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United States v. Real

United States District Court, D. New Mexico

June 25, 2018



         THIS MATTER comes before the Court upon the Government's Motion in Limine to Exclude Trial Evidence of Non-crime, filed January 31, 2018 (Doc. 38). Having reviewed the parties' briefs and applicable law, the Court finds that the Government's motion is well-taken in part and, therefore, is GRANTED IN PART and DENIED IN PART.


         Defendant Robert Real is a licensed firearms dealer and runs Shooter's Outpost in Espanola, New Mexico. Defendant Linda Real[1], Mr. Real's wife, is an employee at Shooter's Outpost. She is accused of conspiracy alongside Mr. Real and their daughter, Crystal Johnson, of selling firearms to felons or prohibited possessors, falsifying firearm transfer records, and other overt acts. Defendant is accused of: selling firearms to felons, in violation of 18 U.S.C. § 922(b)(2); selling firearms to prohibited possessors, in violation of 18 U.S.C. § 922(b)(1); and falsifying firearm transfer records, in violation of 18 U.S.C. § 922(m).

         The Government seeks to bar introduction by the Defendant of evidence of prior compliance with the law. Defendant's unopposed discovery motion, which was granted, sought the following:

1.All ATF audits and compliance regulations assurance at all times when Robert Real possessed a Federal Firearms License (FFL);

2. All submitted Form 4473 applications, along with the ATF response submitted by Robert Real as required pursuant to his FFL;

3. All ATF records pertaining to declined Form 4473 applications to transfer/sell a firearm that were directed to Robert Real after a Form 4473 was submitted but denied and/or delayed.

         Doc. 37.

         The Government now seeks to suppress the above discovery at trial, to the extent it includes evidence of legal firearm transactions offered for the purpose of disproving criminal intent. Doc. 38, p.2.

         In her response, Defendant sought this information to “establish that any mistaken firearm transfers were done by accident without criminal intent and represent the statistical anomaly well within ATF acceptable statistical deviations.” Doc. 38. The Government did not file a reply brief.


         I. Prior Lawful Acts.

         The Government moves to exclude admission of specific instances of Defendant's prior lawful firearm sales as irrelevant under Fed.R.Evid. 401, as misleading or confusing under Fed.R.Evid. 403, and as inadmissible prior acts under Fed.R.Evid. 404(b). Defendant argues that such evidence is relevant to showing that the illegal firearm sales were a mistake, and a “statistical anomaly” common in sales by gun stores.

         Fed. R. Evid. 404(b) is typically used by prosecutors seeking to rely on a criminal defendant's prior bad acts as proof of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident” in the crime charged. However, such evidence introduced for defensive purposes, or ‘reverse 404(b) evidence,' “is admissible… if it tends, alone or with other evidence, to negate the defendant's guilt of the crime charged against him.” United States v. Montelongo, 420 F.3d 1169, 1174 (10th Cir. 2005). Where the Defendant seeks to introduce “reverse 404(b) evidence, ” the Tenth Circuit applies a lower standard because prejudice to the defendant is not a factor. Id. Thus, the Court applies a “straightforward balancing of the evidence's probative value against considerations such as undue waste of time and confusion of the issues.” Id. at 1174-75 (finding that relevance was not outweighed by risk of confusing jury or potential waste of time).

         II. Evidence of Prior Lawful Transactions is Generally not Relevant.

         Generally, evidence of prior lawful acts by the Defendant is not relevant to show that she did not commit other specific unlawful acts. United States v. Daulton, 266 Fed.Appx. 381, 386 (6th Cir. 2008) (affirming trial court's exclusion of specific instances of preparation non-fraudulent tax returns in case where defendant was charged with specific instances preparing fraudulent tax returns); United States v. Scarpa,897 F.2d 63, 70 (2d Cir. 1990) (“A defendant may not seek to establish his innocence, however, through proof of the absence of criminal acts on specific occasions.”); see also United States v. Dobbs,506 F.2d 445, 447 (5th Cir. 1975) (“evidence of noncriminal conduct to negate the inference of criminal conduct is generally irrelevant”); United States v. Dimora, 843 F.Supp.2d 799, 839 (N.D. Ohio 2012) (evidence that on some occasions did not take bribes did not negate allegations that he took bribes on occasions charged in indictment). Evidence of noncriminal activities “would only ...

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