United States District Court, District of Columbia
A. HOWELL CHIEF JUDGE.
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.
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.
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.
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
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.
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,
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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).
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.
Overview of Relevant Evidentiary Rules
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 at 404-52
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
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
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)).
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.
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).
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)).
Money Laundering Evidence
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.
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.
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.
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
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.
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 ...