United States v. Moffit
| Docket Number | Case No. 2:21-cr-00053-BLW |
| Decision Date | 02 March 2022 |
| Parties | UNITED STATES of America, Plaintiff, v. Gary E. MOFFIT, Defendant. |
| Court | U.S. District Court — District of Idaho |
Traci Jo Whelan, US Attorney's Office, Coeur d'Alene, ID, for Plaintiff.
Gregory Richard Rauch, Law Offices of Magyar, Rauch, & Thie, PLLC, Moscow, ID, for Defendant.
This case is currently set for trial on May 2, 2022. Before the Court are the government's unopposed motion in limine (Dkt. 34) and Defendant Gary Moffit's fully briefed, contested motion in limine (Dkt. 55). For the reasons discussed below, the Court will grant the governments’ motion and grant in part and deny in part Mr. Moffit's motion.
Mr. Moffit is charged with Aggravated Sexual Abuse of a Minor under 12 years of age in violation of 18 U.S.C. §§ 2241(c) and 1153. Dkt. 1. The government alleges that between December 8, 2011, and April 5, 2012, Mr. Moffit sexually abused S.T., who was then 8 or 9 years old.
"Motions in limine are well-established devices that streamline trials and settle evidentiary disputes in advance, so that trials are not interrupted mid-course for the consideration of lengthy and complex evidentiary issues." United States v. Tokash , 282 F.3d 962, 968 (7th Cir. 2002). Still, though, a motion in limine should not be used to resolve factual disputes or weigh evidence. C&E Servs., Inc., v. Ashland Inc., 539 F. Supp. 2d 316, 323 (D.D.C. 2008). Rather, unless the proffered evidence is clearly inadmissible for any purpose, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy, and potential prejudice may be resolved in proper context. Further, rulings on motions in limine are provisional and, therefore, "not binding on the trial judge [who] may always change his mind during the course of a trial." Ohler v. United States , 529 U.S. 753, 758 n.3, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000).
Between 1985 and 2016, Mr. Moffit was convicted of twenty felonies. The government argues that if he testifies at trial some or all of the convictions may be admissible pursuant to Rule 609.
Rule 609(a)(1)(B) applies when the defendant is the witness and the prior conviction at issue "was punishable by death or by imprisonment for more than one year." Evidence of such a conviction "must be admitted ... if the probative value of the evidence outweighs its prejudicial effect." Fed. R. Evid. 609(a)(1)(B).
Rule 609(b), on the other hand, applies "if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later." It requires the court to determine whether the conviction's probative value "substantially outweighs its prejudicial effect." Fed. R. Evid. 609(b)(1).
The Ninth Circuit has established five factors for courts to consider when applying either test. United States v. Alexander , 48 F.3d 1477, 1488 (9th Cir. 1995) ; see also Simpson v. Thomas , 528 F.3d 685, 690, 690 n.3 (2008) (). Those factors are "(1) the impeachment value of the prior crime; (2) the point in time of conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the defendant's credibility." Id. Generally, "[t]he government bears the burden of showing, based on these factors, that the proffered evidence's probative value substantially outweighs its prejudicial effect." Id.
Here, Mr. Moffit has not undertaken the Rule 609 analysis and has not provided the Court sufficient information to determine the admissibility of his prior convictions. He merely argues in a conclusory manner that any probative value of the evidence would be outweighed by the danger of unfair prejudice.1 The Court needs more information to properly apply the law and so will deny Mr. Moffit's request at this juncture.
The government has indicated that it also intends to introduce the following "other act" evidence: first, evidence that Mr. Moffit's car was found on the side of the road on February 20, 2012 and that he was arrested for leaving the scene; and second, evidence that on April 2, 2012, Mr. Moffit was arrested for driving under the influence.
Federal Rule of Evidence 404(b)(1) prohibits using so-called "other act" evidence—evidence of crimes, wrongs, or other acts—"to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed. R. Evid. 404(b)(1). But other acts evidence may be admissible for other purposes, "such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2).
The Ninth Circuit applies a four-part test to determine whether evidence is admissible under Rule 404(b). "Such evidence may be admitted if: (1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charged." United States v. Bailey , 696 F.3d 794, 799 (9th Cir. 2012) (internal citation omitted). "The government has the burden of proving that the evidence meets all of the above requirements." Id. (internal citation and quotation omitted). The Court must exclude evidence that meets this test if the prejudicial impact substantially outweighs the probative value. Id.
However, evidence of other acts that "is ‘inextricably intertwined’ with the charged offense," it is not subject to Rule 404(b) analysis, regardless of whether it can meet the test for admissibility. United States v. Wells , 877 F.3d 1099, 1127 (9th Cir. 2017) (quoting United States v. Beckman , 298 F.3d 788, 793 (9th Cir. 2002) ). "This exception applies when (1) particular acts of the defendant are part of a single criminal transaction, or when (2) ‘other act’ evidence is necessary to admit in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime." Id. (quoting Beckman , 298 F.3d at at 794 ) (cleaned up).
At the outset, the Court must determine whether the contested evidence is "inextricably intertwined" with the charges. It is not.
First, the evidence is not part of a single criminal transaction. The charge at issue in this case concerns an allegation of a single act of sexual abuse. The facts that contemporaneously Mr. Moffit's car was found on the side of the road, he was arrested for leaving the scene, and he arrested for driving under the influence is entirely separate.
Second, the Court is persuaded that the government can offer a coherent narrative of the charged crime without discussing the events of February 20 and April 2. The Court agrees with the government that the evidence would corroborate the statements of S.T. and other witnesses about the timeline of events. But Mr. Moffit's stipulation that he was in the location of the abuse at or near the time it is alleged to have occur also provides corroboration. Unless the government can show that it needs to introduce the evidence at issue to offer a coherent narrative, the evidence is subject to Rule 404(b) analysis.
The government next has the burden to prove that the evidence meets the Ninth Circuit's four-part test for determining whether other act evidence is admissible under Rule 404(b).
The government can show that the other act is not too remote in time, because both incidents occurred contemporaneously with dates of abuse alleged in the indictment. The government similarly meets its burden to prove that the evidence is sufficient to support a finding that defendants committed the other act. See United States v. Lague , 971 F.3d 1032, 1040 (9th Cir. 2020) (). Neither party seems to dispute that the government has obtained evidence—presumably court and law enforcement records—that satisfy that standard.
The government can also show that the evidence tends to prove a material point. See United States v. Lague , 971 F.3d 1032, 1038 (9th Cir. 2020) () (internal quotations and citations omitted)(cleaned up). As discussed previously, the evidence corroborates the recollections of S.T., and other witnesses regarding when Mr. Moffit lived at S.T.’s house and allegedly abused her. That corroboration is a material point, which meets this standard.
However, the Court will nevertheless exclude the evidence at this juncture because the prejudicial impact substantially outweighs the probative value. As discussed above, Mr. Moffit's stipulation that he was in the location of the alleged abuse at or near the time it is alleged to have occur provides the same corroboration that the government gets from introducing the evidence here. The government has neither argued nor shown that the evidence provides a greater degree of corroboration than the stipulation. However, the evidence is undoubtably prejudicial as it requires informing the jury that Mr. Moffit committed other bad acts during the same time frame as the alleged crime here. Until the Court is convinced that the evidence has probative value that the stipulation cannot provide, it will exclude the evidence. Mr. Moffit's motion is granted in this...
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