United States District Court, S.D. Florida
ALTMAN UNITED STATES DISTRICT JUDGE.
CAUSE came before the Court on [ECF No. 25] the
Defendant's Objections to [ECF No. 23] the
Government's Notice of Intent to Introduce Evidence
Pursuant to Federal Rule of Evidence 404(b). By its Notice,
the Government seeks to introduce two of the Defendant's
prior convictions for drug trafficking, as well as testimony
from live witnesses concerning each conviction. Having heard
oral argument, read the parties' briefs, and reviewed the
applicable law, the Court hereby ORDERS and
ADJUDGES that the Defendant's Objections
are SUSTAINED in part and OVERRULED in part.
Indictment charges the Defendant with four violations of
federal law: 1) possession with intent to distribute a
controlled substance within 1, 000 feet of a school; 2)
maintenance of a drug-involved premises within 1, 000 feet of
a school; 3) possession of a firearm and ammunition by a
convicted felon; and 4) possession of a firearm in
furtherance of a drug trafficking crime. [ECF No. 1].
12, 2018, following an investigation by the Miami-Dade Police
Department (“MDPD”) into possible street-level
sales of narcotics at the Defendant's residence,
Detective Brandon Ashe executed an Affidavit in Support of a
Search Warrant for the Defendant's home
(“Affidavit”). That same day, Judge John
Schlesinger of the Eleventh Judicial Circuit of Florida
reviewed and signed the Search Warrant
(“Warrant”) [ECF No. 27-1]. The following day,
June 13, 2018, officers of the MDPD executed the Warrant and
found, in the home, thirteen baggies containing 169.1 grams
of cocaine hidden inside of a PVC pipe; six baggies totaling
33.6 grams of crack cocaine concealed inside the false bottom
of a paint can; a loaded handgun in a woman's purse that
was hanging in a bedroom closet; and other drug
paraphernalia, including a digital scale and glass beakers.
The officers also recovered $2, 424 in cash from the
Defendant's pockets. The currency was found in smaller
denominations, which the United States suggests is
“consistent with the sale of narcotics.” [ECF No.
27, at 2]. Defense counsel has made clear, both in his papers
and in his arguments to the Court, that he plans to raise a
“mere presence” defense.
convictions the United States intends to introduce are:
conviction in Miami-Dade Circuit Court No. F08-29880B for
trafficking in 28 grams or more/less than 150 kilograms of
cocaine, in violation of Fl. Stat. § 893.135(1)(B)1 (the
“2010 Conviction”); and
conviction in Miami-Dade Circuit Court No. F12-3392C for
trafficking in 400 grams or more/less than 150 kilograms of
cocaine, in violation of Fl. Stat. § 893.135(1)(b)1c,
and conspiracy to traffic in cocaine, in violation of Fl.
Stat. §§ 893.135(5) and 777.04(3) (the “2013
2010 conviction stemmed from a series of controlled purchases
of marijuana which an undercover agent and a confidential
informant separately conducted with the Defendant at his
residence. A subsequent search of the home resulted in the
recovery of larger quantities of both marijuana and cocaine.
In his Objections, the Defendant argues that the evidence of
cocaine trafficking in the 2010 case was actually suppressed,
and that the resulting conviction was, therefore, not for
trafficking cocaine, but marijuana. After researching the
question, the United States conceded at oral argument that
the Judgment for the 2010 conviction does appear to contain a
clerical error in that the conviction was, in fact, only for
selling marijuana-and not cocaine.
2013 case, the Defendant and a co-defendant attempted to
purchase one kilogram of cocaine from what turned out to be a
confidential informant at a Pep Boys in North Miami Beach.
Once the transaction was completed, the Defendant was taken
into custody and charged with trafficking 1, 015 grams of
of a crime, wrong, or other act may not 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). “This evidence
may be admissible for another purpose, ” however,
“such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Id. Notably, the
Eleventh Circuit has said that Rule 404(b) is a rule of
“inclusion which allows [extrinsic] evidence unless it
tends to prove only criminal propensity.” See
United States v. Stephens, 365 F.3d 967, 975 (11th Cir.
2004) (quoting United States v. Cohen, 888 F.2d 770,
776 (11th Cir. 1989)).
Eleventh Circuit has set out a three-part test for district
courts to follow in adjudging the admissibility of 404(b)
evidence: (1) “the evidence must be relevant to an
issue other than defendant's character”; (2)
“the government must offer sufficient proof so that the
jury could find that defendant committed the act”; and
(3) the probative value of the evidence must not be
substantially outweighed by the risk of unfair prejudice.
United States v. Ellisor, 522 F.3d 1255, 1267 (11th
Cir. 2008); United States v. Barrington, 648 ...