United States District Court, W.D. Pennsylvania
Barry Fischer U.S. District Judge.
multi-defendant heroin trafficking conspiracy case remains
set for jury selection and trial to commence on April 24,
2017 at 9:30 a.m. (Docket No. 1774). The Court is considering
the proposal by the Government to conduct two trials in this
matter as is noted in the Third Trial Plan filed on March 31,
2017. (Docket No. 2102). Presently before the Court are three
motions challenging the admissibility of Rule 404(b) evidence
filed by Defendants Lance Gardenhire, Hakeem Duell, and
Christopher Brown. (Docket Nos. 2124; 2130; 2142). The
Government opposes the motions and seeks the admission of the
challenged evidence, for reasons set forth in its responses.
(Docket Nos. 2170; 2171; 2172). After careful consideration
of the parties' arguments, and for the following reasons,
Defendants' Motions , ,  are denied.
three of the Defendants (Lance Gardenhire, Hakeem Duell and
Christopher Brown) are charged with conspiracy to distribute
1 kilogram or more of heroin from March 2012 to May 21, 2015.
(Count 1S). Lance Gardenhire is also charged with: attempt to
possess with intent to distribute 1 kilogram or more of
heroin from August 1, 2014 to August 2, 2014, (Count 2S);
conspiracy to commit money laundering from March 2012 to May
21, 2015, (Count 3S); and possession of a firearm in
furtherance of the heroin trafficking conspiracy from March
2012 to May 21, 2015, (Count 7S). Hakeem Duell is
additionally charged with: possession of a firearm in
furtherance of possession with intent to deliver heroin on
November 24, 2014, (Count 19S); felon in possession of a
firearm on November 24, 2014, (Count 23S); and possession
with intent to distribute and distribution of heroin on
November 24, 2014, (Count 47S). Christopher Brown is charged
with: possession of a firearm in furtherance of the heroin
trafficking conspiracy from March 2012 to May 21, 2015,
(Count 12S); and, possession with intent to distribute
heroin, on May 21, 2015, (Count 53S).
Gardenhire, Hakeem Duell and Christopher Brown have each
stipulated with the Government that the drug lab reports from
seizures during the investigation may be admitted into
evidence, with the caveat that Defendants may dispute how or
from whom the heroin was seized and the evidentiary value of
the heroin. (Docket No. 2208). Additionally, the Government
and Hakeem Duell have stipulated that “DeAndre
Farrington pled guilty in Allegheny County Court to
possession of a prohibited firearm identified as a Stag Arms
AR-15 found in the Cadillac occupied by him and Defendant
Hakeem Duell on November 24, 2014.” (Docket No. 2208 at
¶ 1). They have further stipulated that the firearm was
“manufactured outside of Pennsylvania and, therefore,
traveled across state lines prior to being present in
Pennsylvania, ” and that prior to that episode, Duell
was convicted of a crime punishable by imprisonment for a
term exceeding one year. (Id. at ¶¶ 3, 6).
The parties then stipulate to the admission of the excerpt of
the state preliminary hearing transcript from a hearing held
on December 4, 2014 at Govt. Ex. 19. During that hearing,
Duell testified as follows:
Q. Now, sir, were you a passenger in a Cadillac vehicle
parked on Brownsville Road?
A. Yes, sir.
Q. Did you come to place an AR 15 in that vehicle at some
A. Yes, sir.
Q. You put the gun in the vehicle?
A. Yes, sir.
Q. You possessed it?
A. Yes, sir.
Q. My client [Deandre Farrington] never possessed it?
A. No, sir.
(Govt. Ex. 19).
his prior testimony, as a defense to the charges at trial,
Duell has proffered, among other things, that “[o]n
November 24, 2014, Mr. Duell was a passenger in a Cadillac
operated by Deandre Farrington and did not own, possess, or
exercise control over an AR-15 located in the rear of the
vehicle. He subsequently accepted blame for the firearm for
the benefit of his friend, Deandre Farrington. Any and all
heroin found in Mr. Duell's possession was for personal
use and not for sale or delivery to others.” (Docket
No. 2188). While the firearm charge against Farrington was
resolved in state court, Duell's state charges were nolle
prossed in favor of this federal prosecution.
of a criminal defendant's conduct which is not charged in
the indictment, including crimes, wrongs or other acts, may
be admissible if: (1) the evidence is intrinsic to the
charged offense; or, (2) the evidence is extrinsic to the
charged offense but is offered for a proper purpose under
Rule 404(b). See United States v. Green, 617 F.3d
233, 249 (3d Cir. 2010), cert. denied, 131 S.Ct.
363, 178 L.Ed.2d 234 (2010); United States v.
Williams, 647 F.App'x. 144, 147 (3d Cir. 2016)
(same). In the Third Circuit, uncharged acts are considered
intrinsic to the charged offense if such acts “directly
prove” the charged offense, or are “performed
contemporaneously with the charged crime” and
“facilitate the commission of the charged crime.”
Id. at 248-49. This type of evidence is admissible
without the need for the government to provide notice to the
defense prior to trial or for the Court to provide limiting
instructions to the jurors during trial. Id.
Uncharged acts which do not come within this definition of
intrinsic evidence constitute extrinsic evidence and must
meet the requirements of Rule 404(b) prior to being admitted
at trial. Rule 404(b) bars “the introduction of
evidence of extrinsic acts that might adversely reflect on
the actor's character.” Huddleston v. United
States, 485 U.S. 681, 685, 108 S.Ct. 1496, 99 L.Ed.2d
404(b) provides, in pertinent part, that:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act
is not admissible to prove a person's character in order
to show that on a particular occasion the person ...