The opinion of the court was delivered by: Judge Nora Barry Fischer
Defendant Ernest Thomas Harris ("Defendant") is accused of possession of ammunition by a convicted felon on July 31, 2010 in violation of 18 U.S.C. § 922(g)(1) and is set to stand trial on September 12, 2012. (Docket No. 1). The parties have stipulated to Defendant's status as a prior convicted felon under § 922(g)(1). (Docket No. 95). At issue during the trial will be the remaining elements of this offense, i.e., whether Defendant possessed the ammunition and whether the ammunition affected interstate commerce. Defendant denies that he possessed the ammunition as alleged. The Government seeks to buttress its case regarding the possession element through the introduction of "evidence of other crimes, wrongs, or acts" under Rule 404(b). (Docket Nos. 36, 44). Presently before the Court is Defendant's motion in limine to exclude such evidence from consideration and the Government's motion to admit Rule 404(b) evidence.*fn1 (Docket No. 89).*fn2 Upon consideration of the parties' positions and after hearing oral argument from counsel at the Pretrial Conference held on September 10, 2012, (see Docket No. 103), and for the reasons further detailed below, Defendant's Motion  is granted, in part and denied, in part.
Defendant's motion is granted to the extent that he seeks to exclude the Government's proffered Rule 404(b) evidence as to the Defendant's prior conviction under § 922(g)(1) in 2002 and his post-offense conviction under § 922(g)(1) in 2011; however, it is denied to the extent that he seeks to exclude evidence from the robbery of Big Toms Barber Shop on July 30, 2010, as such evidence is admissible under Rule 404(b) and its probative value is not substantially outweighed by the applicability of the considerations listed in Rule 403. Finally, because the Court finds that the robbery evidence is admissible under Rule 404(b), the Court overrules Defendant's objection to Government Exhibit 13, a map of the Hill District identifying the locations of: the July 30, 2010 robbery at Big Toms Barber Shop on Centre Avenue; Defendant's subsequent arrest on July 30, 2010 on Roberts Street; and 8 Roberts Street, where the search warrant was executed on July 31, 2010 and the ammunition charged at Count One was seized by law enforcement.
As the facts and circumstances of this case and the challenged evidence are well known by the parties, and the trial of this matter is imminent, the Court limits its discussion to those facts which are relevant to the disposition of the instant dispute.*fn3
A.Relevant Procedural History Regarding Rule 404(b) Evidence
Prior to the Defendant filing any pretrial motions as to Count One in this case, the Government filed its Notice of 404(b) Evidence on January 18, 2012. (Docket No. 36). While this notice provided a general description of the evidence the Government sought to admit under Rule 404(b) and identified the evidence as either intrinsic or extrinsic, it does not set forth any theories of admissibility. (Id.). On February 21, 2012, Defendant filed a motion for disclosure of Rule 404(b) evidence. (Docket No. 39). The Government filed a Supplemental 404(b) Notice on March 6, 2012. (Docket No. 44). The Government also submitted its response to the Defendant's motion on March 20, 2012, wherein it indicated that Defendant's motion for disclosure was premature. (Docket No. 50).
At the pretrial motions hearing on April 24, 2012, the attorneys for the government and the defense engaged in brief oral argument as to the Rule 404(b) motion. (Docket No. 69 at 4-8). Defense counsel argued that the government's submissions regarding Rule 404(b) did not meet the "completeness requirements" which were set forth in the commentary to Rule 404(b). (Id.). In response, Government counsel suggested that he had met the requirements of Rule 404(b) to provide the defense with general notice of the Rule 404(b) evidence the government seeks to admit at trial. (Id.). The Court pointed out that its Pretrial Order issued in criminal cases would set a deadline for the production of such materials. Both counsel acknowledged that they had seen a copy of the Court's standard pretrial order (which, is attached to this Court's Practices and Procedures) and a copy was presented to counsel by the Court's Law Clerk during the hearing.
The Court denied Defendant's motion, without prejudice, to raising specific objections to the Government's Notice and Supplemental Notice by the deadlines set forth in a then-forthcoming Pretrial Order. (Docket No. 82). The Court issued its Pretrial Order later that day and directed that Rule 404(b) materials were to be disclosed by August 20, 2012 and that all motions in limine were due by August 24, 2012. (Docket No. 85 at ¶¶ 4, 5). Defendant filed his motion in limine on August 24, 2012. (Docket No. 89). The Government did not timely submit a motion in limine or a response to the motion in limine and the Court entered an order denying the Government's tardy motion in limine (see Docket No. 99) and granting Defendant's motion in limine for lack of opposition thereto on September 5, 2012. (Docket No. 100).
The Government sought reconsideration of this Order on September 7, 2012, wherein counsel provided reasons for his delays, including his prior trial during the week of August 24, 2012 and personal matters from August 31 through the Labor Day holiday. (Docket No. 101). The Court granted the motion for reconsideration, in part, on September 7, 2012 and ordered that:
[it] will decide the admissibility of any 404(b) issues based solely on the contents of the defense motion at document 89 and the government's previous filings 36 and 44. (Docket No. 102).
B.Charged Conduct and Related Events of July 31, 2010
The instant charge arises from the Defendant's alleged possession of nine millimeter Luger caliber "R-P" ammunition on July 31, 2010. (Docket No. 1). The ammunition was seized by Pittsburgh Police Officers from a residence at 8 Roberts Street located in the Hill District area of Pittsburgh under a search warrant. (See Docket No. 78; see also Govt. Ex. 1, Docket No. 67-2). Defendant has maintained throughout this litigation that 8 Roberts Street was not his residence but instead was a crack house where addicts (including Defendant and his paramour Dorothy Littlejohn) would crash for days at a time and consume large quantities of illegal narcotics. (Id.). Defendant was not present at the residence when the search warrant was executed by the officers. (Docket No. 78 at n.5).
In addition to the ammunition, several other items were seized from the residence during the search including: (1) a bag of suspected cocaine; (2) a digital scale; (3) silver spoons & syringe; (4) indicia; and (5) several wallets. (Govt Exs. 1, 2, 3a, 3b, 6a, 6b, 7a, 7b, 8a, 8b, 9a, 9b, 10, 11a, 11b, 12).*fn4 Defendant has not lodged any objections to the admissibility of items (1) -- (4) and the Government has indicated that it does not intend to introduce the wallets (item 5) in its case-in-chief. As such, there is no apparent dispute as to the admissibility of these items.
C.Uncharged Conduct/Other Convictions
However, the parties do dispute the admissibility of certain other evidence at trial. To this end, the Government seeks to admit evidence of Defendant's past activities during three separate events: (1) his possession of a firearm on January 15, 2002 which resulted in his prior federal conviction for possession of a firearm by a convicted felon; (2) his possession of a firearm and use of same during an armed robbery of Big Toms Barber Shop in the Hill District on July 30, 2010; and (3) his possession of a 40 S&W caliber semiautomatic Glock pistol on June 1, 2011 which resulted in his nolo contendere plea to Count Two of the instant indictment.*fn5
(Docket No. 36). The Government also intends to admit evidence of the Defendant's heavy drug and alcohol use on June 1, 2011 which precipitated his possession of the firearm and resulted in the Court's acceptance of his nolo contendere plea due to his apparent intoxication and inability to form the requisite intent to possess the firearm on that occasion. (Docket No. 44). The Court will now briefly discuss the relevant facts of record as to each of these incidents.
1. 1/15/02 Possession of a Firearm
On January 15, 2002, Defendant was approached by officers while sitting in a Dodge sedan in the Hill District area of Pittsburgh, Pennsylvania. (Docket No. 36 at ¶ 1(i); see also PIR at ¶ 37). An officer observed Defendant reach into his inner coat pocket and pull out a silver pistol. (PIR at ¶ 37). Defendant rebuked initial commands from the officers to drop the gun and raise his hands in the air. (Id.). He ultimately complied and was removed from the vehicle. (Id.). A Colt .45 pistol was recovered with six rounds in the magazine and one in the chamber. (Id.).
Defendant was charged federally under 18 U.S.C. § 922(g)(1) at case number 02-25 in this District and pled guilty to such offense. (Id.). He was sentenced to seventy (70) months imprisonment and 3 years of supervised release. (Id.). Defendant twice violated the terms of his supervised release and was sentenced to additional terms of incarceration. (Id.). He was eventually released from custody on December 12, 2009. (Id.).
2. 7/30/10 Armed Robbery of Big Toms Barber Shop
On June 30, 2010, Defendant committed an armed robbery of Big Toms Barber Shop in the Hill District. (Docket No. 36 at 1; see also Docket No. 78 at 3-6). Defendant told the owner of the barber shop that he should pay him money for security for his business. The owner refused, and Defendant left. He later returned with a black and silver semiautomatic pistol. He pointed the pistol at the owner, punched him in the face, cocked the firearm and told him to give him money and a ring he was wearing. The owner acquiesced and turned over these items to Defendant. Defendant commented that the owner "should have gave him money for security" and then fled the scene in a red SUV driving toward downtown Pittsburgh on Centre Avenue. He was apprehended by Pittsburgh Police later that evening on Roberts Street about a block from the 8 Roberts Street residence.
These events precipitated the police officers' acquisition of the search warrant on June 31, 2010 as described above and the eventual search of 8 Roberts Street for the purpose of finding the firearm used during the offense, the cash and the ring. The firearm which was used in the commission of this offense was apparently never recovered by ...