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United States v. Wright

United States District Court, D. Nevada

May 8, 2018

United States of America, Plaintiff
v.
Brian Keith Wright, Defendant

          ORDER GRANTING MOTION IN LIMINE TO EXCLUDE EXTRINSIC EVIDENCE OF 2014 ROBBERIES [ECF 130]

          Jennifer A. Dorsey United States District Judge

         Defendant Brian Keith Wright is charged with various crimes related to two armed jewelry-store robberies in 2017. Wright moves to preclude evidence of prior charged-but-dismissed robberies as inadmissible character evidence under FRE 404.[1] Because the government has failed to show that this evidence is admissible under FRE 404(b), I grant Wright's motion.

         Background

         Wright and co-defendants Deandre Brown and Aquail Harris are charged with the armed robberies of two Las Vegas jewelry stores: a Jared the Galleria of Jewelry store on January 3, 2017, and an MJ Christensen Jewelers store ten days later. The government theorizes that Wright masterminded these robberies, directed his co-conspirators how to carry them out, and supplied the firearms and bags for the Jared's heist.[2] In each robbery, the government alleges, “the robber(s) entered the stores armed with guns, pointed them at the employees, and demanded that the jewelry be placed in the bags. In each case, as part of the plan, getaway drivers were used. In each case, Defendant Wright waited in the vicinity until the robbery was completed.”[3]

         To prove this modus operandi and Wright's identity as the mastermind of the 2017 robberies, the government plans to introduce evidence that Wright masterminded the robberies of these very same jewelry stores nearly three years earlier in the Spring of 2014.[4] Wright was charged with these crimes in this district in case No. 2:14-cr-357-APG-VCF, but those charges were dropped “pursuant to negotiation.”[5] Wright moves to preclude the government from introducing this prior-bad-acts evidence.[6] The government opposes that motion, arguing that the 2014 robberies are admissible under Rule 404(b) because they show “Wright's identity, motive, intent, preparation, knowledge, and plan to commit the crime[s] charged.”[7]

         Discussion

         A. Prior Bad Acts Evidence Under Rule 404(b)

         Under FRE 404(b), “[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.”[8] But “[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”[9]In the Ninth Circuit, evidence is admissible under FRE 404(b) if the government can show that: (1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that the defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charged.[10] To satisfy the first prong's materiality requirement, the government “must articulate precisely the evidential hypothesis by which a fact of consequence may be inferred from the other acts evidence.”[11]

         B. The government has failed to show that extrinsic evidence of the 2014 robberies is admissible under Rule 404(b).

         The government sweepingly states that the two prior robberies are admissible for nearly all the reasons listed under 404(b)(1): “to show identity, motive, intent, preparation, knowledge, plan to commit the crime charged, and modus operandi.”[12] Its analysis, however, focuses on arguing that the 2014 robberies “prove Defendant Wright's identity through a distinctive manner of operation, or modus operandi.”[13] But when prior bad acts evidence is introduced for this purpose, the “act must be ‘sufficiently distinctive to warrant an inference that the person who committed the act also committed the offense at issue.'”[14]

         As the Ninth Circuit explained in United States v. Luna, “if the characteristics of both the prior offense and the charged offense are not in any way distinctive, but are similar to numerous other crimes committed by persons other than the defendant, no inference of identity can arise.”[15]

         The Luna court considered these robbery details and found them too “generic” to justify the admission of uncharged robberies under Rule 404(b):[16]

The robberies were conducted takeover style, i.e., rather than robbing individual tellers and attempting to hide that fact from the rest of the bank, the robbers announced their presence to one[, ] and all and took control of the bank. The robberies all occurred between 10:30 and 11:30 a.m., and the robbers entered the banks noisily. In each case, the robbers wore sweatpants, sweatshirts, some kind of mask, and gloves. The robbers were armed. At least one robber jumped over the counter. The robbers swore at the tellers and pushed, tossed, or struck one or more bank employees. They took money out of one or more of the tellers' drawers and put it into bags. They used a getaway car in all of the robberies, and in both of the uncharged crimes and one of the charged crimes, they abandoned the car with its motor running.[17]

         The panel reasoned that characteristics like the timing of a robbery, the use of a gun, the act of furnishing of a bag “for carrying off the proceeds, ” or wearing gloves or nylon-stocking masks are just “common component[s] of armed bank robbery” and mean “virtually nothing.”[18]

         Similarly generic crime details led the Ninth Circuit to conclude in United States v. Perkins that “the modus operandi of” previously dismissed robbery charges was “not sufficiently similar to the charged” robbery “to support an inference of identity and warrant admission under Rule 404(b).”[19] All of the robberies “involved a man supposedly wearing various disguises . . ., approaching the teller with something to carry away money, and warning the teller not to push any buttons.”[20] These “points of similarity, ” the panel opined, “are so common to most bank robberies as to be entirely unhelpful, ” so “the requirements of Rule 404(b) were not met. . . .”[21]

         The similarities that the government contends justify the admission of the 2014 robberies in this case are equally generic. Here's how the government describes the 2014 robberies:

• On April 29, 2014, “the same MJ Christensen Jewelers” store “was robbed at gunpoint by an individual name[d] Philbert Cole, ” who “gave the jewelry store employee several backpacks and told her to put jewelry from the display ...

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