United States District Court, E.D. Pennsylvania
before the Court are Defendant Mark Manigault's Motion in
Limine to Limit Testimony and Video Evidence (ECF No. 155),
and the Government's Response in opposition thereto (ECF
No. 156). For the following reasons, Defendant's Motion
will be denied.
February 16, 2017, a grand jury returned a one-count
Indictment charging Defendant with being a felon in
possession of a firearm, specifically, a nine-millimeter
semiautomatic handgun with serial number TC028448, in
violation of 18 U.S.C. § 922(g)(1). (Indictment, ECF No.
4.) Defendant's trial is currently scheduled for
September 30, 2019. (5/23/2019 Order, ECF No. 147.)
who is proceeding pro se with court-appointed
standby counsel, has filed more than twenty pretrial motions.
With the instant Motion, Defendant seeks to preclude the
Government from introducing: (1) any evidence, including
videotape evidence, relative to Tamir Austin, the individual
who was with Defendant at the time of the events that led to
Defendant's arrest and Indictment in this case; and (2)
testimony by Philadelphia Police Officers Eugene Roher and
Jeremy Olesik regarding their participation in or roles with
the tactical squad of the 18th District or their alleged
knowledge of or prior contact with Defendant and Austin.
Defendant contends that both categories of evidence should be
excluded as not relevant under Federal Rule of Evidence 401,
and as substantially more prejudicial than probative under
the balancing test of Rule 403.
circumstances relevant to the instant Motion are as
follows. On the night of September 27, 2016,
Officers Roher and Olesik were on patrol in a marked police
vehicle in the area of the 5400 block of Osage Avenue.
(11/14/2018 Hr'g Tr. 24-25, 110, ECF No. 106 (on file
with Court).) While on patrol, the officers saw Defendant and
Austin sitting on the steps outside the front of a residence
at 5407 Osage Avenue. (Id. at 25-26, 113.) At that
time, Officers Roher and Olesik were partners assigned to the
tactical squad of the 18th District. (Id. at 19, 21,
107.) As members of the tactical squad, the officers'
duties included "address[ing] issues of concern in the
area, such as robberies, shootings, [and] drug sales."
(Id. at 19.) This entailed collecting intelligence
on criminal activity and "becom[ing] familiar with the
people in the area that [were] committing crime, [and]
familiar with the locations that certain individuals
associated together." (Id. at 19; see also
Id. at 106-07.) The officers testified that Defendant
and Austin were both known to them as individuals associated
with criminal activity who had previous contact with law
enforcement. (Id. at 22-23, 107-10.)
Roher and Olesik were surprised to see Defendant and Austin
sitting together because, based on the officers'
experience, the two men were associated with two different
groups that engaged in drug sales-Defendant with a group on
Delancey Street, and Austin with a group on Irving Street.
(Id. at 23, 26-27, 108-09, 113.) In addition, the
officers knew that neither Manigualt nor Austin lived on the
5400 block of Osage Avenue. (Id. at 90, 113.) The
officers drove past the two men and made eye contact with
them. (Id. at 28; 11/15/2018 Hr'g Tr. 20, ECF
No. 107 (on file with Court).) The officers then circled the
block in their vehicle and, when they returned to the 5400
block of Osage Avenue, Defendant and Austin were sitting on a
wall near the front of the Katnip Bar, which is located on
54th Street near the intersection with Osage Avenue.
(11/14/2018 Hr'g Tr. 28-29, 114.) The officers stopped
their car, walked over to Defendant and Austin, and began
speaking with them. (Id. at 29-30, 115.) Defendant
and Austin each lifted their shirts to reveal that they did
not have any weapons in their waistbands. (Id. at
30, 115.) Officer Olesik briefly returned to the police car
and determined by a computer search that there were no active
warrants for Defendant or Austin. (Id. at 30-31,
Officer Olesik continued to talk with Defendant and Austin,
Officer Roher walked back toward the location where the
officers had first seen the two men and, using a flashlight,
looked under the wheel wells of vehicles parked on the
street. (Id. at 115.) While doing so,
Officer Roher saw the black handle of a handgun in the rear,
passenger side wheel well of a black Mazda parked facing west
on the north side of Osage Avenue. (Id. at 31-32,
116, 119; 11/15/2018 Hr'g Tr. 23.) Upon finding the gun,
Officer Roher notified Officer Olesik, and the officers
placed Defendant and Austin in the back of their police car.
(11/14/2018 Hr'g Tr. 31-33, 116-17.) Both officers walked
back to the car where Officer Roher had observed the first
gun, then continued retracing the route Manigault and Austin
had taken. (Id. at 34-35.) The officers then saw a
second firearm in the front, passenger side wheel well of a
different vehicle, a red Ford. (Id. at 34-35, 47,
49, 117.) Officer Roher testified that he believed there was
one car parked between the black Mazda, where the first gun
was located, and the red Ford, where the second gun was
found. (Id. at 117-18.) He testified that both
vehicles were approximately five to ten feet away from the
location where the officers initially saw Defendant and
Austin sitting together. (Id. at 118.) Officers
Roher and Olesik did not remove either gun from the locations
where they observed them. (Id. at 69, 118.)
Roher then went into the Katnip Bar and viewed the videotape
from a security camera at the front exterior of the premises
("Katnip 1 Video"). (Id. at 33-34, 36,
118; Gov't Ex. 15.) The officers testified that the
Katnip 1 Video shows Austin and Manigault walking on Osage
Avenue, then Austin placing an object under the rear,
passenger side wheel well of the black Mazda. (11/14/2018
Hr'g Tr. 33-34, 36, 118-19.) Austin and Defendant then
continued walking out of the view of the Katnip 1 Video.
(Id. at 119.) After calling other police personnel
to secure the scene, Officers Olesik and Roher transported
Defendant and Austin to the Southwest Detective Division for
further investigation. (Id. at 38-39, 119-20.)
early morning hours of September 28, 2016, Detective Dennis
Slobodian of the Southwest Detective Division arrived at the
scene and recovered the two handguns and the Katnip 1
Video. (11/15/2018 Hr'g Tr. 64, 67, 69,
74-75.) Detective Slobodian also recovered a second video
("Katnip 2 Video"), which depicts the corner of
54th Street and Osage Avenue in front of the Katnip Bar.
(Id. at 79-80; Gov't Ex. 16.) The Katnip 2 Video
shows Defendant and Austin walking by, then shows Officers
Roher and Olesik exiting their vehicle and walking toward the
two men, and later shows the officers walking Defendant and
Austin to the officers' car. (11/15/2018 Hr'gTr.
September 29, 2016, Southwest Detectives recovered a third
video from the night of September 27, 2019, obtained from a
digital recorder at a private residence in the 5400 block of
Osage Avenue (the "Residence Video"). (Id.
at 123-26; Gov't Ex. 17.) Officer Roher testified that
the Residence Video shows Defendant and Austin walking
together, then Austin placing an object on the tire of the
black Mazda where the officers located the first firearm,
then Defendant placing an object in the front, passenger side
wheel well of the red Ford where the second firearm was
found. (11/15/2018 Hr'g Tr. 15-19.) Approximately two
minutes later, the video shows the officers' vehicle
passing Defendant and Austin as they sat on the steps in
front of 5407 Osage Avenue, then the Defendant and Austin
walking on Osage Avenue toward 54th Street, then the
officers' vehicle returning to the 5400 block of Osage
Avenue, where the officers approached Defendant and Austin in
front of the Katnip Bar. (Id. at 19-21.) Officer
Roher testified that the Residence Video later depicts him
walking down the street with his flashlight, observing the
first handgun and returning to notify Officer Olesik, then
the officers placing Defendant and Austin in the back of
their patrol car, then Officer Roher doing another walk
through and locating the second gun. (Id. at 22-24.)
401 broadly defines evidence as relevant if: "(a) it has
any tendency to make a fact more or less probable than it
would be without the evidence; and (b) the fact is of
consequence in determining the action." Fed.R.Evid. 401;
see also United States v. Green,617 F.3d 233, 251
(3d Cir. 2010). "Rule 401 's definition of relevance
is 'very broad' and 'does not raise a high
standard."' United States v. Leake, 396
Fed.Appx. 898, 903 (3d Cir. 2010) (quoting Gibson v.
Mayor and Council of City of Wilmington,355 F.3d 215,
232 (3d Cir.2004)). Pursuant to Rule 402, all relevant
evidence is admissible unless otherwise provided by the U.S.
Constitution, a federal statute, or the Rules. Fed.R.Evid.
402. Moroever, "evidentiary relevance under Rule 401 [is
not] affected by the availability of alternative proofs"
of the element of the offense to which the evidence pertains.
Old Chief v. United States,519 U.S. 172, 179
(1997). In other words, otherwise relevant evidence is not
rendered irrelevant simply because other related evidence