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United States v. Young

United States District Court, D. New Mexico

January 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
APACHE YOUNG, Defendant.

          John C. Anderson United States Attorney Paul H. Spiers Kristopher N. Houghton Paul Edward Schied Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Jennifer J. Wernersbach Law Offices of Jennifer J. Wernersbach, P.C. Albuquerque, New Mexico and Charles E. Knoblauch Charles E. Knoblauch Attorney at Law Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Defendant's Motion in Limine to Exclude Mention of West Mesa Burials, filed September 10, 2018 (Doc. 74)(“Burials Motion”); (ii) the Defendant's Motion in Limine to Exclude Mention of Panties, filed September 10, 2018 (Doc. 75)(“Panties Motion”); (iii) the Defendant's Motion in Limine to Exclude Opinion as to Source of Tattoos, filed September 10, 2018 (Doc. 76)(“Tattoos Motion”); (iv) the Defendant's Motion in Limine to Exclude Mention of and Speculation Regarding Items Observed in Old Water Tank, filed September 12, 2018 (Doc. 82)(“Items Motion”); (v) the United States' Notice Pursuant to Federal Rule of Evidence 609, filed November 8, 2018 (Doc. 121)(“609 Notice”); (vi) the United States' Motion in Limine Requesting that Counsel be Precluded from Referencing the First Trial, from Making Arguments Unsupported by the Record, and From Asking Inappropriate Questions on Direct or Cross-examination, filed November 23, 2018 (Doc. 123)(“First Trial Motion”); (vii) the United States' Motion in Limine to Allow Cross-examination of Defense Witnesses Regarding the Contents of Defendant's Red Dodge Pick-up Truck, filed November 9, 2018 (Doc. 124)(“Contents Motion”); and (viii) the United States' Motion in Limine to Allow the Testimony at Trial of N.M. Probation and Parole Officer Ronald Barela, filed November 22, 2018 (Doc. 127)(“Testimony Motion”). The Court held hearings on September 12, 2018, and November 28, 2018. The primary issues are: (i) whether the Court should preclude references to the West Mesa burials or murders, [1] which continue to receive considerable media coverage; (ii) whether the Court should preclude references to women's underwear found in Defendant Apache Young's pickup truck; (iii) whether the Court should preclude references to the likely source of Young's tattoos as prison tattoos; (iv) whether the Court should preclude mention of or speculation regarding the items -- feces, blood, and a purported children's water toy -- that Albuquerque Police Officer Jason Harvey observed in the water tank near Young's pickup; (v) whether the Court should, if Young elects to testify at trial, permit Plaintiff United States of America to introduce, pursuant to rule 609 of the Federal Rules of Evidence, the name of the crimes, the dates of the crimes, and the imposed sentences in Young's prior convictions; (vi) whether the Court should preclude mention of the first trial, which ended in a mistrial, at the second trial; (vii) whether the Court should permit cross-examination of Young's witnesses regarding the contents of Young's pickup truck; and (viii) whether the Court should allow the United States to call New Mexico Probation and Parole Officer Ronald Barela to testify about the terms and conditions of Young's probation, which disqualified Young from possessing firearms. The Court concludes that it will preclude, in Young's second trial on the felon in possession charge, references to: (i) the West Mesa burials or murders; (ii) the women's underwear found in Young's truck; (iii) the likely source of Young's tattoos; (iv) the items that Harvey observed in the water tank; (v) Young's prior convictions' names and sentences for impeachment purposes; (vi) Young's September 17, 2018, trial; (vii) cross-examination of Young's witnesses regarding the women's underwear, brass knuckles, methamphetamine pipe, and pornography, but not reference to the ski mask, shovel, marijuana, marijuana pipe, and alcohol; and (viii) Barela's testimony about Young's probation terms and conditions, because the Court concludes that the precluded references' prejudice to Young substantially outweighs their probative value.

         PROCEDURAL BACKGROUND

         On March 14, 2017, a federal grand jury returned an indictment[2] charging Young with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). See Indictment at 1, filed March 14, 2017 (Doc. 2). The Court ordered Young's trial to commence on September 17, 2018. See Order to Continue at 2, filed September 7, 2018 (Doc. 69). Before trial, Young filed the Burials Motion, the Panties Motion, the Tattoos Motion, and the Items Motion. See Burials Motion at 1; Panties Motion at 1; Tattoos Motion at 1; Items Motion at 1.

         1. The Burials Motion.

         In the Burials Motion, Young moves the Court to preclude testimony or evidence regarding or mentioning the “infamous West Mesa Burials.”[3] Burial Motion at 1. Young notes that the West Mesa is the scene of an unsolved homicide investigation involving “eleven dead human bodies, ” Burial Motion at 1-2, and that Young's arrest in this case occurred “in an area not far distant from where the bodies were found, ” Burial Motion at 2. Young adds that Harvey, a United States witness, has testified that he was “heavily involved” in the West Mesa Murders investigation. Burial Motion at 2. Young asserts that evidence related to the West Mesa Murders “would not only be irrelevant to this Matter, it would be highly prejudicial and would almost inevitably lead to jury speculation that the Defendant was, in some manner, involved with the bodies.” Burial Motion at 2 (citing Fed.R.Evid. 403 and 404).

         2. The Panties Motion.

         In the Panties Motion, Young moves the Court to preclude testimony about or evidence of the women's underwear found in the truck that Young was driving on November 13, 2018. See Panties Motion at 1. Young contends that the underwear is not relevant to the charge in this case. See Panties Motion at 1. Moreover, according to Young, reference to the underwear could cause the jury to speculate improperly why Young had them in the truck, which could prejudice Young. See Panties Motion at 2-3. Hence, Young concludes, rules 403 and 404 of the Federal Rules of Evidence advise against permitting the jury to hear testimony referencing the underwear. See Panties Motion at 2-3.

         3. The Tattoos Motion.

         In the Tattoos Motion, Young moves the Court to preclude testimony or evidence regarding Young's tattoos' source. See Tattoos Motion at 1. Young states that Harvey observed the numerous tattoos on Young's torso, and, at the June 26, 2018, suppression hearing, Harvey stated his opinion that Young received the tattoos in prison. See Tattoos Motion at 1. Young contends that Harvey lacks the qualifications to render an opinion regarding the tattoo's source and that the tattoos' source is irrelevant. See Tattoos Motion at 1. Moreover, according to Young, Harvey's opinion is prejudicial, because it would lead the jury to speculate impermissibly regarding facts surrounding Young's prior incarceration. See Tattoos Motion at 2. Hence, Young concludes, rules 403 and 404 weigh against permitting the jury to hear testimony referencing Young's tattoos' source. See Tattoos Motion at 2.

         4. The Items Motion.

         In the Items Motion, Young moves the Court to preclude testimony or evidence regarding Harvey's observation of “fresh feces and blood, and an unknown object that looked like a children's water toy that also had feces and blood on it, ” in the water tank. Items Motion at 1-2. Young contends that Harvey found these items within the water tank that Young had exited and thereafter Harvey speculated that Young had been using the water toy to masturbate. See Items Motion at 2. According to Young, Harvey had already arrested Young when Harvey observed the items in the water tank, and, therefore, the items did not bolster Harvey's reasonable suspicion, as Young suspects the United States intends to argue at trial. See Items Motion at 2. Moreover, according to Young, the United States cannot prove that Young placed any items in the water tank. Items Motion at 2. Hence, Young concludes, because the items are both irrelevant and highly prejudicial, rules 403 and 404 strongly weigh against permitting the jury to hear Harvey's testimony regarding what he believed that Young was doing in the water tank, i.e., masturbating with a child's water toy. See Items Motion at 3.

         5. The Response.

         The United States responds to the Burials Motion, the Panties Motion, the Tattoos Motion, and the Items Motion in a single document. See Response by the United States to the Defendant's Motions in Limine, filed September 12, 2018 (Doc. 83)(“Response”). In its Response, the United States asserts that it does not intend to introduce evidence of the West Mesa burials. See Response at 1. The United States notes, however, that, if Young attempts to contest Harvey's legitimate presence and familiarity with the West Mesa, the United States will request the Court's permission to introduce Harvey's testimony about his work on the West Mesa murders. See Response at 2.

         The United States further contends that, although the “dirt covered young women's panties . . . in close proximity to the burial of multiple young women in a dirt-covered landscape” give the United States “discomfort and pause, ” the United States will nonetheless refrain from mentioning the underwear. Response at 2. The United States adds, however, that it will pursue such evidence if Young “implicitly or explicitly bring[s] the evidentiary significance of this evidence to life.” Response at 2.

         Regarding the Tattoo Motion, the United States asserts that Harvey, based on his law enforcement experience and “rationally based perception, ” is qualified to provide an opinion as to the source of Young's tattoos. Response at 2. The United States notes, however, that it does not intend to develop this opinion evidence “provided that the Defendant does not make the issue relevant and material.” Response at 2.

         6. The September 12, 2018, Hearing.

         The Court held a hearing. See Transcript of Hearing at 1:22-23 (taken September 12, 2018)(“Sept. 12 Tr.”).[4] At the hearing, the Court asked the United States whether it needs to mention the “west side burials.” Sept. 12 Tr. at 21:5-7 (Court). The United States asserted that it has no intention to introduce the West Mesa murder into the case unless, at trial, Young challenges Harvey's authority to patrol that area. See Sept. 12 Tr. at 21:10-18 (Spiers). The Court responded that it was inclined to enter an order precluding mention of the West Mesa murders unless Young contests Harvey's jurisdiction to patrol the West Mesa and thereby opens the door to Harvey's involvement in the West Mesa murder investigation. See Sept. 12 Tr. at 22:5-12 (Court). Young replied that considering the West Mesa murders alongside the jurisdictional issue is “mixing apples and oranges.” Sept. 12 Tr. at 22:15-16 (Knoblauch). The Court stated that it was inclined to agree, ordered the United States to not mention the murders in its case-in-chief, and granted the motion with the possible exception that Young may open the door to their introduction. See Sept. 12 Tr. at 23:2-7 (Court).

         Young next addressed the Panties Motion's request to exclude mention of the women's underwear that law enforcement found in Young's truck. Sept. 12 Tr. at 23:12-13 (Knoblauch). The Court expressed that in “a gun case it didn't seem . . . too relevant.” Sept. 12 Tr. at 23:15-16 (Court). The United States agreed with the Court that the underwear did not seem relevant, but nonetheless wanted to revisit the issue if “something unpredictable” occurs. Sept. 12 Tr. at 23:1-22 (Spiers). The Court ordered the United States not to mention the underwear in its case-in-chief and cautioned Young to not do anything “that would open the door” to the underwears' discussion during the trial. Sept. 12 Tr. at 23:25-24:3 (Court).

         Turning to the Tattoo Motion, the Court stated that, because Young intends to stipulate to being a felon, it is disinclined to permit testimony discussing Young's tattoos' source. See Sept. 12 Tr. at 24:15-19 (Court). The United States asserted that Harvey's observations lend “some potential . . . meaningfulness” to the tattoos, Sept. 12 Tr. at 24:21-22 (Spiers), because they indicated to Harvey that Young was a “full-fledged prison inmate at one point, ” which then influenced how Harvey conducted the investigation, Sept. 12 Tr. at 25:3-6 (Spiers). The Court instructed the United States that, during the trial, Harvey can state that he saw Young shirtless but cannot mention the tattoos or offer his opinion as to the tattoos' source. See Sept. 12 Tr. at 25:18-20 (Court). The United States stated that it would comply with the Court's ruling. See Sept. 12 Tr. at 25:21-24 (Spiers). Young asserted that he did not mind the United States referencing Young's tattoos but objected to the United States speculating as to the tattoos' source. See Sept. 12 Tr. at 26:6-8 (Knoblauch). The Court expressed particular concern about Harvey characterizing the tattoos as prison tattoos. See Sept. 12 Tr. at 26:13-14 (Court).

         The Court next considered Young's Items Motion, which seeks to preclude references to feces, blood, a child's water toy, and speculation that Young was masturbating in the water tank near where Harvey arrested Young on November 13, 2016. See Sept. 12 Tr. at 28:3-9 (Court). The Court concluded that Harvey's references to masturbation are speculative and prejudicial. See Sept. 12 Tr. at 28:9-12 (Court). The Court further concluded that Harvey's water tank investigation “doesn't go to any reasonable suspicion about the charge at hand.” Sept. 12 Tr. at 28:17-19 (Court). The United States asserted that it could “not live” with excluding reference to these materials, Sept. 12 Tr. at 29:11-13 (Spiers), because these materials indicated to Harvey that “there was something going on out there, ” Sept. 12 Tr. at 29:22-25 (Spiers). The Court replied that the United States had sufficient evidence to take to the jury and that, in the Court's opinion, the jury would not question why law enforcement was present on the West Mesa. See Sept. 12 Tr. at 30:16-18 (Court). The Court then ordered the United States not to mention the feces, the blood, and the children's water toy. See Sept. 12 Tr. at 30:21-23 (Court). The United States expressed concern about the Court's order not to mention the blood, see Sept. 12 Tr. at 31:11-12 (Spiers), because, according to the United States, observing the blood compelled Harvey to continue investigating the scene, see Sept. 12 Tr. at 31:17-22 (Spiers). The Court expressed that it is most concerned about Harvey's comments on the video and not the items' visual depiction in the video. See Sept. 12 Tr. at 32:4-6 (Court). The Court clarified that the United States could show the video and audio but must “take out any mention or speculation about masturbation.” Sept. 12 Tr. at 32:23-24 (Court).

         7. First Trial.

         Young was tried on September 17, 2018. See Clerk's Minutes for Proceedings Held Before District Judge James O. Browning: Jury Selection/Trial as to Apache Young held on 9/17/2018 and 9/18/2018 at 1, filed September 17, 2018 (Doc. 100)(“Clerk's Minutes: Jury Selection/Trial”). After two days of deliberations, the jury failed to reach a unanimous verdict. See Clerk's Minutes: Jury Selection/Trial at 5-6. Hence, on September 18, 2018, the Court declared a mistrial. See Clerk's Minutes: Jury Selection/Trial at 6. See also Order of Mistrial, filed September 19, 2018 (Doc. 97)(“[A] Mistrial is declared as to the Indictment.”).

         8. 609 Notice.

         In its 609 Notice, the United States asserts its intention “to attack Defendant Apache Young's ‘character for truthfulness by evidence of a criminal conviction.'” 609 Notice at 1 (quoting Fed.R.Evid. 609). Accordingly, should Young elect to testify at trial, the United States intends to introduce the following convictions:

1. 2005 New Mexico State Conviction
Attempt to Commit a Felony, to wit: Robbery (8/31/2004) (one count) -- No. Contest Plea
-- Sentenced to 9 months incarceration, followed by a term of probation
2. 2006 New Mexico State Convictions
Aggravated Battery with a Deadly Weapon or Resulting in Great Bodily Harm (7/25/2005) (three counts) -- No. Contest Plea
-- Sentenced to 3 years for each count for a total of 9 years, 6 years suspended, followed by a five-year term of probation
3. 2010 Oklahoma State Convictions
Attempted Robbery with a Weapon (4/18/2009) (one count) -- Guilty Plea
Assault and Battery with a Deadly Weapon (4/18/2009) (two counts) -- Guilty Plea
Robbery with a Weapon (Great Bodily Harm) (4/18/2009) (two counts) -- Guilty Plea
Obstructing an Officer (4/18/2009) (one count) -- Guilty Plea
Attempted Robbery with a Firearm (4/18/2009) (one count) -- Guilty Plea
-- Sentenced to one year for Obstructing an Officer, sentenced to five years for each of the remaining counts, all sentences were run concurrent for a total sentence of five years. Young was released from confinement on this matter in 2015. The following year he possessed a firearm as charged in the indictment. Accordingly, the United States need not provide notice under Rule 609(b). Nonetheless, the United States does so out of courtesy.

609 Notice at 1-2 (footnote omitted).

         9. 609 Notice Response.

         Young filed a response to the United States' 609 Notice. See Defendant's Response to the Plaintiff's Notice Pursuant to Federal Rule of Evidence 609, filed November 23, 2018 (Doc. 128)(“609 Response”). In the 609 Response, Young asserts that “[t]he use of the names of the Defendant's prior convictions would be more prejudicial than probative and, thus, prohibited under Fed.R.Evid. 403.” 609 Response at 1.

         10. First Trial Motion.

         In its First Trial Motion, the United States requests that the Court prohibit counsel for both parties from speaking about the first trial either to the venire panel or to the seated jury. See First Trial Motion at 1. The United States asserts that, “[b]ecause the fact that a case has been previously tried is irrelevant to the disposition of the case, district courts are justified in precluding mention of a prior trial.” First Trial Motion at 2. Moreover, according to the United States, “[s]uch reference would prejudice the United States, because it could erroneously be taken by the jury as an indication of reasonable doubt” that Young committed the charged offense. First Trial Motion at 2.

         Additionally, the United States asserts that the Court should preclude arguments that the record does not support. Trial Motion at 2 (citing Whittenburg v. Werner Enterprises Inc., 561 F.3d 1122, 1128-29 (10th Cir. 2009)(“Counsel must confine comments to evidence in the record and to reasonable inference from that evidence.”)). The United States contends that Young's defense in the first trial included several unsupported arguments “which may have contributed to that jury's failure to reach a verdict.” First Trial Motion at 2. According to the United States, examples of such arguments include Young's improper assertion that the United States did not prove that the firearm in question was not an antique firearm. See First Trial Motion at 3. “This argument was presented despite the fact that the Defendant did not raise the issue during cross examination.” First Trial Motion at 3. The United States further requests that the Court preclude Young from making arguments that encourage jury nullification. See First Trial Motion at 3 (citing United States v. Gonzalez, 596 F.3d 1228, 1237 (10th Cir. 2010)(“[W]e disapprove of the encouragement of jury nullification.”)). Moreover, at the first trial, avers the United States, Young impermissibly argued that Harvey stereotyped Young because of his tattoos, “despite no evidence that Officer Harvey engaged in stereotyping, ” and then inferred “that there should be some consequence for such misbehavior.” First Trial Motion at 4. The United States contends that the Court, in its order denying Young's motion to suppress, determined that Harvey's conduct was not improper, and, therefore, “the Court should preclude the Defendant from repeating the argument at the second trial.” First Trial Motion at 4.

         The United States requests that the Court preclude questions that call for conclusions regarding evidence that the Court disallowed based on its prejudicial nature, “such as the 16 pairs of panties in various sizes and states of decomposition, ” because such questions, for example, when Young asked Harvey whether the truck's contents were “consistent with perhaps camping or being outdoors recently, ” present “a disciplined witness with an improper choice: characterize the evidence correctly by venturing into prejudicial territory or agree to the Defendant's half-true mischaracterization.” First Trial Motion at 6. The United States asks the Court to allow the United States to introduce the truck's complete contents if Young “opens the door” by asking witnesses to draw impermissible conclusions. First Trial Motion at 6.

         Finally, the United States asks the Court to preclude questions that call for legal conclusions, see First Trial Motion at 6 (citing Van Winkle v. Crowell, 146 U.S. 42, 29 (1982)), because “the law must come only from the Court, ” First Trial Motion at 6 (citing United States v. Kingston, 971 F.2d 481, 486 (10th Cir. 1992)(“[L]ay witnesses and even expert witnesses are not permitted to give opinions as to what the law is.”)). According to the United States, Young elicited such conclusions when he asked Harvey: “And a person does have a right to refuse consent to search his personal items; correct?” First Trial Motion at 6 (citing Excerpt -- Trial Testimony Only at 46:7-8 (Knoblauch), filed October 3, 2018 (Doc. 109)). According to the United States, this line of questioning “serves no relevant purpose, ” “is likely to confuse the jury, ” and “ventures into the realm of jury nullification, ” because it “implies a violation of the Defendant's rights, ” given that Harvey ultimately searched Young's vehicle. First Trial Motion at 7.

         11. First Trial Response.

         Young filed a response to the United States' First Trial Motion. See Defendant's Response to the United States Motion in Limine Requesting that Counsel be Precluded From Referencing the First Trial, From Making Arguments Unsupported by the Record, and From Asking Inappropriate Questions on Direct or Cross-examination, filed November 23, 2018, (Doc. 130)(“First Trial Response”). Young opposes referring to the first trial as a “prior hearing, ” because, according to Young, jurors “tend to place a greater weight on the solemnity of trial testimony than that of a simple hearing.” First Trial Response at 1. Young further contends that the First Trial Motion not only asks jurors to disregard their “common sense, ” but also implies that Young may raise an affirmative defense only through his own witnesses. First Trial Response at 2. Moreover, according to Young, the United States' witness' “low level of expertise . . . created the [firearms' age] issue.” First Trial Response at 2. Young adds that the jury has a right to consider nullification, all the more so when the charged offense is nonviolent. See First Trial Response at 2. Young concludes by asserting that the Sixth Amendment to the Constitution of the United States of America guarantees Young the right to cross examine Harvey's “less than ideal” conduct[5] in the way that Young deems most effective. First Trial Response at 2.

         11. Contents Motion.

         In its Contents Motion, the United States requests that the Court allow the United States to cross-examine Young's mother, Annie Baca, and Young's cousin, Frank Gaona, regarding the firearm's stolen nature and the pickup truck's contents, to include “the 16 pairs of panties, the ski mask, the brass knuckles, the shovel, the pornographic magazines, the cooler full of beer and liquor, the marijuana pipe, and the meth pipe, ” provided either Baca or Gaona say that they own the truck or any of the items found within it. Contents Motion at 1.

         The United States asserts that it believes that Baca will testify that she owned the red Dodge truck that Young drove on November 13, 2016, and “may even go so far as to testify that she was responsible for the items in the truck.” Contents Motion at 2. The United States bases its belief on Young's jail calls, Young's statements after his November 13, 2016, arrests, and the truck's registration documents. See Contents Motion at 2-3. The United States believes that Gaona will testify that he owned one or more of the firearms that law enforcement discovered in the truck. See Contents Motion at 3. The United States bases this belief on Young's jail calls and Young's November 13, 2016, post-arrest statements, see Contents Motion at 3; for example, according to the United States, in one jail call, Young tells his mother: “And like I was telling you, that pistol belongs to Reyes' fuckin' uh, baby-mom. Crystal's brother's girl. . . . And then the shotgun, that was Bambu's (phonetic spelling) . . . . Bambu had the gun for nine years, mom, ” Contents Motion at 3. Moreover, contends the United States, Young told Harvey that “there were two more rifles in the vehicle and that they belonged to his unnamed cousin.” Contents Motion at 3.

         The United States insists that, because its theory of the case is that Young knowingly and intentionally possessed all of the items in the truck on November 13, 2016, “the United States should be allowed the opportunity to impeach the witnesses about the stolen nature of the firearms and all of the items found inside, including the incriminating ones. Anything less would deprive the jury of its ability to judge the witnesses' credibility.” Contents Motion at 5 (emphasis in Contents Motion). The United States specifically requests the Court's permission to inquire about the firearms' origin and whether Young's witnesses knew that the firearms were stolen, which “is relevant to credibility.” Contents Motion at 5. The United States further asserts that cross-examination is necessary to test the witnesses' veracity, as, for example, “it defies common experience to believe a 69-year old woman would carry in her vehicle brass knuckles; pornography magazines depicting nude females; and 16-pairs of varying sizes of modern cut panties.” Contents Motion at 6. According to the United States, if the jury finds such facts unbelievable, it would extend its disbelief to any testimony that Baca controlled the truck or the firearms. See Contents Motion at 6. Moreover, contends the United States, regarding the drugs and drug paraphernalia, the jury has a right to know whether it is considering testimony from habitual drug users. See Contents Motion at 6 (citing United States v. Smith, 692 F.2d 658, 661 (10th Cir. 1982)(“[N]ormally the trial court runs a substantial risk of causing prejudice to a fair trial when it fails to instruct the jury concerning the inherent unreliability of an addict's testimony.”)). Alternatively, the United States avers, “should the witnesses deny knowledge or ownership of the drugs and paraphernalia, then their assertion of ownership over other items is rightly impugned.” Contents Motion at 6.

         13. Contents Motion Response.

         Young filed a response to the Contents Motion. See Defendant's Response to the United States' Motion in Limine to Allow Cross Examination of Defense Witnesses Regarding the Contents of Defendant's Red Dodge Pick-up Truck at 1, filed November 23, 2018 (Doc. 131)(“Contents Motion Response”). In the Contents Motion Response, Young contends that he is “a bit at sea, ” because, after stipulating to Baca being the pickup truck's owner, “[t]he United States now changes tack” in asserting that Young is the truck's owner. Contents Motion Response at 2. Moreover, according to Young, the “mere fact” that Young told Harvey who owned the firearms “has no bearing on whether they were his.” Contents Motion Response at 2. Hence, Young “rightfully demand[s] some form of explanation for why the United States believe[s], ” according to Young, that Baca “might not have been the owner of certain items in the truck.” Contents Motion Response at 2.

         14. Testimony Motion.

         In its Testimony Motion, the United States requests that the Court allow Barela to testify that, in 2008, he advised Young that, pursuant to state and federal law, Young could no longer possess a firearm. See Testimony Motion at 1. According to the United States, Young signed a document affirming that he reviewed the New Mexico Corrections Department Parole Division Offender Orientation Handbook, which evidences that Young “was aware that he was not allowed to possess firearms.” Testimony Motion at 2. Young's awareness of his action's criminality, the United States asserts,

provides a clear explanation for his behavior on November 13, 2016 including: why Young was so quick to separate himself from the firearms as law enforcement officers approached, why he attempted to send officers to another vehicle, why he initially lied about the firearms' presence in the vehicle, and why he correctly predicted that officers would find two additional guns in the truck when they executed the search warrant.

         Testimony Motion at 3-4. The United States further asserts that any evidence which increases the likelihood that Young knowingly possessed a firearm is “especially important for the next jury to consider” and that Barela's testimony can therefore strengthen the United States' case. Testimony Motion at 4. The United States contends that Young's behavior following his arrest makes it difficult for Young to argue that he did not knowingly possess the firearms, which Barela's testimony would “bolster.” Testimony Motion at 5. The United States distinguishes its request in this case from the United States' request in United States v. Griffin, 389 F.3d 1100, 1103 (10th Cir. 2004), wherein the Tenth Circuit concluded that evidence of the defendant's probation terms was irrelevant, because § 922(g) does not require felons to know that firearm-possession is unlawful. See Testimony Motion at 5 (citing United States v. Griffin, 389 F.3d at 1103). Unlike the proposed evidence in United States v. Griffin, avers the United States, the United States intends to use Barela's testimony “for a relevant and important purpose: to explain Young's deceptive behavior, ” which increases the likelihood that Young knowingly possessed a firearm. Testimony Motion at 5.

         The United States further contends that, pursuant to rule 403, Barela's testimony is substantially more probative than it is prejudicial, because the United States' burden to prove that Young is a felon diminishes any prejudice that could result from the jury learning that Young was once on probation. Testimony Motion at 5. “After all, the jury who learns that Young is a convicted felon will not be surprised to learn he was once on probation.” See Testimony Motion at 5. Moreover, asserts the United States, the Court can instruct the jury not to infer guilt based on Young's prior probation term. Testimony Motion at 5. The United States insists that rule 404(b) does not foreclose Barela's testimony, because Young's probation is not itself a crime, is not being introduced to prove Young's ...


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