United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS IN LIMINE
L. ROBART, UNITED STATES DISTRICT JUDGE.
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
Government's Motion In Limine
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.
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.
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
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.
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
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)).
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.”
Specific Other Acts
Subaru Thefts and Related Statements
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.
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.
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.
Handwritten Note ...