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United States of America v. Terrence Brown and

January 6, 2010

UNITED STATES OF AMERICA,
v.
TERRENCE BROWN AND LYNN ROWE.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the Government's consolidated motions in limine [76], the Government's motion to dismiss count one without prejudice [111], the Government's unopposed second motion in limine [112], and Defendant Rowe's motion for the admission of co-defendant statements [104]. For the reasons stated below, the Government's consolidated motions [76] are granted in part and denied in part, the Government's motion to dismiss count one [111] is granted, the Government's unopposed second motion in limine [112] is granted, and Defendant Rowe's motion [104] is granted in part and denied in part.

I. Background

In the summer of 2008, the Drug Enforcement Administration ("DEA") developed two cooperating sources (hereinafter, "CS-1" and "CS-2"). CS-1 and CS-2, together with others, ran a large-scale drug trafficking organization ("DTO"), centered in Chicago, Illinois. The DTO imported thousands of kilograms of cocaine and hundreds of kilograms of heroin from Mexico to Chicago, Illinois and elsewhere. In early December 2008, CS-1 and CS-2 agreed to set up a number of undercover narcotics transactions with DTO customers, including Defendants.

On December 3-4, 2008, CS-1 and CS-2 participated in five recorded calls with Defendant Terrence Brown. Law enforcement officers were present in the room during these calls and recorded these calls while listening to both sides of the conversation. According to the Government, during these calls, Brown agreed to purchase 10 kilograms of cocaine from CS-1 and CS-2. On December 4, 2008, DEA arranged for an undercover officer to deliver 10 kilograms of look-alike substance to Brown.

The indictment alleges that on December 4, 2008, Defendant Lynn Rowe was a passenger in a blue Dodge Durango that was driven by Brown. The two traveled together to the area of 31st Street and Normal Street in Chicago to meet with an individual who, unbeknownst to Brown and Rowe, was an undercover DEA officer, and to take delivery of 10 kilograms of cocaine. During the meeting, the undercover officer retrieved a bag containing 10 kilograms of a cocaine look-alike substance, entered the rear driver side of the Durango, and placed the bag on the back seat. According to the indictment, as Brown reached for a bag containing approximately $14,740 in cash, Rowe exited the front passenger side of the Durango, entered the rear passenger side door, and sat next to the undercover officer. The indictment further alleges that once in the back seat, Rowe looked inside the bag containing the look-alike kilograms and appeared to be counting the kilograms. Brown then handed Rowe the bag of cash, which Rowe then handed to the undercover officer. After the officer took the cash and exited the Durango, Brown and Rowe were arrested. During the arrest, agents recovered two cell phones from Brown's person (hereinafter referred to as "Brown phone 1" and "Brown phone 2") and three cell phones from Rowe's person (hereinafter, "Rowe phone 1," "Rowe phone 2" and "Rowe phone 3"). During a search of the Durango, agents recovered a loaded pistol in a hidden compartment.

According to the Government, the testimony at trial will show that after being advised of his Miranda rights, Brown gave a post-arrest statement. Brown stated that he met an individual called "Wodie" in approximately 2003 or 2004, whom Brown described as a Hispanic male.

Brown admitted that on five prior occasions, he had purchased 10 or more kilograms of cocaine from "Wodie." Brown further stated that his last purchase from "Wodie" was two months prior to the December 2008 transaction and involved eight kilograms of cocaine. Brown also admitted to purchasing a few ounces of cocaine from "Wodie" in approximately 2004 or 2005. Further, Brown admitted that "Wodie" fronted him a kilogram of cocaine in approximately 2004 or 2005, but Brown stated that he could not sell the kilogram so he gave it back. Brown also stated that he had purchased pound quantities of marijuana from "Wodie" during the 2003-04 time period.

With respect to the December 4, 2008 transaction, Brown admitted that he had agreed to purchase 10 kilograms of cocaine at $28,500 per kilogram. Further, Brown admitted that the money he brought to the transaction represented payment for narcotics. When asked about Rowe's role, Brown stated that he did not know why Rowe came to the pick-up and he did not know why Rowe entered the backseat of the vehicle. Brown admitted that the gun in the vehicle was his.

On August 13, 2009, Defendants Lynn Rowe and Terrence Brown were charged together in a superseding indictment with one count of knowingly and intentionally attempting to posses with intent to distribute 5 kilograms or more of cocaine in violation of Title 21, United States Code, § 841(a)(1) (Count II). Defendant Brown also was charged with one count of conspiracy under 21 U.S.C. § 846 (Count I) and one count of possessing a firearm in furtherance of the drug-trafficking crime alleged in Count Two in violation of 18 U.S.C. § 924(c) (Count III). The Government has filed a motion [111] to dismiss the conspiracy count, which the Court grants. The Government has indicated that during trial it intends to proceed on an aiding-and-abetting theory with respect to Rowe.

II. Legal Standard

A motion in limine is a motion "at the outset" or one made "preliminarily." BLACK'S LAW DICTIONARY 803 (8th ed. 2004). The power to rule on motions in limine inheres in the Court's role in managing trials. Luce v. United States, 469 U.S. 38, 41 n.4 (1984). Motions in limine may be used to eliminate evidence "that clearly ought not be presented to the jury because [it] clearly would be inadmissible for any purpose." Jonasson v. Lutheran Child & Family Svcs., 115 F.3d 436, 440 (7th Cir. 1997) (observing that, when used properly, the motions may sharpen the issues for trial). The party seeking to exclude evidence has the burden of demonstrating that the evidence would be inadmissible for any purpose. Robenhorst v. Dematic Corp., 2008 WL 1766525, at *2 (N.D. Ill. Apr. 14, 2008).

Because motions in limine are filed before the Court has seen or heard the evidence or observed the trial unfold, rulings in limine may be subject to alteration or reconsideration during the course of trial. United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989); see also Luce, 469 U.S. at 41-42 ("Indeed, even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling."). In addition, if the in limine procedural environment makes it too difficult to evaluate an evidentiary issue, it is appropriate to defer ruling until trial. Jonasson, 115 F.3d at 440 (delaying until trial may afford the judge a better opportunity to estimate the evidence's impact on the jury). Finally, although motions in limine typically address evidentiary matters, they may also relate to other matters, such as affirmative defenses and proper lines of inquiry at trial. See, e.g., United States v. McCloud, 590 F.3d 560, 566-68 (8th Cir. 2009) (affirming trial court's in limine ruling regarding a mistake-of-age defense); United States v. Price, 520 F.3d 753 (7th Cir. 2006) (recounting a case's procedural history).

III. Government's Consolidated Motions in Limine and Second Motion in Limine

A. Motion to Admit Audio Recordings

In its consolidate motions in limine, the Government set forth the foundation it intends to present in support of its request to admit into evidence five audio recordings involving Brown and CS-1 and CS-2, along with the Seventh Circuit precedent approving of the Government's proffered foundation. See United States v. Eberhart, 467 F.3d 659, 667 (7th Cir. 2006) (upholding the admission of recordings even though the sponsoring agent "did not listen to [defendant's] half of the conversations as they occurred, [because] his testimony sufficiently established the tapes authenticity by clear and convincing evidence."). The Government does not intend to call CS-1 or CS-2 as witnesses at trial, but instead intends to introduce the recordings through the testimony of a law enforcement officer who recorded the conversations while simultaneously listening to both sides of the conversations. Neither Brown nor Rowe objects to the recordings on foundation grounds, but instead raise other objections.

Brown raises a limited relevance objection, acknowledging that "the recordings may be admissible to prove the attempted possession charge" while contending that the recordings "may not be used to prove the existence of a conspiracy." Because the Government has dismissed the conspiracy count, Brown's objections to using the recordings to prove the existence of a conspiracy need not be addressed.

Rowe joins in Brown's objection to the relevancy of the recordings and also claims unfair prejudice. However, even if Rowe had been severed from Brown for trial, which the Court has declined to do [see 106], the recordings still would be admissible against Rowe, although not for the truth of any matters asserted in the recordings. Rather, the recordings are admissible to establish the nature and objective of Brown's criminal conduct, which the Government alleges Rowe aided and abetted.*fn1 See, e.g., United States v. Guyton, 36 F.3d 655, 658-59 (7th Cir. 1994) (upholding admission of out-of-court statement of defendant's supplier that defendant was "out of cocaine," reasoning that "[t]he government in this case had no interest in proving that [defendant] was out of cocaine. Rather, the statement was offered as evidence of the conspiracy and who was involved in it."); accord United States v. Tuchow, 768 F.2d 855, 868 (7th Cir. 1985) (upholding admission of prior negotiations relating to bribe payment that pre-dated defendant's participation in the conspiracy, reasoning that the "statements were not offered to prove the truth of the statements offered, but rather to set forth the illegality, nature and scope of the anticipated conspiratorial scheme"); see also United States v. Faulkner, 439 F.3d 1221, 1226-27 (10th Cir. 2006) (explaining "verbal acts" doctrine and noting that statements "directing the conduct of a fellow conspirator or agreeing to follow directions" are not hearsay); United States

v. Roach, 164 F.3d 403, 410 (8th Cir. 1998). Brown's statements negotiating the transaction with CS-1 and CS-2 are verbal acts that the Government offers not for the truth of the matters asserted, but to establish the nature and objective of Brown's criminal conduct.*fn2 These recordings do not mention Rowe or even allude to a third party's participation in the December 4, 2008 transaction. Although the recordings provide background and context for the subsequent actions of Brown and Rowe, the recordings, in and of themselves, do little (if anything) to inculpate Rowe directly. Thus, there is little danger of unfair prejudice, and as the Seventh Circuit has repeatedly stated, "limiting instructions are effective in reducing or eliminating unfair prejudice," United States v. Vargas, 552 F.3d 550, 557 (7th Cir. 2008). Thus, the Government's motion in limine to admit audio recordings is granted.

B.Brown's Post-Arrest Statements 1. 404(b)

The Government has filed a second unopposed motion in limine to admit limited evidence regarding Defendant Brown's prior dealings with CS-1 and CS-2 for the purposes of showing knowledge, intent, and the absence of mistake and to avoid jury confusion with respect to count two of the superceding indictment. In particular, the Government seeks to admit evidence that Brown met "Wodie" in approximately 2003 or 2004. Further, the Government would elicit Brown's admission that he had purchased kilogram quantities of cocaine from "Wodie" on prior occasions. The Government also wishes to elicit Brown's admission that "Wodie" had previously "fronted" narcotics to him. Finally, the ...


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