The opinion of the court was delivered by: Slomsky, J.
Before the Court is the Government's Motion to Exclude Evidence Regarding the Prior Convictions of a Witness*fn1 (Doc. No. 51), and Defendant's Motion In Limine to Admit Evidence of Witness Michael Mastranduono's Prior Criminal Convictions (Doc. No. 52). On May 7, 2009, a federal grand jury returned an Indictment charging Defendant David Ivins (hereinafter "Defendant") with one count of possession of child pornography in violation of Title 18, United States Code Section 2252(a)(4). The charges stem from evidence seized after the execution of a search warrant at Defendant's home on July 27, 2006. The search resulted in the seizure of Defendant's computer, which contained images of child pornography. A hearing was held on the two Motions on June 23, 2010.
Defendant's residence at the time of the search was a two-bedroom trailer, which he shared with his girlfriend, roommate Michael Mastranduono and Mastranduono's girlfriend.
(Doc. No. 51, at 1). Defendant's computer was located in the living room, an area of the trailer common to all residents. (Doc. No. 52, at 1). A subsequent forensic analysis revealed thousands of images and videos of child pornography on the computer hard drive and on CDs and DVDs that were found in the living room. (Doc. No. 51, at 2).
Defendant asserts that his theory at trial will be that Michael Mastranduono (hereinafter "Witness") was the actual possessor of the child pornography, and that this theory is supported by the location of the computer, DVDs and CDs in a common area of the residence. Witness has a number of prior convictions which are the subject of the instant motions. On June 19, 2000, he was adjudicated guilty of and sentenced for Indecent Assault and Simple Assault.*fn2 (Doc. No. 52, Ex. A). This case involved a sexual assault on an 18 year old, unconscious woman, which occurred on June 29, 1999. On August 4, 2003, he pled guilty to Harassment.*fn3 (Id., at Ex. B). This case involved a physical assault on a woman and occurred on April 21, 2003.
On January 8, 2007, Witness pled guilty to possession of Prohibited Offensive Weapons and use/possession of Drug Paraphernalia.*fn4 (Id., at Ex. C). The offensive weapon seized was a switchblade knife. It was found by police during a search of Defendant's vehicle incident to a traffic stop on July 18, 2006. Witness also pled guilty to a second charge of possession of Prohibited Offensive Weapons on January 8, 2007. (Id., at Ex. D). This case involved multiple offensive weapons, including a switchblade knife, metal knuckles and an expandable metal baton, all found by police when executing a search warrant on Witness's and Defendant's trailer on July 27, 2006. This search led to Defendant's indictment in the instant case. Defendant asserts that Witness's prior convictions are admissible under Federal Rules of Evidence 404(b), 608(b),*fn5 609(a)(1) and 403.
A. Witness's Indecent Assault Conviction
Defendant asserts Witness's Indecent Assault conviction is admissible as "reverse 404(b)" evidence. Rule 404(b) provides that "[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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." When a criminal defendant seeks to introduce Rule 404(b) evidence regarding a witness in his trial, it is referred to as "reverse 404(b)" evidence.
The Third Circuit has directed that when considering the admission of reverse 404(b) evidence, a court must still apply Rule 404(b)'s general prohibition against propensity evidence. United States v. Williams, 458 F.3d 312, 317 (3d Cir. 2006). Rule 404(b)'s "prohibition against propensity evidence applies regardless of by whom -- and against whom -- it is offered." Id. As the Third Circuit stated:
Although, under [United States v. Stevens], a defendant is allowed more leeway in introducing non-propensity evidence under Rule 404(b), he or she is not allowed more leeway in admitting propensity evidence in violation of Rule 404(b) . . . [T]he prohibition against the introduction of bad acts evidence to show propensity applies regardless of whether the evidence is offered against the defendant or a third party.
Id. A defendant must show evidence of prior bad acts is admissible for a proper purpose under Rule 404(b), although "'a lower standard of similarity [when considering "proper purpose"] should govern 'reverse Rule 404(b)' evidence because prejudice to the defendant is not a factor.'" Id. at 316 (quoting United States v. Stevens, 935 F.2d 1380, 1404 (3d Cir. 1991)).
Here, Defendant has failed to identify a proper purpose for the admission of Witness's Indecent Assault conviction: it is not relevant to motive, opportunity, intent, preparation, plan, knowledge, identity, accident or absence of mistake. Instead, it is clear to the Court that this is propensity evidence, intended to suggest to the jury that Witness was a sex offender in the past and consequently is more likely to have committed the sex offense in the instant case. Although this rationale supports Defendant's defense that it was Witness, and not himself, who possessed the ...