United States v. Williams

UNITED STATES OF AMERICA v. AKARI WILLIAMS, ET AL.

CRIMINAL ACTION NO. 14-153 SECTION: "E" (4)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

November 6, 2016

ORDER AND REASONS

On October 24, 2016, the Government filed its notice of intent to use evidence.¹ On October 31, 2016, Defendant Phillips Thompson filed an opposition to the Government's notice of intent.² On November 3, 2016, the Government filed a reply memorandum in support of its notice of intent.³ The Court will treat Defendant Thompson's opposition as a motion in limine.⁴

For the reasons that follow, Defendant Thompson's motion in limine is GRANTED IN PART and DENIED IN PART.

BACKGROUND

The Government provided notice of its intent to present bank records and tax records from approximately 2012 through 2016 that will show how Defendants Thompson and Williams transferred money, concealed transactions and concealed profits in furtherance of the conspiracy. The Government contends this evidence is intrinsic to the charged conduct as it shows evidence of the conspiracy - the breadth of its membership and scope, how the Defendants paid for the drugs, how they profited, andhow they concealed the profits and deposits with the accounts of third parties, all of which is direct evidence of the drug trafficking conspiracy itself.

In addition, the Government provided notice of its intent to present witness testimony establishing Defendants Thompson and Williams have known each other for an extended period of time. The Government has notified the Defendants that its witnesses will testify as to previous dealing in illicit drugs with the Defendants prior to 2013. The Government contends this evidence is also intrinsic because the cooperating witnesses will provide important background information and context and will help the jurors understand this conduct was not an accident and developed over a course of time.

While the Government maintains the financial records and witness testimony described above are intrinsic to the charged conspiracy, the Government alternatively argues this evidence is permissible extrinsic evidence under Federal Rule of Evidence 404(b) as it is probative of the Defendants' knowledge, intent and modus operandi.

STANDARD OF LAW

"Evidence of an uncharged offense arising out of the same transactions as the offense charged in the indictment is not extrinsic evidence within the meaning of Rule 404(b)."⁵ Generally, evidence of other acts is intrinsic "when the evidence of the other act and the evidence of the crime charged are 'inextricably intertwined; or both acts are part of a 'single criminal episode' or the other acts were 'necessary preliminaries' to the crime charged."⁶ The Fifth Circuit has explained, "It is well established that where a conspiracy is charged, acts that are not alleged in the indictment may be admissible as part of theGovernment's proof."⁷ "Evidence is intrinsic to a conspiracy if it is relevant to establish how the conspiracy came about, how it was structured, and how the [defendant] became a member."⁸ "This evidence is admissible to complete the story of the crime by proving the immediate context of events in time and place."⁹ "Intrinsic evidence does not implicate Rule 404(b), and 'consideration of its admissibility pursuant to Rule 404(b) is unnecessary.'"¹⁰

Federal Rule of Evidence 404(b) governs the introduction of extrinsic evidence. Under Federal Rule of Evidence 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."¹¹

In order to be admissible under Rule 404(b), the evidence in question must satisfy the two-prong analysis articulated in United States v. Beechum.¹² "First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character."¹³ As a threshold matter, the relevancy of extrinsic act evidence is conditioned on whether the defendant, in fact, committed the extrinsic act.¹⁴ Rule 104(b) of the Federal Rules of Evidence states: "When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the factdoes exist. The court may admit the proposed evidence on the condition that the proof be introduced later."¹⁵ "Therefore, as a predicate to a determination that the extrinsic offense is relevant, the Government must offer proof demonstrating that the defendant committed the offense. If the proof is insufficient, the judge must exclude the evidence because it is irrelevant" under Rule 104(b).¹⁶

When "determin[ing] whether there is sufficient evidence for the jury to find the defendant in fact committed the extrinsic offense[,] . . . [t]he judge need not be convinced beyond a reasonable doubt that the defendant committed the extrinsic offense," and the Government need not "come forward with clear and convincing proof."¹⁷ Rather, the standard for the admissibility of extrinsic offense evidence is whether there is evidence sufficient to permit a reasonable jury to find the preliminary facts by a preponderance of the evidence.¹⁸

Once this threshold is met, the Court must look at other indicia of relevance. When determining whether extrinsic act evidence is relevant to an issue other than the defendant's character, as required to be admissible under 404(b), "relevance is a function of [the extrinsic offense's] similarity to the offense charged."¹⁹ "[S]imilarity means more than that the extrinsic and charged offense have a common characteristic"—the common characteristic must be "the significant one for the purpose of the inquiry at hand."²⁰

The second step of the Beechum test is that "the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the otherrequirements of rule 403."²¹ "The task for the court in its ascertainment of probative value and unfair prejudice under rule 403 calls for a commonsense assessment of all the circumstances surrounding the extrinsic offense."²² "Some of the factors [a court] must consider include: (1) the extent to which the defendant's unlawful intent is established by other evidence; (2) the overall similarity of the extrinsic and charged offenses; and (3) how much time separates the extrinsic and charged offenses because temporal remoteness depreciates the probity of the extrinsic offense."²³

DISCUSSION

I. Bank Records and Tax Returns from 2012 to 2016

The Government argues financial evidence, consisting of bank records and tax returns from 2012 to 2016, is intrinsic evidence because it is inextricably intertwined into the charged conspiracy.²⁴ Defendant Thompson argues the financial evidence the Government seeks to introduce is extrinsic to the charged conspiracy.²⁵ First, Defendant Thompson argues, "In essence, the Government concedes that the evidence it intends to introduce here is not part of the conspiracy itself."²⁶ Thompson argues the conspiracy charged is principally based from May 2013 until the time of the indictment in February 2015 and therefore, he "requests at a minimum that the Government be limited to introducing financial transactions that occurred within a reasonable time period of the shipped package on May 27, 2014."²⁷

As the Fifth Circuit has explained, "We have held before that the government is not limited to overt acts pleaded in proving a conspiracy. It may show other acts of the conspirators occurring during the life of the conspiracy."²⁸ In United States v. Powers, the Fifth Circuit upheld the introduction of transactions not alleged in the indictment as intrinsic evidence after finding the "transactions tend to show the conspiratorial relationship between [co-conspirators] during the life of the conspiracy."²⁹ In addition, in United States v. Lorenzana-Cordon, the court explained, "The financing of drug transactions and the movement of money constitute overt acts performed contemporaneously with, and directly in furtherance of, the charged [cocaine importation] conspiracy."³⁰

The Court finds that the bank and tax records from the time period of the charged conspiracy are intrinsic evidence as they are inextricably intertwined and show the conspiratorial relationship between the co-conspirators during the life of the conspiracy. As explained above, the Fifth Circuit has reiterated "evidence of how the conspiracy came about, how it was structured, and how the [defendant] became a member is intrinsic evidence to the charged conduct."³¹ The Government has sufficiently alleged the financial records will demonstrate "how the [D]efendants paid for methamphetamine, how they profited from it, and how they concealed their actions from detection of law enforcement."³² Furthermore, the Court finds the evidence of bank and tax records from the time period of the charged conspiracy also is intrinsic as it demonstrates how the conspiracy itself was structured. The Defendant Thompson's motion in limine isDENIED to the extent that it seeks to exclude bank and tax records during the time period between May 1, 2013 and February 27, 2015 as these records are intrinsic evidence.³³

The Court finds the bank and tax records outside of this charged period are extrinsic and therefore subject to Rule 404(b) and the two-prong Beechum test. With respect to the first prong required by Beechum, the Court finds the Government has not satisfied its burden by clearly articulating how the proposed 404(b) evidence is relevant to the charged conduct.³⁴ As explained in Brown:

It is not enough for the Government to merely identify a valid non-propensity purpose under Rule 404(b)(2). Crucially, the Government must also show that the evidence is relevant to that purpose. To do so, the prosecution 'must clearly articulate how that evidence fits

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