UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Crim. No. 97-496(JGP) :
John Doe :
:
Defendant. :
______________________________:
MOTION TO PRECLUDE THE GOVERNMENT'S
INTRODUCTION OF DEFENDANT'S PRIOR CONVICTIONS
Defendant, xxxxxxxxxx, through undersigned counsel, respectfully opposes the government's introduction of prior crimes evidence and moves this Honorable Court, pursuant to Federal Rules of Evidence 403 and 404(b), and to his rights to fundamental fairness and to a fair trial embodied in the Fifth and Sixth Amendments to the United States Constitution, for an order precluding the government from using evidence of prior convictions, in the trial of the instant case. A hearing on this motion is respectfully requested, as is a pretrial determination of the motion so that counsel can adequately prepare for trial.
As grounds for this opposition, Mr. J. Doe, through undersigned counsel, states:
1. On December 18, 1997, Mr. J. Doe was charged in a two-count indictment with unlawful possession of a firearm by a convicted felon, and unlawful possession of ammunition by a convicted felon, both violations 18 U.S.C. § 922(g)(1).
2. Police allege that on October 29, 1997, while chasing Mr. J. Doe through 1430 L Street, in Southeast Washington, D.C., Mr. J. Doe was in possession of a pistol which he threw to the floor, and which police recovered.
3. At that time, Mr. J. Doe was in violation of a restraining order to remain away from the premises.
4. Mr. J. Doe was arrested approximately one month later on the charges cited in the indictment.
5. The government's notice indicates that it may adduce evidence of Mr. J. Doe's prior conviction of possession with intent to distribute, and his violation of the restraining order.
ARGUMENT
Federal Rule of Evidence 404(b) carves out an exception to the prohibition on evidence of other crimes or bad acts by an accused if such evidence is relevant to "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." FRE 404(b). The government's notice contends that evidence of (which incident, all??) bears upon Mr. Wilkerson's "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," (pick which one(s)).
Gov't's Notice at p. .
It is axiomatic that before evidence of other bad acts by an accused may be admitted it must be deemed both "relevant to an actual issue in the case, and its probative value must not be outweighed by its unfair prejudice to the defendant." United States v. Vaughn, 601 F.2d 42, 45 (2d Cir. 1979). See also United States v. Mothershed, 859 F.2d 585, 588 (8th Cir. 1988)( reversing conviction for trial court's failure to exclude similar act evidence and acknowledging that "admission of prior bad acts under Fed. R. Evid. 404(b) requires that the evidence be relevant to a material issue, clear and convincing, more probative than prejudicial, and similar in kind and close in time to the crime charged") (footnote omitted); United States v. Foskey, 636 F. 2d 517, 523 (D.C. Cir. 1980)("Despite the inherently damaging nature of bad acts evidence, it may be admissible to show a mterial issue in the case such as motive, opportunity, intent, identity, or absence of mistake or accident"); United States v. Manafzadeh, 592 F.2d 81, 86 (2d Cir. 1979)(reversing conviction for erroneous admission of other crimes evidence and stating that "other-crime evidence may not be received unless it is relevant to an actual issue in the case and unless its probative value on that issue is not outweighed by its unfair prejudice to the defendant").
In Mr.J. Doe's case, the government has not met any prerequisite required by the above decisions. Specific intent is not an issue in this case, and the probative value of the evidence is not greater than its prejudicial impact. On the contrary, the sole reason that the government seeks to introduce evidence of Mr. J. Doe's prior convictions is for the improper purpose of suggesting that if he were convicted of other crimes, then he is, more likely than not, guilty of the instant offense. Therefore, the government is attempting to introduce evidence of distribution and possession of drugs, and a petit larceny, to bolster a charge that Mr. J. Doe prior convictions which involved a petit larceny and drugs.
The Fifth Circuit, in United States v. Yeagin, found that introducing evidence of the accused's prior drug conviction was improper because it "provided direct support for the one inference specifically forbidden by rule 404(b): that because [the accused] had committed prior drug crime in the past, he had a bad cahracter and a propensity to commit such crimes again." 927 F.2d 798, 803 (5th Cir. 1991). In Yeagin, the court rejected the government's "enigmatic" argument that the prior incident were relevant to the accused's knowledge or state of mind and characterized the government's arguments that such evidence was necessary to refute the accused's defense of mere presence as "disingenuous." 927 F.2d at 802.
Similarly, this Court should reject the government's request to introduce any of Mr.J. Doe's prior convictions as totally nonbearing on his instant offense, and highly prejudicial.
Although Mr. J. Doe admits he owned the gun, and that he is, in fact, an ex-felon, the evidence of his prior crimes do not indicate a design or plan that would help to establish Mr. J. Doe's guilt in the instant case. In fact, there is "insufficient similarity" between the prior incidents and the charged incident "for any inference to be drawn regarding the defendant's responsibility for the later acts." United States v. Shackleford, 738 F.2d 776,783 (7th Cir. 1984).
There is nothing about Mr.J. Doe's prior convictions that can lead the Court to conclude that they were a part, or formed any part of a plan, or design related to owning a gun for protection several years later. The only explanation the government can produce for its intention to introduce this evidence must be to prejudice Mr. J. Doe. United States v. James, 555 F.2d 992 (D.C. cir. 1977)(evidence of other crimes is not admissible "to show that, having once fallen into sin, a second slip is more likely. Only one condition is imposed on the proponent of such evidence: 'its probative virtues must outweigh its prejudicial proclivities' in order to satisfy the stricture of Rule 403") (citations omitted).
In weighing the prejudicial impact of his prior convictions against their probative value, the prior convictions for drugs and an attempted petit larceny are facts that are bound to make the evidence more prejudicial than probative of charge of gun possession.
In United States v. Daniels, 770 F.2d 1111 (D.C. Cir. 1985), the D.C. Circuit recognized the prejudicial impact of allowing a jury to learn of the accused's criminal record. Although deciding a severance issue, in language relevant here, the D.C. Circuit explained that
The exclusion of bad acts evidence is founded not on a belief that the evidence is irrelevant, but rather on a fear that juries will tend to give it excessive weight, and on a fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds. . . . That juries treat prior convictions as highly probative has been confirmed by empirical investigations... Such reliance by the trier of fact offends the 'long standing tradition that prot ects a criminal defendan t from "guilt by reputation" and from "unnecessary prejudice"' ...
770 F.2d at 116 (citations omitted).
The Court in Daniels also expressed its extreme skepticism about the "efficacy of jury instructions in curing the prejudice caused by the introduction of other crimes evidence." 770 F.2d at 1118 ("To tell a jury to ignore the defendant's prior convictions in determining whether he or she committed the offense being tried is to ask human beings to act with a measure of dispassion and exactitude well beyond normal capacities . . . and 'the naive assumption that prejudicial effects can be overcome by instructions tot he jury' becomes more clearly than ever 'unmitigated fiction'"). Thus, even an instruction to the jury about the limited use for which the prior convictions might be introduced would not suffice to cure the prejudice and, therefore, the government should not be allowed to introduce evidence of those convictions.
WHEREFORE, for the foregoing reasons, those which may appear in supplemental pleadings, which Mr. J. Doe explicitly reserves the right to file, any which appear at the requested hearing on this matter, and any others this Court deems just and proper, John Doe, through counsel, respectfully requests that the government be precluded from introducing evidence of his prior convictions in the trial of the instant case.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
____________________________
Valencia Rainey
Assistant Federal Public Defender
625 Indiana Ave. NW
Washington, D.C. 20004
(202) 208-7500 extension 102
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Motion To Preclude the Government's Introduction of Defendant's Prior Convictions, has been served upon Leutrell Osborne, II, Assistant United States Attorney, the Office of United States Attorney, 555 Fourth St. N.W., Washington, D.C. 20001 this day of January 1998, by leaving a copy in the box designated for the Office of the United States Attorneyin the Clerk's office of the United States District Court for the District of Columbia.
___________________________
Valencia Rainey