United States v. Ashford, CR-21-39-G-1

• Court: United States District Courts. 10th Circuit. Western District of Oklahoma
• Writing for the Court: CHARLES B. GOODWIN, United States District Judge.
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. TRACI M. ASHFORD, Defendant.
• Decision Date: 09 August 2021
• Docket Number: CR-21-39-G-1

UNITED STATES OF AMERICA, Plaintiff,
v.
TRACI M. ASHFORD, Defendant.

No. CR-21-39-G-1

United States District Court, W.D. Oklahoma

August 9, 2021

ORDER

CHARLES B. GOODWIN, United States District Judge.

Now before the Court is a Motion in Limine to Admit 911 Call (Doc. No. 38) filed by Plaintiff United States of America. Defendant Traci M. Ashford has responded (Doc. No. 82).

I. The Government's Motion

Defendant has been charged in a one-count Indictment with possession of a firearm despite previously having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), on or about October 6, 2020. See Indictment (Doc. No. 17). This case is set for jury trial on the Court's August 2021 docket.

On October 6, 2020, an individual called 911 to report a domestic incident near a residence in Oklahoma City, Oklahoma. An audio recording of the call was submitted as an exhibit to the Government's Motion. See Doc. No. 38-1 (conventionally filed). On the call, the individual reported a black man in a Thunder basketball jersey with the number zero was outside and pulled a gun out of a silver or “goldish” Chrysler 300. The caller described the gun as a black “long” gun and said after the man pulled it out, he pointed it at a woman as she tried to run down the street. While on the phone, the caller described the man putting the gun back in the Chrysler 300, getting into the car with others, and driving away. The caller said the man who pointed the gun was driving the Chrysler 300.

The Government alleges that when Oklahoma City Police Department (“OCPD”) officers were responding, they observed a silver Chrysler 300 traveling away from the address provided by the caller. The driver was a black male wearing a blue Thunder basketball jersey with the number zero on it. A male passenger (codefendant Darius Head) and a female passenger were in the back seat. The OCPD officer asked if there were any firearms in the vehicle and Defendant, who was driving, stated, “Yeah, they got weapons back there.” Mr. Head put his hands up and looked towards the floorboard. A chamber-loaded black AK-47 rifle was found in the rear passenger side floorboard. A magazine loaded with 41 rounds was located under the driver's seat and two live rounds of ammunition were located in Mr. Head's pocket.

II. Discussion

As noted by the Government's Motion, offering the caller's statements from the 911 call as evidence to prove their truth would generally be precluded by the rule against hearsay in Federal Rules of Evidence 801 and 802. The Government argues that the 911 call discussed above is, however, admissible pursuant to the exceptions to the hearsay rule set forth in Federal Rules of Evidence 803(1) and 803(2). See Gov't's Mot. at 3-8.

A. Federal Rule of Evidence 803(1)

Federal Rule of Evidence 803(1) sets forth a “Present Sense Impression” exception for “[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.” Fed.R.Evid. 803(1).

In evidence law, we generally credit the proposition that statements about an event and made soon after perceiving that event are especially trustworthy because ‘substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation.'” Navarette v California, 572 U.S. 393, 399-400, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) (quoting Fed.R.Evid. 803(1) advisory committee's notes to 1972 proposed rules (emphasis added)). “Unsurprisingly, 911 calls

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