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 Defendant's Motion in Limine Regarding Prior Bad Acts Pursuant to Rule 404(b) (#10). The Government has responded to Defendant's arguments in its Response to Defendant's Motion in Limine to Bar Evidence (#11). Although given the opportunity to do so, Defendant has notified this court that he will not be filing a Reply (#12). This court has carefully reviewed the arguments presented by the parties. Following this careful and thorough review, Defendant's Motion in Limine (#10) is GRANTED in part and DENIED in part.
On September 10, 2008, Defendant, Montrell L. Miller, was charged by indictment (#1) with one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). The charge is based on law enforcement officers finding a Marlin, Model 99, .22 caliber rifle during the execution of a search warrant on July 17, 2008, at a residence where Defendant was present. Defendant has pleaded not guilty. According to the Government, the main contested issue at trial will be whether Defendant knowingly possessed the rifle.
On December 18, 2008, Defendant filed a Combined Motion in Limine and Memorandum of Law Regarding Prior Bad Acts Pursuant to Rule 404(b) (#10). Defendant stated that the Government has disclosed that it intends to introduce Rule 404(b) evidence at trial, namely evidence regarding Defendant's involvement in the distribution of cocaine base from the residence at 715 East Wyman in Hoopeston, Illinois, the residence where the firearm was found. Defendant argued that this evidence should not be admitted under Rule 404(b) of the Federal Rules of Evidence because any probative value this evidence may have is far outweighed by its prejudicial effect. Defendant also argued that evidence of his prior convictions should not be admitted at trial because it would allow the jury to improperly infer a propensity on the part of Defendant to commit the crime charged.
Defendant asked this court to enter an Order prohibiting the Government from introducing Defendant's prior bad acts or prior convictions into evidence at trial. Defendant also asked, in the alternative, that this court provide a limiting instruction to the jury limiting its consideration of such evidence to one of the permitted uses under Rule 404(b).
On January 27, 2009, the Government filed its Response (#11). The Government stated that it intends to present evidence at trial of Defendant's drug distribution activity to establish a motive for Defendant's possession of the gun, as well as his knowledge. The Government stated that the state court judge who issued the search warrant that resulted in the seizure of the firearm found probable cause to believe illegal drugs would be at the residence based on recent prior sales a crack cocaine from the residence, including a prior sale made by Defendant. During the search, agents found evidence of drug trafficking in addition to the firearm, including approximately 2.8 grams of marijuana, a digital scale with cocaine residue, and a small plastic bag with cocaine residue. The Government stated that a resident of the premises has already testified under oath that Defendant had been selling crack cocaine from the premises and used the digital scale to weigh the crack cocaine. The Government stated that it intends to introduce the drug trafficking evidence because guns are "tools of the trade" of drug trafficking, Defendant's drug trafficking provides a motive for possession of the firearm, and Defendant's possession of other items within the residence tends to establish his knowing possession of the firearm within the residence.
The Government also stated that Defendant has three prior felony convictions: robbery on April 11, 2000, in Cook County; armed robbery and compelling organization membership on October 23, 3001, in Cook County; and possession of 30 to 500 grams of cannabis on January 23, 2003, in Iroquois County. The Government stated that, as an element of the offense charged, it is required to prove that Defendant had at least one prior felony conviction as of July 17, 2008. The Government stated that, typically, it would prove this element by presenting into evidence certified copies of Defendant's prior convictions. The Government said it had no intent to offer Defendant's prior convictions as evidence in its case-in-chief for any other reason. It further stated that if, as anticipated, Defendant agrees to stipulate pursuant to Old Chief v. United States, 519 U.S. 172 (1997), that, prior to July 17, 2008, he had been convicted of a crime that was punishable by a term of imprisonment of more than one year, it would not offer any additional evidence of Defendant's prior felony convictions in its case-in-chief. The Government stated, however, that if Defendant exercises his right to testify, the Government intends to impeach his testimony pursuant to Rule 609 of the Federal Rules of Evidence by offering evidence that Defendant was convicted of three prior felony convictions.
DRUG DISTRIBUTION ACTIVITY
The Government has argued that it should be allowed to introduce evidence regarding Defendant's prior drug distribution activity under Rule 404(b) because the evidence is not being introduced to show propensity but instead is relevant to the contested issues of Defendant's motive and knowledge.
Rule 404(b) allows the admission of prior bad acts, in the discretion of the trial judge, to establish "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." United States v. Hurn, 496 F.3d 784, 787 (7th Cir. 2007), quoting Fed. R. Evid. 404(b); see also United States v. Taylor, 522 F.3d 731, 732-33 (7th Cir. 2008). 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.