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United States v. Porcayo

United States District Court, D. South Dakota, Western Division

October 22, 2019

JUAN PORCAYO, Defendant.




         A grand jury charged defendant Juan Porcayo with conspiring to distribute more than 500 grams of methamphetamine. (Docket 1). On October 19, 2019, defendant filed a motion in limine to exclude the testimony of Douglas Lumsargis, a California law enforcement officer. (Docket 49). The government opposes the motion. (Docket 50). Trial began in this matter on October 21. The court held a hearing on the motion outside the presence of the jury on the first day of trial. Having considered the written and oral arguments of counsel, the court grants the motion for the reasons given below.

         I. Facts

         On December 12, 2014, Officer Lumsargis conducted a traffic stop of a rental vehicle driven by defendant in Sutter County, California.[1] (Docket 49 at p. 2). The rental agreement showed Noel Ornelas as the authorized renter. Id. Mr. Ornelas was a passenger in the vehicle. Id. Officer Lumsargis deployed a drug dog during the stop and the dog alerted. Id. Officer Lumsargis found 17 pounds of methamphetamine in the vehicle's trunk. Id. He also noticed defendant's “nervous demeanor” throughout the traffic stop. (Docket 50 at p. 1). Neither defendant nor Mr. Ornelas were arrested or charged with any offense stemming from the stop.[2] (Docket 49 at p. 2). Both denied knowing the methamphetamine was in the trunk.

         The indictment alleges defendant conspired to distribute methamphetamine in the District of South Dakota “[b]eginning at a time unknown to the Grand Jury but no later than on or about January 1, 2016.” (Docket 1). Evidence from the first day of trial indicates that the charged conspiracy began in November or December of 2015. The government conceded at the hearing that the South Dakota conspiracy was not active when Officer Lumsargis discovered the 17 pounds of methamphetamine.

         The government disclosed information about the 2014 stop to the defense shortly after this case was indicted. The government also included Officer Lumsargis on a witness list provided to the defense. The defense agreed it had adequate notice of Officer Lumsargis' testimony. Neither the defense nor the government was able to assert at the hearing that the defense had ever made a request for evidence admissible under Federal Rule of Evidence 404(b).

         II. Analysis

         The defense argues Officer Lumsargis' testimony should be excluded because it is not evidence of the South Dakota conspiracy charged in the indictment. (Docket 49 at pp. 2-7). In response, the government contends that the testimony is res gestae evidence of the charged conspiracy. (Docket 50). At the hearing, the government also asserted the testimony is admissible under Rule 404(b) and asserted good cause existed for the late notice. The defense opposes admitting the testimony under Rule 404(b). The court concludes the testimony is inadmissible either as res gestae evidence or under Rule 404(b).

         A. Res gestae

         “Under the theory of res gestae, evidence of prior crimes can be admitted when the prior crime is so blended or connected, with the ones on trial as that proof of one incidentally involves the others; or explains the circumstances thereof; or tends logically to prove any element of the crime charged. When evidence is admitted under res gestae, Rule 404(b) is not implicated.” United States v. Riebold, 135 F.3d 1226, 1229 (8th Cir. 1998) (internal quotations and alterations omitted). “Res gestae, also known as intrinsic evidence, is evidence of wrongful conduct other than the conduct at issue offered for the purpose of providing the context in which the charged crime occurred. Such evidence is admitted to complete the story or provide a total picture of the charged crime.” United States v. Parks, 902 F.3d 805, 813-14 (8th Cir. 2018) (internal quotations and citations omitted).

         Evidence of the 2014 stop is not admissible as res gestae evidence. The government admitted at the hearing it had no evidence the methamphetamine found during the 2014 stop is connected to the charged conspiracy. The timing of the stop also places it outside the charged conspiracy. The government concedes the present conspiracy began in late 2015, approximately a year after the stop. The only similarities between the charged conspiracy and the 2014 stop are defendant's alleged involvement and methamphetamine. It can hardly be said that the 2014 stop “is so blended or connected” with the charged conspiracy “that proof of one incidentally involves the other[.]” Reibold, 135 F.3d at 1229. Evidence of the stop does not complete any story or provide context for the jury. Parks, 902 F.3d at 813-14. On this record, the court finds evidence of the 2014 stop is simply not intrinsic to the charged offense.

         B. Rule 404(b)

         Rule 404(b) states the general rule that evidence of a prior bad act is not admissible to “show defendant's propensity to engage in criminal misconduct.” See United States v. Walker, 428 F.3d 1165, 1169 (8th Cir. 2005); see also Fed.R.Evid. 404(b)(1). However, the rule also provides that prior bad acts evidence may be admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.R.Evid. 404(b)(2). The government must provide notice of Rule 404(b) evidence “[o]n request by a defendant[.]” Id. ÔÇťAdmissibility of 404(b) evidence is governed by four factors: the evidence must be 1) relevant to a material issue; ...

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