United States District Court, D. Montana, Billings Division
P. WATTERS UNITED STATES DISTRICT JUDGE
the Court is Defendant Dante Lamar King's five motions in
limine. (Doc. 39). For the following reasons, the Court
grants King's first, second, third, and fourth motions
and denies the fifth motion. I. Facts On April 19, 2018, King
was indicted for Felon in Possession of a Firearm in
violation of 18 U.S.C. § 922(g)(1). (Doc. 1). The
indictment alleges King possessed a .38 caliber revolver on
February 14, 2018. After King was granted several
continuances, trial was scheduled for April 1, 2019. (Doc.
33). On February 20,2019, the United States provided King
notice of its intent to use Federal Rule of Evidence 404(b)
evidence. (Doc. 40-4). The evidence consists of an alleged
assault King committed on his landlord on December 13, 2017.
(Doc. 45). King allegedly brandished a .40 caliber
semi-automatic pistol during the assault. (Doc. 45 at 3).
in limine are procedural devices to obtain an early and
preliminary ruling on the admissibility of evidence. Judges
have broad discretion when ruling on motions in limine.
Jenkins v. Chrysler Motors Corp., 316 F.3d 663,664
(7th 4 Cir. 2002). A motion in limine should not be used to
resolve factual disputes or weigh evidence. C & E
Services, Inc., v. Ashland Inc., 539 F.Supp.2d 316, 323
(D.D.C. 2008). To exclude evidence on a motion in limine
"the evidence must be inadmissible on all potential
grounds." Ind. Ins. Co. v. K-Mart Corp., 326
F.Supp.2d 844, 846 (N.D. Ohio 2004). Courts have wide
discretion in considering and ruling on motions in limine.
See Luce v. U.S., 469 U.S. 38,41 n.4 (1984).
seeks to exclude evidence (1) that he allegedly possessed a
firearm on December 13,2017; (2) that law enforcement sought
his arrest pursuant to a warrant for another offense; (3)
that he was sought by the Montana Violent Offender's Task
Force; (4) that he has pending state criminal charges; and
(5) that he has previously been convicted of a violent crime
or a crime involving a firearm. The United States contests
King's first motion in limine, but clarifies it will not
introduce evidence of the assault, only evidence that King
allegedly possessed a .40 caliber semiautomatic pistol on
December 13,2017. The United States stipulates to King's
second, third, and fourth motions in limine, but reserves the
right to introduce such evidence if King opens the door
during trial. The United States requests the Court reserve
ruling on King's fifth motion in limine.
Alleged possession of a .40 caliber semiautomatic pistol on
Federal Rule of Evidence 404(b)(1) provides that
"evidence of a crime, wrong, or other act is not
admissible to prove a person's character in order to show
that on a particular occasion the person acted in accordance
with the character." However, the evidence may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. Fed. R. Evid.
404(b)(2). On request by a criminal defendant, the government
must provide reasonable notice before trial of its intent to
use Rule 404(b)(2) evidence. Fed. R. Evid. 404(b)(2)(A-B).
The district court may admit evidence of prior bad acts if it
(1) tends to prove a material point; (2) is not too remote in
time; (3) is based upon sufficient evidence; and (4) in cases
where knowledge or intent is at issue, is similar to the
offense charged. United States v. Lozano,
623 F.3d 1055, 1059 (9th Cir. 2010). But evidence that
satisfies these elements must still be excluded under Rule
403 if its probative value is substantially outweighed by
unfair prejudice. United States v. Banks, 514 F.3d
959, 976 (9th Cir. 2008).
argues he was given insufficient notice of the Rule 404(b)
evidence and the Rule 404(b) evidence is inadmissible prior
bad act evidence. The United States responds its notice more
than a month before trial was reasonable and the Rule 404(b)
evidence tends to prove King knowingly possessed the .38
caliber revolver on February 14,2018.
than a month's notice before trial was reasonable because
it provided King adequate time to examine the evidence, seek
its exclusion with a motion in limine, and/or change trial
strategy or plea negotiations. The United States satisfied
Rule 404(b)'s notice requirement.
United States also satisfies the Lozano elements. In
United States v. Rendon-Duarte, the Ninth Circuit
intimated evidence a defendant previously knowingly possessed
a firearm tends to prove a material point because it makes it
more likely the defendant knowingly possessed a firearm
subsequently. 490 F.3d 1142, 1145 (9th Cir. 2007). The Rule
404(b) evidence is not too remote in time because it occurred
two months prior to the act alleged in the indictment, and
less than a year and a half before trial. Courts routinely
let in evidence older than that. See United States v.
Rude, 88 F.3d 1538, 1549-1550 (9th Cir. 1996) (citing
various cases). The Rule 404(b) evidence is reliable because
two witnesses will testify that King possessed a .40 caliber
semiautomatic pistol on December 13, 2017. United States
v. Johnson, 132 F.3d 1279, 1283 (9th Cir. 1997)
("[The] reliability threshold is not a high one").
Finally, the Rule 404(b) evidence is similar enough to the
crime alleged here, particularly given the United States'
concession to restrict the evidence to testimony that King
possessed a .40 caliber semiautomatic pistol. United
States v. Arambula-Ruiz, 987 F.2d 599, 603 (9th Cir.
the Rule 404(b) evidence is inadmissible because it is more
prejudicial than probative. The United States seeks to prove
King knowingly possessed a .38 caliber revolver on February
14, 2018 by showing that he allegedly knowingly possessed a
.40 caliber semiautomatic pistol on December 13,2017.
Although the details of the alleged crime have not been
presented to the Court, King was apparently arrested while in
a stolen vehicle, in which there was a .38 caliber revolver.
The United States' brief indicates it needs the Rule
404(b) evidence to prove King knew the .38 caliber revolver
was in the vehicle, presumably because King intends to argue
he did not know. Rendon-Duarte may grant the United
States the liberty to use the Rule 404(b) evidence to make
that leap, but here, under these facts, Rule 403 does not.
that a defendant previously committed the crime for which he
is on trial can have a devastating impact on a jury.
United States v. Bagley, 772 F.2d 482, 488 (9th Cir.
1985). Introduction of the prior act presents "a
substantial risk that all the exculpatory evidence will be
overwhelmed by a jury's fixation on the human tendency to
draw a conclusion which is impermissible in law: because he
did it before, he must have done it again."
Bagley, 772 F.2d at 488. The question is whether the
evidence tends to encourage the jury to find guilt from
improper reasoning. United States v. Looking Cloud,
419 F.3d 781, 785 (8th Cir. 2005).
is an inherent tension when the prior act evidence is similar
to the offense charged. On one hand, as demonstrated in
Rendon-Duarte, the similarity makes the evidence
probative. On the other, as demonstrated in
Bagleythe similarity presents a substantial risk
for an improper conviction, i.e., makes the evidence
prejudicial. Weighing those considerations here, the Court
finds the prejudicial effect substantially outweighs the
probative value of the evidence because King's alleged
possession of a .40 caliber semiautomatic pistol on December
13, 2017, perhaps makes it slightly more likely King
knowingly possessed a .38 caliber revolver on February
14,2018, but almost certainly presents a substantial risk the