USA v. Slough et al

REPLY TO OPPOSITION to Motion

D.D.C.May 27, 2014

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) UNITED STATES OF AMERICA ) ) v. ) ) No. 1:08-cr-360-RCL PAUL A. SLOUGH, ) EVAN S. LIBERTY, and ) DUSTIN L. HEARD, ) ) Defendants. ) ) ) UNITED STATES OF AMERICA ) ) v. ) ) No. 1:14-cr-107-RCL NICHOLAS A. SLATTEN ) ) Defendant. ) ) DEFENDANT EVAN S. LIBERTY’S REPLY TO GOVERNMENT’S OPPOSITION TO DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE RULE 404(b) EVIDENCE Defendant Evan S. Liberty, by and through undersigned counsel, hereby replies to the Government’s Opposition to his Motion in Limine to Exclude Purported Rule 404(b) Evidence. The Government seeks to argue to the jury the following 404(b) character evidence: Mr. Liberty fired without aiming and without regard for who might be struck on May 23, 2007 and September 9, 2007; Mr. Liberty was reassigned from a position in the turret to a driver within the convoy as a result of overly aggressive behavior;1 Mr. Liberty threw a frozen water bottle at a 1 The Government makes no attempt to refute Mr. Liberty’s position that this constitutes character evidence for the purpose of demonstrating propensity to commit the charged crimes. For the reasons in Defendant’s Motion in Limine, this Court should exclude this evidence under Fed. R. Evid. 404(b). See Mot. in Limine at 7. Case 1:08-cr-00360-RCL Document 494 Filed 05/27/14 Page 1 of 6 2 woman who was begging for water;2 Mr. Liberty, according to a 302 in receipt, did not like Iraqis; and Mr. Liberty referred to a teammate as “Hadji Lover.” The evidence should be excluded because it is inadmissible character evidence offered to prove conduct in conformity therewith and, as such, is inadmissible under Rule 404(b). Moreover, the Government’s evidence fails the required balancing test pursuant to Rule 403. ARGUMENT I. THE EVIDENCE IS INADMISSIBLE UNDER FED. R. EVID. 404(B) Standing on their own, the prior acts lack the requisite similarity to the charged crimes to demonstrate intent. United States v. Long, 328 F.3d 655, 662 (D.C. Cir. 2003) (finding the prior act must be closely related to the charged offense to demonstrate intent). Three of the prior acts which the Government seeks to admit occurred during wartime while Mr. Liberty, as a Raven 23 member, was under attack. As a result, they are not sufficiently similar to commission of voluntary manslaughter. The allegation that Mr. Liberty threw a frozen water bottle at a woman begging for water is even more remote to the charged crimes. The acts also do not provide direct evidence of motive to commit the charged crimes. All the cases cited by the Government in its Opposition share the same distinguishing characteristic – the prior act was directly related to the charged conduct against the specific victim. See United States v. Russell, 971 F.2d 1098, 1106-07 (4th Cir. 1992) (prior bad acts involving the defendant’s discharge from the U.S. Marines Corps and extra-marital affairs to prove why 2 The Government’s Opposition to Defendant Liberty’s Motion in Limine discloses, for the first time, the Government’s intention to introduce evidence that the defendants “threw water bottles and other items at civilians, vehicles, wagons, and bicycles without justification, in an attempt to break automobile windows, injure and harass people, and for sport.” Gov’t’s Opp. at 7. Specifically, with regard to Mr. Liberty, the Government seeks to argue to the jury that on one occasion, “a lady sweeping the street stopped and waived at the convoy, pleading for water. Defendant Liberty threw a frozen water bottle at the woman with such force it knocked the cap off the bottle.” Gov’t’s Opp. at 7. Case 1:08-cr-00360-RCL Document 494 Filed 05/27/14 Page 2 of 6 3 defendant resented and killed his wife, a U.S. Marines Corps captain); Gov’t of the Virgin Islands v. Harris, 938 F.2d 401, 420 (3rd Cir. 1991) (prior acts of violence against the victim to prove the defendant killed that same victim and her death was not accidental); United States v. Dietz, 443 Fed. Appx. 781, 790-91 (4th Cir. 2011) (intrinsic prior bad acts and prior bad acts of violence against the victim’s family to prove defendant’s intent and motive to commit the charges against the victim); United States v. Seale, 600 F.3d 473, 495 (5th Cir. 2010) (prior bad acts showing defendant’s racial animus and affiliation with the KKK to prove he committed the charges with the KKK); United States v. Garcia-Meza, 403 F.3d 364, 368 (6th Cir. 2005) (prior bad acts of jealously-induced violence against the victim to prove the defendant killed that same victim for the same reason). In an attempt to cure this disconnect, the Government relies on a singular theory for admissibility of all the prior acts: that the act demonstrates Mr. Liberty harbored “deep hostility” towards Iraqi civilians, and that “deep hostility” serves as evidence of motive or intent to commit voluntary manslaughter on September 16, 2007. The Government’s Opposition fails to explain how the acts actually demonstrate the alleged “deep hostility,” merely concluding that they do.3 Instead, the Government requests this Court assume the prior acts to mean Mr. Liberty harbored animosity towards Iraqis. The Government further requests this court assume such animosity is evidence Mr. Liberty committed voluntary manslaughter on September 16, 2007. In other words, the Government argues that because Mr. Liberty allegedly committed the prior acts, he is more likely to have committed the charged crimes. Labeling the evidence as motive or intent does not change the fact that Government requests to argue to the jury that Mr. Liberty, based on 3 The only exception to this is the evidence of a witness’s personal opinion that Mr. Liberty disliked Iraqis. Gov’t’s Opp. at 7. However, within the 302 in receipt, the witness admits to having no basis for this opinion. This is inadmissible character evidence under 404(b), and, as discussed in section II, carries significant prejudicial effect that outweighs any probative value of this evidence. As such, it should be excluded. Case 1:08-cr-00360-RCL Document 494 Filed 05/27/14 Page 3 of 6 4 prior acts, had the propensity to commit the crimes. This is exactly what Rule 404(b) prohibits. See United States v. Crowder,141 F.3d 1202, 1206 (D.C. Cir. 1998) (“properly viewed, the first sentence of Rule 404(b) bars not evidence . . . but a theory of admissibility”); United States v. Daniels, 770 F.2d 1111, 1116 (D.C. Cir. 1985) (“The exclusion of bad acts evidence is founded not on a belief that evidence is irrelevant, but rather on a fear that juries will give it excessive weight, and on a fundamental sense that no one should be convicted of a crime based on his or her previous misdeeds.”). II. THE EVIDENCE SHOULD BE EXCLUDED UNDER FED. R. EVID. 403 BECAUSE IT IS MORE PREJUDICIAL THAN PROBATIVE Even if this Court finds the evidence permissible under Rule 404(b), it should be excluded under Fed. R. Evid. 403 because it is significantly more prejudicial than probative. The Government seeks into inject racial and ethnic undercurrent through trial and overwhelm the legitimate evidence. United States v. Doe, 903 F.2d 16, 21-22, 25 (D.C. Cir. 1990). There is a significant risk this will prejudice Mr. Liberty, and may lead to a conviction based on character and prior acts, rather than evidence of the charged crimes. To defend against the prejudice, Mr. Liberty will be required to spend significant time presenting evidence on the circumstances and events of the prior acts. In addition to creating undue delay, there is substantial likelihood this will lead to confusion of the issues. This substantial risk of prejudice, confusion and delay outweighs any probative value of the 404(b) evidence. CONCLUSION For the foregoing reasons, the Court should exclude the evidence relating to Mr. Liberty described in the Government’s Notice of Intention to Introduce Evidence Pursuant to Fed. R. Evid. 404(b) at trial. Case 1:08-cr-00360-RCL Document 494 Filed 05/27/14 Page 4 of 6 5 Dated: May 27, 2014 Respectfully submitted, /s/ William Coffield . William Coffield (No. 431126) Coffield Law Group, LLP 1330 Connecticut Avenue, NW Suite 220 Washington, DC 20036 wcoffield@coffieldlawgroup.com 202-429-4799 Counsel for Evan Liberty Case 1:08-cr-00360-RCL Document 494 Filed 05/27/14 Page 5 of 6 6 CERTIFICATE OF SERVICE I hereby certify that on this 27th day of May, 2014, I caused the foregoing Reply to Government’s Opposition to Defendant Liberty’s Motion in Limine to Exclude Purported 404(b) Evidence to be filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record. /s/ William Coffield , William Coffield (No. 431126) Coffield Law Group, LLP 1330 Connecticut Avenue, NW Suite 220 Washington, DC 20036 wcoffield@coffieldlawgroup.com 202-429-4799 Case 1:08-cr-00360-RCL Document 494 Filed 05/27/14 Page 6 of 6