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United States v. Santiago-Rivera

United States District Court, M.D. Pennsylvania

October 12, 2017

UNITED STATES OF AMERICA
v.
VICTOR SANTIAGO-RIVERA, Defendant

          MEMORANDUM

          MALACHY E. MANNION UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         By way of relevant background, on January 17, 2017, defendant Victor Santiago-Rivera was indicted for attempting to commit a Hobbs Act Robbery, and for being a felon in possession of a firearm. Specifically, he is charged in a two count Indictment with Interference with Commerce by Robbery of a jewelry store in Kingston, Pennsylvania, in violation of 18 U.S.C. §1951, and Felon in Possession of a Firearm, in violation of 18 U.S.C. §922(g)(1). (Doc. 11).

         On February 7, 2017, defendant was arraigned and pled not guilty to both counts against him in the Indictment. (Doc. 16). Defendant's detention from January 11, 2017 was continued.

         On August 11, 2017, the government filed a notice of intent to introduce evidence of defendant's prior crimes, wrongs, or other acts pursuant to Fed.R.Evid. 404(b)(2)(A). (Doc. 32).

         Also, on August 11, 2017, defendant filed a motion in limine, (Doc. 33), seeking to preclude the government from making any reference and admitting any evidence of his prior criminal record. Defendant simultaneously filed his brief in support. (Doc. 34).

         On August 14, 2017, defendant filed an amended motion in limine which incorporates his original motion and additionally seeks to preclude the government from referencing his gang affiliation.[1] (Doc. 36). The amended motion also seeks the court to order the government to redact all mention of his criminal record, prior bad acts and gang affiliation from the audio/video recordings between defendant and a confidential informant (“CI”) and from a recorded interview with defendant after his arrest that the government will be attempting to introduce into evidence at trial.

         On August 18, 2017, the government filed its brief in opposition to defendant's motion in limine with an attachment consisting of a list of defendant's prior criminal convictions. (Doc. 39).

         Additionally, on August 24, 2017, defendant filed a motion to suppress evidence, pursuant of Fed.R.Crim.P. 12(b)(3)(c), seeking to suppress all information seized from his cellular (“cell”) phone. (Doc. 43). On September 1, 2017, defendant filed his brief in support of his suppression motion, (Doc. 49), with attached exhibits, namely, a copy of the search warrant application for defendant's LG cell phone with the Affidavit of ATF Special Agent Jarrod C. Chittum, (Doc. 49-1), and a copy of the search warrant for defendant's cell phone, (Doc. 49-2), signed by Judge Mehalchick on January 17, 2017. On September 8, 2017, the government filed its brief in opposition to defendant's suppression motion. Defendant did not file a reply brief in support of his suppression motion and the time within which to do so has expired. (Doc. 47). The court will now consider the merits of defendant's motion in limine and conduct a balancing test and analyze the applicable Bedford factors. The court will then address defendant's suppression motion.

         II. DISCUSSION

         Defendant's motion in limine is mainly filed pursuant to Fed.R.Evid. 404(b) and 609(a)(1)(B). The motion also seeks, in part, to exclude evidence as irrelevant. It is axiomatic that “irrelevant evidence is not admissible.” Fed.R.Evid. 402. Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and if “the fact is of consequence in determining the action.” Fed.R.Evid. 401. Even if evidence is relevant, the court can exclude it if “its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.

         Federal Rule of Evidence 404(b) precludes the admission of other crimes, wrongs, or acts “to prove the character of a person in order to show conformity therewith”. However, under Rule 404(b), such evidence is admissible for legitimate evidentiary purposes such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.”

         Federal Rule of Evidence 609 pertains to the use of prior convictions for impeachment purposes and provides:

The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant[.]

Fed.R.Evid. 609(a)(1)(B).

         A. Felon In Possession Charge

         Initially, defendant contends that since he is going to stipulate that he was prohibited from possessing a firearm, (Doc. 34 at 1), the government should not be permitted to introduce his prior felony convictions for controlled substances, theft and burglary offenses with respect to the felon in possession of a firearm charge. He also appears to argue that the government should not be permitted to introduce his January 6, 2017 recorded statement in which he allegedly references his prior convictions and arrests and, his status as a parolee with respect to the felon in possession of a firearm charge. Defendant cites to Old Chief v. United States, 519 U.S. 172 (1997), for support.

         In U.S. v. Higdon, 638 F.3d 233, 241-42 (3d Cir. 2011), the Third Circuit considered whether Old Chief stands for “the proposition that evidence of a defendant's prior conviction is not admissible when a defendant offers to stipulate to the conviction” and found that it does not. Rather, the Third Circuit in Higdon, id., explained the holding of Old Chief as stated:

[The Supreme Court] held only that the “name or general character of that crime” need not be disclosed because “the fact of the qualifying conviction is alone what matters under the statute [i.e., §922(g)(1)].” Id. at 190, 117 S.Ct. 644. In fact, the Court anticipated that a jury would be informed of the stipulation about a defendant's prior conviction. The Court explained that: “the most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possession of a gun, and this point may be made readily in a defendant's admission and underscored in the court's jury instructions.” Id. at 190-91, 117 S.Ct. 644. Thus, the Supreme Court did not hold, as [defendant] contends, that the jury need not be informed of the fact of a prior conviction when that prior conviction is an element of the charged offense. On the contrary, the Court affirmed that the jury must still be made aware of the existence of a defendant's prior conviction.

See also United States v. Chevere, 368 F.3d 120, 121 (2d Cir. 2004) (The Second Circuit held that “[a]lthough a defendant may, by stipulating that he has a prior felony conviction, prevent the jury from hearing the nature or underlying facts of the conviction, he may not prevent the jury from learning the fact that he has a prior felony conviction-a ‘crucial element' of the offense.” (emphasis in original).

         Thus, since defendant's prior felony conviction is a critical element of the §922(g)(1) offense and the court is required to instruct the jury about all elements of this offense, the jury will be informed of the stipulation that defendant has a prior felony conviction that falls within the class of crimes that Congress determined should bar a person from possession of a gun.

         B. Prior Convictions and Gang Affiliation

         In his motion in limine, (Doc. 36), defendant seeks the court to preclude all evidence regarding his prior criminal record as well as statements about his criminal activities and gang affiliation which were recorded by the government. He also seeks complete exclusion of all the stated evidence for impeachment purposes, in rebuttal to his entrapment defense, and in the government's case-in-chief. In his motion, defendant states that he anticipates presenting an entrapment defense at his trial. (Doc. 36 at 2). In his brief in support of his motion, (Doc. 34 at 1), defendant categorizes his prior convictions as follows:

1. Misdemeanor and Felony Drug Offenses; 2. Other Misdemeanor and Felony offenses that are not considered crimes of dishonesty; 3. Misdemeanor and Felony crimes of dishonesty, which occurred at least seventeen (17) years prior to the instant indictment; and 4. A 2010 retail theft Misdemeanor [2nd degree] conviction.

         The government notes that at this time it does not seek to introduce defendant's prior felony convictions during its case-in-chief, and that it does not presently intend on introducing any of defendant's felony convictions older than ten years for impeachment purposes if he testifies. (Doc. 39 at 8 n. 2). As such, the court need not address any of the defendant's felony convictions older than ten years.

         The government does contend that if defendant testifies at trial, it should be allowed to impeach him by introducing evidence of his seven felony convictions for controlled substances and retail theft offenses which occurred within the past ten years.[2]

         “Rule 609 permits evidence of a prior felony conviction to be offered to impeach a testifying witness. However, when the testifying witness is also the defendant in a criminal trial, the prior conviction is admitted only ‘if the probative value of the evidence outweighs its prejudicial effect to that defendant.'” U.S. v. Caldwell, 760 F.3d 267, 286 (3d Cir. 2014) (citing Fed.R.Evid. 609(a)(1)(B)). The Third Circuit has held that this Rule “reflects a heightened balancing test” with a “predisposition toward exclusion” and, that “[a]n exception [to exclusion of the evidence] is made only where the prosecution shows that the evidence makes a tangible contribution to the evaluation of credibility and that the usual high risk of unfair prejudice is not present.” Id. (citation omitted). “When offering a prior conviction to impeach a testifying defendant, the government bears the burden of satisfying the heightened balancing test set out in Rule 609(a)(1)(B).” Id. at 289.

         The Third Circuit has “recognized four factors that should be considered when weighing the probative value against the prejudicial effect under this heightened test.” Id. at 286. The four factors are: “(1) the kind of crime involved; (2) when the conviction occurred; (3) the importance of the [defendant's] testimony to the case; [and] (4) the importance of the credibility of the defendant.” Id. at 286 (citing Gov't of Virgin Islands v. Bedford, 671 F.2d 758, 761 n. 4 (3d Cir. 1982)).

         In considering the first factor regarding the kind of crime involved, “courts consider both the impeachment value of the prior conviction as well as its similarity to the charged crime.” Id. “The impeachment value relates to how probative the prior conviction is to the witness's character for truthfulness.” Id. “With respect to the similarity of the crime to the offense charged, the balance tilts further toward exclusion as the offered impeachment evidence becomes more similar to the crime for which the defendant is being tried.” Id.

         The government maintains that in this case “the inquiry hinges on the kinds of prior convictions involved.” The government contends that Bedford factors two through four are easily resolved in favor of admitting defendant's prior convictions, which occurred within the past ten years, for impeachment purposes. (Doc. 39 at 9). The government explains as follows:

As the convictions at issue all occurred within the last ten years, they are timely under the dictates of RuIe 609. And the importance and credibility of the defendant's anticipated testimony are clear, whether he asserts an entrapment defense or sticks to his manufactured alibi. “[W]hen the defendant's credibility is a central issue, this weighs in favor of admitting a prior conviction.” United States v. Caldwell, 760 F.3d 267, 288 (3d Cir. 2014). Indeed, a defendant ...

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