United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
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. 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.
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).
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.
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).
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.
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.
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).
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.
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