United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ON VARIOUS PRETRIAL
matter is before the Court on various pretrial motions filed
by the parties, including motions in limine.
MOTIONS THAT ARE MOOT
November 27, 2018, the Court held a status conference to
discuss scheduling the trial as well as the motions that
needed to be ruled upon prior to the trial. Based upon that
discussion, it is the Court's understanding that the
following motions are now moot: Defendant's Motion
for Preservation and Disclosure of Rough Notes and
Recordings [Doc. 63], The United States' Motion
for Disclosure of Reports of Examinations and Tests and
Expert Witnesses [Doc. 115], Defendant's
Emergency Motion to Continue Trial [Doc. 186],
The United States' Motion for a Pretrial Evidentiary
Hearing on the Admissibility of Telephone Records as
Evidence [Doc. 193], and Defendant's Emergency
Opposed Motion for Status Conference [Doc. 249].
Similarly, the United States' Motion for Ruling
[Doc. 253] was rendered moot when the Court issued its orders
on March 29, 2017 [Doc. 248] and March 31, 2017 [Doc. 257].
Accordingly, the foregoing motions will be DENIED AS
MOTIONS PREVIOUSLY ADDRESSED
other motions are not moot, but have been addressed by the
Court in a previous Order entered on January 3, 2017. [Doc.
Government's Motion to Introduce Rule 404(b)
first motion that the Court has previously addressed is the
United States' Motion in Limine to Introduce Evidence
Pursuant to Federal Rule of Evidence 404(b) [Doc. 77].
In its previous order, the Court stated that it would defer
ruling on the motion until the trial so that it could
consider the evidence in context. See Doc. 184 at 1.
However, upon reconsideration the Court has determined that
it should take up the motion before trial. In doing so, the
Court has considered the motion, as well as all three of
Defendant's responses and the Government's reply.
See Docs. 77, 94, 140, 165, and 177.
The Rule 404(b) Evidence at Issue
indictment in this case charges Defendant with distribution
of heroin on August 7 (Count I) and August 12, 2011 (Count
II). Citing Rule 404(b), the Government seeks to introduce
testimony from two witnesses to the effect that they
purchased and obtained heroin from Defendant on two occasions
previous to those charged in the indictment. The Government
also seeks to introduce evidence that in November of 2011,
the Albuquerque Police Department arrested Defendant in
possession of heroin. At the time of his arrest, Defendant
possessed a cell phone with the same number as a phone that
communicated with the two witnesses on August 11 and August
12, 2011 in connection with the transaction charged in Count
Rule 404(b) Generally
Rule of Evidence 404(b) provides:
(1) Prohibited Uses. Evidence 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.
(2) Permitted Uses ; This evidence may be
admissible for another purpose, such as proving motive,
opportunity, intent, ... knowledge, identity, ... or lack of
must consider four factors in weighing the admissibility of
evidence under Rule 404(b): (1) whether the evidence is
offered for a proper purpose, (2) its relevancy, (3) that the
probative value of the evidence is not substantially
outweighed by its prejudicial effect, and (4) a limiting
instruction is given if the defendant so requests. See
Huddleston v. United States, 485 U.S. ...