Opinion
CRIMINAL ACTION NO. 01-282
April 8, 2003
ORDER AND REASONS
Before the Court are the motions of defendants Johnny Davis and Richard Porter to exclude extrinsic evidence offered by the government under Federal Rule of Evidence 404(b). For the following reasons, the Court DENIES defendants' motions.
Dawrail Givens has not opposed the government's use of 404(b) evidence against him.
I. BACKGROUND
On Sept 5, 2002, the government filed a fifteen-count Second Superseding Indictment for Violations of the Federal Gun Control Act and the Federal Controlled Substances Act against Johnny Davis, Richard Porter, and Dawrail Givens. The indictment charges Davis, Porter, and Givens with conspiracy to distribute heroin in violation of 21 U.S.C. § 841 (a)(1) and 841(b)(1)(A), all in violation.of 21 U.S.C. § 846 (Count One), and conspiracy to distribute heroin using juveniles in violation of 21 U.S.C. § 841 (a)(1) and 861(a)(1) (Count Two). The indictment further charges Davis and Porter with conspiracy to carry firearms in furtherance of the conspiracy in violation of 18 U.S.C. § 924 (o) (Count Three). The indictment charges that the conspiracy began before July 28, 1998 and continued to on or about October 12, 2001.
Davis is also charged with four counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g)(1) and 18 U.S.C. § 924 (a)(2) (Counts Five, Seven, Nine, and Eleven). Lastly, Davis is charged with using a firearm to further the alleged drug trafficking conspiracy in violation of 18 U.S.C. § 924 (c)(1) and, in doing so, causing the deaths of four people in violation of 18 U.S.C. § 924 (j) (Counts Four, Six, Eight, and Ten). Porter is charged along with Davis in Count Ten for using a firearm to further the alleged drug trafficking conspiracy in violation of 18 U.S.C. § 924 (c)(1) and, in doing so, causing the death of a person, Leonard Morgan.
The indictment charges Porter separately with distribution of cocaine base ("crack") (Count Twelve), two counts of being a felon in possession of a firearm (Counts Fourteen and Fifteen), and use of and discharge of a firearm during the commission of drug trafficking crimes, specifically, distribution of crack and conspiracy to posess with intent to distribute heroin, which caused the attempted murder of Shantell Blouin (Count Thirteen). The alleged crimes took place in or around the St. Thomas and Magnolia Housing Projects in New Orleans.
Defendants pleaded not guilty to all charges in the indictment. The government filed a Notice of Intent to Use Extrinsic Evidence and Memorandum in Support to inform the defendants of the prior bad acts that the government proposes to introduce at trial. Davis and Porter oppose the use of these prior acts at trial. The Court heard oral argument on April 1, 2003. Trial is set to begin on April 23, 2003.
The government proposes to introduce the following prior acts of Davis: (1) an April 18, 2001 arrest in the St. Thomas Housing Project, during what appeared to the police to be a drug transaction, for being a felon in possession of a firearm, a .9mm semi-automatic pistol, to which Davis pleaded guilty on August 27, 2001 in the Eastern District of Louisiana; (2) a February 11, 1995 state conviction for possession of cocaine stemming from an incident in the St. Thomas Housing Project in which the police found twenty-seven pieces of crack cocaine and a fully loaded magazine clip for a .9mm weapon on Davis's person, but could not locate the firearm after Davis discarded it while fleeing from the police; and (3) an April 8, 1992 armed robbery committed with nine other gunmen of an establishment in Bridge City, Louisiana, for which Davis was prosecuted as an adult, and to which he pleaded guilty to armed robbery in state court on April 27, 1993.
The government proposes to introduce the following prior acts of Porter: (1) a December 3, 1995 arrest near the St. Thomas Housing Project for possession of crack cocaine when the police found thirty-three pieces of crack cocaine in a bag that Porter was carrying and discarded when he saw the police. Porter pleaded guilty to this offense in state court on April 16, 1996; (2) an April 20, 1990 armed robbery near the Magnolia Housing Development, to which Porter pleaded guilty in state court on December 10, 1990; and (3) an April 20, 1990 armed robbery of another individual in the Magnolia Housing Development, to which Porter pleaded guilty in state court on December 10, 1990.
For all these prior acts, the government intends to elicit testimony from police officers and other witnesses.
II. DISCUSSION
A. Similar Acts
"Similar acts" or "prior acts" evidence is evidence of other crimes, wrongs, or acts that is admissible for certain limited purposes under Rule 404(b) of the Federal Rules of Evidence. Rule 404(b) of the Federal Rules of Evidence provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
FED. R. EVID. 404(b). The Fifth Circuit has established a two-part test for determining the admissibility of 404(b) evidence. See United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920, 59 L.Ed.2d 472, 99 S.Ct. 1244 (1979). First, a trial court must determine that the evidence of the extrinsic offense is relevant to an issue other than the defendant's character. Second, the court must find that the evidence possesses probative value that is not substantially outweighed by undue prejudice. See id. at 911; see also United States v. Williams, 900 F.2d 823, 825-27 (5th Cir. 1990). The Beechum court held that
where the issue addressed is the defendant's intent to commit the offense charged, the relevancy of the extrinsic offense derives from the defendant's indulging himself in the same state of mind in the perpetration of both the extrinsic and charged offenses. The reasoning is that because the defendant had unlawful intent in the extrinsic offense, it is less likely that he had lawful intent in the present offense.Beechum, 582 F.2d at 911.
Here, defendants are charged in two conspiracy counts, one to possess with intent to distribute heroin and another to use, carry, and possess firearms in furtherance of the drug trafficking crime. For each count, the government must prove that the defendant had knowledge of the conspiracy and that he intended to join the conspiracy. See United States v. Peters, 283 F.3d 300, 307 (5th Cir. 2002) (citing United States v. Quiroz-Hernandez, 48 F.3d 858, 866 (5th Cir. 1995)). Davis has pleaded not guilty to these charges. He thereby placed his intent at issue and has not given enforceable pre-trial assurances that he does not dispute intent. In United States v. Roberts, 619 F.2d 379 (5th Cir. 1980), the Fifth Circuit held, "In every conspiracy case . . . a not guilty plea renders the defendant's intent a material issue and imposes a difficult burden on the government. Evidence of such extrinsic offenses as may be probative of a defendant's state of mind is admissible unless he "affirmatively take(s) the issue of intent out of the case.'" Id. (quoting United States v. Williams, 577 F.2d 188 (2d Cir.), cert. denied, 439 U.S. 868, 99 S.Ct. 196 (1978)). The Roberts court reasoned that even if the evidence is unequivocal that the defendant committed a substantive crime, this does not plainly support the conclusion that he agreed and planned with others to do so. See id. at 383. Thus, a defendant's not guilty plea puts the burden on the government to prove conspiratorial intent. See, e.g., United States v. Wilwright, 56 F.3d 586 (5th Cir. 1995); United States v. Gadison, 8 F.3d 186 (5th Cir. 1993). Relying on Beechum, the Roberts court further rejected the argument, accepted in some federal circuits, that the government may be required to await the presentation of the defense's case and offer extrinsic evidence in rebuttal only if the defendant places his intent at issue. See Roberts, 619 F.2d at 382 (quoting Beechum, 582 F.2d at 914 n. 19). Therefore, evidence of Davis's prior drug arrest and conviction is relevant to prove knowledge and intent on the drug conspiracy count, and evidence of his prior possession of a firearm after being convicted of a felony is relevant to prove knowledge and intent on the conspiracy to use and carry firearms in furtherance of a drug trafficking crime count.
In his opposition to the government's notice of intent to use extrinsic evidence, Davis states, "If truth be told, specific intent, knowledge or lack of mistake, are not at issue in this case." (Davis's Br. in Opp'n at 6.) At oral argument, counsel for Davis explained that the defendant contends that he was not the person who did the shootings with which he is charged. This statement does not address the intent issues with respect to the conspiracy counts, nor does it amount to a binding stipulation to remove intent from the case.
Further, the time frame, subject matter, location, and circumstances of Davis's April 18, 2001 arrest in the St. Thomas Housing Project for being a felon in possession of a firearm, to which he pleaded guilty on August 27, 2001, are similar to both conspiracy counts, which heightens its relevance. This evidence is also relevant to the felon in possession charges against Davis in this case. Courts frequently admit extrinsic evidence of firearms arrests and convictions in cases involving firearms charges to prove knowledge of and intent to possess or use the firearm. See, e.g., United States v. Cassell, 292 F.3d 788, 794-95 (D.C. Cir. 2001) (upholding admissibility of two prior gun possessions as relevant to prove knowledge and intent in case charging defendant with being felon in possession of a firearm and possession of a firearm during drug trafficking crime); United States v. Davis, 152 F.3d 772, 779-80 (8th Cir. 1998) (upholding admissibility of prior arrest for possession of a firearm as relevant to prove knowledge, intent, and lack of mistake in case charging defendant with conspiracy to distribute crack cocaine and aiding and abetting the use or carrying of a firearm during a drug trafficking crime).
Davis's arrest for possession with intent to distribute cocaine, stemming from an incident in which the police found twenty-seven pieces of crack cocaine and a fully loaded magazine clip for a .9mm weapon on Davis's person, is likewise relevant to prove Davis's knowledge and intent with regard to the drug conspiracy charge, as well as the charge of conspiracy to carry firearms in furtherance of the drug trafficking conspiracy. See Peters, 283 F.3d at 312-13 (upholding admissibility of testimony about a defendant's past acts of running a crack house and selling crack cocaine as relevant to prove knowledge and intent to sell crack cocaine); United States v. Leal, 74 F.3d 600, 606 (5th Cir. 1996) (upholding admissibility of defendant's past crime of transporting marijuana in case charging defendant with conspiracy to possess with intent to distribute marijuana); United States v. Bermea, 30 F.3d 1539, 1562 (5th Cir. 1994) (citations omitted) (noting that the Fifth Circuit has "frequently held in drug offense cases that evidence of a defendant's extrinsic drug offenses is admissible"); United States v. Duffaut, 2001 WL 428379, *2 (E.D. La. 2001) (finding past pleas and arrests for possession of crack cocaine relevant to current charges of conspiracy to distribute crack and cocaine, possession with intent to distribute crack cocaine, and possession with intent to distribute cocaine); United States v. Parsee, 1997 WL 716940, *3 (E.D. La. 1997) (finding past drug trafficking crimes in marijuana and crack relevant to current charge of conspiracy to possess with intent to distribute cocaine). That the prior act in this case involved crack cocaine, and that the charges against Davis involve heroin, does not render the extrinsic evidence irrelevant. Regardless of the drug involved, evidence of possession of a substantial quantity of drugs along with firearms is relevant to show defendant's intent, knowledge, and absence of mistake in conspiring to possess with intent to distribute drugs. See, e.g., United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996) ("The fact that the offenses involved different narcotics does not unfairly prejudice [defendant] in light of the fact that both offenses involved conspiracy to possess with intent to distribute."); United States v. Devine, 934 F.2d 1325, 1345-46 (5th Cir. 1991) (holding that defendant's prior cocaine dealing was relevant to current charge of conspiracy to manufacture and sell methamphetamine); Parsee, 1997 WL 716940 at *3 (prior dealings in marijuana and crack relevant to current cocaine conspiracy charge).
Lastly, Davis's April 27, 1993 guilty plea in state court to armed robbery based on his participation in an April 8, 1992 armed robbery is relevant. His collaboration with nine others to carry firearms while robbing victims is probative of Davis's intent to conspire to carry firearms to further a drug trafficking conspiracy, as well as of his knowledge of and intent to possess a firearm after being convicted of a felony. See, e.g., Cassell, 292 F.3d at 796; Davis, 152 F.3d at 779-80.
It is true that the Court must consider the temporal relationship between the extrinsic acts and the acts charged in the indictment. As Beechum stated, "The judge should also consider how much time separates the extrinsic and charged offenses: temporal remoteness depreciates the probity of the extrinsic offense." Beechum, 582 F.2d at 915. The Court finds that the lapse of six years between the extrinsic acts of armed robbery and the alleged conspiracy in this case is not too severe to destroy its probative value. The Fifth Circuit has upheld the admissibility of extrinsic evidence more remote from the charged offense than is the case here. See, e.g., Peters, 283 F.3d at 312 (testimony of drug-related crimes committed ten years ago admissible); Broussard, 80 F.3d at 1040 (more than ten-year-old conviction for conspiracy and possession with intent to distribute marijuana admissible); United States v. Rubio-Gonzalez, 674 F.2d 1067, 1075 (5th Cir. 1982) (more than ten-year-old evidence of illegal immigration admissible, especially because it was particularly relevant to show knowledge as well as intent; "to the extent such prior acts are relevant to the matter of knowledge, rather than being relevant only to intent, remoteness may be less of a factor in determining the probative value . . .")
The Court also finds the proffered evidence of Porter's prior acts to be relevant under Fifth Circuit law. Like Davis, Porter has placed his intent at issue by pleading not guilty to the charges against him, and has not given enforceable pre-trial assurances that he does not dispute intent. His conviction based on a December 3, 1995 arrest near the St. Thomas Housing Project for possession of crack cocaine, stemming from an incident in which the police found thirty-three pieces of crack cocaine in a bag-Porter was carrying and discarded when he saw the police, is relevant to prove his knowledge, intent, and absence of mistake with regard to the charges of conspiracy to possess with intent to distribute heroin and distribution of crack. See Peters, 283 F.3d at 312-13; Leal, 74 F.3d at 606; Bermea, 30 F.3d at 1562; Duffaut, 2001 WL 428379 at *2; Parsee, 1997 WL 716940 at *3
Indeed, if Porter's testimony at a recent suppression hearing is any indication of his trial strategy, intent and knowledge will be very much at issue. At the hearing, Porter denied knowledge of how heroin was packaged and knowledge that an apartment he admitted staying at was used by him and his confederates to warehouse the guns and drug paraphernalia found there.
Likewise, Porter's conviction of two armed robberies near the Magnolia Housing Development in 1990 is relevant to prove his knowledge, intent, and absence of mistake with regard to the charges of conspiracy to carry firearms in furtherance of a drug trafficking conspiracy, using a firearm to further the drug trafficking conspiracy, and felon in possession of a firearm. See, e.g., Cassell, 292 F.3d at 796; Davis, 152 F.3d at 779-80. The armed robberies occurred in the same geographic area as the crimes alleged in the indictment in this case. Based on the authorities cited previously, the Court finds that the lapse of eight years between Porter's earlier armed robberies and the firearm and drug conspiracies is not too severe to destroy their probative value.
B. Prejudice
The second prong of the Beech urn test requires the Court to determine under Rule 403 whether the probative value of evidence of extrinsic acts is substantially outweighed by the danger of unfair prejudice to the defendant. The Court finds that the probative value of the extrinsic evidence against Davis and the extrinsic evidence against Porter is great and is not outweighed by undue prejudice. See, e.g., Cassell, 292 F.3d at 796 ("We acknowledge that evidence of prior gun possessions may be prejudicial in a subsequent trial for gun possession . . . Nonetheless, this does not suggest that such evidence has an automatic unfair and substantial prejudicial effect on the jury."); United States v. Leahy, 82 F.3d 624, 637 (5th Cir. 1996) (citation omitted) ("[W]hile some danger of prejudice is always present, exclusion of extrinsic evidence based on its prejudicial effect "should occur only sparingly'"); Wilwright, 56 F.3d at 589 (holding that evidence of defendant's participation in prior drug sales was not unduly prejudicial). None of the extrinsic evidence in this case is of a "heinous nature" that would "incite the jury to irrational decision by its force on human emotion." Beechum, 582 F.2d at 917. Further, the Court finds under Rule 403 that none of evidence is likely to confuse the issues, mislead the jury, cause undue delay, or waste time. Lastly, the Court will give proper limiting instructions to the jury to ensure that the evidence will not unfairly prejudice Davis or Porter. See, e.g., United States v. Bailey, 111 F.3d 1229, 1234 (5th Cir. 1997)
III. CONCLUSION
For the foregoing reasons, defendants' motions to exclude Rule 404(b) evidence are DENIED.