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UNITED STATES v. DURAN

March 15, 1995

UNITED STATES OF AMERICA
v.
FRANCISCO MARTIN DURAN, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 Before the Court are the Government's Notice of Intent to Introduce Evidence of Other Crimes, Wrongs and Acts Pursuant to Fed. R. Evid. 404(b), as well as the Defendant's Motion in Limine to Preclude Evidence Under Fed. R. Evid. 404(b). The Court held a hearing on the same on March 15, 1995.

 The Government seeks to introduce evidence of the Defendant's (1) previous conviction, incarceration, and parole denials; (2) failure to obtain an upgrade of his dishonorable discharge from the United States Army; (3) attempts to obtain authorization from the State of New Mexico to possess a firearm as a convicted felon; (4) false statements in connection with the purchases of firearms; (5) a threatening statement to the Colorado Springs Office of U.S. Senator Ben Nighthorse Campbell following passage of the Crime Bill; (6) threatening statements to friends and family regarding the President and the United States Government; and (7) prior purchases and attempts to purchase firearms and ammunition and false statements made in connection with such purchases or attempted purchases. The Government argues that this evidence is admissible to establish motive and intent under Rule 404(b).

 In his Motion, the Defendant argues that this evidence is inadmissible because much of it shows neither motive nor intent, but suggests only bad character and propensity. Moreover, the Defendant contends that, under Fed. R. Evid. 403, the evidence would be unfairly prejudicial, and that admission of the evidence, and of defense evidence in response, would substantially lengthen the trial and confuse the issues in this case.

 For the reasons discussed herein, the Court shall grant the Defendant's Motion, except as to evidence regarding the threatening statements allegedly made by the Defendant to the Colorado Springs office of Senator Ben Nighthorse Campbell and to family and friends regarding the President and the United States Government.

 DISCUSSION

 "The test for analyzing the admissibility of evidence of prior criminal convictions and other 'bad acts' is well established" in this Circuit. United States v. Miller, 283 U.S. App. D.C. 9, 895 F.2d 1431, 1435 (D.C. Cir.), cert. denied, 498 U.S. 825, 112 L. Ed. 2d 52, 111 S. Ct. 79 (1990). It involves a two-step analysis. "'The threshold inquiry,' imposed by Federal Rule of Evidence 404(b), 'is whether the evidence is probative of a material issue other than character." Id. (quoting Huddleston v. United States, 485 U.S. 681, 108 S. Ct. 1496, 1499, 99 L. Ed. 2d 771 (1988)) (footnote omitted). "'If offered for such a proper purpose, the evidence is [then] subject only to general strictures limiting admissibility,' the most important of which being the requirement of Rule 403 that the probative value of the evidence not be 'substantially outweighed' by its potential prejudice." Id. (quoting Huddleston, 108 S. Ct. at 1500) (footnote omitted).

 Although the Court finds that the evidence at issue passes the first stage of the analysis, that is, it is probative of a proper and relevant purpose under Rule 404(b), the Court further finds that the probative value of the evidence at issue, except for the evidence of threatening statements, is substantially outweighed by the potential for unfair prejudice under Rule 403. Accordingly, the Court finds that such evidence must be excluded from the Government's case-in-chief. *fn1"

 As to the first step of the inquiry before the Court, the issue is whether the evidence is to be admitted "'to show action in conformity' with a criminal disposition" or, rather, whether it is to be admitted on another material issue. Id. (quoting Fed. R. Evid. 404(b)); United States v. Clarke, 306 U.S. App. D.C. 251, 24 F.3d 257, 264 (D.C. Cir. 1994); United States v. Manner, 281 U.S. App. D.C. 89, 887 F.2d 317, 321 (D.C. Cir. 1989), cert. denied, 493 U.S. 1062, 107 L. Ed. 2d 962, 110 S. Ct. 879 (1990). Proper material issues include "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Miller, 895 F.2d at 1436. The Court of Appeals for this Circuit has made clear, however, that Rule 404(b) merely defines the one impermissible purpose for bad act evidence; it does not define the set of permissible purposes for use of such evidence. Id. Thus, "in other words, under Rule 404(b), any purpose for which bad-acts evidence is introduced is a proper purpose so long as the evidence is not offered solely to prove character." Id. (emphasis in original).

 Applying this standard, the Court does not find that the Government seeks to introduce the evidence at issue solely for the impermissible purpose of showing propensity to commit crimes; rather, the Court accepts the Government's assertion, albeit a tenuous one, that such evidence goes to intent and motive.

 Count 1 of the Superseding Indictment alleges that the Defendant acted with specific intent to kill the President. The Government's theory, in particular, is that the Defendant viewed the President as a symbol of all the unjust factors that affected his life, and that the Defendant's hostility was a motive for commission of the crime. Cf. United States v. Russell, 971 F.2d 1098, 1106-07 (4th Cir. 1992) ("Part of the Government's theory at trial was that [the defendant] killed his wife because he viewed her as a symbol of the Marine Corps, an institution that he had come to resent as a result of his discharge."), cert. denied, 122 L. Ed. 2d 161, 113 S. Ct. 1013 (1993). The Government argues that the requisite specific intent to kill the President is evidenced by the Defendant's activities in the preceding months, and that the Defendant was motivated by anger and animosity arising from his previous felony conviction and incarceration, his inability to lawfully possess firearms, and the enactment of new federal laws relating to the purchase and possession of certain firearms. The Government further asserts that the Defendant's firearms purchases and his threatening statements regarding the United States Government are inextricably intertwined with the evidence of the offenses, and are essential in explaining the context of the crimes charged and the motive to the jury. See United States v. Allen, 295 U.S. App. D.C. 128, 960 F.2d 1055, 1058 (D.C. Cir.) ("Rule 404(b) excludes only evidence 'extrinsic' or 'extraneous' to the crimes charged, not evidence that is 'intrinsic' or 'inextricably intertwined.'"), cert. denied, 121 L. Ed. 2d 167, 113 S. Ct. 231 (1992).

 In the instant case, the Court finds that, under the Government's theory, evidence of prior "bad acts" leading up the alleged commission of the crimes charged is probative of whether the Defendant possessed the intent to kill the President. Indeed, "under Rule 404(b), bad acts evidence can be introduced in order to prove intent," and "'the intent with which a person commits an act on a given occasion can many times be best proven by testimony or evidence of his acts over a period of time thereto . . . .'" United States v. Moore, 235 U.S. App. D.C. 381, 732 F.2d 983, 987, 991 (D.C. Cir. 1984) (quoting United States v. Harrison, 220 U.S. App. D.C. 124, 679 F.2d 942, 948 (D.C. Cir. 1982)); Clarke, 24 F.3d at 265 (404(b) evidence may be introduced to show intent).

 The Court finds that the evidence at issue is also probative of the Defendant's motive. United States v. Hernandez, 251 U.S. App. D.C. 5, 780 F.2d 113, 117 (D.C. Cir. 1986) (404(b) evidence may be introduced to show motive). "Hostility is a paradignmatic motive for committing a crime," and the Defendant's conviction, incarceration, and firearms purchases, "as well as the surrounding circumstances, are obviously relevant to the Government's proof of this motive." Russell, 971 F.2d at 1107. In sum, as the evidence at issue "is not offered solely to prove character," the Court finds that it is not inadmissible under Rule 404(b). Miller, 895 F.2d at 1436.

 While not subject to exclusion under Rule 404(b), the evidence at issue must also overcome the hurdle of Rule 403 to be admissible at trial. The limits on the Government's right to introduce bad act evidence for purposes other than showing a defendant's criminal propensity "derive from the 'general strictures limiting admissibility such as Rules 402 and 403,' not from Rule 404(b)." Id. (quoting Huddleston, 108 S. Ct. at 1500). Under Rule 403, the Court finds that the evidence is not admissible in the Government's case-in-chief. The Court of Appeals for the District of Columbia Circuit has provided a "rule of thumb" for courts facing the inquiry at bar: "'In determining whether the probative value is substantially outweighed by the danger of unfair prejudice it is a sound rule that the balance should generally be struck in favor of ...


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