United States District Court, E.D. California
ORDER DENYING GOVERNMENT'S MOTIONS IN LIMINE
SEEKING TO ADMIT GANG EXPERT TESTIMONY AND EVIDENCE OF
DEFENDANT'S AND HIS ALLEGED CO-CONSPIRATORS' GANG
AFFILIATION (DOC. NOS. 66, 82, 84)
Defendant
Jarvis Thomas is charged by way of a second superseding
indictment with conspiracy to distribute and to possess with
intent to distribute methamphetamine in violation of 21
U.S.C. §§ 841(a)(1), 846 and possession with intent
to distribute methamphetamine in violation of 21 U.S.C.
§ 841(a)(1). (Doc. No. 72.) Pending before the court are
pre-trial motions in limine filed by the government,
seeking to admit the testimony of a gang expert, as well as
evidence relating to incidents dating as far back as 2007
through 2017 to show defendant's and his alleged
co-conspirators' gang affiliations. (Doc. Nos. 66, 82,
84.) On July 17, 2019, those motions in limine came
before the court for hearing. Assistant United States
Attorneys Angela Scott and Thomas Newman appeared on behalf
of the government. Attorney Edward Hodgkins appeared on
behalf of defendant. Having considered the parties'
briefing and having heard oral argument, the court will deny
the government's motions in limine.
DISCUSSION
The
government seeks to elicit the testimony of a law enforcement
gang expert, arguing that the proffered testimony-regarding
the tattoos, symbols, codes, colors, and graffiti of the
Bakersfield West Side Crips gang, as well as the gang's
history, evolution, structure, rules, and customs-is
admissible evidence at the trial of this drug trafficking
case. (Doc. Nos. 66, 82.) Specifically, the government
contends that establishing that defendant and his alleged
co-conspirators were members of the West Side Crips gang
“is relevant to the charged crimes for several reasons,
including because it establishes their motive to participate
in the crimes together, and it explains certain of their
actions during the commission of the crimes.” (Doc. No.
66 at 7.) The government also seeks to introduce evidence of
defendant's and his alleged co-conspirators' gang
affiliations by way of police reports and a video wherein
defendant and/or his alleged co-conspirators purportedly
acknowledged in years past their affiliation with or
membership in the West Side Crips. (Doc. No. 84.) The
government contends that this evidence is “inextricably
intertwined with the charged drug trafficking crimes because
it explains their words and actions on the days in
question.” (Id. at 2.) Alternatively, the
government argues that such evidence is admissible pursuant
to Federal Rule of Evidence 404(b) to demonstrate intent,
knowledge, opportunity, motive, preparation, plan, absence of
mistake, or identity. (Id.)
“Both
the Supreme Court and [the Ninth Circuit] have ruled that
evidence of gang affiliation is admissible when it is
relevant to a material issue in the case.” United
States v. Easter, 66 F.3d 1018, 1021 (9th Cir. 1995);
see also United States v. Smith, No.
2:11-CR-58-JAD-CWH, 2014 WL 6065788, at *3 (D. Nev. Nov. 12,
2014) (“[W]here evidence of gang membership is directly
related to the events in question, it does not constitute
‘other crimes' evidence barred by Rule 404(b).
Instead, evidence of gang affiliation is admissible when it
is relevant to a material issue in the case.”). Thus,
“evidence of gang affiliation should tend to prove an
element of the charged offense, if it is to have general
probative value that outweighs its prejudice.”
United States v. Reyes, No. 11CR1 MRK, 2012 WL
3727995, at *1-2 (D. Conn. May 1, 2012) (internal citation
and quotation marks omitted); see also United States v.
Nelson, 103 F.Supp.2d 512, 513-14 (N.D.N.Y. 1999)
(same). Accordingly, courts have permitted admission evidence
of gang affiliation where such evidence is central to a
material issue in the case as charged. See, e.g.,
Easter, 66 F.3d at 1021 (permitting gang affiliation
evidence where such evidence “was relevant on the issue
of identity, ” and where “identity was a central
issue” in the case”); United States v.
Santiago, 46 F.3d 885, 888-90 (9th Cir. 1995)
(“[T]he record reveals no evidence of any specific,
wrongful acts by either the Mexican Mafia or Santiago that
are unrelated to the murder of [the victim]. Evidence of gang
links to the procurement of the murder weapon and to the
planning of the crime relates directly to the crime for which
Santiago was indicted.”); United States v.
Booth, No. 2:08-CR-00283-RCJ, 2012 WL 3881001, at *2 (D.
Nev. Sept. 6, 2012) (admitting gang affiliation evidence
where the defendant was charged with crimes related to his
membership in a RICO enterprise).
Nonetheless,
pursuant to Federal Rules of Evidence 403 and 404(b), courts
often exclude such evidence from admission at trial
“because evidence of gang membership may be unduly
prejudicial.” Booth, 2012 WL 3881001, at *2;
see also Smith, 2014 WL 6065788, at *3 (“Gang
affiliation evidence, without more, is commonly barred
because under Rule 404(b) it constitutes impermissible
‘[e]vidence of other crimes, wrongs or acts
[introduced] to prove the character of a person in order to
show action in conformity therewith.'”) (citation
omitted). “The term ‘unfair prejudice,' as to
a criminal defendant, speaks to the capacity of some
concededly relevant evidence to lure the factfinder into
declaring guilt on a ground different from proof specific to
the offense charged.” Old Chief v. United
States, 519 U.S. 172, 180 (1997).
Here,
the court has given the government ample opportunity to
explain in what way establishing that defendant and his
alleged co-conspirators are members of the West Side Crips
gang is relevant to prove a material issue in this case or to
establishing an essential element of the charged drug
trafficking crimes. In its papers, the government merely
asserts that proof of membership “establishes their
motive to participate in the crimes together, and it explains
certain of their actions during the commission of the
crimes.” (Doc. No. 82 at 6.) At the hearing on the
pending motions, counsel for the government stated that its
gang expert's testimony would: (1) explain why defendant
and his alleged co-conspirators associate together; and (2),
with respect to an alleged drug transaction that took place
on November 1, 2017, explain why defendant's alleged
co-conspirators waited over an hour for defendant to arrive
and inspect the drugs before purchasing them-specifically,
that defendant was an older West Side Crip gang member and
that younger West Side Crip gang members generally defer to
or seek the approval of older members. However, when pressed
by the court about whether the government's expert would
testify that the West Side Crips gang operates by way of a
hierarchy that requires older members to approve
purchases of narcotics, and whether the expert would opine
that was what occurred on November 1, 2017, when
defendant's alleged co-conspirators allegedly waited for
him to arrive before purchasing the drugs, the government
conceded that the expert would not so testify but instead
would merely testify as to the general structure and history
of the West Side Crips and opine that younger members
generally defer to older members. The government indicated
that, based on such testimony from the law enforcement gang
expert, it would argue that the jury should infer that
defendant and his alleged co-conspirators were acting in a
manner consistent with this general practice on the day in
question.
The
court is not persuaded by the government's arguments.
First, the government has not established that the evidence
it seeks to admit is inextricably intertwined with the drug
trafficking offenses with which defendant is charged.
Evidence is “inextricably intertwined” if it
“may constitute[] a part of the transaction that serves
as the basis for the criminal charge” or “may be
necessary . . . to permit the prosecutor to offer a coherent
and comprehensible story regarding the commission of the
crime.” United States v. Dorsey, 677 F.3d 944,
951 (9th Cir. 2012) (internal citation and quotation marks
omitted). Here, the fact that defendant is an alleged member
of the West Side Crips gang is not a sufficient basis from
which to argue that gang membership is part of the drug
transaction that serves as the basis for the pending criminal
charges. Notably, defendant is not charged in this case with
either a RICO violation or engaging in a continuing criminal
enterprise. Moreover, as discussed, the proffered gang expert
cannot testify that the West Side Crips gang operates by way
of a hierarchy that requires older members to
approve purchases of narcotics. Thus, despite the
government's argument that its expert's testimony
would help the government explain why defendant's alleged
co-conspirators waited over an hour for him to arrive on
November 1, 2017, the government's concession that the
expert will only testify to the general structure and history
of the West Side Crips cuts against its argument in this
regard. Second, such evidence is not admissible under Rule
404(b) because the government has failed to articulate
any theory under which that evidence would be
relevant to proving defendant's motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake or lack of accident. Finally, even were the court to
conclude that the gang expert's testimony and the
extensive evidence of the conspirators' gang membership
the government seeks to introduce at trial had some slight
probative value with respect to a material issue, that value
would pale in comparison to the unfairly prejudicial nature
of such explosive evidence. Evidence of defendant's
alleged membership in the West Side Crips-a subset of the
notorious, nationwide Crips street gang-raises a substantial
concern of prejudice. See, e.g., United States
v. Price, No. 05CR492(NGG), 2009 WL 973370, at *2
(E.D.N.Y. Apr. 10, 2009), as clarified, 2009 WL
1010483 (E.D.N.Y. Apr. 14, 2009) (“The court recognizes
that media reports and portrayals have engraved a violent
image of the Bloods in the popular conscience.”). To
allow the government to attempt to establish an agreement
between defendant and his alleged co-conspirators based on
evidence of defendant's gang membership and the
expert's testimony regarding how the West Side Crips
generally operate “smack[s] of guilt by
association” because “evidence of gang membership
cannot itself prove that an individual has entered a criminal
agreement.” United States v. Garcia, 151 F.3d
1243, 1246 (9th Cir. 1998) (citation omitted).
The
government has failed to establish that the mere fact of
defendant's membership in the West Side Crips has some
relevance in establishing a conspiracy to possess with the
intent to distribute methamphetamine as charged here.
Accordingly, the court will deny the government's motions
in limine seeking authorization to present the
testimony of a gang expert and evidence of the gang
affiliation of the defendant and his alleged
co-conspirators.[1]
IT IS
SO ORDERED.
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Notes:
[1] In light of this ruling, it would
appear to be inappropriate for the prosecution or its
witnesses to refer to the West Side Crips gang at the trial
of this drug trafficking case absent further order of the
court. In addition, the court also observes that should the
defense suggest a lack of association between defendant and
his alleged ...