The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court, in this criminal proceeding, are four motions in limine filed by Christopher Liston Davis (hereinafter "Defendant"), as well as a request by the Government to instruct the jury on willful blindness. For the reasons set forth below, the Court grants in part and denies in part Defendant's four motions in limine, and the Court reserves on the Government's request to instruct the jury on willful blindness.*fn1
On January 19, 2009, Defendant applied to enter the United States by Amtrak train near Champlain, New York. Defendant presented the following documentation, all in the name of Robert Alan Smith, to United States Customs and Border Protection ("CBP") Enforcement officers Noel Barriere and Andrew Harder: (1) a United States passport issued February 16, 1999; (2) a certified San Diego County "Certificate of Live Birth"; and (3) a Florida drivers' license.*fn2 Defendant also completed a Customs Declaration form and listed his name as Robert Alan Smith and date of birth as that which appears on each of the three identification documents.
CBP officers ultimately fingerprinted Defendant and learned that his true identity was Christopher Liston Davis. When fingerprinted, Defendant admitted that his true identity was not, in fact, Robert Alan Smith, that he was not a citizen of the United States, and that he had no legal authority to enter or attempt to enter the United States.
Through fingerprint analysis and records checks, CBP Enforcement Officers Barriere and Harder learned that Defendant was previously removed from the United States to his native country Jamaica, on or about April 23, 2002.*fn3 Records checks also proved that Defendant neither applied for nor received permission of the Attorney General or the Secretary of the Department of Homeland Security to apply to re-enter the United States.
On January 19, 2009, CBP officers also found in Defendant's possession the following other documents or items, all also in the name of Robert Alan Smith: (1) a Florida Voter ID (registration) Card showing registration on March 2, 2004; (2) an expired Florida drivers' license issued on October 1, 1998, and reissued as duplicate on October 13, 1999; (3) bank credit cards and access devices; and (4) two other identification cards. CBP officers found no identification documents in Defendant's belongings that indicated his true name.
The United States Department of State, through its Special Agent Bruce Palumbo, provided CBP Enforcement Officer Barriere with a copy of the original 1999 passport application submitted to his agency by Defendant. The application lists the items used by Defendant to prove United States citizenship and birth, including the same birth certificate number and drivers' license number that Defendant presented to CBP officers on January 19, 2009.
Department of Homeland Security records indicate that Defendant used the fraudulent "Robert Alan Smith United States passport" to enter and depart the United States on numerous occasions.
II. RELEVANT PROCEDURAL BACKGROUND
On February 26, 2009, the Grand Jury returned a three-count Superseding Indictment against Defendant. The Superseding Indictment charges Defendant, who is a citizen of Jamaica and has no legal immigration status in the United States, with three crimes, each arising out of his conduct on January 19, 2009, near Champlain, New York: (1) attempted entry of removed alien (aggravated felon), in violation of 8 U.S.C. § 1326(a) and (b); (2) false use of passport, in violation of 18 U.S.C. § 1542; and (3) aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1), (c)(7), and (c)(10). On May 22, 2009, the Grand Jury returned a Second Superseding Indictment against Defendant, regarding the same three counts. (Dkt. No. 32.)
Currently before the Court are Defendant's four motions in limine. Specifically, Defendant makes the following requests: (1) that the Government be precluded from arguing that a rational jury could find beyond a reasonable doubt that Defendant knew that the documents he possessed (passport, license, birth certificate) belonged to another actual person; (2) that the Government Accountability Office ("GAO") report on the vulnerabilities of the passport oversight system be admitted into evidence under either Fed. R. Evid. 201 or Fed. R. Evid. 902; (3) that all references in the indictment to Defendant being an Aggravated Felon be stricken, and that the Government be precluded from referencing or offering evidence of Defendant's prior conviction for an Aggravated Felony; and (4) that the Government be precluded from mentioning Defendant's prior criminal convictions for impeachment purposes pursuant to Fed.R. Evid. 609.
A. Defendant's Motions in Limine
1. Whether the Issue of Defendant's "Knowledge" Should be Presented to the Jury
In his first motion in limine, Defendant argues that the Government should be precluded from arguing that a rational jury could find beyond a reasonable doubt that Defendant knew that the documents he possessed (passport, license, birth certificate) belonged to another actual person. In support of his request, Defendant essentially offers two arguments. First, Defendant argues that the Government will argue that Defendant knew that the documents went to another actual person because Defendant successfully used the birth certificate to apply for the passport. Defendant argues that the Government's argument relies on two premises that the Government cannot prove: (1) U.S. passports may be successfully obtained only after the submission of genuine birth certificates; and (2) Defendant knew that U.S. passports may be successfully obtained only after the submission of genuine birth certificates (and never after the submission of counterfeit birth certificates). Defendant asserts that the GAO study demonstrates that U.S. passports may be ...