United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
ELIZABETH ERNY FOOTE JUDGE
above-captioned case, the Defendant, Dale Wayne Green
("Green"), has been charged with one count of
possession of a firearm and ammunition by a convicted felon.
Record Document 1. This case is set for jury trial beginning
on February 26, 2018. At the pretrial conference, the
Government notified the defense and the Court of its intent
to introduce evidence pursuant to Federal Rule of Evidence
404(b), in the event the Court does not find this evidence to
be intrinsic to the charged offense. The Government
subsequently filed a formal notice into the record. Record
Document 36. Green opposed the notice [Record Document 40],
and the Government filed a response thereto [Record Document
41]. For the following reasons, the Government's evidence
as to (1) the witness who allegedly saw Green in possession
of a gun during drug sales and (2) the drugs, paraphernalia,
and currency found at the apartment are CONDITIONALLY
ADMITTED subject to the alleviation of the
Court's relevance concerns, as discussed below. However,
Task Force Officer Hank Haynes will not be permitted to
testify as a drug trafficking expert.
Government's notice indicated its intent to present
evidence: (1) of a witness who purchased drugs from Green in
2016 and who saw Green in possession of a firearm; and (2)
that on August 11, 2016, evidence of drug trafficking was
discovered in the same apartment in which the firearms at
issue were found. Furthermore, as the defense correctly
notes, "in an effort to tie all of the drug evidence
together/' [Record Document 40], the Government has
provided notice of its intent to call Hank Haynes, a DEA Task
Force Officer, as an expert witness who will testify that the
evidence against Green is consistent with drug trafficking.
See Record Document 35.
Evidence of firearm possession during drug sales in
Government intends to introduce witness testimony that
"on numerous occasions in 2016, " a witness saw
Green in possession of a firearm. In a statement to ATF
agents, the witness described a "black pistol"
which was either in the center console of the vehicle Green
was in or was between the driver's seat and the center
console. On one occasion, Green allegedly saw a handgun that
the witness brought to the drug sale and expressed an
interest in purchasing it. The Government argues this
extrinsic evidence is admissible under United States v.
Beechum, 582 F.2d 898 (5th Cir. 1978).
(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) limits the evidentiary
admission of extrinsic acts. The rule "is designed 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. Sumiin,
489 F.3d 683, 689 (5th Cir. 2007). Beechum imposes a
two-step analysis to determine the admissibility of extrinsic
act evidence: (1) the court must first determine whether the
extrinsic act is relevant to an issue other than the
defendant's character; and (2) the court must ensure the
probative value of the evidence is not outweighed by its
prejudice. Beechum, 582 F.2d at 911.
the Government submits that the evidence is relevant to prove
background, absence of mistake, knowledge, intent, plan,
motive, and modus operandi. Under Beechum's
first step, to determine relevancy, the Court must assess
whether the Government has offered sufficient proof that the
Defendant committed the extrinsic act. Sumiin, 489
F.3d at 691. In order to make this determination, the Court
requires more foundation to be laid by the Government. The
time frame in which the witness observed Green with a gun
needs to be narrowed. Simply saying that the witness saw the
gun on numerous occasions within 2016 will likely not be
sufficient. Also, the Court requires more information about
where the gun was located when the witness observed it. The
statement provided to the Court is that the gun "was in
the center console of the vehicle Green was in or in-between
the driver's seat and the center console." The
witness identified Green's vehicle as a white Dodge
Challenger with orange racing stripes, and also indicated
that Green had been seen driving a tan Tahoe or Suburban, as
well as a small silver sedan. In which vehicle or vehicles
was the gun observed? Was it in one of the aforementioned
vehicles which Green had been seen driving? Or, rather, was
it in another vehicle unconnected to Green? During these drug
sales, was Green the driver of the vehicle; was he alone in
the vehicle; or were others in the vehicle with him?
these details are satisfactorily explained and there is an
established nexus between Green and the gun(s), the Court
finds the evidence admissible under Rule
404(b). Evidence of prior possession of a gun is
plainly relevant, and this Court would be inclined to admit
such evidence at trial. However, the issue here, and the
focus of Green's opposition, is that the witness's
testimony will indicate that the circumstances which led the
witness to observe the gun happened to be during several drug
sales. The defense contends that any testimony that Green
"is a street-level dealer" is not relevant to
anything other than his character, and thus, such testimony
should be excluded. While Green admits that the
Government's theory that drug dealers possess firearms
for personal protection might be relevant in a drug case, he
submits it is not relevant in a firearms case.
Fifth Circuit "has recognized that possession of
firearms is highly probative in proving criminal intent,
since firearms have been recognized as'tools of the
trade' of those engaged in illegal drug activities."
United States v. Townsend, 1999 WL 427597, *9 (5th
Cir. 1999) (quoting United States v. Martinez, 808
F.2d 1050, 1057 (5th Cir. 1987)). More specifically, the
Fifth Circuit has cited with approval the First Circuit's
decision in United States v. Weems, 322 F.3d 18 (1st
Cir. 2003), wherein the First Circuit held that evidence of
drug dealing at the house where the defendant was arrested
was admissible in ...