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United States v. Payne

United States District Court, W.D. Virginia, Roanoke Division

October 4, 2016



          Elizabeth K. Dillon United States District Judge

         Pending before the court is defendant Antonio Maurice Payne's oral motion in limine, which he made and argued at the pre-trial conference held on October 3, 2016. Payne argues that the court should exclude the evidence referenced in the government's Rule 404(b) notice (Dkt. No. 42, see also Dkt. No. 52-1), which pertains to a June 7, 2015 incident involving Mr. Payne, and evidence from a confidential source that is referenced in an ATF report dated September 30, 2016 (Dkt. 52-2). For the reasons set forth below, the court will grant in part and deny in part Payne's motion in limine.

         I. BACKGROUND

         Payne is charge in a single-count indictment with knowingly possessing a firearm on August 9, 2015, after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). According to the government's proffer of facts, on that date, Payne was a passenger in a vehicle driven by a woman named Cierra Preston. The vehicle failed to stop at a stop sign and police officers attempted to stop the vehicle for the traffic infraction. The vehicle did not stop, however, and so a brief chase ensued. After a relatively short pursuit, the vehicle did stop without further incident. The officers suspected that something may have been thrown from the car, so they retraced the route along which the car had traveled. They recovered a 9mm pistol in the street along the route. The pistol was scuffed and scratched, which would have been consistent with it being thrown from a car.

         Officers advised Payne of his Miranda rights, and then showed him the pistol. He acknowledged that the pistol was his, and he admitted throwing it out of the car. It was later determined that the pistol was stolen. Approximately three grams of cocaine were also found in the car.

         Payne apparently intends to stipulate at trial that: (1) at the time of the offense, he was a convicted felon who had not had his gun rights restored; (2) the pistol was a firearm, designed to expel a projectile by means of an explosion; and (3) the firearm had moved in interstate or foreign commerce.

         The government has given notice of its intent to introduce, under Rule 404(b), evidence of a prior incident involving Payne and a firearm, and evidence by a confidential source tying Payne to both a firearm and the sale of illegal drugs. The first incident occurred on June 7, 2015, approximately two months prior to the charged offense. According to a police report, Payne was a passenger in a car driven by Sierra Banks.[1] When police stopped the vehicle, they found cocaine under Payne's seat, a holster and loaded pistol magazine next to his seat, and an unholstered pistol containing another loaded magazine in the locked glove box in front of him. He had the key to the glove box and had been observed by one of the officers rummaging in the glove box during the traffic stop. Ms. Banks told police that the pistol belonged to her, and no firearms charge was brought against Payne based on that incident. (Dkt. No. 52-1.)

         The government has also notified Payne that it intends to introduce the testimony of a confidential informant (CI) to testify about having purchased drugs from Payne and having seen him with a gun on more than one occasion. Specifically, the CI told agents that, on the date of the offense (August 9, 2015), the CI was out on the street, and the vehicle in which Payne was a passenger drove up next to him. Payne asked the CI if he/she “needed anything, ” which the CI understood to mean narcotics. The CI's understanding was based, in part, on the fact that he/she had purchased crack cocaine from Payne on approximately 12 or 13 previous occasions, in amounts ranging in price from $10 to $40. On that date, the CI told Payne that he/she was good and that he/she would give him a call. The CI immediately reported that information to a Roanoke City police officer and provided both a description of Payne's vehicle and the direction it was headed. (Dkt. No. 52-2.)

         When agents asked him/her whether there had been other occasions where he/she had seen Payne with a firearm, the CI also told agents that a few days prior to the August 9, 2015 incident, he/she was leaning into the same vehicle used in the offense, in order to speak with Payne, and saw a dark-in-color handgun in Payne's lap. The CI also stated that a couple of days after August 9, 2015, he witnessed Payne in public with a revolver in his waistband. The CI further told agents that “it is general knowledge that Payne has a gun on him.” (Id.)

         In its Rule 404(b) notice, the government states that that the June 7, 2015 stop is relevant to show intent, knowledge, plan, and absence of mistake. (Dkt. No. 42.) The United States also argues-and emphasized during oral argument-that it believes all of the events suggest a common scheme or plan by Payne, in which he would get others to drive him around while he sold cocaine, and that he would possess a gun while doing so.

         Payne seeks to exclude all of this evidence, arguing that it does not fall within any of the exceptions set forth in Federal Rule of Evidence 404(b)(2), and that, regardless, it should be excluded under Rule 403.


         A. Standard of Review

         A motion in limine allows the trial court to rule in advance of trial on the admissibility of anticipated evidence. Luce v. United States, 469 U.S. 38, 41 n. 4 (1984). The trial court should exclude evidence on a motion in limine only when the evidence “is clearly inadmissible on all potential grounds.” United States v. Verges, No. 1:13-cr-222, 2014 WL 559573, at *3 (E.D. Va. Feb. 12, 2014). When faced with a motion in limine, though, the court “may reserve judgment until trial so that the motion is placed in the appropriate factual context.” Verges, 2014 WL 559573, at *3 (citing Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F.Supp. 276, 287 (S.D.N.Y. 1996)). Moreover, even if the trial court does rule on the ...

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