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United States v. Carey

United States District Court, M.D. Pennsylvania

December 3, 2019

UNITED STATES OF AMERICA
v.
JESSE CAREY, Defendant

          MEMORANDUM

          Malachy E. Mannion, United States District Judge.

         Before the court is the unopposed July 5, 2019 motion in limine filed by the government to introduce evidence of defendant Jesse Carey's prior convictions for impeachment purposes if he testifies at trial. (Doc. 71). For the reasons set forth below, the court will GRANT IN PART the government's motion.

         I. BACKGROUND[1]

         By way of relevant background, on May 14, 2019, Carey was charged in a superseding indictment with two counts of possession with intent to distribute controlled substances, namely, cocaine and fentanyl, (Count 1), and cocaine and heroin (Count 2), both in violation of 21 U.S.C. §841(a)(1). (Doc. 61).

         On May 17, 2019, Carey was arraigned and pled not guilty to both of the charges against him. (Doc. 67).

         On July 5, 2019, the government filed its motion in limine. (Doc. 71). The government's 17-page motion incorporates its support brief.[2]

         On August 28, 2019, the defendant's motion for new counsel was granted and the court appointed attorney Leo Latella of the Federal Public Defender's Office as counsel for defendant. (Doc. 80).

         On September 27, 2019, Carey's counsel filed two pre-trial motions, namely, a motion to suppress physical evidence and statements, (Doc. 86), and a motion to dismiss the Superseding Indictment based on alleged pre-indictment delay, (Doc. 87). However, Carey's counsel did not file briefs in support of either motion as his client instructed him to withdraw the motions.

         On November 4, 2019, after conducting a full pro se representation colloquy, the court granted Carey's request to proceed pro se. (Docs. 94 & 96). The court also directed that Latella would remain as “stand-by counsel” for Carey. Further, the court allowed Carey to withdraw the present pending motions filed on his behalf, (Docs. 86 & 87), or to supplement the motions as he sees fit, and directed that his filings must be submitted by Friday, November 8, 2019.

         On November 15, 2019, Carey filed, pro se, three motions, namely, a motion to set aside default judgment, (Doc. 100), a motion for return of property, (Doc. 101), and a motion for an extension of time to file pre-trial motions, (Doc. 102). Carey also filed a brief in support of a motion to dismiss the superseding indictment. (Doc. 103).

         On November 26, 2019, Carey filed a motion to suppress evidence. (Doc. 108).

         However, to date, Carey has not filed his brief in opposition to the government's motion in limine and the time within which it was due has expired.

         The final pre-trial conference in this case was continued to December 19, 2019, and the trial until January 6, 2020.

         II. LEGAL STANDARD

         The government's motion in limine is filed pursuant to Fed.R.Evid. 609. 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).

         III. DISCUSSION

         In its motion in limine, the government seeks permission to introduce evidence of four of Carey's prior felony criminal convictions to impeach him if he testifies at trial. Despite the fact that Carey has not opposed the government's motion, the court must still consider the relevant Bedford facts. A pre-plea PSR was prepared in this case, at the request of the defendant, which indicates that Carey has the following relevant four previous adult criminal convictions:[3]

1) Manufacture or Distribution of a Controlled Substance (cocaine) and Unlawful Possession of a Weapon (handgun); Arrested 10/5/2007 in Essex County, New Jersey; Pled guilty1/30/09; Sentenced 3/13/2009 to 132 days time-served, and 5 years of probation.
2) Theft; Arrested 6/20/2011 in Essex County, New Jersey; Sentenced 10/2/2012 to 4 years' imprisonment, parole ineligible for 1 ...

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