

dangerous to public safety. The potential for the jury to

unduly focus to the defendant’s detriment on the purported

reasons for his prior firings, as opposed to the elements of the

offense charged, creates a prejudice that substantially

outweighs the probative value of the evidence to show

materiality and motive.

Excluding the evidence of the purported reasons for the

prior terminations, however, does not necessarily require the

outright exclusion of the “exit documents” altogether.

Appropriate redactions of the offending notations on the

documents, accompanied if necessary by an appropriate limiting

instruction, see Fed. R. Evid. 105, would render the exit

documents admissible to prove the fact of the prior

terminations--in other words, simply that the terminations took

place--as well as the defendant’s knowledge thereof, both of

which are part of the prosecution’s burden in this case, see 18

2 And as noted infra, the post-hiring alleged drug misconduct at the V.A. Hospital may not even be introduced at trial.

, while eliminating any potentially undue prejudice

or confusion.

The defendant also seeks to exclude uncharged misconduct

occurring after the alleged false statements and during the

defendant’s V.A. Hospital employment, most notably the

defendant’s alleged (and apparently unproven) drug diverting

activities. The United States Attorney has affirmatively stated

that the prosecution will not seek to introduce such evidence.

United States’ Objection, (doc. no. 25, p. 4).

Prosecution’s motion in limine

The prosecution has also moved to exclude four exhibits

proffered by the defendant: typewritten letters from Equifax,

Inc. (formerly TALX Corporation). Equifax apparently provides

outsourced employee information management services to

employers. The letters were sent by Equifax in response to the

New Hampshire Department of Employment Security’s request for

information regarding the defendant’s eligibility for

unemployment benefits. The defendant wants to introduce them

because they each contain a statement to the effect that he

“voluntarily quit [his position at Walmart] to relocate and

leave the area.” The defendant issued a subpoena to the Equifax

employee who authored the letters, intending for the author to

8 authenticate them (see Fed. R. Evid. 901) and to lay a

foundation for admission under the so-called “business records

exception” to the rule against hearsay, (see Fed. R. Evid 802;

Fed. R. Evid. 803(6)) (“Records of a Regularly Conducted

Activity”). The prosecution argues that the Equifax letters

cannot be admitted as Walmart “business records,” under Rule

803(6), and that the Equifax employee cannot provide any

testimony that would establish them as such.

Before addressing the merits of this argument, the court

notes that were it to permit the admission of the Equifax

letters, which purport to contain evidence regarding the reasons

the defendant’s employment at Walmart ended (“voluntarily quit

to relocate and leave the area”), it would open the door to the

admission of the very Walmart “exit documents” the defendant

successfully argued to exclude. See supra; see also United

States v. Tetioukhine,

(1st Cir. 2013) (describing

the opening-the-door doctrine). The opening-the-door doctrine

permits the admission of otherwise inadmissible evidence when a

party presents contrary evidence which either misleads, or, in

fairness should be countered.

Here, the court has excluded

as unduly prejudicial documents created by Walmart stating that

the defendant had been fired for misconduct. See supra; see

also Fortini v. Murphy,

(1st Cir. 2001) (“Even 9 highly relevant evidence can be excluded if it is unduly

prejudicial.”) Permitting the defendant to introduce documents

suggesting that he had voluntarily resigned would create an

impression that, both in fairness and in deference to the jury’s

ability to assess totality of available evidence, would militate

in favor of admitting the usually excluded documents.

That observation aside, the Equifax letters are

inadmissible as proffered by the defendant. In the letters, an

Equifax employee made a statement--apparently offered for its

truth by the defendant, see Fed. R. Evid. 802(c)(2)--about the

circumstances of the defendant’s termination of employment from

Walmart. As the defendant has not suggested that the Equifax

author has any personal knowledge of the matter or made any

serious showing that Equifax has actual custody of Walmart’s

business records, the basis for that statement is inadmissible

hearsay. See

Rule of Evidence 803(6) permits the admission of otherwise-

hearsay-precluded “records of a regularly conducted activity.”

Commonly referred to as the “business records exception” to the

rule against hearsay, the admission of such records requires a

multi-part showing involving the timing of the record’s

creation, how it was “kept” or maintained, and whether making

the record was the regular practice of the creating business, 10 organization, occupation or calling the question. Fed. R. Evid.

803(6)(A)-(C). The rule further requires that “all these

conditions are shown by the testimony of the custodian or

another qualified witness”3 or by a rule-compliant certificate to

the same affect. Fed. R. Evid. 803(6)(D).

The Equifax letters describing the end of the defendant”

Walmart employment do not appear to satisfy these requirements,

see Fed. R. Evid. 803(6)(A)-(C), and their author, subpoenaed by

the defendant, cannot possibly provide the foundation-laying or

authenticating testimony required under Rule 803(6)(D). Even if

the Equifax-employed author could lay the three-part foundation

required by Rule 803(6)(A)-(C) as to the Equifax letters as

records of Equifax--itself a somewhat dubious proposition,

judging by the format and content of the letters--he could not

possibly do so as to the letters’ statements regarding

occurrences at Walmart. This renders the statement that the

defendant “quit [Walmart] to relocate and leave the area” as

“hearsay within hearsay,” see Fed. R. Evid. 805, and thus

inadmissible unless that information itself is either nonhearsay

under Rule 801 or qualifies as hearsay exception under Rule 803

3Presumably, a qualifying witness would have the requisite personal knowledge, see Fed. R. Evid. 602, and be in a position to authenticate the document, see Fed. R. Evid. 901, unless another witness would do so. 11 or Rule 804. The Equifax letter author is not in a position to

provide the required testimony under Rule 803(6)(A)–(C) and thus

does not qualify under Rule 803(6)(D). The defendant has not

argued or proffered evidence to the contrary.

Instead, the defendant argues that Equifax “integrated”

Walmart’s records into its own, thus qualifying the Equifax

letter’s author to lay the necessary foundation under Rule

803(6). The defendant relies on a number of cases where

district courts permissibly admitted one company’s records

through a witness of a different company that had taken custody

of the records. See Defendant’s Objection to Government’s

Motion in Limine, (doc. no. 37 ¶ 2) (citing Brawner v. Allstate

Indemnity Co.,

(8th Cir. 2010) and cases cited

thereon). As far as those cases go, however, they do not apply

in this situation. The defendant has not offered Walmart

business records, “incorporated” into Equifax’s records, or in

Equifax’s custody.4 He has offered Equifax records which

themselves contain hearsay regarding goings-on at Walmart. The

Equifax letters are inadmissible.

4If there is any information regarding actual incorporation or custody, see Fed. R. Evid. 104, the defendant has not provided it. 12 Conclusion

For the reasons set forth above, the defendant’s motion in

limine5 is granted in part, and the prosecution’s motion in

limine6 is granted.

SO ORDERED.

____________________________ Joseph N. Laplante United States District Judge

Dated: August 23, 2016

cc: Helen W. Fitzgibbon, AUSA Donald A. Kennedy, Esq. Patrick Joseph McDowell, Esq.

5 Document no. 24. 6 Document no. 31. 13