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United States v. Smith

United States District Court, D. Delaware

December 7, 2017




         At 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")[1] 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 DENIED.

         1. 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 at 1)

         The 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.

         Then, 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)

         After 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.

         2. 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." Fed.R.Evid. 404(b)(2).

         Other 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.

         At the 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)

         While 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.

         Regardless, 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).

         3. In 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)

         4. The 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.

         5. 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 ...

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