United States District Court, W.D. Washington, Seattle
ORDER REGARDING ADMISSIBILITY OF PRIOR CONVICTIONS OF
L. ROBART, UNITED STATES DISTRICT JUDGE
the court is Defendant James J. Hendrix's motion to admit
seven prior convictions of third party Anthony Tolman. (Mot.
(Dkt. # 165).) Plaintiff United States of America (“the
Government”) filed a response. (Resp. (Dkt. # 170).
Additionally, the court heard oral argument from the parties
on December 16, 2019. (See 12/16/19 Dkt. Entry (Dkt.
# 174).) The court has considered the parties'
submissions, the oral argument of the parties, the relevant
portions of the record, and the applicable law. Being fully
advised, the court rules on the admissibility of Mr.
Tolman's prior convictions as follows.
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)). Federal Rule of Evidence 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.
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.
2004 Conviction for Robbery in the First Degree
Hendrix's request to admit evidence of Mr. Tolman's
2004 conviction for robbery in the first degree (see
Mot., Ex. 1 (Dkt. # 165-1)) is DENIED. The court finds that
evidence showing that Mr. Tolman committed robbery using a
firearm is, at most, marginally relevant for the
non-propensity Rule 404(b)(2) purposes of the
“identity” of the individual who possessed the
firearms and whether Mr. Tolman may have had the
“knowledge” necessary to possess the firearms
found at the scene of the June 21, 2018, incident. However,
the court may consider both the lapse in time and the
similarity of the prior bad act to the offense at issue in
deciding whether to admit prior bad acts under Rule
404(b)(2). See Hanson, 936 F.3d at 882. Here, the
14-year lapse in time between Mr. Tolman's conviction and
the June 21, 2018, incident weighs in favor of excluding this
conviction. Similarly, the stark differences between the
circumstances surrounding the robbery conviction
(see Mot., Ex. 1) and the firearms charges filed
here-possession of a firearm in furtherance of a drug
trafficking offense-weighs in favor of exclusion.
Accordingly, the court will not admit this evidence under
as the Government confirmed at the December 16, 2019,
hearing, the Government does not dispute that Mr. Tolman fled
the scene of the June 21, 2018, incident with a firearm.
(See Gov't Tr. Br. (Dkt. # 106) at 4.) Thus,
there is other evidence that is less prejudicial than Mr.
Tolman's prior criminal behavior that Mr. Hendrix may use
to show that Mr. Tolman has knowledge of firearms and may
have been the individual who possessed the firearms at the
scene. Additionally, the court agrees with the Government
that it would be unfairly prejudicial to allow Mr. Hendrix to
admit evidence of Mr. Tolman's prior firearm convictions
when the Government has effectively agreed not to introduce
evidence of Mr. Hendrix's prior firearm convictions by
bifurcating this trial. (See Resp. at 2-3.) Thus,
even if this evidence was admissible under Rule 404(b)(2),
the court would exclude it under Rule 403 given that its
admission would be unfairly prejudicial, cumulative, a waste
of time, and only marginally relevant.
2010 Conviction for Attempting to Elude a Police
Hendrix's request to admit evidence of Mr. Tolman's
2010 conviction for attempting to elude a police officer
(see Mot., Ex. 3 (Dkt. # 165-3)) is DENIED. This
evidence is excluded for the reasons set forth on the record
at the December 16, 2019, hearing.
2012 Conviction for ...