United States v. Hitesman

         ORDER ADDRESSING THE GOVERNMENT’S MOTIONS IN LIMINE NOS. 1 (AS IT PERTAINS TO EVIDENCE OF IDENTITY), 2, 3, 4, 5, 6 & 7 AND ORDER ADDRESSING DEFENDANT’S MOTIONS IN LIMINE NOS. 1, 2, 3 (AS IT PERTAINS TO EVIDENCE OF IDENTITY), 4, 5, 7, 8, 9, 10, 11, 12, 13 & 14 RE: DKT. NOS. 44, 75

          LUCY H. KOH United States District Judge

         Defendant Daniel Hitesman (“Defendant”) has been charged with committing attempted bank robbery in violation of 18 U.S.C. § 2113(a). A jury trial is set to begin on July 25, 2016, at 9:00 a.m. This Order addresses the Government’s Motions in Limine Nos. 1 (as it pertains to evidence of identity), 2, 3, 4, 5, 6, and 7, and Defendant’s Motions in Limine Nos. 1, 2, 3 (as it pertains to evidence of identity), 4, 5, 7, 8, 9, 10, 11, 12, 13 & 14. ECF No. 44 (“Def. Mot.”); ECF No. 75 (“Gov. Mot.”). Defendant’s Motion in Limine No. 6, which addresses prior law enforcement interactions with Defendant, and the Government’s Motion in Limine No. 1 and Defendant’s Motion in Limine No. 3, as these motions pertain to evidence of knowledge, shall be addressed separately.

         I. PROCEDURAL HISTORY

         On January 8, 2014, a federal grand jury returned a one count indictment charging Defendant with committing attempted bank robbery in violation of 18 U.S.C. § 2113(a), on or about July 23, 2013. ECF No. 1. Defendant made an initial appearance on January 22, 2014, and was appointed counsel on February 5, 2014. ECF Nos. 4 & 7. On March 4, 2015, Defendant filed a motion to suppress historical cell site information. ECF No. 26. The Court denied this motion on the record on March 25, 2015. ECF No. 35. Although the Court recognized that Defendant’s motion had raised “important” issues, the Court concluded that the “motion to suppress should be denied [because] the good faith exception to the exclusionary rule applies.” Id. at 31, 33.

         The parties initially filed motions in limine on June 3 and 4, 2015, in advance of the June 18, 2015 pretrial conference and the June 22, 2015 trial. ECF Nos. 24, 44 & 45. At a June 8, 2015 status hearing, however, counsel for both parties agreed “that sufficient evidence exist[ed] to question the competency of [Defendant] to stand trial.” ECF No. 50 at 1. Thus, pursuant to the parties’ stipulation, the Court vacated the June 18, 2015 pretrial conference and June 22, 2015 trial, and ordered that Defendant undergo a competency examination. Defendant later requested simultaneous testing for his chest pain and follow-up cardiologist appointments at the Metropolitan Detention Center in Los Angeles, California. After the competency examination and cardiology testing and treatment were completed, Defendant was returned to the Northern District of California.

         At a status hearing on April 6, 2016, pursuant to the parties’ stipulation, the Court found Defendant competent to stand trial. ECF No. 72. Accordingly, the Court scheduled a pretrial conference for June 29, 2016, and a jury trial to begin on July 25, 2016. Id.

         On June 15, 2016, the Government filed a new set of motions in limine in advance of the June 29, 2016 pretrial conference. Defendant, on the other hand, renewed the motions in limine that Defendant had filed a year ago on June 4, 2015. On June 22, 2016, each party filed their respective oppositions to the other parties’ motions in limine. ECF No. 81 (“Def. Opp’n”); ECF No. 87 (“Gov. Opp’n”).

         II. LEGAL STANDARD

         “Motions in limine are procedural devices to obtain an early and preliminary ruling on the admissibility of evidence.” BNSF Ry. Co. v. Quad City Testing Lab., Inc., 2010 WL 4337827, *1 (D. Mont. Oct. 26, 2010). A district court’s evidentiary rulings, including its rulings on motions in limine, are “reviewed for an abuse of discretion and should not be reversed absent some prejudice.” E.E.O.C. v. Pape Lift, Inc., 115 F.3d 676, 680 (9th Cir. 1997).

         “To exclude evidence on a motion in limine[, ] the evidence must be inadmissible on all potential grounds.” McConnell v. Wal-Mart Stores, Inc., 995 F.Supp.2d 1164, 1167 (D. Nev. 2014) (internal quotation marks omitted). “Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.” Id. “Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to [sic] trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded.” Id. at 1168.

         III. DISCUSSION

         A. Government’s Motions in Limine

         1. Defendant’s Prior Convictions

         The Government’s Motion in Limine No.1 seeks to introduce evidence of Defendant’s prior bank robbery convictions pursuant to Federal Rule of Evidence 404(b). In particular, the Government contends that “there are six prior bad acts that should be admitted under Rule 404(b): [Defendant’s] conviction on one count of bank robbery in 1992, his conviction on four counts of bank robbery in 1993, and his conviction on one count of bank robbery in 2003.” Gov. Mot. at 2. In addition, if Defendant chooses to testify, the Government’s Motion in Limine No. 2 seeks to introduce evidence of Defendant’s 2003 bank robbery conviction pursuant to Federal Rule of Evidence 609. Conversely, Defendant’s Motion in Limine No. 3 seeks to exclude evidence of Defendant’s prior convictions under Rule 404(b), and Defendant’s Motion in Limine No. 4 seeks to exclude evidence of Defendant’s prior convictions under Rule 609. In the instant Order, the Court examines these four motions in limine together. The Court turns first to the parties’ arguments regarding Rule 404(b).

         a. Rule 404(b)

         Rule 404(b) states as follows:

(1) Prohibited Uses. 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.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial-or during trial if the court, for good cause, excuses lack of pretrial notice.

Fed. R. Evid. 404(b). A district court “may admit evidence of prior bad acts [under Rule 404(b)] 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 some cases, is similar to the offense charged.” United States v. Lozano, 623 F.3d 1055, 1059 (9th Cir. 2010). “If the evidence in question satisfies these [four] requirements, the [district] court must then apply [Federal Rule of Evidence] 403” as a separate test of the evidence’s admissibility. United States v. Luna, 21 F.3d 874, 878 (9th Cir. 1994). Federal Rule of Evidence 403 allows courts to “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403.

         With this legal framework in mind, the Court turns to the first Rule 404(b) factor- materiality. As to materiality, the Government argues that admitting Defendant’s prior bank robbery convictions would be probative of Defendant’s identity. Gov. Mot. at 2 (“[T]hese acts are relevant because they tend to prove a central point in this case: [Defendant’s] identity as the individual who committed the charged offense.”).

         The Court disagrees. On identity, the Ninth Circuit has held that, “[w]hen . . . other acts evidence is introduced to prove identity [under Rule 404(b)], ” 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.” Luna, 21 F.3d at 878-89 (alteration omitted). “[I]f 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.” Id. at 879. Thus, prior convictions have generally been found to be inadmissible where the “common features” behind these convictions and the crime at issue are “largely generic.” United States v. Mota, 2015 WL 580816, *5 (N.D. Cal. Feb. 11, 2015).

         In the instant case, the Government identifies four common features amongst Defendant’s prior convictions: “[i]n each of the earlier robberies, as in [the instant robbery], [D]efendant [1] entered the bank alone; [2] did not wear a mask; [3] walked up to a bank teller and showed a demand note; and [4] told the bank teller that he had a gun, but never actually showed a gun.” Gov. Mot. at 2. As discussed, the Ninth Circuit has determined that these four features are insufficiently distinctive for purposes of Rule 404(b), and are instead generic features prevalent in many bank robberies.

         In United States v. Luna, for instance, the prosecution attempted to introduce prior bad acts evidence by providing the following summary of factors running through a string of four robberies:

(1) they are all take-over robberies; (2) at least one or more robbers wore white surgical gloves, which is [allegedly] very unusual; (3) a white pillow case was used to take the money; (4) one robber stayed in the lobby area and was armed with a handgun; (5) the second robber was the counter jumper who removed money from multiple drawers; (6) the counter jumper grabbed the hair of the tellers in order to force them to the ground and to move them about; (7) the robbers wore long sleeve sweatshirts and sweatpants; (8) one or more of the robbers wore dark women’s nylon stockings over their face; (9) the robbers wore baseball caps; (10) the robbers spoke with a Hispanic accent; (11) the robbers appeared to be between 20-30 years old; (12) a car was usually found abandoned with its engine running near the scene of the robbery; (13) the robbers used an excessive amount of profanity to intimidate and take control of the employees and customers; and (14) the robberies all occurred between 10:30 a.m. and 11:30 a.m.

21 F.3d at 879 (internal quotation marks omitted). The Ninth Circuit, however, found the prosecution’s arguments unavailing and “conclude[d] that the[se] common features . . . were largely generic.” Id. at 881. As the Ninth Circuit explained, the prosecution sought to rely upon certain common components-“guns, masks, gloves, bags”-that were insufficiently distinctive for purposes of establishing identity under Rule 404(b). Id.

         Consistent with Luna, in United States v. Perkins, 937 F.2d 1397, 1400 (9th Cir. 1991), the Ninth Circuit rejected an attempt to introduce prior bad acts evidence where “[t]he robberies all involved a man supposedly wearing various disguises (fake moustache, beard, glasses, etc.), approaching the teller with something to carry away money, handing the teller a note or making a statement requesting money, and warning the teller not to push any buttons.” Such robberies, the Perkins court explained, do “not involve any peculiar, unique, or bizarre conduct so as to constitute a personal signature.” Id. at 1400-01 (internal quotation marks omitted). Rather, the “points of similarity between the . . . robberies were ones which are so common to most bank robberies as to be entirely unhelpful.” Id. at 1401.

         Finally, in United States v. Webb, 466 F.2d 1352, 1353 (9th Cir. 1972), the Ninth Circuit rejected the government’s attempt to admit into evidence an uncharged second bank robbery. As the Ninth Circuit noted, “[t]he [second] robbery resembled the [charged robbery] in two respects only: (1) in the [charged robbery], both robbers wore dark blue ski masks; in the second, [defendant] wore a mask, apparently of a different type; (2) in the [charged robbery], one robber used a pistol; in the second, [defendant] used a similar pistol.” Id. “Neither singly nor together are these elements sufficiently distinctive to warrant an inference that [defendant] was one of the robbers in the [charged robbery]. Many robbers use masks and guns; many guns look alike.” Id.

         Ninth Circuit precedent, as delineated in Luna, Perkins, and Webb, compels the exclusion of Defendant’s prior bank robbery convictions in the instant case for purposes of establishing identity under Rule 404(b). First, as in Perkins, Defendant entered the banks alone. Second, Defendant did not wear a mask, and under Luna, Perkins, and Webb, the decision to use or not to use a mask or disguise is not necessarily sufficiently distinctive for Rule 404(b). Next, Defendant provided the bank teller a demand note, another feature found in Perkins to be insufficiently distinctive under Rule 404(b). Finally, Defendant threatened the bank teller by stating that he had a gun. The mere threat or even use of force, however, is also not sufficiently distinctive for Rule 404(b), as determined by the Ninth Circuit in Luna, Perkins, and Webb.

         As an additional point, the Court notes more generally that attempts to introduce “extrinsic acts evidence [are] not looked upon with favor, and . . . [their] use must be narrowly circumscribed and limited.” United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir. 1985) (internal quotation marks and citation omitted). As the Ninth Circuit has explained, “[o]ur reluctance to sanction the use of evidence of other crimes stems from the underlying premise of our criminal justice system, that the defendant must be tried for what he did, not for who he is.” Id. The Government has cited no authority to suggest that the four specific features identified here-that Defendant went into the bank alone, did not wear a mask, used a demand note, and stated that he had a gun-warrant admissibility under Rule 404(b) as evidence of identity.

         The Government’s reliance upon United States v. Johnson, 820 F.2d 1065 (9th Cir. 1987), does not compel a contrary result. In Johnson, the robber approached the bank teller in multiple robberies to ask for “the same amount of change”: quarters for a $5 bill. 21 F.3d at 882 n.7 (citing 820 F.2d at 1069-70). Unlike the more generic features at issue in Luna, Perkins, Webb, and in the instant case, the Ninth Circuit found a request for $5 worth of quarters to be a distinctive signature. Id.

         The Government also cites, without additional analysis, the Ninth Circuit’s decisions in United States v. Rrapi, 175 F.3d 742 (9th Cir. 1999), United States v. Crenshaw, 698 F.2d 1060 (9th Cir. 1983), United States v. Scheets, 940 F.2d 670 (9th Cir. 1991) (Table), United States v. Quinn, 18 F.3d 1461 (9th Cir. 1994), and Parker v. United States, 400 F.2d 248 (9th Cir. 1968). As with Johnson, the circumstances in these cases are inapposite to the facts of the instant case.

         In Rrapi, the burglaries at issue were committed using a unique set of devices and methods: “[t]hese burglaries involved using crowbars and climbing on the roof, ” with “an accomplice wait[ing] outside” and a third individual “break[ing] into [the] safe[].” Rrapi, 175 F.3d at 750. In Crenshaw, the prior bank robberies were admitted where “defendant aided and abetted the bank robbery by piloting [a] getaway plane.” Crenshaw, 698 F.2d at 1065 n.7 (emphasis removed). In Scheets, defendant’s prior bank robberies all involved “the robber limp[ing] and us[ing] a cane.” Scheets, 940 F.2d at 670, *1. In Quinn, the robber used a weapon that was “specially modified” and which was “found at the home at which [defendant] was arrested.” Quinn, 18 F.3d at 1466. Finally, in Parker, “[t]he method common to all the robberies was that the robber, posing as a hitch-hiker, kidnapped the ‘Good Samaritan’ who offered him a ride and, at gunpoint, required the hostage to drive him to and to accompany him into a bank, and, having supplied him with a pillow case, directed him to fill it with money from the tellers’ cages.” Parker, 400 F.2d at 253 (Thompson, J., concurring).

         None of these unique and signature features are present in the instant case. The robber did not, in Defendant’s prior bank robberies or in the instant attempted robbery, use a crowbar or climb onto the roof (Rrapi), did not use a getaway plane (Crenshaw), did not limp or use a cane (Scheets), did not use a specially modified weapon (Quinn), and did not pose as a hitchhiker and force a hostage at gunpoint to collect money from the tellers’ cages into a pillow case (Parker). Instead, the only features uniting Defendant’s prior bank robberies are generic in nature, and do not suggest a level of distinctiveness necessary for admission under Rule 404(b).

         In sum, Defendant’s prior convictions do not satisfy materiality, the first Rule 404(b) factor for admitting identity evidence under Rule 404(b). As such, the Court need not address the remaining three Rule 404(b) factors: whether the prior convictions are sufficiently close in time, whether the convictions are based upon sufficient evidence, and whether the convictions are similar to ...