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United States v. Johnson

United States District Court, M.D. Pennsylvania

November 6, 2017



          William W. Caldwell United States District Judge

         I. Introduction

         Presently before the court is the Government's notice (Doc. 98) and supporting memorandum of law (Doc. 99) regarding its intention to introduce other-act evidence, under Federal Rule of Evidence 404(b), at Defendant's trial.[1] Defendant seeks to exclude this evidence.[2] After careful consideration, we will preclude the Government from introducing its proffered Rule 404(b) evidence.

         II. Background

         The detailed factual and procedural history of this case-including the charges and allegations at issue-has already been fully set forth in our prior August 29, 2017 opinion, (Doc. 88 at 1-5). We will not repeat those details here, but instead write only to address the instant Rule 404(b) issue.

         On August 29, 2017, we ordered a new trial due to improper and prejudicial closing remarks made by the Government. (Doc. 88). In those remarks, the Government commingled the evidence from two separate events-the December 8, 2015 traffic stop (underlying Counts I, II, and III of the indictment), and the January 2, 2016 traffic stop (underlying Count IV). As we noted in that opinion, the Government attempted to use evidence from each separate traffic stop to support its case on the charge or charges stemming from the other traffic stop. That is, the Government used evidence regarding the December 8th traffic stop to bolster its case for the charge related to the January 2nd traffic stop, and vice versa. (See id. at 20-22). We found that this tactic, without proper notice, legal support, and a limiting instruction, violated Rule 404(b)'s well-settled mandates and resulted in unfair prejudice to Defendant, necessitating a new trial.

         Furthermore, in light of Defendant's previous motion to sever and motion in limine, as well as the specific problems that arose at the first trial, we severed Count IV and ordered that Counts I through III (related to the December 8th traffic stop) be tried separately. (Id. at 27). Despite what we believed to be a clear attempt to segregate the charges from the unrelated traffic stops to avoid prejudice, ten days prior to retrial for the first three counts, the Government filed a notice pursuant to Rule 404(b)(2)(A) indicating that it intended to present much of the evidence from the January 2nd traffic stop to prove its case on the December 8th charges. (See generally Doc. 98).

         Specifically, the Government stated that it intended to offer the testimony of a police officer involved in the January 2nd incident (but not the December 8th incident); testimony from an employee at the Dauphin County Booking Center who found a “clear baggie” that contained a white substance in Defendant's jacket on January 2nd; testimony from a forensic scientist who would confirm that this white substance found on January 2nd was cocaine base and weighed 2.45 grams; and expert testimony from a detective who would testify regarding the January 2nd bag and its contents, that the bag contained a “feeder rock” indicative of being possessed for distribution, and that drug dealers often carry multiple phones and use “burner phones.” (Id. at 1-4). The Government also indicated that it intended to submit as evidence the aforementioned baggie, its contents, and two cellular phones found on January 2nd. (Id. at 2). The Government contends that all of this evidence is admissible to prove “intent and knowledge” regarding the charges stemming from the December 8th traffic stop. (Id. at 4).

         Unsurprisingly, Defendant asserts that this January 2nd evidence is inadmissible for the trial involving Counts I, II, and III related to the December 8th stop. (Doc. 103). Defendant primarily argues that the Rule 404(b) issue was already litigated as part of this court's prior August 29, 2017 decision, and that the Government is attempting to reargue what is essentially a decided matter.

         Although we disagree with Defendant's characterization, for the reasons that follow, we find that the Government's proffered January 2nd other-act evidence is inadmissible. Accordingly, we will preclude the Government from introducing that evidence at Defendant's trial on the counts of the indictment related to the December 8th traffic stop.

         III. Discussion

         Federal Rule of Evidence 404(b) provides that “[e]vidence 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 acted in accordance with the character.” Fed.R.Evid. 404(b)(1). An exception to this rule provides that such “evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). In a criminal case, where evidence is offered to prove a proper, non-propensity purpose under Rule 404(b)(2), the prosecutor should provide “notice of the general nature of any such evidence that the prosecutor intends to offer at trial.” Fed.R.Evid. 404(b)(2)(A).

         “Rule 404(b) is a rule of general exclusion, ” and “directs that evidence of prior bad acts be excluded-unless the proponent can demonstrate that the evidence is admissible for a non-propensity purpose.” United States v. Repak, 852 F.3d 230, 240 (3d Cir. 2017) (quoting United States v. Caldwell, 760 F.3d 267, 276 (3d Cir. 2014)). “Because Rule 404(b) is a rule of general exclusion, the party seeking to admit other-acts evidence has ‘the burden of demonstrating [the evidence's] applicability.'” Id. at 241 (quoting Caldwell, 760 F.3d at 276).

         “Admissibility under Rule 404(b) requires the satisfaction of four distinct steps: (1) the other-acts evidence must be proffered for a non-propensity purpose; (2) that evidence must be relevant to the identified non-propensity purpose; (3) its probative value must not be substantially outweighed by its potential for causing unfair prejudice to the defendant; and (4) if requested, the other-acts evidence must be accompanied by a limiting instruction.” Id. “This methodical process requires ‘careful precision' by both the proponent in proffering the [other] act evidence and by ...

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