TERRENCE F. McVERRY, District Judge.
Pending before the Court is the MOTION IN LIMINE TO PRECLUDE OR LIMIT CERTAIN EVIDENCE AT TRIAL (ECF No. 58) filed by Defendant ("Penn"). The government filed a response in partial opposition to the motion and it is ripe for disposition.
Factual and Procedural Background
On September 18, 2012 a grand jury issued a one-count indictment which charged Penn with the crime of possession of two firearms and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The firearms and ammunition were seized on June 16, 2011 from the basement of a home of Penn's estranged wife, Ginera Penn, on Harrison Street, Swissvale, Pennsylvania.
Penn came to the attention of police officers on June 7, 2011 as a suspect in a shooting incident. On June 14, 2011 a passerby found a firearm near the scene of the shooting, which police linked to the shooting. Police officers also learned that two bench warrants had been issued for the arrest of Penn for probation/parole violations. Officers then attempted to locate Penn and eventually arrested him at the home of Ginera Penn on June 16, 2011.
Ginera Penn had informed the officers that she and Jesse Penn were going through a divorce and that two days earlier, Penn had returned and requested to stay at her home and to store some items there. She indicated that she had given Penn a key to the home; that he was staying there, although she did not know whether he was in the home at the time of the phone call; and that his belongings were in a storage room in the basement. Ginera Penn gave officers permission to enter and search the home for Jesse Penn. Officers observed a black male inside the home. After there was no response to their "knock and announce" for several minutes, the officers advanced through the back door and dispersed throughout the house in search of Penn. Detective Foley testified that he went down the basement stairs with his gun drawn to search for Penn and to perform a protective sweep to look for other persons and/or safety threats. In the basement, Foley observed an open door to a walk-in storage area. When he looked into the storage room to check for persons/threats, Foley saw a bag which he recognized as a carry bag for a bulletproof vest. At that time, Foley did not further investigate the vest. After he completed his protective sweep, Foley came up from the basement and learned that Penn had been located upstairs and taken into custody. At that point, Foley notified Detective Hitchings of what he had seen in the basement. The officers secured the home, and sat on the front porch for approximately two hours while other officers obtained a search warrant. After the search warrant was issued, the officers returned to the basement and found and seized various items, including the ballistic vest, two firearms, ammunition, and a shoebox with various indicia (child support documents, bail bond papers, probation papers, W-2 forms and medical records) which allegedly verified Penn's presence in that area of the basement. Penn thereafter allegedly made incriminating statements to the officers while en route to the Allegheny County Jail. The Court denied Defendant's motion to suppress this evidence.
Jury selection and trial is scheduled to commence on Monday, November 18, 2013. On October 21, 2013, the government provided notice of all prior misconduct evidence which the government intends to offer at trial pursuant to Fed.R.Evid. 404(b) and 609 (ECF No. 54). The instant motion followed.
Penn seeks to preclude presentation to the jury of the following: (1) reference to arrest warrants for "two" probation violations; (2) reference to Penn's prior conviction for possession of a firearm; (3) Penn's letters from jail to his wife; (4) reference to paperwork that reflects Penn's bail or probation status; and (5) impeachment by use of Penn's entire criminal history. The Court will address these objections seriatim.
1. "Two" Arrest Warrants
Penn acknowledges that the government may explain to the jury why the police were at the home of Ginera Penn on June 16, 2011 and why they entered by force. However, he suggests that a brief reference that the police were executing "a" probation violation warrant would be sufficient - such that there is no legitimate need to emphasize to the jury that there were "two" such arrest warrants. The government agrees to use the brief reference suggested by Defendant and not emphasize that there were "two" arrest warrants.
Accordingly, this aspect of the motion is GRANTED.
2. Prior Firearm Conviction
Penn disputes the government's contention that his prior conviction for possession of a firearm is admissible under Rule 404(b) to demonstrate knowledge, intent or absence of mistake. Defense counsel represents that his strategy will be that Penn did not possess the firearms found in the basement of his wife's home (i.e., a "who done it" defense.) In light of this defense strategy, Penn ...