United States District Court, D. Minnesota
ORDER ON MOTIONS IN LIMINE
WILHELMINA M. WRIGHT UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff United States of
America's two motions in limine, (Dkts. 159, 170),
Defendant Hakeem Malik Dontae Flax's eleven motions in
limine. (Dkts. 171-80, 194). The Court addresses each motion
Government's Motion to Preclude Reference to
government filed an unopposed motion to preclude Flax from
making any reference to the punishment that he may receive if
convicted. (Dkt. 159.) Only relevant evidence is admissible.
Fed.R.Evid. 402. The potential punishment Flax may face if
convicted is not relevant because it has no tendency to make
a fact of consequence as to his guilt any more or less
probable. See Fed. R. Evid. 401. Accordingly, the
government's motion to preclude references to Flax's
potential punishment is granted.
Government's Motion to Preclude Reference to Hearsay
government also moves to preclude Flax or his counsel from
referring to hearsay statements in the presence of the jury.
But the government does not identify any specific statements
that it disputes. (Dkt. 159.) The doctrine of judicial
ripeness “safeguards against judicial review of
hypothetical or speculative disagreements.” Neb.
Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d
1032, 1038 (8th Cir. 2000). Here, the Court is left to
speculate as to the contents and nature of any potential
hearsay statements. Because this issue is not ripe for a
decision by the Court, the government's motion is denied
Motions Regarding Prior Bad Acts Evidence
parties filed opposing motions addressing two prior bad acts.
First, the government seeks to admit, and Flax seeks to
exclude, evidence that Flax and co-defendant Domonick Deshay
Wright were found in a car with firearms on January 13, 2007.
(Dkts. 170, 172.) In addition, the government seeks to admit,
and Flax seeks to exclude, evidence that Flax previously
pleaded guilty to witness tampering on behalf of the 1-9
gang. (Dkts. 170, 173.)
404(b) prohibits the introduction of “[e]vidence of a
crime, wrong, or other act . . . 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). But such evidence may be admissible
“for another purpose, such as proving . . . intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Id., 404(b)(2). Evidence
is admissible under Rule 404(b) when it is (1) relevant to a
material issue raised at trial, (2) similar in kind and close
in time to the crime charged, (3) supported by sufficient
evidence to support a finding by a jury that the defendant
committed the other act, and (4) not so prejudicial that it
substantially outweighs its probative value. United
States v. Johnson, 439 F.3d 947, 952 (8th Cir. 2006).
first prior bad act involves an event from January 13, 2007,
when Flax and co-defendant Wright allegedly occupied a car
that contained firearms. The government moves to admit this
evidence to show Flax's knowledge of firearms and his
opportunity to possess firearms and coordinate with Wright.
Flax argues that this evidence should not be admitted for the
following four reasons. It is not relevant because possession
of firearms is not a material issue, the event occurred too
far in the past, the sufficiency of the evidence is unknown
at this time, and the evidence has low probative value.
admissible under Rule 404(b), evidence must “be
supported by sufficient evidence to support a finding by a
jury that the defendant committed the other act.”
Id. The government asserts that an officer will
relay his observations of the January 13, 2007 incident. Flax
argues that the sufficiency of such testimony “remains
to be seen.” Because the government has not offered the
details of the officer's testimony or any other context
for this evidence, the Court can only speculate as to its
sufficiency. This issue is not ripe for decision at this
point in the proceedings.
both the government's motion and Flax's motion are
denied as premature as to this evidence.
second disputed bad act is Flax's December 20, 2012
conviction of witness tampering on behalf of a 1-9 gang
member. The government contends that this evidence helps to
establish the conspiracy's existence and Flax's
motivation to take actions in support of the conspiracy. Flax
argues that the witness-tampering conviction is not relevant
or similar in kind to the instant offense because the
witness-tampering conviction did not involve a conspiracy to
distribute drugs or possess firearms.
admissible, evidence of prior bad acts must be relevant to
the offense charged. Id. Count 1 of the Indictment
alleges that Flax conspired with members of the 1-9 gang to
possess firearms in furtherance of a drug trafficking crime.
Flax's witness-tampering conviction tends to show that a
conspiracy existed and that he has taken actions on behalf of
the conspiracy. Such evidence is relevant to whether Flax
voluntarily and knowingly entered into the alleged agreement
with members of the 1-9 gang.
witness-tampering conviction also satisfies the other 404(b)
requirements. The evidence is similar to the charged offense
because it relates to Flax's actions on behalf of the 1-9
gang, the same gang whose members the government alleges Flax
conspired with here. And the 2012 conviction is not too
remote in time. When a defendant challenges the
government's contention that he was involved in a
conspiracy to distribute drugs, as Flax does, a prior
conviction that occurred eleven years in the past is not too
remote, especially when the prior conviction implicates some
of the same people. See United States v. Hickman,
764 F.3d 918, 924 (8th Cir. 2014). As to the sufficiency of
the evidence, Flax pleaded guilty to witness tampering in
open court. His statements were made under oath and on the
record. Finally, the conviction is not unduly prejudicial
because witness tampering is not a violent crime. Cf.
United States v. Parker, 871 F.3d 590, 599 (8th Cir.
2017) (determining that evidence that linked a defendant to a
conspiracy but “did not unduly imply that [the
defendant] actually took part in violent [acts]” was
not unduly prejudicial).
these reasons, the government's motion to admit evidence
relating to Flax's 2012 conviction of witness tampering
is granted and Flax's motion to exclude evidence of that
conviction is denied.
Government's Motion to Impeach Defendant with Evidence of
government seeks to admit Flax's prior felony convictions
for the limited purpose of impeaching his credibility if he
testifies. (Dkt. 170.) Flax does not oppose this motion. When
a defendant in a criminal case testifies as a witness,
evidence of the defendant's past conviction that was
punishable by imprisonment for more than one year “must
be admitted . . . if the probative value of the evidence
outweighs its prejudicial effect” to the defendant.
Fed.R.Evid. 609(a)(1)(B). Because the government does ...