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United States v. Holland

United States District Court, D. Columbia.

May 30, 2014


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Re Document No.: 15,18-22,26.

For Kevin Holland(1), Defendant: Brian Keith McDaniel, LEAD ATTORNEY, MCDANIEL & ASSOCIATES, Washington, DC.

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RUDOLPH CONTRERAS, United States District Judge.

Denying Government's Motions to Admit Evidence Pursuant to Federal Rules of Evidence 404(b) and 609(a)(1); Denying Defendant's Motion for Suppression of Electronic Information Obtained Pursuant to Wiretap; Denying Defendant's Motion for Disclosure of Brady, Giglio, and Jencks Information; Denying Defendant's Motion to Disclose Identities of Each Confidential Informant; Denying Defendant's Motion to Suppress Tangible Evidence; And Denying Defendant's Motion for Discovery of Co-Defendant and Co-Conspirator Statements


Defendant Kevin Holland is charged with three counts of unlawful distribution of cocaine, one count of conspiracy to distribute and possession with intent to distribute cocaine, and one count of unlawful distribution of heroin, pursuant to 21 U.S.C. § 841(a)(1). Superseding Indictment, Jan. 30, 2014, ECF No. 17. Defendant has filed motions in limine prior to trial, for the: 1) disclosure of identities of each confidential informant, regardless of whether they will testify at trial, 2) disclosure of any co-defendant or co-conspirator statements in advance of trial, 3) disclosure of Brady and Giglio information, and the early production of Jencks material, 4) suppression of electronic information obtained from wiretaps, and 5) suppression of tangible evidence obtained pursuant to a search warrant. The Government has filed motions seeking the admission of Defendant's prior drug offense, pursuant to Fed.R.Evid. 404(b), and admission of

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Defendant's prior assault and theft conviction, pursuant to Fed.R.Evid. 609(a)(1). The Court addresses each of these motions below.


" While neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence expressly provide for motions in limine, the Court may allow such motions 'pursuant to the district court's inherent authority to manage the course of trials.'" Barnes v. District of Columbia, 924 F.Supp.2d 74, 78 (D.D.C. 2013) (quoting Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984)). " Motions in limine are designed to narrow the evidentiary issues at trial." Williams v. Johnson, 747 F.Supp.2d 10, 14 (D.D.C. 2010). " Rule 103(d) of the Federal Rules of Evidence mandates that the court must conduct a jury trial to the extent practicable so that inadmissible evidence is not suggested to the jury by any means." Daniels v. District of Columbia, No. CV 11-1331 (BAH), 15 F.Supp.3d 62, 2014 WL 535213, at *2 (D.D.C. Feb. 11, 2014) (citing Fed.R.Evid. 103(d)). Importantly, a trial judge's discretion " extends not only to the substantive evidentiary ruling, but also to the threshold question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial." Barnes, 924 F.Supp.2d at 79 (quoting Graves v. District of Columbia, 850 F.Supp.2d 6, 11 (D.D.C. 2011)).

" In evaluating the admissibility of proffered evidence on a pretrial motion in limine the court must assess whether the evidence is relevant and, if so, whether it is admissible, pursuant to Federal Rules of Evidence 401 and 402." Daniels, 15 F.Supp.3d 62, 2014 WL 535213, at *3. A court " may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. " Unfair prejudice within its context means an undue tendency to suggest [making a] decision on an improper basis, commonly, though not necessarily, an emotional one." United States v. Ring, 706 F.3d 460, 472, 403 U.S. App.D.C. 410 (D.C. Cir. 2013), cert. denied, 134 S.Ct. 175, 187 L.Ed.2d 43 (2013) (quoting Advisory Committee's Note Fed.R.Evid. 403); see also Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980) (explaining that evidence is unfairly prejudicial " if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case." ) (citations omitted). Under Rule 403, " the court must 'engage in on-the-spot balancing of probative value and prejudice and. . . exclude even factually relevant evidence when it fails the balancing test." Daniels, 15 F.Supp.3d 62, 2014 WL 535213, at *3 (quoting United States v. Moore, 651 F.3d 30, 63, 397 U.S. App.D.C. 148 (D.C. Cir. 2011)).


A. Rule 404(b) evidence

The Government seeks the admission of the Defendant's 1996 conviction for a conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base, pursuant to Rule 404(b). Govt.'s Mot. for Evid. Pursuant to 404(b), Jan. 24, 2014, ECF No. 15. Rule 404(b) of the Federal Rules of Evidence governs the admission of other crimes, wrongs, or bad acts of a defendant. The D.C. Circuit has described Rule 404(b) as one " of inclusion rather than exclusion," United States v. Bowie, 232 F.3d 923, 929, 344 U.S. App.D.C. 34 (D.C. Cir. 2000), and has explained that it excludes only evidence that " is offered for the sole purpose

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of proving that a person's actions conformed to his or her character," United States v. Long, 328 F.3d 655, 661, 356 U.S. App.D.C. 117 (D.C.Cir.1993).

Evidence of other crimes, wrongs, or bad acts is admissible under Federal Rule of Evidence 404(b) if offered for a permissible purpose. Such permissible purposes include " proof of intent, motive, opportunity, plan, knowledge, identity or absence of mistake or accident." United States v. Morrow, 2005 WL 3159572 at *3 (D.D.C. Apr. 7, 2005); see also United States v. Pindell, 336 F.3d 1049, 1056, 357 U.S. App.D.C. 377 (D.C. Cir. 2003); United States v. Miller, 895 F.2d 1431, 1436, 283 U.S. App.D.C. 9 (D.C. Cir. 1990). This Circuit has made clear that Rule 404(b) " was intended not to define the set of permissible purposes for which bad-acts evidence may be admitted but rather to define the one impermissible purpose for such evidence." Miller, 895 F.2d at 1436. " Rule 404(b) thus is not so much a character rule as a special aspect of relevance" because it " does not prohibit character evidence generally, only that which lacks any purpose but proving character." United States v. Douglas, 482 F.3d 591, 596, 375 U.S. App.D.C. 499 (D.C. Cir. 2007) (citing Bowie, 232 F.3d at 930).

The Court must conduct a two-part analysis to determine admissibility in the Rule 404(b) context. See Miller, 895 F.2d at 1435. First, the Court considers whether the evidence is " probative of some material issue other than character." United States v. Clarke, 24 F.3d 257, 264, 306 U.S. App.D.C. 251 (D.C. Cir. 1994); Fed.R.Evid. 404(b). Second, if the Court deems the evidence to be relevant, the Court should exclude the evidence only if its probative value " is substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403; Long, 328 F.3d at 662. In close cases, the rule tilts toward the admission of the uncharged conduct evidence. See United States v. Johnson, 802 F.2d 1459, 1464, 256 U.S. App.D.C. 65 (D.C. Cir. 1986) (" [T]he balance should be generally struck in favor of admission when the evidence indicates a close relationship to the event charged." ) (quoting United States v. Day, 591 F.2d 861, 878, 192 U.S. App.D.C. 252 (D.C. Cir. 1978)).

The Government seeks to introduce evidence of facts and circumstances surrounding Defendant's prior drug offense. In 1996, Defendant pled guilty in the United States District Court for the District of Columbia (Criminal Case No. 94-394-02) to conspiracy to distribute and possess with the intent to distribute 50 grams or more of cocaine base. Def.'s Mot. at 2, ECF No. 15. Defendant here is charged with three counts of unlawful distribution of cocaine, one count of conspiracy to distribute and possession with intent to distribute cocaine, and one count of unlawful distribution of heroin. Superseding Indictment, Jan. 30, 2014, ECF No. 17.

21 U.S.C. § 841(a)(1), pursuant to which Defendant is charged here, makes it unlawful for " any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." (emphasis added). The Government intends to introduce the evidence of Defendant's previous drug offense to show Defendant's " knowing and intentional possession with intent to distribute narcotics in this case." Govt.'s Mot. for 404(b) evidence, Jan 24. 2014, ECF No. 15. At the motions hearing held in this matter on May 20, 2014, the Government asserted that Defendant's prior conviction would establish that he knew how cocaine looked, and knew how to arrange the time, place, and manner of a drug transaction.

In support of this, and in order to establish the probative value of the prior offense, the Government relies largely on

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the factual proffer presented orally during Defendant's 1995 plea hearing. However, perhaps because Mr. Kevin Holland was a co-defendant in the previous matter with his brother Andre Holland, the Government read only one, anemic factual proffer. Tr. Plea Hearing, at 19-20, Nov. 30, 1995, Govt.'s Supp. to Mot. Seeking 404(b) Evidence, Ex. 1, ECF. No 23. As a result, the factual proffer does not sufficiently distinguish the degree of each brother's involvement in the conspiracy.

The proffer states, for example, that Mr. Kevin Holland scheduled deliveries, and conducted hand-to-hand transactions on three occasions. Tr. Plea Hearing, at 20. However, the proffer adds that the drugs being sold were Andre Holland's, and that on other occasions, he personally scheduled drug deliveries to be simply executed by his brother Kevin. Id. It is thus unclear how involved Mr. Kevin Holland actually was when scheduling deliveries, or whether he was in fact anything more than a simple delivery man. The proffer does not allege, for example, that Defendant ever saw the content of his deliveries, and thus cannot establish that Defendant knows what cocaine looks like. Similarly, although the proffer alleges that " Mr. Kevin Holland schedule[d] a delivery," the proffer does not explain how and with whom these transactions were arranged, nor does it further allege that Defendant used code words when scheduling the transactions. Id. Thus, the factual proffer cannot shed any light, other than in the most general way, of Defendant's knowledge concerning the drug trade and how to arrange transactions.

Notwithstanding the factual proffer, the Government additionally argues that Mr. Kevin Holland's prior conviction is probative as to his knowledge and intention to distribute because, in entering a guilty plea, Mr. Holland was required to accept that he " knowingly and intentionally distribute[d] a mixture and substance containing a detectable amount of cocaine base." Id. at 14-15. Although this is the element the Government intends to prove, generally speaking, it seeks to introduce Defendant's prior conviction for much more specific reasons --1) that the Defendant can recognize the drug he was allegedly dealing, and 2) to show Defendant's familiarity with the relevant terminology and code words used to schedule drug transactions. Defendant's mere acceptance of guilt pursuant to the basic elements of the conspiracy charge is not, without more, sufficiently probative on the particular issues for which the Government seeks to introduce this evidence. And indeed, courts routinely look for factual similarities above and beyond the bare elements of a prior conviction to determine the probativeness of a prior offense. See, e.g., United States v. Crowder 141 F.3d 1202, 1214-15, 329 U.S. App.D.C. 418 (D.C. Cir. 1998) (finding that a previous drug offense provided evidence of modus operandi because the Government presented evidence that the defendant used certain colored bags for certain quantities and types of cocaine); United States v. Burch, 156 F.3d 1315, 1323-24, 332 U.S. App.D.C. 287 (D.C. Cir. 1998) (admitting a prior drug conviction under 404(b) but emphasizing that Defendant was selling the same substance (crack cocaine) and on the same block as his previous offense). Because the factual proffer does not clearly establish Defendant's knowledge, the Court finds that Defendant's prior conviction has little, if any, probative value.

The Court thus turns to the second prong of the 404(b) test--whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403. As the Defendant correctly notes, " [e]vidence of prior wrongful behavior. . . risks

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that the jury may infer guilt simply on the basis that the accused has committed wrongful acts." Campbell v. United States, 450 A.2d 428, 431 (D.C. 1982). Such evidence " diverts the jury's attention from the question of the defendant's responsibility for the crime charged to the improper issue of his bad character." Id. Courts have previously recognized the strong prejudicial effect of prior drug convictions, " because it invites the jury to infer that [the defendant] has a propensity for drug offenses" and that he must thus be guilty of this drug offense as well. United States v. Watson, 171 F.3d 695, 703, 335 U.S. App.D.C. 232 (D.C. Cir. 1999); see also United States v. ( Dennis) Mitchell, 49 F.3d 769, 776-77, 311 U.S. App.D.C. 35 (D.C. Cir. 1995); United States v. ( Timothy) Johnson, 27 F.3d 1186, 1193 (6th Cir. 1994); United States v. ( Michael) Johnson, 970 F.2d 907, 912-14, 297 U.S. App.D.C. 278 (D.C. Cir. 1992). Although many courts have nonetheless allowed evidence of prior drug convictions pursuant to 404(b), the probative value of the evidence was quite high in those cases. See, e.g., Crowder 141 F.3d at 1214-15 (finding probative value in the prior conviction because the Government presented evidence that the defendant used certain colored bags for different quantities and types of cocaine, thus indicating a modus operandi ); Burch 156 F.3d at 1323-24 (finding probative value in the prior conviction because the government was able to establish that in both the prior conviction and the present matter, the defendant was found selling the same substance on the same street block). Because the probative value of Mr. Holland's prior conviction is quite minimal, and because the similarity between the two convictions is likely to prejudice the jury into improperly inferring that because Defendant was previously a drug dealer he probably still is one, the Court finds that the prejudicial effect of the evidence substantially outweighs the probative value, and thus denies the Government's motion for 404(b) evidence.

B. Federal Rule of Evidence 609(a)(1)

The Government seeks to introduce evidence of Defendant's prior convictions pursuant to Fed.R.Evid. 609, for the purpose of attacking Defendant's character for truthfulness should the Defendant choose to testify as a witness. Govt.'s Notice of Impeachment, Jan. 24, 2014, ECF No. 16. The Government offers two prior convictions under Fed.R.Evid. 609: assault in the second degree pursuant to Md. Code, Crim. Law § 3-203, and theft under $500 pursuant to Md. Code, Crim. Law § 7-104(g)(2). The penalty for each of these convictions is over one year.

Fed.R.Evid. 609(a)(1) allows a party to attack a " witness's character for truthfulness by evidence of a criminal conviction for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year." Fed.R.Evid. 609(a)(1). Such evidence " must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant." Fed.R.Evid. 609(a)(1)(B) (emphasis added). This Circuit has previously held that " all felonies have some probative value on the issue of credibility." United States v. Lipscomb, 702 F.2d 1049, 1062, 226 U.S. App.D.C. 312 (D.C. Cir. 1983). Nevertheless, the Court must still determine whether the probative value of admitting this evidence is outweighed by the prejudicial effect to the Defendant. Id. at 1058; Fed.R.Evid. 609(a)(1)(B).[1]

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The Court balances several factors in determining whether the probative value of the proffered prior convictions is outweighed by unfair prejudice to the Defendant: " (1) the kind of crime involved; (2) when the conviction occurred; (3) the importance of the witness' testimony to the case; (4) the importance of the credibility of the defendant; and (5) generally, the impeachment value of the prior crime.'" United States v. Pettiford, 238 F.R.D. 33, 41 (D.D.C. 2006) (citing United States v. Butch, 48 F.Supp.2d 453, 464 (D.N.J. 1999). " This list does not exhaust the range of possible factors, but it does outline the basic concerns relevant to the balancing under Rule 609(a)(1)." United States v. Jackson, 627 F.2d 1198, 1209, 201 U.S. App.D.C. 212 (D.C. Cir. 1980)).

The Court first considers the type of crime involved, and whether that crime is particularly probative of the Defendant's truthfulness. Under Rule 609(a)(1), a court " may admit evidence of a witness's felony convictions that do not constitute crimen falsi, subject to balancing pursuant to Rule 403," United States v. Estrada, 430 F.3d 606, 615 (2d Cir. 2005) (emphasis in original), because " all felonies have some probative value on the issue of credibility." Lipscomb, 702 F.2d at 1062. Thus, " [w]hile many felonies exemplifying untruthful behavior fall within the ambit of Rule 609(a)(2), many crimes that do not fit that provision are nonetheless quite probative of veracity." Estrada, 430 F.3d at 618.

Nevertheless, courts have held that certain types of felonies are not particularly probative of a witness's credibility under 609(a)(1), especially when they do not require plaintiffs to make a false statement. See, e.g., United States v. Rosales, 680 F.2d 1304, 1306-07 (10th Cir. 1981) (excluding convictions for forgery, burglary, conspiracy, illegal possession of a firearm, and violation of narcotics laws as " not normally suggest[ive of] the special probative value on the issue of credibility contemplated by Fed.R.Evid. 609(a)(1)" ); Furtado v. Bishop, 604 F.2d 80, 93-94 (1st Cir. 1979) (finding convictions for armed robbery, burning a building, and assault and battery were " not particularly probative of credibility" ).

" An influential case from the Court of Appeals for the District of Columbia. . . distinguished between crimes that reflect adversely on a persons integrity, and which therefore bear on honesty--such as those involving deceit, fraud, and theft--and acts of violence, 'which may result from a short temper, a combative nature, extreme provocation, or other causes, [and] generally have little or no direct bearing on honesty and veracity.'" Estrada, 430 F.3d at 617-18 (citing Gordon v. United States, 383 F.2d 936, 940, 127 U.S. App.D.C. 343 (D.C. Cir. 1967)). In essence, this Circuit stated in Gordon that " convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not." Gordon, 383 F.2d at 940.

Defendant's prior conviction for assault pursuant to Md. Code, Crim. Law ยง 3-203(a) did not require an individual to ...

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