United States District Court, N.D. California, San Jose Division
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 ...