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United States v. Golson

January 13, 2009

UNITED STATES OF AMERICA
v.
MICUS GOLSON, DEFENDANT.



The opinion of the court was delivered by: Rufe, J.

MEMORANDUM AND ORDER

I. INTRODUCTION

In a two-count indictment, the government charges Defendant Micus Golson with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possession of marijuana, in violation of 21 U.S.C. § 844(a). The charges stem from an incident that occurred on July 13, 2008, in Norristown, Pennsylvania, in which Sergeant Robert Sobeck of the Norristown Police Department, believing upon observation that Golson was smoking a cigar filled with marijuana ("blunt") and concealing a handgun in his waistband, radioed Montgomery County Drug Task Force officers who arrested Golson after a brief foot chase. The Task Force officers also detained for some period of time two other men, Tyrone Barron and John Hunter, who Sobeck had observed standing near Golson while he smoked. Presently before the Court are three Motions in Limine filed by Golson: a Motion to admit evidence of prior bad acts of Sergeant Sobeck;*fn1 a Motion to exclude evidence of Golson's prior convictions;*fn2 and, a Motion to admit evidence of prior crimes of John Hunter.*fn3 The parties briefed the Motions,*fn4 and the Court heard oral argument thereon on December 23, 2008. The Motions are now ready for disposition.

II. DISCUSSION

The Court will consider the Motions in turn below, reciting additional relevant background facts as necessary.

A. Motion In Limine To Admit Prior Bad Acts of Sergeant Robert Sobeck

This Motion is premised on Golson's theory that Sergeant Sobeck "could not have observed [Golson] smoking marijuana or possessing a firearm," because, as Golson contends, he was doing neither on the evening in question, and is innocent of the offenses charged.*fn5

The relevant facts from the evening of Golson's arrest are few. Sobeck claims to have observed Golson from a concealed position approximately fifteen feet from where Golson stood on the sidewalk near the corner of Haws and West Main Streets in Norristown. Sobeck claims he saw a bulge on Golson's hip under his shirt consistent, in Sobeck's experience, with the appearance of a concealed handgun in a waistband, and that he saw Golson smoking a cigar that Sobeck believed to be filled with marijuana. On the basis of these observations, Sobeck made the radio call that directly resulted in Golson's arrest.

Golson contends certain alleged facts related to an incident in 1989 involving Sergeant Sobeck are also relevant. It is these facts that are the subject of the instant "prior bad acts" Motion. In particular, Golson asserts that on December 29, 1989, Sergeant Sobeck erroneously stopped a father and son and accused them of selling drugs after observing them exchange cash on the street. The exchange proved to be legal in all respects. Sobeck was eventually told by a superior officer that he had overreacted to what he had observed, and that he had not followed proper procedure in stopping the men ("the 1989 Incident"). Golson argues evidence of the 1989 Incident should be admitted to "provide insight into how Sgt. Sobeck interacts with citizens on the street."*fn6

Golson argues evidence of the 1989 Incident is admissible pursuant to a "subspecies" of the Federal Rules of Evidence known as "reverse 404(b) evidence."*fn7 Federal Rule of Evidence 404(b) provides, in part, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith."*fn8

Evidence sought to be used for this improper purpose is considered "propensity" evidence, and is strictly inadmissible under the Rule no matter which party offers it.*fn9 Rule 404(b) continues, in relevant part, "[evidence of other crimes, wrongs, or acts] may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."*fn10 As a general matter, to be admissible, evidence satisfying the Rule 404(b) standard must also be relevant under Federal Rule of Evidence 401,*fn11 and not otherwise excludable in light of the considerations set forth in Federal Rule of Evidence 403.*fn12

Such "reverse 404(b)" evidence may be admitted against a third party witness if it satisfies certain requirements. First, the evidence must be relevant to the guilt or innocence of the accused. Next, the district court must be satisfied that the probative value of the evidence is not substantially outweighed by any of the negative considerations set forth in Rule 403, including causing confusion of the issues and misleading the jury.*fn13 Finally, as noted above, reverse 404(b) evidence offered by a defendant against a third party is not admissible if it constitutes mere propensity evidence -- evidence, in the language of the Rule, meant "to prove the character of a person in order to show action in conformity therewith."*fn14 Rather, such evidence must be offered for one of the permissible purposes enumerated in Rule 404(b).*fn15

Here, Golson asks the Court to admit evidence of the 1989 Incident in order to "provide insight into how Sgt. Sobeck interacts with citizens on the street."*fn16 Golson would seek to undermine Sobeck's credibility in his testimony regarding the circumstances leading to Golson's arrest with evidence of the nineteen-year-old, apparently groundless stop. This evidence is, at best, barely relevant to Sobeck's conduct as a surveillance agent in the present matter. It may tend slightly to negate Golson's guilt as shown through Sobeck's testimony. However, the Court puts that question, as well as the balancing test of Rule 403, to one side, because the evidence of the 1989 Incident is plainly inadmissible propensity evidence. The evidence is offered not for any permissible purpose under Rule 404(b) -- not to shed light on Sobeck's "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"*fn17 -- but to show that Sobeck made an error in judgment and ...


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