United States District Court, D. Delaware
HONORABLE LEONARD P. STARK, UNITED STATES DISTRICT JUDGE.
Wilmington this 7th day of December,
2017, having considered the government's and
Defendant Latoya Theresa Smith's ("Defendant"
or "Smith") cross-motions in limine
concerning the admissibility of Defendant's
boyfriend's ("Boyfriend") status as a
prohibited person (D.I. 29, 35), IT IS HEREBY
ORDERED that the government's motion seeking to
admit this evidence (D.I. 29) is GRANTED,
and Defendant's motion to exclude the same (D.I. 35) is
Defendant is charged with, among others, two counts of
knowingly making a false statement intended or likely to
deceive a licensed firearms dealer as to a fact material to
the lawfulness of the sale. (See D.I. 38) (Counts
One and Three) The evidence in dispute concerns
Boyfriend's status as a person prohibited from purchasing
or possessing firearms. (See D.I. 29 at 3; D.I. 35
government initially moved in limine to admit
Boyfriend's status under Federal Rule of Evidence 404(b)
as evidence of Defendant's motive and absence of mistake
in falsely stating on two Bureau of Alcohol, Tobacco,
Firearms and Explosives Form 4473s ("Form 4473s")
that Defendant has not been convicted of a crime imprisonable
for more than a year. (See D.I. 29 at 6-9) Although
not alleged in the Superseding Indictment, the government has
indicated that the person for whom it will attempt to prove
Defendant intended to buy the firearm is Boyfriend.
on November 28, 2017, a grand jury returned a Superseding
Indictment, alleging an additional misrepresentation by
Defendant as to Counts One and Three: that Defendant
"represented] that she was the actual buyer of the
firearm, when in fact, as the defendant then knew, she was
attempting to purchase the firearm for another person."
(D.L 38 at 1-2)
the Superseding Indictment was returned, Defendant moved
in limine to exclude any evidence of Boyfriend's
prohibited status as extrinsic, irrelevant, and unfairly
prejudicial. (See D.L 35) The Court heard argument
on the parties' cross-motions on December 5, 2017.
Federal Rule of Evidence 404(b) governs the admissibility of
crimes, wrongs, or other acts. Rule 404(b)(1) prohibits
introduction of such evidence "to prove a person's
character in order to show that on a particular occasion the
person acted in accordance with the character." The
concern is that "evidence of prior bad acts, when
offered only to show the defendant's propensity to commit
the charged crime, " maybe so powerful that it
"'overpersuade[s] [the jury] as to prejudice one
with a bad general record and deny him [or her] a fair
opportunity to defend against a particular charge.'"
United States v. Caldwell, 760 F.3d 267, 275 (3d
Cir. 2014) (citation omitted). However, other acts evidence
"may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident."
acts evidence may be either "intrinsic" or
"extrinsic." See United States v. Green,
617 F.3d 233, 245 (3d. Or. 2010). Intrinsic evidence falls
outside the scope of Rule 404(b), but is limited to "two
narrow categories" of evidence: that which
"'directly proves' the charged offense" and
"'uncharged acts performed contemporaneously with
the charged crime ... if they facilitate the commission of
the charged crime.'" Id. at 245, 248-49
(citation omitted). Extrinsic evidence is analyzed under the
framework of Rule 404(b). See Id. at 245.
pretrial conference, the parties disputed whether Third
Circuit law governing admissibility under Rule 404(b) has
changed in recent years - specifically, whether Rule 404(b)
is a rule of exclusion or inclusion. The Court ordered letter
briefing on this issue, which the parties submitted.
(See D.I. 40, 42)
the Court does not believe the law has changed, "let us
be clear: Rule 404(b) is a rule of general exclusion, and
carries with it 'no presumption of
admissibility.'" Caldwell, 760 F.3d at 276
(citation omitted). Rule 404(b) requires "evidence of
prior bad acts be excluded -unless the proponent can
demonstrate that the evidence is admissible for a
non-propensity purpose." Id. (emphasis
original). Rule 404(b) is "inclusionary" only in
the sense that Rule 404(b)(2)'s list of non-propensity
purposes is non-exhaustive; that is, other acts evidence
maybe offered for any non-propensity purpose.
See United States v. Repak, 852 F.3d 230, 240-41 (3d
Cir. 2017); see also Caldwell, 760 F.3d at 276.
Thus, "Rule 404(b) is a rule of exclusion, meaning that
it excludes evidence unless the proponent can demonstrate its
admissibility, but it is also 'inclusive' in that it
does not limit the non-propensity purposes for which evidence
can be admitted." Repak, 852 F.3d at 241.
the core of admissibility under 404(b) is satisfaction of the
familiar four-step framework set out in Huddleston v.
United States, 485 U.S. 681, 691-92 (1988). Under that
framework, the proponent of other acts evidence bears the
burden of showing the evidence satisfies "four distinct
steps: (1) the other-acts evidence must be proffered for a
non-propensity purpose; (2) that evidence must be relevant to
the identified non-propensity purpose; (3) its probative
value must not be substantially outweighed by its potential
for causing unfair prejudice to the defendant; and (4) if
requested, the other acts evidence must be accompanied by a
limiting instruction." Repak, 852 F.3d at 241.
Step two is often the most difficult to satisfy, see
United States v. Wilmington Tr. Corp., 2017 WL 4416354,
at *1 (D. Del. Oct. 5, 2017), requiring the proponent to show
how the evidence "fit[s] into 'a chain of inferences
. . . connecting] the evidence to a proper purpose, no link
of which is a forbidden propensity inference, '"
Repak, 852 F.3d at 243 (citation omitted).
"This chain must be articulated with careful precision
because, even when a non-propensity purpose is 'at
issue' in a case, the evidence offered maybe completely
irrelevant to that purpose, or relevant only in an
impermissible way." Id. (citation and
alterations in original omitted).
view of the Superseding Indictment, the government contends
its motion is moot. (See D.I. 34 at 1) The
government argues Boyfriend's prohibited status is now
intrinsic to the offenses charged because his status
"directly proves" Defendant falsely stated on the
Form 4473s that she was the actual buyer of the guns.
(See Id. at 2) Defendant, however, responds that
Boyfriend's status is extrinsic because the government
need not prove Defendant attempted to purchase a firearm for
a person prohibited, just that Defendant was not herself the
actual buyer. (See D.I. 35 at 2-3) Thus, Defendant
contends, Boyfriend's status "is not a necessary
precondition to prove the truthfulness" of
Defendant's statements. (Id. at 3)
contested evidence as to Boyfriend's status is not
intrinsic to the offenses charged. Defendant is charged with
knowingly making a false statement on the Form 4473 s by
indicating that she was not purchasing the firearm for
another person. Intrinsic to that charge is whether she was
purchasing the gun for someone else; who that
someone else is - and any characteristics that other person
may have, including his or her prohibited status - is not.
Thus, the Court agrees with Defendant that Boyfriend's
status does not directly prove Defendant was not the actual
buyer of the firearm and, therefore, is not intrinsic.
However, the Court agrees with the government's original
argument that evidence of Boyfriend's status is
admissible under Rule 404(b) as evidence of Defendant's
motive to lie on the Form 4473 s - and possibly also of her