Opinion
No. 03-40055-01-SAC
February 6, 2004
MEMORANDUM AND ORDER
The case comes before the court on the defendant's motion in limine to exclude evidence of his prior drug trafficking conviction in United States District Court Case No. 97-40054 pursuant to Rules 403 and 404(b) of the Federal Rules of Evidence and to exclude any evidence of defendant's prior convictions not involving dishonesty and false statement pursuant to Rule 609. (Dk. 54). As the trial is set to commence on February 6, 2004, the court promptly issues the following as its ruling.
The defendant argues the prior federal drug trafficking conviction is too dissimilar and temporally removed from the charged offense to have meaningful probative value and lacks relevance on the grounds being asserted by the government for admissibility under Rule 404(b), and any probative value to this prior conviction is substantially outweighed by its unfairly prejudicial nature. In response, the government reveals that it will offer two prior felony narcotic convictions, one state and one federal. The state conviction was based on a controlled purchase of crack cocaine from the defendant on February 20, 1997, in Junction City, Kansas. The federal conviction was based on officers' finding 32 individual rocks of crack cocaine in the defendant's mouth when he was arrested in Junction City, Kansas, on July 9, 1997. On the federal charge and conviction, the defendant was incarcerated from August 1997 until September 2002 when his term of federal imprisonment ended and he began serving his three years of supervised released.
Under Fed.R.Evid. 404(b), courts may not admit evidence of "other crimes, wrongs or acts . . . to prove the character of a person in order to show action in conformity therewith." Such evidence is admissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evidence is properly admitted under Rule 404(b) if four requirements are met: (1) the evidence was offered for a proper purpose under Fed.R.Evid. 404(b); (2) the evidence was relevant under Fed.R.Evid. 401; (3) the probative value of the evidence was not substantially outweighed by its potential for unfair prejudice under Fed.R.Evid. 403; and (4) the district court, upon request, instructed the jury pursuant to Fed.R.Evid. 105 to consider the evidence only for the purpose for which it was admitted. See Huddleston v. United States, 485 U.S. 681, 691-92 (1988). "The admissibility of Rule 404(b) evidence will generally be a fact-bound determination, depending to a significant degree on the character of the other evidence admitted at trial, all of which requires a balancing of probative value versus unfair prejudice at trial." United States v. Lawless, 153 F.3d 729, 1998 WL 438662, at *4 (10th Cir. Jul. 15, 1998) (citations omitted), cert. denied, 525 U.S. 1027 (Nov. 30, 1998).
The government must precisely articulate a proper purpose for the evidence, and the trial court must specifically identify the proper purpose for which it is admitted. United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir. 1985), cert. denied, 474 U.S. 1081 (1986). The government contends that the challenged evidence is admissible under Rule 404(b) "to show the defendant's intent in entering into a conspiracy to possess with the intent to distribute crack cocaine with his co-defendant and his knowledge of that conspiracy," to "show the defendant's common plan or scheme to traffic in crack cocaine in the Junction City, Kansas area," "to show the defendant was well connected to the drug trafficking culture in Junction City, Kansas," to "demonstrate the motive for the defendant's presence in Junction City," to "demonstrate a motive for the defendant to possess controlled substances and enter into a conspiracy to obtain them," and to "demonstrate a lack of mistake or accident that he became involved in crimes charged in the indictment." (Dk. 61, pp. 5-7).
Knowledge is at issue when a defendant claims he denies participation in and awareness of a criminal act. The admissibility of prior acts evidence to prove knowledge is based on the inference that a defendant is likely to have gained the requisite criminal knowledge after repeated instances of conduct. 2 Jack B. Weinstein Margaret A. Berger, Weinstein's Federal Evidence, § 404.22[2] (2d ed. 2003). Prior drug involvement may properly be admitted to show motive or intent in a drug trafficking offense. United States v. Sturmoski, 971 F.2d 452, 459 (10th Cir. 1992). Rule 404(b) permits the introduction of other crimes to demonstrate a defendant's "intent to commit a crime by demonstrating a common scheme or plan." United States v. Roberts, 185 F.3d 1125, 1141 (10th Cir. 1999), cert. denied, 529 U.S. 1108 (2000); see United States v. Wacker, 72 F.3d 1453, 1469 (10th Cir. 1995) (similar "other acts" evidence admissible to show longstanding involvement in drug trafficking, which was integral to the charged conspiratorial activity and also showed intent and plan). To prove knowledge, motive, intent and absence of mistake is a proper purpose for admitting 404(b) evidence. The first factor of the Huddleston analysis is met.
With regard to relevance, the second Huddleston factor, the Tenth Circuit has "`noted that prior narcotics involvement is relevant when that conduct is close in time, highly probative, and similar to the activity with which the defendant is charged.'" United States v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000) (quoting United States v. Wilson, 107 F.3d 774, 785 (10th Cir. 1997)), cert. denied, 532 U.S. 1000 (2001). Indeed, "the probative value of evidence of a prior illegal act depends upon the temporal proximity between the prior and charged acts." United States v. Massey, 48 F.3d 1560, 1571 (10th Cir.), cert. denied, 515 U.S. 1167 (1995). The Tenth Circuit has "no absolute rule regarding the number of years that can separate offenses," but the time must be reasonable under the facts and circumstances of the case. Id. at 1571-72 (quotation omitted).
The defendant argues that a span of over five years and eight months separate the prior federal offense and the current charged activities. Indeed, the Tenth Circuit has held that "[f]our to six years transcends our conception of `close in time' as established in Wilson, 107 F.3d at 785." United States v. Becker, 230 F.3d at 1232 (other citations omitted). The defendant's argument, however, overstates the significance of the intervening time, as the defendant was incarcerated for all but six months for the federal conviction and twelve months for the state conviction. See United States v. Alaniz, 148 F.3d 929 (8th Cir.) ("prior conviction was not too remote in time because . . . [defendant] was incarcerated for almost the whole of the intervening period between that conviction and the indictment in this case"), cert. denied, 525 U.S. 1047 (1998); United States v. Genfile, 104 F.3d 356, 1996 WL 705467, at *2 (2nd Cir. 1996) (no abuse of discretion in admitting evidence of a similar crime committed four years before the charged crime, as the defendant had been incarcerated for two of the intervening four years); United States v. Cuch, 842 F.2d 1173, 1178 (10th Cir. 1988) (applied a tolling analysis for the period of incarceration). After factoring in the defendant's intervening incarceration, the court finds that temporal proximity exists between the prior convictions and the charged offenses.
It is true that "`[t]here must be a clear and logical connection between the alleged earlier offense or misconduct and the case being tried.'" United States v. Robinson, 978 F.2d 1554, 1559 (10th Cir. 1992) (quoting United States v. Biswell, 700 F.2d 1310, 1317-18 (10th Cir. 1983)), cert. denied, 507 U.S. 1034 (1993). And the "lack of clear association between the purported purpose for the introduction of the evidence and the act itself renders the past conviction irrelevant, highly prejudicial and inadmissible." Id. The relevance of prior narcotics involvement is evaluated by whether it is close in time and similar to the charged crime. United States v. Conway, 73 F.3d 975, 981 (10th Cir. 1995). Under the relevance prong, the court also must decide whether from the evidence "the jury could reasonably find" — that the defendant committed or participated in the prior narcotics violations — "by a preponderance of the evidence." See Huddleston v. United States, 485 U.S. at 690-91.
The government represents that arresting officers will testify as to the defendant's commission of the prior offenses and subsequent convictions. The government tenders as the logical connection between the offenses to be the defendant's involvement (same person) in the distribution of crack cocaine (same activity) in Junction City, Kansas (same location). The government also points to the similarity in the defendant's efforts at concealing the crack cocaine from law enforcement officers. In the charged offense, the defendant is alleged to have hidden the distribution amount of crack cocaine in the back of a hotel room dresser, and in the prior federal conviction the defendant hid distribution amounts of crack cocaine inside his mouth. As the defendant acknowledges, the critical issues will be the defendant's knowing possession of the crack cocaine and the intent to conspire to possess the crack cocaine. At the time of the charged offense, the defendant was on supervised release for his federal drug trafficking conviction, and this supervision was occurring in Kansas City, Kansas. The defendant was not allowed to travel more than fifty miles without the permission of his supervising probation officer. When he was arrested, the defendant was in Junction City without the permission of his supervising officer. The government argues the prior offenses will be used to show a motive for the defendant being in Junction City, i.e., to traffic crack cocaine in an area where he had a ready market with known sources, distributors and customers and to conspire with others who were similarly engaged in such activities. The government has tendered a sufficient relevance for this 404(b) evidence.
Though relevant and offered for a proper purpose under Rule 404(b), the evidence must still clear the Rule 403 balancing test. "[E]vidence may be excluded 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." Fed.R.Evid. 403. Unfair prejudice within the meaning of Rule 403 "means an undue tendency to suggest decision on an improper basis," commonly an emotional one, wholly apart from the accused's guilt or innocence of the crime charged. United States v. Tan, 254 F.3d 1204, 1211-12 (10th Cir. 2001) (quotation and citation omitted). Exclusion on 403 grounds "is an extraordinary remedy and should be used sparingly." United States v. Rodriguez, 192 F.3d 946, 949 (10th Cir. 1999) (quotation and citation omitted). The parties' briefs do not afford the court with a sufficient factual basis for the court to make an informed and decisive ruling under Rule 403. Moreover, as noted above, this is a fact-bound determination that will depend to a significant degree on the character of the other evidence admitted at trial, all of which must be considered in balancing probative value versus unfair prejudice. For these reasons, the court reserves its ruling under Rule 403 on the admissibility of the government's prior drug trafficking convictions and its ruling on the government's use of the same evidence for impeachment purposes under Rule 609(a). The court is satisfied that an in limine ruling is unnecessary and that timely objections during trial combined with any requested limiting instruction can adequately protect the defendant's concerns for a fair trial.
Rule 609(a) permits the admission of a defendant's prior felony conviction to impeach a testifying defendant if "the probative value of admitting this evidence outweighs its prejudicial effect to the" defendant and mandates the admission if the prior conviction involved dishonesty or false statement.
IT IS THEREFORE ORDERED that the defendant's motion in limine (Dk. 54) is denied.