The opinion of the court was delivered by: Herndon, District Judge
This matter is before the Court on Defendant Quawntay Adam's ("Defendant") Motion in Limine to Bar 404(b) Evidence (Doc. 257), to which the Government has filed a timely opposing Response (Doc. 269). Defendant seeks to withhold from evidence the following two items the Government intends to offer as part of its case-in-chief against Defendant: (1) Defendant's 1997 conviction for sale of a controlled substance in January, 1996, in Oceanside, California; and (2) Defendant's July, 1996 arrest for possession of a controlled substance in Las Vegas, Nevada (Doc. 257, p. 1). Defendant also seeks to exclude the following: (1) any mention or reference to the circumstances surrounding Defendant's 1997 conviction and 1996 arrest; and (2) any mention or reference to Defendant's alleged involvement with drug trafficking and drug use over the past ten years (Id.).
Rule 404(b) of the Federal Rules of Evidence reads as follows: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Further, Rule 403 states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The Seventh Circuit has combined the evidentiary requirements expressed in Rules 404(b) and 403 into a four-prong test to govern the admission of prior bad acts evidence. See United States v. Asher, 178 F.3d 486, 492 (7th Cir. 1999)(citations omitted). According to the Seventh Circuit, "[e]vidence of prior crimes, wrongs, or acts may be admitted when: (1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." Id. A court's decision to admit or exclude evidence based upon this four-prong test, in accordance with Rules 404(b) and 403, are reversible only for an abuse of discretion. United States v. Harrod, 856 F.2d 996, 999 (7th Cir. 1988)(citing United States v. Chaimson, 760 F.2d 798, 808 (7th Cir.1985) (quoting United States v. Brown, 688 F.2d 1112, 1117 (7th Cir.1982)).
B. Admission of Defendant's 1996 Arrest and 1997 Conviction
Defendant believes the Government fails to meet any of the four prongs for admissibility of prior bad acts (Doc. 257, p. 2). Defendant further argues that these two prior events, occurring "over nine years ago," are irrelevant to the issues at hand, other than to show Defendant's propensity to commit narcotics offenses (Id.). Such evidence, Defendant asserts, would be "substantially more prejudicial than probative and should therefore be barred from admission into evidence or other reference during trial (Id. at 3).
Conversely, the Government states that this evidence will not be offered to show Defendant's propensity, but rather, "to show Defendant's intent, plan, knowledge and identity, in conformity with the Rule" (Doc. 269, p. 2). However, the Government chooses not to elaborate on how this would be accomplished. This does not appear to be a case where it is necessary for the Government to establish a pattern to show such intent, plan, knowledge and identity, in order to obtain a conviction. Therefore, a mere recitation of the language of Rule 404 will not suffice absent further substantiated arguments. The Court fails to understand the Government's logic in how it arrived at this conclusive statement and fears the real reason for such evidence would be to establish Defendant's propensity to commit the crime is he now charged with. For example, the Court admitted evidence under Rule 404(b) regarding the defendant's previous involvement in a bribery scheme, as his defense was lack of knowledge of the scheme and lack of intent. United States v. Chaimson, 760 F.2d 798, 804 (7th Cir. 1985)(found evidence of prior similar bribery scheme was relevant to the issue of specific intent to commit mail fraud, which was the pending charge against the defendant)
The Government next argues that it meets the second prong, showing that Defendant's prior bad acts are similar enough and close enough in time to be relevant to the instant matter. The Government claims the evidence surrounding Defendant's 1996 arrest and 1997 conviction are similar to Counts One and Two of the Third Superceding Indictment -- conspiracy to possess and distribute a controlled substance and possession and distribution of a controlled substance -- because all indicate Defendant's involvement in drug dealing. Additionally, the Government feels these prior acts are recent enough to be ...