The opinion of the court was delivered by: Chief Judge Kane
Before the Court is Defendant Rahseem Drummond's motion in limine to exclude photographs of himself and testimony that he beat a co-Defendant, used PCP, and possessed firearms. (Doc. No. 199.) For the reasons that follow, the motion will be granted in part.
On May 6, 2009, Defendant Rahseem Drummond was arrested while traveling as a passenger in a vehicle south of Harrisburg. On May 13, 2009, Defendant was indicted on charges of possessing with intent to distribute cocaine and marijuana, using a communication facility in furtherance of drug trafficking, and conspiring to distribute cocaine and marijuana. (Doc. No. 1.) On July 29, 2009, a Superseding Indictment was issued adding the charge of using interstate commerce in furtherance of drug trafficking. (Doc. No. 79.) On July 30, 2009, Defendant moved to suppress evidence obtained at the time of the arrest, but the motion was denied by the Court. (Doc. Nos. 77, 202.)
On February 4, 2010, Defendant filed this motion in limine to preclude introduction of prejudicial evidence at trial. Specifically, Defendant learned through discovery provided by the Government that the Government intends to present photographs from Defendant's MySpace page at trial. (Doc. No. 199 at 2.) Defendant also takes issue with the Government's intention to present testimony from Co-Defendant Chanel Thomas and her mother, Robin Thomas, that Defendant beat Thomas, used PCP, and possessed firearms. (Id.) Defendant argues that the photographs, as well as any testimony related to his abuse of Thomas, PCP use, and possession of firearms, should be precluded from trial under Federal Rules of Evidence 402, 403, or 404(b).
A. Admissibility of Photographs from Defendant's MySpace Page
The Court begins with consideration of the photographs from Defendant's MySpace page. The photos depict Defendant counting, showing-off, and throwing large wads of cash while wearing a hat and sunglasses. (Doc. No. 199-2.) It is unclear from the photos the amount of money in Defendant's possession or the way in which he obtained the bills. Additionally, one photo depicts Defendant either pretending to point a gun at the camera or pointing a gun at the camera. (Doc. No. 199-2 at 7.) The Court's copy of the latter precludes the Court from discerning whether any weapon actually is shown in the photograph.
Defendant argues that the photos are not probative of any of the crimes charged. Alternatively, Defendant argues that the probative value of the photos is substantially outweighed by the danger of unfair prejudice. By contrast, the Government maintains that testimony will demonstrate that Defendant had no job at the time the photographs were taken and thus no known means of income. From this, the Government argues, it is logical to infer that Defendant obtained the cash from drug sales. The Government asserts that the photos of Defendant holding cash are circumstantial evidence of drug trafficking. Likewise, with respect to the photo of Defendant pointing a gun, the Government contends that his possession of firearms is "intrinsic" to the crime of conspiring to distribute drugs, and thus all evidence related to possession of a firearm is necessarily admissible as direct evidence of the crime charged.
The Court begins by finding that the photographs of Defendant holding cash are relevant. Possession of large amounts of cash on-hand can be circumstantial evidence of drug trafficking. See United States v. Chandler, 326 F.3d 210, 215 (3d Cir. 2003) ("The touchstone of the admissibility inquiry is not the amount of money in the defendant's possession, but whether defendant's failure to account for its source tends to support the government's claim that the money was obtained through illegitimate means."); United States v. Cooley, 131 Fed. Appx. 881, 883 (3d Cir. 2005) (allowing testimony that the defendant, an alleged drug trafficker, possessed over $10,000, as evidence of drug trafficking even though the funds were not linked to a specific drug transaction) (unpublished opinion).
Yet without question, the photos are prejudicial to Defendant. Federal Rule of Evidence 403 provides that relevant evidence may be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice...." Fed. R. Evid. 403. In this case, the photographs at issue pose a significant risk of provoking an emotional reaction from the jury--that he is a drug dealer because he looks like a drug dealer in the photos--, which is likely to outweigh the probative value of him possessing an unknown amount of cash from an unknown source. See Fed. R. Evid. 403 advisory committee's note (defining unfair prejudice as "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one."). Moreover, evidence that Defendant possessed large quantities of cash despite his absence of a job or known source of income is, in all likelihood, capable of being presented through oral testimony much less prejudicial than these photos, making the prejudice of these photos avoidable.
The Court cannot, at this point, make a determination as to whether the photos are admissible under Rule 403, in advance of knowing what exactly the testimony will reveal at trial. See In re Paoli Ry. PCB Litigation, 916 F.2d 829, 859 (3d Cir. 1990) ("We believe that Rule 403 is a trial-oriented rule."). The Court notes only that, if testimony presents evidence that Defendant had no known source of income and yet often had significant quantities of cash on-hand, but Defendant disputes having possessed large amounts cash, it is possible that the relevance of the photos could outweigh any unfair prejudice.
Turning now to consideration of the photograph where Defendant is posing as if pointing a gun, the same issues apply. As the Government suggests, possession of a firearm may be relevant to a charge of drug trafficking because firearms are known to be "tools of the trade" of drug trafficking. United States v. Russell, 134 F.3d 171, 183 (3d Cir. 1998) ("[I]t has long been recognized that firearms are relevant evidence in the prosecution of drug-related offenses, because guns are tools of the drug trade."); United States v. Goodnight, 67 Fed.Appx. 677, 681 (3d Cir. 2003) ("Moreover, gun possession may serve as circumstantial evidence from which a jury can infer drug activity.") (unpublished opinion). However, the Government has not stated that testimony in this case will support the assertion that Defendant or the members of his conspiracy used firearms in furtherance of their drug-trafficking endeavors. Therefore, it is unclear to the Court that, in this case, possession of a firearm is intrinsic to the drug trafficking or conspiracy charged. See United States v. Cross, 308 F.3d 308, 320 (3d Cir. 2002) (citing United States v. Bowie, 232 F.3d 923, 927-28 (D.C.Cir. 2000) ("[I]t cannot be that all evidence tending to prove the crime is part of the crime because that would make Rule 404(b) a 'a nullity.'")); United States v. Hoffecker, 530 F.3d 137, 189 (3d Cir. 2008). More importantly, the photograph is problematic because the Court cannot determine from the photocopy provided whether Defendant actually is possessing a firearm, or whether he is simply mimicking the stance of a shooter. Thus the Court cannot make a final determination on the admissibility of this photograph without more information.
For these reasons, the Court will defer ruling on the admissibility of all photographs appended to Defendant's motion. These aspects of Defendant's motion will ...