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United States v. Peters

United States District Court, E.D. Kentucky, Southern Division, London

November 21, 2018


          OPINION & ORDER

          Robert E. Wier United States District Judge

         Defendant James Russell Peters, Jr. moves in limine for exclusion of three evidence categories: a prior felony drug conviction, audio recordings from drug transactions with a confidential informant (CI), and a recorded, non-drug-related conversation. DE 119 at 1-2 (Motion). The Government's response moots Peters's objections to the first and last genres. See DE 135 at 1 n.1, 2. After considering the parties' contentions regarding the controlled-buy audio, the Court, under the applicable standards, finds exclusion unwarranted and denies the motion.

         Defendant faces charges of conspiring to distribute 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) & 846. DE 137 (Second Superseding Indictment - Count 1). The alleged conspiracy conduct spanned a calendar year, from March 2017 through March 2018, and occurred in this District. Id. The prosecution does not intend to introduce evidence, at trial, of Peters's prior Laurel County felony drug conviction or a September 2017 recorded Peters conversation that is unrelated to trafficking. See DE 135 at 1 n.1, 2. This moots, for now, Defendant's Rule 403 & 404 objections to introduction of such items.[1]

         Defendant also pursues exclusion of audio from alleged controlled meth transactions between Peters and a CI. He contends the recordings are both improper propensity evidence and, alternatively, unduly prejudicial. DE 119 at 3-4. The crux of Defendant's Rule 403 and 404 arguments is, ultimately, the same premise, i.e., that “the other transactions . . . occurred at other locations and involved other persons besides . . . [Peters's Co-Defendants]; accordingly, they cannot be said to be part of the same scheme as the charged conspiracy[.]” Id.[2] As explained below, even if-accepting Defendant's citation-free assertion as true-the recorded transactions could not be properly considered as an overt act in furtherance of the conspiracy, that fact would not warrant the wholesale exclusion Peters seeks. Inadmissibility for one purpose does not equal inadmissibility for all purposes. Indeed, the controlled buys' failure to actually advance conspiracy purposes would not perforce even render them “other acts” within Rule 404's purview.

         Inextricably Intertwined Acts

         Rule 404(b) provides that evidence of crimes, wrongs, or other acts cannot be admitted to prove a person's character “in order to show that on a particular occasion the person acted in accordance with the character.” Fed.R.Evid. 404(b)(1). However, “Rule 404(b) does not apply where the challenged evidence is ‘inextricably intertwined' with evidence of the crime charged in the indictment.” United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995) (quoting United States v. Torres, 685 F.2d 921, 924 (5th Cir. 1982)). Proof admitted under this 404(b) exception is sometimes referred to as “[b]ackground or res gestae evidence[.]” United States v. Adams, 722 F.3d 788, 810 (6th Cir. 2013) (quoting United States v. Clay, 667 F.3d 689, 697 (6th Cir. 2012)). “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.” Id. (quoting United States v. Hardy, 228 F.3d 745, 750 (6th Cir. 2000)). However, considerations as to “‘temporal proximity, causal relationship, or spatial connections' among the other acts and the charged offense” severely limit the exception's scope. Id. (quoting Clay, 667 F.3d at 698).

         The Court finds that the controlled-buy recordings (as described)[3] are directly probative of, arise from the same events as, and complete the story of the charged offense. The Government intends to prove that Peters purchased bulk meth quantities from his source of supply for resale to “various mid- and street-level drug dealers.” DE 135 at 4. Evidence showing that Peters was selling meth in the same conspiracy period logically supports the Government's theory. Although a government cooperator cannot be considered a co-conspirator, see United States v. Rogers, 118 F.3d 466, 477 (6th Cir. 1997), that circumstance does not render the transactions inadmissible. See United States v. Ramirez, 350 F.3d 780, 785 (8th Cir. 2003) (“[W]e disagree with [defendant's] assertion that we cannot consider his incriminating statements made during a controlled buy as evidence of his participation in a drug conspiracy[.]”).

         Peters was, evidently, unaware of his purported meth customer's status. Thus, the transaction events arguably were, to Peters, materially indistinguishable from any other illicit drug deal. Under the prosecution's theory, the recorded sales directly corroborate the existence of, and Peters's knowing involvement in, a conspiracy to sell meth. While the Court presumes Defendant innocent, the United States will likely depict the at-issue transactions as arising from Peters's purported prior purchases from his source of supply and as the last steps in (or completing “the story of”) Peters's middleman role.

         Here, the causal connections alone are sufficient to overcome the restrictions on the “inextricably intertwined” Rule 404 exception. See Adams, 722 F.3d at 811 (“Hardy acknowledges that background evidence requires a close ‘causal, temporal or spatial connection.'” (quoting Hardy, 228 F.3d at 748) (emphasis in original)). Temporal proximity cinches the finding. The controlled buys occurred during the charged conspiracy period. Compare DE 137 at 1 (charging a conspiracy “[b]eginning in or about March of 2017”), with DE 119 at 1 (referencing “audio recordings related to alleged drug transactions . . . in March 2017[.]”). Additionally, spatial proximity, here, though not necessarily supporting the finding, is not so lacking as to militate against applying the exception. The recorded transactions occurred in Jefferson County. See DE 119 at 1. Though outside the Eastern District, the conduct transpired within the Commonwealth's borders and is consistent with the conspiracy alleged. See DE 137 (“in the Eastern District of Kentucky, and elsewhere” (emphasis added)).

         In sum, because the controlled-buy “evidence is part of a continuing pattern of illegal activity[, ]” Rule 404(b) “is not implicated[.]” Barnes, 49 F.3d at 1149. The at-issue evidence is sufficiently linked, causally and temporally, to overcome the exception's stringent limitations. Accordingly, 404(b) analysis is unnecessary because “evidence of those sales [is] not ‘other acts' evidence[;] it [is] inextricably intertwined with the charged offense.” United States v. Martinez, 430 F.3d 317, 335 (6th Cir. 2005). The Court rejects the Rule 404-based in limine effort.

         Rule 404(b) Examination

         Further, even if the Rule applied, the recordings would, on this record, survive exclusion under the 404(b) rubric. The Court utilizes the Sixth Circuit's 3-step inquiry for 404(b) analysis:

First, the district court must make a preliminary determination regarding whether there is sufficient evidence that the “other acts” took place. The district court must then determine whether those “other acts” are admissible for a proper purpose under Rule 404(b). Finally, the district court must determine whether the “other acts” evidence is more prejudicial than probative.

United States v. Lattner, 385 F.3d 947, 955 (6th Cir. 2004). Defendant disputes only the latter two issues. See DE 119 at 2-3 (reciting three similar steps and stating that only the “second and third . . . are at issue”). The Court sees no reason to doubt ...

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