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 the Government's Motion in Limine to Allow Defendant's Prior Convictions for Impeachment Purposes Pursuant to Rule 609 (#16) and the Motion in Limine (#28) filed by Defendant, Howard Baker. In his Motion (#28), Defendant is seeking to bar the presentation of all of the evidence proposed in the Government's Notice of Intent to Introduce Evidence of "Other Acts" Admissible under Rule 404(b) (#17). This court has carefully reviewed the arguments presented by the parties. Following this careful and thorough review, the Government's Motion in Limine (#16) is GRANTED in part and DENIED in part and Defendant's Motion in Limine (#28) is GRANTED in part and DENIED in part.
On August 4, 2009, Defendant was charged by indictment (#6) with one count of knowingly and intentionally possessing five or more grams of a mixture and substance containing cocaine base ("crack"), a Schedule II controlled substance, with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). According to the Government, the charge is based on allegations that, on July 24, 2009, Defendant fled from police officers and the police recovered 25.2 grams of "crack" cocaine in the flight path taken by Defendant. When officers confronted Defendant about the recovery of the "crack" cocaine, Defendant denied that the drugs belonged to him. Defendant has pleaded not guilty to the charge against him and is scheduled for a jury trial, with jury selection to be held on October 29, 2009, and trial to commence on November 2, 2009.
On October 19, 2009, the Government filed a Notice of Intent to Introduce Evidence of "Other Acts" Admissible under Rule 404(b) (#17). The Government argued that, through his statements made following his arrest and his plea of not guilty, Defendant has denied: (1) that he knowingly possessed the "crack" cocaine; and (2) that he possessed the "crack" cocaine with the intent to deliver. The Government stated that it intends to introduce at trial: (1) Defendant's December 4, 2000, conviction of unlawful delivery of a controlled substance; (2) evidence regarding Defendant's possession of cocaine on January 29, 2008; (3) evidence regarding Defendant's delivery of cocaine during the time period of January 29, 2008; and (4) evidence regarding Defendant's distribution of cocaine on February 11, 2009, and April 8, 2009.
On October 23, 2009, Defendant filed a Motion in Limine (#28) and asked this court to bar the presentation of all of the evidence the Government has proposed to introduce under Rule 404(b) of the Federal Rules of Evidence. On October 26, 2009, Defendant filed his Response (#31) to the Government's Notice. In his Response, Defendant stated that the Government is correct that the issues of knowing possession of crack cocaine and possession with intent to distribute will be contested issues at trial. Defendant stated that the evidence he anticipates at trial will be that no witness observed Defendant deposit the crack cocaine recovered by the police and no witness saw Defendant in possession or control of the crack cocaine. Defendant further stated that, after fingerprint analysis, Defendant's fingerprints were not found on the cocaine packaging. Defendant argued that the evidence the Government is seeking to introduce 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 the extreme danger of unfair prejudice to Defendant.
Rule 404(b) provides that evidence of a defendant's "other bad acts" is not admissible 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). However, this evidence may be admissible for other purposes, in the discretion of the trial judge, such as to establish "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See 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). To be admissible:
(1) it must be directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) it must be similar enough and close enough in time to be relevant to the matter in issue; (3) it must be sufficient to support a jury finding that the defendant committed the similar act; and (4) its probative value must not be substantially outweighed by the danger of unfair prejudice.
United States v. Millbrook, 553 F.3d 1057, 1062 (7th Cir. 2009), citing United States v. Watts, 535 F.3d 650, 657-58 (7th Cir. 2008); see also United States v. Conner, ___ F.3d ___, 2009 WL 3380330, at *7 (7th Cir. Oct. 22, 2009).
In drug cases, the Seventh Circuit has often found a defendant's other drug transactions relevant for purposes other than propensity, such as knowledge, intent, and lack of mistake. Conner, 2009 WL 3380330, at *7 (citing cases). The Government has argued that it should be allowed to introduce evidence regarding Defendant's prior drug 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 knowledge and intent. The Government stated that the evidence will be introduced primarily to prove the elements that it is required to establish, namely Defendant's knowledge that he possessed narcotics and intent to distribute those narcotics.
In its Notice, the Government stated that it intended to introduce evidence that, on December 4, 2000, Defendant plead guilty to the offense of unlawful delivery of a controlled substance in the circuit court of Champaign County. Defendant was sentenced to four years in the Illinois Department of Corrections and was discharged on December 20, 2002. The Government stated that the conviction arose out of controlled buys on August 9 and 10, 2000, during which a confidential informant purchased crack cocaine from Defendant.
Defendant argued that this evidence should not be allowed at trial. Defendant contended that the facts are sufficiently different from the facts of this case so that, coupled with the age of the conviction, the admission of ...