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United States v. Brewer

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

February 7, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CHEROSCO BREWER, Defendant.

          MEMORANDUM OPINION AND ORDER

          David J. Hale, Judge United States District Court

         Defendant Cherosco Brewer is charged with various drug-trafficking and firearm offenses arising out of traffic stops on November 11 and 12, 2015, during which drugs and a gun were found in rental cars Brewer was driving. (See Docket No. 1) The United States has filed a motion in limine to allow use of Brewer's prior felony convictions for impeachment purposes if Brewer testifies at his impending trial. (D.N. 62) The government also seeks to introduce evidence of Brewer's prior convictions under Federal Rule of Evidence 404(b). (D.N. 67) Brewer maintains that such evidence should be excluded. (D.N. 65; D.N. 69) For the reasons discussed below, the Court will grant the motion to permit use of Brewer's prior felony convictions for impeachment but deny the motion to admit evidence regarding those convictions under Rule 404(b).[1]

         I. Motion in Limine to Permit Use of Brewer's Prior Felony Convictions for Impeachment

         The United States seeks to use Brewer's prior convictions for impeachment pursuant to Rule 609(a), which requires admission of evidence of a testifying defendant's prior felony conviction to attack his “character for truthfulness” provided that “the probative value of the evidence outweighs its prejudicial effect to th[e] defendant.” Fed.R.Evid. 609(a). Brewer does not oppose the government's motion to the extent the United States “merely intends to ask [him] if he has ever been convicted of a felony and will not go into the nature of the felonies.” (D.N. 65, PageID # 502) He “strongly objects, ” however, “[i]f the Government intends to go through each and every one of the indictments [and] identify the offenses for which he was convicted.” (Id.)

         In the Sixth Circuit, “impeachment under Rule 609 is generally limited to the fact of conviction and should not include the details and circumstances surrounding the conviction” unless the defendant's testimony “opens the door” to such evidence. United States v. Villanueva, 249 F. App'x 413, 418 (6th Cir. 2007) (citing United States v. Bender, 265 F.3d 464, 470-71 (6th Cir. 2001); United States v. Turner, 995 F.2d 1357, 1363-64 (6th Cir. 1993)). In light of this rule and Brewer's willingness to admit to the fact of his prior felony convictions, the Court will grant the government's motion in limine.

         II. Motion to Admit Evidence of Other Acts Under Rule 404(b)

         Rule 404(b) permits admission of evidence concerning a defendant's “crime, wrong, or other act” to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b). The United States contends that Brewer's prior drug-trafficking convictions are admissible to prove his intent to distribute cocaine and marijuana (D.N. 67, PageID # 521), as well as his knowledge and absence of mistake.[2] (Id., PageID # 523) It notes that the nature and circumstances of those earlier offenses were similar to the facts presented here and that although “several years lapsed between the prior acts and the charged conduct, [Brewer] spent much of that time either in custody or on supervision.” (Id., PageID # 525) Brewer strenuously opposes the government's 404(b) notice, arguing that his prior drug-trafficking convictions “occurred under circumstances substantially different than the offenses set forth in the [current] Indictment” and are “simply to[o] old to b[ear] any relevance to the offenses” now charged. (D.N. 69, PageID # 552)

         The Sixth Circuit has adopted a three-step test for courts deciding whether to admit evidence under Rule 404(b):

First, the trial court must make a preliminary determination as to whether sufficient evidence exists that the prior act occurred. Second, the district court must make a determination as to whether the “other act” is admissible for a proper purpose under Rule 404(b). Third, the district court must determine whether the “other acts” evidence is more prejudicial than probative under Rule 403.

United States v. Rios, 830 F.3d 403, 426 (6th Cir. 2016) (quoting United States v. Mack, 258 F.3d 548, 553 (6th Cir. 2001)). There is no dispute that Brewer committed the offenses in question; indeed, as noted above, he admits his prior felony convictions. (See D.N. 65, PageID # 502) In addition, the United States has provided documentation of those convictions. (D.N. 67-1) Thus, only the second and third prongs of the test are at issue here. See Rios, 830 F.3d at 426.

         A. Purpose of Evidence

         To determine whether the proper-purpose prong is met, the Court asks whether “(1) the evidence is offered for an admissible purpose, (2) the purpose for which the evidence is offered is material or ‘in issue, ' and (3) the evidence is probative with regard to the purpose for which it is offered.” United States v. Freeman, 412 F. App'x 735, 744 (6th Cir. 2010) (quoting United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002)). Here, the evidence is offered to prove intent, knowledge, and absence of mistake-all admissible purposes under Rule 404(b). See Fed. R. Evid. 404(b)(2). And Brewer's intent (or absence of mistake) is “in issue, ” as the drug- trafficking offenses alleged in this case require specific intent. See Sixth Circuit Pattern Jury Instruction 14.01 (requiring proof beyond a reasonable doubt that the defendant (1) knowingly or intentionally possessed a controlled substance and (2) intended to distribute the substance). Likewise, Brewer's anticipated defense that he was unaware of the drugs in the vehicles puts his knowledge in issue.[3] See Johnson, 27 F.3d at 1194 (“Knowledge is a ‘material issue' when the defendant claims he was unaware that he was committing a criminal act.” (citation omitted)). Thus, Brewer's convictions satisfy the second prong of the Rule 404(b) analysis if they are probative of his intent, knowledge, or absence of mistake. See Freeman, 412 F. App'x at 744.

         Other-acts evidence is probative of a defendant's intent if it “relates to conduct that is substantially similar and reasonably near in time to the specific intent offense at issue.”[4]Freeman, 412 F. App'x at 745 (quoting Haywood, 280 F.3d at 721). Though Brewer asserts that the circumstances of his earlier drug-trafficking convictions were “substantially different” than those presented here, he offers nothing to support this assertion. (D.N. 69, PageID # 552; see id., PageID # 551-52) By contrast, the United States points out-and offers proof-that “[a]ll of the prior acts involve[d] either marijuana or cocaine, as in the present case”; that “[i]n three of the [f]our prior instances of trafficking, [Brewer] was found to be trafficking or possessing with the intent to distribute out of his vehicle”; and that “in several of the prior instances, [Brewer] was found to have a large amount of cash on his person and multiple phones.” (D.N. 67, PageID # 525; see D.N. 67-1) The Court therefore finds that Brewer's prior drug-trafficking offenses were “substantially similar” to the ones presently at issue. See Freeman, 412 F. App'x at 745.

         Brewer's prior offenses are also “reasonably near in time” to the drug-trafficking offenses charged in this case. While Brewer's prior drug-trafficking offenses are up to eighteen years old, the documents submitted by the United States show that he was likely incarcerated for much of that period. For example, Brewer was sentenced on January 24, 2007, to eleven years of imprisonment. (D.N. 67-1, PageID # 531-32; see also id., PageID # 539-40 (imposing total sentence of 16 years and 6 months of imprisonment on January 14, 1998)) “There is no absolute maximum number of years that may separate a prior act and the offense charged, ” United States v. Ismail, 756 F.2d 1253, 1260 (6th Cir. 1985) (citations omitted), and the fact that Brewer was incarcerated (and thus prevented from committing further offenses) in the interim renders the eleven-to-eighteen-year gap largely insignificant. See United States v. Finnell, 276 F. App'x 450, 455 (6th Cir. 2008) (finding no abuse of discretion in trial court's conclusion that probative value of prior conviction outweighed prejudicial effect where “although slightly more than seven years separate[d] the ‘other act' evidence from the date of the alleged instant offense, Defendant was imprisoned on separate state offenses for the majority of that time”); United States v. Westine, No. 14-10-GFVT, 2015 U.S. Dist. LEXIS 74, at *15 (E.D. Ky. Jan. 20, 2015) (finding that although “many years ha[d] passed since [the defendant's] last conviction, ” prior conviction was probative because defendant “was incarcerated for nearly the entire period between his past conviction and committing his most recent fraud”); United States v. Johnson, No. 1:11CR1, 2011 U.S. Dist. LEXIS 131856, at *13-*14 (N.D. Ohio Nov. 15, 2011) (finding, “upon consideration of defendant's incarceration during much of the time between the 1994 robberies and the 2008 robbery, ” that “the time that ha[d] elapsed d[id] not eliminate the former's ...


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