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assuming for purposes of a Rule 404(b) motion, the truth of facts proffered by proponent of evidence
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Criminal No. CCB-02-0410
January 22, 2004
MEMORANDUM
This memorandum opinion will address the admissibility of various juvenile offenses that the government hopes to introduce in this case. Facing charges of narcotics conspiracy and capital murder, two of the three defendants, namely, Keon Moses and Michael Taylor, have moved to exclude the following: (1) as to Mr. Taylor, evidence of the September 23, 2001 killings of Gregory Spain and Ronald Harris, which occurred before Mr. Taylor turned eighteen; (2) again as to Mr. Taylor, evidence of the December 23, 2001 murders of Kiari Cromwell and Derek Hamlin, which also occurred before Mr. Taylor turned eighteen; and (3) as to both defendants, evidence of various lesser juvenile offenses, including narcotics crimes. (Docket No. 230, 262.) For the reasons that follow, the court will (1) admit the evidence of the Spain and Harris murders; (2) reserve a ruling regarding the Cromwell and Hamlin killings; and (3) admit some evidence of the other offenses while reserving a ruling on the remainder.
The third defendant, Aaron Foster, has not joined the motion because no juvenile offenses are at issue with respect to him.
I. The Spain and Harris Murders
Though both Mr. Moses and Mr. Taylor allegedly participated in the killings of Mr. Spain and Mr. Harris, the indictment charges only Mr. Moses with these crimes because Mr. Taylor did not turn eighteen until roughly three months after the murders occurred. These murders are alleged, however, as overt acts of the conspiracy with respect to both defendants, and the government hopes to introduce evidence of them against Mr. Taylor.
Mr. Taylor was born on December 31, 1983.
Mr. Taylor's minority at the time of the crimes does not preclude admission of this evidence. In the Fourth Circuit, a defendant's juvenile offenses may be admissible if they relate to a continuing crime, such as conspiracy, that continued past the defendant's eighteenth birthday. See United States v. Spoone, 741 F.2d 680, 687-88 (4th Cir. 1984). The government need not necessarily satisfy the limitations imposed on "other crimes" evidence by Federal Rule of Evidence 404(b). As crimes committed by Mr. Taylor in furtherance of the charged conspiracy, the Spain and Harris murders are "intrinsic" to that conspiracy, and evidence of them may be admitted without regard to Rule 404(b). See, e.g., United States v. Claiborne, 92 F. Supp.2d 503, 514-15 (E.D. Va. 2000) (admitting evidence of juvenile crimes because "[t]he alleged threats of violence, shootings, beatings, and murder were all part and parcel of the defendant's attempts to keep the drug business . . . operating smoothly and without interference"); United States v. Stitt, 250 F.3d 878, 887-88 (4th Cir. 2001) (concluding that a juvenile incident was not subject to Rule 404(b) where it "constituted circumstantial proof of [the defendant's] membership in the conspiracy"); United States v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996) (allowing testimony about prior murder because "[k]illing people was an integral part of [the defendant's] criminal enterprise"); United States v. Kennedy, 32 F.3d 876, 887-86 (4th Cir. 1994) (holding that events occurring outside the period of the charged conspiracy were not "other crimes" under Rule 404(b) because they provided context for the charged crimes and helped the jury understand how the conspiracy operated).
Several courts interpreting Spoone have indicated that juvenile crimes "may only be admitted for the limited purpose of putting the accused's subsequent post-eighteen conduct within the context of the conspiracy," not as "substantive evidence of guilt." United States v. Claiborne, 92 F. Supp.2d 503, 514-15 (E.D. Va. 2000); see also United States v. Thomas, 114 F.3d 228, 264-66 (D.C. Cir. 1997); but see United States v. Delatorre, 157 F.3d 1205, 1211 (10th Cir. 1998) (holding that "the defendant's pre-majority conduct is admissible on the same basis as post-majority conduct"). In this case, the government does not, to the court's knowledge, intend to rely on the Spain and Harris murders to prove the conspiracy charge against Mr. Taylor. Rather, the government seeks to use this evidence against Mr. Taylor to provide background to the killing of Robert McManus, as will be explained below. To that end, the government's brief analyzes the admissibility of this evidence in terms of Rule 404(b), and during oral argument on January 9, 2004 the prosecutor acknowledged that Rule 404(b) may apply to evidence admitted under Spoone. The court, therefore, need not address the merits of the Claiborne and Thomas opinions.
Even if Rule 404(b) applied, the government's proffer would support admitting the evidence. To be admissible on that basis, evidence must be (1) "relevant to an issue other than character," (2) "necessary in the sense that it is probative of an essential claim or element of the offense," and (3) "reliable." United States v. Queen, 132 F.3d 991, 995, 997 (4th Cir. 1997). In addition, as provided by Rule 403, "the probative value of the evidence must not be substantially outweighed by the danger that it will cause unfair prejudice." United States v. Hodge, ___ F.3d ___, 2003 WL 23105180, at *5 (4th Cir. Jan. 6, 2003) (citing Queen, 132 F.3d at 997). The government argues that the Spain/Harris evidence satisfies this standard because it explains Mr. Taylor's motivation to commit a crime that is charged against him, the murder of Robert McManus on February 22, 2002. Mr. McManus, the government proffers, had spoken to the police about the Spain and Harris killings, leading to the arrest of Mr. Moses. Mr. Taylor murdered Mr. McManus after Mr. Moses wrote to him from jail, complaining of the threat Mr. McManus posed.
Police recovered Mr. Moses's letter during a search of Mr. Taylor's home. The court has previously ruled that the letter will be admissible at trial.
The government's proffer satisfies the Fourth Circuit's four criteria under Rule 404(b). First, the Spain and Harris murders appear relevant to Mr. Taylor's motive, intent, and absence of mistake in killing Mr. McManus-matters unrelated to character. See, e.g., United States v. Higgs, ___ F.3d ___, 2003 WL 22992273, at *24 (4th Cir. Dec. 22, 2003) (upholding admission of death threats related to an uncharged bank fraud scheme to demonstrate a possible motive for subsequent murders); United States v. Gray, ___ F. Supp.2d ___, 2003 WL 22719183, at *3-4 (D.D.C. Nov. 19, 2003) (admitting evidence of uncharged murder and attempted murder as "proof of the method by which the conspiracy created, maintained, and controlled a particular marketplace" and "the manner in which the organization's members protected their drug enterprise and individual members from detection, apprehension, and prosecution"). Second, the evidence is necessary in the sense required by Queen because it is probative of whether Mr. Taylor committed the intentional murder of Mr. McManus as charged. See, e.g., Hodge, 2003 WL 23105180, at *5 (holding that evidence of prior drug transactions was "relevant and necessary in that it tended to show the existence of a continuing narcotics business and therefore to show [the defendant's] knowledge of the drug trade and his intent to distribute the cocaine found in his Jeep"). Third, as to reliability, the government has indicated that the testimony of two witnesses, including Charles Brockington, who was present during the killings, will implicate Mr. Taylor in the murders. In addition, burn scars on Mr. Taylor's legs and records of an emergency room visit will corroborate witness testimony that Mr. Taylor helped incinerate the getaway vehicle used in the killings. Assuming these proffered facts are true, the government's evidence appears adequately reliable for Rule 404(b) purposes. See, e.g., United States v. Aramony, 88 F.3d 1369, 1378 (4th Cir. 1996) ("[E]vidence is reliable and should be submitted to the fact finder unless it is `so preposterous that it could not be believed by a rational and properly instructed juror.'") (quoting United States v. Bailey, 990 F.2d 119, 123 (4th Cir. 1993)).
Mr. Brockington was, in fact, critically wounded during the incident.
Finally, while "[e]vidence of a murder not charged is extremely prejudicial," Chin, 83 F.3d at 88, the Fourth Circuit has allowed evidence of prior acts of violence to be admitted against defendants charged only with narcotics crimes. See, e.g., United States v. Lipford, 203 F.3d 259, 268-69 (4th Cir. 2000) (shooting of police officer); Chin, 83 F.3d at 86-88 (defendant's statements regarding "murder-for-hire and `his people's' responsibility for a particular murder"); see also United States v. Krout, 66 F.3d 1420, 1425 (5th Cir. 1995) (uncharged murders in a conspiracy case). The unfair prejudice in the case of Mr. Taylor, who is charged with murder, can only be less severe. Moreover, as the Fourth Circuit has emphasized, Rule 404(b) is a rule of inclusion, not exclusion, see, e.g., United States v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002); United States v. Van Metre, 150 F.3d 339, 349 (4th Cir. 1998); Queen, 132 F.3d at 997, and "the unfair prejudicial value of evidence can be generally obviated by a cautionary or limiting instruction," Aramony, 88 F.3d at 1378 (internal quotations omitted); see also Hodge, 2003 WL 23105180, at *5; Van Metre, 150 F.3d at 353-54; Queen, 132 F.3d at 997. In light of the substantial probative value of the Spain and Harris murders in explaining the McManus killing, it is impossible to conclude that the risk of unfair prejudice substantially outweighs the evidence's probative value.
Thus, the evidence of the Spain and Harris killings will be admissible against Mr. Taylor. The government will be free to discuss this evidence in its opening statement.
II. The Cromwell and Hamlin Murders
The Cromwell/Hamlin evidence is more problematic. Unlike the Spain and Harris murders, these killings are not charged as separate offenses against any defendant, nor even as overt acts of the conspiracy. I will apply the Fourth Circuit's Rule 404(b) analysis, but reserve a final ruling on whether the Queen factors favor admitting this evidence.
The government's theory, as the court understands it, is that Mr. Cromwell and Mr. Hamlin were members of the "Lexington Terrace Boys" or "LTBs," the somewhat amorphous criminal association that controlled narcotics distribution in a particular Baltimore neighborhood and included the three defendants in this case. Mr. Hamlin, however, was friendly with Mr. Spain, a non-LTB who had long supplied Mr. Hamlin and Mr. Moses with drugs. Consequently, when Mr. Spain and Mr. Harris were murdered, Mr. Hamlin was upset-so upset, in fact, that Mr. Taylor feared he might retaliate. To solve the problem, Mr. Taylor killed Mr. Hamlin, as well as Mr. Cromwell, who had the misfortune of being in Mr. Hamlin's company when Mr. Taylor arrived. These killings, in turn, led to two more deaths. First, Aaron Foster, the third defendant in this case, killed Vance Beasley because he suspected him of killing Mr. Cromwell, with whom Mr. Foster had been close. Ironically, Mr. Foster asked Mr. Taylor, along with Gregory Parker, another LTB, to assist in the murder; fearing to reveal his own responsibility, Mr. Taylor obliged. In addition, Mr. Taylor and Mr. Foster killed Travis Burley, yet another LTB. Mr. Burley had loaned Mr. Taylor the handgun used in the Cromwell and Hamlin killings; when Mr. Burley refused to give up or sell the incriminating weapon, Mr. Taylor helped kill Mr. Burley to cover his tracks.
Based on this proffer, the Cromwell and Hamlin murders, unlike the Spain and Harris killings, do not appear to be intrinsic to the charged conspiracy. Whereas Mr. Spain and Mr. Harris were members of a rival group, Mr. Cromwell and Mr. Hamlin were themselves Lexington Terrace Boys. Thus, killing them did not further any evident goal of the conspiracy; rather, it served mainly as an act of anticipatory self-defense on Mr. Taylor's part. Accordingly, this evidence may not be admitted without applying the criteria of Rule 404(b).
As to their admissibility on that basis, the government argues that the Cromwell and Hamlin murders are "classic 404(b) evidence" because they provide motive for the Beasley and Burley murders, which are charged in the indictment as overt acts of the conspiracy. (Gov't's Resp. at 13, 14-15.) It appears there is other available evidence of motive, however. Mr. Foster's suspicion of Mr. Beasley could explain the Beasley crime, while Mr. Burley's murder seems to have been motivated at least in part by Mr. Burley's unwillingness to accept responsibility for a large quantity of drugs following an arrest. In both cases, Mr. Taylor's identity as the murderer of Mr. Cromwell and Mr. Hamlin appears relevant to his private intentions, but not to the aims of the conspiracy.
The government's proffer indicates that "the other LTBs [arrested with Mr. Burley] wanted Burley to take the hit for all the drugs in the house. Burley's arrest record was better than anyone else's, so it was the logical thing for him to take the weight. Burley refused." (Gov't Resp. at 13.)
In short, the strength of the "necessity" for the Cromwell/Hamlin evidence is not yet apparent. Looking to the other factors, however, the evidence is relevant to issues other than character, and it appears to be reliable; among other things, a taped statement by Mr. Taylor and an eyewitness account of the return of Mr. Burley's gun link Mr. Taylor to the crime. Yet, as with all evidence of uncharged murders, the risk of unfair prejudice may be substantial. In light of this uncertainty in the application of the four factors, I will reserve a ruling on the admissibility of this evidence. More specifically, I will not rule on this issue until after the government has presented other evidence about the scope and nature of the conspiracy, as the government has indicated it intends to do at the start of its case, and after the opportunity for further argument. In the meantime, the prosecutors should refrain from discussing these crimes before the jury.
The prosecution made this representation during oral argument on January 9, 2004.
III. Other Juvenile Offenses
In addition to the uncharged murders, the government hopes to introduce evidence of narcotics offenses and use of stolen cars by Mr. Moses and Mr. Taylor while they were juveniles. Subject to considerations of necessity, reliability, and unfair prejudice, the caselaw supports admitting such evidence for two purposes: first, to show intent, knowledge, or absence of mistake with respect to the defendants' entry into a drug-dealing conspiracy, see, e.g., United States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993) (upholding admission of drug-dealings outside the scope of the charged conspiracy because it was "relevant to [the defendant's] knowledge of the drug trade and permitted an inference that he knew the nature of his acts"); United States v. Rogers, 918 F.2d 207, 210-11 (D.C. Cir. 1990) (allowing the use of a juvenile narcotics offense to show knowledge, intent, and absence of mistake); and second, to show the formation of the conspiracy and the relationships between the conspirators, see, e.g., United States v. Percy, 765 F.2d 1199, 1203-04 (4th Cir. 1985) (upholding the use of prior drug dealing "to show the preparation, planning, and background of the conspiracy actually charged in the indictment"); Gray, 2003 WL 22719183, at *5 (permitting the government to introduce evidence of juvenile offenses "to establish and explain the development of [the defendant's] close relationships with the other members of the [charged conspiracy]").
In keeping with these principles, I find at this time that the government may admit evidence of Mr. Moses's possession of some 96 units of crack cocaine in February 1998, when Mr. Moses was fifteen years old. This evidence is relevant to Mr. Moses's knowledge of drugs and intent to distribute them; in light of the large quantity, it is highly probative on those points, and thus necessary under Queen; it also appears reliable, given the evidence that Mr. Moses was arrested in the course of distribution; and the probative value outweighs any unfair prejudice. For much the same reasons, I will also admit evidence regarding Mr. Taylor's use of stolen vehicles and the videotape evidence of drug dealing by Mr. Taylor in November 2001, when Mr. Taylor was seventeen years old ( see Gov't Resp. at 7). In addition, I will allow the government to establish the relationship between Mr. Moses and Mr. Spain by introducing evidence of marijuana transactions between these two individuals. I will rule on any other pre-eighteen evidence that is specifically challenged as it is offered, applying the principles stated above.
Mr. Moses was born on November 26, 1982.
The government indicated that it planned to introduce such evidence during the January 9, 2004 hearing.
IV. The Notice Requirement of Rule 404(b)
A final issue that the defendants have raised is what form of notice may satisfy Rule 404(b)'s requirement that the prosecution in a criminal case "provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial." While the Fourth Circuit has not provided guidance on the meaning of this provision, the Advisory Committee Notes accompanying a 1991 amendment stress that the rule requires disclosure only of the "general nature" of the evidence; "no specific form of notice is required." In particular, the Notes indicate that the government is not required "to disclose directly or indirectly the names and addresses of its witnesses." In light of this instruction, the government's proffer with respect to the four prior murders appears adequate: the government has outlined the basic facts that it hopes to establish at trial, and it has indicated, in a general way, what sources it will use, even giving the names of witnesses in some cases. See, e.g., United States v. Gorman, 312 F.3d 1159, 1162-63 (10th Cir. 2002) (deeming notice adequate where the government indicated orally to defense counsel that it intended to introduce the evidence and the defendant filed a motion in limine to exclude it). It also appears that a sufficient degree of notice with respect to the drug and other offenses is being provided. ( See generally Gov't Resp.)
A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, the defendants' Motion in Limine to Exclude Government's Evidence Pertaining to Juvenile Acts (docket no. 230, 262) is hereby DENIED in part and RESERVED in part as stated in the accompanying Memorandum.
So Ordered.