United States District Court, W.D. Pennsylvania
NORA BARRY FISCHER, District Judge.
This criminal case is scheduled to commence jury selection and trial on September 2, 2014. Defendant Michael Eugene Gorny ("Gorny") is charged at Count One with one count of being a felon in possession of firearms (i.e., a Glock.40 caliber pistol and a Lorcin, 9mm caliber pistol) in violation of 18 U.S.C. § 922(g)(1), on or about July 4, 2012. (Docket No. 1). The parties have stipulated to Gorny's status as a prior convicted felon and that his right to lawfully possess a firearm was not restored as of that date. (Docket No. 70). The parties have also agreed that several detectives of the City of Pittsburgh Bureau of Police were present at Gorny's residence on July 4, 2012 to arrest him but dispute whether Gorny possessed the firearms in question, and a number of other evidentiary and legal matters, which are discussed herein.
Presently before the Court are three motions in limine filed by the parties which have been fully briefed, (Docket Nos. 73, 76, 77, 79, 80), and argued by their counsel at the Final Pretrial Conference held on August 21, 2014, (Docket No. 81), as well as disputes as to the admissibility of certain exhibits at trial, (G1:G9; Def. A:M), and regarding the final jury instructions, (Docket No. 68), which were likewise argued at the Final Pretrial Conference. As these matters are ripe for disposition, the Court makes the following pretrial rulings.
II. Government's Motion in Limine for the Admission of Rule 404(b) Evidence (Docket No. 73)
Initially, the Court denies the Government's Motion in Limine to the extent that it seeks to admit evidence pursuant to Rule 404(b) of the Federal Rules of Criminal Procedure that law enforcement officers were present at Gorny's home to arrest him as a result of a "two week investigation, " (Docket No. 73), over Gorny's objection to same, (Docket No. 80). In light of the United States Court of Appeals for the Third Circuit's recent directives in United States v. Caldwell, ___ F.3d ___, 2014 WL 3674684 (3d Cir. 2014), it is obvious to this Court that the Government has failed to meet its burden to demonstrate an appropriate evidentiary link between the proffered bad act (i.e., the "two week investigation") and the charge in this case of Gorny's unlawful possession of a firearm on July 4, 2012 given his uncontested prior felony status. Indeed, the purpose of law enforcement's investigation of Gorny was for his illegal distribution of heroin two weeks prior to the date in question (and possibly in the future) and the Government has conceded that the underlying facts of Gorny's heroin distribution are not admissible under Rule 404(b). ( See Docket No. 73). Hence, there is minimal relevance, if any, between the purported "two week investigation" of Gorny's activities in late June 2012 and his alleged possession of the firearms on July 4, 2012. See FED. R. EVID. 401. The only relevant fact is that the officers were present at Gorny's residence on that date to arrest him, and Gorny has conceded that such background information is admissible at trial, along with an appropriate limiting instruction. (Docket No. 80).
Further, even if the proffered evidence of the officers' "two week investigation" of Gorny was deemed relevant, and admissible under Rule 404(b), which it is not, the Court would exclude it under Rule 403 because its "probative value is substantially outweighed by a danger of... unfair prejudice, confusing the issues, [and potentially] misleading the jury." FED. R. EVID. 403. Here, the unspecified nature of the "two week investigation" would likely mislead the jury to believe that the officers spent two weeks investigating Gorny for possessing firearms, which is factually incorrect and/or to contemplate the precise nature of such a lengthy investigation. The admission of such evidence would likewise confuse the straightforward issues in this case of whether the officers observed Gorny in possession of the firearms on the date in question. Therefore, unfair prejudice would inure to Gorny if the challenged evidence was admitted and must be excluded after conducting an appropriate balancing under Rule 403. See Caldwell, 2014 WL 3674684. Accordingly, the Government's Motion in Limine is DENIED to the extent that it seeks to admit witness testimony that officers conducted a "two week investigation" of Gorny. Government counsel shall advise its witnesses of such ruling.
With respect to the Government's Motion in Limine seeking the admission of Gorny's possession of synthetic marijuana which was discovered by the officers upon his arrest (Docket No. 73) and his opposition to same (Docket No. 80), such motion is DENIED, without prejudice, as the Government has proffered that it will only seek to introduce such facts into the trial in the event that Gorny testifies and states that he was not involved in any illegal activity on the date in question. As such, the Court will reserve ruling on any contest to the proffered evidence until the time and place of trial and only if Gorny testifies in a manner which would prompt the Government's desire to introduce such evidence.
III. Defendant's Motion in Limine to Exclude Testimony Concerning Operability of Firearms (Docket No. 76).
The Court next denies Defendant's Motion in Limine to Exclude Testimony Concerning Operability of Firearms (Docket No. 76) given the Government's opposition thereto (Docket No. 79), and the parties' arguments at the Final Pretrial Conference. To this end, the Court agrees with Gorny's position that the prevailing caselaw in this area generally holds that evidence of operability of the firearms is not per se necessary for the Government to meet its burden of proof at trial to establish that the two items recovered on July 4, 2012 are indeed firearms within the statutory definition under 18 U.S.C. § 921(a)(3). Such definition is broad in scope and includes: "(A) any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, (B) the frame or receiver of any such weapon, (C) any firearm muffler or firearm silencer, or (D) any destructive device." 18 U.S.C. § 921(a)(3).
However, Gorny, through his counsel, has refused to stipulate that the items are firearms and reserved the right to cross-examine the Government's witnesses, (i.e., William Best of the Office of the Medical Examiner of Allegheny Count, Forensic Laboratory Division and Special Agent Andrew Hromyak of the ATF), on these points. (Docket No. 81). Hence, without such stipulation, the Government must present evidence at trial to establish that the statutory requirements under section 921(a)(3) have been met and it has chosen to do so through the proffered testimony of Mr. Best, who the Government expects will testify at trial consistent with his proffered report that he tested the two items in question and was able to shoot bullets through them. See 18 U.S.C. § 921(a)(3)(A); see also United States v. Brown, Crim. No. 12-224, 2014 WL 183077, at *3-4 (W.D. Pa. Jan. 14, 2014) (McVerry, J.). Further, to the extent that Gorny contends that the evidence from Mr. Best is cumulative to any testimony of Special Agent Hromyak, ( see Docket No. 80), Government counsel explained that Special Agent Hromyak has been out of the area on a detail for some time and has not personally tested the items to determine if they are firearms. Thus, it is presently unclear if the testimony from these proffered witnesses will indeed become cumulative and any such evaluation will have to be reserved until the time and place of trial.
Finally, the Court concurs with the recent decision of Judge McVerry in United States v. Brown, wherein he held that the probative value of the evidence of the firearms' operability does not substantially outweigh the opposing factors under Rule 403 of the Federal Rules of Evidence. See Brown, 2014 WL 183077, at *3-4 ("the fact that the firearm was operable will not necessarily inflame the passions of the jury. Accepting that argument would be tantamount to saying that any time the Government attempts to prove its case by showing that the weapon will... expel a projectile, ' the Government's evidence would be unfairly prejudicial."). Accordingly, the Court denies Defendant's Motion, without prejudice. However, the Court strongly suggests that the parties meet and confer in an effort to reach stipulations to resolve this dispute, akin to the stipulation reached in the matter of United States v. Haddix, Criminal No. 12-75 at Docket No. 112.
IV. Defendant's Motion in Limine to Exclude Testimony Based on Witness Speculation (Docket No. 77)
The Court also grants Defendant's Motion in Limine to Exclude Testimony Based on Witness Speculation, (Docket No. 77), and therefore overrules the Government's objections thereto, (Docket No. 79) and its proffer of lay opinion testimony of law enforcement witnesses that Gorny was engaged in a "ruse" or the like when he purportedly shouted that he had sweat in his eyes after being escorted by the officers to the rear of a law enforcement vehicle. Rule 701 of the Federal Rules of Evidence provides that "[i]f a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understand the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scop of Rule 702." FED. R. EVID. 701. However, the United States Court of Appeals for the Third Circuit has recognized that "[a] lay witness may not offer an opinion ...