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United States v. Thorne

United States District Court, District of Columbia

January 10, 2020

UNITED STATES OF AMERICA
v.
LINWOOD DOUGLAS THORNE, Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE.

         The defendant, Linwood Douglas Thorne, is charged in six counts with multiple firearm and narcotics offenses, including possession with intent to distribute one kilogram or more of heroin and detectable amounts of fentanyl and marijuana, and conspiracy to distribute those illegal drugs, in violation of 18 U.S.C. §§ 924(c)(1) and 922(g)(1), and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), 841(b)(1)(C), 841(b)(1)(D), and 846. See Superseding Indictment (Oct. 23, 2019), ECF No. 28. In advance of trial, which is scheduled to begin on April 13, 2020, see Minute Entry (Oct. 31, 2019), the government has noticed its intent to use the defendant's prior federal felony conviction, in 1999, for conspiracy and possession with intent to distribute cocaine base, for purposes of proving knowledge, intent, and opportunity pursuant to Federal Rule of Evidence 404(b)(2), and for purposes of impeachment pursuant to Federal Rule of Evidence 609, should the defendant choose to testify, see Gov't's Mot. Regarding Rule 404(b) and 609 (“Gov't's Mot. I”) at 1, ECF No. 34. Invoking United States v. Sheffield, 832 F.3d 296 (D.C. Cir. 2016), which held that a decade-old possession with intent to distribute Phencyclidine (“PCP”) conviction was inadmissible to show knowledge and intent at Sheffield's trial for the same crime involving the same illegal narcotic, id. at 307-08, the defendant has moved to exclude the prior conviction evidence, Def.'s Mot. In Limine Regarding 404(b) and 609 Admissibility (“Def.'s MIL”) at 2, ECF No. 37. He argues that, under Sheffield's teaching, because his prior “conviction and conduct occurred more than 20 years before the start of the conspiracy in this case, ” the probative value of this prior conviction cannot substantially outweigh the risk of unfair prejudice under Rule 403. See Id. at 3; see also Fed. R. Evid. 403.

         Divining whether the split panel decision in Sheffield has shifted the D.C. Circuit's rules for the admissibility of older prior convictions under Rules 403 and 404(b) is a challenge. The defendant posits that Sheffield imposed a bright line excluding all convictions older than a decade, regardless of the conviction's probative value and notwithstanding the lack of textual support in Rules 403 and 404(b) for such a per se staleness limitation. See infra, Section III.B.2. Such a limitation for admissibility of prior convictions under Rule 404(b) would reflect a more stringent admissibility standard even than that set out under the more protective regime in Rule 609, which governs admission of prior criminal convictions for impeachment purposes. This challenge is only compounded by the difficulty of discerning Sheffield's import as to the proof necessary to support the admissibility of any prior conviction for an appropriate purpose under Rule 404(b). See infra, Section III.C.2.

         For the reasons discussed below, evidence of the defendant's prior conviction is admissible under Rules 404(b) and 403, but the fulsome trial transcripts underlying the prior conviction proffered by the government must be excluded under Rule 403 and the D.C. Circuit's caution about Sheffield in United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018). Further, the fact of the prior conviction is admissible for purposes of impeachment, should the defendant testify.

         Also pending is the defendant's request to exclude evidence of money laundering, see Def.'s Reply to Gov't's Supplemental 404(b) Briefing Related to Money Laundering (“Def.'s Reply II”) at 1, ECF No. 66, which the government has noticed its intent to introduce at trial pursuant to Rule 404(b), see Gov't's Supplemental Mot. Regarding Money Laundering Evidence Pursuant to Rule 404(b) (“Gov't's Mot. II”), ECF No. 62. For the reasons explained, the money laundering evidence is inadmissible in the government's direct case.

         I. BACKGROUND

         Background on the pending charges against the defendant is set out below to inform the analysis of the admissibility of the defendant's prior narcotics trafficking conviction and the government's proffered money laundering evidence.

         The government describes as follows the events that led to law enforcement's identification of the defendant as the supplier of heroin to an individual, known as Suspect-1, who made four separate sales of guns and illegal narcotics to an undercover agent (“UC”) in August and November 2018. See Gov't's Mot. I at 1, 3.[1] Suspect-1 made his first two sales, of guns, ammunition, and marijuana, to the UC in August. Id. at 4. At the time, Suspect-1 also told the UC that he had a heroin supplier willing to sell kilogram-quantities of heroin. Id. Later, on September 24, 2018, Suspect-1 told the UC that he “believed his supplier to be a millionaire who owned a mechanic shop, an auto-body shop, and a small car dealership.” Id. at 5. During conversations in October 2018, Suspect-1 discussed the terms of a heroin transaction with the UC, referring to his heroin supplier as “OG, ” “Doug” or “Uncle D.” Id. at 6 & n.3 (noting that Douglas is the defendant's middle name). On October 18, 2018, Suspect-1 informed the UC that he had been unable “to speak to ‘OG' because ‘OG' went on vacation with his significant other to Cancun, Mexico for a week.” Id. at 6. Law enforcement subsequently confirmed, consistent with Suspect-1's statement, that the defendant had traveled to Mexico on or about October 16, 2018. Id. at 8.

         In November 2018, according to the government, the UC completed two controlled purchases of heroin supplied by the defendant. On November 1, 2018, the UC bought 131 grams of heroin from Suspect-1 for $10, 800 at a Wendy's parking lot in Northeast Washington, D.C. Id. at 7. Law enforcement tracking of incoming and outgoing calls on Suspect-1's phone prior to and during this transaction revealed that Suspect-1's supplier was associated with a phone number listed to Dou Perfect, an auto body repair shop located in Clinton, Maryland. Id.

         In the hour leading up to the second controlled purchase, on November 29, 2018, law enforcement conducting surveillance observed the defendant leave Dou Perfect in a Jeep Grand Cherokee and then watched the defendant and Suspect-1 interact in the parking lots of a Hip Hop Fish and Chicken and of another restaurant, Mid-Atlantic Crab and Seafood, in Clinton, Maryland. Id. at 10. Afterward, the defendant was seen returning to Dou Perfect. Id. Suspect-1 drove immediately from Clinton to a pre-arranged meeting with the UC in Southeast Washington, D.C., at which meeting the UC paid Suspect-1 $10, 300 for handguns and 129 grams of heroin. Id.

         After these two controlled purchases, on December 5, 2018, the UC spoke to Suspect-1 about purchasing one kilogram of heroin from “OG.” Id. at 11. While discussing this deal, Suspect-1 reported that “OG” did not want to meet with the UC until “OG” had “establish[ed] a relationship with the UC with respect to large quantities of heroin.” Id. Also in December, law enforcement observed the defendant leaving 4215 Foote Street, a duplex residence in Northeast Washington, D.C., in the same Jeep Grand Cherokee he had driven November 29. Id.

         Dou Perfect and the Foote Street location were searched pursuant to search warrants on December 19, 2018. Id. at 12. At Dou Perfect, law enforcement seized mail, ammunition, two laptops, and two cars - a GMC Sierra K1500 Denali and a Lexus RX 350. Id. No customer invoices or work orders for auto body work, nor any wage records reflecting that Dou Perfect had employees were found in the search. Id. at 23. At the Foote Street location, from the main bedroom, law enforcement seized: (1) a Black Stanley tool chest containing almost 44 kilograms of heroin, some laced with fentanyl, id. at 12-14; (2) 50 pounds of marijuana in large, opaque bags, id. at 14; (3) clear and colored baggies, id. at 13-14; and (3) six firearms, id. at 13, 15. From the living room, law enforcement seized two more tool boxes, one containing distribution paraphernalia. Id. at 14. Outside, a Maserati sedan was seized. Id.

         According to Witness-1, the defendant's girlfriend, who owns the Foote Street duplex and who lived there with her 11 year-old daughter and 18 year-old son, the defendant had resided at 4215 Foote Street for the year or two prior to his arrest. Id. at 15. In a video-taped interview with law enforcement, id. at 15 n.5, Witness-1 denied having access to the bags and tool boxes seized at her apartment and said those items belonged to the defendant, id. at 15. She provided a firearm registration card confirming her right to possess one of the firearms, a pink Walther P22 firearm found underneath a pillow on the main bedroom's bed but denied any knowledge of the other five other firearms, which were found inside bags. Id.

         The defendant was initially indicted on two drug and gun charges on December 20, 2018. See Indictment (Dec. 20, 2018), ECF No. 1. While the indictment was under seal, on January 3, 2019, the defendant was apprehended at an apartment in Baltimore. Gov't's Mot. I at 16.[2] The superseding indictment, issued on October 23, 2019, charges the defendant with the following six counts: (1) unlawful possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i); (2) using, carrying, and possessing a firearm during a drug trafficking offense under 18 U.S.C. § 924(c)(1); (3) unlawful possession of a firearm and ammunition by a person convicted of a felony, in violation of 18 U.S.C. § 922(g)(1); (4) unlawful possession with intent to distribute marijuana, see 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D); (5) unlawful possession with intent to distribute fentanyl, see Id. §§ 841(a)(1) and 841(b)(1)(C); and (6) conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, marijuana, and fentanyl, in violation of 21 U.S.C. § 846. See Superseding Indictment at 1-4.

         Following a hearing regarding various pretrial motions, held on December 12, 2019, and the parties' supplemental filings on the pending motions in limine, completed on December 23, 2019, the issues of admissibility of the defendant's prior conviction, under Rules 404(b) and 609, and of the alleged money laundering, under Rule 404(b), are now ripe for resolution.[3]

         II. LEGAL STANDARD

         The Supreme Court has recognized that “[a]lthough the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984); see also Id. at 40 n.2 (defining motion in limine “in a broad sense to refer to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered”); Dietz v. Bouldin, 136 S.Ct. 1885, 1891 (2016) (noting inherent “power of a judge to hear a motion in limine”). Indeed, Rule 103(d) of the Federal Rules of Evidence mandates that the court must, to the extent practicable, conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. Fed.R.Evid. 103(d).

         Pretrial motions in limine are an important mechanism to effectuate this goal of insulating the jury from inadmissible evidence and also further the general purpose of the rules to administer the proceedings “fairly . . . to the end of ascertaining the truth and securing a just determination.” Fed.R.Evid. 102; see Brodit v. Cambra, 350 F.3d 985, 1004-05 (9th Cir. 2003) (noting that motions in limine “allow parties to resolve evidentiary disputes ahead of trial, without first having to present potentially prejudicial evidence in front of a jury”); 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5042 (2d ed. 2005) (noting that “the motion in limine . . . still remains a favorite method of the writers for satisfying Rule 103(c)”). Moreover, “[a] pre-trial ruling, if possible, may generally be the better practice, for it permits counsel to make the necessary strategic determinations.” United States v. Jackson, 627 F.2d 1198, 1209 (D.C. Cir. 1980).

         III. DISCUSSION

         Following review of the legal principles guiding application of Rules 403, 404(b) and 609, the evidence proffered by the government for admission at trial under these rules is considered, starting with the money laundering evidence and then turning to the defendant's prior narcotics conviction.

         A. Overview of Relevant Evidentiary Rules

         1. Rule 404(b)

         Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character, ” Fed.R.Evid. 404(b)(1), but “[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, ” id. 404(b)(2). This rule codifies the common law tradition of “disallow[ing] resort by the prosecution to” propensity evidence - that is, “evidence of a defendant's evil character to establish a probability of his guilt.” Michelson v. United States, 335 U.S. 469, 475 (1948). Such “propensity evidence is relevant, ” but “the risk that a jury will convict for crimes other than those charged - or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment - creates a prejudicial effect that outweighs ordinary relevance.” Old Chief v. United States, 519 U.S. 172, 181 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)). “[S]o long as the evidence is not offered solely to prove character, ” however, “any purpose for which bad-acts evidence is introduced is a proper” purpose under Rule 404(b). United States v. Miller, 895 F.2d 1431, 1436 (D.C. Cir. 1990); see also, e.g., United States v. Clarke, 24 F.3d 257, 264 (D.C. Cir. 1994) (stating that evidence is admissible under the rule as long as it is “probative of some material issue other than character” or propensity). Put differently, “[o]nly one series of evidential hypotheses is forbidden in criminal cases by Rule 404: a man who commits a crime probably has a defect of character; a man with such a defect of character is more likely than men generally to have committed the act in question.” Miller, 895 F.2d at 1436 (quoting 2 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 404[8] at 404-52 (1989)).[4]

         2. Rule 403

         Relevant evidence that is admissible under Rule 404(b) may nevertheless be excludable under Rule 403 because “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; Old Chief, 519 U.S. at 182 (“[E]vidence of a prior conviction is subject to analysis under Rule 403 for relative probative value and for prejudicial risk of misuse as propensity evidence.”). Critically, the test focuses on “unfair prejudice, ” or prejudice that is “compelling or unique, ” United States v. Mitchell, 49 F.3d 769, 777 (D.C. Cir. 1995) (quoting United States v. Washington, 969 F.2d 1073, 1081 (D.C. Cir. 1992)), or has “an undue tendency to suggest decision on an improper basis, ” United States v. Ring, 706 F.3d 460, 472 (D.C. Cir. 2013) (quoting Fed.R.Evid. 403, Advisory Committee Notes, 1972 Proposed Rules).

         Further, by the express terms of Rule 403, 404(b) evidence is admissible, unless “its probative value is substantially outweighed by a danger of . . . unfair prejudice, ” Fed.R.Evid. 403 (emphasis added), and thereby the identified danger must be amply weighty to warrant exclusion of otherwise probative relevant evidence. Hence, the D.C. Circuit has opined that Rule 404(b) “is a rule of inclusion.” United States v. Douglas, 482 F.3d 591, 596 (D.C. Cir. 2007) (“Indeed, ‘Rule 404(b) is a rule of inclusion rather than exclusion' ‘prohibiting the admission of other crimes evidence “in but one circumstance” - for the purpose of proving that a person's actions conformed to his character.'” (citation omitted) (quoting United States v. Bowie, 232 F.3d 923, 929-30 (D.C. Cir. 2000); and then quoting United States v. Crowder, 141 F.3d 1202, 1206 (D.C. Cir. 1998) (en banc))); see also United States v. Lawson, 410 F.3d 735, 740 (D.C. Cir. 2005) (stating the same).

         “[T]he analytical method to be used in Rule 403 balancing” requires the district court “to take account of the full evidentiary context of the case as the court understands it when the ruling must be made.” Old Chief, 519 U.S. at 182. Thus, the probative value and unfair prejudice of an item of evidence “may be calculated by comparing evidentiary alternatives, ” Old Chief, 519 U.S. at 184, and “[t]he probative worth of any particular bit of evidence is obviously affected by the scarcity or abundance of other evidence on the same point, ” id. (quoting 22 Wright & Graham, Federal Practice & Procedure: Evidence § 5250 (1978)); see also Id. at 183 (observing that “a judge applying Rule 403 could reasonably apply some discount to the probative value of an item of evidence when faced with less risky alternative proof going to the same point.”); Fed.R.Evid. 404, Advisory Committee Notes, 1972 Proposed Rules) (noting that in making determination “whether the danger of undue prejudice outweighs the probative value of the evidence” relevant factors are “the availability of other means of proof and other facts appropriate for making decision of this kind under Rule 403”); see also Fed. R. Evid. 403, Advisory Committee Notes, 1972 Proposed Rules (noting that “[i]n reaching a decision whether to exclude on grounds of unfair prejudice . . . [t]he availability of other means of proof may also be an appropriate factor.”). Given district courts' familiarity with this full evidentiary context, district courts generally have “broad discretion to weigh the extent of potential prejudice against the probative force of relevant evidence.” Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625, 633 (D.C. Cir. 2010) (quoting Fredrick v. District of Columbia, 254 F.3d 156, 159 (D.C. Cir. 2001)).

         3. Rule 609

         Rule 609 governs the admission of a prior felony conviction for purposes of impeachment and sets out four different standards for admission, ranging from automatic admissibility to the inclusionary, Rule 403 standard to more exclusionary standards protective of the criminal defendant and any witness with a prior conviction over a decade old. The applicable standard depends on four variables: whether the case is criminal or civil, whether the witness is a criminal defendant, and the nature and age of the prior conviction.

         Specifically, any prior conviction occurring within 10 years, “must be admitted” (1) automatically, if it requires proof of a dishonest act or false statement, Fed.R.Evid. 609(a)(2); (2) subject to the Rule 403 standard (i.e., the probative value of the evidence is substantially outweighed by the danger of unfair prejudice), in civil cases or in criminal cases where the witness is not the defendant, id. 609(a)(1)(A); and (3) subject to a more exclusionary standard (i.e., “the probative value of the evidence outweighs it prejudicial effect to that defendant”), where the witness is the criminal defendant, id. 609(a)(1)(B). Finally, regardless of the nature of the case or prior conviction, or the status of the witness, “if more than 10 years have passed since the witness's conviction or release from confinement, ” “[e]vidence of the conviction is admissible only if . . . its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect” and “written notice of the intent to use” the prior conviction is given. Id. 609(b). This fourth Rule 609 standard amounts to “a reverse Rule 403 test, ” Capra & Richter, supra, at 821 n.277, imposing the most stringent admissibility requirement on decade-or-older prior convictions for purposes of impeaching any witness, including a testifying criminal defendant. The exclusionary nature of this standard is intended to ensure “that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances” for purposes of impeaching a witness. Fed.R.Evid. 609, Advisory Committee Note, 1974 Enactment, Note to Subdivision(b).

         Notwithstanding the more exclusionary standard applicable to admission of prior conviction evidence against a criminal defendant-witness under Rules 609 (a)(1)(B) and (b), courts generally have concluded that, where a jury has already heard about a defendant's prior conviction for some other purpose under Rule 404(b), the danger of prejudice by repetition of the evidence for purposes of impeachment is “negligible.” United States v. Moore, 75 F.Supp.3d 444, 456 (D.D.C. 2014) (first quoting United States v. Chauncey, 420 F.3d 864, 874 (8th Cir. 2005); and then citing United States v. Lattner, 385 F.3d 947, 961 (6th Cir. 2004); and then citing United States v. Mahler, 579 F.2d 730, 736 (2d Cir. 1978)). As the D.C. Circuit has explained, Rule 609 “governs only the admissibility of evidence introduced for impeachment of a witness, ” such that evidence of a prior conviction “not introduced to attack a witness's credibility falls outside the rule's scope” and must be evaluated for admissibility under Rules 404(b) and 403. United States v. Rogers, 918 F.2d 207, 211 (D.C. Cir. 1990) (declining the defendant's “invitation to conflate” Rules 404(b) and 609); see also United States v. Rubio-Gonzalez, 674 F.2d 1067, 1075 (5th Cir. 1982) (calling the matter of impeaching credibility “quite different” from the issues for which prior convictions may be admissible under Rule 404(b)).

         B. Money Laundering Evidence

         1. Background

         Three vehicles belonging to the defendant - a GMC Sierra K1500 Denali, a 2014 Lexus RX 350, and a 2009 Maserati sedan - were found at Dou Perfect and the Foote Street location on December 19, 2018, when the search warrants were executed. Gov't's Mot. II at 1. The government seeks to introduce, through six witnesses, evidence showing how the defendant acquired each car. Id. at 2; see also Gov't's Notice of Supplemental Filing Related to Money Laundering (“Gov't's Supp. II”) at 1-2, ECF No. 64. On this foundation, the government hopes to argue, through a seventh witness, a money laundering expert, that the way the defendant obtained the cars is consistent “with the methods used by narcotics traffickers to conceal the source of their illegal proceeds, as well as their illegal assets, in an effort to thwart efforts by law enforcement to identify them and any vehicles and residences associated with them.” Gov't's Mot. II at 1.

         The expected testimony of the six witnesses who participated in the purchase of the three cars is summarized as follows. See Gov't's Mot. I at 23-26; Gov't's Mot. II at 2-5 (providing additional details). The titles to all three cars were found in the Denali, and none of the titles identified the defendant as the purchaser. See Gov't's Mot. I at 23-26; Gov't's Mot. II at 2-5. The Denali also contained the defendant's social security card, his passport, and bank statements, as well as the bill of sale for the Denali, from 74 Auto LLC, dated March 16, 2017, showing a sale price of $19, 700. Gov't's Mot. II at 2. The listed purchaser of the Denali, Person-3, told law enforcement that she had bought the car for a middle-aged man named “Doug, ” who had been introduced to her by a friend as someone who needed to use another person's bank account for a purchase. Id. at 3. Paypal records showed an initial $500 deposit on the car to 74 Auto LLC from the defendant himself. Id.

         The Lexus had previously been seized at a 2017 narcotics raid related to Dou Perfect and was retrieved from law enforcement by the defendant on February 5, 2018. Id. at 4. The defendant, working with Person-5, had obtained a power of attorney from the vehicle's previous owner, Person-4, id., who had purchased the car in November 2016 for $8, 000, id. at 3.

         Maryland motor vehicle records revealed that the Maserati, which was seized at the Foote Street location, had been purchased in October 2016 for $7, 900. Id. at 4. The Maserati was also seized in the previous narcotics raid at Dou Perfect and, in July 2017, law enforcement returned the car to its then-titled owner, Person-6. Id. at 4-5. According to Person-6, the defendant had initially asked Person-6 to title the vehicle in Person-6's name as a favor, and Person-6 had signed the title over to the defendant on the vehicle's return after the raid. Id. at 5.

         2. Analysis

         The government argues that the money laundering evidence is relevant to showing that the defendant had the requisite knowledge and intent to engage in drug trafficking. Gov't's Mot. II at 7. According to the government, the evidence suggests that the defendant believed he needed to obscure the source of his money, his ownership of assets, and his connections to two locations he used for narcotics trafficking, Dou Perfect and Foote Street. Id. The defendant disputes the government's factual inferences and thus the evidence's relevance. See Def.'s Reply II at 2.

         The defendant's position is persuasive. To start, the central inference the government seeks to draw about concealing illicit narcotics proceeds is undercut by evidence that defendant did not, in fact, conceal his connections to the cars. The defendant placed a down payment on the Denali himself, see Gov't's Mot. II at 3, went to pick up ...


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