United States v. Pollard
| Decision Date | 19 May 2023 |
| Docket Number | CRIMINAL 20-29 |
| Parties | UNITED STATES OF AMERICA v. COREY POLLARD |
| Court | U.S. District Court — Western District of Pennsylvania |
Presently before the Court are the following pretrial motions filed, by Defendant Corey Pollard:
The government has filed Responses to all of Mr. Pollard's Motions (ECF Nos. 289, 291, 307, & 324). Mr. Pollard also filed a Reply to the government's Response to his Motion to Dismiss for Speedy Trial Violation. ECF No. 326. An evidentiary hearing concerning Mr. Pollard's Motion to Dismiss, filed at Document No. 298, was held on April 26, 2023. ECF No. 327. Each Motion is addressed below.
In Mr. Pollard's Motion in Limine, he seeks an Order excluding any evidence the government may seek to admit under Federal Rule of Evidence 404(b), and he seeks the exclusion of a variety of non-404(b) evidence. Mr. Pollard also argues that exclusion of other evidence is warranted because of lack of authentication and because of the risk of unfair prejudice.
Mr. Pollard's Motion to preclude the government from introducing any Rule 404(b) evidence is premature. Federal Rule of Evidence 404(b) is titled “Other Crimes, Wrongs, or Acts,” and specifies when such evidence is prohibited, when it is permitted, and the prosecution's obligations to notify the defense that it intends to introduce such evidence. Mr. Pollard argues that the government failed to provide notice of any Rule 404(b) evidence; and therefore, if the government intends to introduce such evidence, it should be excluded. Rule 404(b)(3)'s notice requirements provide as follows:
Fed. R. Evid. 404(b)(3). What constitutes “reasonable notice” depends on “the circumstances and complexity of the prosecution.” United States v. Johnson, 218 F.Supp. 3D 454, 462 (W.D. Pa. 2016).
In general, courts have found that, “reasonable notice” under Rule 404(b) is in the range of seven to ten days or one to two weeks prior to trial. United States v. Long-Parham, 183 F.Supp.3d 746, 750 (W.D. Pa. 2016); United States v. Buckner, 2020 U.S. Dist. LEXIS 5485, at *14-15 (M.D. Pa. Jan. 13, 2020). Thus, to determine when disclosure should occur depends on “the circumstances and complexity of the prosecution.” Johnson, 218 F.Supp.3d at 462).
The government states that it is aware of its obligations under Rule 404(b) and that it will provide notice of any Rule 404(b) information it intends to introduce at trial, three weeks before the trial date. The Court finds that disclosure three weeks prior to trial is sufficient to provide Mr. Pollard with time to review and challenge such evidence, if necessary. Having found that the government has not violated its obligation to provide reasonable notice of Rule 404(b) information, Mr. Pollard's Moton to exclude Rule 404(b) evidence is DENIED, as premature.
Mr. Pollard also moves to exclude video surveillance and still photos from a Sheetz gas station; video surveillance and still photos from a Car Right Dealership; photographs, video, audio and any mention of Mr. Pollard's January 21, 2020 arrest; any and all LPR Reader evidence and testimony pertaining thereto; video surveillance from Enterprise Rent-A-Car and/or expert testimony regarding the same; any mention of an Audi SUV vehicle registered to Enterprise Rent-A-Car; and any mention that a Maserati, seen at a shopping center in Delaware, belongs to Mr. Pollard. Mr. Pollard argues that exclusion of such evidence is warranted because it has not been authenticated, it is otherwise inadmissible, and/or it is unfairly prejudicial under Federal Rule of Evidence 403.
Mr. Pollard argues that the identified evidence must be excluded, because such evidence has not been authenticated by the government. He argues that other evidence should be excluded for the additional reasons that such evidence is unreliable and demonstrates inconsistency. For example, Mr. Pollard argues that LPR Reader evidence should be excluded as hearsay, and because it has been shown to be inconsistent and unreliable.
Mr. Pollard's authentication arguments are premature, because the government is not yet required to authenticate its evidence. ” United States v. Mebrtatu, 543 Fed.Appx. 137, 140 (3d Cir. 2013) (quoting United States v. Reilly, 33 F.3d 1396, 1425 (3d Cir. 1994). At trial, “there need be only a prima facie showing, to the court, of authenticity, not a full argument on admissibility.” Reilly, 33 F.3d at 1404. “Once a prima facie case is made, the evidence goes to the jury and it is the jury who will ultimately determine the authenticity of the evidence, not the court.” Id. (). As to timing, “evidence need not be authenticated before the trial has begun.” United States v. Patton, No. 2:19-CR-8, 2022 WL 446394, at *1 (W.D. Pa. Feb. 14, 2022). Accordingly, it is premature to resolve Mr. Pollard's challenge to authenticity of government evidence at this stage of the proceedings.[1] Mr. Pollard's motion in limine to exclude the above categories of evidence is DENIED, as premature.
Mr. Pollard argues that all of the evidence he seeks to exclude is unfairly prejudicial under Federal Rule of Evidence 403. For much of the challenged evidence, Mr. Pollard's claim of unfair prejudice depends, in part, on his argument that the specified evidence has not been authenticated. Mr. Pollard argues that without authentication the jury may be misled into believing that a person depicted on any of the still images or video images is Mr. Pollard.
For the reasons stated above, it is premature to render a ruling under Rule 403 before the government has had the opportunity to fully present its evidence in support of authentication. Rule 403 provides:
The 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. “Evidence is not properly excluded under Rule 403 simply because it is prejudicial, or detrimental to a party's case.” United States v. Ollie, 299 F.R.D. 442, 444 (W.D. Pa. 2014). As the Third Circuit Court explained:
Evidence is unfairly prejudicial only if it has “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” It 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.” A classic example of unfair prejudice is a jury's conclusion, after hearing a recitation of a defendant's prior criminal record, that, since the defendant committed so many other crimes, he must have committed this one too. This is an improper basis of decision, and the law accordingly prohibits introduction of prior convictions to demonstrate a propensity to commit crime.
Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980).
In opposing the Motion in Limine, the government briefly responds to each category of challenged evidence, arguing there is no unfair prejudice to Mr. Pollard. With respect to still and video images from Sheetz and the still images from Car Right, the government avers that the Sheetz images were captured in both the geographic and temporal proximity to the theft of the vehicles from the Car Right location. The government will introduce evidence that it believes will establish that the person depicted in the images is Mr. Pollard. Ultimately it will be up to the jury to resolve the facts from such evidence. Further, based upon the government's proffer, the Court finds no unfair prejudice at this time.
As to evidence associated with Mr. Pollard's January 21, 2020 arrest, the Court has previously denied Mr. Pollard's motion to suppress such evidence. The government may introduce evidence that is directly related to the offenses charged in this case; such is not unfairly prejudicial. The evidence of the police car chase for a stolen vehicle that Mr. Pollard was driving and which ended with his arrest, is not unfairly prejudicial.
Similarly introduction of the LPR Reader evidence does not unfairly prejudice Mr. Pollard. The government argues that the LPR Reader...
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