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United States v. Becknell

United States District Court, Tenth Circuit

September 10, 2013

United States of America, Plaintiff,
v.
Amos Becknell, Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, JUDGE

Defendant Amos Becknell faces one count of possession of cocaine with intent to distribute, one count of possessing a firearm in furtherance of a drug trafficking crime, and three felon-in-possession counts. The court has before it two motions in limine by the United States. First, in its Motion in Limine (Dkt. 36), the government requests that the court prevent the defendant, Amos Becknell, from arguing a justification defense and deny inclusion of a justification jury instruction. Second, in its Notice of Intent to Introduce Evidence (Dkt. 38), the government requests an in limine ruling that certain evidence is admissible at trial under Federal Rule of Evidence 404(b). After reviewing the briefs and holding a hearing on September 3, 2013, the court is prepared to rule.

I. Justification Defense

Anticipating that Becknell will defend his felon-in-possession charges by employing a justification defense, the government moves the court to prohibit him from doing so. Becknell responds that his defense will be that he did not possess the firearms identified in the indictment, and he asks the court to deny the motion in limine as moot.

The court finds that Becknell’s statement as to what he intends to argue at trial does not render the issue moot. Because Becknell is not bound by his statement, he would still be free to argue justification at trial. However, with Becknell’s assurance that restricting his use of the justification defense will not affect him, the court grants the government’s motion in limine.

II. 404(b) Evidence

On February 28, 2003, the Wichita Police Department executed a search warrant at a residence and found a firearm. The police had observed Becknell at the residence on numerous occasions, including one instance several days before the warrant execution when Becknell answered the door after officers knocked. While police were executing the warrant, Becknell arrived at the residence. Officers patted him down, finding marijuana and two bags of crack cocaine on his person. Becknell was convicted for possession of cocaine, possession of marijuana, and two counts of no tax stamp. He was not charged with possession of a firearm.

Over a year later on August 23, 2004, Wichita police officers contacted Becknell when they were called to a domestic dispute. After a physical altercation with Becknell, the officers searched him and found a .22-caliber Jennings handgun and crack cocaine. Becknell was convicted of possession of cocaine and being a felon in possession of a firearm.

In its Notice of Intent to Introduce Evidence, the government seeks a preliminary ruling allowing it to introduce these events at trial as prior bad acts pursuant to Federal Rule of Evidence 404(b). “Evidence of a crime, wrong or other act is not admissible 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, “[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). For evidence of other acts to be admissible pursuant to Rule 404(b), the evidence must thus be offered for a proper purpose, and it must be relevant. See Huddleston v. United States, 485 U.S. 681, 691–92 (1988). The trial court must identify a reason for admitting the evidence, see United States v. Cardall, 885 F.2d 656, 671 (10th Cir. 1989), and must make a determination that the prejudicial effect of the evidence does not substantially outweigh its probative value, see United States v. Cuch, 842 F.2d 1173, 1176 (10th Cir.1988); Fed.R.Evid. 403. The decision to admit or exclude evidence pursuant to Rules 404(b) and 403 is within the trial court’s sound discretion. See United States v. Lugo, 170 F.3d 996, 1005 (10th Cir.1999).

Becknell’s Prior Drug Possession on February 28, 2003 and August 23, 2004

The government offers Becknell’s prior drug possession incidents for the purpose of proving intent, knowledge and lack of mistake in this case. Prior drug involvement is admissible to establish the intent to distribute in a drug trafficking offense. United States v. Cherry, 433 F.3d 698, 701 (10th Cir. 2005). Knowledge is at issue when a defendant denies participation in and awareness of a criminal act. See United States v. Delay, No. 03-40055-01-SAC, 2004 WL 433808, at *2 (D. Kan. Feb. 6, 2004). The admissibility of prior acts evidence to prove knowledge is based on the inference that a defendant is likely to have gained the requisite criminal knowledge after repeated instances of conduct. Id. (internal citation omitted).

However, in Cherry, the government was using a prior conviction for a communications device in facilitating distribution of crack cocaine as evidence of the defendant’s intent to distribute drugs. 433 F.3d at 700. Here, where Becknell’s prior convictions were for simple possession, the proper purpose of this evidence would only be to show an intent to possess the drugs and not an intent to distribute them.

Regarding relevance, the U.S. Court of Appeals for the Tenth Circuit has “ ‘noted that prior narcotics involvement is relevant when that conduct is close in time, highly probative, and similar to the activity with which the defendant is charged.’ “ United States v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000) (quoting United States v. Wilson, 107 F.3d 774, 785 (10th Cir. 1997)), cert. denied, 532 U.S. 1000 (2001). Indeed, “the probative value of evidence of a prior illegal act depends upon the temporal proximity between the prior and charged acts.” United States v. Massey, 48 F.3d 1560, 1571 (10th Cir.), cert. denied, 515 U.S. 1167 (1995). The relevance of prior narcotics involvement is evaluated by whether it is close in time and similar to the charged crime. United States v. Conway, 73 F.3d 975, 981 (10th Cir.1995). The Tenth Circuit has “no absolute rule regarding the number of years that can separate offenses, ” but the time must be reasonable under the facts and circumstances of the case. Id. at 1571–72 (quotation marks omitted). However, the Tenth Circuit has held that “[f]our to six years transcends our conception of ‘close in time’ as established in Wilson, 107 F.3d at 785.” Becker, 230 F.3d at 1232 (other citations omitted).

Further, “ ‘[t]here must be a clear and logical connection between the alleged earlier offense or misconduct and the case being tried.’ “United States v. Robinson, 978 F.2d 1554, 1559 (10th Cir. 1992) (quoting United States v. Biswell, 700 F.2d 1310, 1317–18 (10th Cir. 1983)), cert. denied, 507 U.S. 1034 (1993). And the “lack of clear association between the purported purpose for the introduction of the ...


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