United States v. Thorne

• Decision Date: 10 January 2020
• Docket Number: Criminal Action No. 18-389 (BAH)
• Parties: UNITED STATES OF AMERICA v. LINWOOD DOUGLAS THORNE, Defendant.
• Court: U.S. District Court — District of Columbia

UNITED STATES OF AMERICA v. LINWOOD DOUGLAS THORNE, Defendant.

Criminal Action No. 18-389 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

January 10, 2020

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

The defendant, Linwood Douglas Thorne, is charged in six counts with multiple firearm and narcotics offenses, including possession with intent to distribute one kilogram or more of heroin and detectable amounts of fentanyl and marijuana, and conspiracy to distribute those illegal drugs, in violation of 18 U.S.C. §§ 924(c)(1) and 922(g)(1), and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), 841(b)(1)(C), 841(b)(1)(D), and 846. See Superseding Indictment (Oct. 23, 2019), ECF No. 28. In advance of trial, which is scheduled to begin on April 13, 2020, see Minute Entry (Oct. 31, 2019), the government has noticed its intent to use the defendant's prior federal felony conviction, in 1999, for conspiracy and possession with intent to distribute cocaine base, for purposes of proving knowledge, intent, and opportunity pursuant to Federal Rule of Evidence 404(b)(2), and for purposes of impeachment pursuant to Federal Rule of Evidence 609, should the defendant choose to testify, see Gov't's Mot. Regarding Rule 404(b) and 609 ("Gov't's Mot. I") at 1, ECF No. 34. Invoking United States v. Sheffield, 832 F.3d 296 (D.C. Cir. 2016), which held that a decade-old possession with intent to distribute Phencyclidine ("PCP") conviction was inadmissible to show knowledge and intent at Sheffield's trial for the same crime involving the same illegal narcotic, id. at 307-08, the defendant has moved to exclude the prior conviction evidence, Def.'s Mot. In Limine Regarding 404(b) and 609 Admissibility ("Def.'s MIL") at 2, ECF No. 37. He argues that, under Sheffield's teaching, because his prior "conviction and conduct occurred more than 20 years before the start of the conspiracy in this case," the probative value of this prior conviction cannot substantially outweigh the risk of unfair prejudice under Rule 403. See id. at 3; see also FED. R. EVID. 403.

Divining whether the split panel decision in Sheffield has shifted the D.C. Circuit's rules for the admissibility of older prior convictions under Rules 403 and 404(b) is a challenge. The defendant posits that Sheffield imposed a bright line excluding all convictions older than a decade, regardless of the conviction's probative value and notwithstanding the lack of textual support in Rules 403 and 404(b) for such a per se staleness limitation. See infra, Section III.B.2. Such a limitation for admissibility of prior convictions under Rule 404(b) would reflect a more stringent admissibility standard even than that set out under the more protective regime in Rule 609, which governs admission of prior criminal convictions for impeachment purposes. This challenge is only compounded by the difficulty of discerning Sheffield's import as to the proof necessary to support the admissibility of any prior conviction for an appropriate purpose under Rule 404(b). See infra, Section III.C.2.

For the reasons discussed below, evidence of the defendant's prior conviction is admissible under Rules 404(b) and 403, but the fulsome trial transcripts underlying the prior conviction proffered by the government must be excluded under Rule 403 and the D.C. Circuit's caution about Sheffield in United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018). Further, the fact of the prior conviction is admissible for purposes of impeachment, should the defendant testify.

Also pending is the defendant's request to exclude evidence of money laundering, see Def.'s Reply to Gov't's Supplemental 404(b) Briefing Related to Money Laundering ("Def.'s Reply II") at 1, ECF No. 66, which the government has noticed its intent to introduce at trial pursuant to Rule 404(b), see Gov't's Supplemental Mot. Regarding Money Laundering Evidence Pursuant to Rule 404(b) ("Gov't's Mot. II"), ECF No. 62. For the reasons explained, the money laundering evidence is inadmissible in the government's direct case.

I. BACKGROUND

Background on the pending charges against the defendant is set out below to inform the analysis of the admissibility of the defendant's prior narcotics trafficking conviction and the government's proffered money laundering evidence.

The government describes as follows the events that led to law enforcement's identification of the defendant as the supplier of heroin to an individual, known as Suspect-1, who made four separate sales of guns and illegal narcotics to an undercover agent ("UC") in August and November 2018. See Gov't's Mot. I at 1, 3.¹ Suspect-1 made his first two sales, of guns, ammunition, and marijuana, to the UC in August. Id. at 4. At the time, Suspect-1 also told the UC that he had a heroin supplier willing to sell kilogram-quantities of heroin. Id. Later, on September 24, 2018, Suspect-1 told the UC that he "believed his supplier to be a millionaire who owned a mechanic shop, an auto-body shop, and a small car dealership." Id. at 5. During conversations in October 2018, Suspect-1 discussed the terms of a heroin transaction with the UC, referring to his heroin supplier as "OG," "Doug" or "Uncle D." Id. at 6 & n.3 (noting that Douglas is the defendant's middle name). On October 18, 2018, Suspect-1 informed the UC thathe had been unable "to speak to 'OG' because 'OG' went on vacation with his significant other to Cancun, Mexico for a week." Id. at 6. Law enforcement subsequently confirmed, consistent with Suspect-1's statement, that the defendant had traveled to Mexico on or about October 16, 2018. Id. at 8.

In November 2018, according to the government, the UC completed two controlled purchases of heroin supplied by the defendant. On November 1, 2018, the UC bought 131 grams of heroin from Suspect-1 for $10,800 at a Wendy's parking lot in Northeast Washington, D.C. Id. at 7. Law enforcement tracking of incoming and outgoing calls on Suspect-1's phone prior to and during this transaction revealed that Suspect-1's supplier was associated with a phone number listed to Dou Perfect, an auto body repair shop located in Clinton, Maryland. Id.

In the hour leading up to the second controlled purchase, on November 29, 2018, law enforcement conducting surveillance observed the defendant leave Dou Perfect in a Jeep Grand Cherokee and then watched the defendant and Suspect-1 interact in the parking lots of a Hip Hop Fish and Chicken and of another restaurant, Mid-Atlantic Crab and Seafood, in Clinton, Maryland. Id. at 10. Afterward, the defendant was seen returning to Dou Perfect. Id. Suspect-1 drove immediately from Clinton to a pre-arranged meeting with the UC in Southeast Washington, D.C., at which meeting the UC paid Suspect-1 $10,300 for handguns and 129 grams of heroin. Id.

After these two controlled purchases, on December 5, 2018, the UC spoke to Suspect-1 about purchasing one kilogram of heroin from "OG." Id. at 11. While discussing this deal, Suspect-1 reported that "OG" did not want to meet with the UC until "OG" had "establish[ed] a relationship with the UC with respect to large quantities of heroin." Id. Also in December, lawenforcement observed the defendant leaving 4215 Foote Street, a duplex residence in Northeast Washington, D.C., in the same Jeep Grand Cherokee he had driven November 29. Id.

Dou Perfect and the Foote Street location were searched pursuant to search warrants on December 19, 2018. Id. at 12. At Dou Perfect, law enforcement seized mail, ammunition, two laptops, and two cars — a GMC Sierra K1500 Denali and a Lexus RX 350. Id. No customer invoices or work orders for auto body work, nor any wage records reflecting that Dou Perfect had employees were found in the search. Id. at 23. At the Foote Street location, from the main bedroom, law enforcement seized: (1) a Black Stanley tool chest containing almost 44 kilograms of heroin, some laced with fentanyl, id. at 12-14; (2) 50 pounds of marijuana in large, opaque bags, id. at 14; (3) clear and colored baggies, id. at 13-14; and (3) six firearms, id. at 13, 15. From the living room, law enforcement seized two more tool boxes, one containing distribution paraphernalia. Id. at 14. Outside, a Maserati sedan was seized. Id.

According to Witness-1, the defendant's girlfriend, who owns the Foote Street duplex and who lived there with her 11 year-old daughter and 18 year-old son, the defendant had resided at 4215 Foote Street for the year or two prior to his arrest. Id. at 15. In a video-taped interview with law enforcement, id. at 15 n.5, Witness-1 denied having access to the bags and tool boxes seized at her apartment and said those items belonged to the defendant, id. at 15. She provided a firearm registration card confirming her right to possess one of the firearms, a pink Walther P22 firearm found underneath a pillow on the main bedroom's bed but denied any knowledge of the other five other firearms, which were found inside bags. Id.

The defendant was initially indicted on two drug and gun charges on December 20, 2018. See Indictment (Dec. 20, 2018), ECF No. 1. While the indictment was under seal, on January 3,2019, the defendant was apprehended at an apartment in Baltimore. Gov't's Mot. I at 16.² The superseding indictment, issued on October 23, 2019, charges the defendant with the following six counts: (1) unlawful possession with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i); (2) using, carrying, and possessing a firearm during a drug trafficking offense under 18 U.S.C. § 924(c)(1); (3) unlawful possession of a firearm and ammunition by a person convicted of a felony, in violation of 18 U.S.C. § 922(g)(1); (4) unlawful possession with intent to distribute marijuana, see 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D); (5) unlawful possession with intent to distribute fentanyl, see id. §§ 841(a)(1) and 841(b)(1)(C); and (6) conspiracy to distribute and possess with intent to distribute...