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United States v. Ford

United States District Court, District of Columbia

January 21, 2016

UNITED STATES OF AMERICA,
v.
CHRISTOPHER FORD, et. al. Defendants.

OPINION

PAUL L. FRIEDMAN United States District Judge

This matter is before the Court on the government’s motions to admit evidence of other crimes, wrongs, or acts pursuant to Rule 404(b) of the Federal Rules of Evidence and to impeach the defendants (should they decide to testify at trial) with their prior convictions under Rule 609 of the Federal Rules of Evidence. The Court heard oral argument on these motions on December 16, 2015, and took them under advisement. Upon consideration of the parties’ papers, the oral arguments presented by counsel, the relevant legal authorities, and the entire record in this case, the Court will grant in part and deny in part the government’s Rule 404(b) motion and grant in part and deny in part the government’s Rule 609 motion.[1]

I. BACKGROUND

The grand jury returned an indictment charging each of the seven defendants with one count of participating in a conspiracy to distribute phencyclidine (“PCP”), in violation of 21 U.S.C. § 846. Superseding Indictment at 1-4, 6. It also charged defendants Levon Simmons, Marcus Fenwick, and Andre Leach with possession with intent to distribute PCP, in violation of 21 U.S.C. § 841(a)(1); Fenwick and Simmons with possession, use, and carrying a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and Simmons with unlawful possession of a firearm and ammunition by a prior convicted felon, in violation of 18 U.S.C. § 922(g)(1). Superseding Indictment at 4-6.

The government asks the Court to admit the following evidence of other crimes, wrongs, or acts under Rule 404(b) of the Federal Rules of Evidence against six of the seven defendants:

Defendant

Rule 404(b) Other Crimes, Wrongs, or Acts

Simmons

2005 conviction for possession with intent to distribute PCP.

Ford

1. Cooperating witness’ testimony about Ford’s sale of PCP to the cooperating witness, Simmons, and Grant before Ford’s arrest in November 2007.

2. November 2007 conviction for possession with intent to distribute PCP.

Sanders

2005 conviction for possession with intent to distribute PCP.

Fenwick

1. 2012 juvenile adjudication for firearms possession.

2. 2012 uncharged act of firearms possession.

Hager

1. 2005 conviction for possession of a firearm during a crime of violence.

2. 2015 arrest for firearms possession.

Grant

2007 conviction for armed carjacking.

Rule 404(b) Mot. at 2-5.[2] The government argues that the probative value of this evidence outweighs any “potential prejudice to the defendants” because it “demonstrates [each defendant’s] “ability and knowledge to carry out his alleged role in the conspiracy” and “provides valuable detail into the relationship between” the defendants as well as their prior involvement in PCP distribution in or around Savannah Terrace, the location of the alleged conspiracy. See id. at 6-7, 11, 15. Defendants respond that there is “unfair prejudice” because “the probative value” of the Rule 404(b) evidence “is exceedingly weak” and it will “taint[]” the jury’s view of them. See, e.g., Ford 404(b) Opp. at 4.

The government also asks the Court to allow it to impeach five of the defendants with the following prior convictions should they decide to testify at trial:

Defendant

Rule 609 Prior Conviction

Simmons

Possession with intent to distribute PCP, No. 2005-FEL-01915 (D.C. Sup. Ct.).

Ford

Possession with intent to distribute PCP, No. 07-cr-345 (D.D.C.).

Sanders

1. Unauthorized use of a vehicle, No. 2006-CF2-02116 (D.C. Super. Ct.).

2. Fleeing from law enforcement, No. 2006-CF2-02116 (D.C. Super. Ct.).

3. Destruction of property over $200, No. 2006-CF2-02116 (D.C. Super. Ct.).

4. Possession with intent to distribute PCP, No. 2005-FEL-05382 (D.C. Super. Ct.).

Hager

1. Second-degree assault, No. CT121293X (Md. Cir. Ct.).

2. Possession of a firearm during a crime of violence, No. 2005-FEL-0123 (D.C. Super. Ct.).

Grant

Armed carjacking, No. CT072144X (Md. Cir. Ct.).

Rule 609 Mot. at 2-4. The government argues that these “convictions are particularly probative where, as here, a defendant’s credibility is a central issue in the case should he or she choose to testify at trial.” See id. at 4. Defendants respond that (1) the probative value of these convictions is low due to their age and dissimilarity from the presently charged offenses, and (2) the risk of prejudice is high because the jury will “focus predominantly on the circumstances of [the defendant’s] prior crime.” See, e.g., Ford 609 Opp. at 3-4.

II. RULE 404(b)

“In considering the admissibility of other crimes, wrongs, or acts under Rule 404(b) of the Federal Rules of Evidence, the Court must apply a two-step analysis.” United States v. Loza, 764 F.Supp.2d 55, 57 (D.D.C. 2011). “First, the Court must determine whether ‘the evidence [is] probative of some material issue other than character’ or propensity.” United States v. Sitzmann, 856 F.Supp.2d at 61 (quoting United States v. Loza, 764 F.Supp.2d at 57). Under Rule 404(b), material issues include but are not limited to “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b); see United States v. Loza, 764 F.Supp.2d at 57. “Furthermore, in this circuit the Rule is viewed as one of inclusion rather than exclusion.” United States v. Loza, 764 F.Supp.2d at 57 (citing United States v. Bowie, 232 F.3d 923, 929-30 (D.C. Cir. 2000)).

“Second, if the Court determines that the other crimes evidence is probative in relation to a legitimate purpose, [it] then must decide whether the evidence nevertheless should be excluded under Rule 403 of the Federal Rules of Evidence because ‘its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.’” United States v. Loza, 764 F.Supp.2d at 57-58 (quoting Fed.R.Evid. 403). “Unfair prejudice” means prejudice above and beyond the normal “harm to the defense” that other crimes evidence inevitably causes. Id. at 58; accord United States v. Bikundi, No. 14-CR-030, 2015 WL 5915481, at *6 (D.D.C. Oct. 7, 2015) (“The danger of unfair prejudice is minimal when the ‘other crimes’ evidence is sufficiently similar to the charged crime as to add ‘no emotional or other pejorative emphasis not already introduced by the evidence’ of the crime charged in the indictment.”) (quoting United States v. Straker, 800 F.3d 570, 591 (D.C. Cir. 2015)).

If the government prevails in this two-step analysis, the Rule 404(b) evidence “would be admitted for a specifically identified purpose and be subject to a limiting instruction describing to the jury the limited purpose for which such evidence may be considered.” United States v. Sitzmann, 856 F.Supp.2d at 61 (citing United States v. Bowie, 232 F.3d at 927-28). If the government does not prevail and the Court “excludes the proffered ‘other crimes’ evidence from presentation by the government in its case-in-chief because its probative value is substantially outweighed by the danger of unfair prejudice, such evidence may become admissible on cross-examination of a defendant or in the government’s rebuttal case if the defense has opened the door to such ...


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