The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This case came before the Court on August 6, 2007, for a motions hearing and pretrial conference. Defendant Jesse Bailey was present with his attorney, James Reed. The government was represented by Assistant United States Attorneys Jeffrey Theodore and William Mackie. Before the Court were Mr. Bailey's Motion to Exclude 404(B) Evidence [Doc. 32] and the United States' Motion in Limine to Allow the Government to Impeach the Defendant's Credibility, Should He Testify [Doc. 36].
The parties reported to the Court their agreement as to United States' Motion in Limine [Doc. 36]. Mr. Bailey and the United States agree that if Mr. Bailey elects to testify at trial, the government may use his two prior felony convictions to impeach his credibility within Federal Rules of Criminal Procedure, Rule 609. These prior felony convictions are a conviction for facilitation of second degree murder and a conviction for possession of cocaine for resale, both entered by Knox County Criminal Courts in 1999. The Court agrees with the parties that Rule 609 permits this type of impeachment, and Motion in Limine [Doc. 36] is GRANTED.
The Court heard argument of counsel on Mr. Bailey's Motion to Exclude 404(b) Evidence [Doc. 32]. Mr. Bailey challenges the government's use of his 1999 conviction for possession of cocaine for resale as Rule 404(b) evidence at trial.
Defendant Bailey argues in his motion that the probative value of the conviction is outweighed by a substantial danger of unfair prejudice. Mr. Bailey has filed four exhibits in support of this motion. Defendant Bailey asserts that this conviction is not substantially similar to the offense for which the defendant is being tried. Mr. Bailey also argues in his motion that the conduct underlying the 1999 conviction is not reasonably near in time to the instant offense alleged. For these reasons, Mr. Bailey argues, the 1999 possession of cocaine for resale has diluted probative value to any issue in this trial.
At the hearing, Mr. Bailey raised an additional objection to the use of the prior drug conviction: that the judgment is not reliable evidence that the defendant committed the underlying criminal acts alleged in the 1999 drug case because there is a question whether Mr. Bailey entered an Alford best-interest plea to the charge or plead guilty with an admission.
The United States argues that the 1999 possession of cocaine for resale conviction is appropriate for use as Rule 404(b) evidence. The government provided timely notice of its intent to use this conviction as 404(b) evidence. [Doc. 29]. The government argues that evidence of past drug distribution, when the defendant is charged with drug distribution, is particularly probative on the issue of intent, anticipated to be contested at trial. [Doc. 34]. The government has set forth a belief that Mr. Bailey will present a defense position at trial that he was buying shoes from the individual to whom he is alleged to have sold cocaine. [Doc. 34]. The government asserts that the 1999 conviction is probative on the issue of intent because it is similar to this alleged crime: both involved sale of cocaine. The government disagrees with Mr. Bailey's argument that the acts underlying the 1999 drug conviction are remote in time to the events on trial here. The United States reports that Mr. Bailey was in prison for his two 1999 convictions from June 7, 1999, until May 13, 2005. The conduct alleged to have occurred in this case took place from early 2005 through May 2006. The government argues that this is a time span allowed by law, and reasonable considering that Mr. Bailey was in prison for all but a few months of that time [Doc. 34].
The exhibits before the Court reflect that Mr. Bailey was arrested on a state warrant for a drug transaction that took place on May 27, 1996. Mr. Bailey was alleged to have offered to sell 2.4 grams of cocaine to an undercover agent for $120. On March 29, 1999, Jesse Bailey executed a waiver of trial by jury and tendered a guilty plea before Knox County Criminal Court Judge Mary Beth Leibowitz [Doc. 32-3]. That document indicated that Mr. Bailey was represented by attorney Phillip Lomonaco, who had advised him of certain Constitutional rights. In exchange for the waiver and plea, the state recommended a sentence of eight years and a $2,000 fine. The manner of service of the eight year sentence was not agreed, and the waiver and plea indicates Mr. Bailey would apply to the sentencing court for probation. The state also agreed to enter a nolle prosequi on a number of minor driving offenses, listed in the document. After setting forth the agreements of the parties and the defendant's waiver of trial and appellate rights, the form has areas for signatures by the defendant, defense counsel and the state attorney.
For the defendant, the form reads:
I hereby certify that I have read the foregoing document or that it has been read to me. I understand what it says and I am in agreement that it is in my best interest to give up my right to a jury trial and enter a plea of guilty to the charge(s) listed in this document. I understand that the District Attorney General may make a recommendation to the Court about what my sentence(s) should be. I understand that the Court is not bound to follow this recommendation. [Doc. 32-3 at 6]
Immediately below this paragraph, the date is entered as March 29, 1999, and Mr. Bailey's signature is entered ...