United States v. Ollie

299 F.R.D. 442, 2014 WL 296156, 2014 U.S. Dist. LEXIS 8131
District Court, W.D. Pennsylvania·Decided January 23, 2014·No. CR No. 12-18E·Published

Opinion

MEMORANDUM OPINION

MAURICE B. COHILL, JR., Senior District Judge.

Pending before the Court is the Government’s Notice of Intention to Introduce Rule 404(b) Evidence at Trial [EOF 83]. By this motion, the Government seeks a ruling from the Court as to whether it can introduce the following evidence pursuant to Fed.R.Evid. 404(b): (1) evidence that Ollie was observed in the vicinity of a residence at 11535 Shad-duck Road, Northeast, Pennsylvania on November 24, 2011, the day before he allegedly entered the home at 11618 Shadduck Road, Northeast, Pennsylvania; (2) evidence that Ollie burglarized another residence, at 11721 Shadduck Road, Northeast, Pennsylvania, on or about November 25, 2011, prior to entering the home at 11618 Shadduck Road, Northeast, Pennsylvania; and (3) evidence that in 2012, Ollie unlawfully attempted to obtain a firearm by lying on a federal firearms transaction form about his prior record.

Federal Rule of Evidence 404(b) states as follows:

(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses. Evidence 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.
(2) Permitted Uses; Notice in a Criminal Case.
This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Fed.R.Evid. 404(b). Thus, Federal Rule of Evidence 404(b) prohibits the use of evidence [444]*444of “other crimes, wrongs, or acts” to prove the character of a person. Id.

As explained by the Third Circuit court in United States v. Davis, 726 F.3d 434 (3d Cir.2013): “Prior-acts evidence is admissible only if it is (1) offered for a proper purpose under Rule 404(b)(2); (2) relevant to that purpose; (3) sufficiently probative under the Rule 403 balancing requirement; and (4) accompanied by a limiting instruction, if requested.” Id. at 441 (footnote and citations omitted). Thus, “[f]or starters, the prior-acts evidence must be relevant to a proper purpose, and it must be relevant without requiring the factfinder to make a propensity inference.” Id. at 442 (citing United States v. Sampson, 980 F.2d 883, 887 (3d Cir.1992) (“If the government offers prior offense evidence, it must clearly articulate how that evidence fits into a chain of logical inferences, no link of which can be the inference that because the defendant committed drug offenses before, he therefore is more likely to have committed this one.”)). See also United States v. Butch, 256 F.3d 171, 175 (3d Cir. 2001) (the “threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character.”). Further, “the conviction must be relevant based on what the factfinder knows about the prior act,” Davis, 726 F.3d at 442.

If Rule 404(b)-type evidence is relevant and probative, then we must next examine “if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed.R.Evid. 403. Evidence is not properly excluded under Rule 403 simply because it is prejudicial, or detrimental to a party’s case. Rather, as explained by the appellaté court in Carter v. Hewitt, 617 F.2d 961 (3d Cir.1980):

Evidence is unfairly prejudicial only if it has “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” It is unfairly prejudicial if it “appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish,” or otherwise “may cause a jury to base its decision on something other than the established propositions in the case.” A classic example of unfair prejudice is a jury’s conclusion, after hearing a recitation of a defendant’s prior criminal record, that, since the defendant committed so many other crimes, he must have committed this one too. This is an improper basis of decision, and the law accordingly prohibits introduction of prior convictions to demonstrate a propensity to commit crime.

Id. at 972 (internal footnote and quotations omitted).

1. Evidence that Ollie was observed in the vicinity of a residence at 11535 Shadduck Road on November 24, 2011, the day before the gun was stolen.

With respect to whether evidence that Ollie was observed in the vicinity of a residence at 11535 Shadduck Road on November 24, 2011, can be introduced at trial pursuant to Fed.R.Evid. 404(b), the Government argues that:

First, the evidence will establish that just prior to his burglary, theft and unlawful possession of the shotgun, Ollie was driving his white Pontiac minivan near 11535 Shadduck Road in Northeast, Pennsylvania, when he got it stuck in mud. A local resident will testify about his encounter with Ollie and his assistance to Ollie to extricate the van from the mud. Although this evidence is merely circumstantial evidence of Ollie’s presence on Shadduck Road close in time to the burglary (and would be admissible regardless of Rule 404(b)), this evidence also represents circumstantial evidence of Ollie’s “casing” Shadduck Road homes prior to burglarizing them. Notice of this evidence is given under Rule 404(b) out of an abundance of caution.

Notice, p. 3. The Government further explained with respect to this evidence that:

The proffered evidence will establish Ollie’s knowing possession, his intent to possess, and his plan to steal the firearm, because it shows that Ollie was likely casing or burglarizing residences on this remote road prior to stealing the shotgun, The evidence will show that Ollie was ob[445]

Free access — add to your briefcase to read the full text and ask questions with AI

United States v. Ollie, 299 F.R.D. 442, 2014 WL 296156, 2014 U.S. Dist. LEXIS 8131 (W.D. Pa. 2014).

299 F.R.D. 442 (United States v. Ollie) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related