The opinion of the court was delivered by: Judge Blanche M. Manning
Defendant Fredrick Farmer is charged with conspiring to and attempting to possess with intent to distribute more than 500 grams of cocaine, see 21 U.S.C. §§ 841(a)(1), 846. The charges stem from his alleged purchase of 3 kilograms of cocaine from a confidential source cooperating with the government.
In advance of his upcoming trial, the parties have filed motions in limine and, in addition, Farmer has filed a motion to suppress. For the reasons that follow, the motions in limine are granted in part and denied in part.
Government's Motion In Limine [89-1]
A. Motion to Recall Witnesses
The government has moved to be allowed to call Drug Enforcement Administration special agent Billy Conrad to the stand at least twice during its case-in-chief so that it can present its case "in an episodal manner." Farmer has not objected, and therefore the motion is granted.
B. Motion to Exclude Evidence of Draft Transcripts Other Than to Impeach the Preparer of the Draft
Next, the government seeks to exclude evidence of or any testimony about draft transcripts of recorded conversations. Farmer has not objected, and therefore the motion is granted.
C. Motion to Admit Evidence of Farmer's 2003 Conviction
The government seeks to introduce into evidence a conviction Farmer received in state court in 2003 for possession of cocaine. Under Federal Rule of Evidence 404(b), evidence of prior bad acts is inadmissible to "prove the character of a person in order to show action in conformity therewith." However, evidence of prior bad acts may be admitted to establish "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. To be admissible as evidence of an issue other than propensity, the other act must be similar and close in time to the offense charged, there must be sufficient evidence that the defendant committed the other act, and the probative value of the other act must not be substantially outweighed by the danger of unfair prejudice. See United States v. Hurn, 496 F.3d 784, 787 (7th Cir. 2007).
The government identifies two issues other than propensity to which it contends that Farmer's prior cocaine offense would be relevant: (1) it would show that Farmer intended to distribute the three kilograms of cocaine he purchased as part of the instant offense; and (2) it would show that Farmer was not merely an innocent bystander to the instant offense. In support, the government cites United States v. Macedo, 406 F.3d 778, 793 (7th Cir. 2005), in which the court concluded that a prior drug conviction could be used to prove intent to redistribute and to dispel the notion that the defendant was an innocent bystander. However, in Macedo, the Seventh Circuit acknowledged that its decision was a close case, and decided only that allowing such evidence was not an abuse of discretion. Id. The Seventh Circuit did not hold that evidence of prior convictions must be admitted under such circumstances.
The court has carefully weighed the parties' arguments and, in its discretion, concludes that the probative value of Farmer's prior conviction is susbstantially outweighed by the danger of unfair prejudice. As Farmer argued in his opposition to the government's motion, the circumstances of the instant offense leave little doubt that the 3 kilogram quantity of cocaine at issue in the instant offense was a distribution amount of cocaine, not an amount consistent with a purchase for personal use. Thus, as Farmer put it, it "would certainly be absurd for [counsel] to try to argue that the defendants in this case conspired to purchase three kilograms of cocaine, but never had the specific intent to distribute it." Farmer's Response [96-1] at 3. Thus, Farmer's prior conviction would offer little additional probative value of his intent to distribute the 3 kilograms of cocaine. As to the issue of whether Farmer was an innocent bystander, the court is not persuaded that the probative value of his prior conviction on that issue is not substantially outweighed by the risk that jurors will convict Farmer based upon a propensity to engage in drug offenses.
Accordingly, the motion to admit evidence of Farmer's 2003 conviction is denied. However, the court will revisit if events at trial raise an issue other than propensity to ...