2018 | Cited 0 times | D. Maine | March 5, 2018



ORDER ON MOTIONS IN LIMINE With trial looming, the Government filed three motions in limine. Although the justification of self-defense is not available to a defendant charged with being a felon in possession of a firearm, the Court concludes that the Defendant may put the Government to its proof to establish that his use and possession of the firearm was during and in relation to and in furtherance of a drug trafficking crime. The Court grants the Government o permit the Government to introduce evidence that the Defendant was a prohibited person at the time of his possession and use of the firearm and that the firearm was stolen in order to support its case that the Defendant possessed and used the firearm during and in relation to and in furtherance of a drug trafficking crime. The Court holds in abeyance other related evidentiary issues until presented in the specific context of the trial. I. BACKGROUND On November 10, 2016, a federal grand jury issued an indictment against Kweasia 1

McBride alleging that he committed a federal crime: being a prohibited

1 The indictments refer to the Defendant as Reginald McBride with a number of aliases, including Kweasia McBride. In his response, Mr. McBride refers to himself as Kweasia McBride and captions of the indictments have not been changed.

person in possession of a firearm, an alleged violation of 18 U.S.C. § 922(g)(1). Indictment (ECF No. 1). The asserted basis for his prohibition was the commission of five prior felonies. Id. at 1-2. On February 15, 2017, a federal grand jury issued a superseding indictment against Mr. McBride, alleging that in addition to the felon in possession of a firearm charge, he committed two other federal crimes: (1) possession with the intent to distribute heroin, an alleged violation of 21 U.S.C. §841(b)(1)(C), and (2) carrying and discharging a firearm during and in relation to and in furtherance of a drug trafficking crime, an alleged violation of 18 U.S.C. § 924(c)(1)(A)(iii). Superseding Indictment (ECF No. 24). On November 8, 2017, a federal grand jury issued a second superseding indictment, striking an allegation in the superseding indictment about a 1998 conviction in the state of New York for criminal possession of a weapon in the fourth degree as constituting a predicate felony, but leaving the allegation that Mr. McBride had committed the remaining four felonies before his alleged June 26, 2016 possession of a firearm. Second Superseding Indictment at 1-2 (ECF No. 48). On January 23, 2018, the case was scheduled for jury trial beginning on March 8, 2018 with jury selection on March 6, 2018. (ECF No. 69, 70). On November 9, 2017, the Government filed three motions in limine. First Set of Mots. in Limine (ECF No. 51) ( ); Limine (ECF No. 54) ( ); (ECF No. 55)

( ). On December 8, 2017, Mr. McBride responded to the first motion in limine. (ECF No. 65) ( ).

in limine. & Third Mots. in Limine (ECF No. 61) ( Second & Third Resp.) December 13, 2017 and December 21, 2017 respectively. (ECF No. 67) (

Replies); (ECF No. 68) ( Reply). II. THE FACTS

A. In its memorandum, the Government proffered: On June 26, 2016, Mr. McBride was the passenger in a Ford Taurus car and a female drove him in the Ford to a Walmart store in Augusta, Maine. Mot. at 2. A Volkswagen car followed the Ford to the Walmart parking lot. Id. Once

the Ford and Volkswagen arrived at the parking lot, there was a dispute between the occupants of both vehicles. Id. During the dispute, Mr. McBride grabbed his firearm, a Kel-Tec 9 mm pistol and fired multiple rounds at a male who had traveled to the Walmart in the Volkswagen. Id. The male at whom Mr. McBride fired his pistol, fired shots back at Mr. McBride. Id. After Mr. McBride fired the Kel-Tec pistol at the other male, Mr. McBride threw the pistol on the ground. Id. Mr. McBride then became involved in a physical altercation with the other male and with a female who had been in the Volkswagen. Id. at 2-3. The altercation took place near the Volkswagen and Ford cars. Id. at 3.

After the altercation, Mr. McBride got back into the Ford and the female driver drove from the Walmart parking lot with him. Id. Police officers followed the Ford and stopped it in a residential driveway. Id. Officers approached the female driver and Mr. McBride and detained them. Id. Officers found suspected heroin in Mr. heroin and that it weighed 40.991 grams. Id.

After the shooting on June 26, 2016, officers conducted a Mirandized interview of Mr. McBride. Id. Mr. McBride admitted possessing the pistol he discharged in the Walmart parking lot, discharging the pistol multiple times, and throwing it on the ground. Id. Mr. McBride admitted that the pistol he fired was his pistol, that he pulled out the pistol during the dispute, and that he purchased the pistol. Id. He claimed that he had bought the pistol legally. Id. On July 6, 2016, officers executed a search warrant on the Ford. Id. Underneath the passenger seat where Mr. McBride had been sitting, officers located a loaded, Imperial Metal Products, model 7, .22 caliber revolver. Id. In the trunk, officers found a Jennings, model 38, .32 caliber firearm and a Cobra Enterprises of Utah, Inc. model C22M, .22 caliber firearm. Id. Also in the trunk, officers found multiple scales, ammunition, and a firearms speed loader. Id. Before June 26, 2016, Mr. McBride was prohibited from possessing firearms because he had multiple felony convictions. Id. at 3-4. Officers discovered that the Kel-Tec pistol had been stolen and that Mr. McBride was not the original purchaser of the Kel-Tec. Id. at 4.


A. The First Motion in Limine: Self-Defense

1. The Gov

Mr. McBride from presenting evidence of self-defense to the charge in Count One of the second superseding indictment, the felon in possession charge, because in its view self-defense is not a legal justification to the charge of being a felon in possession of a firearm. Id. at 4-6. Similarly, the Government seeks an order prohibiting Mr. McBride from presenting evidence of self-defense to the charge in Count Three of the second superseding indictment, the carrying and using a firearm during and in relation to a drug trafficking offense, possessing the firearm in furtherance of the drug trafficking crime, and discharging the firearm. Id. at 7-10.

2. Kweasi In his response, Mr. McBride confirms that he does not intend to assert self- defense as a defense to Counts One and Three. at 1. In his words, that the circumstances justified the Defendant Id. at 2. Nor does he in furtherance of . . . . Id.

Nevertheless, Mr. McBride does intend to put the Government to its proof on ion to a drug trafficking id. at trafficking crime. Id. In other words, Mr. McBride intends to argue that his

possession and use of the firearms were related not to a drug trafficking offense but Id.

3. at 1-5. In -defense argument in a different guise. Id. at 1. It reiterates that self-defense is not a legal justification for either the felon in possession or possession and use charges. Id. at 1-2. The Government points to United States v. Palumbo, 468 Fed. Appx. 751, 752 (9th Cir. 2012) (unpublished) in which enhancement for discharge, 18 U.S.C. §924(c)(1)(A)(iii), does not require the

discharge to be in furtherance of the drug offense. It requires only that the defendant possessed the gun in furtherance of a dru at 3. Accordingly, irrelevant. Id. at 2. The Government recites the anticipated evidence and argues

nt discharged the firearm, he had already committed and was continuing to commit the offense of carrying and using a firearm during and in Id. at 4.

B. The Second and Third Motions in Limine: Stolen Firearm and

Felony Status 1. In its second motion in limine, the Government represents that the Kel-Tec 9 mm pistol that it alleges Mr. McBride possessed and used on June 26, 2016 was stolen. at 1. The Government says that during its investigation into this case, it determined that the Kel-Tec was reported stolen on January 21, 2016. Id. The Government states that Mr. McBride was not the original purchaser of the firearm. Id. at 1. The Government cites caselaw which it argues stands for the proposition that the fact a firearm is stolen is admissible to prove a § 924(c) case. Id. at 2. Finally, it notes that it should be allowed to introduce this evidence to counter the police that he had purchased the Kel-Tec legally. Id. In its third motion in limine, the Government maintains that it should be status as a convicted felon is relevant in determining whether he is guilty of violating 18 U.S.C. § 924(c) as charged in Count at 1. The Government cites caselaw from the Third and Fifth Circuits that states that a jury should be allowed to consider whether a de illegal in determining whether the Government has met its burden on the § 924(c)

charge. Id. at 2. Similarly, the Government says that it should be permitted to argue the illegality of his possession in response to his statement to the police after the incident that he legally purchased the firearm. Id.

2. Mr. McBride incorporates his response to the second and third motions in one response because they raise similar issues. Mr. McBride concedes that under Fifth Circuit law, whether a firearm was stolen and whether a defendant could legally possess a firearm have been deemed relevant to a § 924(c) charge. Third Resp. at 1-2. However, Mr. McBride reviews First Circuit law and contends

Id. at 2-3. Mr. McBride notes that in United States v. Sherman, 551 F.3d 45, 50 (1st Cir. 2008), the First Circuit listed certain properly-considered factors but did not include whether the firearm was stolen. at 2; see Sherman, 551 F.3d at 50 accessible, the proximity of the firearm to the drugs, and the surrounding

quoting United States v. Robinson, 473 F.3d 387, 400 (1st Cir. 2007)). He acknowledges that in United States v. Felton, 417 F.3d 97, 105 (1st Cir. 2005), the First Circuit quoted a district court jury instruction on a § 924(c) case that included reference to whether the firearm was stolen as a factor for jury consideration, but Mr. McBride says that the § 924(c) instruction was not challenged on appeal. at 2-3. He also admits that in United States v. Marin, 523 F.3d 24, 28 (1st Cir. 2008), the First Circuit concluded that the fact a firearm had an obliterated serial number was properly considered by a jury in a § 924(c) case. at 3.

Mr. McBride maintains that evidence the weapon was stolen would be unfairly prejudicial to him. Id. at 3. Similarly, Mr. McBride argues that evidence of any of his prior felony convictions would be unfairly prejudicial. Id. He also says that an

invites inquiry into additional facts irrelevant to this case, including: how the Defendant came into possession of the weapon, when the Defendant came into possession of the weapon in relation to its stolen status, whether the Defendant had involvement in the theft of the gun and whether the Defendant had any subjective awareness of the stolen status of the gun. Id. at 4. firearm theft trial as a companion, and tangentially- Id. Even if the

jury may consider whether the firearm was stolen as a factor under § 924(c), Mr. to consider - Id. at 5.

3. disregard the factors in United States v. Ceballos-Torres, 218 F.3d 409, 413-16 (5th

Cir. 2000), a Fifth Circuit case. at 1-2. Furthermore, the Government contends that Mr. McBride has misinterpreted First Circuit precedent on the stolen firearm issue. Id. at 2-3. It argues that in Sherman, the First Ceballos-Torres nor did it cite Ceballos-Torres Id. at 3. Felton and Marin Id. at 3-4. The

Government cites other circuits that have agreed with the Fifth Circuit. Id. at 4. The

Government explains its view of the probative value of the fact the firearm was stolen: engaging in drug trafficking is inconsistent with mere innocent poss Id. at 5.

was not possessing the pistol for lawful or innocent purposes . . .

fact that the defendant was possessing the pistol to further his drug trafficking activity Id. Acknowledging that evidence of the stolen nature of the firearm would be prejudicial to Mr. McBride, the Government asserts it would not be unfairly prejudicial. Id. at 5-6. The Government also notes that evidence of h Id. at 6-7.

trial. Id. at 7. The Government apparently plans to introduce only the fact that the

firearm was stolen; it does not intend to introduce evidence that Mr. McBride stole it or how Mr. McBride came to possess it. Id.


A. The First Motion in Limine The Court agrees with Mr. McBride on the admissibility of evidence of why he carried and discharged a firearm on June 26, 2016. To prove Count Three, the Government must prove two elements: (1) that Mr. McBride committed the drug

trafficking charge in Count Two or carried a firearm durin that he possessed the Kel- See Judge Nancy Torresen, PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT § 4.18.924 (updated Dec. 15, 2017). The indictment also charges that Mr. McBride discharged the firearm. Second Superseding Indictment (ECF No. 48). the First Circuit endorsed as adequate and accurate a jury instruction:

minimum it means that the firearm must have had some purpose or

effect with respect to the drug trafficking crime. If a firearm is present simply as a result of coincidence or accident it cannot be said that it was used or carried in relation to the drug traffic[king] offense. The firearm must have facilitated or have had the potential to facilitate the drug offense. United States v. Roberson, 459 F.3d 39, 44-46 (1st Cir. 2006). T . United

States v. De La Paz-Rentas, 613 F.3d 18, 27-28 (1st Cir. 2010). It Id. at 28 (quoting Smith v. United States, 508 U.S. 223, 238

(1993)). . . . requires the Government to United States v. Delgado-Hernandez, 420 F.3d

16, 25 (1st Cir. 2005) (quoting H.R.Rep. No. 105-344, at 11 (1997)).

To illustrate why the Court concludes that Mr. McBride will be allowed to present evidence and argue to the jury that the Government failed to meet its burden on Count Three, assume that the Government is able to prove that Mr. McBride was involved in drug trafficking, but the evidence also shows that Mr. McBride knew the male occupant of the Volkswagen to be a violent, nasty and dangerous person who usually carried a firearm and who held a longstanding grudge against Mr. McBride unrelated to drug trafficking. Further assume that when they encountered each other in the parking lot, Mr. McBride and the other male engaged in a war of words, not over drugs, but over something else. Finally, assume that the evidence also demonstrated that although Mr. McBride pulled out and shot his Kel-Tec, he did not do so because of drugs but because he feared the other male. In these circumstances, Mr. McBride would clearly be allowed to present evidence of an alternative reason for his firearm possession and use, and to argue to a jury that the Government had not established all the elements of Count Three. similar to self-defense, it remains the ssion and use of the firearm were linked to the drug trafficking offense and not to some other cause. There are some outer limits to allowing a defendant to argue a theory of the case wholly unsupported by the evidence, but at this stage, the Court does not know all the evidence the parties, particularly Mr. McBride, will introduce at trial on this precise subject. The Court is not in a position to rule out evidence in anticipation of trial when it does not know what that evidence will be.

Finally, in his response, Mr. McBride stated that he

would not object to a limiting instruction at the appropriate time explaining to the jury that if it finds a firearm discharge occurred they can consider the circumstances surrounding the discharge as relevant to whether the Government can successfully prove that the Defendant whether self-

Def First Resp. at 3-4. The Court directs counsel to consult each other to determine whether such an instruction should be given and, if so, the proper language of the instruction.

B. The Second and Third Motions in Limine Regarding the first issue whether the fact that a firearm is stolen is a factor that a jury may consider in evaluating a § 924(c) charge the Court agrees with the Government. The Court begins with United States v. Luciano, 329 F.3d 1 (1st Cir. 2003), where the First Circuit first cited Ceballos-Torres. Luciano, 329 F.3d at 6. In Luciano, the First Circuit observed that to prove a § 924(c) charge, the Government Id. The First Circuit described a number of factors relevant to the nexus in that case,

including: (1) the value of the drugs, and (2) the fact that drug dealers often use firearms to protect drug stockpiles, to prevent encroachment by other dealers, and for retaliation. Id. The Luciano

establish a nexus between the possession of the firearm and the drug trafficking. Id.; see also United States v. Garner, 338 F.3d 78, 81 (1st Cir. 2003).

In United States v. Carlos Cruz, 352 F.3d 499 (1st Cir. 2003), the First Circuit quoted with approval the language in Ceballos-Torres, where the Fifth Circuit under § 924(c). Id. at 509-10 (quoting Ceballos-Torres, 218 F.3d at 415).

The First Circuit next cited Ceballos-Torres in United States v. Grace, 367 F.3d 29 (1st Cir. 2004). In Grace, the First Circuit discussed Ceballos-Torres in footnote 5 and wrote in part:

After noting that the gun in that case was loaded, accessible, and stored in an apartment with drugs and that the defendant acquired the gun illegally, the Ceballos court concluded that the gun protected the

Id. at 35 n.5 (emphasis supplied). In 2005, t charge, which expressly included a reference to whether the firearm was stolen as a

proper factor for jury consideration, and did not suggest that the instruction was incorrect. Felton, 417 F.3d at 104-05. The Felton Court compared a § 924(c) case with Id. at 106.

In Robinson, a 2007 case, the First Circuit used general language in discussing the factors a jury may consider in a § 924(c) case: [W]hether the firearm was loaded, whether the firearm was easily accessible, the proximity of the firearm to the drugs, and the surrounding circumstances. Id. at 399-400. In Marin, the First Circuit observed that a jury could consider and that [the defendant] admitted that he purchased the gun from another cocaine

o possess the

Finally, in Sherman, the First Circuit Marin, 523

F.3d at 27). The First Circuit has analyzed the issue from both objective and subjective standpoints. Id. As regards the objective analysis, the Sherman Court stated:

Applying the objective analysis, this court has acknowledged a number of factors that the trier of fact may consider including firearm was loaded, whether the firearm was easily accessible, the proximity of the firearm to the drugs, and the surrounding circumstances. Id. (quoting Robinson, 473 F.3d at 400); see also Felton, 417 F.3d at 105 (type of weapon and legality of possession Id. (emphasis supplied). rm may

be considered by a jury in evaluating a § 924(c) charge, but it has all but said it. Furthermore, in reviewing the § 924(c) cases that the First Circuit has decided, the fact patterns have not directly presented a case where this issue has been raised. Moreover, all the other circuits that have considered the issue have ruled in favor of admissibility. United States v. Snow, 462 F.3d 55, 62 n.6 (2d Cir. 2012); United States v. Walker, 657 F.3d 160, 172 (3d Cir. 2011); United States v. Moore, 769 F.3d 264, 270 (4th Cir. 2014); United States v. Combs, 369 F.3d 925, 933 (6th Cir. 2004) (citing United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001)); United States v. Brown, 724 F.3d 801, 803 (7th Cir. 2013) (citing whether the weapon is stolen as among the

United States v. Mosely, 465 F.3d 412, 415-16 (9th Cir. 2006) whether a firearm is unregistered is an appropriate factor to consider); United States

v. Bustos, 303 F. Appx. 656, 668 (10th [W]e . . . continue to hold illegal firearm possession is a relevant factor in determining whether possession of a firearm or ammunition was United States v. Woodard, 531 F.3d 1352, 1362 (11th Cir. 2008). By contrast, Mr. McBride has offered no authority from any jurisdiction that has accepted his position. As to the relevance and probative value, the common sense test. Assume that Mr. McBride were legally entitled to possess a

firearm, that he had gone to a local federally-licensed firearms dealer and properly purchased the firearm, that he had assiduously kept it under lock and key, and that he had routinely used it at a local gun range in target shooting. Certainly this cumulative evidence would be admissible to allow an inference that his possession was a Felton, 417 F.3d at 106. But the opposite

must also be true. If, as the Government alleges in this case, the firearm was stolen and if, as the Government alleges, Mr. McBride could not legally possess a firearm to begin with, a jury should be allowed to consider these factors as part of the See Robinson, 473 F.3d at 400.

Regarding unfair prejudice, Mr. McBride has a point about how much of this evidence comes before a jury. The wrinkle in this case is that Mr. McBride is contesting whether he was a prohibited person at the time of his firearm possession on June 26, 2016. See Old Chief v. United States, 519 U.S. 172, 174 (1997) (concluding that when a defendant offered to stipulate that he had been convicted of a crime punishable by imprisonment exceeding one year, the district court abused its discretion in admitting his actual record of conviction because of its discounted probative value was substantially outweighed by the risk of unfair prejudice). In his courts as a result of the case Old Chief v. U.S. at 3 (ECF No. 74).

conviction evidence of the Government will be presented on this Id.

In its trial brief, the Government indicated its intention to introduce into evidence certified court records of four prior felony convictions: Possession of a Controlled Drug (State of Virginia, Circuit Court of Fairfax County), Forging a Public Record (State of Virginia, Circuit Court of Fairfax County), Distribution of Cocaine, (State of Virginia, Circuit Court of the City of Alexandria), and Criminal Possession of a Weapon in the Third Degree (Supreme Court of New York, New York County). at 3, 9 (ECF No. 75). -made strategic decision to contest whether he was a prohibited person at the time of the June 26, 2016 incident and on his acknowledgement that the Government will be allowed to

introduce evidence of the actual prior convictions, his earlier-expressed objection to any evidence of the actual nature of his prior convictions has been significantly eclipsed by his current position. This development substantially mitigates the potential prejudice of referencing his prior convictions. While Mr. McBride has the right to object to evidence the Government offers, it remains to be seen what is left of objectionable evidence, given the fact the jury is likely to learn about the exact nature, if not the details, of his alleged prior convictions. Regarding the stolen firearm evidence, the Court gathers that the Government intends to present evidence, presumably through the original purchaser and legal owner of the Kel-Tec, that the weapon had been stolen from the true owner. The Government does not intend to present further evidence as to how Mr. McBride himself came into possession of the firearm. at 7. As explained, the Court views this evidence as permissible under First Circuit guidance and the prejudicial impact against Mr. McBride as relatively benign, because the Government is not asserting that he stole the firearm or that he came into possession of the firearm knowing it was stolen. In view of the narrow set of evidence the Government wishes to present, the

the firearm, and the absence of any specificity as to potential prejudice beyond the inherent prejudice from any evidence of a stolen firearm, t Evidence 403 balancing analysis favors admission of the evidence the Government has proffered. If the parties, particularly Mr. McBride, wish to present the jury with

a limiting instruction for the Court to give the jury at the time of the admission of this evidence, they should feel free to do so. If the Government wishes to present a broader range of evidence of the stolen nature of the firearm, counsel for the Government will have to approach the bench before doing so. V. CONCLUSION The Court GRANTS in part and DISMISSES in part Set of Motions in Limine (ECF No. 51)

insofar as it contends that the Defendant will not be allowed to assert the defense of self-defense to Count One, the felon in possession charge; the Court DISMISSES the to Count Three, the during and in relation to and possession in furtherance of charge, because more facts are necessary to make a final ruling. in Limine (ECF No. 54) in Limine (ECF No. 55). The Court concludes -Tec pistol was illegal and that the Kel-Tec pistol was stolen is admissible at trial. The Court withholds further rulings on these issues until specific evidence is presented at trial. SO ORDERED.

/s/ John A. Woodcock, Jr. JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE Dated this 5th day of March, 2018

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