USA v. Spayd

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JESSICA JOYCE SPAYD,
Defendant.
Case No. 3:19-cr-0111-JMK
ORDER RE PENDING
MOTIONS IN LIMINE
In anticipation of trial, the United States of America (“the Government”)
filed seven motions in limine (“MIL”).1 	Defendant Jessica Spayd filed limited or full
oppositions to three of the Government’s MILs.2 Ms. Spayd also filed seven MILs.3 The
Government filed limited or full oppositions to five of Ms. Spayd’s MILs.4 	This Order
addresses five of the Government’s MILs and all seven of Ms. Spayd’s MILs. 	The
remainder of the Government’s MILs will be addressed in a separate Order or at the Final
Pretrial 	Conference, 	currently 	scheduled 	for 	Wednesday, 	September 	21, 	2022, 	at
12:00 p.m. in Anchorage Courtroom 3.
1 Docket 183; Docket 185; Docket 186; Docket 193; Docket 200; Docket 210; Docket 211.
2 Docket 227; Docket 228; Docket 229; Docket 234; Docket 235.
3 Docket 212; Docket 213; Docket 214; Docket 215; Docket 216; Docket 217; Docket 218.
4 Docket 220; Docket 221; Docket 223; Docket 224; Docket 225.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 1 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 2
I. 	LEGAL STANDARD
A. 	Motion in Limine
Motions in limine are a “procedural mechanism to limit in advance testimony
or evidence in a particular area.”5 	District courts have the power to rule on motions in
limine pursuant to their “inherent authority to manage the course of trials.”6 However, “a
ruling on a motion in limine is essentially a preliminary opinion that falls entirely within
the discretion of the district court.”7 A ruling on a motion in limine therefore is not binding
on the district court, which may “change its ruling at trial because testimony may bring
facts to the district court’s attention that it did not anticipate at the time of its initial ruling.”8
To exclude evidence on a motion in limine, the evidence must be “clearly inadmissible on
all potential grounds.”9 	“Unless evidence meets this high standard, evidentiary rulings
should be deferred until trial so that questions of foundation, relevancy and potential
prejudice may be resolved in proper context.”10 	Further, motions in limine that seek the
exclusion or inclusion of “broad and unspecific categories of evidence . . . are generally
disfavored.”11
5 United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009).
6 Luce v. United States, 469 U.S. 38, 41 n.4 (1984).
7 City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1070 (9th Cir. 2017) (quoting United
States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999)).
8 Id.
9 See, e.g., Swan v. United States, No. 3:15-cv-0012 JWS, 2016 WL 7030426, at *1 (D. Alaska
Dec. 1, 2016) (quoting Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004)).
10 See, e.g., id. (quoting Hawthorne Partners v. AT&T Tech., Inc., 831 F. Supp. 1398, 1400 (N.D.
Ill. 1993)); United States v. Bairamas, No. 3:10-cr-00103-TMB-JDR, 2011 WL 13141476, at *1 (D. Alaska
June 28, 2011).
11 Jackson v. Cnty. of San Bernardino, 194 F. Supp. 3d 1004, 1008 (C.D. Cal. 2016).
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 2 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 3
B. 	Federal Rules of Evidence
Below, the Court lays out the Federal Rules of Evidence that are most
relevant to the parties’ pending MILs.
(1) 	Rule 403
Pursuant to Federal Rule of Evidence 403, a district court has discretion to
exclude relevant evidence “if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.”12 	“Unfair
prejudice’ is an ‘undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.’”13
(2) 	Rule 404
Federal Rule of Evidence 404(b)(1) provides: 	“[e]vidence of any other
crime, wrong, or act is not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the character.” 	However,
under Rule 404(b)(2) “[t]his evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” “Other act” evidence will be admitted under Rule 404(b)(2)
if:
(1) the evidence tends to prove a material point; (2) the other
act is not too remote in time; (3) the evidence is sufficient to
support a finding that defendant committed the other act; and
12 United States v. Anderson, 741 F.3d 938, 950 (9th Cir. 2013) (quoting United States v. Waters,
627 F.3d 345, 353 (9th Cir. 2010)); see also Fed. R. Evid. 403.
13 Anderson, 741 F.3d at 950 (quoting United States v. Hankey, 203 F.3d 1160, 1172 (9th Cir.
2000)).
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 3 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 4
(4) in cases where knowledge or intent are at issue, the act is
similar to the offense charged.14
Where the “other act” evidence a party seeks to introduce is “inextricably
intertwined” with the crime charged in the indictment, the evidence is admissible
irrespective of Rule 404(b).15 	Evidence is “inextricably intertwined” when it is (1) “part
of the transaction that serves as the basis for the criminal charge” or (2) when it is
“necessary to permit the prosecutor to offer a coherent and comprehensible story regarding
the commission of the crime.”16
II. 	DISCUSSION
A. 	The Government’s MILs
(1) 	Motion in limine to preclude evidence of specific acts of good conduct
At Docket 186, the Government moves to preclude Ms. Spayd from offering
any evidence at trial “of specific acts of her own good conduct, including any legitimate
medical services she may have performed at Eagle River Wellness . . . or other legitimate
medical jobs she may have held.”17 	The Government argues this evidence constitutes
inadmissible character evidence and its probative value is substantially outweighed by
unfair prejudice.18 Ms. Spayd opposes the Government’s MIL, arguing that specific acts
14 United States v. Sathre, No. 3:20-cr-00043-SLG, 2022 WL 889285, at *2 (D. Alaska Mar. 25,
2022) (quoting United States v. Lague, 971 F.3d 1032, 1038, n.5 (9th Cir. 2020)).
15 United States v. Rizk, 660 F.3d 1125, 1131 (9th Cir. 2011).
16 United States v. Anderson, 741 F.3d 938, 949 (9th Cir. 2013) (quoting United States v. Dorsey,
677 F.3d 944, 951 (9th Cir. 2012)).
17 Docket 186 at 1–2.
18 Id. at 2.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 4 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 5
of Ms. Spayd providing legitimate medical care is not character evidence prohibited by
Rules 404(a) and 405, and is evidence that is directly relevant to her state of mind.19
Generally, “[a] defendant cannot establish his [or her] innocence of crime by
showing that he [or she] did not commit similar crimes on other occasions.”20 Therefore,
if Ms. Spayd seeks to introduce evidence of specific acts of good conduct for propensity
purposes, the Court will exclude it.21 However, there are several non-propensity grounds
upon which this evidence may be admissible. Ms. Spayd’s legitimate medical services or
related “good acts” may be admissible under a reverse Rule 404(b)(2) theory, as they are
relevant to Ms. Spayd’s intent and knowledge.22 Further, evidence of a defendant’s prior
“good acts” may be relevant where it is alleged that the defendant engaged in continuing
“bad acts,” “or where such ‘good acts’ would undermine the underlying theory of
prosecution.”23 	The Government has acknowledged in its MILs that Count 10 of the
Superseding Indictment, which charges Ms. Spayd with maintaining a drug-involved
premises in violation of 21 U.S.C. § 856(a)(1), alleges continuous criminal conduct during
19 Docket 227 at 2–4.
20 United States v. Glazer, 850 F. App’x 488, 492 (9th Cir. 2021) (quoting Herzog v. United States,
226 F.2d 561, 565 (9th Cir. 1955)).
21 Ms. Spayd has not expressed any inclination to offer evidence in this way. See Docket 227 at
2–4. 22 See United States v. Akers, No. 7:19-CR-7-REW-EBA, 2019 WL 4934948, at *6 (E.D. Ky.
Oct. 7, 2019) (“However . . . evidence of patient management and prescribing conduct—with respect to the
patients underlying the Government’s theory of the conspiracy, during the charged timeframe, and in the
at-issue non-medical settings—could, potentially, be probative of Defendants’ overall course of practice
and prescribing intent.”); see also United States v. Frantz, No. I:19CR0489-1, 2021 WL 3419488, at *7
(N.D. Ohio Aug. 5, 2021).
23 United States v. James, No. 19-CR-0382 (JS), 2022 WL 2106268, at *6 (E.D.N.Y. June 10,
2022); see also United States v. Hills, No. 1:16CR329, 2018 WL 3120637, at *3 (N.D. Ohio June 24, 2018)
(evidence of prior good acts “may be probative, however, where a defendant is alleged to have ‘always’ or
‘continuously’ committed the acts alleged.”).
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 5 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 6
the relevant timeframe.24 Specific acts of Ms. Spayd’s good conduct therefore is relevant
to rebut the proposition that Ms. Spayd maintained her practice for the purpose of illegally
distributing drugs. The Government may not seek to introduce prior bad act evidence with
the argument that it tends to prove the continuous nature of Count 10, while simultaneously
seeking to preclude Ms. Spayd from offering prior good act evidence to undermine this
theory of guilt.
Notwithstanding, the defense has not proffered any specific “good acts”
evidence it intends to present at trial. 	Without knowing the form this evidence will take,
or the purpose for which it is offered, the Court cannot definitively rule on its admissibility.
The Court declines to preclude a broad category of potentially probative evidence in a
vacuum. 	Accordingly, the Government’s MIL at Docket 186 is DENIED WITHOUT
PREJUDICE to renew at trial.
(2) 	Motion in limine to admit victim photographs
At Docket 193, the Government moves for an order permitting it to admit
photographs of the deceased patients listed in Counts 1–5 of the Superseding Indictment.25
The Government contends these photographs, which include “several clinical photographs
taken where the victims were found, and of the victims at the coroner’s office, where they
are lying flat on an examination table” are highly probative of the patients’ cause of death.26
The Government asserts that the pictures will allow the Government to “present to the jury
24 See Docket 200 at 3 (asserting that patient files for patients not identified in the Superseding
Indictment are relevant to Count 10 due to its continuous nature).
25 Docket 193 at 1.
26 Id. at 2.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 6 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 7
a more complete, visual picture of events as opposed to relatively vague testimony” and
the jury may expect to see photographs of the deceased and could hold the absence of such
photographs against the Government.27 	Ms. Spayd did not respond to the Government’s
motion.
First, the Court is not convinced that a jury will expect to see photographs of
the deceased in this case—alleging illegal overprescribing—to the same extent they might
in a case involving a violent crime.28 Second, the Court cannot assess the probative value
of the photographs outside the context of trial. 	It is not clear to the Court at this time
whether the photographs will add anything to anticipated testimony regarding the patients’
cause of death and the physical indicators of an overdose. Further, the photographs have a
high potential for unfair prejudice, as they are likely to evoke an emotional reaction from
the jury. 	The Court will not rule on this issue until it can conduct a Rule 403 balancing
analysis 	in 	the 	context 	of 	the 	trial 	and 	the 	evidence 	already 	presented 	therein.29
Accordingly, the Government’s MIL at Docket 193 is DENIED WITHOUT PREJUDICE
to renew at trial outside the presence of the jury. 	Finally, the Court notes that the
photographs depict widely divergent scenes and, if they have probative value, that
probative value will not be consistent across all of the photographs. 	Should the
27 Id. at 3.
28 See Gonzalez v. DeTella, 127 F.3d 619, 621 (7th Cir. 1997).
29 See Tucker v. Las Vegas Metro. Police Dep’t, No. 2:05-cv-01216-LDG, 2012 WL 5378143, at
*1 (D. Nev. Oct. 30, 2012).
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 7 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 8
Government renew this request during trial, the Court will expect it to argue that the
Rule 403 balancing analysis favors admission for each photograph.30
(3) 	Motion in limine to admit patient files and prescription drug monitoring
program (“PDMP”) data
At Docket 200, the Government seeks an order to admit (1) Ms. Spayd’s
patient files, including for those patients not identified in the Superseding Indictment, and
(2) PDMP data from 2014 to 2019 and summaries of that data.31 The Government argues
(1) that the entire patient files for the patients identified in the Superseding Indictment are
relevant to the issue of whether Ms. Spayd’s was prescribing controlled substances outside
the course of usual professional practice and without a legitimate medical purpose; (2) the
patient files of patients not identified in the Superseding Indictment are relevant to
Count 10; and (3) the PDMP data is highly probative of each count in the Superseding
Indictment.32 	The Government provided the Court with a signed declaration from the
PDMP Program Manager for the State of Alaska for the purposes of Federal Rules of
Evidence 803(6) and 902.33 Ms. Spayd did not respond to the Government’s motion.
The patient files of those patients identified in the Superseding Indictment
are relevant and probative of the issue of whether Ms. Spayd wrote these patients
prescriptions outside the scope of course of usual professional practice and without a
30 See United States v. Mitchell, 502 F.3d 931, 968 (9th Cir. 2007) (“The district court
painstakingly scrutinized graphic photographs offered by the government, making refined judgments about
which should be received into evidence, and how they should be cropped or displayed to minimize
prejudicial impact.”).
31 Docket 200 at 1–2.
32 Id. at 2–8.
33 Docket 200-1.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 8 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 9
legitimate 	medical 	purpose.34 	The 	patient 	files 	for 	patients 	not 	identified 	in 	the
Superseding Indictment are relevant because the Ninth Circuit has ruled that “practice-
wide evidence,” including uncharged prescriptions, is probative of unlawful intent in 21
U.S.C. § 841(a) prosecutions.35 	This practice-wide evidence, to the extent it constitutes
“other act” evidence, therefore may be properly admitted under Rule 404(b)(2), as it is
probative of intent and knowledge, it appears it is not too remote in time from the charges
in the Superseding Indictment, there likely is sufficient evidence that Ms. Spayd wrote
these prescriptions, and these “other acts” are similar to the crimes charged.36
The patient files for patients not identified in the Superseding Indictment are
also relevant to Count 10, which alleges that, from 2014 to 2019, Eagle River Pain &
Wellness, LLC, was maintained for the purpose of distributing controlled substances
outside the usual course of professional practice and without a legitimate medical
purpose.37 Evidence from Ms. Spayd’s other patient files falls outside of Rule 404 because
it is inextricably intertwined with the drug-involved premises charge as it is relevant to
whether the illegal distribution of controlled substances was one of the primary or principal
purposes for which Ms. Spayd’s practice was maintained.38 	For the same reasons, the
34 See United States v. Kraynak, No. 4:17-CR-00403, 2022 WL 3161907, at *8 (M.D. Pa. Aug. 8,
2022) (“The evidence of Kraynak’s abusive prescription habits, along with the massive deficiencies in the
patient records, strongly supports the conclusion that Kraynak’s prescriptions to the victims identified in
Counts One through Twelve of the indictment were not issued in the usual course of professional practice
or with a legitimate medical purpose.”).
35 United States v. Lague, 971 F.3d 1032, 1040 (9th Cir. 2020).
36 Id. at 1038.
37 Docket 87 at 6.
38 See United States v. Nasher-Alneam, 399 F. Supp. 3d 561, 568 (S.D.W. Va. 2019) (collecting
cases and noting “overall practice evidence of the type the government seeks to introduce herein is widely
use in prosecutions involving medical establishments under 21 U.S.C. § 856); United States v. Li, No. 3:16-
CR-0194, 2019 WL 1126093, at *11 (M.D. Pa. Mar. 12, 2019).
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 9 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 10
PDMP data is relevant and intrinsic to Count 10. The PDMP data also is highly probative
of the other counts in the Superseding Indictment because it reveals the type and frequency
of Ms. Spayd’s prescriptions of controlled substances and is the type of “red flag” evidence
that is probative of a prescriber’s knowledge and intent.39 	PDMP data, or summaries
thereof, is regularly admitted in § 841 prosecutions concerning medical professionals.40
Despite the relevance of this evidence, and the fact that it appears to fall
within the hearsay exceptions listed by the Government, the Court cannot rule on this broad
set of evidence without first seeing it.41 The Court cannot conduct a proper Rule 404(b)(2)
or Rule 403 analysis without previewing the evidence at issue. The Government’s MIL at
Docket 200 is therefore DENIED WITHOUT PREJUDICE to renew at trial. 	The Court
directs the parties to meet and confer regarding the patient files and PDMP data.42 	If a
39 Lague, 971 F.3d at 1040 (“[W]e hold that uncharged prescriptions of controlled substances in
enormous quantities, and in dangerous combinations, support a reasonable inference that the underlying
prescriptions were issued outside the usual course of professional practice and without a legitimate medical
purpose. Lague’s practice-wide evidence was therefore probative of his unlawful intent, undermining his
defense at trial that the charged prescriptions amounted to “a few bad judgments.”).
40 See United States v. Ifediba, No. 20-13218, 2022 WL 3652680, at *15 (11th Cir. Aug. 25, 2022);
United States v. Gayden, 977 F.3d 1146, 1151 (11th Cir. 2020); Lague, 971 F.3d 1032, at 1037; United
States v. Merrill, 513 F.3d 1293, 1300 (11th Cir. 2008); United States v. Kraynak, 553 F. Supp. 3d 245, 252
(M.D. Pa. 2021); United States v. Li, No. 3:16-CR-0194, 2019 WL 1126093, at *11 (M.D. Pa. Mar. 12,
2019). 41 See Lague, 971 F.3d 1032, at 1040 (“We assume, without deciding, that the district court abused
its discretion by failing to preview all of the prescription data before granting the government’s motion in
limine.”); United States v. Curtin, 489 F.3d 935, 958 (9th Cir. 2007) (“In this light, we hold as a matter of
law that a court does not properly exercise its balancing discretion under Rule 403 when it fails to place on
the scales and personally examine and evaluate all that it must weigh. Relying only on the descriptions of
adversary counsel is insufficient to ensure that a defendant receives the due process and fair trial to which
he is entitled under our Constitution, as this case demonstrates. One cannot evaluate in a Rule 403 context
what one has not seen or read.”).
42 The Court also notes that, in the Government’s trial brief, the Government stated that it will
provide the medical record and PDMP summary charts to the defense prior to trial. See Docket 182 at 37.
If these charts have not yet been provided to the defense, the Court orders that the Government do so in this
meet and confer.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 10 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 11
stipulation concerning its reliability and admissibility cannot be reached, the parties are
directed to submit a joint statement describing the specific evidentiary disputes surrounding
this evidence, including examples of the relevant exhibits. 	Further, to the extent this
evidence is considered “other act” evidence under Rule 404(b)(2), the Court will consider
giving the jury a limiting instruction that is specific to this type of evidence.
(4) 	Motion in limine to admit evidence of uncharged patient deaths
At Docket 210, the Government moves for an order to admit evidence
regarding patient deaths not specifically alleged in First Superseding Indictment.43 	The
Government argues this evidence of uncharged patient deaths is inextricably intertwined
with Count 10 and is separately admissible under Rule 404(b).44 Ms. Spayd responds that
this evidence is unduly prejudicial because (1) some deceased patient evidence is
irrelevant, as those patients were not patients of Ms. Spayd’s at the time of their death;
(2) certain patient deaths were unaccompanied by a medical examiner’s report, without
which Ms. Spayd has no means to examine if the prescriptions were the cause of their
death; (3) certain patients died from causes unrelated to prescriptions, such as self-inflicted
gunshot wounds; and (4) there is no statistical context provided for this evidence.45
The Court concludes that certain evidence of uncharged deaths likely falls
under Rule 404(b)(2) because evidence that Ms. Spayd knew patients were dying at a
certain rate is probative of her knowledge and intent that she was acting outside the scope
43 Docket 210 at 1.
44 Id. at 2.
45 Docket 235 at 2.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 11 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 12
of professional practice and without a legitimate medical purpose. The uncharged deaths
the Government seeks to present occurred contemporaneously with, and are similar in
nature to, the crimes charged in the Superseding Indictment.46 Uncharged death evidence
is likely separately admissible because they are inextricably intertwined with Count 10
because they constitute direct evidence that, from 2014 to 2019, Ms. Spayd knowingly
maintained her practice with the primary purpose of illegally distributing controlled
substances. Courts have admitted evidence of uncharged patient deaths in similar cases.47
Nevertheless, evidence of other, uncharged patient deaths has the potential
to be significantly prejudicial and confusing to the jury, especially where, as here, the
Superseding Indictment charges Ms. Spayd with causing the deaths of certain patients
identified in Counts 1–5.48 The Ninth Circuit has commented that use of uncharged patient
death evidence was “troubling” in a case where the cause of one of the deaths was cancer,
not drug abuse.49 The Ninth Circuit stated that “although some of the patient deaths could
have been relevant to prove intent, knowledge, and absence of mistakes . . . [certain]
testimony—accompanied 	by 	photographs—of 	the 	people 	whose 	lives 	were 	ruined,
46 See Docket 210 at 8.
47 See United States v. Schwartz, 702 F. App’x 748, 756 (10th Cir. 2017) (holding admission of
evidence of deceased patients was inextricably intertwined with the charged offenses and was properly
admitted); United States v. Bourlier, 518 F. App’x 848, 856 (11th Cir. 2013) (holding that district court did
not abuse its discretion by finding that any unfair prejudice did not substantially outweigh the probative
value of uncharged patient death evidence because the jury received limiting instructions and there was
undisputed testimony that other factors besides the drugs prescribed contributed to each death); United
States v. Frantz, No. 19CR0489-1, 2021 WL 3419488, at *2 (N.D. Ohio Aug. 5, 2021) (allowing evidence
of uncharged patient death).
48 United States v. Kostenko, No. 5:16-cr-00221, 2017 WL 1395500, at *2 (S.D.W. Va. Apr. 17,
2017) (granting motion in limine to exclude evidence of uncharged patient deaths, finding the potential for
unfair prejudice and confusion substantially outweighs the probative value of the uncharged patient deaths).
49 United States v. Diaz, 717 F. App’x 684, 687 (9th Cir. 2017).
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 12 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 13
allegedly by the easy access to drugs facilitated by [the defendant], was of ‘extremely
limited’ probative value.”50 Finally, because the Court has not previewed this evidence, it
has no means with which to accurately and definitively conduct a Rule 403 balancing
analysis. 	Accordingly, the Government’s MIL at Docket 210 is DENIED WITHOUT
PREJUDICE to renew at trial. Without ruling on its admissibility, the Court will, however,
establish parameters for this evidence should the Government seek to admit it during trial:
evidence 	of 	uncharged 	patient 	deaths 	will be 	limited 	to those 	patients 	who were
Ms. Spayd’s patients at the time of their death and for whom there is a medical examiner’s
report. The Government is precluded from offering evidence of patient deaths whose cause
of death clearly is unrelated to controlled substances, i.e., those who suffered gunshot
wounds. 	Finally, should this evidence be admitted, Ms. Spayd is entitled to a specific
limiting instruction to blunt the potential prejudicial effect of such evidence.51
(5) 	Motion in limine re mental defect and intoxication evidence
At Docket 211, the Government moves for an order (1) excluding evidence,
argument, or jury instruction regarding a mental defect, including bipolar disorder; and
50 Id.
51 United States v. Hofstetter, No. 3:15-CR-27-TAV-DCP, 2019 WL 6718489, at *6 (E.D. Tenn.
Dec. 9, 2019). 	). 	The Court in Hofstetter proposed the following limiting instruction, which has been
adapted to this case. 	The parties are invited to consider and comment on for use in this case: 	The
Superseding Indictment charges the defendant with causing the overdose deaths of specific patients. Those
are what I will refer to as “charged deaths.” You will receive more instructions with respect to determining
culpability for charged deaths. In addition to evidence of charged deaths, the government may introduce
evidence of other patients’ deaths, deaths which are not charged in the indictment. Those are what I will
refer to as “uncharged deaths.” The defendant is not charged with the deaths of such patients. Accordingly,
you may only consider evidence of uncharged patient deaths to determine whether the defendant knowingly
or intentionally prescribed controlled substances in an unauthorized manner and whether the defendant
knowingly maintained a place for the purpose of knowingly or intentionally prescribing controlled
substances in an unauthorized manner.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 13 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 14
(2) excluding argument that Ms. Spayd’s substance abuse negatively impacted her ability
to form the specific intent to commit the crimes charged in the Superseding Indictment.52
Ms. Spayd did not respond to this motion. 	However, Ms. Spayd filed a similar MIL,
seeking to preclude the Government from introducing evidence regarding her mental health
because Ms. Spayd’s mental health “is not at issue in this case.”53 Because Ms. Spayd has
not provided notice of a defense of insanity or a notice indicating she intends to introduce
expert evidence relating to a mental disease or defect,54 and because both parties agree
evidence regarding a mental disease or defect is irrelevant, the Government’s MIL at
Docket 211 is GRANTED IN PART. Evidence, argument, or jury instruction regarding a
mental defect, including bipolar disorder, is excluded.
The Government also argues that Ms. Spayd should be precluded from
arguing that being under the influence of a substance negated her specific intent to commit
the crimes charged.55 The Government discloses that it intends to introduce some evidence
of Ms. Spayd’s substance abuse for its own purposes, but that such evidence cannot be
used by Ms. Spayd to argue she lacked the requisite specific intent because (1) Ms. Spayd
will be unable to establish sufficient evidence that she was intoxicated “at all relevant
times” and (2) intoxication did not preclude her from forming specific intent.56 Based on
the record presently before it, the Court has no means with which to conclude that
52 Docket 211 at 1–2.
53 Docket 217 at 1.
54 See Fed. R. Crim. P. 12.2. For the purposes of this Order, the Court does not include substance
addiction or substance abuse within the definition of mental disease or defect or mental health. Substance
abuse or addiction is addressed separately in the next paragraph.
55 Docket 211 at 8–11.
56 Id. at 8–10.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 14 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 15
Ms. Spayd cannot prove she was intoxicated at the relevant times or this intoxication could
not preclude her from forming the necessary specific intent. The Government essentially
asks the Court to preclude Ms. Spayd from offering voluntary intoxication as a defense
because, from its perspective, she does not have enough evidence to support that defense.
However, it is improper for the Court to weigh evidence or resolve factual disputes on a
MIL.57 	Accordingly, the Government’s MIL at Docket 211 is DENIED IN PART
WITHOUT PREJUDICE to renew at trial as it relates to the use of evidence of Ms. Spayd’s
intoxication to negate specific intent.
B. 	Ms. Spayd’s MILs
(1) 	Motion in limine to exclude government expert
At Docket 212, Ms. Spayd seeks to exclude the testimony of two of the
Government’s proposed expert witnesses, Dr. Timothy Munzing and Dr. Timothy King.58
Ms. Spayd asserts that their testimony is confusing, unfairly prejudicial, and irrelevant in
light of the Supreme Court’s decision in Ruan v. United States, 142 S. Ct. 2370 (2022)
(hereinafter, “Ruan”).59 	Specifically, Ms. Spayd asserts that the Government expert’s
testimony (1) relies on medical malpractice standards to determine liability, which is
improper after Ruan because the Ruan Court “eliminated an objectively reasonable
standard as the basis for liability and instead focused upon a defendant’s subjective intent,”
and (2) the experts improperly opine on Ms. Spayd’s intent.60 The Government responds
57 See, e.g., United States v. Moi, No. 3:19-cr-00112-TMB-SAO-2, 2022 WL 408846, at *2 (D.
Alaska Feb. 10, 2022).
58 Docket 212 at 1.
59 Id. at 1–7.
60 Id. at 3.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 15 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 16
that its experts’ opinions are in line with Ruan and that its experts will not improperly opine
about Ms. Spayd’s mental state.61
Ms. Spayd’s arguments largely are duplicative of those she advanced in her
Motion to Dismiss Indictment, which this Court denied at Docket 208. As this Court noted
in that Opinion, the Ruan Court specifically endorsed the Government’s ability to prove
knowledge of lack of authorization by measuring the reasonableness of a prescriber’s
subjective beliefs against objective criteria.62 In order to do so, the Government must be
allowed to present evidence of that objective criteria. 	Ms. Spayd also argues that lack of
authorization under 21 U.S.C. § 841 is defined as “a type of illicit drug trafficking.”63
However, the Ruan Court specifically stated that “as provided by regulation, a prescription
is only authorized when a doctor issues it ‘for a legitimate medical purpose . . . acting in
the usual course of his professional practice.’”64 Contrary to Ms. Spayd’s assertions, this
standard 	does 	not 	mean 	that 	medical 	professionals 	will 	be 	punished 	for 	medical
malpractice.65 	Rather, pursuant to Ruan, a medical professional will only be held liable
under § 841 if the Government proves beyond a reasonable doubt that they knowingly or
intentionally prescribed medications without a legitimate medical purpose and while acting
outside the usual course of professional practice.66 	To make this determination, the jury
61 Docket 223 at 1–3.
62 Ruan v. United States, 142 S. Ct. 2370, 2382 (2022) (“The Government, of course, can prove
knowledge of a lack of authorization through circumstantial evidence . . . [a]nd the regulation defining the
scope of a doctor’s prescribing authority does so by reference to objective criteria such as ‘legitimate
medical purpose’ and ‘usual course’ of ‘professional practice.’”) (internal citations omitted)).
63 Docket 212 at 4.
64 Ruan, 142 S. Ct. at 2375 (emphasis added).
65 Docket 212 at 6.
66 Ruan, 142 S. Ct. at 2375, 2382 (emphasis added).
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 16 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 17
may hear expert opinion evidence regarding what constitutes a legitimate medical purpose
and the boundaries of the scope of usual professional practice.67 The Government’s experts
therefore may opine that Ms. Spayd’s actions violated a standard of care or certain medical
standards.
The Government’s experts also may opine that Ms. Spayd’s prescriptions
were made with no apparent legitimate medical purpose or outside the course of usual
professional practice—these are objective criteria, not opinions on Ms. Spayd’s mental
state.68 Neither of the Government’s experts have indicated that they intend to opine that
Ms. Spayd possessed the requisite mens rea associated with a § 841 violation, i.e., that she
knowingly or intentionally prescribed medications without a legitimate medical purpose
and outside the course of usual professional practice.69 	The Government’s experts’
opinions therefore do not improperly invade the province of the jury. Ms. Spayd’s MIL at
Docket 212 is DENIED. 	To address Ms. Spayd’s concerns that the jury will assess
67 See United States v. Sun, 673 F. App’x 729, 733 (9th Cir. 2016) (finding “the district court did
not plainly err in allowing expert testimony on the standards of care, including medical regulations,
regarding prescribing controlled substances and treating narcotic addiction because ‘only after assessing
the standards to which medical professionals generally hold themselves is it possible to evaluate whether a
practitioner’s conduct has deviated so far from the ‘usual course of professional practice’ that his actions
become criminal.’”) (citations omitted)); see United States v. Agresti, No. 18-CR-20124-RAR, 2022 WL
2966680, at *3 (S.D. Fla. July 27, 2022) (applying Ruan’s logic to 18 U.S.C. §§ 1347 and 1349 and noting
that “[a]t trial, the jury also heard expert testimony regarding the lack of any medical necessity underlying
Defendant’s extensive testing protocol . . . [t]his evidence is precisely the sort of objective evidence as to
‘legitimate medical purpose and usual course of professional practice’ the Ruan Court tethered to a
defendant’s subjective intent.”); see also United States v. Kraynak, No. 4:17-CR-00403, 2022 WL 3161907,
at *3–4 (M.D. Pa. Aug. 8, 2022) (describing expert testimony relevant to objective criteria for assessing
whether prescriptions were made for medically-legitimate purposes in the usual course of professional
practice).
68 See Ruan, 142 S. Ct. at 2383.
69 See Docket 223 at 2–3.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 17 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 18
Ms. Spayd’s guilt solely on the basis of objective criteria that is untethered to her intent or
knowledge, the Court will consider offering a limiting instruction to the jury on this point.
(2) 	Motion in limine to preclude testimony of USPO
At Docket 213, Ms. Spayd seeks to exclude the testimony of Alexandria
Conaway, a probation and pretrial services officer (“PSO”) for the United States District
Court, District of Alaska.70 	Ms. Conaway supervised Ms. Spayd after Ms. Spayd’s
release.71 As Ms. Conaway did not know Ms. Spayd prior to the initiation of the charges
in the Indictment, Ms. Spayd asserts that “[t]he only testimony Conaway could give would
be related to Ms. Spayd’s conduct on pretrial release.”72 The Government did not respond
to Ms. Spayd’s motion.
18 U.S.C. § 3153(c)(1) provides, “information obtained in the course of
performing pretrial services functions in relation to a particular accused shall be used only
for 	the 	purposes 	of 	a 	bail 	determination 	and 	shall 	otherwise 	be 	confidential.”
Section 3153(c)(3) states that confidential information under that statute “is not admissible
on the issue of guilt in a criminal judicial proceeding unless such proceeding is a
prosecution for a crime committed in the course of obtaining pretrial release or a
prosecution for failure to appear for the criminal judicial proceeding with respect to which
pretrial services were provided.” 	The Ninth Circuit has affirmed a district court’s ruling
excluding the testimony of a PSO where the testimony is confidential information under
70 Docket 213 at 1.
71 Id. at 2.
72 Id.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 18 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 19
18 U.S.C. § 3153(c) and the Government had not shown that an exception under that statute
was applicable.73 The Ninth Circuit reasoned that allowing PSOs to testify regarding the
pretrial services they rendered would thwart the overall purpose of 18 U.S.C. § 3153(c), as
“[p]retrial supervisees and other individuals who provide information to PSOs about those
supervisees would be unlikely to provide candid, complete information.”74 	Here, the
Government has not shown how Ms. Conaway’s testimony would fall outside the scope of
confidential information as defined by § 3153(c)(1) or that any of the exceptions listed in
§ 3153(c)(2) apply. Ms. Spayd’s MIL at Docket 213 is therefore GRANTED.
(3) 	Motion in limine to exclude hearsay
At Docket 214, Ms. Spayd seeks to exclude out-of-court statements about
Ms. Spayd’s prescriptions made by other medical care providers to Ms. Spayd’s former
patients.75 	Ms. Spayd argues these statements are hearsay and their admission would
violate her right to due process, her right of confrontation, and her right to effective
assistance 	of 	counsel.”76 	The 	Government 	responds 	that 	the 	statements 	are
(1) nontestimonial and thus not covered by the Confrontation Clause and (2) admissible to
show the effect on the listener, to place the patients’ statements in context, as present sense
impressions under Federal Rule of Evidence 803(1), as excited utterances under Federal
Rule 	of 	Evidence 	803(2), 	or 	are 	generally 	admissible 	under 	the 	Federal 	Rule 	of
Evidence 807, the residual hearsay exception.77
73 United States v. Santa, 769 F. App’x 450, 452 (9th Cir. 2019).
74 Id. at 453.
75 Docket 214 at 1–2.
76 Id. at 1.
77 Docket 221 at 2.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 19 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 20
The Government has provided three statements of other medical providers
that it intends to introduce through the testimony of their patients.78 First, the Court finds
these statements are not testimonial and therefore do not implicate the Confrontation
Clause. The Supreme Court has held that a “statement cannot fall within the Confrontation
Clause unless its primary purpose was testimonial,” meaning that, in light of all the
circumstances, “the primary purpose of the conversation was ‘to create an out-of-court
substitute for trial testimony.’”79 	Here, there is no indication that the conversations
between patients and their medical providers were conducted for any reason other than to
exchange information about the patient’s health in order to provide treatment. Therefore,
these statements are nontestimonial and the admissibility of these statements “is the
concern of . . . [the] federal rules of evidence, not the Confrontation Clause.”80
Second, the Court has reviewed the three statements provided by the
Government and has determined that the statements are hearsay and must be excluded
under the Federal Rules of Evidence. 	The Government argues these statements are not
offered for their truth, but rather to show the effect on the patients and to explain the
patients’ subsequent actions.81 However, the relevance of these statements to prove those
subsequent actions is minimal and attenuated—the Government argues that many patients
who learned from their new doctors that their prescriptions were excessive stopped using
controlled substances, which leads to the inference that those patients did not require the
78 Docket 222 (sealed).
79 Ohio v. Clark, 576 U.S. 237, 245–46 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 366
(2011)). 80 Id. at 245.
81 Docket 221 at 4–7.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 20 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 21
level of opioids Ms. Spayd was prescribing to them.82 	The Government also argues that
the medical provider’s statements are being offered solely to provide context for the
patients’ own statements, which are admissible under Federal Rule of Evidence 803(4).83
The Government asserts that the Court can protect against the risk of unfair prejudice
through a limiting instruction, instructing the jury to asses these statements only for their
proper, non-truth use.84 However, where, as here, the statements are much more relevant
for their truth than the effect on the listener or for context, the Court does not find that a
limiting instruction will be sufficient to alleviate the risk of unfair prejudice stemming from
the juror’s potential improper use of the statements.85
Further, none of the hearsay exceptions the Government identified apply
here. These statements are not present sense impressions because they do not describe or
explain an event or condition that the medical providers were currently perceiving.86 The
medical providers were simply responding to information they had received from their
patient or their patient’s charts. 	Similarly, none of these statements qualify as excited
utterances. 	The medical providers were not under the stress of excitement caused by a
startling event or condition when they made these statements.87 	While certain medical
82 Id. at 6.
83 Id. at 7.
84 Id.
85 See United States v. Di Rodio, 565 F.2d 573, 576 (9th Cir. 1977); United States v. Reyes, 18
F.3d 65, 70 (2d Cir. 1994) (“[M]ere identification of a relevant non-hearsay use of such evidence is
insufficient to justify its admission if the jury is likely to consider the statement for the truth of what was
stated with significant resultant prejudice. The greater the likelihood of prejudice resulting from the jury’s
misuse of the statement, the greater the justification needed to introduce the “background” evidence for its
non-hearsay uses.”).
86 United States v. Holden, 625 F. App’x 316, 318 (9th Cir. 2014).
87 United States v. Canales-Fuentes, 176 F. App’x 873, 875 (9th Cir. 2006).
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 21 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 22
providers may have been surprised at their patients’ prescriptions from Ms. Spayd, there is
no indication that this news was “sufficiently startling to render normal reflective thought
processes inoperative” or that their comments were spontaneous exclamations and not the
result of reflective thoughts.88
Finally, the Court will not admit these statements under the Federal Rule of
Evidence 807, the residual hearsay exception. Rule 807 allows admission of evidence that
does not fit within a hearsay exception when (1) “the statement is supported by sufficient
guarantees of trustworthiness—after considering the totality of circumstances under which
it was made and evidence, if any, corroborating the statement” and (2) “it is more probative
on the point for which it is offered than any other evidence that the proponent can obtain
through reasonable efforts.”89 The Ninth Circuit has “repeatedly observed the established
rule that Fed. R. Evid. 807 ‘is to be used rarely and in exceptional circumstances.’”90 Here,
the Court cannot find that offering medical practitioner’s statements through their patients
is “more probative than any other evidence that could be obtained through reasonable
efforts.” Testimony from the medical providers themselves is the best available evidence.91
The Government acknowledges that it could “call all of the other medical providers to
testify as fact witnesses,” but this would lengthen the Government’s witness list and
“judicial economy favors admissibility.”92 This is true anytime statements are inadmissible
88 See Boyd v. City of Oakland, 458 F. Supp. 2d 1015, 1026 (N.D. Cal. 2006).
89 Fed. R. Evid. 807(a).
90 United States v. Sumlin, No. 2:18-CR-00473-CAS-1, 2022 WL 1664256, at *9 (C.D. Cal.
May 23, 2022) (quoting Fong v. Am. Airlines, Inc., 626 F.2d 759, 763 (9th Cir. 1980)).
91 Larez v. City of Los Angeles, 946 F.2d 630, 644 (9th Cir. 1991).
92 Docket 221 at 10.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 22 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 23
because they are hearsay and the declarant is available to testify, but the ban on hearsay
applies, nonetheless. 	Accordingly, Ms. Spayd’s MIL at Docket 214 is GRANTED IN
PART with respect to the three statements identified at Docket 222. These statements are
hearsay and must be excluded. Of course, the Government may still call the declarants to
testify as fact witnesses. 	This ruling applies only to the three statements at Docket 222;
regarding other patient statements, the Court cannot broadly preclude a category of
statements without analyzing the statements themselves. Ms. Spayd’s MIL at Docket 214
is therefore DENIED WITHOUT PREJUDICE to renew at trial with respect to all other
patient statements not identified in Docket 222.
(4) 	Motion in limine to preclude bad act evidence
At Docket 215, Ms. Spayd moves the Court to prohibit the Government from
introducing “other bad act, uncharged evidence in violation of F.R.E. 404(b).”93 	If the
Government seeks to introduce such evidence, Ms. Spayd asserts that the Government first
must establish that the proposed evidence falls within an exception under Rule 404(b).94
The Government did not respond.
Ms. Spayd’s MIL at Docket 215 requests that the Court follow the Federal
Rules of Evidence, which it would do anyway. 	Further, the Government has provided
notice of certain “other act” evidence that it wishes to introduce at trial,95 as partially
93 Docket 215 at 1.
94 Id.
95 See Docket 200; Docket 211; Docket 231.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 23 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 24
discussed herein. 	Accordingly, because the Court will follow the Federal Rules of
Evidence, Ms. Spayd’s Motion at Docket 215 is GRANTED.
(5) 	Motion in limine to preclude evidence of client’s license
At Docket 216, Ms. Spayd requests that the Court prohibit the Government
from introducing evidence regarding the status of her medical license.96 Ms. Spayd asserts
that discussion of her license reflects upon her release conditions because she was ordered
not to seek reinstatement of her nursing license or DEA number as part of her Pretrial
Release Conditions.97 	The Government responds in partial opposition, indicating that it
does not intend to elicit evidence regarding the current status of Ms. Spayd’s medical
license, but it does intend to admit evidence that Ms. Spayd voluntarily surrendered both
her medical license and DEA Registration during a non-custodial interview with law
enforcement on October 8, 2019.98 The Government argues the voluntary surrender forms
constitute direct evidence of defendant’s consciousness of guilt and her subjective
knowledge and intent.99
Courts 	regularly 	admit 	evidence 	of 	past 	administrative 	actions 	in
prosecutions involving illegal overprescribing.100 	These previous actions tend to prove
that a prescriber “had notice of relevant medical standards” and it “demonstrates his [or
her] intent or lack of mistake in his [or her] subsequent prescribing practices.101 	This
96 Docket 216 at 1.
97 Id. at 2; Docket 65 at 3.
98 Docket 224 at 1–2.
99 Id. at 2.
100 See United States v. Suetholz, No. CR 21-56-DLB-CJS, 2022 WL 3973255, at *4 (E.D. Ky.
Aug. 30, 2022) (collecting cases).
101 Id. at *5.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 24 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 25
evidence also tends to indicate a “possible continuing pattern of illegal activity” and how
a prescriber’s conduct evolved.102 Here, it is not clear to the Court how evidence regarding
Ms. Spayd’s voluntary surrender of her medical license is probative of her consciousness
of guilt or subjective knowledge or intent when she surrendered her license after the dates
listed in the Superseding Indictment.103 	The Court also notes that the probative value of
Ms. Spayd voluntary surrender to prove intent or knowledge of wrongdoing is minimal—
Ms. Spayd’s actions could be interpreted as an acknowledgement that she was about to be
arrested 	rather 	than 	an 	indication 	that 	she 	knew 	her 	prescribing 	practices 	were
unauthorized. 	With the record currently before it, the Court finds that any minimal
probative value of the circumstances surrounding Ms. Spayd’s voluntary surrender is
substantially outweighed by the risk of unfair prejudice and jury confusion. 	The jury is
likely to view Ms. Spayd’s surrender as an admission of wrongdoing, even if the
Government does not intend to argue this point.104 However, the Court acknowledges that
the Rule 403 balancing for this evidence 	may change during the course of trial.
Accordingly, Ms. Spayd’s MIL at Docket 216 is GRANTED IN PART as it relates to the
current status of her license, evidence of which the Government represents that it does not
intend to introduce, and DENIED WITHOUT PREJUDICE to renew at trial with respect
to Ms. Spayd’s voluntary surrender of her license.
102 Id. at *4.
103 See Docket 10; Docket 87.
104 Docket 224 at 2–3.
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 25 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 26
(6) 	Motion in limine to preclude evidence of client’s mental health
At Docket 217, Ms. Spayd seeks to prohibit the Government from offering
evidence of Ms. Spayd’s mental health.105 	As discussed above, the Government filed a
similar MIL.106 	Because both parties agree this evidence is irrelevant, Ms. Spayd’s MIL
at Docket 217 is GRANTED. Evidence, argument, or jury instruction regarding a mental
defect, including bipolar disorder, is excluded.
(7) 	Motion in limine to preclude use of term victim
At Docket 218, Ms. Spayd seeks to prohibit the use of the term “victim” to
describe the deceased patients in Counts 1–5 of the Superseding Indictment.107 Ms. Spayd
argues that, since it is disputed whether a crime occurred, it is inappropriate for the
Government to refer to the deceased patients as “victims.”108 	The Government responds
that there is nothing inherently prejudicial about the use of the term victim and courts have
widely approved it use in trials.109
Courts have noted that “mere use of the term [“victim”] does not prejudice
Defendant, as it may be a ‘fair comment on the evidence.’”110 	However, “the manner,
context, 	and 	frequency 	in 	which 	the 	term 	is 	used 	transforms 	its 	meaning 	and
connotations.”111 Certain courts have acknowledged that “[t]he frequent or pervasive use
105 Docket 217 at 1.
106 See Docket 211.
107 Docket 218 at 1.
108 Id. at 2.
109 Docket 225 at 2–4.
110 United States v. Perez, No. ED CR 13-00087-(A)-VAP, 2014 WL 12689229, at *9 (C.D. Cal.
May 15, 2014), aff’d, 662 F. App’x 495 (9th Cir. 2016); see also United States v. Gibson, 690 F.2d 697,
703 (9th Cir. 1982).
111 United States v Moffit, No. 2:21-CR-00053-BLW, 2022 WL 656904, at *8 (D. Idaho Mar. 2,
2022).
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 26 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 27
of the term ‘victim’ by the Government during the presentation of its evidence may be
unfairly prejudicial to a defendant where the fact of the commission of a crime is at issue.”
The term “victim” necessarily creates an inference that a crime has been
committed. 	The Court is persuaded that here, where the fact of a commission of a crime
and the cause of death of the decedents is at issue, labeling the deceased patients as
“victims” runs the risk of improperly influencing the jury’s decision and is subversive of
the presumption of innocence.112 	The Court therefore exercises its discretion to prohibit
the use of the term “victim” at Ms. Spayd’s trial. 	Ms. Spayd’s MIL at Docket 218 is
GRANTED. 	The Government is precluded from using the term “victim” to describe the
deceased patients in Counts 1–5 and should instruct its witnesses regarding the same. 	If
the Government refers to the deceased patients as victims during trial, Ms. Spayd is entitled
to a limiting instruction indicating that the Government referring to a patient as a “victim”
is not evidence the patient is in fact a victim or that Ms. Spayd has committed a crime.113
III. 	CONCLUSION
Based on the reasons articulated above, IT IS HEREBY ORDERED THAT:
1. 	The Government’s MIL at Docket 186 is DENIED WITHOUT
PREJUDICE to renew at trial.
112 United States v. Aug., No. EP-21-CR-00912-FM, 2022 WL 780583, at *3 (W.D. Tex. Mar. 10,
2022) (“In the present context, use of the term “victim” creates an inference that Defendant has committed
a crime. As a result, use of the term is likely to improperly color the jury’s decision-making by creating an
assumption that the Government has already proved a core element of its case.”).
113 United States v. James, No. 19-CR-0382(JS), 2022 WL 2106268, at *14 (E.D.N.Y. June 10,
2022); United States v. Tawfik, No. CR 17-20183, 2022 WL 866395, at *7 (E.D. Mich. Mar. 23, 2022).
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 27 of 28

United States v. Spayd 	Case No. 3:19-cr-00111-JMK
Order Re Pending Motions in Limine 	Page 28
2. 	The Government’s MIL at Docket 193 is DENIED WITHOUT
PREJUDICE to renew at trial outside the presence of the jury.
3. 	The Government’s MIL at Docket 200 is DENIED WITHOUT
PREJUDICE to renew at trial.
4. 	The Government’s MIL at Docket 210 is DENIED WITHOUT
PREJUDICE to renew at trial.
5. 	The Government’s MIL at Docket 211 is GRANTED IN PART and
DENIED IN PART WITHOUT PREJUDICE to renew at trial.
6. 	Ms. Spayd’s MIL at Docket 212 is DENIED.
7. 	Ms. Spayd’s MIL at Docket 213 is GRANTED.
8. 	Ms. Spayd’s MIL at Docket 214 is GRANTED IN PART and
DENIED IN PART WITHOUT PREJUDICE to renew at trial.
9. 	Ms. Spayd’s MIL at Docket 215 is GRANTED.
10. 	Ms. Spayd’s MIL at Docket 216 is GRANTED IN PART and
DENIED IN PART WITHOUT PREJUDICE to renew at trial.
11. 	Ms. Spayd’s MIL at Docket 217 is GRANTED.
12. 	Ms. Spayd’s MIL at Docket 218 is GRANTED.
IT IS SO ORDERED this 20th day of September, 2022, at Anchorage,
Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
Case 3:19-cr-00111-MAH-MMS Document 239 Filed 09/20/22 Page 28 of 28