United States District Court, W.D. Washington, Seattle
HONORABLE RICHARD A. JONES UNITED STATES DISTRICT JUDGE.
matter comes before the Court on several related motions.
Defendant Johnson moves the Court to exclude evidence of his
2015 robbery conviction, while the government moves in
limine to admit the same. Dkt. ##68, 82. Johnson also
moves to bifurcate or sever Count 5 of the Indictment from
the other remaining counts. Dkt. #70. For the reasons below,
the Court GRANTS in part Defendant's
motion to exclude the prior robbery conviction and
DENIES the government's motion. The
Court also GRANTS Defendant's motion to
bifurcate Count 5 of the Indictment.
Johnson was charged in connection with the November 2017
robbery of Rainier Cannabis, a marijuana dispensary in
Mountlake Terrace, WA. The Indictment specifically charges
Johnson with robbery (Count 1); possession of marijuana with
intent to distribute (Count 2); possession of a firearm in
furtherance of violence and a drug trafficking crime (Count
3) (collectively, the “robbery-related counts”);
and felon in possession of a firearm (Count 5). Johnson seeks
to exclude evidence of his 2015 robbery conviction, also of a
marijuana dispensary, which the government intends to
introduce pursuant to FRE 404(b). Johnson also moves to
bifurcate or sever Count 5 of the Indictment from the
of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in
conformity therewith. Fed.R.Evid. 404(a). It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity
or absence of mistake or accident. Fed.R.Evid. 404(b).
“Rule 404(b) ‘is a rule of inclusion.'”
United States v. Jackson, 84 F.3d 1154, 1159 (9th
Cir. 1996). “Unless the evidence of other crimes tends
only to prove propensity, it is admissible.”
of prior criminal conduct may be admitted if (1) the evidence
tends to prove a material point; (2) the other act is not too
remote in time; (3) the evidence is sufficient to support a
finding that defendant committed the other act; and (4) (in
certain cases) the act is similar to the offense charged.
United States v. Luna, 21 F.3d 874, 878-79 (9th Cir.
1994); United States v. Garcia-Orozco, 997 F.2d
1302, 1304 (9th Cir.1993). If the evidence in question
satisfies these requirements, the trial court must then apply
Federal Rule of Evidence 403. United States v.
Bradley, 5 F.3d 1317, 1320 (9th Cir. 1993).
8(b) and 14 of the Federal Rules of Criminal Procedure
“‘are designed to promote economy and efficiency
and to avoid a multiplicity of trials, where these objectives
can be achieved without substantial prejudice to the right of
the defendants to a fair trial.'” Bruton v.
United States, 391 U.S. 123, 131 n .6 (1968). However,
if the joinder of offenses or defendants in an indictment, an
information, or a consolidation for trial appears to
prejudice a defendant or the government, the court may order
separate trials of counts, sever the defendants' trials,
or provide any other relief that justice requires. Fed. R.
Crim. P. 14(a).
Ninth Circuit has noted, trying a felon in possession count
together with other felony charges creates a very dangerous
situation because the jury might improperly consider the
evidence of a prior conviction when deliberating about the
other felony charges, i.e. convict the defendant
because he is a “bad guy” or convict because
“he committed a crime before and probably did this one
too.” United States v. Nguyen, 88 F.3d 812,
816 (9th Cir. 1996).
government takes the position that no specific undue
prejudice would result by joining the felon-in-possession
count together with the robbery-related counts, and
ultimately, Johnson's prior robbery conviction should be
properly admitted under FRE 404(b) to prove identity, intent,
motive, plan, preparation and knowledge. Dkt. # 86 at 7. The
government further contends that any prejudice of admitting
evidence of the 2015 robbery conviction would be minimal.
Id. According to the government, the evidence
against Johnson is “overwhelming” to the point
where evidence of the 2015 conviction would likely have
“little to no effect” on the robbery-related
counts. Id. Defendant contends, however, ...