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United States v. Joe

July 21, 2008


The opinion of the court was delivered by: John F. Keenan, United States District Judge


The defendant, Darryl Joe ("Joe", or "Defendant"), is charged by superseding indictment with four counts: being a previously-convicted felon in possession of a firearm and ammunition, in violation 18 U.S.C. § 922(g)(1) ("Count One"); possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. § 5861(d) ("Count Two"); carjacking, in violation of 18 U.S.C. § 2119(1) ("Count Three"); and brandishing a firearm- and aiding and abetting the brandishing of a firearm-during and in relation to a federal crime of violence, in violation of 18 U.S.C. §§ 924(c) and 2 ("Count Four"). Trial is scheduled to begin on July 22, 2008.

Before the Court is the Government's request for pretrial rulings on the admissibility of certain evidence. The Government seeks rulings: (1) that it may introduce evidence of the facts underlying Joe's 2003 felony conviction for possession of a loaded firearm, pursuant to Federal Rule of Evidence 404(b); (2) that it may cross-examine Joe about this prior conviction if he testifies, pursuant to Federal Rule of Evidence 609(a)(1); (3) that the defense may not cross-examine the victim, Michael Hargrove ("Hargrove", or the "Victim"), about certain prior offenses; and (4) that the defense may not elicit evidence of Joe's acquittal on a felon-in-possession charge in the Southern District of New York in 2007.

The Government made these requests in a letter dated March 3, 2008 ("Govt.'s Letter").*fn1 At a conference held on June 19, 2008, Joe's former court-appointed attorney moved to be relieved as counsel. The motion was granted and Kelly Sharkey, Esq., was appointed as new counsel. Ms. Sharkey submitted a letter in response to the Government's requests on July 9, 2008 ("Def.'s Letter").


The Government hopes to prove at trial the following, along with other facts.

On or about July 14, 2007, two armed men-one carrying a pistol and the other a shotgun-stole a car from the Victim at gunpoint. The Victim called 911 to report the carjacking. Shortly thereafter, a police officer saw the Victim's car being driven by a man, alleged to be the Defendant, matching the description of one of the suspects.

After the police drove behind the Victim's car, the Defendant stopped the car, jumped out and ran into a building. At that time, the Defendant was wearing a blue striped shirt. A police officer secured the Victim's car and saw a bag on the floor in the back of the car with a shotgun sticking out of it.

The bag turned out to contain a sawed-off Remington shotgun and several rounds of shotgun ammunition.

Police officers entered the building and found the Defendant, out of breath and sweating, in the hallway of one of the floors. The Defendant was unable to explain his presence in the building satisfactorily. When the Defendant was brought outside, police officers identified him as the man they had seen run from the Victim's car into the building. At this time, the Defendant was wearing a white undershirt. Police officers found a blue striped shirt on the ground below a stairwell window inside the building in which they had just found the Defendant. Later, at the police station, the Victim identified the Defendant as one of the men who stole the Victim's car at gunpoint.


A.Rule 404(b) Evidence of Defendant's Prior Possession of Firearms

Under Rule 404(b), evidence of uncharged acts is not admissible merely to prove the defendant's character or propensity, but is admissible for any other relevant purpose, such as to show "preparation, plan, knowledge, identity, or absence of mistake or accident" where those issues are in dispute. Even if admissible under Rule 404(b), the evidence is subject to a Rule 403 balancing test and must be excluded if its probative value is "substantially outweighed by the danger of unfair prejudice." Fed. R. Evid. 403; United States v. Paulino, 445 F.3d 211, 221 (2d Cir. 2006) (stating that the Second Circuit "has long held an inclusionary approach" to uncharged acts evidence).

The Government has offered to prove at trial that, on July 27, 2003, Joe possessed a loaded 9mm Interarms model firearm in the vicinity of 1223 Boston Post Road in the Bronx, which is near where Joe allegedly possessed the shotgun in the instant case. The Government would further prove that Joe threw to the ground a black ...

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