United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION IN LIMINE TO EXCLUDE INTRODUCTION OF CRIMINAL
MATTER is before the Court on the Defendant's Motion in
Limine to exclude the introduction of his criminal
history, filed April 27, 2019 (Doc.
26). Defendant seeks to exclude evidence of his
criminal history pursuant to Fed.R.Evid. 403, 404(b) and 609.
Defendant seeks to exclude the following arrests:
“terrorist threat and harassment on May 29, 2014; a
criminal trespass on July 17, 2015; and a resisting arrest
search or transport on September 6, 2016.” Doc.
26, p. 1. The Government filed a notice of intent to
introduce FRE 404(b) evidence, in which they seek to
introduce a 2013 arrest for harassment and terroristic
threat. In that case, Defendant allegedly called a woman and
told her was going to slice and kill her brother. Defendant
allegedly hung up and called back, stating that he “was
going to kill him and murder his whole family.” The
charges were dismissed.
it appears that Fed.R.Evid. 609 is not a basis to admit
impeachment evidence of the arrests, because these are mere
arrests and not convictions, and Defendant was a juvenile.
The comments to Fed.R.Evid. 609 express a general policy of
excluding juvenile adjudications. Fed.R.Evid. 609(d) notes,
citing Cotton v. United States, 355 F.2d 480, 482
(10th Cir. 1966); See also United States v. Wilson,
244 F.3d 1208, 1217 (10th Cir. 2001), as corrected on
reh'g (May 10, 2001) (“We agree that questions
based upon past arrests are not properly within the scope of
this rule. Rule 609 refers specifically to convictions, and
one may not extrapolate from convictions to other situations
such as arrests.”).
Fed. R. Evid. 404(b).
the Government argues this evidence is nevertheless
admissible under FRE 404(b). Under Fed.R.Evid. 404(b),
“[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith.” FRE 404(b). Such
evidence may be admitted, however, to establish motive,
intent, knowledge, preparation, plan, identity, and absence
of mistake or accident. Id.
list of proper purposes is illustrative, not exhaustive, and
Rule 404(b) is considered to be an inclusive rule, admitting
all evidence of other crimes or acts except that which tends
to prove only criminal disposition.”
United States v. Brooks, 736 F.3d 921, 939 (10th
Cir. 2013) (quoting United States v. Tan, 254 F.3d
1204, 1208 (10th Cir. 2001)). The Tenth Circuit has set forth
a four-part inquiry governing the admissibility of proffered
In determining whether a prior conviction was properly
admitted, we conduct a four-part inquiry, ensuring that (1)
the evidence was offered for a proper purpose under Rule
404(b); (2) the evidence was relevant under Rule 401; (3) the
probative value of the evidence was not substantially
outweighed by its potential for unfair prejudice under Rule
403; and (4) the district court, upon request, instructed the
jury to consider the evidence only for the purpose for which
it was admitted.
Id. (citing United States v. Davis, 636
F.3d 1281, 1297 (10th Cir. 2011)).
the Government has not stated it seeks to admit evidence of
the 2015 arrest for criminal trespass or the 2016 arrest for
resisting arrest. At this time, the Government has not made a
showing that these arrests are admissible for a proper
purpose, and the Court agrees that these arrests should be
the Government argues that the prior threats are admissible
for a proper purpose, because they go to intent or motive.
The Government argues that these prior threats tend to
establish that the threats he made in this case on Facebook
were “planned and intended to be viewed as threatening,
made knowingly and not by mistake, and to demonstrate
defendant's motive in frightening people by threatening
harm to others.” Doc. 30, p.4.
acts evidence may be critical to the establishment of the
truth as to a disputed issue, especially when that issue
involves the actor's state of mind and the only means of
ascertaining that mental state is by drawing inferences from
conduct.” Huddleston v. U.S., 485 U.S. 681,
685 (1988). The Court agrees that these prior
threats are offered for a proper purpose under FRE 404(b).
the Court agrees that prior uncharged threats may be
probative of motive, intent, and knowledge pursuant to FRE
401. See, e.g., United States v. Zamora, 222 F.3d
756, 762 (10th Cir. 2000) (prior bank robbery probative of
intent and motive in subsequent bank robbery).
Fed. R. Evid. 403 Balancing Test.
Defendant argues that introducing a prior juvenile arrest for
threats is unfairly prejudicial under FRE 403. FRE 403
provides: “Although relevant, evidence may be excluded
if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.” In the Rule 403 context . . .
“evidence is unfairly prejudicial if it makes a
conviction more likely because it provokes an emotional
response in the jury or otherwise tends to affect adversely
the jury's attitude toward the defendant wholly apart
from its judgment as to his guilt or innocence of the crime
charged.” United States v. Rodriguez, 192 F.3d
946, 951 (10th Cir.1999). “Even if this type of