United States District Court, S.D. Alabama
F. MOORER UNITED STATES DISTRICT JUDGE.
before the Court is the Government's Notice of Intent
to Offer Rule 404(b) Evidence (Doc. 64, filed 3/19/19)
and the Defendant's Motion to Determine the
Admissibility of the States's 404(b) Evidence, or in the
Alternative, Motion in Limine (Doc. 65, filed 3/20/19).
On May 30, 2019, the Court heard arguments and received
evidence as to whether certain alleged uncharged acts might
be admissible at trial. For the reasons discussed below, the
and the Defendant's motion is GRANTED to
the extent the Court finds that the evidence is admissible
under Fed.R.Evid. 404(b) and DENIED to the
extent it requests a motion in limine.
facts leading to the arrest of defendant Lancon were
recorded. In sum, defendant Lancon was a passenger in a truck
driven by the codefendant Estrada. On January 15, 2019,
Saraland, Alabama Police Officer Austin Sullivan,
“Sullivan” stopped the truck because the truck on
Interstate 65 in Saraland because the truck did not have a
license plate as required by Alabama law. While Office
Sullivan was investigating the ownership and registration of
the truck, a narcotics canine alerted on the truck. After the
dog alert, the officers found a large quantity of illegal
narcotics in the truck cab. Lancon gave the officers an
innocent explanation for her presence. Specifically, Lancon
said she was riding with Estrada to Evergreen, Alabama to
pick up a truck. Absent the discovery of the narcotics in the
cab where Lancon sat, the independent evidence against Lancon
is scant. Lancon pled not guilty thus the burden rests upon
the government to prove beyond a reasonable doubt the
elements of each charge. Conspiracy to possess narcotics as
alleged in Count 1 and Possession with intent to distribute
narcotics as alleged in Count 2 requires the Government to
prove Lancon was a knowing participant in the crimes.
Law and Discussion
Federal Rules of Evidence provide that “[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.” Fed.R.Evid. 404(b)(1). However, they
further provide that there are permitted uses in a criminal
case. Specifically such “evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Fed.R.Evid. 404(b)(2). Further,
“Rule 404(b) is a rule of inclusion, and that …
[it]…should not lightly be excluded when it is central
to the prosecution's case.” United States v.
Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003).
admissible under Rule 404(b), extrinsic evidence must be (1)
relevant to an issue other than the defendant's
character, (2) the act must be established by sufficient
proof to permit a jury finding that the defendant committed
the extrinsic act and (3) the probative value of the evidence
must not be substantially outweighed by its undue prejudice,
as required by Rule 403. Jernigan, 341 F.3d at 1280;
see also United States v. St-Turbain, 762 Fed.Appx.
933, 935 (11th Cir. 2019) (citing Jernigan and
repeating the three elements). Moreover, “[a]
similarity between the other act and a charged offense will
make the other offense highly probative with regard to a
defendant's intent in the charged offense.”
United States v. Ramirez, 426 F.3d 1344, 1354 (11th
Cir. 2005). Finally, the Court should also consider temporal
remoteness. Jernigan, 341 F.3d at 1282.
Government seeks to introduce evidence regarding drug
transactions involving Defendant Lancon from October 21, 2016
and January 6, 2017. Specifically, an undercover agent
arranged with another person (H.V.) to purchase two ounces of
heroin on October 21, 2016. The undercover agent and a
confidential informant met with H.V. who arrived in a gold
Tahoe registered to Defendant Lancon. The drug transaction
occurred and H.V. left the scene in the gold Tahoe. Then on
January 6, 2017, the undercover agent and an informant again
met with H.V. to purchase four ounces of methamphetamine.
H.V. again arrived at the meeting spot in the gold Tahoe
registered to Lancon. This time Lancon was present in the
vehicle with him. H.V. informed the undercover agent that he
would have to go to another location to pick up the drugs.
H.V. then returned to the gold Tahoe and he and Lancon left.
Surveillance agents followed them to a parking lot. H.V.
entered a blue pick-up while Lancon remained in the Tahoe.
H.V. then returned to the Tahoe with Lancon and they
travelled to a different store parking lot. H.V. called the
undercover agent and told him to come to that parking lot.
Upon their arrival, H.V. got out of the Tahoe, exchanged the
drugs for cash with the undercover agent, and then departed
with Lancon in the gold Tahoe. H.V. also told the undercover
agent that he used tractor trailers for transportation of
drugs from the Rio Grande Valley to Dallas, Texas. After H.V.
was arrested, he did not want to give information on Lancon
at the time, but had introduced him to her cousin who was
involved in the drug business he had previously referenced
about using tractor trailers.
Court finds the proferred extrinsic act evidence is probative
of knowledge or intent. Further, the Court finds the jury
will have sufficient proof regarding the extrinsic evidence
to find defendant Lancon was a knowing participant in the
January 15, 2019 criminal activity. Next, the extrinsic act
evidence is not unduly prejudicial under Rule 403, Federal
Rules of Evidence. Finally, the Court will provide a limiting
instruction regarding the matters.
acts in furtherance of the conspiracy
One of the Indictment alleges a conspiracy to possess with
intent to distribute more than 5 kilograms of cocain in
violation of 21 U.S.C. § 841(a)(1). The indictment
specifically states Lancon, Estrada, and others known
and unknown to the Grand Jury (emphasis supplied).
…The Court finds that a rational trier of facts
could conclude the extrinsic acts and the January
15, 2019 traffic stop were part of an overarching narcotics
conspiracy whose common hub was Lancon and Estrada was a
spoke. Thus, the Court finds the extrinsic acts evidence is
admissible as overt acts in furtherance of the conspiracy in
and abetting, 18 U.S.C. § 2
does not specifically add aiding and abetting as a designated
charge but such language is not a necessary prerequisite for
the jury to find a defendant guilty under an aiding and
abetting theory. “Aiding and abetting need not be
specifically alleged in the indictment; assuming the evidence
supports it, the accused can be convicted of aiding and
abetting so long as the jury is instructed on it.”
United States v. Martin, 747 F.2d 1404, 1407 (11th
Cir. 1984) (citing United States v. Griffin, 705
F.2d 434, 436 (11th Cir. 1983)); see also United States
v. Steele, 733 Fed.Appx. 472, 475 (11th Cir. 2018)
(quoting Martin and stating same).
Court finds the extrinsic act evidence proferred by the
Government is admissible to show the presence of Defendant
Lancon on January 15, 2019 was not a mere fortuity, but
evidence that she was present to aid, abet, counsel, and
encourage Estrada ...