United States v. Johnson

          ORDER DENYING DEFENDANT’S MOTIONS

          CORMAC J. CARNEY UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         The United States has charged Defendant Ronnie Joseph Johnson with one count of armed bank robbery, in violation of 18 U.S.C. § 2113, and one count of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). (See Dkt. 1 [“Indictment”].) The charges arise from the October 15, 2008 robbery of a Citibank branch in Orange, California (the “Citibank robbery”). (Id.)

         Before the Court are seven motions submitted by Defendant. They are:

1. A motion in limine to exclude evidence of other bank robberies. (Dkt. 123.)

2. A motion in limine to exclude expert testimony, phone calls, and certain identifications. (Dkt. 124.)

3. A motion to dismiss the case for pre-indictment delay. (Dkt. 125.)

4. A motion to dismiss the case for vindictive prosecution. (Dkt. 126.)

5. A motion in limine to exclude the government’s cellular telephone expert. (Dkt. 148.)

6. A motion to compel disclosure of the government’s witness list, exhibit list, and transcripts of certain recordings the government plans to introduce into evidence. (Dkt. 149.)

7. A motion to preclude the introduction of phone calls recorded while the Defendant was in custody. (Dkt. 150.)

         The Court has reviewed the motions, the government’s oppositions to the motions, and Defendant’s replies to some of the motions.^[1] For the following reasons, all seven motions are DENIED.

         II. ANALYSIS

         A. Motion in Limine to Exclude Evidence of Other Bank Robberies

         Defendant’s first motion indicates that he believes that the government intends to introduce evidence of six other bank robberies to which Defendant has an alleged connection. (Dkt. 123 at 3 (identifying robberies).) He argues that evidence of those robberies should be excluded under either Rule 403 or Rule 404(b) of the Federal Rules of Evidence. In opposition, the government clarifies that it intends to introduce only evidence from two prior bank robberies, both of which occurred in the nine months preceding the Citibank robbery. Evidence of those robberies should be admitted, the government says, because several characteristics of those robberies match the Citibank robbery, and the previous robberies are therefore probative of Defendant’s presence at the Citibank robbery.

         Under Rule 404(b), evidence of a prior “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(b). The evidence may be admissible, however, for other purposes, including “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Id. Chiefly at issue here is the exception for identity, which “requires that the characteristics of the other crime or act be sufficiently distinctive to warrant an inference that the person who committed the act also committed the offense at issue.” United States v. Perkins, 937 F.2d 1397, 1400 (9th Cir. 1991). When a defendant is charged with a robbery, and prior robberies by the same defendant share “peculiar, unique or bizarre” characteristics with the charged robbery, evidence of the prior robberies does not violate Rule 404(b). U.S. v. Ezzell, 644 F.2d 1304, 1306 (9th Cir. 1981). By contrast, if the robberies only share features that are “so common to most bank robberies as to be entirely unhelpful, ” Rule 404(b) bars the admission of the evidence of the prior robberies. Id.; see also United States v. Luna, 21 F.3d 874, 881 (9th Cir. 1994) (evidence of a prior robbery was inadmissible because all the incidents shared were “generic features of a takeover robbery” like “guns, masks, gloves, bags, ” the use of “profanity, ” a “loud entry, ” and the “abuse of bank employees”).

         Here, the prior robberies from which the government seeks to introduce evidence share sufficiently particular commonalities with the Citibank robbery to justify that evidence’s admission. The government describes eleven commonalities between the two prior robberies and the Citibank robbery:

1. All three robberies were carried out in the morning before 10:00 a.m., the government says, due to Defendant’s preference for robbing banks at a time of day with fewer employees, open vaults, and less customer traffic.

2. All three robberies involved between three and five individuals, including-the ...