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United States v. Son

United States District Court, M.D. Louisiana

February 3, 2017

UNITED STATES OF AMERICA
v.
KHUM SON, also known as Son Khum

          RULING AND ORDER ON MOTIONS IN LIMINE

          JOHN W. deGRAVELLES JUDGE

         This matter comes before the Court on (1) the Motion in Limine to Exclude Other Crimes, Statements, Wrongs, or Bad Acts (Doc. 25) filed by Defendant Khum Son, also known as Son Khum (“Defendant”), and (2) the Motion in Limine to Preclude Defendant from Referring to Post-Indictment Sex Offender Registration During Trial (Doc. 30) filed by the United States of America (the “Government”). Both motions are opposed. (See Docs. 19, 32.)[1] Oral argument on both motions was heard on January 5, 2017. The Court has carefully considered the law, the facts in the record, and the arguments of the parties and finds that both motions should be denied.

         I. Relevant Background

         The Indictment alleges that, from in or about January of 2016 through on or about April 23, 2016, the Defendant, who was convicted of a sexual offense in California and who, after said conviction, traveled in interstate commerce, knowingly failed to register and update a registration where in resided in Louisiana, as required by the Sex Offender Registration and Notification Act. (Doc. 1.) The Indictment claims this is a violation of 18 U.S.C. § 2250(a).

         According to the Fifth Circuit pattern instructions, this crime requires the government to prove the following beyond a reasonable doubt:

First: That the defendant was required to register under the Sex Offender Registration and Notification Act, as charged;
Second: That the defendant traveled in interstate commerce; and
Third: That the defendant knowingly failed to register and keep a current registration as required by the Sex Offender Registration and Notification Act.

         Fifth Circuit Pattern Jury Instructions (Criminal) § 2.83 (2015). The pattern jury charges further provide:

These three elements must be proven to have occurred in sequence. . . .
The government must prove beyond a reasonable doubt that the defendant knew he had to register and that he intentionally did not do so, but the government does not have to prove that the defendant knew he was violating federal law.

Id.

         Lastly, the Defendant has represented that he intends to pursue an affirmative defense listed in the statute. Specifically, 18 U.S.C. § 2250(c) provides:

In a prosecution for a violation under subsection (a) or (b), it is an affirmative defense that-
(1) uncontrollable circumstances prevented the individual from complying;
(2) the individual did not contribute to the creation of such circumstances in reckless disregard of the requirement to comply; and
(3) the individual complied as soon as such circumstances ceased to exist.

         II. The Defendant's Motion in Limine to Exclude Other Crimes, Statements, Wrongs, or Bad Acts (Doc. 25)

         A. The Parties' Arguments

         The Government seeks to introduce certain evidence under Federal Rule of Evidence 404(b) to prove knowledge, intent, and absence of mistake. The Government's proposed evidence falls into three main categories. First, the Government wants to use documents from a California criminal proceeding in which the Defendant pled guilty to and was sentenced for failure to register as a sex offender under California state law. (See U.S. Exs. 1-5.)

         Second, the Government asks to introduce documents from California showing that the Defendant updated yearly his registration requirements. (See U.S. Ex. 6.) These include documents that list registration requirements, one of which is: “If I move outside of California, I am required by federal law to register in the new state within three (3) working days.” The Defendant initialed by this requirement on each of the documents. These updates are also signed by the Defendant beneath a paragraph saying that he read and understood the requirements. One update also includes a signature by the translator of the document.

         And third, U.S. Ex. 7 is a plea hearing document from Defendant's 2001 conviction in California. This document reflects that the Defendant pled guilty to violating Cal. Penal Code § 288 (Lewd Act Upon a Child and False Imprisonment).

         The Defendant argues this evidence has minimal probative value and that, even if there were probative value, it would be substantially outweighed by the danger of unfair prejudice (i.e., convicting the Defendant for the previously committed crime or for being a sex offender rather than the crime at issue).

         B. Law Governing Rule 404(b) Evidence

         1. The Standard Regarding Rule 404(b) Evidence Generally

         Federal Rule of Evidence 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

         In United States v. Beechum, the Fifth Circuit “outlined a two-step test to determine the admissibility of evidence of a defendant's prior wrongful acts.” United States v. Cheramie, 51 F.3d 538, 541 (5th Cir. 1995) (citing United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc)). “Under Beechum, evidence of extrinsic offenses is admissible if it is (1) relevant to an issue other than the defendant's character, and (2) the incremental probative value of the evidence is not substantially outweighed by the danger of unfair prejudice to the ...


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