The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on two pre-trial motions: Defendant's Motion in Limine to Bar Use of Prior Convictions (#34) and the Government's Motion in Limine Concerning Admission of Evidence under Rule 404(b) (#39). This court has carefully considered the arguments raised in the Motions and the Responses thereto. Following this careful consideration of the issues raised, this court rules as follows: (1) the Government's Motion in Limine (#34) is DENIED; and (2) Defendant's Motion in Limine (#39) is GRANTED in part and DENIED in part.
On February 3, 2005, Defendant, Jasper Vargas, was charged by indictment with the offense of knowingly possessing more than five kilograms of cocaine, a Schedule II controlled substance, with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii). On May 23, 2005, the Government filed an Information and Notice Regarding Prior Convictions (#15). In this document, the Government gave notice of its intention to seek an enhancement of Defendant's sentence pursuant to 21 U.S.C. § 851. The Government listed two prior qualifying convictions: (1) a January 21, 1992, conviction of delivery of a controlled substance in Hidalgo County, Texas; and (2) a September 17, 1992, conviction of possession of marijuana in Hidalgo County, Texas. The Government submitted that, by reason of these prior convictions, Defendant "shall be sentenced to increased punishment upon conviction, in this case a mandatory term of life imprisonment."
On March 21, 2005, Defendant filed a Motion to Quash Arrest and Suppress Evidence Illegally Seized (#12) and, on July 18, 2005, Defendant filed a Second Amended Motion to Quash Arrest and Suppress Evidence Illegally Seized (#20). On September 26, 2005, an evidentiary hearing was held, and, subsequently, the parties filed written Memoranda regarding the issues raised. On February 2, 2006, this court entered an Opinion (#31) and DENIED Defendant's Second Amended Motion to Quash Arrest and Suppress Evidence Illegally Seized (#20). This case was subsequently scheduled for a final pretrial conference on July 6, 2006, at 1:30 p.m. and a jury trial on July 17, 2006, at 9:00 a.m.
In anticipation of trial, Defendant and the Government each filed a Motion in Limine. Both motions relate to Defendant's prior convictions.
I. GOVERNMENT'S MOTION IN LIMINE
On May 5, 2006, the Government filed a Motion in Limine Concerning Admission of Evidence under Rule 404(b) (#39). The Government stated that the charge in this case resulted from a traffic stop in which the tractor-trailer operated by Defendant was stopped by an Illinois State trooper. During a subsequent search of the trailer, law enforcement officers found and seized approximately 282 kilograms of cocaine, contained in 157 separate packages, located in a hidden compartment in the refrigeration unit in the front of the trailer. The Government stated that it believes that Defendant's theory of defense will be that he had no knowledge of the drugs in the trailer and that he was merely hauling produce. The Government stated that Defendant has three prior felony convictions, the two 1992 convictions, for which he was sentenced to prison and released on parole in 2000, and a 1988 conviction of possession of a controlled substance with intent to deliver, for which he was sentenced to six years of probation.
In its Motion in Limine, the Government requested that it be allowed to introduce evidence in its case-in-chief of the fact of Defendant's 1992 conviction of delivery of cocaine and both the fact of and the facts underlying the 1992 conviction of possession of marijuana. The Government argued that this evidence would be relevant on the issues of intent, knowledge, plan, and absence of mistake under Rule 404(b) of the Federal Rules of Evidence.
On May 22, 2006, Defendant filed his Opposition to Government's Motion to Introduce Evidence of Criminal Acts Not Charged in the Case at Bar (#43). Defendant does not dispute that his defense is that he had no knowledge of the presence of drugs in the trailer.*fn1 Defendant argued that, based upon the Seventh Circuit's decision in United States v. Jones, 389 F.3d 753 (7th Cir. 2004), vacated on other grounds, 125 S.Ct. 2948 (2005), the Government has not met the requirements for the introduction of Defendant's prior convictions under Rule 404(b). This court agrees.
Rule 404(b) prohibits the use of evidence of other bad acts to show that a defendant has a propensity to commit a crime and that he acted in accordance with that propensity on the occasion in question. United States v. Chavis, 429 F.3d 662, 667 (7th Cir. 2005). Such evidence can be admitted, however, if it is offered for purposes other than showing propensity, such as to establish intent, knowledge, lack of mistake, motive, or opportunity. Chavis, 429 F.3d at 667. A four-part standard governs the admissibility of evidence under Rule 404(b):
(1) the evidence [must be] directed toward a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence [must] show that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence [must be] sufficient to support a jury finding that the defendant committed the similar act; and (4) the ...