BARRY J

BARRY J. PORTMAN

Federal Public Defender

JOYCE LEAVITT

Assistant Federal Public Defender

1301 Clay Street, Room 200C

Oakland, CA 94612-5204

Telephone: (510) 637-3500

Counsel for Defendant XXX XXX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

XXX XXX,

Defendant.

)

No. CR XX-XXX-XX

DEFENDANT XXX XXX'S

MOTION IN LIMINE

Hearing: April 18, 1997

9:30 a.m.

BACKGROUND

Mr. XXX XXX has been charged with one count of knowing possession of ammunition by a person with a prior conviction, in violation of 18 U.S.C. ' 922(g)(1). The charge apparently is based upon allegations that on January 15, 1997, Mr. XXX XXX placed a briefcase, which contained the ammunition, a gun and a substantial sum of money, on the x-ray machine at a security checkpoint of the Oakland federal building.[1] Mr. XXX XXX will stipulate that he has a prior conviction that bars him from possessing ammunition under 18 U.S.C. ' 922(g)(1).

For the reasons discussed below, Mr. XXX XXX respectfully asks the Court to strike from the indictment the alleged aliases and the words "felon" and "felony." He also asks the Court to exclude from trial evidence of his prior convictions and arrests, of his statement regarding parole and of the money found in the briefcase.

DISCUSSION

A. THE LANGUAGE IN THE INDICTMENT SHOULD BE AMENDED TO AVOID UNFAIR PREJUDICE

1. The Indictment Should Refer To "Crime Punishable By Imprisonment For A Term Exceeding One Year," Rather Than "Felony," To Reflect The Statute

Federal Rule of Criminal Procedure 7(d) permits the court to strike surplusage from the indictment upon a motion by the defendant. Fed. R. Crim. P. 7(d). The rule protects a defendant against prejudicial or inflammatory allegations that are not relevant or material to the offense charged. United States v. Terrigno, 838 F.2d 371, 373 (9th Cir. 1988). "The inclusion of surplusage must not be allowed to prejudice a defendant in the context of his case." United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir.), cert. denied, 479 U.S. 855 (1986).

The indictment in this case charges that Mr. XXX XXX, "having previously been convicted of a felony," knowingly possessed ammunition, in violation of 18 U.S.C. ' 922(g)(1). But the statute proscribes, in relevant part, possession of ammunition by "any person [] who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. ' 922(g)(1) (emphasis added). Section 921(a) of the same chapter defines terms used in the chapter. "Crime punishable by imprisonment for a term exceeding one year" is not defined as "felony." Id. ' 921(a)(20); see Old Chief v. United States, 117 S. Ct. 644, 647 (1997) (noting definition of "crime punishable by imprisonment for a term exceeding one year" for purposes of 18 U.S.C. ' 922(g)(1)).

The fact that Mr. XXX XXX's suffered a prior felony conviction is irrelevant and immaterial to the offense charged, particularly in light of his stipulation that a prior conviction prohibited him from possessing ammunition under 18 U.S.C. ' 922(g)(1). The term "crime punishable by imprisonment for a term exceeding one year" is more true to the statutory language than is "felony." Cf. United States v. Musacchio, 968 F.2d 782, 787 (9th Cir. 1991) (indictment that sets forth charged offense in statutory language is proper). It also is significantly less prejudicial.

For these reasons, Mr. XXX XXX respectfully asks the Court to strike the word "felony" from the indictment and replace it with "crime punishable by imprisonment for a term exceeding one year." For the same reasons, he asks that "felon" be stricken from the caption of the indictment.[2]

2. The Court Should Strike Mr. XXX XXX's Alleged Aliases From The Indictment

Under Federal Rule of Criminal Procedure 7(d), a defendant is entitled to have alleged aliases stricken from the indictment if they are not relevant to proof of identification or acts charged in the indictment. United States v. Moya-Gomez, 860 F.2d 706, 762 (7th Cir. 1988), cert. denied, 492 U.S. 908 (1989); see also United States v. Hines, 955 F.2d 1449, 1454 (11th Cir. 1992) (use of alias in indictment is permissible only if necessary to connect defendant to acts charged); United States v. Orena, 876 F. Supp. 20, 25 (E.D.N.Y. 1995) (granting defendant's motion to strike defendant's alleged alias from indictment). "It is best to avoid the use of an alias particularly where . . . there seems to be no relevant purpose for including it in the indictment." United States v. Cowden, 545 F.2d 257, 267-68 (1st Cir. 1976), cert. denied, 430 U.S. 909 (1977).

The indictment in this case refers to Mr. XXX XXX as "Mallory Bartrell XXX XXX, aka. Bartrell XXX XXX, aka. Bartrell Jenkins." There is no indication that Mr. XXX XXX used any name other than XXX XXX in connection with the instant offense. No other name appears in the offense and arrest reports, witness statements or the summary of the preliminary investigation. Mr. XXX XXX signed his name as XXX XXX on the waiver of Miranda rights and on a written statement he made. Moreover, identity is not an issue in this case: Mr. XXX XXX does not dispute that he was the person who placed the briefcase containing the ammunition on the x-ray machine.

For these reasons, the alleged aliases are irrelevant to the offense charged, suggestive of other bad acts and highly prejudicial. The Court should strike them from the indictment under Federal Rule of Criminal Procedure 7(d) and Federal Rules of Evidence 401, 404(b) and 403.

B. EVIDENCE OF MR. XXX XXX'S PRIOR CONVICTIONS AND ARRESTS, HIS STATEMENT ABOUT PAROLE AND EVIDENCE THAT MONEY WAS FOUND IN THE BRIEFCASE ALL SHOULD BE EXCLUDED

1. Evidence of Mr. XXX XXX's prior convictions should be excluded

a. Evidence about the name, nature and number of the prior convictions is not admissible to establish the prior-conviction element of 18 U.S.C. ' 922(g)(1)

The United States Supreme Court held earlier this year that a district court may not admit evidence of the name and nature of a defendant's prior conviction to prove the element of prior conviction in a ' 922(g)(1) case if the defendant concedes the fact of the prior conviction. Old Chief v. United States, 117 S. Ct. 644, 647 (1997); see also United States v. Hernandez, No. 95-50181, 97 C.D.O.S. 2369, 2370 (9th Cir. March 31, 1997) (reversing ' 922(g)(1) conviction where district court admitted judgment and commitment and testimony of parole officer identifying prior conviction as burglary despite defendant's offer to stipulate).

Mr. XXX XXX will stipulate that he has been convicted of a crime punishable by imprisonment for a term exceeding one year that prohibited him from possessing ammunition. The stipulation establishes the element of prior conviction but does not identify the name or nature of the prior conviction. Under Old Chief, the government may not introduce evidence about the name, nature or number of Mr. XXX XXX's prior convictions to prove the prior-conviction element of the offense.

b. Evidence about the name, nature and number of the prior convictions is not admissible for impeachment if Mr. XXX XXX testifies at trial

Federal Rule of Evidence 609 provides, in relevant part, that

evidence that an accused has been convicted of [a crime punishable by death or imprisonment in excess of one year under the law under which the witness was convicted] shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused . . . .

Fed. R. Evid. 609(a)(1). The government bears the burden of showing that the probative value of the conviction -- for impeachment purposes -- substantially outweighs its prejudicial effect.[3] United States v. Alexander, 48 F.3d 1477, 1488 (9th Cir.), cert. denied, 116 S. Ct. 210 (1995); United States v. Browne, 829 F.2d 760, 763 (9th Cir. 1987), cert. denied, 485 U.S. 991 (1988).

(i) The Ninth Circuit's five factors weigh in favor of exclusion

The Ninth Circuit has identified five factors that are relevant to the balancing process mandated by Rule 609(a)(1). These factors are: (1) the impeachment value of the prior crime; (2) the point in time of the conviction; (3) the similarity between the past crime and the charged offense; (4) the importance of the defendant's testimony; and (5) the centrality of the defendant's credibility. Id.; United States v. Perkins, 937 F.2d 1397, 1406 (9th Cir. 1991). Balancing these factors, the court must exclude the evidence unless the government shows that the probative value of the conviction substantially outweighs its prejudicial effect. Alexander, 48 F.3d at 1488.

While factors (2) and (3) may favor admissibility,[4] the other three factors strongly support exclusion of the prior-conviction evidence.

With respect to the first factor, the impeachment value of the prior crime, the government will be able to impeach Mr. XXX XXX with the fact that he has been convicted of a crime punishable by a imprisonment for a term exceeding one year. He cannot keep all evidence of his prior convictions from the jury because a prior conviction is an element of the charged offense. Under these circumstances, the name, nature and number of the prior convictions add little, if any, impeachment value to the fact of the convictions.[5] But see Perkins, 937 F.2d at 1406 (prior drug offenses are probative of veracity).

On the facts of this case, factors (4) and (5) also favor exclusion of the prior-conviction evidence. If Mr. XXX XXX takes the stand, he will not deny that he placed a briefcase containing the ammunition on the x-ray machine at the entrance to the Oakland federal building. Cf. Alexander, 48 F.3d at 1489 (defendant's credibility directly at issue where he testified that he did not commit offense); Perkins, 937 F.2d at 1406 (same). Moreover, the jury will know by his stipulation that Mr. XXX XXX has been convicted of a crime punishable by imprisonment for a term exceeding one year. If Mr. XXX XXX takes the stand, he does not intend to testify as to his prior criminal record at all, except to acknowledge that a prior conviction made him unable to possess ammunition. Cf. id. at 1489 (factor (5) favors admissibility where defendant's testimony could reasonably mislead jury to believe that he had had no serious trouble with police).

Balancing these five factors leads to the conclusion that the incremental impeachment value of the name and nature of the prior convictions does not substantially outweigh their prejudicial effect.

(ii) In addition to Ninth Circuit law, Old Chief favors exclusion

While the holding of Old Chief addressed only exclusion of prior convictions for purposes of establishing the prior-conviction element of ' 922(g)(1), its language and logic also support exclusion of prior convictions evidence for impeachment purposes.

Testifying defendants in general "face[] a unique risk of prejudice -- i.e., the danger that convictions that would be excluded under Fed. R. Evid. 404 will be misused by a jury as propensity evidence despite their introduction solely for impeachment purposes." Advisory Committee Notes, 1990 Amendment to Fed. R. Evid. 609. In Old Chief, the Court recognized that in ' 922(g)(1) cases specifically "there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant." Old Chief, 117 S. Ct. at 652.

In the face of such potential for prejudice, a court may "reasonably apply some discount to the probative value of an item of evidence when faced with less risky alternative proof going to the same point." Id. at 651. Thus, the Court in Old Chief held that a court may not refuse less-prejudicial evidence informing the jury about only the existence of a prior conviction to prove the prior-conviction element of ' 922(g)(1). Id. at 647. Here, as well, allowing impeachment with only the existence of a prior conviction is a much less prejudicial but equally probative alternative.

For these reasons, the incremental probative value that comes from informing the jury of the name and nature of Mr. XXX XXX's prior convictions does not substantially outweigh their overwhelming prejudicial effect. Therefore, the government should not be permitted to cross-examine Mr. XXX XXX about the name, nature or number of the prior convictions if he chooses to testify.

c. Evidence about the name and nature of the prior convictions is not admissible as prior-bad-act evidence under Federal Rule of Evidence 404(b)

Federal Rule of Evidence 404(b) provides, in relevant part, that evidence of other crimes may not be used "to prove the character of a person in order to show action in conformity therewith." Fed. R. Evid. 404(b). It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan or knowledge. Id. The Ninth Circuit repeatedly has stated that it does not look with favor upon admission of extrinsic evidence. United States v. Vizcarra-Martinez, 66 F.3d 1006, 1013 (9th Cir. 1995). There is no presumption that evidence of extrinsic acts is either relevant or admissible. United States v. McKoy, 771 F.2d 1207, 1214 (9th Cir. 1985); United States v. Rocha, 553 F.2d 615, 616 (9th Cir. 1977).

The Ninth Circuit has established a four-part test for determining whether evidence of prior bad acts is admissible: (1) the evidence must prove a material element of the charged offense; (2) in certain cases, the prior bad act must be similar to the charged offense; (3) the proof of the prior bad act must be based on sufficient evidence; and (4) the conduct must not be too remote in time. United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 1993). The government bears the burden of proving that the prior-act evidence meets all four requirements and of showing how the evidence is relevant to one or more issues in the case. Id. If the evidence does not pass all parts of the test, it must be excluded. See id. at 604-05 (excluding evidence of prior arrests because they do not tend to prove material element of charged offense).

The evidence of prior convictions in this case does not pass the Ninth Circuit's test. First of all, the prior drug convictions are not at all similar to the charged offense of possession ammunition. Nor is the prior conviction for intimidating a witness. Evidence of prior convictions offered to show knowledge or intent must be similar to the offense charged. Vizcarra-Martinez, 66 F.3d at 1013; cf. Arambula-Ruiz, 987 F.2d at 603 (prior-act evidence offered to show knowledge is admissible as long as the prior act tends to make the defendant's knowledge more probable). Because the prior convictions here are not similar, they are not admissible under Rule 404(b).

Second, the prior convictions are too remote in time for the purpose for which they conceivably could be offered. See United States v. Kindred, 931 F.2d 609, 613 (9th Cir. 1991) (proximity in time of prior conviction depends on purpose for which evidence is admitted). The drug convictions here are two and seven years old. The witness-intimidation conviction also is seven years old. The convictions occurred too long ago to make more probable any material element of the charged offense of possessing ammunition. If Mr. XXX XXX had possessed drugs on the day of the offense, that possession could be relevant to his knowledge of the ammunition. See United States v. Butcher, 926 F.2d 811, 816 (9th Cir.), cert. denied, 500 U.S. 959 (1991). But his conviction for possessing drugs two and seven years ago cannot support an inference that he knew about the ammunition at the time of the offense. Cf. id. at 815 (drugs found in "close proximity" to weapon supported inference that defendant had knowledge of weapon).

For these reasons, Mr. XXX XXX submits that the government has not shown and cannot show that the prior-conviction evidence passes the Ninth Circuit's test for admissibility.[6] Further, the evidence is highly prejudicial and may be excluded under Federal Rule of Evidence 403. Old Chief, 117 S. Ct. at 651 (404(b) prior-conviction evidence must be analyzed under 403); Arambula-Ruiz, 987 F.2d at 602 (same).

Federal Rule of Evidence 403 provides for the exclusion of relevant evidence when the danger of unfair prejudice substantially outweighs the probative value of the evidence. "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." Id. at 650. The government bears the burden of showing both that the proffered evidence is relevant to an issue in the case and that its probative value is not substantially outweighed by the danger of unfair prejudice to the defendant. United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987).

Here, Mr. XXX XXX's prior drug convictions have no legitimate probative value for the instant charge of possession of ammunition. Because the prior convictions are from 1990 and 1995, they cannot support an inference that Mr. XXX XXX knowingly possessed the ammunition in 1997. The "logical nexus" that some courts have assumed between guns and drug trafficking[7] breaks down where, as here, the drugs were not "inextricably intertwined" with the weapons or found in "close proximity" to them. Cf. Butcher, 926 F.2d at 815-16 (in gun-possession case, admitting 404(b) evidence of large quantity of drugs found in briefcase in car where gun was found); cf. United States v. Blackstone, 56 F.3d 1143, 1145 (9th Cir. 1995) (evidence that defendant possessed marijuana for personal use at time of offense is not relevant to knowing possession of weapon). Mr. XXX XXX's two- and seven-year-old drug convictions are not connected with the charged offense so as to support an inference of knowing possession of ammunition.

In addition, the admission of the prior convictions creates a great risk of prejudice. Revealing the name and nature of these offenses in Mr. XXX XXX's trial for possessing ammunition would inevitably "lure a juror into a sequence of bad character reasoning." Old Chief, 117 S. Ct. at 652. Specifically, a juror hearing about these prior convictions likely would infer that Mr. XXX XXX is a drug-trafficking criminal and therefore is more likely to have possessed the ammunition for which he is on trial.

This type of propensity reasoning is prohibited by Federal Rule of Evidence 404(b). Admission of evidence that would encourage this impermissible reasoning "is particularly prejudicial where, as here, the proffered evidence connects a party with a highly charged public issue, such as narcotics." Blackstone, 56 F.3d at 1146 (internal quotation marks and ellipses omitted).

For these reasons, evidence of the name, nature and number of Mr. XXX XXX's prior convictions, even if admissible for a purpose other than showing his criminal character, must be excluded because of their negligible probative value and their great potential for undue prejudice.

2. Evidence of Mr. XXX XXX's prior arrests should be excluded under Rule 404(b)

The government has indicated that it intends to introduce evidence of Mr. XXX XXX's prior arrests under Rule 404(b).[8] The same four-part test and Rule 403 analysis discussed above applies to evidence of prior arrests. See Arambula-Ruiz, 987 F.2d at 604-05 (excluding evidence of prior arrests for gun-possession and alien charges because evidence does not tend to prove material element of charged drug offense). Under the Ninth Circuit's standard, the prior-arrest evidence should not be admitted.

Neither drug offenses nor vehicle violations nor obstructing police charges are at all like the charge of possession of ammunition in this case. Evidence of prior arrests for these offenses therefore should be excluded.

Although Mr. XXX XXX's arrest for assault with a firearm bears some similarity to the charged offense of possession of ammunition, it must be excluded because: (1) the fact of an arrest is not sufficient to establish the underlying conduct; (2) the arrest is too remote in time; and (3) the evidence is exceedingly prejudicial. These issues will be discussed in turn.

First, prior-bad-act evidence may be admitted only if the government provides "sufficient evidence to support a finding by the jury that the defendant committed the similar act." Huddleston v. United States, 485 U.S. 681, 685 (1988); Arambula-Ruiz, 987 F.2d at 602-03. While a conviction constitutes sufficient evidence of the underlying conduct for 404(b) purposes,[9] the Ninth Circuit has never held that an arrest, standing alone, is sufficient. See United States v. Basinger, 60 F.3d 1400, 1408 (9th Cir. 1995) (testimony from officer who searched and arrested defendant is sufficient to establish prior bad act); United States v. Hinton, 31 F.3d 817, 823 (9th Cir. 1994) (testimony of victim is sufficient), cert. denied, 115 S. Ct. 773 (1995); United States v. Houser, 929 F.2d 1369, 1373 (9th Cir. 1990) (testimony from someone directly involved is adequate); see also United States v. Lopez-Martinez, 725 F.2d 471, 472 (9th Cir.) (government presented testimony of DEA agent about prior arrest), cert. denied, 469 U.S. 837 (1984); United States v. Rocha, 553 F.2d 615, 615 (9th Cir. 1977) (evidence admitted of defendant's prior arrest and trial, which ended in acquittal).

In this case, Mr. XXX XXX apparently was arrested in 1993 for assault with a firearm. The charges apparently were dismissed. The government has not indicated that it has or intends to introduce any evidence of the alleged assault other than the fact that Mr. XXX XXX was arrested. The arrest, by itself, will not support a finding that Mr. XXX XXX committed an assault with a firearm, especially in light of the fact that the charges were dismissed. For this reason alone, the evidence must be excluded.

Second, this arrest took place in 1993. As discussed above, a prior bad act must be recent enough to have some relevancy to the element. An arrest that occurred more than three years before the charged offense simply has no bearing on whether the defendant knowingly or intentionally possessed a firearm at the time of the charged offense. Cf. United States v. Moorehead, 57 F.3d 875, 878 (9th Cir. 1995) (no abuse of discretion to admit under 404(b) testimony of defendant's roommates that they saw him with gun for several weeks before offense; testimony was direct evidence of defendant's knowledge of gun). Evidence of Mr. XXX XXX's assault arrest thus is inadmissible because it is too remote in time.

Finally, the evidence should be excluded because it is extremely prejudicial. In Old Chief, the Supreme Court recognized the substantial prejudice that arises when the government seeks to introduce evidence of similar prior bad acts, especially those involving guns, in a ' 922(g)(1) case.

Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious, and Old Chief sensibly worried that the prejudicial effect of his prior assault conviction, significant enough with respect to the current gun charges alone, would take on added weight from the related assault charge against him.

Old Chief, 117 S. Ct. at 652. Admission here of Mr. XXX XXX's prior arrest for assault with a firearm poses just such a grave and obvious risk of prejudice.

With all the arrests, and especially with the cumulative effect of all the arrests, there is a grave risk that the jury would misuse the evidence to find Mr. XXX XXX guilty for either or both of two improper reasons. Specifically, the jury could convict him based on a negative emotional reaction to the prior bad acts or to punish him for the prior bad acts for which he has not otherwise been punished. See id. at 650 (unfair prejudice means an undue tendency to suggest decision on an emotional basis or for crimes other than those charged).

Moreover, admission of the arrest evidence creates a serious risk that the jury will use the evidence for an improper character or propensity purpose. Under Rule 404(b), the government may not use a defendant's alleged prior bad acts "to establish a certain character type in order then to prove that the defendant committed the act in question." United States v. Rodriguez, 45 F.3d 302, 307 (9th Cir. 1995).

Thus, the Ninth Circuit has held that a state court erred by admitting "other act" evidence of the defendant's knife collection in a murder-by-knife case. McKinney v. Rees, 993 F.2d 1378, 1381-83 (9th Cir.), cert. denied, 510 U.S. 1020 (1993). The inference that because the defendant owned a knife prior to the offense he must have owned a knife at the time of the offense is "impermissible propensity inference based on other acts offered to prove character." Id. Similarly, the government here may not use evidence that Mr. XXX XXX used a gun in the past to argue that he must have known that he had a gun at the time of the offense. Nor may it use evidence of the fact, number or nature of Mr. XXX XXX's prior arrests to argue that his general propensity for lawlessness suggests that he committed the instant offense.

Finally, admission of the prior arrests should be excluded on the grounds that it will confuse the jury and cause undue delay. Fed. R. Evid. 403. Proving the underlying acts, which occurred one to five years ago, necessarily will take substantial time. The more time it takes, the more distracted the jury will be from the charged offense and the sole issue before it: Whether Mr. XXX XXX possessed the ammunition. For these reasons as well, the evidence should be excluded under Rule 403.

In sum, the prior-arrest evidence is not admissible under the Ninth Circuit's four-part test. It is not probative but is extremely prejudicial. For these reasons, evidence of Mr. XXX XXX's prior arrests should be excluded under Federal Rules of Evidence 404(b) and 403.

3. Evidence of Mr. XXX XXX's statement regarding parole should be excluded

There is evidence that Mr. XXX XXX told Federal Protective Service Police Officer Jeffrey Kang "that he had just been discharged off of parole." Because this statement is irrelevant to the charged offense, suggestive of a prior bad act and highly prejudicial, it should be excluded. Any other reference to Mr. XXX XXX's parole status likewise should be excluded.

First, the evidence is irrelevant. Evidence is relevant only if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Evidence that is not relevant is not admissible. Fed. R. Evid. 402. In this case, Mr. XXX XXX's parole status simply does not make more or less probable any fact of consequence. Cf. Old Chief, 117 S. Ct. at 649 (defendant's prior conviction was relevant to prior-conviction element of ' 922(g)(1)).

Second, the evidence suggests a prior conviction, or at least a prior bad act. For all the reasons discussed above, prior-conviction and prior-bad-act evidence should not be admitted in the government's case-in-chief or for impeachment. Under Federal Rules of Evidence 404(b), 609 and 403, the Court should exclude evidence about Mr. XXX XXX's parole status.

Finally, the prejudicial effect of the parole-status evidence substantially outweighs any probative value it may have. To the extent Mr. XXX XXX's parole status is probative of any issue in this case, it would be probative of the prior-conviction element of the offense. Mr. XXX XXX has stipulated to this element of the offense. Thus here, as in Old Chief, the Court must conclude that the risk of unfair prejudice from the evidence offered to prove the prior-conviction element substantially outweighs the discounted probative value of such evidence. Id. at 655; see also United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir. 1994) (in ' 922(g)(1) case where defendant stipulated to prior-conviction element, admission of parole certificate was clear error because it improperly focused jury's attention on issues not probative of elements of offense), cert. denied, 115 S. Ct. 1804 (1995); cf. United States v. Pace, 10 F.3d 1106, 1116 (5th Cir. 1993) (citing cases where district court erroneously admitted evidence from which jury could infer that defendant is on probation), cert. denied, 511 U.S. 1149 (1994).

For these reasons, the Court should exclude evidence of Mr. XXX XXX's parole status.

4. Evidence of the money found in the briefcase should be excluded

The government found approximately $5,800 in the briefcase containing the ammunition that Mr. XXX XXX placed on the x-ray machine. This evidence is irrelevant to any fact of consequence in this case. The fact that Mr. XXX XXX had $5,800 does not make it more or less probable that he possessed ammunition.

To the extent that the money evidence is relevant at all, it nonetheless should be excluded under Rule 403 because it is substantially more prejudicial than probative.

The inflammatory combination of a loaded gun and a large sum of money is likely to distract the jurors from the charged offense of possessing ammunition. Even without the evidence of Mr. XXX XXX's prior drug offenses, jurors are too likely to link the $5,800 cash with the gun and conclude that Mr. XXX XXX is an armed drug dealer. See, e.g., United States v. Crespo de Llano, 838 F.2d 1006, 1018 (9th Cir. 1987) ($6,000 in cash is probative of drug trafficking); United States v. $149,442.43 in U.S. Currency, 965 F.2d 868, 876 (10th Cir. 1992) (large amount of cash is "tool of the [drug] trade"). If the Court admits evidence about the prior drug offenses, the likelihood of prejudice will be overwhelming.

Prejudice from the money-gun-drug connection may come in three forms. First, admission of the money evidence is likely to confuse the jury by shifting its focus from the charged offense of possession of ammunition to irrelevant issues of the source and purpose of the money. See Fed. R. Evid. 403 (evidence may be excluded because of danger of confusion of issue or misleading jury). Second, the money evidence, in the context of this case, is likely to lead the jury to make impermissible inferences about Mr. XXX XXX's character that very well may lead it to convict him based on its perception of his propensity for criminal conduct. Such inferences are prohibited under Federal Rule of Evidence 404(b). Third, the evidence is likely to lead the jury to find Mr. XXX XXX guilty based on either its emotional reaction to the combination of money, drugs and guns or its desire to punish Mr. XXX XXX for inferred criminal conduct that he is not charged with committing. See Old Chief, 117 S. Ct. at 650 (undue prejudice means tendency to suggest decision based on emotion or desire to punish for uncharged conduct). As discussed throughout this motion, prejudice is any of these forms, alone or in combination, warrants exclusion of the evidence.

Because of the minimal or non-existence relevance and probative value and the great likelihood of prejudice, the evidence of the money should be excluded under Federal Rules of Evidence 403 and 404(b).

CONCLUSION

For the reasons stated above, Mr. XXX XXX respectfully asks the Court to grant his motion in limine and: (1) strike the alleged aliases and references to "felon" and "felony" from the indictment; (2) exclude evidence of Mr. XXX XXX's prior convictions and arrests; (3) exclude his statement regarding parole; and (4) exclude evidence of the money found in the briefcase. If the Court denies any of the foregoing, Mr. XXX XXX respectfully requests that an appropriate limiting instruction be given to the jury.

Dated: April ___, 1997

Respectfully submitted,

BARRY J. PORTMAN

Federal Public Defender

JOYCE LEAVITT

Assistant Federal Public Defender

[1]On April 9, 1997, defense counsel was informed that the government was going to supersede the indictment to allege possession on January 14, 1997 as well. Defense counsel is unclear about the basis of this superseding indictment.

[2]The caption should read: "Violation: Title 18, United States Code, Section 922(g)(1) Possession of Ammunition by a Person with a Prior Conviction for a Crime Punishable By Imprisonment for a Term Exceeding One Year."

[3]Because Mr. Gaston's prior convictions are not offenses involving dishonesty or falsification, they are not admissible for impeachment purposes absent a finding that their probative value substantially outweighs their prejudicial effect under Federal Rules of Evidence 609(a)(1).

Prior convictions involving "dishonesty or false statement" are automatically admissible for impeachment purposes under Federal Rule of Evidence 609(a)(2). United States v. Glenn, 667 F.2d 1269, 1272 (9th Cir. 1982). The Ninth Circuit has endorsed a narrow definition of dishonesty for purposes of Rule 609(a)(2). United States v. Brackeen, 969 F.2d 827, 829-31 (9th Cir. 1992) (en banc). Under this standard, convictions for narcotics offenses are not per se crimes of dishonesty. United States v. Mehrmanesh, 689 F.2d 822, 833 & n.14 (9th Cir. 1982).

Convictions for non-dishonesty crimes may be admissible for impeachment purposes if the offenses were committed by fraudulent or deceitful means. Glenn, 667 F.2d at 1273. In such cases the government bears the burden of showing that the particular offense involved fraud or deceit. Id.

[4]See Perkins, 937 F.2d at 1406 (prior conviction less than ten years old favors admission under factor (2); prior drug offense is sufficiently different from charged bank robbery to favor admission under factor (3)).

[5]Counsel for Mr. Gaston found only two Ninth Circuit cases addressing the proper extent of cross-examination about a testifying defendant's prior convictions. In both cases, the defendant testified falsely or misleadingly about his prior convictions on direct examination . Under these circumstances, the Ninth Circuit held that the district courts did not abuse their discretion by allowing cross-examination beyond the fact of the prior convictions. Alexander, 48 F.3d at 1489; United States v. Perry, 857 F.2d 1346, 1352 (9th Cir. 1988).

[6]The government has not indicated that it intends to introduce anything other than the fact of the prior convictions to establish that the defendant committed the other acts. If it intends to introduce evidence of the facts underlying the convictions, Mr. Gaston may have additional arguments about the sufficiency of such evidence. See Arambula-Ruiz, 987 F.2d at 602 (government must prove that there is sufficient evidence for jury to find that defendant committed other acts).

[7]See United States v. Blackstone, 56 F.3d 1143, 1145 (9th Cir. 1995) (noting that courts have assumed that drug traffickers typically have weapons to guard their drugs and money).

[8]Mr. Gaston has been arrested several times for drug offenses; either no charges were filed or the case was dismissed. Charges of hit-and-run property damage, obstructing and resisting police and assault with a firearm also have been dismissed.

[9]United States v. Houser, 929 F.2d 1369, 1373 (9th Cir. 1990).