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 FED. R. EV. 404(B) NOTICE

The United States of America, by and through Joshua Stein, Assistant United States Attorney, hereby files this Notice pursuant to Fed. R. Ev. 404(b): I. Factual Background & 404(b) Notice This case arises out of a homicide in Denver. When officers responded to defendant's residence in response to a 911 call, defendant was waiting outside. Defendant stated, inter alia, that he had found an "intruder" on his couch, that he did "what he had to do", and that he did not know who the intruder was. Defendant stated that he could not describe the intruder's appearance. The government seeks to introduce evidence that the victim and defendant were not strangers to each other to generally counter the anticipated affirmative defense of self-defense. More specifically, evidence that these two knew each other well will

Case 1:04-cr-00417-LTB

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undermine defendant's credibility by showing that his statements about an "intruder" were knowingly false. As part of its evidence showing the relationship between the defendant and victim, the government seeks to introduce evidence that both men were members of the "33" (or "Trey-Trey") street gang, both through testimony and through evidence of such gang tattoos as "33" and "33 Gangster"/"33 GC" common to both men. Notably, the government does not seeks to introduce any evidence as to the illegal activities or other characteristics of the "33" gang ­ the government only seeks to introduce evidence that both men were members of the same small street gang and thus not strangers to each other. II. Admissibility Under Rule 404(b) A. General Legal Standard Rule 404(b) provides that evidence of other crimes, wrongs or acts may be admissible "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." 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). The Tenth Circuit embraces an inclusionary approach in evaluating Rule 404(b) evidence, leaning towards admission of such evidence. United States v. Segien, 114 F.3d 1014, 1022 (10th Cir. 1997). 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

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limiting instruction. United States v. Brooks, 161 F.3d 1240, 1243 (citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)). B. First & Second Factors of Proper Purpose and Relevance As to the first and second factors, the evidence of common gang affiliation is being offered for proper reasons and clearly relevant. This evidence contradicts defendant's contemporaneous statements that he had shot an "intruder" whose name he did not know and whose description he could not provide. It furthermore tends to undermine defendant's claim of self-defense ­ the victim was a friend and therefore less likely to be the first aggressor than an unknown intruder. C. Third Factor of Rule 403 Balancing Test 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). Application of Rule 403 must be cautious and sparing. Naranjo, 710 F.2d at 1469. The standard required to exclude relevant evidence under Rule 403 is high. United States v. Dornhofer, 859 F.2d 1195, 1199 (4th Cir. 1988). The possibility of prejudicial effect can "require exclusion only in those instances where the trial judge believes that there is a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence." Id. The appropriate practice is to give the jury

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a limiting instruction that prejudice is not to influence their verdict. Naranjo, 710 F.2d at 1469. The proffered evidence is highly probative of defendant's claim of self-defense and defendant's credibility in asserting self-defense, the central issue at trial. Notably, the government is not seeking to introduce the character or nature of the "33" gang. Instead, the government is simply seeking to introduce the bare facts, corroborated by tattoos common to both men, that defendant and victim were part of the same small circle of close associates and friends and thus not strangers to each other. This greatly minimizes any potential prejudicial effect. The jury is unlikely to "be excited to irrational behavior" such that a limiting instruction will not suffice by the evidence of common gang affiliation ­ the evidence of common gang affiliation is spartan and does not directly speak of specific bad acts. Moreover, such evidence has the potential to cut both ways, as the victim as well as the defendant will be tarred with the same (small) brush. D. Fourth Factor of Appropriate Limiting Instruction As to the fourth factor, the government does not oppose an appropriate limiting instruction. E. Caselaw on Point As the Seventh Circuit has noted, in ruling on this very issue, "[g]ang affiliation is particularly relevant, and has been held admissible, in cases where the interrelationship between people is a central issue." United States v. Thomas, 86 F3d 647, 652-53 (1996) (citing cases and upholding introduction of common gang membership in context of drug

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conspiracy). In a carjacking case, the Tenth Circuit upheld the introduction under Rule 404(b) of the two co-defendant's common gang ties in part because it illuminated the relationship between the two co-defendants and between the co-defendants and a cooperating witness who was also a member of the gang. United States v. Brown, 200 F.3d 700, 708-09 (1999). The Tenth Circuit had previously upheld the admission of gang evidence to "show the basis of the relationship between the defendant and witnesses." United States v. Sloan, 65 F.3d 149, 151 (1995). Moreover, courts have admitted far more prejudicial evidence under Rule 404(b) to show the relationship between a witness and a defendant. In United States v. Fabian, the Second Circuit upheld the admission of ten year-old conviction documents to show a long-standing relationship between a witness and the defendant, "enhancing [the witness'] credibility as a source of information about [defendant]." 312 F.3d 557-58 (2002). While the victim will obviously not be a witness in this homicide case, the relationship between the two undermines defendant's claim of self-defense in general and his specific contention that he shot an unknown intruder. Such evidence should thus be admissible in the same way that gang evidence in the foregoing cases was admissible to show the relationship between two people of vital importance to the case.

In the instant case, defendant's hearsay statements justifying his shooting of the "intruder" are likely to be the only direct evidence supporting his claim of self-defense, the crucial issue at trial. The interrelationship of the two men directly contradicts defendant's statements of self-defense and undermines the possibility of the victim as a

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first aggressor. For these reasons the government seeks to introduce such evidence pursuant to Fed. R. Ev. 404(b) and hereby provides notice thereof.

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 3rd day of January, 2006, I electronically filed the foregoing GOVERNMENT'S FED. R. EV. 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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