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United States v. Pizarro

United States District Court, E.D. Louisiana

August 7, 2017

UNITED STATES OF AMERICA
v.
DAN PIZARRO

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATER DISTRICT JUDGE.

         Before 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.

         Background

         Dan 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.

         The 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.

         I.

         The 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 404(b).

         When 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.” Id.

         The 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 ...


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