United States v. Brown

902 F. Supp. 1410, 1995 U.S. Dist. LEXIS 14560, 1995 WL 579973
District Court, D. Kansas·Decided September 12, 1995·No. No. 94-10064·Published·Cited by 3 cases

Opinion

MEMORANDUM AND ORDER

THEIS, District Judge.

The defendants are charged in a three count indictment with: conspiracy to distribute crack cocaine, possession of a firearm during a drug trafficking crime, and possession with intent to distribute crack cocaine. This matter is before the court on a variety of pretrial motions filed by the defendants. The court held a hearing on September 8, 1995 and announced several of its rulings from the bench. Trial is scheduled for September 19, 1995.

I. Discovery Motions

Defendant Arnold D. Haywood has filed: Motion for Disclosure of Prior Convictions and Bad Acts (Doc. 29), Motion for Bill of Particulars (Doc. 30), Motion to Compel Discovery (Doc. 32) (relating to identity of confidential informants), Motion for Brady and Rule 16 Evidence (Doc. 33), and Motion in Limine (Doc. 34) (regarding prior convictions and bad acts).

Defendant Barry B. Brown has joined in the motions filed by his codefendants. Doc. 44.

Defendant Michael E. Hayden has filed: Motion to Compel Discovery (Doc. 40) (relating to identity of confidential informants), Motion for Brady and Rule 16 Evidence (Doc. 41), Motion for Disclosure of Prior Convictions and Bad Acts (Doc. 42), and Motion in Limine (Doc. 43) (regarding prior convictions and bad acts).

Defense counsel indicated at the hearing that the government has provided the requested Brady and Rule 16 discovery. Further, the government has indicated that no confidential informants were used in this case. The discovery motions are moot.

Based on the disclosures at the hearing, the court ruled that a bill of particulars was unnecessary. That motion shall be denied.

The motions for disclosure of prior convictions and bad acts evidence are also moot. The government has provided the defendants with the other crimes evidence it intended to present at trial.

The government indicated its intent to present the following prior convictions as to defendant Brown: a 1976 conviction for possession of heroin and a 1983 conviction for sale of marijuana (offered under Rule 404(b)) and a 1977 conviction for petty larceny and a [1414]*14141979 conviction for forgery (offered under Rule 609 if the defendant testifies). The government indicated its intent to present the following prior convictions as to defendant Hayden: a 1977 heroin conviction (offered under Rule 404(b)) and a 1973 conviction for fraudulent use of credit card and a 1982 petty theft conviction (offered under Rule 609 if the defendant testifies). The government indicated its intent to present the following prior convictions as to defendant Haywood: a 1985 conviction for forging and uttering a treasury note (offered under Rule 609 if the defendant testifies).

Prior to admitting evidence pursuant to Fed.R.Evid. 404(b), the court must determine that the proffered evidence:

(1) tends to establish intent, knowledge, motive, identity, or absence of mistake or accident;
(2) is so related to the charged offense that it serves to establish intent, knowledge, motive, identity, or absence of mistake or accident;
(3) has real probative value and not just possible worth;
(4) is close in time to the crime charged; and
(5) even if relevant, be excluded if the probative value is substantially outweighed by the danger of unfair prejudice.

United States v. Robinson, 978 F.2d 1554, 1559 (10th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1855, 123 L.Ed.2d 478 (1993).

The court indicated at the hearing that it would exclude the prior drug convictions from the government’s case in chief. The government failed to articulate its purpose for which the convictions were offered, leaving the court to speculate which specific aspect of Rule 404(b) was involved. Such speculation on the part of the court would be error. See Robinson, 978 F.2d at 1559. Further, the defendants’ drug convictions are too remote in time. Accordingly, as to the proffered Rule 404(b) evidence, the defendants’ motions in limine shall be granted.

Under Fed.R.Evid. 609, the credibility of a witness may be attacked by evidence that he has been convicted of a misdemeanor involving dishonesty or false statement or of any felony. Fed.R.Evid. 609(a). If more than ten years has elapsed since the date of conviction or release from confinement (whichever is later), evidence of the conviction shall not be admitted unless the court determines that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. Fed.R.Evid. 609(b).

The defendants’ motions in limine shall be granted in part and denied in part as follows. Brown’s two drug convictions fall outside the ten year time period and shall not be admissible. Brown’s petty larceny conviction does not involve dishonesty or false statement and shall not be admissible. Brown’s 1979 forgery conviction may be admissible as discussed below.

Hayden’s drug conviction falls outside the ten year time period and shall not be admissible. Hayden’s petty theft conviction does not involve dishonesty or false statement and shall not be admissible. Hayden’s 1973 fraud conviction may be admissible as discussed below.

The court cannot determine if Haywood’s 1985 conviction for forging and uttering a treasury note falls within the ten year time period of Rule 609. The court was not provided with the exact date of conviction or the date of release from confinement, if any was imposed for that conviction. If that conviction is over ten years old, it shall not be admissible against Haywood.

If, however, Haywood’s forgery conviction falls -within the ten year time period of Rule 609, it would be admissible against him if he testifies. Such a result would be unfairly prejudicial to Haywood, since the other defendants do not have convictions falling within the ten year time period. Haywood, who has the shortest criminal record, would be the only one of the three defendants who could be impeached under Rule 609. Thus, the court believes that Brown’s 1979 forgery conviction and Hayden’s 1973 fraud conviction should be admissible if (and only if) Haywood’s 1985 conviction falls within the ten year time period of Rule 609(b). The court acknowledges that these convic[1415]*1415tions are dated, but finds them to have significant probative value relative to the credibility of the defendants.

II. Motion for Continuance

Defendants Brown and Haywood have filed motions to continue the trial date, currently set for September 19. Doe. 57, 63. At the hearing, defendant Hayden joined in the requests for continuance.

The court denied these motions from the bench.

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United States v. Brown, 902 F. Supp. 1410, 1995 U.S. Dist. LEXIS 14560, 1995 WL 579973 (D. Kan. 1995).

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