United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATER DISTRICT JUDGE.
the Court is the government's notice of intent to
introduce “other act” evidence pursuant to
Federal Rule of Evidence 404(b). For the following reasons,
the notice is GRANTED.
Pizarro is charged in Count One of a Two-Count Superseding
Indictment with conspiracy to distribute and possession with
intent to distribute 500 grams or more of a substance
containing a detectable amount of methamphetamine and a
quantity of heroin, in violation of 21 U.S.C. § 846. The
government has also filed a Two-Count Bill of Information to
establish prior convictions in accordance with 21 U.S.C.
§ 851(a). Count One of the Bill establishes a prior
conviction in the United States District Court for the
District of Hawaii; Pizarro was convicted of two counts of
conspiracy to distribute and possession with intent to
distribute 50 grams or more of methamphetamine in violation
of 21 U.S.C. § 846. He was sentenced to a term of
imprisonment of 90 months as to each count, to be served
consecutive; this conviction is final. Count Two of the Bill
establishes a conviction for possession with the intent to
distribute marijuana in the Criminal District Court for
Orleans Parish; Pizarro was sentenced to a term of
imprisonment of five years, suspended, with five years of
probation. This conviction is also final.
government has filed a notice of intent to introduce evidence
of prior criminal conduct pursuant to Rule 404(b) of the
Federal Rules of Evidence. The defendant opposes this notice
of intent to use evidence.
government notifies the defendant of its intent to introduce
in its case-in-chief evidence of other crimes, wrongs, and
acts (in particular, evidence of the defendant's two
prior drug convictions); the government seeks an order
admitting such evidence pursuant to Federal Rules of Evidence
evidence of other acts is extrinsic to the crime charged,
admissibility is governed by Rule 404(b) of the Federal Rules
of Evidence, which provides:
(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act
is not admissible to prove a person's character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence
may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. . . .
Fed. R. Evid. 404(b). Rule 404(b)'s purpose is to
“guard against the inherent danger that the admission
of ‘other acts' evidence might lead a jury to
convict a defendant not of the charged offense, but instead
of an extrinsic offense.” United States v.
Crawley, 533 F.3d 349, 353 (5th Cir. 2008) (quoting
United States v. Sumlin, 489 F.3d 683, 689 (5th Cir.
2007)). “Where the extrinsic activity did not result in
a conviction, this danger is particularly great.”
Fifth Circuit has fashioned a two-part test to determine
whether extrinsic evidence is admissible under Rule 404(b).
United States v. Sanders, 343 F.3d 511, 517-18 (5th
Cir. 2003) (citing United States v. Beechum, 582
F.2d 898, 909-18 (5th Cir. 1978) (en banc)). First,
the Court determines whether the evidence is “relevant
to an issue other than the defendant's character.”
Crawley, 533 F.3d at 354 (citation omitted). Second,
if the evidence is relevant for at least one permissible
purpose, then the Court determines “whether, consistent