United States District Court, C.D. Illinois, Rock Island Division
SARA DARROW, District Judge.
The government alleges that Steven Piper was previously convicted of a felony and knowingly possessed a firearm that had traveled in interstate commerce, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). Indictment 1, ECF No. 1. Before the Court is Piper's First Motion in Limine, ECF No. 22, in which Piper moves to bar the government from introducing at trial any testimony or evidence about several burglaries Piper allegedly committed in the summer of 2013 along with Catherine Mierendorf in Mercer, Henderson and Warren Counties in Illinois. For the following reasons, Piper's motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND AND PROCEDURAL HISTORY
The Government alleges that Piper and Mierendorf, Piper's girlfriend, committed five burglaries of rural Illinois properties in the summer of 2013. Gov't's Resp. Mot. Limine 1, ECF No. 24. At one of these locations, the McVey residence, the pair allegedly found the handgun which gives rise to the present allegations. Id. at 2. According to the Government, it was Piper and Mierendrof's practice to commit these burglaries at night, using Piper's car for transportation, and to sell the stolen items, splitting the proceeds. Id. It was also supposedly their practice to commit these burglaries alone, with the exception of one occasion on which Catherine's brother, Don Mierendorf, assisted. Id.
The alleged burglary of the McVey house (which, like all the other burgled locations, was vacant) occurred on July 25, 2013. Gov't's Resp. Mot. Limine 3. At this point, Piper is supposed to have handled the gun and planned with Catherine to try to sell it, agreeing to keep the gun at the house that Catherine shared with her brother. Id . The next day, July 26, Howard McVey, the son of the McVey house's owner, was tending his cattle nearby and saw a silver-colored car behind the house. Id. Growing suspicious, McVey summoned Officer Matt Link, and the two went to the house, where they saw bags with items from inside the house laid out on the lawn, and fresh tire tracks leading away from the house. Id. A silver car then drove by the house, which other officers eventually stopped. Id. The car was driven by and registered to Piper, and Catherine Mierendorf was the only passenger. Id. at 3-4. Both denied involvement in the burglary of the McVey house. Id.
The next day, an anonymous caller phoned in a Crime Stoppers tip, saying that Piper and Mierendorf had been burgling abandoned houses in the area using Piper's car. Gov't's Resp. Mot. Limine 4. Someone who seemed to be the same person called back on two later dates, saying that stolen property from the burglaries was being kept at the house where Mierendorf and her brother lived. Local authorities used this information to get a search warrant, and searched Mierendorf's home on August 8. Id. The police found some items that appeared to be stolen; Catherine admitted that they were, and was arrested. Id. The police also searched Piper's house the same day, and found other goods that appeared to be stolen. Id. The next day, the police returned to search both houses again, this time finding more stolen items and, with information from Catherine and her brother's ex-wife, the stolen handgun, in the bottom of a clothes hamper at the Mierendorf house. Id.
While Catherine pleaded guilty to burglary charges in state court, Piper was charged federally in the instant action. Gov't's Resp. Mot. Limine 4-5. In a letter dated October 8, 2014, the government notified Piper, pursuant to Federal Rule of Evidence 404(b)(2), that it planned to offer evidence of his "involvement in the residential burglaries that he committed with Catherine Mierendorf in Mercer, Henderson, and Warren Counties in the summer of 2013 as evidence of opportunity, knowledge, motive, modus operandi, and possession of the charged handgun, as well as to provide necessary background information about the investigation." Def's Mot. Limine 1, Ex. A 2; ECF No. 22-1. Piper moved to bar admission of such evidence pursuant to Federal Rules of Evidence 404(b) and 403, and the government responded, ECF No. 24.
At a hearing on these motions held on November 20, 2014, Piper indicated that he did not seek the suppression of evidence or testimony about the alleged July 25 or 26 burglaries at the McVey house, both of which the government had argued should be admitted. Rather, Piper clarified that he objected only to the introduction of evidence or testimony about the other burglaries alleged to have occurred in the summer of 2013.
I. Legal Standard
Evidence that a criminal defendant committed other crimes, wrongs, or acts is not admissible to show that that the defendant has a propensity to act in a certain way and on a particular occasion did act in that way because of the propensity. Fed.R.Evid. 404(b)(1). However, evidence of prior acts may be admitted if it is offered for a range of other permitted purposes, such as to show a defendant's motive, plan, or opportunity on a particular occasion. Fed.R.Evid. 404(b)(2). Even if evidence of prior acts is found admissible as serving a permitted 404(b) purpose, it may still be excluded if it is substantially more prejudicial than probative. Fed.R.Evid. 404(b). Finally, no evidence is admissible unless it is relevant-that is, has a tendency to make a fact of consequence to determining the action more or less likely. Fed.R.Evid. 401, 402.
One of the difficulties with 404(b) evidence is that, even if offered for a legitimate purpose, such evidence almost always, by its nature, is capable of supporting negative inferences about a defendant's character, and suggesting that he acted in accordance with those bad traits of character. See U.S. v. Beasley, 809 F.2d 1273, 1279-80 (7th Cir. 1987) ("Almost any bad act evidence simultaneously condemns by besmirching character and by showing one or more of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident'" (original emphasis)). Moreover, because prior bad acts are often highly inflammatory, they tend to run the risk of being more prejudicial than probative, and hence inadmissible under Rule 403 as well.
Although maintaining that Rule 404(b) provides a "clear roadmap for analysis, " the Seventh Circuit recently felt it necessary to create a new, "straightforward rules-based approach" to determining the admissibility of prior bad acts. United States v. Gomez, 763 F.3d 845, 853 (7th Cir. 2014). Under the Gomez approach, a court:
(1) Determines whether evidence is relevant pursuant to Rule 401 and 402. The proponent of the evidence must be able to show that the evidence is relevant not just on any theory, but why it is relevant when taken for the particular purpose for which it is offered. See id. at 855 ("The proponent of other-act evidence should ...