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United States v. McCray

United States District Court, S.D. Florida

May 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TAVARES MCCRAY, Defendant.

          ORDER

          ROY K. ALTMAN UNITED STATES DISTRICT JUDGE.

         THIS 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.

         THE FACTS

         The 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].

         On June 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.

         THE PRIOR CONVICTIONS

         The two convictions the United States intends to introduce are:

         (1) A 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

         (2) A 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 Conviction”).

         The 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.

         In the 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 cocaine.

         THE LAW

         “Evidence 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)).

         The 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 ...


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