United States v. Agena

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UNITED STATES OF AMERICA, Plaintiff, v. ANGELICA AGENA, Defendant.

No. 4:23-CR-3038

United States District Court, D. Nebraska

October 27, 2023

MEMORANDUM AND ORDER

John M. Gerrard, Senior United States District Judge

The defendant, Angelica Agena, is set to be tried to a jury in this Court on one count of possessing with the intent to distribute methamphetamine, and one count of conspiracy to distribute methamphetamine. Filing 25-1. This matter comes before the Court on the defendant's motions in limine to exclude some of the government's anticipated evidence. Filing 20. The Court heard argument in open court on Friday October 27, 2023. The defendant's motions will be overruled without prejudice to be reasserted at trial.

The defendant seeks to exclude references that she distributed or used drugs other than methamphetamine. Filing 20. The defendant argues that this is improper character evidence disallowed under Fed.R.Evid. 404(b), and is otherwise unfairly prejudicial under Rule 403. Specifically, the defendant seeks to exclude some text messages which the government is expected to interpret as meaning that the defendant was selling marijuana or heroin, and exclude any other evidence implicating the defendant in crimes other than the ones charged.

Under Fed.R.Evid. 404(b), evidence of a defendant's prior bad acts or wrongful conduct is not admissible to prove a defendant's propensity for criminal behavior. Such evidence may be admissible, however, for a purpose other than propensity, such as proving the defendant's motive, opportunity, intent, preparation, plan, knowledge identity, absence of mistake, or lack of accident. Fed.R.Evid. 404(b)(2); United States v. Gant, 721 F.3d 505, 509 (8th Cir. 2013). To be admissible under 404(b), evidence must be (1) relevant to a material issue; (2) similar in kind and not overly remote in time to the crime charged; (3) supported by sufficient evidence; and (4) higher in probative value than prejudicial effect. Gant, 721 F.3d at 509.

But the limitations outlined in Rule 404(b) only apply to wrongful-act evidence that is extrinsic to the charged offense; the rule does not prevent admission of wrongful conduct that is intrinsic to the charged offense. UnitedStates v. Brooks, 715 F.3d 1069, 1076 (8th Cir. 2013). Evidence of other wrongful conduct is considered intrinsic when it is offered for the purpose of providing the context in which the charged crime occurred; i.e., the other crime evidence completes the story, provides a total picture of the charged crime, or is inextricably intertwined with the charged crime. Id.; Buchanan v. UnitedStates, 714 F.3d 1046, 1047-48 (8th Cir. 2013). For example, evidence of ecstasy and marijuana sales were admissible against a defendant charged with conspiracy to distribute crack cocaine when the other drugs were discovered alongside the cocaine, because the evidence of other drugs was necessary to complete the story. U.S. v. Dungy, 51 Fed.Appx. 194, 195 (8th Cir. 2002).

All evidence, admissible under Rule 404(b) or otherwise, "must still pass the 'substantially outweighed' test of [Fed. R. Evid.] 403." United States v.Adams, 783 F.3d 1145, 1149 (8th Cir. 2015). In other words, evidence admissible under Rule 404(b) should still be excluded if "its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." United States v. Anderson, 783 F.3d 727, 745 (8th Cir. 2015) (quoting Rule 403). Unfair prejudice speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged. United States v. Iron Hawk, 612 F.3d 1031, 1040 (8th Cir. 2010).

As of now, the evidence of other drug sales appears to be intrinsic to the crimes charged, and Rule 404(b) is not implicated. The sales of other drugs complete the story of the conduct with which Agena is charged. The government provided that part of its theory of the case is that Agena was brought in on the conspiracy to distribute methamphetamine because of her "network" in Lincoln. And the timing of the sales of other drugs indicates this uncharged conduct is intrinsically intertwined with the conduct which led to the charges the defendant faces now. SeeDungy, 51 Fed.Appx. at 195.

Even if the evidence is extrinsic, the sale of other drugs would satisfy Rule 404(b)'s standards:...