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United States v. Brooks

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

January 6, 2020





         Before the court are Defendant Dwayne Brooks' and Plaintiff United States of America's (the “Government”) motions in limine. (Def. MIL (Dkt. # 31); Gov't MIL (Dkt. # 32).) The Government filed a response to Mr. Brooks' motions in limine (Gov't Resp. (Dkt. # 33)), but Mr. Brooks did not file an opposition to the Government's motion in limine (see generally Dkt.). The court has considered the parties' submissions, the relevant portions of the record, and the applicable law. Being fully advised, the court DENIES the Government's motion in limine without prejudice and GRANTS in part and DENIES in part Mr. Brooks' motions in limine as more fully discussed below.

         II. ANALYSIS

         A. The Government's Motion In Limine

         The Government moves to admit redacted log entries from Alaska USA Federal Credit Union (“Alaska USA”). (See Gov't MIL at 1; Log Entries (Dkt. # 32-2).) The log entries memorialize statements from Alaska USA employees and Mr. Brooks made during phone calls between Mr. Brooks and Alaska USA employees. (See Log Entries.) The Government represents that it has subpoenaed an Alaska USA records custodian who will testify that “the log entries were made and kept in the regular course of the bank's business and that the entries were made at or near the time by the bank employees with knowledge” and two former Alaska USA employees who had conversations with Mr. Brooks and made the log entries. (Gov't MIL at 2.) The Government did not submit an affidavit or declaration from this records custodian in support of its motion. (See Mot.)

         The court DENIES the Government's motion WITHOUT PREJUDICE to presentation at trial. The court agrees with the Government that the redacted log entries could be admitted as business records under Federal Rule of Evidence 803(6) if the Government lays the appropriate foundation. (See Mot. at 3-4.) The court also agrees with the Government that Mr. Brooks' statements in the log do not meet the definition of hearsay. (See id.) However, the court will not admit the log entries until the Government presents an adequate foundation at trial.

         B. Mr. Brooks' Motions

         In Limine Mr. Brooks' motions in limine seek to exclude evidence of a number of “other acts” that the Government alleges Mr. Brooks committed and any summary charts related to those other acts. (See Def. MIL.) Mr. Brooks argues that evidence relating to these other acts “goes far beyond the specific activity charged in the Indictment” and, as such, is not relevant, unduly prejudicial, and improper character evidence under Rules 401, 403, and 404. (See Def. MIL at 1-4.) The court first addresses the applicable legal standard under those rules before turning to each of the acts at issue.

         1. Legal Standard

         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. Evidence must be relevant to be admissible. Fed.R.Evid. 402.

         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). The Ninth Circuit has recently reiterated, however, that “Rule 404(b) applies solely to evidence of ‘other' acts, not to evidence of the very acts charged as crimes in the indictment.” United States v. Loftis, 843 F.3d 1173, 1176 (9th Cir. 2016). Moreover, it is well-settled that “evidence should not be considered ‘other crimes' or ‘other act' evidence within the meaning of Rule 404(b) if ‘the evidence concerning the “other” act and the evidence concerning the crime charged are inextricably intertwined.'” United States v. Dorsey, 677 F.3d 944, 951 (9th Cir. 2012) (quoting United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987)). The Ninth Circuit has applied the “inextricably intertwined” doctrine in two categories of cases: (1) where the other act “constitutes a part of the transaction that serves as the basis for the criminal charge, ” and (2) where it was necessary to admit the other act evidence “in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime.” Loftis, 843 F.3d at 1178 (citations omitted).

         Even where a party seeks to offer other act evidence and the inextricably intertwined exception does not apply, other act evidence may still be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). When evidence is offered under Rule 404(b)(2), “[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)).

         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. 403.

         2. Specific Other Acts

         a. Subaru Thefts and Related Statements

         The court DENIES Mr. Brooks' motion to exclude evidence regarding Mr. Brooks' alleged thefts of a Subaru belonging to Roger Rotermund. (See Def. MIL at 4.) Evidence relating to the Subaru thefts is not evidence of “other” acts under Rule 404(b). The indictment alleges that Mr. Brooks' scheme to commit bank fraud involved unlawfully obtaining debit cards, credit cards, and other identity information “through various illegal means, including mail theft, car prowling, and burglary.” (See Indictment (Dkt. # 1) ¶¶ 1-3.) As part of that scheme, the Government alleges that Mr. Brooks stole Mr. Rotermund's Subaru and found a purse belonging to Susan Ash in the vehicle. (Gov't Tr. Br. (Dkt. # 21) at 2-3.) That purse had Ms. Ash's debit card and other identity information in it, and a number of the counts charged against Mr. Brooks relate to his use of Ms. Ash's debit card and identity information. (See Gov't Resp. at 5.) Thus, Mr. Brooks' thefts of the Subaru are part of the Government's charges against Mr. Brooks, which renders Rule 404(b) inapplicable. See Loftis, 843 F.3d at 1177. Additionally, this evidence is “inextricably intertwined” with the evidence relating to the crimes charged against Mr. Brooks, see Id. at 1177-78; and would be admissible under Rule 404(b)(2) even if the evidence was other acts evidence for the listed purposes of opportunity, plan, and identity. See Fed. R. Evid. 404(b)(2).

         The court will not exclude evidence of the car thefts under Rule 403. To exclude evidence under Rule 403, the undue prejudice resulting from the admission of the evidence must “substantially outweigh” its probative value. Fed.R.Evid. 403. Here, the probative value of Mr. Brooks' Subaru theft far outweighs the danger of any unfair prejudice to Mr. Brooks. Thus, the court will not exclude this evidence as unduly prejudicial.

         Finally, the court notes that Mr. Brooks raises vague hearsay objections to the Government's introduction of statements from Mr. Rotermund about the car thefts. (See Def. MIL at 4.) It is not clear what specific statements Mr. Brooks seeks to exclude or whether the Government intends to offer those statements. (See id.) Consequently, the court lacks sufficient information to rule on the portion of Mr. Brooks' motion. Accordingly, the court DENIES Mr. Brooks' motion WITHOUT PREJUDICE to reraising his hearsay objections at trial, if appropriate.

         b. Handwritten Note ...

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