United States District Court, D. New Mexico
Edwards Erlinda O. Johnson Attorney for Mr. Martinez.
Cairns Samuel A. Hurtado Assistant United States Attorneys
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the United States' Motion
to Admit Evidence Pursuant to Federal Rule of Evidence 404(b)
and as Res Gestae Evidence. [Doc. 60]. The Defendant filed a
Response [Doc 61] and the Government filed a Reply [Doc 96].
Having considered the motions, relevant law, and being
otherwise fully informed, the Court finds that the
government's motion to admit evidence pursuant to Rule
404(b) will be GRANTED with regard to the
observations of detectives who observed the controlled buys.
Since the government represents in its Reply that it does not
intend to introduce hearsay evidence, that it can prove that
the Defendant engaged in controlled buys through the
observations of detectives who were there, and that all
testimony about the controlled buys will come from witnesses
who will testify at trial, the government's motion is
DENIED as moot with regard to any statements
made to law enforcement by the Confidential Informant (CI)
and any identifications made by the CI.
19, 2019, the government filed a Motion In Limine
for pre-trial ruling on the admissibility of Rule 404(b) and
Res Gestae evidence. Doc. 60. The government seeks to
introduce evidence at trial related to transactions between
the CI and the defendant that took place in the weeks prior
to the execution of a search warrant at the Defendant's
house and the resulting recovery of two handguns, cocaine
base, powder cocaine, digital scales, two boxes of baking
soda, and two razor blades with white residue. See
Id. at 1-6. The government argues that the controlled CI
buys are admissible under Rule 404(b) of the Federal Rules of
Evidence because they are being offered for the purpose of
establishing the Defendant's intent, preparation, and
plan for the cocaine base that was found in his home during
the execution of the search warrant. Id. at 7-8. The
government further argues that the probative value of the
evidence outweighs the danger of unfair prejudice as it is
unlikely to provoke an emotional response from the jury.
Id. at 10. Finally, the government argues that the
evidence is admissible as Res Gestae evidence because it
provides the context for the alleged criminal act.
Id. at 11-12.
23, 2019, the Defendant filed a “Response to
Government's Motion to Introduce Evidence Pursuant to
Fed.R.Evid. 404 (b) And Defendant's Motion In Limine 1 To
Exclude Introduction of Alleged Controlled Buys.” Doc.
61. The Defendant argues that the Government “cannot
show” that the alleged transactions with the CI are
relevant under any of the enumerated 404(b) exceptions and
that the evidence is unfairly prejudicial because the jury
would likely jump to impermissible conclusions about the
Defendant's character and/or propensity to commit crimes.
Id. at 5-6. The Defendant also argues that
introduction of the evidence would allow for the introduction
of impermissible hearsay and may violate his right to
confront witnesses under the Sixth Amendment. Id. at
August 7, 2019, the government filed a Reply to the
Defendant's Response. Doc. 96. In its Reply, the
Government reiterated its purpose for introducing the
evidence under Rule 404(b) - to establish intent - and its
argument that such evidence is admissible as Res Gestae
evidence. See generally id. The government also
stated in its Reply that it does not intend to introduce
hearsay evidence and instead intends to introduce the
evidence of the controlled buys through the observations of
detectives who were there. Id. at 10.
Evidence of Controlled Transactions is Admissible Under Rule
The Legal Standard
Rule 404(b) of the Federal Rules of Evidence,
“[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.” Fed.R.Evid.
404(b)(1). Such evidence may be admitted, however, to
establish motive, intent, knowledge, preparation, plan,
identity, and absence of mistake or accident. Fed.R.Evid.
404(b)(2); see also United States v. Zamora, 222
F.3d 756, 762 (10th Cir. 2000). The Tenth Circuit directs
courts to conduct a four-part test to determine whether
evidence is admissible under 404(b): (1) the evidence must be
offered for a proper purpose; (2) the evidence must be
relevant; (3) the trial court must make a Rule 403
determination of whether the probative value of the similar
acts is substantially outweighed by its potential for unfair
prejudice; and (4) pursuant to Rule 105 of the Federal Rules
of Evidence, the trial court shall, upon request, instruct
the jury that evidence of similar acts is to be considered
only for the proper purpose for which it was admitted.
United States v. Smalls, 752 F.3d 1227, 1237 (10th
Cir. 2014) (citing United States v. Davis, 636 F.3d
1281, 1297 (10th Cir. 2011)). In order to ensure that the
evidence is offered for a proper purpose, the Tenth Circuit
requires the government to “articulate precisely the
evidentiary hypothesis by which a fact of consequence may be
inferred from the evidence of other acts.” United
States v. Porter, 881 F.2d 878, 884 (10th Cir. 1989).
Application of Tenth Circuit Four-Part Test for Admissibility
of Evidence Under Rule 404(b)
applying the four-part test for Rule 404(b) evidence set
forth by the Tenth Circuit, this Court finds that evidence of