United States v. Holland

Decision Date30 May 2014
Docket NumberCriminal Action No. 13–cr–33RC
Citation41 F.Supp.3d 82
CourtU.S. District Court — District of Columbia
PartiesUnited States of America v. Kevin Holland, Defendant.

Anthony F. Scarpelli, U.S. Attorney's Office, Washington, DC, for United States of America.

Joseph Roll Conte, Law Offices of J.R. Conte, P.L.L.C., Washington, DC, for Defendant.

Re Document No.: 15,18–22,26


Denying Government's Motions to Admit Evidence Pursuant to Federal Rules of Evidence 404(b) and 609(a)(1); Denying Defendant's Motion for Suppression of Electronic Information Obtained Pursuant to Wiretap; Denying Defendant's Motion for Disclosure of Brady, Giglio, and Jencks Information; Denying Defendant's Motion to Disclose Identities of Each Confidential Informant; Denying Defendant's Motion to Suppress Tangible Evidence; And Denying Defendant's Motion for Discovery of Co–Defendant and Co–Conspirator Statements

RUDOLPH CONTRERAS, United States District Judge


Defendant Kevin Holland is charged with three counts of unlawful distribution of cocaine, one count of conspiracy to distribute and possession with intent to distribute cocaine, and one count of unlawful distribution of heroin, pursuant to 21 U.S.C. § 841(a)(1). Superseding Indictment, Jan. 30, 2014, ECF No. 17. Defendant has filed motions in limine prior to trial, for the: 1) disclosure of identities of each confidential informant, regardless of whether they will testify at trial, 2) disclosure of any co-defendant or co-conspirator statements in advance of trial, 3) disclosure of Brady and Giglio information, and the early production of Jencks material, 4) suppression of electronic information obtained from wiretaps, and 5) suppression of tangible evidence obtained pursuant to a search warrant. The Government has filed motions seeking the admission of Defendant's prior drug offense, pursuant to Fed. R. Evid. 404(b), and admission of Defendant's prior assault and theft conviction, pursuant to Fed. R. Evid. 609(a)(1). The Court addresses each of these motions below.


“While neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence expressly provide for motions in limine, the Court may allow such motions ‘pursuant to the district court's inherent authority to manage the course of trials.’ Barnes v. District of Columbia, 924 F.Supp.2d 74, 78 (D.D.C.2013) (quoting Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) ). Motions in limine are designed to narrow the evidentiary issues at trial.” Williams v. Johnson, 747 F.Supp.2d 10, 14 (D.D.C.2010). Rule 103(d) of the Federal Rules of Evidence mandates that the court must conduct a jury trial to the extent practicable so that inadmissible evidence is not suggested to the jury by any means.” Daniels v. District of Columbia, No. CV 11–1331(BAH), 15 F.Supp.2d 62, 66, 2014 WL 535213, at *2 (D.D.C.2014) (citing Fed. R. Evid. 103(d) ). Importantly, a trial judge's discretion “extends not only to the substantive evidentiary ruling, but also to the threshold question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial.” Barnes, 924 F.Supp.2d at 79 (quoting Graves v. District of Columbia, 850 F.Supp.2d 6, 11 (D.D.C.2011) ).

“In evaluating the admissibility of proffered evidence on a pretrial motion in limine the court must assess whether the evidence is relevant and, if so, whether it is admissible, pursuant to Federal Rules of Evidence 401 and 402.” Daniels , 15 F.Supp.2d at 66, 2014 WL 535213, at *3. A court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Unfair prejudice within its context means an undue tendency to suggest [making a] decision on an improper basis, commonly, though not necessarily, an emotional one.” United States v. Ring, 706 F.3d 460, 472 (D.C.Cir.2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 175, 187 L.Ed.2d 43 (2013) (quoting Advisory Committee's Note Fed. R. Evid. 403 ); see also Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir.1980) (explaining that evidence is unfairly prejudicial “if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case.”) (citations omitted). Under Rule 403, “the court must ‘engage in on-the-spot balancing of probative value and prejudice and ... exclude even factually relevant evidence when it fails the balancing test.” Daniels, 15 F.Supp.2d at 67, 2014 WL 535213, at * 3 (quoting United States v. Moore, 651 F.3d 30, 63 (D.C.Cir.2011) ).

A. Rule 404(b) evidence

The Government seeks the admission of the Defendant's 1996 conviction for a conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base, pursuant to Rule 404(b). Govt.'s Mot. for Evid. Pursuant to 404(b), Jan. 24, 2014, ECF No. 15. Rule 404(b) of the Federal Rules of Evidence governs the admission of other crimes, wrongs, or bad acts of a defendant. The D.C. Circuit has described Rule 404(b) as one “of inclusion rather than exclusion,” United States v. Bowie, 232 F.3d 923, 929 (D.C.Cir.2000), and has explained that it excludes only evidence that “is offered for the sole purpose of proving that a person's actions conformed to his or her character,” United States v. Long, 328 F.3d 655, 661 (D.C.Cir.2003).

Evidence of other crimes, wrongs, or bad acts is admissible under Federal Rule of Evidence 404(b) if offered for a permissible purpose. Such permissible purposes include “proof of intent, motive, opportunity, plan, knowledge, identity or absence of mistake or accident.” United States v. Morrow, 2005 WL 3159572, at *3 (D.D.C. Apr. 7, 2005) ; see also United States v. Pindell, 336 F.3d 1049, 1056 (D.C.Cir.2003) ; United States v. Miller, 895 F.2d 1431, 1436 (D.C.Cir.1990). This Circuit has made clear that Rule 404(b) “was intended not to define the set of permissible purposes for which bad-acts evidence may be admitted but rather to define the one impermissible purpose for such evidence.” Miller, 895 F.2d at 1436. Rule 404(b) thus is not so much a character rule as a special aspect of relevance” because it “does not prohibit character evidence generally, only that which lacks any purpose but proving character.” United States v. Douglas, 482 F.3d 591, 596 (D.C.Cir.2007) (citing Bowie, 232 F.3d at 930 ).

The Court must conduct a two-part analysis to determine admissibility in the Rule 404(b) context. See Miller, 895 F.2d at 1435. First, the Court considers whether the evidence is “probative of some material issue other than character.” United States v. Clarke, 24 F.3d 257, 264 (D.C.Cir.1994) ; Fed. R. Evid. 404(b). Second, if the Court deems the evidence to be relevant, the Court should exclude the evidence only if its probative value “is substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403 ; Long, 328 F.3d at 662. In close cases, the rule tilts toward the admission of the uncharged conduct evidence. See United States v. Johnson, 802 F.2d 1459, 1464 (D.C.Cir.1986) ([T]he balance should be generally struck in favor of admission when the evidence indicates a close relationship to the event charged.”) (quoting United States v. Day, 591 F.2d 861, 878 (D.C.Cir.1978) ).

The Government seeks to introduce evidence of facts and circumstances surrounding Defendant's prior drug offense. In 1996, Defendant pled guilty in the United States District Court for the District of Columbia (Criminal Case No. 94–394–02) to conspiracy to distribute and possess with the intent to distribute 50 grams or more of cocaine base. Def.'s Mot. at 2, ECF No. 15. Defendant here is charged with three counts of unlawful distribution of cocaine, one count of conspiracy to distribute and possession with intent to distribute cocaine, and one count of unlawful distribution of heroin. Superseding Indictment, Jan. 30, 2014, ECF No. 17.

21 U.S.C. § 841(a)(1), pursuant to which Defendant is charged here, makes it unlawful for “any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” (emphasis added). The Government intends to introduce the evidence of Defendant's previous drug offense to show Defendant's “knowing and intentional possession with intent to distribute narcotics in this case.” Govt.'s Mot. for 404(b) evidence, Jan 24.2014, ECF No. 15. At the motions hearing held in this matter on May 20, 2014, the Government asserted that Defendant's prior conviction would establish that he knew how cocaine looked, and knew how to arrange the time, place, and manner of a drug transaction.

In support of this, and in order to establish the probative value of the prior offense, the Government relies largely on the factual proffer presented orally during Defendant's 1995 plea hearing. However, perhaps because Mr. Kevin Holland was a co-defendant in the previous matter with his brother Andre Holland, the Government read only one, anemic factual proffer. Tr. Plea Hearing, at 19–20, Nov. 30, 1995, Govt.'s Supp. to Mot. Seeking 404(b) Evidence, Ex. 1, ECF. No 23. As a result, the factual proffer does not sufficiently distinguish the degree of each brother's involvement in the conspiracy.

The proffer states, for example, that Mr. Kevin Holland scheduled deliveries, and conducted hand-to-hand transactions on three occasions. Tr. Plea Hearing, at 20. However, the proffer adds that the drugs being sold were Andre Holland's, and that on other occasions, he personally scheduled drug deliveries to be simply executed by his brother Kevin. Id . It is thus unclear how involved Mr. Kevin...

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