United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
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.
December 12, 2014, Officer Lumsargis conducted a traffic stop
of a rental vehicle driven by defendant in Sutter County,
California. (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. (Docket 49 at p. 2). Both denied knowing
the methamphetamine was in the trunk.
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.
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).
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).
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).
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.
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. “Admissibility of
404(b) evidence is governed by four factors: the evidence
must be 1) relevant to a material issue; ...