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United States v. Glenn

United States District Court, M.D. Louisiana

November 13, 2017

UNITED STATES OF AMERICA
v.
WALTER GLENN, ET AL.

          RULING AND ORDER

          BRIAN A. JACKSON, CHIEF JUDGE

         Before the Court are the Motions in Limine (Doc. 101, 109) to Exclude 404(b) evidence filed by Thomas James and Walter Glenn. Also before the Court is the Motion in Limine (Doc. 121) to admit evidence of prior convictions under Fed.R.Evid. 609 and 405(a) filed by the United States.[1] The parties filed oppositions. (Doc. 112, 113, 131, 174). For the following reasons, the Motion in Limine (Doc. 101) filed by Thomas James is DENIED AS MOOT, the Motion in Limine (Doc. 109) filed by Walter Glenn is GRANTED, and the Motion in Limine (Doc. 121) filed by the United States is DENIED WITHOUT PREJUDICE.

         I. BACKGROUND

         In September of 2014, police stopped Walter Glenn, Larry Walker and Thomas James in a rental car in Baton Rouge, Louisiana. See United States v. Glenn, 204 F.Supp.3d 893 (M.D. La. 2016). The Government alleges that police found counterfeit check and identification making materials in the car, including blank checks, printers, blank plastic identification cards, holographic overlays, an iron, scissors, tape, cash, and a thumb drive and computer containing fraudulent identification cards for every state and the personal identifiable information for hundreds of people. (Doc. 174 at p. 1). The Government indicted Glenn and James, for: (1) conspiracy to make and pass counterfeit checks, produce fraudulent identification documents, and use unauthorized access devices; (2) access device fraud; (3) and aggravated identity theft. (Doc. 13).

         The Government also alleges that in 2010, police executed a search warrant at Glenn's residence in Connecticut and recovered a laptop. (Doc. 174 at p. 2). When the police attempted to seize the computer, Glenn's girlfriend allegedly threw the computer into water to prevent the police from being able to see what was on the computer. Id. The two discussed this in a recorded jail call after the defendant's arrest. Id. Police recovered images of checks, bank logos, company logos, and signature from the computer. Id. The Government intends to introduce evidence of these images, testimony related to these images at trial, and the jailhouse call at trial. Id.

         II. DISCUSSION

         The Government argues that the 2010 evidence is intrinsic to the charged conspiracy. (Doc. 174 at p. 3). "Intrinsic evidence is generally admissible, and its admission is not subject to rule 404(b)." United States v. Freeman, 434 F.3d 369, 374 (5th Cir. 2005). "Evidence of an act is intrinsic when it and evidence of the crime charged are inextricably intertwined, or both acts are part of a single criminal episode, or it was a necessary preliminary to the crime charged." United States v, Sumlin, 489 F.3d 683, 689 (5th Cir. 2007).

         Here, the evidence the government wishes to introduces is not intrinsic to the charged conspiracy. Glenn is charged with, among other things, a conspiracy "[b]eginning at least on or about January 23, 2014[.]" (Doc. 13 at ¶ 1). The evidence relating to the 2010 episode, however, is not inextricably linked to a 2014 conspiracy because it occurred four years before the alleged conspiracy even began. Indeed, intrinsic evidence is "admissible to complete the story of the crime by proving the immediate context of events in time and place." United States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996) (emphasis added). The immediate context of the 2014 charged conspiracy does not include events that allegedly occurred in 2010. Therefore, the Court finds that the evidence is not intrinsic to the charged offense.

         The Government also argues that the 2010 evidence should be admitted under Federal Rule of Evidence 404(b). (Doc. 174 at p. 5). Rule 404(b) provides that "[e]vidence 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." Fed.R.Evid. 404(b)(1). However, "[t]his 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)(1).

         The Fifth Circuit uses a two-step process to determine the admissibility of 404(b) evidences:

First, the extrinsic offense evidence must be relevant to an issue other than [the] defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must also meet the other requirements of Fed.R.Evid. 403.

United States v. Bentley-Smith, 2 F.3d 1368, 1377 (5th Cir. 1993).

         As a threshold matter, courts must also find that the Government has offered proof demonstrating that the defendant committed the offense. United States v. Floyd, 343 F.3d 363, 368 (5th Cir. 2003). This requires courts to find that "the jury can reasonably conclude that the act occurred and that the defendant was the actor." Id. (quoting (Huddleston v. United States, 485 U.S. 681, 689 (1988)). Glenn argues that there is insufficient evidence to connect the computer to him because he was not prosecuted for any crimes relating to the 2010 computer, while his girlfriend who also had access to the computer, was prosecuted and convicted of her role in a bad check scheme. (Doc. 175-2). The Court need not resolve this factual dispute because even assuming the Government's allegations are true, for the reasons offered infra, the probative value of the evidence relating to the 2010 laptop is not substantially outweighed by its undue prejudice.

         The Court also finds that the evidence is relevant to an issue other than Glenn's character. "The mere entry of a not guilty plea in a conspiracy case raises the issue of intent sufficiently to justify the admissibility of extrinsic offense ...


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