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United States of America v. Terrell Davis and Jamar Blackshear

November 7, 2011


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


Presently before the Court is the Government's Motion in Limine to Admit Evidence of Defendant Terrell Davis's Prior Convictions. (ECF No. 42.) For the following reasons, the Motion will be granted.


The factual background of this action is set forth in more detail in our October 28, 2011 Memorandum and Order denying Defendants Jamar Blackshear and Terrell Davis's Motion to Suppress Physical Evidence, pursuant to Federal Rule of Criminal Procedure 12(b)(3)(C). (ECF Nos. 81-82.) On January 21, 2011, two Philadelphia Police Officers witnessed Defendants sitting in the front seats of a parked black Jeep Cherokee automobile, license plate number HRX0568 ("Jeep"). (Sept. 6 Hr'g Tr. 8-13, ECF Nos. 65-66.) Blackshear was in the driver's seat, and Davis was in the front passenger seat. (Id. at 12-13.) The Officers saw Defendants speak with and then reach toward one another, in motions that, based upon the officers' experience, were consistent with engaging in a narcotics transaction. (Id. at 17-18.) Upon realizing that the Officers were watching them, Defendants quickly made a tossing motion toward the rear of the Jeep, and then hurriedly exited the vehicle leaving the driver's side door partially opened. (Id. at 17-25, 89-91.) The Officers stopped Defendants near the rear of the Jeep, as they attempted to leave the area. Defendants were patted down, and both had what felt like a large wad of money in their pockets. (Id. at 26-28, 92-95.) Subsequently, one of the Officers placed Davis in the patrol car. (Id. at 26-27, 95-96.) That Officer then returned to the Jeep, opened the front driver's side door a little further and observed a silver and black handgun in plain view, wedged between the driver's seat and the middle console. (Id. at 96-102.) Defendants were arrested. When Defendants were searched, both had a large amount of cash in their pockets. (Id. at 31-32, 102-03.) As one of the Officers looked into the back of the vehicle, he observed a plastic shopping bag. The top of the bag was open, and the Officer observed what appeared to be cocaine in the bag. (Id. at 103-04.) A K-9 drug sniffing dog was brought to the vehicle and alerted positive for the presence of controlled substances. A search warrant for the vehicle was obtained and executed, and items recovered from the rear of the Jeep included two plastic shopping bags containing a total of nine clear plastic sandwich bags all containing cocaine, ten cellular phones, a pair of binoculars and paperwork, including a vehicle lease agreement in the name of Blackshear. (Id. at 36; Sept. 9 Hr'g Tr. 103, ECF Nos. 71-72; Prob. Cause Affidavit ¶ 9, Blackshear Br. Ex. A, ECF No. 49-1; Marano Dep. 7-9, Apr. 13, 2011, Blackshear Br. Ex. B, ECF No. 49-1.)

On April 13, 2011, a grand jury returned an indictment charging Defendants each with one count of possession with intent to distribute, and aiding and abetting the possession with intent to distribute, approximately 740 grams of a mixture and substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2; and one count of possession of, and aiding and abetting the possession of, a firearm in furtherance of a drug trafficking crime, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. §§ 924(c)(1) and (2). (ECF No. 20.) On May 12, 2011, Defendants entered pleas of not guilty on both counts. (ECF Nos. 23, 24.)

On July 11, 2011, Blackshear filed a Motion to Suppress Physical Evidence, and on August 3, 2011, Davis joined in that Motion and adopted by reference the factual and legal arguments contained therein. (ECF Nos. 41, 47.) A hearing on the Motion to Suppress was held on September 6, 2011 and on September 9, 2011. (ECF Nos. 58, 69.) By Memorandum and Order dated October 28, 2011, the Motion to Suppress was denied. (ECF Nos. 81-82.) Blackshear has advised that he intends to plead guilty to both counts.

Pursuant to Federal Rule of Evidence 404(b), the Government seeks to introduce at trial evidence of Davis's prior conviction for possession of crack cocaine in 2007 and evidence of Davis's plea of guilty to possession of crack cocaine in 2008 in the Court of Common Pleas of Philadelphia County. The Government contends that this evidence is relevant and probative, is not offered to prove Davis's character, and the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice. (Gov't's Proposed Order, ECF No. 42.) Davis opposes the Motion. (Def.'s Resp., ECF No. 46.)


Federal Rule of Evidence 404(b) provides that:

Evidence 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, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The Third Circuit applies a four-part test in determining whether Rule 404(b) evidence should be admitted: "(1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its potential for unfair prejudicial effect under Rule 403; and (4) the Court must charge the jury to consider the evidence only for the limited purpose for which it is admitted." United States v. Moore, 375 F.3d 259, 263-64 (3d Cir. 2004) (quoting United States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002)) (internal quotation marks omitted); see also Huddleston v. United States, 485 U.S. 681, 691-92 (1988).*fn1 While a district court has discretion to admit evidence under Rule 404(b), it should "place on the record a clear explanation of the basis for its ruling on the admission of the evidence." United States v. Murray, 103 F.3d 310, 316 (3d Cir. 1997).


A. The Evidence Has a Proper Evidentiary Purpose

The Third Circuit has recognized that Rule 404(b) is "a rule of inclusion rather than exclusion." United States v. Cruz, 326 F.3d 392, 395 (3d Cir. 2003) (citing United States v. Jemal, 26 F.3d 1267, 1272 (3d Cir. 1994)). A court may admit prior crimes evidence "if relevant for any other purpose than to show a mere propensity or disposition on the part of the defendant to commit the crime." United States v. Johnson, 199 F.3d 123, 128 (3d Cir. 1999) (quoting United States v. Long, 574 F.2d 761, 766 (3d Cir. 1978)) (internal quotation marks omitted). For such evidence to be admissible, the Government "must clearly articulate how that evidence fits into a chain of logical inferences, no link of which can be the ...

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