United States District Court, W.D. Kentucky, Louisville
MEMORANDUM OPINION AND ORDER
Thomas
B. Russell, Senior Judge.
This
matter is before the Court on the United States' Motion
in Limine to admit res gestae evidence or,
in the alternative, “other acts” evidence under
Fed.R.Evid. 404(b). [DN 46.] Defendant Damon L. Shanklin
responded. [DN 54.] This matter is now ripe for adjudication.
For the following reasons, the United States' motion, [DN
46], is GRANTED.
BACKGROUND
On
September 7, 2013, after Louisville Metro Police Department
(LMPD) detectives obtained a tip from a reliable confidential
informant that Damon L. Shanklin was cultivating marijuana in
his home, detectives obtained a search warrant for
Shanklin's residence. [DN 29-2 at 2 (Detective Kevin
McKinney's Affidavit); DN 29-2 at 5 (Search Warrant).]
When executing that warrant, police discovered over fifty
marijuana plants in a back room of the house; various
chemicals, tools, and equipment typically used in marijuana
cultivation; and pieces of mail and paperwork bearing
Shanklin's name or otherwise associated with him. [DN 46
at 3 (United States' Motion in Limine).] In the
only bedroom, police found two sets of digital scales and a
magazine about growing marijuana. [Id.] On the
nightstand next to the bed, police found a loaded Glock 17
9mm handgun. [Id.] On July 20, 2016, Shanklin was
indicted for possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). [DN 1 (Indictment).]
In this motion in limine, the United States seeks to
admit evidence at trial of Shanklin's marijuana growing
operation.
STANDARD
Using
the inherent authority to manage the course of trials before
it, this Court may exclude irrelevant, inadmissible, or
prejudicial evidence through in limine rulings.
See Luce v. United States, 469 U.S. 38, 41 n.4
(1984) (citing Fed.R.Evid. 103(c)); Louzon v. Ford Motor
Co., 718 F.3d 556, 561 (6th Cir. 2013); Mahaney ex
rel. Estate of Kyle v. Novartis Pharm. Corp., 835
F.Supp.2d 299, 303 (W.D. Ky. 2011). Unless such evidence is
patently “inadmissible for any purpose, ”
Jonasson v. Lutheran Child & Family Servs., 115
F.3d 436, 440 (7th Cir. 1997), though, the “better
practice” is to defer evidentiary rulings until trial,
Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d
708, 712 (6th Cir. 1975), so that “questions of
foundation, relevancy and potential prejudice may be resolved
in proper context, ” Gresh v. Waste Servs. of Am.,
Inc., 738 F.Supp.2d 702, 706 (E.D. Ky. 2010). A ruling
in limine is “no more than a preliminary, or
advisory, opinion.” United States v. Yannott,
42 F.3d 999, 1007 (6th Cir. 1994) (citing United States
v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983),
aff'd, 469 U.S. 38). Consequently, the Court may
revisit its in limine rulings at any time and
“for whatever reason it deems appropriate.”
Id. (citing Luce, 713 F.2d at 1239).
DISCUSSION
The
United States offers two theories under which it argues
evidence of Shanklin's marijuana operation is admissible.
First, it asserts that the evidence of the marijuana
operation is res gestae, or background evidence that
is inextricably intertwined with evidence of Shanklin's
felon in possession of a firearm charge. [DN 46 at 2.]
Second, The United States contends that the evidence is
admissible under Federal Rule of Evidence 404(b)(2) for the
purpose of showing Shanklin's motive for possessing the
firearm. [Id. at 5.] In response, Shanklin contends
that the marijuana growing constitutes evidence that is
extrinsic, unrelated, and irrelevant to his felon in
possession charge and that the Rule 403 balancing test weighs
in favor of excluding the evidence as unfairly prejudicial.
[DN 54 at 2-3 (Shanklin's Response).] Because the Court
agrees with the United States that the evidence of
Shanklin's drug activity is admissible both as background
evidence and as a permissible other purpose under Rule
404(b)(2), the Court will grant the United States' motion
in limine. Cf. United States v. Rhodes, 314
F. App'x 790, 793 (6th Cir. 2008) (“We uphold the
district court's decision to admit the drug evidence for
at least two reasons. First, the drugs were res
gestae, or “background, ” evidence . . .
Second, the drugs provided a motive for possessing the
ammunition: protecting the drug stash.”)
1)
Background Evidence
“Background
or res gestae evidence is an exception to Rule
404(b).” United States v. Adams, 722 F.3d 788,
810 (6th Cir. 2013) (citing United States v. Clay,
667 F.3d 689, 697 (6th Cir. 2012)). “Res
gestae is sometimes also known as ‘intrinsic
evidence.' ‘Intrinsic acts are those that are
inextricably intertwined with the criminal act charged or a
part of the criminal activity as opposed to extrinsic acts,
which are those that occurred at different times and under
different circumstances from the offense charged.”
United States v. Churn, 800 F.3d 768, 779 (6th Cir.
2015), reh'g denied (Oct. 23, 2015) (quoting
United States v. Stafford, 198 F.3d 248, at *4 (6th
Cir. 1999)). “Typically, such evidence is a prelude to
the charged offense, is directly probative of the charged
offense, arises from the same events as the charged offense,
forms an integral part of a witness's testimony, or
completes the story of the charged offense.” United
States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000).
Moreover, “[p]roper background evidence has a causal,
temporal or spatial connection with the charged
offense.” Id.
In
United States v. Rhodes, the Sixth Circuit held that
evidence of drugs found the defendant's apartment at the
same time police discovered boxes of bullets was admissible
at the defendant's trial as to his felon in possession of
ammunition charge. 314 F. App'x at 793. There, as here,
the court determined that the drug evidence was admissible
for two reasons, one of which was because it was background
evidence to the ammunition possession charge. Id.
Similarly, here, evidence of marijuana cultivation at
Shanklin's house “initiated this case; the drugs
explain why the police raided [Shanklin]'s house”
in the first place. Id. In other words, the
suspected marijuana activity was “a prelude to the
charged offense.” Hardy, 228 F.3d at 748.
Likewise, courts have found that drug possession is
“directly probative of the charged offense” of
firearm possession. Rhodes, 314 F. App'x at 793;
United States v. Till, 434 F.3d 880, 884 (6th Cir.
2006) (“[T]he marijuana and cocaine . . . is directly
probative of defendant's knowing possession of the
firearm.”)
Moreover,
the scales and magazine “had a spatial and temporal
connection to the” firearm, Rhodes, 314 F.
App'x at 793, as they were all found at the same time,
during the execution of the same search warrant, and in the
same place: the only bedroom of Shanklin's house. The
marijuana plants, found during the same search, were also in
temporal proximity to the firearm. Further, as the house was
small, the plants, though found “in the rear room,
” were likely also in spatial proximity to the firearm,
which was found in “the front [and only] bedroom”
of the house. [DN 46 at 3.] Contrast United States v.
Gibbs, 797 F.3d 416, 423 (6th Cir. 2015) (Finding a lack
of temporal proximity because “[r]etaliation that
occurred one month after the shooting is not at all necessary
to determine whether [d]efendant possessed ammunition at that
earlier time.”)
In sum,
Shanklin's drug activity was a prelude to his possession
of a firearm charge, probative of that offense, and
discovered in temporal and spatial proximity to the firearm.
See Hardy, 228 F.3d at 748. Accordingly, the Court
finds that this evidence is admissible as background or
res gestae evidence.
2)
Proving ...