IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES OF AMERICA )

v. ) CR. NO. 97-50-01 (TFH)

xxxxxxxxxxxxx )

DEFENDANT'S TRIAL MEMORANDUM AND MOTION IN LIMINE

REGARDING POTENTIALLY CONTESTED EVIDENTIARY ISSUES

The defendant, Dll⁽¹⁾ Doe, submits this memorandum in order to provide the Court with his legal bases for certain objections that he may make during the trial of this case, and to request that the Court prospectively exclude certain evidence and testimony in order to avoid improper prejudice to Mr. Doe.

BACKGROUND

This case is proceeding to trial on a single charge, possession of a firearm by an individual previously convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). The factual basis for the charge arises from the police officers' claim that on January 21, 1997, they found a Ruger pistol on the front passenger side of an automobile in which they allege Mr. Doe was riding.

In addition to the allegations serving as the basis for the charge in this case, there are a number of other "facts" set forth in the discovery materials and in the testimony of the police officers. For example, it appears that the Ruger was loaded when it was discovered and that there was a magazine for the weapon also found in the car. Although Mr. Doe was originally also charged with possession of that ammunition under section 922(g)(1), the Court required the government to elect between the gun and ammunition count. In addition, during the search of the automobile, the police claim to have found a loaded gun underneath the driver's seat of the automobile. The government alleged that this gun belonged to Mr. Doe's former co-defendant, Edgar Watson. Finally, the police claim to have witnessed a possible drug transaction prior to the search of the automobile. According to the government, shortly before the police searched the yellow Lincoln in which the guns were found, the passenger in that car appeared to purchase drugs from a seller who was under police surveillance. However, no drugs were found by the police on Mr. Doe's or Mr. Watson's person, or in the car.

LEGAL ARGUMENT

Under Federal Rules of Evidence 401, 403 and 404, the government should not be permitted to adduce any testimony or present any evidence regarding the alleged drug transaction, the existence of the gun found under the driver's seat, or the ammunition in the Ruger and in the separate magazine found under the passenger seat.

A. The government has failed to provide the requisite notice of its intention to rely upon other crimes or bad act evidence.

The existence of another gun in the car, the fact that the gun charged to Mr. Doe was loaded, that there was another loaded magazine in the car, or that Mr. Doe may have purchased drugs has no direct relevance to the single charge in this case regarding whether Mr. Doe possessed the pistol. Federal Rule of Evidence 404(b) prohibits the introduction of such other crime or bad act evidence unless it falls into one of the enumerated exceptions. While (as set forth below) the evidence in this case does not fall into any of these exceptions, the government has failed to satisfy the threshold requirement of providing the defense with the requisite notice of its intention to use such evidence. Under Fed. R. Evid. 404(b), "upon request by the accused, the prosecution . . . shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown" of other crimes evidence it intends to introduce. The Advisory Committee Notes to this 1991 amendment to the rules state although no time limits are prescribed by the rule for the notice to be given, the notice requirement is a "condition precedent" to admissibility of 404(b) evidence. The evidence is "inadmissible if the court decides that the notice requirement has not been met." U.S. v. Barnes, 49 F.3d 1144, 1147 (6th Cir. 1995).

In the instant case, the defendant requested notice of "other crimes" evidence in his initial discovery letter, dated February 22, 1997. In the only correspondence from the government addressing potential 404(b) evidence, AUSA Mark Gellar wrote, on February 12, 1997, that the government was not providing notice of Drew evidence "at this time." Therefore, lacking the requisite notice of intention to introduce "other crimes" evidence, and the United States' express statement that they did not know of any Drew evidence on February 12, 1997, Defendant Doe, received no notice of "other crimes" evidence in this case. For that reason, any "other crimes" evidence offered at trial should be excluded.

B. Evidence of a prior alleged drug purchase is not relevant to elements of the offense charged, is unduly prejudicial, and in any case, is not supported by the evidence.

Any alleged evidence of a drug purchase, prior to the arrest of Defendant Doe for felony possession of a firearm, does not meet the relevancy standard under 404(b). See United States v. Moore, 732 F.2d. 983, 987 (D.C. Cir. 1984) (stating that Rule 404(b) sets forth a particularized standard of relevancy). In United States v. Manner the court stated that under 404(b), bad act evidence may be introduced to prove the defendant's "intent" if it "clearly relates logically to the offense charged," which can include whether the acts are "fundamentally similar in nature" and their "closeness in time," 887 F.2d. 317, 321 (D.C. Cir. 1989). In the instant case, the charged conduct's dissimilarity to a drug purchase, and the two alleged acts' remoteness make them irrelevant to each other. The drug purchase occurred at a different time and place than the incident where the gun was recovered, and the gun is not alleged to have been used in the purchase of drugs. Therefore the drug purchase does not "clearly relate" to proving that the defendant knew a gun was in the car, or had the intent to possess it.

Also, although the court recognized the connection between weapons and drug distribution in United States v. Payne, 805 F.2d. 1062, 1066 (D.C. Cir. 1986); it has also noted that there is a loose, if any, connection between a mere purchase of drugs and the possession of a firearm. See United States v. McDowell, 762 F.2d. 1072, 1075 (D.C. Cir. 1985) (stating that an individual who sells drugs is more likely than an ordinary drug user to feel like others would try to shoot him). Therefore, in the instant case, where the bad act alleged is not drug distribution, but a single drug purchase, the evidence is not relevant to the defendant's intent to possess a firearm.

Additionally, Fed. R. Evid. 403 states that relevant evidence may be excluded if "its probative value is substantially outweighed by its danger of unfair prejudice." In the instant case, even if this Court were to find this evidence "relevant" under Fed. R. Evid. 404(b), the prejudicial nature of this evidence far outweighs any probative value. See Moore, 983 F.2d. at 987. In United States v. Brown, 16 F.3d 423, 431 (D.C. Cir. 1994), the court stated that evidence of defendant's possession of a gun would be inadmissible in the defendant's drug case under 404(b) because a reasonable person could conclude that the gun indicates the defendant's "propensity to deal drugs or to show 'action in conformity' with the character of a drug dealer." Also, in United States v. McDowell, 762 F.2d. 1072, 1076, fn. 5 (D.C. Cir. 1985) the district court did not admit evidence of the defendant's possession of a gun as other crimes evidence in a drug distribution case because it was "somewhat inflaming."

The obvious prejudice accruing to Mr. Doe from any evidence suggesting that he was involved in the drug world, even as a user, is substantial. In lay jurors' minds, there is a nexus between guns and drugs, and any evidence that the defendant possessed one would render it more likely that he possessed the other. Such a risk is especially great in this case since the jury will know that Mr. Doe has previously been convicted of a felony. The combined prejudice resulting from alleged involvement in drugs and a prior felony conviction would certainly cause significant prejudice to Mr. Doe in the minds of the jurors.

In contrast to the significant prejudice to Mr. Doe from this evidence, there is little, if any, probative value. To begin with, the government can not satisfy the threshold requirement of establishing that a drug purchase actually occurred. See Moore, 732 F.2d at 988. In addition, even if the government could establish a drug purchase by Mr. Doe, there is no basis for concluding that an individual who merely purchases drugs is more likely anyone else to possess a gun. Thus, any probative value is far outweighed by the evidence's prejudicial impact.

C. Evidence of a separate firearm, a magazine containing ammunition and bullets found loaded into the firearm forming the basis of this charge, is not relevant to the crime charged, and is unfairly prejudicial.

The Court in Huddleston v. United States, stated that "similar act evidence is relevant only if the jury can conclude that the act occurred and that the defendant was the actor," 485 U.S. 681, 689 (1988). In the instant case, there is no evidence that Defendant Doe possessed the gun found under the driver's seat, in fact the firearm found under the driver's seat was charged to the alleged driver of the automobile, not Defendant Doe. And, as the Court stated in a Memorandum Opinion in the instant case, "The two [weapons] offenses do not appear to be related in any way." Memorandum Opinion at 4. Therefore, a jury could not conclude in this case that Defendant Doe possessed the gun under the driver's seat, and any evidence of the weapon under the seat should be excluded.

Also, the bullets found in the Ruger and in the separate magazine should be excluded because they are not "probative" of whether or not Mr. Doe possessed the firearm. While one could probably conclude that the person who possessed the Ruger also possessed this ammunition, the fact that the gun was loaded or that there was extra ammunition present does nothing to advance the issue in this case: was the gun possessed by Mr. Doe. Rather, the loaded nature of the gun and the extra magazine would simply prejudice the jury against Mr. Doe by making him appear to be a more dangerous person. In fact, the Court, at least, implicitly reached the same conclusion when it required the government to elect between the firearm and ammunition counts. As the court noted in United States v. Clarridge, multiplicitous indictments involving numerous charges from the same conduct are prohibited in order to "eliminate the prejudice which such indictments may generate in the eyes of the jury," 811 F. Supp 697, 702 (D.D.C. 1992). Therefore, permitting the jury to learn of the loaded nature of the gun or the extra magazine would cause the unfair prejudice that the multiplicity doctrine and Fed. R. Evid. 403 were designed to prevent.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

L. Barrett Boss

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF SERVICE

I hereby certify that on a true and correct copy of the foregoing was served by hand (drop box) upon Barry Glickman, Assistant United States Attorney, at 555 - 4th St., N.W. Washington, D.C. 20001, this 21st day of July, 1997.

L. Barrett Boss

1. Although the caption of the case spells Mr. Doe's first name as "xxxxxxxl," his actual name is spelled "xxxxl."