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United States v. Dontae Flax

United States District Court, D. Minnesota

February 9, 2019

United States of America, Plaintiff,
v.
Hakeem Malik Dontae Flax (4), Defendant.

          ORDER ON MOTIONS IN LIMINE

          WILHELMINA M. WRIGHT UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff United States of America's two motions in limine, (Dkts. 159, 170), [1] and Defendant Hakeem Malik Dontae Flax's eleven motions in limine. (Dkts. 171-80, 194). The Court addresses each motion in turn.

         I. Government's Motion to Preclude Reference to Punishment

          The 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.

         II. Government's Motion to Preclude Reference to Hearsay Statements

          The 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 as premature.

         III. Motions Regarding Prior Bad Acts Evidence

         The 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.)

         Rule 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).

         A. Firearms

         The 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.

         To be 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.

         Accordingly, both the government's motion and Flax's motion are denied as premature as to this evidence.

         B. Witness Tampering

         The 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.

         To be 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.

         The 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).

         For 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.

         IV. Government's Motion to Impeach Defendant with Evidence of Prior Convictions

          The 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 ...


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