United States District Court, N.D. California
ORDER GRANTING MOTION TO EXCLUDE EVIDENCE PURSUANT TO FED. R. EVID. 404(B) AND GRANTING IN PART MOTION FOR SEVERANCE
Re: Dkt. Nos. 37, 38
JON S. TIGAR, District Judge.
The Court now has two motions before it. First, defendant Jonathan Mota moves to sever Count Four of the indictment, which charges him with being a felon in possession of a firearm, from the remaining counts. ECF No. 38. He also moves to preclude the introduction of evidence of a bank robbery he committed in December 2006 on the grounds that such evidence is not admissible under Rule 404 of the Federal Rules of Evidence, and that any probative value the evidence has it outweighed by undue prejudice. ECF No. 37
The Court will grant the motion to sever in part, and will grant the 404(b) motion to exclude evidence of the bank robbery.
I. FACTUAL BACKGROUND
Counts One through Three of the indictment in this case charge defendant Jonathan Mota with robbing the Mount Konocti Gas & Mart store in Kelseyville, Lake County, California on January 18, 2013, and killing one of the store clerks with a revolver. ECF No. 19. Count One charges him with a robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951(a); Count Two charges him with use and possession of a firearm during the robbery charged in Count One, in violation of 18 U.S.C. § 924(c); and Count Three charges Mota with use of a firearm causing murder during the robbery charged in Count One, in violation of 18 U.S.C. § 924(j).
Count Four of the indictment charges him with being a felon in possession of a different firearm, a Zastava 7.62 rifle, in violation of 18 U.S.C. § 922(g). That gun was found in a search of his mother's home on January 26, 2013, after the Kelseyville robbery was committed. Defendant describes that gun as "a large weapon that has an appearance similar to an assault rifle without a shoulder stock, and has a 30-round magazine." ECF No. 38 at 2. The Government does not allege that Mota used the Zastava in the robbery.
Mota previously committed a bank robbery in December 2006, for which he was convicted in January 2008. The Government proposes to introduce evidence of the bank robbery under Rule 404(b) of the Federal Rules of Evidence on the theory that it is "inextricably intertwined" with the crimes charged in the indictment, and as evidence of defendant Mota's identity and modus operandi. Defendant has moved to prevent the introduction of this evidence. ECF No. 37.
II. LEGAL STANDARD
Under Fed.R.Crim.P. 14(a), "[i]f the joinder of offenses or defendants in an indictment... appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires."
Pursuant to Rule 404 of the Federal Rules of Evidence, "[e]vidence 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, " Fed.R.Evid. 404(a), but 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).
When other acts evidence is introduced to prove identity, "the characteristics of the other crime or act must be sufficiently distinctive to warrant an inference that the person who committed the act also committed the offense at issue. Conversely, if the characteristics of both the prior offense and the charged offense are not in any way distinctive, but are similar to numerous other crimes committed by persons other than the defendant, no inference of identity can arise." United States v. Luna , 21 F.3d 874, 878-79 (9th Cir. 1994) (quotations and citations omitted). "[W]hen the inference of identity is weak, evidence of prior crimes should be excluded because under such circumstances the prejudicial effect of the evidence inevitably outweighs the probative value of that evidence." United States v. Powell , 587 F.2d 443, 448 (9th Cir. 1978).
A. Severance of the Felon In Possession Charge
Mota moves to sever the trial of Count Four of the indictment, which charges him with being a felon in possession of a firearm. As the Ninth Circuit has recognized, there is a significant risk of prejudice to a criminal defendant when a felon-in-possession charge is tried together with another felony charge. United States v. Nguyen , 88 F.3d 812, 815-16 (9th Cir. 1996). This prejudice arises from the jury being told that the defendant is both someone who possesses guns separately from the commission of the alleged robbery, and that he has previously been convicted of a felony. United States v. Lewis , 787 F.2d 1318, 1323 (9th Cir.) opinion amended on denial of reh'g, 798 F.2d 1250 (9th Cir. 1986). "When trying an ex-felon count together with other counts, the trial judge must proceed with caution' to avoid undue prejudice." United States v. ...