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United States v. Green

United States District Court, W.D. Louisiana, Shreveport Division

February 15, 2018

UNITED STATES OF AMERICA
v.
DALE WAYNE GREEN

          HORNSBY MAGISTRATE JUDGE

          MEMORANDUM ORDER

          ELIZABETH ERNY FOOTE JUDGE

         In the 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.

         The 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.[1] 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.

         1. Evidence of firearm possession during drug sales in 2016

         The 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).

         Rule 404(b) 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) 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.

         Here, 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?

         Presuming 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).[2] 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.

         The 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 ...


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