United States District Court, D. Nevada
ORDER DENYING MOTION IN LIMINE [ECF NO. 129]
P. GORDON UNITED STATES DISTRICT JUDGE
Sylviane Della Whitmore moves to preclude the Government from
offering at trial statements she made to the FBI regarding
prior thefts she committed. ECF No. 129. The Government
responds that the statements are admissible under Federal
Rule of Evidence 404(b). Because the Government may be able
to show a permitted use under Rule 404(b), I will deny the
motion in limine. But I will conduct a pre-trial hearing to
determine whether the Government can demonstrate the
similarity between the prior acts and the charged crimes.
the current charges against Ms. Whitmore arise out of an
April 14, 2012 robbery at 24/7 Private Vaults. The
perpetrators evaded the facility's security system and
accessed vaults by drilling into them. Ms. Whitmore also
faces charges related to a 2014 burglary at the same
facility, in which the perpetrators cut through a wall and
drilled into vaults.
2012, while being questioned by the FBI about the April 2012
robbery, Ms. Whitmore admitted she had participated in thefts
at 24/7 Private Vaults in 2008-2010, when she was employed
there. She and another person drilled into several vaults.
She denied participating in the 2012 and 2014 thefts. Ms.
Whitmore now seeks to bar the Government from admitting her
statements at trial.
404(b) is a rule of inclusion, such that [e]vidence of other
crimes or acts is admissible under Rule 404(b), except where
it tends to prove only criminal disposition. [I]f evidence of
prior crimes bears on other relevant issues, 404(b) will not
exclude it.” United States v. Mixon, No. 2016
WL 11658660, at *2 (D. Ariz. Jan. 22, 2016). Evidence may be
admitted under Rule 404(b) if “(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 defendant committed the other act; and (4) (in
certain cases) the act is similar to the offense
charged.” United States v. Bailey, 696 F.3d
794, 799 (9th Cir. 2012) (quotation omitted). “The
government has the burden of proving that the evidence meets
all of the[se] requirements.” Id. (quotation
omitted). The first three requirements are easily met here.
prior thefts tend to show that Ms. Whitmore knew how to avoid
the facility's security systems, access the secured
vaults, and open the vaults by drilling into them. The
Government contends the prior acts also support its theory
that Ms. Whitmore “had a motive to cover up her prior
thefts by staging a robbery by outsiders.” ECF No. 136
prior acts were committed in 2008-2010, which is
approximately four to six years before the 2012 and 2014
crimes charged in this case. That is not too remote in time.
The Ninth Circuit “has not adopted a bright line rule
concerning remoteness in time, . . . and, where the prior
acts were similar to those charged, previous decisions have
upheld admission of evidence of acts up to twelve years
old.” United States v. Rude, 88 F.3d 1538,
1550 (9th Cir. 1996), as amended on denial of reh'g
(Sept. 10, 1996).
Ms. Whitmore's own statements that she committed the
prior thefts is sufficient to support a finding that she
committed them. Thus, three of the Bailey
requirements are established, so the statements may be
admitted to show Ms. Whitmore's knowledge of how to avoid
the security systems and her motive to stage a burglary by an
the evidence is admissible under Rule 404(b), I must also
“decide whether the probative value is substantially
outweighed by the prejudicial impact under Rule 403.”
Bailey, 696 F.3d at 799 (quotation omitted).
Although the statements are clearly prejudicial to Ms.
Whitmore, that prejudice does not substantially outweigh the
probative value. I will give the jury a limiting instruction
if Ms. Whitmore requests.
fourth prong of the Bailey test-the similarity
between the prior acts and the charged crimes-arises only if
the Government offers her statements about the prior thefts
to show the same modus operandi was used in all of
the robberies. “[I]n order to admit Rule 404(b)
identity evidence on the signature facts or modus
operandi theory, the District Court must make a
threshold determination that, based solely on the evidence
comparing the past acts and the charged offense, a reasonable
juror could conclude that the same person committed both
crimes.” United States v. Carroll, 207 F.3d
465, 469 (8th Cir. 2000). “Two factors are relevant in
analyzing the question. The first is the distinctiveness of
the facts that make the crimes unique and the second is the
proximity of the crimes in space and time.”
the location is the same and the time is not so remote to
exclude on that basis. Thus, the Government must show that
these crimes are distinct from other bank vault robberies
such that the modus operandi indicates that Ms.
Whitmore committed the charged crimes like the prior crimes.
Whitmore contends that there is nothing distinct about how
the charged robberies were carried out that would make them
her “signature” or identify her as the
perpetrator. She contends it is common knowledge that a vault
or safe deposit box would have to be accessed by drilling.
The Government disagrees and contends that only an employee
like Ms. Whitmore would know how to avoid the facility's
security systems and time the robberies to minimize the
presence of employees and customers.
Government may be able to demonstrate both the similarities
between the prior acts and the charged crimes and the
distinctness of these crimes from garden-variety robberies of
banks or secured vaults. Thus, at this time I will not
preclude the Government from offering the statements to
support its modus operandi theory. However, if the
Government intends to offer the statements for that purpose,
I will conduct a more thorough hearing on these issues prior
to trial, which may include testimony or other evidence to
satisfy the Government's burden.
THEREFORE ORDER that Ms. Whitmore's motion in limine
(ECF No. ...