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United States v. Johnson

United States District Court, M.D. Pennsylvania

March 16, 2018



          Yvette Kane, District Judge

         Before the Court are the Government's motions in limine (Doc. Nos. 123, 135) and its notice (Doc. No. 124) of intent to introduce evidence pursuant to Federal Rule of Evidence 404(b). For the reasons provided herein, the Court will grant in part and deny in part the Government's motions in limine, will preclude the Government from admitting Defendant's prior drug-distribution convictions, will permit the Government to admit limited evidence regarding Defendant's 2015 drug screenings, and will exclude the prior statements to parole agents.

         I. BACKGROUND

         The detailed factual and procedural history of this case-including the charges and allegations at issue-has already been fully set forth in a prior August 29, 2017 opinion, (Doc. No. 88 at 1-5), issued by the Honorable William W. Caldwell. Upon Judge Caldwell's retirement, this case was reassigned to the undersigned.

         The Court will not repeat the extensive details from the August 29, 2017 opinion here, but instead will write only to address the pending motions in limine and Rule 404(b) issues. A brief procedural history is nonetheless required.

         In December of 2016, Defendant was tried and convicted on all counts of a four-count indictment. (Doc. Nos. 57-58.) Counts I, II, and III stem from circumstances surrounding a December 8, 2015 traffic stop (“December 8th stop”), and Count IV involves allegations regarding a subsequent, unrelated traffic stop on January 2, 2016 (“January 2nd stop”). (Doc. No. 88 at 1-5.) After his conviction, Defendant moved for a new trial. (Doc. No. 76.)

         Judge Caldwell granted a new trial due to improper and prejudicial closing remarks made by the Government in the first trial. (Doc. Nos. 88, 89.) In those remarks, the Government improperly commingled the evidence from the two separate traffic stops. (See generally Doc. No. 88.) As noted in the August 29, 2017 opinion, the Government had attempted to use evidence from each separate traffic stop to support its case on the charge or charges stemming from the other traffic stop. (Id.) Judge Caldwell found that this tactic, without proper notice, legal support, and a limiting instruction, violated Federal Rule of Evidence 404(b)'s well-settled mandates and resulted in unfair prejudice to Defendant, necessitating a new trial. (See generally Doc. No. 88.) 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, Judge Caldwell severed Count IV and ordered that Counts I through III (related to the December 8th stop) be tried separately. (Id. at 27.)

         Prior to the second trial addressing Counts I through III, the Government filed a notice pursuant to Federal Rule of Evidence 404(b)(2) indicating that it intended to present much of the evidence from the January 2nd stop to prove its case on the December 8th charges. (See generally Doc. No. 98.) Defendant opposed the introduction of this other-act evidence. (See generally Doc. No. 103.)

         Shortly before trial, Judge Caldwell ruled that the proffered Rule 404(b) evidence was inadmissible. (Doc. No. 104.) A memorandum fully explaining that decision was issued several days after the trial concluded. (Doc. No. 116.)

         In that memorandum, Judge Caldwell provided several reasons why the January 2nd evidence was inadmissible under Rule 404(b) to prove the charges stemming from the December 8th stop. First, the Government had failed to identify a proper, non-propensity purpose for the evidence. (Doc. No. 116 at 7-9.) Although it had proffered two non-propensity purposes enumerated in Rule 404(b)(2)-knowledge and intent-upon closer scrutiny neither of the proffered purposes applied because neither was “at issue” in the trial on Counts I through III. (Id.)

         Specifically, knowledge was not at issue because Defendant neither denied knowing that a gun was discovered in the vehicle nor contended that he unknowingly possessed the gun; rather, he simply denied that the gun was his and that he ever possessed it. (Id. at 7-8.) The Government had also argued that the 404(b) evidence was admissible to show intent because Count I-attempt to distribute cocaine base-contained an intent mens rea. (Id. at 8.) In denying this argument, Judge Caldwell explained that the Third Circuit has explicitly rejected such a tactic, as admitting evidence of a prior conviction any time a defendant denied guilt of a similar charge containing a “knowledge” or “intent” mental state would “eviscerate Rule 404(b)'s protection and completely swallow the general rule against admission of prior bad acts.” (Id. at 8-9 (quoting United States v. Caldwell, 760 F.3d 267, 281 (3d Cir. 2014).)

         Second, assuming intent qualified as a proper non-propensity purpose, Judge Caldwell explained that the Government had also failed at the second step of the Rule 404(b) process. (Id. at 9-13.) That is, the Government had “failed to connect the proffered other-act evidence to a permissible purpose [intent to distribute on December 8th] without using a forbidden propensity inference.” (Id. at 13.)

         At the second trial on Counts I through III, Defendant was found guilty on Count I (attempt to distribute cocaine base), and acquitted on Counts II and III (the firearms charges). (Doc. Nos. 111, 115.) The second trial on the remaining Count IV (possession with intent to distribute cocaine base on January 2, 2016) is scheduled to begin on March 20, 2018. (Doc. No. 121.)

         As noted, the Government intends to introduce Rule 404(b) evidence at the upcoming trial. (Doc. No. 124.) The Government plans to present evidence of Defendant's previous 2006 and 2012 drug distribution convictions to prove that Defendant knowingly possessed and intended to distribute cocaine base on January 2, 2016. (Id. at 2-3.) It also intends to introduce testimony that Defendant was subjected to random drug testing from September 2015 to December 2015 and had no positive tests for cocaine or cocaine base during that time. (Id. at 3.) Evidence of negative drug tests would be offered to show intent to distribute, rather than personal use. Finally, in its most recent motion in limine, (Doc. 135), the Government seeks to admit statements Defendant allegedly made to state parole board agents during interviews for previous convictions. These statements mainly deal with Defendant's alleged drug and alcohol history.

         Defendant argues that none of this other-act evidence is admissible in the upcoming trial. He contends that the Government has not met its burden under Rule 404(b) to demonstrate why the multiple pieces of other-act evidence are admissible to prove Count IV. (Doc. No. 137 at 12-23 .)

         The Government has also moved in limine to introduce certain intrinsic evidence. First, the Government has moved to admit a statement Defendant purportedly made-after receiving Miranda warnings-during booking for his January 2nd arrest. (Doc. No. 123 at 2.) A second motion in limine seeks to introduce evidence that when Defendant fled from the scene on January 2nd, he “struck a parked patrol car, nearly struck [a law enforcement officer], and struck a parked car containing a mother and four-year[-]old child.” (Id. at 3.)

         Defendant does not dispute the admissibility of the alleged booking statement. (Doc. No. 137 at 6 n.1.) He does, however, dispute the admissibility of the prejudicial details of his flight from police, and argues that the Government has not provided an adequate reason to alter Judge Caldwell's prior decision on this issue. (Id. at 10-11.)

         The motions have been fully briefed and are now ripe for disposition.


         The Government has raised multiple evidentiary issues-some new, and some that have been previously litigated. The Court will address each issue in turn.

         A. The Government's Motions In Limine Dealing with Intrinsic Evidence

         As noted, the Government has moved in limine to introduce a statement Defendant purportedly made during booking for his January 2nd arrest. (Doc. No. 123 at 2.) A second motion in limine seeks to introduce evidence that when Defendant fled from the scene on January 2nd, he “struck a parked patrol car, nearly struck [a law enforcement officer], and struck a parked car containing a mother and four-year[-]old child.” (Id. at 3.)

         1. Alleged Statement at Booking

         According to the Government, when the cocaine base at issue in Count IV was discovered in Defendant's jacket during a search performed by Richard Swanson (“Swanson”) at the Dauphin County Booking Center, Defendant responded in a manner indicating either that the substance was not his, or that he did not know what the substance was. The Government seeks to have Swanson testify regarding what Defendant said to him when the package of suspected narcotics was found. Judge Caldwell excluded this statement at the first trial because it had only been disclosed to defense counsel several days before trial.[1] (See Doc. No. 65 at 144, Dec. 2016 Trial Tr. vol 1, 144 [hereinafter “Doc. No. 65”].)

         Initially, the Court notes material inconsistencies in the proffered statement that run throughout the Government's motion, briefing, and exhibits. In the motion in limine itself, the Government contends that the statement Defendant made to Swanson, after being presented with the suspected drugs found in the jacket, was “I don't know what that is, ” or words to that effect. (Doc. No. 123 at 2.) That same statement is repeated twice in the brief in support of the motion in limine. (Doc. No. 126 at 14, 29.)

         However, in the same brief, the Government indicates that the statement Defendant allegedly made was “it's not mine, I've never seen it before.” (Id. at 18.) Likewise, in the exhibits to the brief, the statement provided to defense counsel on the eve of the first trial was “it's not mine, I've never seen it before.” (Doc. No. 126-2 at 2.)

         The differences between these statements are not meaningless. The first statement implies lack of knowledge that the package contained illegal narcotics. The second implies lack of guilt for possessing illegal narcotics, i.e., “they are not my narcotics.” Because the second statement (“it's not mine, I've never seen it before”) appears in the December 2, 2016 supplemental pretrial disclosure to defense counsel, (Doc. No. 126-2 at 2), the Court will assume this statement more accurately reflects Swanson's proffered testimony.

         Although the admissibility of this statement is not challenged by Defendant, it nonetheless merits a brief discussion as it appears to be tethered to the Government's Rule (404)(b) argument. In its Rule 404(b) notice and briefing, the Government contends that Defendant's past drug-distribution convictions are admissible to prove his “knowledge that he possessed crack cocaine.” (Doc. No. 126 at 29.) Specifically, the Government argues that Defendant “placed this issue in question with his statement to Swanson.” (Id.) The record likewise reflects that the only way knowledge could be considered at issue in the trial on Count IV is by the alleged booking statement. This is particularly true when, during the first trial, Defendant opened with a statement conceding knowing possession of a controlled substance on January 2nd. (See, ...

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