United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge.
the Court is Defendant's Motion in Limine Regarding
404(b) Evidence. Dkt. 32. The Government responds to
Defendant's Motion with its own Motion for Admission.
Dkt. 35. For the following reasons, the Court will partially
grant and partially deny both motions.
defendant in this case, Roy Benitez, has been charged in a
single-count indictment with the Possession of an
Unregistered Firearm, 26 U.S.C. § 5861(d), to-wit, a
Mossberg, Model 88, 12-gauge shotgun, having a barrel less
than 18 inches in length. Dkt. 1. On July 20, 2018, the
Government filed a Second Notice of Intent to Use 404(b)
Evidence (the “Notice”). Dkt. 23. The Government
proffers the following facts in the Notice:
1. During Benitez's sale of the Mossberg shotgun to the
confidential informant and a third-party on July 26, 2017,
the confidential informant and third-party who had
accompanied Benitez to the sale acknowledged just after the
transaction had occurred that they could not purchase
firearms from a pawn shop. Dkt. 23 at 2; Dkt. 44 at 1-2.
2. Roughly one week later, on August 4, 2017, Benitez met
with the confidential informant again at the Walmart on
Overland Road in Meridian, Idaho. Dkt. 23 at 2.
3. At the meeting, Benitez sold the confidential informant an
AR-15 rifle. Dkt. 23 at 2.
4. During the sale, the confidential informant asked Benitez
if Benitez could acquire more short shotguns like the Mossberg
shotgun. Dkt. 23.
5. In response, Benitez said that he could probably get
another short shotgun from his contact, who he described as a
“white boy” that he met during his “time in
juvie.” Dkt. 23 at 2.
objects to the admission of each of the facts described above
under Federal Rule of Evidence 404(b). Dkt. 32. Benitez also
makes arguments premised on Rules 401, 402, and 403. The
Government, despite having filed a Notice indicating its
intent to offer 404(b) evidence, “does not concede that
any of the proposed evidence is subject to Rule
404(b).” Dkt. 35-1 at 2. The Government also argues
that the evidence is admissible under Rules 401, 402, and
Rule of Evidence 404(b)(1) states “[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.” Although Rule 404(b) forbids admitting
evidence of prior bad acts for the purpose of showing that
the defendant has a bad character and is prone to criminal
activity, evidence regarding prior acts may be introduced to
show motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
Fed.R.Evid. 404(b)(2). As such, the United States Court of
Appeals for the Ninth Circuit has held that Rule 404(b) is an
inclusionary rule under which evidence is admissible for one
of the purposes stated in the rule, unless it tends to prove
only criminal disposition. United States v. Meling,
47 F.3d 1546, 1557 (9th Cir. 1995).
prove that the evidence is offered for one of these reasons,
the Government must show that the evidence: (1) is offered to
prove a material element of the current offense; (2) if
admitted to prove intent, is similar to the offense charged;
(3) is based on sufficient evidence; and (4) is not too
remote in time. United States v. Ramirez-Robles, 386
F.3d 1234, 1242 (9th Cir. 2004). “The [G]overnment must
also show that the evidence ...