Free Notice of Rule 404b - District Court of Colorado - Colorado

Case 1:04-cr-00417-LTB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00417-LTB-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. CLEMMETH D. NEVELS, Defendant.

GOVERNMENT'S SECOND 404(b) NOTICE

The United States of America, by and through Joshua Stein, Assistant United States Attorney, hereby files this Second Notice pursuant to Fed. R. Ev. 404(b): I. Introduction Defendant is charged with possession of a firearm and ammunition by an Armed Career Criminal. The government seeks to prove that defendant had actual possession of the firearm, and both actual and constructive possession of the ammunition. Some of the ammunition was found in the upstairs master bedroom shared by defendant and his girlfriend Rose Burton. As part of its case-in-chief as it relates to this Second 404(b) Notice, the government seeks to introduce evidence related to defendant's prior possession of firearms and his motive for doing so. As elucidated below, such evidence is admissible under Rule 404(b) to show that defendant knowingly possessed the firearm

Case 1:04-cr-00417-LTB

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and ammunition in this case knowingly and not due to mistake or accident. Furthermore, the evidence will show a motive for defendant's possession of the firearm and ammunition charged. Many courts of appeals, including the 10th Circuit, have repeatedly upheld the introduction of past possession of firearms as 404(b) evidence on these very grounds. II. Relevant Facts The government seeks to provide notice of two items of 404(b) evidence not covered by the government's initial Notice. First, on February 1, 2006, the government interviewed Rodney Givens and Raymond Clemens, the cousin and uncle of the victim Terrell McLamb. Both Givens and Clemens stated that in the years leading up to defendant shooting the victim in this case, defendant habitually carried a firearm on his person, usually in his waistband or inside pocket. Defendant made a point of informing those around him that he was armed. Defendant bragged about his involvement in other shootings. Defendant habitually carried a firearm because he was much smaller and younger than the other young men with whom he associated on the street. Second, on November 11, 2002, a bail bondsman named Jason Anderson attempted to apprehend defendant. Defendant fled. In the course of the chase, defendant pulled out a gun, pointed it at Anderson, and said "Fuck you, I'll shoot you." In relation to this conduct, defendant plead guilty to Menacing ­ Real/Simulated Weapon ­ Conspiracy, case number 2002CR5150, in District Court for the City and County of Denver.

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III.

Admissibility Under Rule 404(b)

Although evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show conformity therewith, such evidence is admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Ev. 404(b) (emphases added). Admission of such evidence is vested in the sound discretion of the trial court. United States v. Ramirez, 63 F.3d 937, 942 (10th Cir. 1995). Evidence of other crimes is admissible if four factors are satisfied: (1) the evidence is offered for a proper purpose; (2) the evidence is relevant; (3) the probative value of the evidence is not substantially outweighed by its potential for unfair prejudice (i.e. Rule 403); and (4) upon request, the court provides an appropriate limiting instruction. United States v. Wecker, 72 F.3d 1453, 1469 (10th Cir. 1996); Huddleston v. United States, 485 U.S. 681, 691-92 (1988) (affirming admission of defendant's prior theft to establish knowledge in prosecution for possession of stolen goods). The Tenth Circuit takes an inclusive approach toward the admission of 404(b) evidence, acknowledging that in adopting the rule "Congress was more concerned with avoiding restrictions on the admission of 404(b) evidence than with potential prejudice." United States v. Record, 873 F.2d 1363, 1374 (10th Cir. 1989) (in prosecution for importing marijuana, admission of defendant's prior experience in smuggling drugs admissible to show motive, intent, knowledge, and plan in smuggling drugs in the instant case). The testimony of Givens and Clemens that defendant habitually carried firearms because he was smaller and younger than the street crowd he ran with, and that defendant

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boasted of his possession and use of these firearms, is offered for several proper and highly relevant purposes: (i) to show defendant's knowledge of the ammunition and firearm in this case; (ii) to show defendant's motive for possessing the ammunition and firearm in this case; and (iii) to show that the possession was not accidental or incidental, particularly as to the ammunition recovered in the master bedroom over which defendant shared dominion and control with Rose Burton. The admission of evidence related to defendant's Menacing conviction involving the use of a firearm is likewise admissible. The Tenth Circuit has stated that in joint occupancy cases where the government seeks to prove constructive or joint possession of a firearm, the government must show knowledge in addition to access to the weapon. United States v. Mills, 29 F.3d 545, 54950 (10th Cir. 1994). It is in precisely this situation of shared control such as Mills and the instant case that "[u]se of prior acts to show knowledge is a proper purpose under Rule 404(b) and knowledge is relevant to establish scienter for the possession of a firearm violation." Id. at 549. Courts, including the Tenth Circuit, routinely affirm the admission of "other gun" evidence for similar reasons. The Mills court affirmed the admission of a prior, uncharged firearms possession to show knowledge of the charged guns on property held in joint occupancy. Id. at 548-49. The Eleventh Circuit has held that "the caselaw in this and other circuits establishes clearly the logical connection between a convicted felon's knowing possession of a firearm at one time and his knowledge that a firearm is present at a subsequent time (or, put differently, that his possession at the subsequent time is not mistaken or accidental)." United States v. Jernigan, 341 F.3d 1273, 1281 (2003). In

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upholding the introduction of defendant's prior firearms convictions, the Jernigan court held that prior firearms possession 2, 3, or even 6 years prior to the instant charged offense is not too remote in time. Id. at 1282. In its analysis, the Jernigan court cited to a host of cases from several circuits affirming like decisions. Id. at 1281. In affirming the admission of defendant's prior uncharged gun possessions under Rule 404(b), the D.C. Circuit stated that "[i]n cases where a defendant is charged with unlawful possession of something, evidence that he possessed the same or similar things at other times is often quite relevant to his knowledge and intent with regard to the crime charged." United States v. Cassell, 292 F.3d 788, 793 (2002). As the court succinctly summed up the relevance, "[i]f [defendant] had been standing in an apartment close to a gun and never possessed one before, a jury might find it less likely that his proximity evidenced knowing and intentional possession." Id. at 795. The introduction of both prior uncharged gun possessions and gang activity was affirmed in United States v. Lloyd, 71 F.3d 1256 (7th Cir. 1995). Such evidence was relevant to defendant's motive for possession of the charged firearm. Id. at 1263-64. The court noted that similar 404(b) evidence was admissible even though five or seven years old. Id. at 1264. Even 16 year-old convictions for possession of a weapon by a previous offender and robbery are admissible in a prosecution for federal firearms charges. United States v. Strong, 415 F.3d 902 (8th Cir. 2005). Because defendant argued that he was "merely present" in the location where the firearm was found (i.e. he did not exercise dominion and control over it), his 16 year-old robbery and firearms "prior convictions address the

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material issue of his knowledge of the presence of the firearm and his intent to possess it." Id. at 905. As to the third factor, in performing the balancing test required by Rule 403, a trial court should "give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." Deters v. Equifax Credit Information Services, Inc., 202 F.3d 1262, 1274 (10th Cir. 2000). "Evidence is unfairly prejudicial if it makes a conviction more likely because it evokes an emotional response in the jury or otherwise tends to affect adversely the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged." United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir. 1999) (internal quotation omitted). Application of Rule 403 must be cautious and sparing (Naranjo, 710 F.2d at 1469), as the "exclusion of relevant evidence under Rule 403 is an extraordinary remedy to be used sparingly." K-B Trucking Co. v. Riss Int'l Corp., 763 F.2d 1148, 1155 (10th Cir. 1985) (internal quotation omitted). The appropriate practice is to give the jury a limiting instruction that prejudice is not to influence their verdict. Naranjo, 710 F.2d at 1469. Notably, in all of the cases cited above the introduction of the evidence was affirmed as not unduly prejudicial. The 404(b) evidence sought to be introduced in the instant case does not differ from the range of evidence admitted in the cases above. As to the fourth factor, the government does not oppose an appropriate limiting instruction and the government shall tender a proposed limiting instruction with its proposed jury instructions at the pretrial conference.

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IV.Conclusion Wherefore, the government has provided notice of its intent to introduce evidence pursuant to Fed. R. Ev. 404(b).

Respectfully submitted, WILLIAM J. LEONE United States Attorney

By: s/ Joshua Gramling Stein JOSHUA GRAMLING STEIN Assistant United States Attorney U.S. Attorney's Office 1225 17th St., Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0403 Email: [email protected] Attorney for the United States

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CERTIFICATE OF SERVICE I hereby certify that on this 9th day of February, 2006, I electronically filed the foregoing GOVERNMENT'S SECOND 404(b) NOTICE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addressed:
·

Dana M. Casper [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non- CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: None

s/ Joshua Gramling Stein JOSHUA GRAMLING STEIN Assistant United States Attorney U.S. Attorney's Office 1225 17th St., Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0403 Email: [email protected] Attorney for the United States

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