United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, Chief United States District Judge
October 18, 2018, a federal grand jury returned a one count
indictment charging defendant Diamond Topaz Brown with
unlawful possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1). The indictment
alleges that on or about September 20, 2018, Brown, having
been convicted of a crime punishable by imprisonment for a
term exceeding one year, did knowingly possess, in and
affecting commerce, a firearm, that is, a Taurus, model PT111
G2, 9mm semi-automatic pistol. ECF No. 4, at 1. On February
5, 2019, the government filed a notice, ECF No. 31, pursuant
to Rule 404(b) of the Federal Rules of Evidence. In this
notice, the government stated its intention to admit three
different items into evidence: (1) that Brown possessed
loaded firearms on two prior dates, namely August 22, 2006
and October 19, 2012; (2) that Brown threatened to kill
several individuals and their families and made other threats
of violence in the days immediately preceding the charged
offense; and (3) a probation form purportedly signed by Brown
stating, "I will not use, own, possess, transport or
carry a firearm." ECF No. 31, at 1-2. The matter before
the court is Brown's motion to suppress, ECF No. 32, and
exclude from evidence the three items above filed on February
11, 2019. On February 15, 2019, the government filed its
response in opposition, ECF No. 33, to Brown's motion. On
Monday, March 18, 2019 the court held a hearing on this and
other outstanding motions. Upon consideration of the
parties' arguments, a thorough review of the record, and
for the reasons stated below, Brown's motion to suppress
is GRANTED in part and DENIED in part.
following background is a summary of the evidence the
government expects to adduce at trial and is derived from the
government's factual proffer. In the late hours of
September 19 and into the early hours of September 20, 2018,
members of the Roanoke Police Department, United States
Marshals Capital Area Regional Fugitive Task Force, and
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)
were attempting to locate Brown and serve her with
outstanding state felony extortion warrants related to
various threats of violence allegedly made by Brown. ECF No.
33, at 1. These state warrants had been obtained by Roanoke
Police Department officers. Id. While searching for
Brown, a red Infiniti SUV, associated with Brown's wife
and understood to be driven by Brown, was located in the
parking lot of a Roanoke-area pool hall and video gaming
venue, Guys and Dolls. Id. The investigative team
set up surveillance around the business in order to attempt
to arrest Brown on the warrants. Id. at 1-2. While
surveilling the parking lot, officers observed Brown exiting
Guys and Dolls and approaching the red SUV. Id. at
2. Brown was observed opening the driver's side door of
the red SUV, appeared to remove an item from the vehicle and
to place it under her shirt. Id. Brown then walked
over to a white Toyota sedan, and opened the driver's
side door. Id. Brown then appeared to remove the
object from under her shirt and place it under the
driver's seat of the Toyota. Id.
she did this, officers moved in to arrest Brown, who had
quickly re-entered Guys and Dolls. Id. Officers
located Brown and arrested her without incident. Id.
Officers looked in the driver's window of the white
Toyota sedan, whose driver's seat Brown had just been
seen placing an object under. Id. While looking in
the driver's window of that sedan, officers saw part of
what appeared to be a pistol protruding out from under the
driver's seat. Id. The vehicle was secured, and
a state search warrant was obtained and executed on the
vehicle. Id. Upon searching the vehicle, a Taurus,
model PT111 G2, 9mm semi-automatic pistol, serial number
TIZ04805, was recovered from under the driver's seat.
Id. The firearm was loaded with an extended magazine
containing 29 rounds of ammunition. Id. The officer
conducting the search also found a baggie with two grams of a
white, rock-like substance. Id.
review of Guys and Dolls' security camera footage from
the Guys and Dolls parking lot allegedly showed Brown
removing what appeared to be a handgun from the red Infiniti
SUV and placing it under her shirt. Id. Brown can
then allegedly be seen going to the white Toyota sedan,
bending down into the car, where she appears to place the
item under the front seat of that vehicle. Id. After
her arrest, officers Mirandized Brown who, according the
government, acknowledged her rights and checked the box on a
form that she understood them. Id. Brown went on to
speak with officers, and among other things, denied having a
firearm in her possession. Id. A query of
Brown's criminal history reportedly revealed that she had
been convicted of multiple felony convictions before the
September 20, 2018 conduct charged in the current indictment.
Id. at 3. Her prior convictions include felony
convictions for eluding police, possession of controlled
substances, possession of a cellular phone by a prisoner, and
four separate convictions for manufacture, sale, possession
of controlled substances, and revocation of a suspended
government indicates that an ATF Special Agent and Interstate
Nexus Expert was provided a description of the above-listed
firearm and concluded that it is a firearm, as defined in the
federal code, and that it was manufactured outside the
Commonwealth of Virginia, and therefore, since it was
possessed in Virginia, had moved in and/or affected
interstate or foreign commerce. Id. On October 18,
2018, a federal grand jury returned a one-count indictment,
charging Brown with being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). Id. The
indictment was filed with this court on the same day.
Id. On February 5, 2019, the government filed its
notice pursuant to Rule 404(b) of the Federal Rules of
Evidence indicating evidence that it may seek to introduce at
notice included two prior dates that Brown has possessed a
firearm, which the government characterizes as similar
conduct to what is charged in the present matter.
Id. Specifically, on or about October 19, 2012, the
government states that Brown possessed a loaded 9mm firearm,
which was recovered under the driver's seat in a car she
was driving. Id. The police also recovered a scale
with residue on it and a quantity of white chunky substance
in the center console and $540 in cash in the front pants
pocket of Brown. Id. Brown was charged with
possession of crack cocaine with the intent to distribute,
possession of a firearm after being a convicted felon, and
several other charges. Id. The government indicates
that pursuant to a plea agreement, Brown pled guilty to the
cocaine charge and the firearm charges were dismissed.
Id. at 3-4. The notice also included Brown's
possession of a loaded handgun on August 22, 2006, in which
she was in the front passenger's seat with a .22 caliber
pistol in her lap. Id. at 4. When Brown was detained
related to the 2006 incident, she stated that she just bought
the pistol from another individual that night. Id.
An officer obtained a juvenile petition for Brown for
possessing the firearm by a person under the age of eighteen.
government's notice also included evidence that in the
days leading up to the conduct charged in the indictment,
Brown made various threats to kill several individuals and
their families, that she would target area schools, and that
she and others were going to shoot up and/or rob Sugar
Ray's, another video gaming establishment in Roanoke,
Virginia. Id. Specifically, the government indicates
that multiple witnesses are expected to testify about threats
Brown made from September 15-18, 2018. Id. On
September 15, a witness allegedly heard Brown get into a
disagreement with a cashier at Sugar Ray's and threaten
to shoot up the business and rob it. Id. Another
witness reportedly heard Brown call others to have them to
bring their guns to the building to shoot up the place.
Id. Also, on September 16, Brown was present at
Sugar Ray's, and was playing video gaming machines.
Id. On a video that was taken at this time, she
allegedly can be heard saying that she was going to go to her
car, get more money, and get her "strap," a term
that the government claims is a reference to a firearm.
Id. Again, on September 18, this witness saw Brown
at Sugar Ray's, and Brown allegedly stated that she would
shoot up the place. Id. This same day, several
individuals allegedly received phone calls from Brown
threatening to kill them and their families. Id.
Brown allegedly reiterated threats that she was going to have
someone shoot up or rob Sugar Ray's. Id.
Finally, in speaking with one of these individuals, Brown
allegedly demanded $20, 000 within twenty-four hours.
Id. If this demand was not met, Brown stated that
she would have some associates come down and handle things.
Id. She also allegedly stated that if her demands
were not met, Brown would target the schools and children of
certain of the individuals she was threatening. Id.
4-5. Certain of these threats made up the conduct for the
felony extortion warrants that officers served on Brown on
September 20, when she was found to be possessing the charged
firearm. Id. at 5.
the notice included that during Brown's supervision for a
prior felony conviction, she signed a form stating various
conditions. Id. Specifically, on November 1, 2016,
Brown reportedly signed a form stating that she would not,
"use, own, possess, or transport or carry a firearm[,
]" among other terms and conditions. Id. In her
motion to suppress, Brown moves the court for the exclusion
of all of the aforementioned evidence contained in the
government's Rule 404(b) notice or, alternatively, that
the court provide a limiting instruction upon its admission.
404(b) states that "[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person
in order to show action in conformity therewith."
Fed.R.Evid. 404(b). Such evidence "may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident." Id.
"Rule 404(b) is a rule of inclusion, admitting all
evidence of other crimes or acts except that which tends to
prove only criminal disposition." United States v.
Moore, 709 F.3d 287, 295 (4th Ck. 2013) (quoting
United States v. Byers, 649 F.3d 197, 206 (4th Cir.
2011)). However, if the government intends to offer evidence
under this rule at trial, then it must, as it has done in
this case, give the defendant "reasonable notice of the
general nature of such evidence" beforehand. Fed.R.Evid.
Fourth Circuit has outlined a four-factor test that must be
satisfied before a court can properly admit prior-bad-acts
evidence under Rule 404(b):
(1) The evidence must be relevant to an issue, such as an
element of an offense, and must not be offered to establish
the general character of the defendant. In this regard, the
more similar the prior act is (in terms of physical
similarity or mental state) to the act being proved, the more
relevant it becomes. (2) The act must be necessary in the
sense that it is probative of an essential claim or an
element of the offense. (3) The evidence must be reliable.
[Finally], (4) the evidence's probative value must not be