U.S. v. Cole

• Decision Date: 30 April 2007
• Docket Number: No. CR 06-2046-MWB.,CR 06-2046-MWB.
• Citation: 488 F.Supp.2d 792
• Parties: UNITED STATES Of America, Plaintiff, v. Justin COLE, Defendant.
• Court: U.S. District Court — Northern District of Iowa

488 F.Supp.2d 792

UNITED STATES Of America, Plaintiff, v. Justin COLE, Defendant.

No. CR 06-2046-MWB.

United States District Court, N.D. Iowa, Eastern Division.

April 30, 2007.

COPYRIGHT MATERIAL OMITTED

Matthew J. Cole, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.

Wallace L. Taylor, Cedar Rapids, IA, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES' MOTIONS IN LIMINE AND THE GOVERNMENT'S RULE 104(a) MOTION FOR RULING ON ADMISSIBILITY OF EVIDENCE

MARK W. BENNETT, District Judge.

                TABLE OF CONTENTS
                I.  INTRODUCTION............................................................795
                      A.  Factual Background..................................................795
                      B.  Procedural Background...............................................796
                 II.  LEGAL ANALYSIS..........................................................797
                      A.  Prior Convictions And Prior Drug Activities.........................797
                          1.  Arguments of the parties........................................797
                              a.  Cole's argument.............................................797
                              b.  The government's argument...................................798
                              c.  Cole's reply................................................799
                          2.  Analysis........................................................799
                              a.  Rule 104....................................................799
                              b.  Rule 404(b).................................................800
                                    i.  Evidence of prior convictions.........................801
                                   ii.  Evidence of other "bad acts"..........................802
                              c.  Res gestae and direct evidence..............................804
                      B.  Allegedly Exculpatory Hearsay Statements............................806
                          1.  Arguments of the parties........................................806
                              a.  The government's argument...................................806
                              b.  Cole's response.............................................807
                          2.  Analysis........................................................807
                              a.  Rule 804(b)(3) analysis.....................................808
                                    i.  Statement against penal interest......................809
                                   ii.  Unavailability of the declarant.......................809
                                  iii.  Trustworthiness.......................................810
                              b.  Rule 607 and 613(b) analysis................................811
                                    i.  The pertinent rules...................................811
                                   ii.  The Buffalo analysis..................................811
                                  iii.  Foundational requirements for Rule 613(b).............812
                                   iv.  Rule 403 balancing....................................813
                          3.  Summary.........................................................814
                      C.  Cocaine Base And Crack Cocaine......................................815
                          1.  Arguments of the parties........................................815
                              a.  The government's argument...................................815
                              b.  Cole's response.............................................815
                

                2.  Analysis........................................................816
                              a.  "Cocaine base" within the meaning of § 841.............816
                              b.  Probative value versus prejudice and confusion..............817
                III.  CONCLUSION..............................................................818
                

In anticipation of the defendant's trial, set to begin on May 7, 2007, on charges of possessing with intent to distribute crack cocaine within 1,000 feet of a school, possessing marijuana, and maintaining premises for drug crimes, the parties have filed various evidentiary motions. The court now enters this ruling on the admissibility of the various categories of evidence in question to assist the parties with their preparations for trial.

L INTRODUCTION

A. Factual Background¹

On or about May 2, 2006, members of the Tri-County Drug Task Force executed a search warrant at defendant Justin Cole's residence in Waterloo, Iowa. At the time that the warrant was executed, Cole and Maurice Robinson were leaving the residence. Both men were detained. In the course of the search of the residence, law enforcement officers found a canister on the kitchen counter that contained 47.58 grams of a substance described by the government as "crack cocaine." The officers also found on a coffee table in the residence a baggie of cocaine residue, marijuana, and "blunts," which the court understands to be hollowed out cigars into which marijuana is stuffed to be smoked.

Cole declined to make any statements to law enforcement officers, but Robinson purportedly told the officers that he did not possess the crack cocaine seized from the kitchen. The government represents that it does not intend to call Robinson at trial, although the government did call Robinson to testify before a grand jury. Robinson purportedly denied before the grand jury that the crack cocaine in the residence was his. Cole, on the other hand, asserts that shortly after Robinson was allowed to leave the residence on the day of the search, he told Tasha Pates, Orenthal Jones, and Marcus Wright that the drugs in the residence were his, not Cole's.

According to the Superseding Indictment subsequently filed in this case, Cole has three relevant prior convictions, all in the Iowa District Court for Black Hawk County: (1) a conviction on or about October 19, 2000, for unlawfully possessing marijuana, a serious misdemeanor under Iowa law; (2) a conviction on or about February 5, 2004, for possessing with intent to deliver crack cocaine, a Class C felony under Iowa law; and (3) another conviction on or about February 5, 2004, for unlawfully possessing marijuana, a serious misdemeanor under Iowa law. The government represents that it intends to offer into evidence in this case only certified copies of the judgments and sentences on these prior convictions.

The government represents that it intends to offer testimony from a cooperating witness that he had known Cole for a few years; that he lived next door to Cole at the time that the search warrant was executed on or about May 2, 2006; that he had used marijuana and cocaine with Cole at Cole's residence prior to execution of the search warrant; that he had observed Cole selling controlled substances and knew that Cole kept his controlled substances either in the kitchen or the bathroom; that Cole had a black scale; that he knows the source of Cole's controlled substances; and that he observed the traffic coming and going from Cole's residence. Finally, Cole was on parole for the February 5, 2004, convictions at the time of the offenses charged in this case, and the government represents that it intends to offer the testimony of Cole's parole officer that Cole had two urinalyses that tested positive for controlled substances, one on January 19, 2006, indicating use of crack cocaine, and one on March 9, 2006, indicating use of marijuana.

B. Procedural Background

A Grand Jury handed down the original two-count Indictment (docket no. 1) in this case on September 7, 2006, naming Justin Cole as the sole defendant. A Grand Jury subsequently handed down a three-count Superseding Indictment (docket no. 20) on December 19, 2006, again naming Cole as the sole defendant. The charges against Cole, as they now stand, are the following: Count 1 charges that, on or about May 2, 2006, Cole knowingly and intentionally possessed with intent to distribute approximately 47.58 grams of cocaine base, commonly known as crack cocaine, within 1,000 feet of a school after having previously been convicted on or about February 5, 2004, of the state felony charge of possessing with intent to deliver crack cocaine, all in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 851, and 860 (possessing with intent to distribute crack cocaine within 1,000 feet of a school); Count 2 charges that, on or about May 2, 2006, Cole knowingly and intentionally possessed an unspecified amount of marijuana after having previously been convicted on or about October 19, 2000, and February 5, 2004, of state serious misdemeanor charges of unlawful possession of marijuana, all in violation of 21 U.S.C. §§ 844 and 851 (possessing marijuana); and Count 3 charges that, on or about May 2, 2006, Cole knowingly opened, maintained, managed, controlled, and made available for use, as a lessee with or without compensation, his residence in Waterloo, Iowa, for the purpose of unlawfully storing, distributing, and using cocaine base, commonly known as crack cocaine, and marijuana, all in violation of 21 U.S.C. § 856(a)(1) and (2) (maintaining premises for drug crimes). Cole pleaded not guilty to these charges on December 28, 2006. A jury trial in this matter is set for a date certain on May 7, 2007.

In anticipation of trial, the parties have filed various evidentiary motions. First, on April 1, 2007, Cole filed his Motion In Limine (docket no. 32), in which he seeks an order excluding evidence of his prior drug convictions and alleged drug activities pursuant to Rule 404(b) of the Federal Rules of Evidence. Next, on April 5, 2007, the government filed its Motion In Limine Regarding Alleged Statements Against Interest (docket no. 33), in which the government seeks an order excluding alleged hearsay statements of Maurice Robinson, who was also present at the house in Waterloo at the time that Cole was arrested, to the effect that the crack cocaine seized at the time was actually his, not Cole's. On April 5, 2007, the government filed, as part of its response to Cole's Motion In Limine, its own Motion In Compliance With Federal Rule of Evidence 104(a) Regarding Government's Request For Pre-Trial Ruling On...