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United States v. Hendrix

United States District Court, W.D. Washington, Seattle

December 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES J. HENDRIX, Defendant.

          ORDER ON EVIDENTIARY ISSUES

          JAMES L. ROBART United States District Judge.

         I. INTRODUCTION

         Before 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.

         II. ANALYSIS

         A. The Government's Motions in Limine

         1. Motion in Limine to Exclude Evidence or Argument Regarding the Prior Convictions of Anthony Tolman

         The 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.)

         In 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 (citations omitted).)

         a. Legal Standard

         When it 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.

         Under 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).

         Finally, 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.

         b. Merits of the Motion in Limine

         The 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).

         The 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.”[1] (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 ...


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