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United States v. Vance

United States District Court, W.D. Kentucky, Louisville Division

June 15, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
ROBERT J. VANCE DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley, Jr., Chief Judge

         This matter is before the Court on Defendant's Motion in Limine [DN 31]. Fully briefed, this matter is ripe for decision. For the following reasons, Defendant's Motion is DENIED.

         I. Background

         The superseding indictment charges Defendant Vance with three counts: 1) possession with the intent to distribute 50 grams or more of methamphetamine; 2) possession of a firearm after having been convicted of a felony; and 3) possession of firearm ammunition after having been convicted of a felony. These charges stem from an incident that occurred on December 15, 2017. That night, Officers Lawrence and Detective Whitford were on patrol in the high-crime area of Portland in Louisville, Kentucky. They noticed a van with its passenger door ajar on one side of the road and a man standing near the open driver door of a 2002 Toyota Sequoia on the other. Suspecting that the man, later identified as Vance, was involved in the breaking and entering or theft of a vehicle, the officers decided to investigate further. They approached Vance by vehicle, but, when Lawrence stepped out to initiate conversation with Vance, Vance began to run on foot. Lawrence pursued Vance down a nearby alleyway. Vance was apprehended after he tripped and fell. At the scene, within a few feet of where Vance was apprehended, officers found a bag that contained a Glock, Model 21, .45 caliber pistol with ammunition and a large “rock” of methamphetamine weighing around 100 grams. After arresting and detaining Vance, officers searched his nearby vehicle, finding a gun holster, additional ammunition for the .45 caliber Glock, and drug paraphernalia.

         The United States has informed Vance and his counsel that it intends to introduce evidence of other crimes and acts. Vance seeks to exclude this evidence under the Federal Rules of Evidence 404(b) and 403 and under the Fifth and Sixth Amendment. The other incidents are as follows: 1) an uncharged incident in New Albany Indiana on November 9, 2015, in which police responded to a “shots fired” call and reportedly found Vance with a stolen Glock, Model 23, .40 caliber pistol in the console of the allegedly same 2002 Toyota Sequoia, spent shell casings, and $4, 537.00 in cash; 2) his prior conviction for assault under extreme emotional disturbance in Bullitt County in the case of Commonwealth v. Robert Vance, 12-CR-00073 in Bullitt County Circuit Court; and 3) his prior felony conviction for third degree assault and misdemeanor conviction for third degree criminal mischief in the case of Commonwealth v. Robert Vance, 12-CR-000246 in Bullitt County Circuit Court. Vance does not argue or advance any theories as to why the latter two incidents should be excluded under Rule 404(b), so the Court will only address the arguments made in relation to the first incident.

         II. Discussion

         Vance argues that the first New Albany incident should be excluded from evidence under Federal Rule of Evidence 404(b), 403, and the Fifth and Sixth Amendments. Principally, he asserts that evidence of this incident serves only as propensity evidence, and that it serves no other proper purpose under Rule 404(b). The United States contends that it does indeed serve a proper purpose.

         Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b)(1)-(2). However, before allowing into evidence that which appears to implicate other acts that speak to a defendant's character, the Court must utilize a three pronged test: the Court must consider 1) “whether there is a sufficient factual basis that the act occurred”; 2) “whether the act is being offered for an appropriate reason”; and 3) “whether the probative value of the evidence is substantially outweighed by the unfair prejudicial impact of its use at trial.” United States v. Shanklin, No. 3:16-CR-00085-TBR, 2017 WL 1424302, at *2-3 (W.D. Ky. Apr. 20, 2017) (quoting United States v. Gibbs, 797 F.3d 416, 425 (6th Cir. 2015)); see United States v. Adams, 722 F.3d 788, 810 (6th Cir. 2013).

         In this case, there is sufficient evidence that the other acts occurred. Vance does not deny that he was involved in the incident on November 9, 2015 in which police responded to a “shots fired” call. A police report was filed that sufficiently identified and described Vance, the .40 caliber Glock in Vance's vehicle, and other relevant items. The Court is confident that this prong is sufficiently satisfied.

         Next, the Court must determine whether the United States seeks to introduce evidence of Vance's prior possession of the .40 caliber Glock for a proper purpose under Rule 404(b). “In ruling on the admissibility of evidence submitted under Rule 404(b), the district court must determine whether one of the factors justifying the admission of other acts evidence is material, that is, in issue, in the case, and if so, whether the other acts evidence is probative of such factors.” United States v. Johnson, 27 F.3d 1186, 1190 (6th Cir. 1994). According to the Response of the government, it believes the prior act evidence shows “knowledge . . . absence of mistake or lack of accident, ” and that Vance has placed his intent to possess the firearm by denying it was his. (Resp. [DN 35] at 4.)

         First, the Court rejects the government's suggestion that this case presents an issue of mistake or accident. The Defendant has simply said the firearm is not his. He denies any connection with the green bag and its contents found in the alley. He has not said that he thought the objects in the bag were something other than drugs or a firearm. See United States v. Newsom, 452 F.3d 593, 606 (6th Cir. 2006); see also United States v. Bell, 516 F.3d 432, 442 (6th Cir. 2008).

         Next, the Court must address whether the Defendant's knowledge and intent are in issue and if so, whether the prior incident is relevant to those issues. As to Count 2 relating to the possession of methamphetamine, knowledge and intent are in issue; however, the evidence of the prior act on November 9, 2015 has no relevance to those issues. As for the other two counts, the answer depends on whether the case involves actual possession or constructive possession.

         The Third Circuit in United States v. Caldwell, 760 F.3d 267, 279 (2014) stated:

Because the Government proceeded solely on a theory of actual possession, we hold that Caldwell's knowledge was not at issue in the case. Although 18 U.S.C. § 922(g)(1) criminalizes the “knowing” possession of a firearm by a convicted felon, a defendant's knowledge is almost never a material issue when the government relies exclusively on a theory of actual possession. Indeed, absent unusual circumstances (such as when a defendant claims he did not realize the object in his hand was a gun), the knowledge element in a felon-in-possession case will necessarily be satisfied if the jury finds the defendant physically possessed the firearm. See United States v. Linares,367 F.3d 941, 946-47 (D.C. Cir. 2004) (stating that ...

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