The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge
ORDER: (1) GRANTING PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE/LIMIT EVIDENCE OF OTHER CONVICTIONS / DETENTIONS, [Doc. No. 28]; (2) DENYING PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY REGARDING ACCURACY OF PLAINTIFF'S MEMORY, [Doc. No. 29]; and (3) DENYING DEFENDANT'S REQUEST TO ADMIT EVIDENCE OF HABIT, [Doc. No. 26].
This is an action under the Federal Tort Claims Act. Plaintiff Jerry Nobles seeks compensatory damages for false imprisonment, assault and battery, and negligence arising out of a detention and assault by a California Border Patrol officer at the San Ysidro Port of Entry. In advance of trial, the parties have filed motions in limine with the Court, seeking the Court's permission to admit or exclude certain evidence. Having considered the parties' arguments, and for the reasons set forth below, the Court GRANTS Nobles's motion in limine to exclude or limit evidence of his certain prior convictions and detentions as irrelevant and impermissible character evidence, DENIES Nobles's motion to exclude testimony of Dr. Kalish, and DENIES the Government's request to admit three of Nobles's misdemeanor convictions and related other acts as evidence of habit.
I. Nobles's motion to exclude prior convictions
Nobles first moves to exclude or limit evidence of his prior convictions and detentions pursuant to Federal Rules of Evidence ("FRE") 402, 403, 404(a), and 609. The Government seeks to admit certain of these convictions as evidence of habit under FRE 406. Because Nobles's prior convictions can be formed into several groups, the Court will discuss each group separately.
A. Offensive words and resisting a public officer
Nobles seeks to exclude evidence of the following misdemeanor convictions: (1) August 15, 1980 conviction for using offensive words in a public place; (2) May 4, 1985 conviction for resisting a public officer; and (3) May 18, 1993 conviction for using offensive words in a public place. The Government opposes the motion, arguing that these convictions as well as several other acts*fn1 by Plaintiff should be admitted as evidence of habit pursuant to FRE 406. The Government contends that this evidence demonstrates Nobles's "reflexive uncooperative and belligerent response to anyone who gives him instructions."*fn2 (United States's Trial Brief, at 5 [Doc. No. 26].)
"Evidence of a person's habit . . . may be admitted to prove that on a particular occasion the person . . . acted in accordance with the habit or routine practice." FED. R. EVID. 406. Habit "describes one's regular response to a repeated specific situation." FED. R. EVID. 406 advisory committee notes (describing conduct that qualifies as habit as "semi-automatic"). "In deciding whether certain conduct constitutes habit, courts consider three factors: (1) the degree to which the conduct is reflexive or semi-automatic as opposed to volitional; (2) the specificity or particularity of the conduct; and (3) the regularity or numerosity of the examples of the conduct." United States v. Angwin, 271 F.3d 786, 799 (9th Cir. 2001), overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc). The burden of establishing that certain conduct qualifies as evidence of habit falls on the party wishing to introduce the evidence. Id. Most importantly, however, because "Rule 406 is an exception to the general exclusion of character evidence under the Federal Rules, . . . courts are somewhat cautious in admitting the evidence." Id.
In this case, the Government has not met its burden of showing that the three prior misdemeanor convictions, even if coupled with the evidence of other acts, qualify as evidence of habit. Turning to the first prong of the analysis, there is no indication that Nobles's prior instances of being "uncooperative" and "belligerent" are sufficiently "reflexive or semi-automatic as opposed to volitional." See id. at 799. While it is true that Nobles was loud and uncooperative on at least twelve prior occasions, those occasions are spread out over a thirty-year period. Viewed in that context, it is hard to say that they were necessarily "semi-automatic," as opposed to simply being a volitional response to a particular situation. See, e.g., Thompson v. Boggs, 33 F.3d 847, 855 (7th Cir. 1994) (concluding, in an excessive force case, that "five unsubstantiated incidents of [police officer's] alleged excessive force, without any evidence of the total number of contacts [that officer] had with citizens or the number of arrests he performed, fail[ed] to satisfy the plaintiff's burden of demonstrating that [the officer's]' 'regular response to a repeated specific situation' was the 'systematic' use of excessive force" (citation omitted)); Jones v. Southern Pac. R.R., 962 F.2d 447, 449-50 (5th Cir. 1992) (concluding, in a suit where a passenger in a pickup truck was struck by train, that evidence of nine prior violations in the course of a 29-year career as a train engineer was not admissible to show the train engineer's habit of driving negligently); United States v. Pinto, 755 F.2d 150, 152 (10th Cir. 1985) ("Four instances of conduct while intoxicated over a period of eight years during which time defendant, by his own assertion, was frequently drunk is insufficient to establish habit."); Reyes v. Missouri Pac. R. Co., 589 F.2d 791, 795 (5th Cir. 1979) (concluding that "four prior convictions for public intoxication spanning a three and one-half year period [were] of insufficient regularity to rise to the level of 'habit' evidence" and were therefore inadmissible in plaintiff's suit for injuries sustained when he was run over by a train while lying on tracks at night). Rather, it appears the Government's evidence attempts to establish Nobles's character for being loud and uncooperative, which is impermissible. See FED. R. EVID. 404(b)(1) ("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."); see also United States v. Yazzie, 188 F.3d 1178, 1190 (10th Cir. 1999) ("Habit evidence may offer a backdoor to proving character for, although evidence an individual routinely acted in a particular manner may be offered to show he acted in conformity on an occasion, those routine practices may also coalesce to provide specific instances proving character.. . .Thus, this potential of establishing the forbidden ultimate fact, proof of action in conformity with one's character, makes its admission highly discretionary and potentially troublesome."); Hale v. Gil, No. 04-CV-2500 BEN (POR), 2008 WL 110901, at *3 (S.D. Cal. Jan. 8, 2008) ("Plaintiff's alleged hostility toward police officers, when drunk and being placed under arrest, is a general disposition of his character. His uncooperative attitude is a matter of choice, and not a reflexive response.").
Moreover, turning to the second prong, the Government has not shown that Nobles's conduct is specific or particular enough. See Angwin, 271 F.3d at 799. As the Government acknowledges, the inquiry under FRE 406 is "highly fact-specific." See id. at 798. But it makes no effort to show how being arrested for using offensive words in public, resisting a public officer, or becoming loud at the pharmacy employee's refusal to fill a prescription is evidence of the same "habit." Rather, as noted above, these appear to be traits of Nobles's general character for being uncooperative and belligerent when given instructions by others, and are therefore inadmissible.*fn3 See FED. R. EVID. 404(b)(1).
Accordingly, the above three misdemeanor convictions and related acts are inadmissible to the extent they amount to "[e]vidence of a crime, wrong, or other act [that the Government is trying to use] to prove [Nobles's] character in order to show that on [this] particular occasion [he] acted in accordance with the character." See FED. R. EVID. 404(b)(1). Because the government asserts no other purpose for attempting to introduce these convictions and other acts, they are therefore not relevant and are not admissible. See FED. R. EVID. 402 ("Irrelevant evidence is not admissible."). Moreover, because these misdemeanor convictions are also very stale and are not probative of character for truthfulness, they are not admissible under FRE 609. See FED. R. EVID. 609(a)(2), (b)(1).
B. Remaining misdemeanor convictions
In addition to the above three misdemeanor convictions, Nobles seeks to exclude five misdemeanor convictions for petty theft and three misdemeanor convictions for alcohol or drug abuse. The Government does not oppose the exclusion of these convictions. Moreover, these convictions are not relevant to any issues in the case, nor are they admissible to ...