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United States v. Pettiford

September 20, 2006

UNITED STATES OF AMERICA,
v.
FRANKLIN H. PETTIFORD, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Defendant Franklin H. Pettiford is charged with one count of unlawful possession with intent to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). Currently before the Court is the Government's Pre-Trial In Limine Motion Regarding Rule 609 Admissibility (hereinafter, "the Government's Rule 609 Motion"), which seeks permission to impeach Defendant -- should he choose to testify at his forthcoming trial -- with his previous convictions for second-degree murder while armed, in violation of D.C. Code §§ 22-2403 and 22-3202 (1989), and for carrying a pistol without a license, in violation of D.C. Code § 22-3204(a) (1989). Defendant opposes this request, contending that the Court should prevent the use of these previous convictions because (1) "since the actual conviction[s] [are] so old, [they] should be treated as [] remote conviction[s]," Def.'s Opp'n at 4 n.1; and (2) the prejudicial value of the convictions far outweigh their probative value, id. at 4.

Upon a searching examination of the Government's Rule 609 Motion, Defendant's Opposition, the relevant case law, and the entire record herein, the Court shall grant-in-part and deny-in-part the Government's Rule 609 Motion. Specifically, the Court shall allow the Government to affirmatively impeach Defendant, should he choose to testify, with his conviction for second-degree murder while armed, but shall place certain limitations on this line of inquiry; however, the Court shall not allow the Government to affirmatively impeach Defendant based upon his conviction for carrying a pistol without a license.With respect to Defendant's conviction for second-degree murder while armed, the Government may cross-examine Defendant -- should he choose to testify -- concerning the fact that he was convicted of a felony offense and previously sentenced in 1991 to a term of seven to twenty-one years imprisonment, but the Government may not elicit the nature of the offense or any details as to the offense.

I. BACKGROUND

A. The Alleged Facts in the Case at Bar

The following background discussion is based on the May 22, 2006 Detention Memorandum authored by Magistrate Judge Alan Kay in this case. Metropolitan Police Department ("MPD") Officer Theodore Brosey, one of the two arresting officers in this case, offered testimony relating to the facts surrounding Defendant's arrest at the May 19, 2000 hearing before Magistrate Judge Kay. Like Magistrate Judge Kay, the Court shall rely on the testimony elicited at the May 19, 2000 detention hearing solely for the purposes of resolving this pre-trial motion.

On Monday, May 15, 2006, while conducting surveillance at the Eastover Shopping Center in Maryland, law enforcement officers observed what appeared to be a hand-to-hand covert drug transaction involving Defendant, Franklin H. Pettiford, and a pedestrian who was a known drug dealer at approximately 2:20 p.m. See 5/22/06 Detention Mem. Issued by Mag. Judge Kay at 2 (recounting the testimony of Officer Theodore Brosey). According to surveillance, the pedestrian leaned into the car and handed a white substance to Defendant, who in turn handed an unidentified item to the pedestrian. Id. When Defendant drove away from the shopping center, the officer who had witnessed this incident ran the vehicle's tags and asked marked patrol units to assist in stopping the vehicle. Id.

Following this request, a marked MPD vehicle was dispatched to search for the 2003 Silver Ford Expedition bearing Virginia license plates that Defendant was observed driving. See id.; Crim. Compl., Ex. 1 (Stmt. of Facts) at 1. At approximately 2:25 p.m., the dispatched MPD vehicle saw the Expedition in the vicinity of the 4100 block of Livingston Road, S.E., near its intersection with Atlantic Street, S.E., Washington, D.C. Id. The two MPD officers in the dispatched vehicle then asked the dispatcher to run a registration check on Defendant's license plates. Id. The registration check revealed that, contrary to the stickers on the license plate, the registration had expired on April 30, 2006. Id. The officers then conducted a traffic stop of Defendant's vehicle in the 200 block of Atlantic Street, S.E., Washington, D.C. Id. The officers requested Defendant's license and registration for the vehicle, and ran the vehicle tag. Id. The background search revealed that (1) Defendant did not have a valid license; (2) the car was registered to an individual other than Defendant; and (3) that -- as believed -- the registration on the vehicle had expired. Id.

Defendant was asked by the officers to step out of the vehicle, and was placed under arrest for operating an unregistered automobile. Id. The officers then conducted a search of the Expedition incident to Defendant's arrest. Id. Their search of the vehicle's front center console revealed a large clear sandwich bag containing a loose white rock substance, a 200-Z digital scale, and four medium-sized clear zip-lock bags containing loose white rock substance. Id. The white rock-like substance, which weighed approximately 23.3 grams, later tested positive for cocaine base. Id. Upon this discovery, Defendant was also charged with possession with intent to distribute crack cocaine and transported to the Seventh District for processing. Defendant was formally indicted on June 13, 2006, in a one-count indictment charging him with unlawful possession with intent to distribute 5 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). See Indictment at 1.

B. Defendant's Previous Conviction

On November 27, 1989, an individual named Luther Gavin was shot and killed in Washington, D.C. See Pettiford v. United States, 700 A.2d 207, 208 (D.C. 1997). In March 1990, Defendant in this case -- Franklin H. Pettiford -- was arrested in connection with Gavin's death, and charged with first-degree murder while armed in violation of D.C. Code §§ 22-2401 and 22-3203. Id. After waiving his rights, Defendant admitted to police officers that he was present at the murder scene and fired a gun into the air over the head of Mr. Gavin. Id. Defendant also admitted that he received a car as payment for his participation in the murder. Id. However, he maintained that another individual, Michael McIntyre, actually killed Gavin. Id. Subsequently, on September 14, 1990, Defendant pled guilty before the Honorable Ricardo M. Urbina to an information charging him with second-degree murder while armed, in violation of D.C. Code §§ 22-2403 and 22-3202, and to carrying a pistol without a license, in violation of D.C. Code § 22-3204(a), arising from the same factual context. Id.

As part of his plea agreement, Defendant participated in various "debriefing sessions" with the Government. Id. During one of these sessions in January 1991, the June 30, 1989 murder of Angela Jones, a government witness, was discussed. Id. Defendant admitted that he and another individual, Jerry Rose, "had gone to Angela Jones' house the day before the murder and had returned the next day to accomplish their objective of killing her." Id. at 213. Defendant admitted that he went to the murder scene to cover Rose's back, that he had a gun, and that he knew the purpose of the trip was to kill Ms. Jones. Id. at 211. Defendant maintained that "he had not fired his gun," and instead claimed that Rose "actually committed the murder." Id. at 208. As a result of this information, Defendant "entered into a superseding plea agreement that covered both the Jones and the Garvin murders." Id. This plea agreement, accepted by the trial court on June 10, 1991, provided that Defendant "would plead guilty to the first degree murder while armed in connection with the Angela Jones murder, and his pleas with respect to the Luther Garvin killing would remain the same as before (i.e., second-degree murder while armed and carrying a pistol without a license)." Id.

At his sentencing on September 9, 1991, Defendant indicated that (1) he wanted to withdraw his guilty plea and (2) he wanted a new attorney -- requests which were denied by the trial court. Id. at 209. Defendant was then sentenced to "twenty years to life imprisonment on the charge of first degree murder in connection with the Angela Jones murder, seven to twenty-one years imprisonment on the charge of second-degree murder in connection with the Garvin murder, to be served consecutively, and one year imprisonment for the charge of carrying a pistol without a license, to be served concurrently with the second-degree murder charge." Id. On appeal, Defendant's first-degree murder conviction was reversed, as the District of Columbia Court of Appeals concluded that "the trial court abused its discretion in refusing to permit the withdrawal of the plea to first-degree murder." Id. at 218. However, the Court of Appeals affirmed all other aspects of the judgment entered against Defendant. Id.

According to Defendant's parole officer, he was released from incarceration relating to these charges on December 3, 2004. See Gov't's Rule 609 Mot. at 4. The Government in this case now seeks permission to impeach Defendant Pettiford, should he choose to testify, with (1) his second-degree murder while armed conviction and (2) his ...


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