United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART GOVERNMENT'S MOTION IN LIMINE TO EXCLUDE
EVIDENCE OF NON-CRIME
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.
Robert Real is a licensed firearms dealer and runs
Shooter's Outpost in Espanola, New Mexico. Defendant
Linda Real, 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).
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
2. All submitted Form 4473 applications, along with the ATF
response submitted by Robert Real as required pursuant to
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
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.
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.
Prior Lawful Acts.
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.
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).
Evidence of Prior Lawful Transactions is Generally not
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 ...