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United States v. Benitez

United States District Court, D. Idaho

December 14, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROY BENITEZ, Defendant.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief U.S. District Court Judge.

         INTRODUCTION

         Before 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.

         BACKGROUND

         The 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[1] 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.

         Benitez 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 403.

         LEGAL STANDARD

         Federal 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).

         To 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 ...


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