U.S. v. Smith, No. 00 CR 71.

• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Writing for the Court: Kennelly
• Citation: 181 F.Supp.2d 904
• Parties: UNITED STATES of America v. James SMITH.
• Docket Number: No. 00 CR 71.
• Decision Date: 03 January 2002

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181 F.Supp.2d 904 UNITED STATES of America
v.
James SMITH. No. 00 CR 71. United States District Court, N.D. Illinois, Eastern Division. January 3, 2002.

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COPYRIGHT MATERIAL OMITTED

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Eugene Steingold, Chicago, IL, for James Smith.

Eric J. Wilson, United States Attorney's Office, Chicago, IL, for U.S.

MEMORANDUM OPINION AND ORDER

KENNELLY, District Judge.

James Smith is charged with a single count of making counterfeit currency. According to the government, Smith was arrested in a Niles, Illinois store on November 26, 1999 for suspected shoplifting. He allegedly paid for some items with genuine currency but then took other items for which he had not paid to the customer service desk to request a refund. He was detained by store security and was later arrested by a Niles police officer. A search of Smith turned up a plastic bag with 0.11 grams of cocaine and $888 of suspected counterfeit currency. Smith was then interviewed by United States Secret Service agents; he told them that he had made the counterfeit money at home using a computer scanner and that he had more counterfeit money there. When searching Smith's home, the agents discovered $1,545 in counterfeit currency in a cigar box which also held drug paraphernalia. After Smith was indicted, the government obtained via subpoena bank records which the government claims show that Smith was living on a shoestring at the time of his arrest.

Smith has a number of prior criminal convictions, including a 1990 conviction for robbery, a 1992 conviction for burglary, a 1993 conviction for theft, two 1994 convictions for drug possession, a 1995 conviction for forgery, a 1997 conviction for retail theft, and a 2000 conviction for drug possession.

The government wants to introduce in its case in chief the cocaine, the drug paraphernalia, the prior drug convictions, and the bank records to prove Smith's motive to manufacture the counterfeit currency and his intent to defraud, and if Smith testifies, it wants to use all of his prior convictions for purposes of impeachment. Smith has asked the Court to exclude this evidence.

1. Motive evidence

Smith is charged under 18 U.S.C. § 471, which provides that "[w]hoever, with intent to defraud, falsely makes, forges, counterfeits, or alters any obligation or other security of the United States, shall be fined under this title or imprisoned not more than fifteen years, or both." To act "with intent to defraud" means "to act with the specific intent to deceive or cheat, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to oneself." Eleventh Circuit Pattern Criminal Jury Instructions 125 (1997). In other words, mere possession of counterfeit currency is not a crime. United States v. Olson, 697 F.2d 273, 275 (8th Cir.1983); United States v. Allison, 616 F.2d 779, 782 (5th Cir.1980). To convict Smith, the government will be required to prove that he knew the counterfeit currency was bogus and intended to pass it as genuine currency. See, e.g., United States v. Grady, 665 F.2d 831, 835 (8th Cir.1981); United States v. Lorenzo, 570 F.2d 294, 299 (9th Cir.1978). The former is part and parcel of the government's evidence that Smith manufactured the counterfeit currency himself; the latter is what the government's motion in limine concerns.

Evidence of acts other than those with which the defendant is charged is inadmissible to prove the defendant's propensity to commit crimes but is admissible

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to prove other relevant matters, such as motive and intent. Fed.R.Evid. 404(b). To be admissible under Rule 404(b), the evidence must be directed to establishing a matter in issue other than the defendant's propensity to commit the crime, it must be similar enough and close enough in time to be relevant to the matter in issue, it must be sufficient to support a jury finding that the defendant committed the act, and its probative value must not be substantially outweighed by the danger of unfair prejudice. See, e.g., United States v. Vaughn, 267 F.3d 653, 657 (7th Cir.2001); United States v. Gibson, 170 F.3d 673, 678 (7th Cir.1999).

There is no question that Smith committed the "acts" that the government wants to admit: the drugs were found on his person, the paraphernalia was found in his house, and he was convicted of the drug charges. But these acts by themselves prove nothing other than that Smith committed drug offenses on two occasions separated by five years and that he had the tools for using drugs. What the government is aiming for in offering the other act evidence is an inference: that Smith had a drug habit significant enough to give him a need for money that he could not satisfy legitimately. But though it is conceivable that Smith actually may be a drug addict or at least a habitual user, the evidence that the government offers does not add up to anything of the kind. The fact that Smith had a small amount of cocaine on him and had paraphernalia at home is equally consistent with casual or infrequent use. The drug convictions by themselves do not alter this analysis (we have been told nothing about the circumstances of the convictions or the quantities involved). If this evidence were admissible, it would suggest that whenever a person accused of a non-drug crime is found to be in possession of drugs, the drugs should be admitted to prove motive. But that is not the law. A casual user does not experience the same financial pressures as an addict, and thus without evidence sufficient to support a jury finding of addiction or habitual use, evidence of drug possession or prior drug crimes is not admissible to prove motive.

The government relies on two Seventh Circuit cases that approved a trial court's admission of evidence of drug-related activity to prove motive. In United States v. Cunningham, 103 F.3d 553 (7th Cir.1996), the defendant, a registered nurse, was charged with tampering with syringes that contained Demerol, a painkiller; the Demerol had been replaced with a saline solution. When interviewed by the police she acknowledged that she had...