The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER GRANTING DEFENDANT'S MOTIONS IN LIMINE
On June 8, 2010, defendant Juana Cesivel Garcia was charged in a multi-defendant indictment with (1) possession with intent to distribute at least 5 grams of actual methamphetamine, at least 5 grams of a mixture or substance containing cocaine in the form of crack cocaine, and a mixture or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); (2) intentionally aiding, abetting, counseling, inducing, and procuring the possession with intent to distribute 25.5 grams of actual methamphetamine by concealing the controlled substance underneath her car seat with her feet when law enforcement officers stopped the vehicle in which she was riding, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2(a); (3) intentionally aiding, abetting, counseling, inducing, and procuring the possession with intent to distribute 38.33 grams of a mixture or substance containing cocaine base in the form of crack cocaine by concealing the controlled substance underneath her car seat with her feet when law enforcement officers stopped the vehicle in which she was riding, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2(a); and (4) intentionally aiding, abetting, counseling, inducing, and procuring the possession with intent to distribute 190.48 grams of a mixture or substance containing a detectable amount of cocaine by concealing the controlled substance underneath her car seat with her feet when law enforcement officers stopped the vehicle in which she was riding, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2(a).*fn1
On June 14, 2010, Garcia appeared before the court, together with her co-defendant, Mateo Diaz Morales, and entered a not guilty plea. The court set case management deadlines, directing the government to turn over any discovery in its possession no later than June 21, 2010, and stating that any discovery not turned over to defendant by June 30, 2010 would not be admissible at trial.
On July 6, 2010, the deadline the court set for the filing of motions in limine, defendant filed two motions. First, she moved to exclude a then-unnamed drug trafficking expert witness.*fn2
Second she moved to exclude evidence of a prior conviction she had sustained.*fn3 Defendant based both motions on the fact that neither the expert report nor evidence of the prior conviction was produced to her in discovery before the June 30, 2010 deadline set by the court. The motion seeking to exclude the conviction related was also based on Rule 404(b) of the Federal Rules of Evidence. The government opposed both motions.*fn4
In May 2006, defendant Morales, then and now the husband of defendant Garcia, was incarcerated for drug trafficking. Police officers working on the Vice Narcotics Detail and Special Enforcement Detail of the Burbank Police Department received information from two confidential informants that defendant Garcia had taken over the family narcotics business. Members of the details commenced surveillance of Garcia; they observed her using a vehicle to transport narcotics to customers and employing "counter-surveillance driving to detect/evade law enforcement."*fn5 On May 29, 2006, officers observed Garcia conduct a hand-to-hand drug transaction from her car. Thereafter, Garcia's driving became increasingly erratic causing officers to fear that she was attempting flee. The officers therefore stopped her vehicle. Garcia was observed removing a bag from view and attempting to hide it behind the passenger seat. She gave the officers a fake name. After being confronted with her true identity, Garcia stated that she had no drugs in her possession and consented to a search of the car. The officers found approximately 28 grams of methamphetamine and $300 in cash in Garcia's purse, as well as more methamphetamine and cocaine in a pouch on the passenger seat. The drugs were packaged in small plastic bags for distribution. When the officers asked whether Garcia had drugs at her residence, she said she did not and consented to search of her residence. In her bedroom closet, the officers found a bag of methamphetamine, money, small plastic bags, a digital scale, a small scoop, and scissors. Garcia's two small children were in the room where the drugs and paraphernalia were found. In total, the officers seized 27 grams of methamphetamine, 21 grams of crack cocaine, 19 grams of powder cocaine, and $615 in cash. The police report noted that Garcia was observed during a previous surveillance conducting transactions with her children in the car. On October 20, 2006, Garcia pleaded guilty to felony transportation of a controlled substance for sale and was sentenced to 180 days jail and three years probation.*fn6
On March 10, 2010, acting on information provided by a confidential informant, the Pasadena Police Department set up surveillance at the residence of a female drug trafficker where a suspected drug transaction was to take place. Morales and Garcia, who were under surveillance, drove up to the residence. Morales was driving, Garcia was in the passenger seat, and their two children, then-aged eleven and nine years old, were in the back seat. Morales entered the residence alone and exited carrying a bag. He and his family departed thirty minutes after arriving.
Pasadena police officers conducted a traffic stop of defendants' vehicle for a defective brake light. Morales identified himself as Salomon Diaz and presented a California identification card bearing that name. The officers concluded that Morales appeared nervous and stuttered. Officer Torres, who approached the front passenger side, noted that Garcia appeared nervous and was moving her legs back and forth. Torres saw Garcia move her feet from front to back in a sweeping motion in what appeared to him to be an attempt to conceal something underneath her seat. Torres asked both defendants if they had been arrested before. Garcia said she had been stopped in a car containing a large amount of narcotics, but had been released because she did not know the drugs were present. Morales did not respond.
Morales gave Torres consent to search the vehicle. During a search of Morales's person, Officer Torres found $1,661 of cash in small denominations and two cell phones. Morales falsely stated that the two children were not his. When asked, Garcia said that Morales was her brother-in-law, Salomon Diaz.
A narcotics detection canine alerted to the outside of the car, specifically on the passenger side. The canine lunged at a black fanny pack of the floorboard of the front passenger seat. Office Watties examined the fanny pack and found that it contained methamphetamine, crack cocaine, and powder cocaine. The officers arrested both defendants. On questioning at the station house, Morales admitted that he had lied about his identity. Garcia was searched by a female officer after requesting to use the restroom. The female officers discovered $1,210 in cash in a wallet secreted between her underwear and her pants. The next day, the officers hid the cash seized from each defendant to determine whether the narcotics detection canine would alert to the scent of narcotics on the cash. The canine alerted to the cash taken from each defendant, suggesting that both were in possession of money that had recently been touched by people who had recently been in contact with drugs.
On May 6, 2010, the government filed a criminal complaint against both defendants. On May 10, 2010, they appeared before Judge Paul L. Abrams, who ordered both detained pending trial. The government states that on May 11, 2010, it produced "'a copy of the defendant's prior criminal record.'" This, however, is not supported by the cited exhibits.*fn7 On June 11, 2010, the government filed an information charging each defendant with a prior felony drug conviction under 21 U.S.C. § 851.*fn8 The pleading references Garcia's October 20, 2006 conviction, but includes no additional information regarding the offense.*fn9 On June 22, 2010, government counsel provided written notice that she was "in the process of obtaining reports relating to the prior convictions of [both defendants] to determine whether any of those prior crimes should be admitted under Federal Rule of Evidence 404(b). Once those reports are received, I will produce them to [counsel]."*fn10
The government contends that this letter constituted "written notice that it intended to offer" Rule 404(b) evidence at trial.*fn11 The letter does not support this characterization. Rather, it states that the government was in the process of determining whether it would seek to admit such evidence. The government states that its intent to offer evidence of Garcia's prior conviction "was also previously conveyed to [her] counsel telephonically."*fn12 Given that the June 22, 2010 letter indicates the government had not yet formed an intent to offer evidence of the prior conviction, it is clear that any telephonic communication regarding the subject must have occurred subsequent to that date.
On July 2, 2010, the government notified Garcia: (1) that the government was still not in possession of police reports related to the 2006 conviction; (2) that the reports were a matter of public record and accessible to both parties equally; and (3) that the government would ...