USA v. Smith et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN PEARL SMITH, II,
Defendant.
Case No. 3:16-cr-00086-SLG-1
ORDER REGARDING MOTION IN LIMINE TO PRECLUDE EVIDENCE OF
CIVIL LAWSUIT
Before the Court at Docket 709 is the government’s Motion in Limine to
Preclude Evidence or Argument Concerning Civil Lawsuits Discussing the Crimes
Charged. Defendant John Pearl Smith, II, responded in opposition at Docket 818.
The government replied at Docket 846 and filed a related notice at Docket 908.
In June 2018, Richard Beck and the estate of victim Crystal Denardi filed a
civil lawsuit against the estate of victim Ben Gross in Alaska state court.1 The
lawsuit alleged that John Smith shot Beck (who survived), Denardi, and Gross at
Gross’s home, that Gross was previously “in imminent fear of being attacked,” but
that Gross did not tell Beck or Denardi that he was in fear of being attacked.2 The
lawsuit also alleged that “Gross aggravated the situation and made a bad situation
1 The lawsuit was originally filed by Beck alone, on June 4, 2018. Docket 709-1. The next day
the lawsuit was amended to include the Denardi estate as a co-plaintiff. Docket 709-2.
2 Docket 709-2 at 2, ¶¶ 7–8.
Case 3:16-cr-00086-SLG Document 927 Filed 08/20/20 Page 1 of 7

Case No. 3:16-cr-00086-SLG-1, United States v. Smith
Order Re Motion in Limine to Preclude Evidence of Civil Lawsuit
Page 2 of 7
worse by attacking Smith and inciting Smith” to shoot Beck, Denardi, and Gross
and that “because Gross exacerbated the situation, Smith had to get rid of the two
witnesses [Beck and Denardi].”3 The lawsuit sought at least $100,000 for
negligence, intentional infliction of emotional distress, and negligent infliction of
emotional distress.4 In June 2020, the lawsuit was settled and dismissed with
prejudice.5
The government seeks to preclude Mr. Smith “from introducing any evidence
or argument suggestive of contributory negligence” as is alleged in the civil lawsuit
because the “civil lawsuit, and circumstances surrounding the lawsuit as it relates
to any suggestion of contributory negligence is irrelevant” to either the guilt or
penalty phase of trial.6 Mr. Smith responds that the lawsuit is admissible for two
purposes. First, he asserts that it is admissible for impeachment: “Beck’s lawsuit
and the assertions he makes [in the lawsuit] are admissible impeachment of the
Government’s case.”7 Mr. Smith maintains that because Mr. Beck “is the sole
eyewitness to the alleged homicides,” he must be cross-examined for bias or
3 Docket 709-2 at 3, ¶ 15.
4 Docket 709-2 at 3–4.
5 Docket 908-1.
6 Docket 709 at 2. The issue of Beck’s lawsuit was also raised in the defense motion in limine at
Docket 761 and deferred by the Court because of the instant pending motion. See Docket 901
at 6 (sealed order regarding motion in limine at Docket 761).
7 Docket 818 at 2.
Case 3:16-cr-00086-SLG Document 927 Filed 08/20/20 Page 2 of 7

Case No. 3:16-cr-00086-SLG-1, United States v. Smith
Order Re Motion in Limine to Preclude Evidence of Civil Lawsuit
Page 3 of 7
motive.8 Second, Mr. Smith contends that the lawsuit is admissible because the
lawsuit alleges that “Gross aggravated the situation and made a bad situation
worse by attacking Smith and inciting Smith to shoot and kill Gross,” thus
undermining the government’s theory that Mr. Smith acted intentionally and with
premeditation.9
I. Use of lawsuit as impeachment
The government reply acknowledged that “there may exist some
impeachment value to some aspects of the lawsuit.”10 However, once the lawsuit
was settled and dismissed, the government appears to have changed its position,
asserting that “it appears that when Mr. Beck testifies at trial, any potential bias
arising from the pending lawsuit will have been dissipated.”11 The Court disagrees.
For example, as Mr. Smith points out, the fact that Mr. Beck even filed the lawsuit
may be relevant impeachment if Mr. Beck testifies that he was a close friend of Mr.
Gross.12 Thus, the fact that there was a lawsuit may be valid impeachment of Mr.
Beck or other witnesses’ testimony.
8 Docket 818 at 2, 4 (citing United States v. Harris, 185 F.3d 999, 1008 (9th Cir. 1999)).
9 Docket 818 at 2–3 (quoting Docket 709-1 at 1, 3); see also Docket 102 at 4–5, 14 (First
Superseding Indictment charging that Mr. Smith committed the killings “willfully, deliberately,
maliciously, and with premeditation” and special findings that he “intentionally killed” Gross and
Denardi).
10 Docket 846 at 2.
11 Docket 908 at 2.
12 See Docket 818 at 3–4.
Case 3:16-cr-00086-SLG Document 927 Filed 08/20/20 Page 3 of 7

Case No. 3:16-cr-00086-SLG-1, United States v. Smith
Order Re Motion in Limine to Preclude Evidence of Civil Lawsuit
Page 4 of 7
However, the Court has no proposed testimony before it with which to
compare the allegations in the lawsuit, nor does it have any information regarding
the terms of the settlement. The Court does not have enough information to
conduct a Rule 403 inquiry (as to the guilt phase) or an inquiry into whether the
lawsuit is “information [that] may be excluded if its probative value is outweighed
by the danger of creating unfair prejudice, confusing the issues, or misleading the
jury” (as to the sentencing phase).13 Thus, on the current record, the Court cannot
find that the lawsuit is admissible for impeachment, and the Court GRANTS the
motion at Docket 709 as it relates to any reference to the lawsuit for impeachment
purposes, without prejudice to the defense raising the issue outside the presence
of the jury after the testimony of any witness it seeks to impeach with the lawsuit.
II. Use of lawsuit as substantive evidence
The government maintains that evidence of Mr. Gross’s contributory
negligence is not proper substantive evidence in the guilt phase of trial and is not
proper mitigation evidence in the sentencing phase of trial.14 In determining this
portion of the motion, the Court considers the allegations made by the government
in the indictment and notice of intent to seek the death penalty. During the guilt
phase, the government will be seeking to prove that—at least as to Counts 3, 5, 7,
and 8—Mr. Smith committed the homicides “willfully, deliberately, maliciously, and
13 18 U.S.C. § 3593(c).
14 Docket 846 at 2.
Case 3:16-cr-00086-SLG Document 927 Filed 08/20/20 Page 4 of 7

Case No. 3:16-cr-00086-SLG-1, United States v. Smith
Order Re Motion in Limine to Preclude Evidence of Civil Lawsuit
Page 5 of 7
with premeditation.”15 Premeditation is not the same as intent: “Premeditation
means with planning or deliberation. The amount of time needed for premeditation
of a killing . . . must be long enough, after forming the intent to kill, for the killer to
have been fully conscious of the intent and to have considered the killing.”16 The
Ninth Circuit has set out a variety of ways premeditation may be proven through
circumstantial evidence and noted that “[w]hether a defendant acted with
premeditation is a factual question for the jury to decide.”17 Evidence regarding
Mr. Gross’s conduct at the scene of the homicides will not be excluded from the
guilt phase, as it will be relevant and probative on this topic.18 But whether any
such conduct by Mr. Gross constituted contributory negligence under state tort law
is not relevant to this criminal prosecution and should not be argued to the jury.
As to the capital murder counts, during the sentencing (eligibility) phase, the
government will be seeking to prove that Mr. Smith “intentionally participated in an
act, contemplating that the life of a person would be taken or intending that lethal
15 Docket 102; 18 U.S.C. § 1111(a) (requiring premeditation as an element of first-degree
murder).
16 Ninth Circuit Manual of Model Criminal Jury Instructions § 8.107 (2019); accord United States
v. Begay, 673 F.3d 1038, 1042–43, 1046–47 (9th Cir. 2011); see also Jones v. United States,
175 F.3d 544, 549 (9th Cir. 1949) (“To speak of premeditation and deliberation which are
instantaneous, or which take no appreciable time, is a contradiction in terms.”) (quoting Bullock
v. United States, 122 F.2d 213, 213–14 (D.C. Cir. 1941)).
17 Begay, 673 F.3d at 1043; see also United States v. Reza-Ramos, 816 F.3d 1110, 1123–24
(9th Cir. 2016).
18 It is not clear to the Court whether the government’s motion sought to preclude this evidence.
See, e.g., Docket 709 at 2 (“All of the facts concerning the murder, and those involved, will
necessarily be admitted at trial.”).
Case 3:16-cr-00086-SLG Document 927 Filed 08/20/20 Page 5 of 7

Case No. 3:16-cr-00086-SLG-1, United States v. Smith
Order Re Motion in Limine to Preclude Evidence of Civil Lawsuit
Page 6 of 7
force would be used” and “committed the offenses after substantial planning and
premeditation to cause the death of a person.”19 Here again, the Court will not
preclude information regarding Mr. Gross’s conduct at the scene of the homicides,
as it would likely bear on this topic.
When considering the lawsuit as substantive evidence, the Court
distinguishes between the facts underlying the lawsuit and the fact of the lawsuit.
It does not appear that the fact that the lawsuit was filed (or later settled) is itself
relevant as to whether Mr. Smith acted with the necessary mental states. But the
facts underlying the allegations in the lawsuit appear to be relevant to those issues.
And, as noted above, the Court intends to allow evidence and information that is
consistent with the allegations contained in the lawsuit as substantive evidence in
both the guilt and penalty phases of trial, but will not allow legal arguments that
have applicability only in a civil lawsuit. However, as with impeachment, no
evidence has yet been introduced by the government as to the applicable mental
states. Therefore, at this time the Court GRANTS the motion at Docket 709 as it
relates to any reference to the civil lawsuit as substantive evidence, without
prejudice for the defense to raise the issue outside the presence of the jury after
the government has introduced evidence of the requisite mental state.
19 Docket 168 at 2, 3 (government’s notice of intent to seek a sentence of death).
Case 3:16-cr-00086-SLG Document 927 Filed 08/20/20 Page 6 of 7

Case No. 3:16-cr-00086-SLG-1, United States v. Smith
Order Re Motion in Limine to Preclude Evidence of Civil Lawsuit
Page 7 of 7
In light of the foregoing, IT IS ORDERED that the motion at Docket 709 is
GRANTED without prejudice.
DATED this 20th day of August, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 3:16-cr-00086-SLG Document 927 Filed 08/20/20 Page 7 of 7