United States District Court, W.D. Washington, Seattle
following Minute Order is made by direction of the Court, the
Honorable Thomas S. Zilly, United States District Judge:
Defendant’s motion, docket no. 275, for review and
disclosure of law enforcement officer files and records is
DENIED. Defendant’s motion to review and disclose the
files of all law enforcement officers “involved in the
investigation, ” not simply witnesses who will testify
at trial, is overbroad. See United States v. Brown,
728 Fed. App’x 614, 618 (9th Cir. 2018). The government
is otherwise aware of its obligations under United States
v. Henthorn, 931 F.2d 29 (9th Cir. 1991), and must
comply. No further order compelling compliance is necessary
Defendant’s motion in limine, docket no. 279, is
GRANTED in part and DEFERRED in part as follows:
a. the motion to exclude witnesses from the courtroom until
they have testified is GRANTED; provided, however, that the
Government may have its case agent attend the trial;
b. the motion to preclude questions concerning “the
course of investigation” is DEFERRED to trial; and
c. the motion is otherwise unopposed and is GRANTED.
Defendant’s motion to sever Count Four (felon in
possession of a firearm), docket no. 267, is DENIED.
Defendant cannot show prejudice arising from the joinder of
Counts Three, Four, and Five. See United States v.
Barragan, 871 F.3d 689, 701 (9th Cir. 2017), cert.
denied, 138 S.Ct. 1572 (2018). Joinder is not
prejudicial where the same evidence would still be admissible
even after severance. United States v. Prigge, 830
F.3d 1094, 1098 (9th Cir. 2016). Defendant’s 2012
firearm conviction is admissible under Rule 404(b) to prove
Count Four (felon in possession of a firearm) and Count Five
(carrying a firearm during and in relation to a drug
trafficking offense). A court may admit extrinsic evidence
under Rule 404(b) if the evidence “(1) tends to prove a
material point; (2) is not too remote in time; (3) is based
upon sufficient evidence; and, (4) in some cases, is similar
to the offense charged.” United States v.
Lozano, 623 F.3d 1055, 1059 (9th Cir. 2010). When the
evidence is offered to prove knowledge, the prior act need
not be similar as long as the prior act was one which would
tend to make the existence of knowledge more probable than it
would be without the evidence. Id. The 2012
conviction satisfies the requirements of Rule 404(b). It is
evidence of defendant’s intent, knowledge, and absence
of mistake with regard to the firearm that is the subject of
Counts Four and Five. See United States v. Castillo,
181 F.3d 1129, 1134 (9th Cir. 1999). Moreover, the
felon-in-possession charge is “inextricably
intertwined” with the other alleged offenses, see
United States v. Dorsey, 677 F.3d 944, 951 (9th Cir.
2012), because it tends to show that the firearm at issue
“facilitated or had a role” in the drug offense
charged in Count Three, such as emboldening defendant by
giving him an opportunity to protect himself or intimidate
others, which the Government must prove to convict defendant
on Count Five. See United States v. Guy, 903 F.2d
1240, 1243 (9th Cir. 1990). The 2012 conviction is not remote
in time, see United States v. Estrada, 453 F.3d
1208, 1213 (9th Cir. 2006), and the probative value of the
evidence of the 2012 conviction is not substantially
outweighed by the danger of unfair prejudice. With respect to
Counts Three and Five, the 2012 firearm conviction is
admissible under Rule 404(b) and will not be excluded under
Rule 403. Thus, severance of Count Four is unwarranted.
Defendant’s motion to exclude evidence of his 2012
firearm conviction, docket no. 272, is DENIED for the reasons
stated in Paragraph 3 of this Minute Order.
Defendant’s Old Chief motion to exclude the
name and nature of his 2012 firearm conviction, docket no.
277, is also DENIED.
Defendant’s motion to dismiss for outrageous Government
misconduct, docket no. 281, is DENIED. Dismissal is
appropriate “when the government’s conduct is so
grossly shocking and so outrageous as to violate the
universal sense of justice.” United States v.
Ramirez, 710 F.2d 535, 539 (9th Cir. 1983). Dismissal
might also be appropriate if the conduct is
“flagrant” and causes “substantial
prejudice” to a defendant. United States v.
Fernandez, 388 F.3d 1199, 1239 (9th Cir. 2004).
Defendant’s allegations of misconduct do not satisfy
these high standards. Defendant has not established any Brady
violation. The Government timely disclosed the facts relating
to co-defendant Michael Turner’s statements.
Defendant’s claim of “false testimony”
before the Grand Jury also lacks merit. The Government has
produced evidence supporting the charge that defendant
possessed crack cocaine with the intent to distribute, and
that he was a “re-distributor” as indicated in
testimony to the Grand Jury. Finally, defendant has failed to
provide any factual basis for the claim that government
agents have tampered with the evidence. Nothing presented in
defendant’s motion requires the Court to hold a
pre-trial evidentiary hearing on the issues raised.
Defendant’s motion to exclude the expert testimony of
Seattle Police Detective Brandon James, docket no. 278, is
DENIED in part and DEFERRED in part. Detective James’s
experience and specialized knowledge about illegal use and
trafficking of narcotics and the relationship between the
sale of drugs and the carrying of firearms qualifies him as
an expert, and his testimony will be permitted. The exact
scope of Detective James’s testimony is, however,
DEFERRED to trial. Detective James’s testimony will be
limited to the disclosures provided by the Government to
defense counsel, see Exs. A & C to Def.’s
Mot. (docket nos. ...