United States District Court, W.D. Washington, Seattle
ORDER ON EVIDENTIARY ISSUES
L. ROBART United States District Judge.
the court are a number of filings from the parties: (1)
motions in limine brought by Plaintiff United States
of America (the “Government”) and a response from
Defendant James J. Hendrix (Gov't MIL (Dkt. # 130); Def.
Resp. to Gov't MIL (Dkt. # 139)); (2) Mr. Hendrix's
motion to exclude the testimony of Detective Richard
Huntington and the Government's response (Mot. to Exclude
Huntington (Dkt. # 138); (Resp. to Mot. to Exclude Huntington
(Dkt. # 140)); (3) the Government's motion to exclude
Professor Simon Cole (Mot. to Exclude Cole (Dkt. # 142)); and
(4) evidentiary disputes presented in the parties' trial
briefs (see Gov't Tr. Br. (Dkt. # 106) at 13-19;
12/6/19 Def. Tr. Br. (Dkt. # 128) at 7-9; 12/9/19 Def. Tr.
Br. (Dkt. # 131) at 4-6). The court has considered the
parties' submissions, the relevant portions of the
record, and the applicable law. Being fully advised, the
court addresses the issues raised by the parties in turn.
The Government's Motions in Limine
Motion in Limine to Exclude Evidence or Argument
Regarding the Prior Convictions of Anthony Tolman
Government moves to exclude “evidence regarding the
criminal history of Anthony Tolman, ” an individual
“who fled from the scene of the auto repair shop after
being chased by responding Officer Woodward” on June
21, 2018, and dropped a loaded pistol during his flight.
(Gov't MIL at 2.) According to the Government, at the
time of this incident, Mr. Tolman “had nine felony
convictions, including one for Robbery-1, three convictions
for Possession of a Stolen Vehicle, three convictions for
Attempt to Elude, one conviction for Possession of Stolen
Property, and two convictions for Violation of Protective
Order.” (Id.) The Government moves to exclude
these convictions on three grounds: (1) Mr. Tolman's
prior convictions are not relevant to the charges filed
against Mr. Hendrix; (2) Mr. Tolman's prior convictions
constitute inadmissible propensity evidence under Federal
Rule of Evidence 404(b)(1); and (3) admission of Mr.
Tolman's prior convictions would be unduly prejudicial
under Rule 403. (See Id. at 2-4.)
response, Mr. Hendrix claims that his defense theory is
“that the U-Haul and its contents, as well as the
firearm left on a nearby truck bumper, belonged to [Mr.]
Tolman” and a woman who also fled the scene, Alexandra
Keeny. (Def. Resp. to Gov't MIL at 2.) The thrust of Mr.
Hendrix's opposition to the Government's motion is
that “[Mr.] Tolman's prior convictions for robbery,
possession of stolen property and firearms are relevant to
rebut the government's case against [Mr.] Hendrix,
particularly regarding dominion and control over the U-Haul
and the items found therein.” (Id. at 3.)
Thus, Mr. Hendrix argues the evidence is both relevant and
admissible under Rule 404(b)(2) for purposes other than
propensity, “such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” (Id. at 2-5
comes to evidence of “third-party culpability, ”
the general rule of admissibility is no different than it is
for any other type of evidence-“all evidence of
third-party culpability that is relevant is admissible,
unless barred by another evidentiary rule.” See
United States v. Espinoza, 880 F.3d 506, 511 (9th Cir.
2018) (citing United States v. Armstrong, 621 F.2d
951, 953 (9th Cir. 1980)). Rule 401 provides that
“[e]vidence is relevant if: (a) it has any tendency to
make a fact more or less probable than it would be without
further evidence; and (b) the fact is of consequence in
determining the action.” Fed.R.Evid. 401.
Rule 404(b)(1), “[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). Such evidence may be admissible, however, to prove
“motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident.” Fed.R.Evid. 404(b)(2). When evidence of
other bad acts is offered against a defendant, “[t]he
test for admitting such evidence is whether: ‘1) it
tends to prove a material fact; 2) the prior act is not too
remote in time; 3) the evidence is sufficient to support a
finding that the defendant committed the act; and 4) where
knowledge and intent are at issue, the act is similar to that
charged.'” United States v. Hanson, 936
F.3d 876, 882 (9th Cir. 2019) (quoting United States v.
Tsinnijinnie, 91 F.3d 1285, 1288-89 (9th Cir. 1996)).
The Ninth Circuit has cautioned, however, that while Rule
404(b) “does apply to witnesses and third parties,
courts should indulge the accused when the defendant seeks to
offer prior crimes evidence of a third person for an issue
pertinent to the defense other than propensity” because
“404(b) is often thought to protect a defendant from
being tried for who he is, not for what he did, ” and
those concerns are not at issue when “the evidence is
not introduced against a defendant, but rather is introduced
by a defendant.” Espinoza, 880 F.3d
at 516 (citations omitted).
under Rule 403, the court has discretion to exclude relevant
evidence if its probative value is “substantially
outweighed by a danger of . . . unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.”
Fed.R.Evid. at 403.
Merits of the Motion in Limine
court DENIES the Government's motion to exclude evidence
of Mr. Tolman's prior convictions without prejudice to
re-raising the motion at trial. The right of criminal
defendants to present third-party culpability testimony is
owed a high degree of deference. See, e.g.,
United States v. Stever, 603 F.3d 747, 754 (9th Cir.
2010) (“[T]he district court is not free to dismiss
logically relevant evidence as speculative.”);
United States v. Vallejo, 237 F.3d at 1023
(“Even if the defense theory is purely speculative, as
the district court characterized it, the evidence would be
relevant.”). Thus, the court concludes that evidence
that supports Mr. Hendrix's theory that Mr. Tolman and
Ms. Keeny are responsible for the June 21, 2018 crimes that
Mr. Hendrix is charged with is relevant and admissible.
However, neither party submits evidence that would allow the
court to determine whether Mr. Tolman's prior convictions
have “any tendency” to make it “more or
less probable” that Mr. Tolman was the owner and
possessor of the items in the U-Haul and firearms found at
the scene. See Fed. R. Evid. 401(a). Additionally,
without more details, the court cannot determine whether the
convictions are inadmissible propensity evidence under Rule
404(b)(1) or admissible evidence of “another
purpose” under Rule 404(b)(2).
court will not issue the blanket exclusion that the
Government seeks to all of Mr. Tolman's convictions
merely because “[n]one of [Mr.] Tolman's prior
convictions are for committing firearms or drug
crimes.” (Gov't MIL at 3-4.) If, for example,
Mr. Hendrix can show that the items in the back of the U-Haul
have a nexus to Mr. Tolman's prior convictions, that
evidence could be admissible over Rule 403 and 404 objections
for the same reasons that the court ruled that the wig found
in the back of the U-Haul is admissible against Mr. Hendrix.
(See 12/4/19 Minute Entry (denying Defendant's
motion to exclude under Federal Rule of Evidence 403 and
404).) On the other hand, Mr. Hendrix's vague argument
that Mr. Tolman's prior convictions for “robbery
[and] possession of stolen property and firearms” are
admissible because they “demonstrate a possible
connection to those who obtain or fence stolen items and
firearms” (see Def. Resp. to Gov't MIL at
3-4) is equally inadequate. If Mr. Hendrix wishes to offer
evidence of ...