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United States v. Twaddle

United States District Court, D. New Mexico

October 26, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JERRY O. TWADDLE, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE

         This case is before the Court on Defendant Jerry O. Twaddle's Motion in Limine to exclude evidence of prior bad acts. (Doc. 278.) Defendant's Motion is in response to the Government's Notice of Intent to Introduce Evidence of Bad Acts Under Rule 404(b). (Doc. 256.)[1] The case involves three counts charging violations of federal narcotics laws, including conspiracy. The Government seeks to introduce evidence in its case-in-chief that Defendant sold methamphetamine to an undercover agent approximately six months before the alleged conspiracy began. Defendant seeks an order preventing the Government from introducing evidence of the prior drug sale without first seeking court permission outside the hearing of the jury. Having considered the submissions of counsel and relevant law, the Court will grant in part and deny in part Defendant's Motion in Limine, as described below.

         I. Relevant Facts

         Defendant is charged in Counts 1, 28, and 31 of the Indictment with several violations of federal narcotics laws related to possession and trafficking of methamphetamine. (Doc. 2 at 2, 20- 21.) These charges include violations of 21 U.S.C. § 846, conspiracy to violate federal laws pertaining to narcotics; § 843(b)(1), using a communication device to further the commission of a drug trafficking crime; and §§ 841(a)(1) and (b)(1)(A), possession with intent to distribute 500 grams and more of a mixture and substance containing methamphetamine. (Id. at 2, 20-21.)

         In Count 1, Defendant is charged with conspiring to distribute methamphetamine. (Id. at 2.) The Indictment charges that the conspiracy lasted from approximately May 8, 2017, until October 3, 2017. (Id.) In Count 28, Defendant is charged with using a telephone to further the commission of a drug trafficking crime by allegedly communicating[2] with Marcos Martinez on September 6, 2017, to coordinate Defendant picking up two pounds of methamphetamine from Martinez's residence and leaving $5, 000 in its place. (Id. at 20; see also Doc. 256 at 2.) After he retrieved the methamphetamine, Defendant allegedly threw it from his vehicle during a high-speed chase after investigating officers attempted a traffic stop. (Doc. 256 at 3.) Based on this series of events, Defendant is charged in Count 31 with “unlawfully, knowingly, and intentionally possess[ing] with intent to distribute a controlled substance, 500 grams and more of a mixture and substance containing a detectable amount of methamphetamine.” (See Doc. 2 at 21.)

         The Government intends to introduce evidence in its case-in-chief that on October 20, 2016, approximately six months prior to the beginning of the charged conspiracy, Defendant sold one ounce of methamphetamine to a confidential informant who was equipped with an audio and video recording device. (Doc. 256 at 4-5.) “In the recording, [Defendant] retrieves a package of methamphetamine from his pocket and hands the [informant] what agents later confirmed to be one ounce of methamphetamine . . . . then counts the money the [informant] provided him for the methamphetamine in view of the camera.” (Id.) Though the alleged drug sale in October 2016, was never charged, the Government seeks to utilize it in this case to show Defendant's “motive, intent, knowledge, opportunity, and lack of mistake” regarding the charged crimes, pursuant to Federal Rule of Evidence 404(b). (Id. at 6.)

         The Government seeks to offer the alleged drug sale “to show that [Defendant] had knowledge of, and intended to enter into the drug conspiracy charged in this case.” (Doc. 281 at 2.) The government anticipates Defendant's defense will “be aimed at attempting to negate Defendant's knowledge of the methamphetamine seized . . . and his knowledge of the drug conspiracy, ” and thus the alleged prior drug sale is relevant to show knowledge. (Id. at 5.) Further, it asserts that the evidence is relevant to demonstrate intent to enter into the conspiracy, which is an element of conspiracy it must prove and “Defendant has given no pretrial assurances that he does not intend to dispute criminal intent.” (Id.)

         Defendant argues that the Government has not offered any specific reason for introducing the evidence and has not adequately explained how it will be used in its case-in-chief. (See Doc. 278 at 2 (“The government simply states that ‘it is likely that intent and lack of knowledge will be material issues in this case.'”) (quoting Doc. 256 at 6-7).) Defendant argues that since the Government has not shown specific factual instances in which it needs to use the evidence to prove intent or lack of knowledge, it should be ordered not to present evidence of the prior drug transaction for now. (Id. at 3.) But, if Defendant “raised a defense that made the prior transaction admissible, the Court might conduct a new balancing test” and could determine the admissibility of such evidence outside the hearing of the jury. (Id.)

         II. Legal Standard

         Under Federal Rule of Evidence 404(b)(1), “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” But such evidence may be admissible if offered to prove something other than criminal propensity, including “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). In the Tenth Circuit, courts apply the four-part test articulated in Huddleston v. United States, 485 U.S. 681 (1988), to determine the admissibility of Rule 404(b) evidence:

(1) [the] evidence of other crimes, wrongs, or acts must be introduced for a proper purpose; (2) the evidence must be relevant; (3) the court must make a Rule 403 determination whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) the court, upon request, must instruct the jury that the evidence of similar acts is to be considered only for the limited purpose for which it was admitted.

United States v. Diaz, 679 F.3d 1183, 1190 (10th Cir. 2012) (internal citation omitted).

         The Tenth Circuit has held that relevant evidence of other crimes or acts should be admitted “except that which tends to prove only criminal disposition.” United States v. Tan, 254 F.3d 1204, 1208 (10th Cir. 2001) (citations omitted). Under this “inclusive” approach, “[t]he government bears the burden of showing that the proffered evidence is relevant to an issue other than character, ” United States v. Youts, 229 F.3d 1312, 1317 (10th Cir. 2000) (citation omitted), and must “articulate precisely the evidentiary hypothesis by which a fact of consequence may be inferred.” United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir. 1985); see also United States v. Commanche, 577 F.3d 1261, 1226 (10th Cir. 2009).

         III. ...


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