The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On April 4, 2007, Defendant Glosser was charged by indictment with attempting to possess 500 grams or more of methamphetamine with the intent to distribute it in violation of 21 U.S.C. Sections 841(a)(1) and (b)(1)(B). This matter is currently set for a final pretrial conference on October 10, 2007, and a jury trial commencing October 29, 2007. In anticipation of trial, the parties have filed several motions. After a careful review of the parties' motions and the responses to those motions, the court rules as follows.
1. Defendant's Motion to Dismiss Indictment
On September 26, 2007, Defendant filed a Motion to Dismiss Indictment (#15) arguing that the indictment in this matter should be dismissed based upon prosecutorial misconduct. Specifically, Defendant argues the Government falsely represented to Magistrate Judge Bernthal at the time of the presentation of the criminal complaint in this matter that Defendant possessed methamphetamine when he actually possessed two packages of duct tape which were made to look like methamphetamine. Defendant therefore assumes the Government likewise misled the grand jury in this matter because the Government misled Magistrate Judge Bernthal.
The record in this case does not support Defendant's assertions in his motion. The affidavit of Officer Jeffrey Endsley of the Eastern Illinois University Police Department attached to the Criminal Complaint (#1) presented to Magistrate Judge Bernthal indicates that "agents arranged for the CS to meet with Glosser to deliver two packages of look-alike drugs that Glosser believed contained 'ice' (methamphetamine)." There is nothing in the record to indicate that any information to the contrary was presented to grand jury. The fact that Defendant was charged with attempted rather than actual possession of a controlled substance with the intent to deliver supports this conclusion. Accordingly, Defendant's Motion to Dismiss Indictment (#15) is DENIED.
2. Defendant's Motion in Limine
In his Motion in Limine (#14), Defendant seeks to bar the introduction of evidence of statements allegedly made by the Defendant to investigators that he had purchased drugs on occasions not charged in the indictment. Defendant argues this evidence would be "highly prejudicial," particularly in light of the fact that he was not charged with conspiracy. In its Response (#16), the Government indicates that on March 8, 2007, agents of the DEA and the East Central Illinois Task Force used a confidential informant to record a conversation with Defendant Glosser in which Defendant Glosser discussed obtaining methamphetamine from the confidential informant's source who is located in Tulsa, Oklahoma. During the discussion, Defendant Glosser allegedly made statements that he was involved in selling drugs, claimed to be in possession of firearms, and discussed transporting them or selling them to the source in Tulsa. The Government further indicates that on March 15, 2007, agents again used the confidential informant to record a conversation in which Defendant Glosser discussed obtaining methamphetamine from the confidential informant and selling it. Defendant Glosser was then videotaped obtaining what Defendant Glosser allegedly believed was one and one-half pounds of methamphetamine from the confidential informant. Defendant was then arrested. The Government asserts that in a subsequent interview with Defendant Glosser by agents, Defendant Glosser admitted that the confidential informant had brought distribution amounts of methamphetamine on three separate occasions to Defendant and that Defendant had deposited money in the confidential informant's bank account to pay for the methamphetamine.
Federal Rule of Evidence 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 probative value of the evidence [must] not [be] substantially outweighed by the danger of unfair prejudice.
Chavis, 429 F.3d at 667, quoting United States v. Best, 250 F.3d 1084, 1090-91 (7th Cir. 2001).
As to first prong this test, the Seventh Circuit has stated that the most obvious situation in which prior drug activity is relevant to prove the defendant's intent in a subsequent prosecution for possession of drugs with the intent to distribute is one "in which the defendant, while admitting possession of the substance, denies the intent to distribute it." United States v. Jones, 455 F.3d 800, 808 (7th Cir. 2006). In the instant case, the Government must demonstrate that Defendant Glosser had the intent to deliver the methamphetamine to another person. See 21 U.S.C. § 841(a)(1). It appears to the court, based upon the representations of the Government, that the primary issue in this trial will be whether Defendant intended to deliver methamphetamine to another person. The Government indicates that it has a videotape of Defendant taking possession of what he allegedly believed was methamphetamine and was arrested after officers observed Defendant throw the purported methamphetamine to the ground. Accordingly, because proof of Defendant's intent to distribute the substance he was receiving from the confidential informant will likely be the central issue at trial, the Government has satisfied the first prong of the test.
As concerns the second prong of the test, the acts described in the statements made by Defendant Glosser are significantly similar to the offense charged in the instant case. Defendant Glosser allegedly stated that he obtained distribution amounts of methamphetamine from the same confidential informant in the months preceding Defendant's arrest. As concerns the third prong of the test, the Defendant's own statements against his interest are substantial evidence that Defendant committed the acts which he described. Finally, the probative value of the evidence is not substantially outweighed by the prejudicial effect. Unlike many cases in which the issue of 404(b) arises, the Government does not seek to introduce a prior conviction for a similar offense, but rather the Defendant's statements that he committed a similar offense. In addition, to prevent any unfair prejudice this court will give the jury an appropriate limiting instruction indicating this evidence should only be considered on the issue of intent. See United States v. Hurn, __ F.3d __, 2007 WL 2215765 at *3 (7th Cir. 2007). Accordingly, this court will allow the admission of Defendant's statements regarding prior drug transactions with the confidential informant.
The Government further seeks to introduce statements made by Defendant regarding his possession of firearms. Defendant's possession of firearms was legal and therefore the danger of prejudice is low. Furthermore, the Seventh Circuit has stated that "firearms are recognized as tools of the drug trade; thus courts have sustained the admission of weapons evidence in narcotics cases because the possession of a weapon is often a hallmark of drug trafficking." United States v. Duran, 407 F.3d 828, 838 (7th Cir. 2005). Accordingly, this court agrees that evidence that Defendant possessed weapons at the time of the ...