Opinion
Criminal No. 20-313 (FAB)
2021-07-16
UNITED STATES, Plaintiff, v. Jean Carlos POLACO-HANCE, Defendant.
David Thomas Henek, AUSA Designation, Department of Justice United States Attorney's Office District of Puerto Rico, San Juan, PR, for Plaintiff.
David Thomas Henek, AUSA Designation, Department of Justice United States Attorney's Office District of Puerto Rico, San Juan, PR, for Plaintiff.
MEMORANDUM AND ORDER
BESOSA, District Judge.
The United States moves to admit evidence obtained from defendant Jean Carlos Polaco-Hance ("Polaco")’s cellular phone. (Docket No. 50) For the reasons set forth below, the United States’ motion in limine is GRANTED .
I. Background
On September 10, 2020, law enforcement officers observed Polaco "pull a part of a gun from a bag." Id. at p. 2. After arresting Polaco, the officers recovered a Glock pistol, 111 rounds of ammunition, four high-capacity magazines, a regular-capacity magazine, and two cellular phones from his person "or in the bag he was carrying." Id. The Glock pistol operated as a machinegun, possessing the ability "to shoot more than one round of ammunition, without manual reloading, by a single function of the trigger." (Docket No. 1 at p. 2) Polaco's cellular phone contained photographs and videos depicting "guns that fire rapidly." Id.
Subsequently, a grand jury returned an indictment charging Polaco with being a felon in possession of a firearm (count one), and possessing a machinegun (count two) in violation of 18 U.S.C. sections 922(g)(1) and 922(o), respectively. (Docket No. 1) Polaco is set to stand trial on July 19, 2021. (Docket No. 42)
The United States intends to elicit the photos and videos from Polaco's cellular phone. (Docket No. 50) According to the United States, this evidence demonstrates that Polaco possessed the requisite scienter to sustain a section 922(o) conviction. Id. Polaco maintains, however, that this evidence is inadmissible pursuant to Federal Rule of Evidence 404(b) (" Rule 404(b)"). (Docket No. 75)
II. Federal Rule of Evidence 404(b)
Rule 404(b) prohibits the admission of prior bad acts to establish an individual's character or propensity to commit a crime. Fed. R. Evid. 404(b). This rule permits, however, the admission of prior bad acts "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." United States v. Landry, 631 F.3d 597, 602 (1st Cir. 2011) (citing Fed. R. Evid. 404(b) ); see United States v. Gilbert, 229 F.3d 15, 25 (1st Cir. 2000) (noting that " Rule 404(b) is a rule of inclusion"). The "other purposes" enumerated in Rule 404(b) are "illustrative, not exhaustive." United States v. Rodríguez-Soler, 773 F.3d 289, 297 (1st Cir. 2014) (citation omitted) (affirming admission of 404(b) evidence demonstrating that the defendant "knew some of the conspirators, a non-propensity purpose").
The proponent of Rule 404(b) evidence must satisfy a two-part test. Landry, 631 F.3d at 602. First, "the evidence must have ‘special relevance’ to an issue in the case such as intent or knowledge." United States v. Varoudakis, 233 F.3d 113, 118 (1st Cir. 2000) (internal citations omitted); see, e.g., United States v. Castro-Ward, 323 F. Supp. 3d 304, 306 (D.P.R. 2018) ("Evidence that Castro previously smuggled contraband into federal detention facilities demonstrates both that she knowingly possessed contraband, and intended to conceal cellular phones from BOP officials on July 30, 2016.") (Besosa, J.). Second, "under [ Federal Rule of Evidence 403 ], evidence that is specially relevant may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Varoudakis, 233 F.3d at 119.
"In the Rule 404(b) context, evidence of similar acts is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor." United States v. DeCicco, 370 F.3d 206, 211 (1st Cir. 2004) (citing Huddleston v. United States, 485 U.S. 681, 689-90, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) ). Ultimately, the admission of 404(b) evidence is "committed to the sound discretion of the trial court" and subject to an abuse of discretion standard of review. United States v. Fields, 871 F.2d 188, 196 (1st Cir. 1989) (citation omitted).
III. Discussion
The evidence proffered by the United States is admissible pursuant to Rule 404(b). First, the photos and videos have "special relevance" to this action. To secure a section 922(o) conviction, the United States must prove beyond a reasonable doubt that Polaco knew that the modified Glock pistol "had the characteristics to bring it within the statutory definition of a machinegun." United States v. Tanco-Báez, 942 F.3d 7, 26 (1st Cir. 2019) (quotation omitted). Knowledge "may be established by circumstantial evidence." Id. (quoting Staples v. United States, 511 U.S. 600, 615 n.11, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) ); see United States v. Backer, 362 F.3d 504, 507 (8th Cir. 2004) (affirming conviction for unlawful possession of a machinegun in part because the evidence established that the defendant maintained a collection of firearms). The videos from Polaco's phone include the "sound of quickly firing bullets," consistent with the discharge of an automatic weapon. (Docket No. 50 at p. 5) Moreover, the photos portray a Glock pistol with an external modification, similar to the firearm seized by law enforcement officers. Id. That Polaco viewed videos and photos of automated weapons on his cellular phone prior to the date of arrest is circumstantial evidence that he knowingly possessed a machinegun.
In United States v. Mills, the Eleventh Circuit Court of Appeals affirmed the admission of photographic evidence to prove intent. 767 Fed. Appx. 877, 880 (11th Cir. 2019). Police officers arrested the defendant for being a felon in possession of a firearm. Id. at 879. The defendant's cellular phone contained a "photograph of a man's arm holding a firearm that appeared similar to the one discovered at the time [of the] arrest." Id. The Mills court held that this evidence "was relevant to an issue other than [the defendant's] character." Id. at 879. Indeed, the photo demonstrated that the defendant "had knowledge of this type of firearm." Id. at 880 ; see United States v. Rothwell, Case No. 17-112, 2018 U.S. Dist. LEXIS 242575 at *24 (N.D. Fla. June 18, 2018) (holding that photos from the defendant's cellular phone "clearly were probative of [his] knowledge, intent, and absence of mistake or accident as to the presence of the firearm and marijuana during the charged offenses"). Like the photo in Mills, the evidence seized from Polaco's phone is probative of his intent.
Polaco asserts that the United States failed to "[make] a direct link between [him] and the evidence proffered." (Docket No. 75 at p. 2) The photos and videos were, however, obtained from cellular phones in his possession. (Docket No. 50 at p. 2) He also misconstrues the mens rea element of section 922(o) by providing the following metaphor: "One might have porn and not be an expert in porn." Id. at p. 3. Possession of pornography does, however, suggest knowledge of what constitutes sexually explicit material. The United States need not establish that Polaco is a firearm expert, only that he knowingly possessed a machinegun.
Second, the probative value of the photos and videos substantially outweigh the risk of unfair prejudice. The First Circuit Court of Appeals has emphasized that Rule 403 protects "against unfair prejudice, not against all prejudice." United States v. Whitney, 524 F.3d 134, 141 (1st Cir. 2008) (emphasis added); see also United States v. Bauzó-Santiago, 51 F. Supp. 3d 198, 199 (D.P.R. 2014) ("In balancing the scales of Rule 403, it is important to note that only unfair prejudice is to be avoided, as by design all evidence is meant to be prejudicial") (citation and internal quotation omitted) (Besosa, J.). Pursuant to Rule 403, trial courts possess "considerable latitude in determining whether to admit or exclude evidence." Santos v. Sunrise Medical, 351 F.3d 587, 592 (1st Cir. 2003) (internal citations omitted). When the balance between the probative value and unfair prejudice of contested evidence is close, " Rule 403 tilts the balance in favor of admission." Whitney, 524 F.3d at 141 (internal citations omitted). The probative and prejudicial considerations in this action militate toward admission.
A limiting instruction will mitigate the risk of unfair prejudice to Polaco. See United States v. Richardson, 515 F.3d 74, 83 (1st Cir. 2008) ("[W]e note that the district judge limited any prejudice that might result from admission of other crime evidence by instructing the jury to consider the evidence separately as to each count"); United States v. Baltas, 236 F.3d 27, 34 (1st Cir. 2001) (holding that the appropriate limiting instruction provides an adequate safeguard against evidentiary spillover prejudice). Accordingly, the motion in limine to admit the photos and videos from Polaco's cellular phone is GRANTED .
In a three-sentence paragraph, Polaco moves to exclude this evidence because "no search warrant was provided regarding the extraction of the cell phone." (Docket No. 75 at p. 6) The absence of a search warrant purportedly prevented the Court from "question[ing] the extraction's legality." Id. Polaco could have, but did not, move to suppress the cellular phone extractions. The Court will not entertain a cursory, unsupported implication that the evidence is somehow inadmissible pursuant to the Fourth Amendment of the United States Constitution. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.")
IV. Conclusion
For the reasons set forth above, the United States’ motion to admit prior bad act evidence is GRANTED . (Docket No. 50)