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United States of America v. Joseph Dees A/K/A

November 5, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
JOSEPH DEES A/K/A JOSEPH LEE,
DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

Order on Motions in Limine (doc. nos. 53, 54, 55, 56)

Pending before this Court are the parties' respective motions in limine for the upcoming criminal jury trial scheduled for November 14, 2012. The Indictment charges Defendant with Possession with Intent to Distribute Less than 500 Grams of a Mixture and Substance Containing a Detectable Amount of Cocaine, a Schedule II Controlled Substance in violation of Title 21 United States Code Section 841(a)(1) and 841(b)(1)(C).

In support of its theory of the case, that Defendant was a drug distributor and/or seller, the Government seeks to introduce evidence, including the testimony of two witnesses (Courtney McFeaters and Calvin Smith), who were also charged with, and plead guilty to, conspiracy to distribute cocaine. The substance of their testimony centers around their collective allegations that they had seen Defendant distribute cocaine in the months leading up to his arrest. Defendant, however, seeks to eliminate the testimony of these witnesses (and of the Government expert) mainly on the basis of relevance and prejudice, in his Motions in Limine. Paradoxically, Defendant contends that the evidence he will present will show that he was a drug addict, and therefore, the drugs he possessed were only for his personal use. The Government, on the other hand, seeks to bar the introduction of any evidence (via expert witnesses Dr. Neil Capretto and Ms. Kim Washington) tending to support Defendant's theory of the case, also on the basis of relevance, hearsay, and foundation.

The Court finds that the majority of the testimony and evidence of both the Government and the Defendant may be fairly presented to the fact finder as relevant and not prejudicial, under Fed. R. Evid. 403; rather, the substance of the objections are more appropriate matters for cross-examination. Nonetheless, an analysis of the pending motions follows.

Doc. No. 53

Defendant's first Motion in Limine (doc. no. 53) seeks to exclude Government Exhibit Number 13, a June 22, 2011 letter from Defendant to Prosecutor Conway, at which time Defendant was indisputably represented by Defense Counsel Stallings, wherein Defendant appeared to be attempting to engage in plea negotiations directly with Mr. Conway. While the Government seeks to introduce this letter as a "statement," Defendant objects to its introduction pursuant Massiah v. United States, 377 U.S. 201 (1964), and United States v. Henry, 447 U.S. 264 (1980), and additionally, under Fed. R. Evid. 410(4), which makes inadmissible any statement made in the course of plea negotiations. After careful review of the letter submitted by Defendant, the Court hereby ORDERS that the Defendant's Motion in Limine (doc. no. 53) is GRANTED under both Massiah and Rule 410(4).

Doc. No. 54

Defendant's second Motion in Limine (doc. no. 54) seeks to exclude the expert testimony of Government Witness, Pennsylvania State Trooper Michael Warfield, who will testify regarding his expert opinion on distribution versus possession of the cocaine for personal use. The alleged basis for Mr. Warfield's expert opinion stems from numerous factors including the volume of the cocaine, the amount of cash found on Defendant's person, and his possession of an expensive vehicle, without legitimate means by which to acquire the vehicle. While the Court agrees with Defendant that Mr. Warfield may not testify on the ultimate issue of whether or not Defendant possessed the requisite intent to distribute cocaine pursuant to Fed. R. Evid. 704(b), the Court will not exclude the testimony of Mr. Warfield. Should the testimony of Mr. Warfield move afield from the proper scope of testimony, Defense counsel shall properly object and the Court will consider any such objection during trial. With the above caveat, the Court hereby ORDERS that the Defendant's Motion in Limine (doc. no. 54) is DENIED.

Doc. No. 55

Defendant's third and final Motion in Limine (doc. no. 55) seeks to exclude evidence under Fed. R. Evid. 404(b) regarding prior alleged distributions of controlled substances by Defendant. The Government seeks to introduce this evidence through the testimony of Ms. McFeaters and Mr. Smith, who are cooperating witnesses.

Evidence of prior "bad acts" may be admitted only if: (1) the other crimes evidence [has] a proper purpose as set forth in Rule 404(b); (2) the proffered evidence [is] relevant; (3) its probative value [outweighs] its potential for unfair prejudice; and (4) the [Court charges] the jury to consider the other crimes evidence only for the limited purpose for which it is admitted. United States v. Lee, 573 F.3d 155, 166 (3d Cir. 2009)(citing Huddleston v. United States, 485 U.S. 681 (1988)).

The Court finds that all four parts of the Huddleston test have been met. First, the evidence has a proper purpose under 404(b), which is to show that Mr. Dees had the intent to distribute the cocaine. Second, the evidence is relevant. The evidence tends to show that Mr. Dees had the intent to distribute cocaine. After carefully weighing the probative value of the evidence with the potential for unfair prejudice under Rule 403, the Court finds that the potential for unfair prejudice does not outweigh the probative value of the evidence. Finally, the Court will issue a limiting instruction both during trial and during final jury instructions, should the parties so request, and proffer such a limiting instruction.

This ruling is consistent with prior decisions of the United States Court of Appeals for the Third Circuit and similar cases within this District where evidence of prior distribution of drugs was admitted to show the requisite intent to distribute. See, id.; United States v. Givan, 320 F.3d 452, 460--62 (3d Cir. 2003); United States v. Bacon, Crim. No. 11-42, Doc. No. 983, 5-6 (W.D. Pa. Oct. 31, 2012) (Schwab, J.); United States v. Manghan, Crim. No. 11-45, Doc. No. 1083, 6 (W.D. Pa. Oct. 16, 2012) (Schwab, J.); United States v. Curran, 2011 WL 3421420, *3 (W.D. Pa. Aug. 4, 2011) (McVerry, J.); United States ...


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