The opinion of the court was delivered by: DuBois, J.
Defendant Ralph J. Camacho ("Camacho") is charged in a seven-count Indictment with distribution of marijuana, in violation of 21 U.S.C. § 841(a)(1); four counts of possession with intent to distribute controlled substances, also in violation of § 841(a)(1); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Presently before the Court are three motions: Government's Motion In Limine to Limit Cross Examination of the Government's Witnesses Pursuant to FRE 609 ("Motion to Limit"); Government's Motion In Limine to Admit Prior Convictions Pursuant to 609(a) ("Motion to Admit"); and United States' Motion In Limine to Introduce Evidence of Other Acts Pursuant to Fed. R. Evid. 404(B) ("Motion to Introduce 404(b) Evidence"). For the reasons that follow, the Motion to Limit is granted, the Motion to Admit is denied, and the Motion to Introduce 404(b) Evidence is granted in part and denied in part.
On December 8, 2009, a confidential informant ("CI") told Bensalem Township police that he had purchased marijuana earlier that day at a nearby motel from a man named "Tim" -- later identified as Camacho. (Mot. to Introduce 404(b) Evidence at 2.) The CI then returned to the motel with an undercover officer, who purchased a bag of marijuana from Camacho. (Id.) As the pair left the motel, other law enforcement officers entered and arrested Camacho and a civilian witness who had been sleeping in the room. (Id. at 2-3.) The officers obtained a search warrant for the room. (Id. at 3.) During their subsequent search, they found various illegal controlled substances, including marijuana, cocaine, crack cocaine and fentanyl; a stolen, loaded 9-mm handgun; $6,733 in cash; and the $80 of buy money the undercover officer used. (Id.)
Camacho was taken to Bensalem Township Police headquarters where he admitted to police that he sold drugs and had been doing so since February or March 2009. (Id.) More specifically, he said he had sold drugs to four or five customers a total of about 100 times during that span of time. (Id.)
Officers later interviewed the civilian witness, who told police: (1) the first time she met Camacho, he gave her heroin; (2) the two were romantically involved and lived together for two weeks prior to Camacho's arrest; (3) she observed Camacho sell or give drugs to people on many occasions; (4) she observed that Camacho kept drugs and two handguns in the cabinet of his trailer and identified one of the guns as the one seized from the motel room; (5) she observed that Camacho always had the gun with him for his protection during the two weeks the pair lived together; and (6) she observed him with the gun in the motel room before he was arrested. (Id. at 3-4.)
Officers also had further discussions with the CI, who told police: (1) the CI and Camacho first met in June 2009; (2) the CI purchased drugs from Camacho at their first meeting; and (3) the CI purchased drugs from Camacho many times thereafter. (Id.)
In its Motion to Limit, the Government seeks to prevent Camacho from cross-examining the CI about the CI's juvenile criminal history. The Government acknowledges that its CI was arrested as a juvenile in 2005 and charged with drug possession, drug paraphernalia possession and possession of an alcoholic beverage by a minor. (Mot. to Limit at 2.) Most of the charges were dismissed. (Id.) The CI received a deferred disposition on the remaining charge -- possession of marijuana/hash -- and successfully completed a one-year diversion program. (Id.) He was then found not guilty on that charge. (Id.)
The Government argues that neither the arrest nor the deferred disposition should be admissible at trial to impeach the CI under Fed. R. Evid. 609 ("Rule 609") because, inter alia, neither is a conviction. The Government is correct, and the Court accordingly grants the motion.
Rule 609 provides the standard for the use of prior convictions for impeachment purposes. Under the rule:
For the purpose of attacking the character for truthfulness of a witness, . . . evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted. . . . Fed. R. Evid. 609(a)(1) (emphasis added). A deferred adjudication is not a conviction. See United States v. Hamilton, 48 F.3d 149, 153 (5th Cir. 1995). Neither is an arrest. See Medrano v. City of Los Angeles, 973 F.2d 1499, 1507 (9th Cir. 1992). Therefore, the CI's arrest and deferred disposition are not admissible for impeachment purposes under Rule 609, and the Motion to Limit is granted.
In its Motion to Admit, the government argues that it should be able to cross-examine Camacho (if he chooses to testify) about his prior narcotics and firearms convictions. Camacho was convicted in state court in 2003 of carrying a firearm in a public place and carrying a firearm without a license, both felonies. (Mot. to Admit at 2.) In 2004, he was convicted in state court on felony narcotics and conspiracy charges. (Id.)
The government argues that these convictions should be admissible to impeach Camacho because they occurred within the past ten years, see Fed. R. Evid 609(b), and bear strongly on his credibility. Camacho urges that the convictions are too similar to the charges in this case and are thus likely to be highly prejudicial, even if the Court issues a limiting instruction. The Court concludes that Camacho is correct and denies the motion.
A. Legal Standard: Rule 609(a)(1)
Rule 609, which governs the use of convictions for impeachment, provides:
For the purpose of attacking the character for truthfulness of a witness, . . . evidence that an accused has been convicted of [a crime punishable by death or imprisonment in excess of one year] shall be admitted if the court determines that the probative value of ...