Evidence Practical Project Spring 2021

LAW 6330 (4 credits)
Section 02BB
Professor Pedro A. Malavet
Spring 2021

Instructions

As I announced in my Syllabus, I require each student to submit a practical project that accounts for ten percent (10%) of your testing score for this course. The project is judged on a pass/fail basis.

Each student will work individually, although I have assigned you a role to play as indicated below. You are allowed to discuss the problem with your classmates and may refer to forms and other resources, as long as you draft your own motion.

Your assignment is to write a motion in limine, based on the fact-pattern that follows. Students with last names starting with letters between ADE and KIL will write for the defense and those whose last names fall between KLA and ZOL will write for the prosecution, the State.

You will assume that the applicable rules are the Federal Rules of Evidence, together with accompanying caselaw as studied in your Spring 2021 Evidence Course. Your motion must adequately represent the interests of the party you represent, be it the defendant or the People of the State, and make reference to the pertinent Federal Rules of Evidence, cases and other materials included in your casebook and Rules supplement (you are allowed to extend your research beyond these resources, but it is not required).

I recommend a list of bibliographic resources collected by the Legal Information Center [click here to view the bibliography]. I also highly recommend the Public Defender Service of the District of Columbia Criminal Practice Institute Trial Manual 2015 is the current one (click here for PDF); there is a supplement (click here to for PDF).

DUE DATE: Projects are due on or before 6:00 p.m. on Thursday, 1 April 2021. All documents must be in either MS Word or PDF format and must be uploaded to the eLearning in Canvas course page using the Motion in Limine-Practical Project assignment created for that purpose.

The system will be set to allow multiple submissions up until the time of the final deadline. Uploading a file that is corrupted and cannot be opened will be treated as a failure to make a timely submission.

• Frequently Asked Questions
  • Is there a maximum length to the project?
    • No. You may write as much as wish.
  • Is there a minimum length?
  • There is certainly a minimal level of effort required to pass. But, at least five (5) to ten (10) pages, double-spaced, is about what it should take to do minimal justice to the project.
  • May and should I use headings and subheadings?
  • Yes. Preferably using the structure I post on the board every day.
  • What title should I use?
  • Motion in Limine To:
    • Admit [certain evidence], if you are the prosecution
    • Exclude [certain evidence], if you are the defense

Fact-Pattern:

United States v. Timothy Raven March

In The United States District Court for the
Western District of North Carolina,
Asheville Division

Case Number: 1:18-CR-00146

The Honorable Martin K. Reidinger, United Stats District Court Judge, Presiding

Facts and Procedural History

On December 4, 2018, Timothy Raven March was charged in a Bill of Indictment with a single count of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). On January 7, 2019, March made his initial appearance and was appointed counsel. On January 9, 2019, March was arraigned and pled not guilty to the count in the Bill of Indictment.

On July 17, 2019, March was charged in a Superseding Bill of Indictment with two counts of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). On July 19, 2019, March was arraigned and pled not guilty to both counts in the Superseding Bill of Indictment.

March is scheduled to appear for a jury trial on June 6, 2021, and June 7, 2021.

Factual Background on Evidentiary Hearing

Assume that these facts were developed in an evidentiary hearing, rather than a trial, and that the court then ordered the parties to submit motions in limine arguing their respective positions using this record. Assume that at trial, Henry Holloway, Nicholas Tegan, Joseph Johnson, Justice Diaz, and Peter Jackson, will not appear as witnesses.

On September 14, 2018, Jackson County Sheriff’s Department Sergeant Gabriel Charles was on duty at Smoky Mountain High School in Sylva, North Carolina. [Hearing Transcript at 4]. Sergeant Charles was working at a football game that evening between Smoky Mountain High School and Cherokee High School. The game was attended by several hundred people including parents, students, teachers, players, coaches and others. [Id. at 21]. At some point, Sergeant Charles received a text from a supervisor telling him to be on the lookout for March, who was reportedly at the game and was armed. [Id. at 5-6, 43]. The text Sergeant Charles received also contained a photograph of March. [Id. at 6].

After receiving the text, Sergeant Charles began searching for March. [Id. at 6]. Shortly thereafter, Sergeant Charles encountered an individual that he described as an American Indian male, with tattoos on his throat, a very short haircut, and some type of red jacket. [Id. at 11]. Sergeant Charles testified that the individual matched the photograph he received of March. [T. at 8]. When Sergeant Charles asked the individual for his name, he identified himself as Timothy March. [Id.]. After the individual identified himself, Sergeant Charles tried to grab him, but the individual pulled back and ran away from Sergeant Charles while reaching towards his own waistband. [Id. at 9]. As the individual was running, Sergeant Charles saw him drop a firearm and heard it make a metallic sound as it hit the ground. [Id. at 10]. Sergeant Charles retrieved the firearm, cleared it, and placed it in his pocket. [Id. at 11-13]. While he was doing so, the individual who dropped the firearm ran out of his sight. [Id. at 11]. The firearm the individual dropped was later identified as an Armi Tanfoglio, Model 38C, .380 caliber pistol (the “Armi Tanfoglio pistol”). [T. at 144].

Jackson County Sheriff’s Department Deputy Arnold Sharp testified that while he was searching for the individual who ran from Sergeant Charles, he encountered Henry Holloway, Nicholas Tegan, Joseph Johnson, Justice Diaz, and Peter Jackson shortly after their encounter with an individual armed with a pistol. [T. at 61]. Deputy Sharp testified about that encounter as follows:

• When I got up to the area about where the new gym is I encountered a group of young men who were rather excited. They flagged me down, and I stopped just to briefly find out what they needed. They told me that a guy had just tried to carjack them and that they had taken a gun from him, and that they had the gun. And they told me that the male had proceeded on past the new gym towards Jones Street and Quality Plus.

[Id. at 61-62]. The young men told Deputy Sharp that “a guy had just tried to carjack them and that they had taken a gun from him, and that they had the gun.” [Id. at 61]. Deputy Sharp took possession of the firearm, the magazine, and the bullet. [Id. at 62]. The gun was later identified as a Glock Model 23, .40 caliber pistol (the “Glock pistol”). [T. at 139].

Deputy Sharp testified that when he encountered Holloway and his friends, he “stopped just to briefly find out what they needed.” [T. at 61]. He further testified that after quickly hearing what happened and seizing the pistol, he “told them to wait right there, that I was going to go on with the other officers” to search for the individual they encountered because he “did not know the status of [the suspect] and whether he was in custody or if they were still trying to find him.” [Id. at 62-64].

On a nearby road, Jackson County Sheriff’s Department Deputy Henry Landon was also searching for the individual Sergeant Charles had encountered earlier. [Id. at 89]. While he was driving his patrol car near the High School, he saw an individual who “met the description of Timothy March.” [Id. at 90]. Deputy Landon pulled over, got out of his patrol car, and ordered the individual to stop. [Id.]. The individual, however, ran away up a steep hill into a wooded area. [Id. at 91]. Deputy Landon pursued the individual, deployed his taser, and ultimately arrested him. [Id. at 94]. Deputy Landon said that the individual he arrested “was a male” with “two tattoos on his neck” who identified himself as Timothy March. [T. at 95].

Deputy Landon radioed to the other officers that he had located and arrested March on a nearby road. [Id. at 14]. Sergeant Charles came to the scene and confirmed that the individual Deputy Landon had arrested was the same person that had fled from him and identified himself as Timothy March. [Id.]. At the time of his arrest, March was wearing a white shirt and a red jacket. [Id. at 18, 118-19].

None of the young men who flagged down Deputy Sharp testified at the hearing and they are not expected to testify at the trial, but their description of what happened to them was recorded on Deputy Sharp’s body camera. The judge took a brief recess and examined the video recording from Deputy Sharp’s body camera in chambers. He found for the record that the video and audio showed that all the young men were nervous, and appeared to be scared and generally “excited” as they spoke to the officer. At trial, he would therefore admit their statements under the “excited utterances” exception to the hearsay rule. However, he found that the videotape was unfairly prejudicial and ordered it excluded, replacing it instead with a transcript of what they said that would be read to the jury for the record if a trial were held.

The statements by the young men show the following. Henry Holloway, III, who Sergeant Charles identified as a former student-athlete at Smoky Mountain High School, said he was also at the football game that evening and he and his friends were leaving as the game had just ended. [Id. at 145-146]. Holloway was standing in the school parking lot with his friends when they were approached by an individual carrying a gun. [Id. at 147-149]. Holloway and his friends described that individual as having “tattoos, like, all on his arms and . . . neck[,]” “kind of short” hair, and wearing a “white tee” with “a couple of designs” and a “red jacket.” [Id. at 149]. According to Nicholas Tegan, the individual who approached them said he needed a ride and “requested the vehicle.” [Id. at 150]. When the individual got closer and had his back turned, Holloway “picked him up in a bear hug” and Justice Diaz said he, Diaz, “took the gun away and placed it on the ground.” [T. at 150-151]. After losing the gun, the individual ran away from Holloway and his friends towards the woods. [Id. at 151, 156]. Peter Jackson said he picked up the pistol, cleared the firearm and placed the firearm, the bullet, and the magazine on the ground. [Id. at 155, 156]. Joseph Johnson said the incident had occurred “just a minute ago,” before he and his friends flagged down Deputy Sharp. The others agreed. [Id. at 156].

Important Background and Legal Information

The parties have stipulated for the trial that March has been convicted of a crime punishable by imprisonment for a term exceeding one year. The major question at a trial would be “for the jury [to decide] whether March possessed those firearms.”

• 18 U.S.C. sec. 922(g) Provides:
  
• (g) It shall be unlawful for any person—
  
• (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
  
• (2) who is a fugitive from justice;
  
• (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
  
• (4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
  
• (5) who, being an alien—
  
  • (A) is illegally or unlawfully in the United States; or
    (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
• (6) who has been discharged from the Armed Forces under dishonorable conditions;
  
• (7) who, having been a citizen of the United States, has renounced his citizenship;
  
• (8) who is subject to a court order that—
  
  • (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
    
  • (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
    
  • (C)
    (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
    (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
    
• (9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

In order to convict the Defendant for possessing a firearm in violation of 18 U.S.C. § 922(g)(1), the Government is required to prove beyond a reasonable doubt that: (1) the Defendant knowingly possessed a firearm; (2) the Defendant has been convicted of a crime punishable by imprisonment for a term exceeding one year; (3) the Defendant knew he had been convicted of such a crime; and (4) the firearm had been shipped or transported in interstate or foreign commerce. 18 U.S.C. § 922(g)(1); United States v. Royal, 731 F.3d 333, 337 (4th Cir. 2013) (citation omitted); Rehaif v. United States, 139 S. Ct. 2191, 2200, 204 L. Ed. 2d 594 (2019) (“We conclude that in a prosecution under 18 U.S.C. § 922(g) . . . the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.”).

There is no requirement that the Government provide an in-court identification as part of establishing guilt beyond a reasonable doubt because “a courtroom identification is not required to show sufficient evidence of a defendant’s identity if other evidence of identity is sufficient.” United States v. Morris, 575 F. App’x 174, 176 (4th Cir. 2014) (citing United States v. Taylor, 900 F.2d 779, 782 (4th Cir. 1990)). As such, “[a] witness need not physically point out a defendant so long as the evidence is sufficient to permit the inference that the person on trial was the person who committed the crime.” Taylor, 900 F.2d at 782 (citing Delegal v. United States, 329 F.2d 494 (5th Cir. 1964); United States v. Darrell, 629 F.2d 1089, 1091 (5th Cir. 1980)). For example, the Fourth Circuit has found that a conviction under 922(g)(1) was supported by substantial evidence even though there was no in-court identification because “the jury heard extensive testimony from multiple witnesses who saw, chased, and apprehended [the defendant], and who recognized him as the same individual throughout the encounter” and a law enforcement officer “testified that he saw [the defendant] discard the firearm[.]” Morris, 575 F. App’x at 176.

Argument:

Each side must argue for or against admissibility using the applicable Federal Rules of Evidence, together with any common law doctrines that may be pertinent here as well as any constitutional rules that may apply. March’s counsel will object to the admission of the videotape, transcript and any testimony regarding what the men had said on the night of the incident arguing that the statements by Henry Holloway, Nicholas Tegan, Joseph Johnson, Justice Diaz, and Peter Jackson are inadmissible hearsay under the Federal Rules of Evidence and the Confrontation Clause of the Sixth Amendment. The prosecution will concede that the men will not be present at the trial and that defendant March has not had a prior to opportunity to cross-examine them. But it will argue that the court should overrule the defense’s objections based on applicable law.

I have given you a more detailed factual background than you would normally have before trial in order to make the motions a more substantial exercise.

• United States v. Larch, 2020 U.S. Dist. LEXIS 35775. The opinion was edited to change facts to fit exam parameters. All names have been changed to prevent confusion between the actual case and related opinion and the hypothetical exam question.

• MS Word Pleading Template
  • An MS Word Template for a basic pleading is now in the Spring 2021 Files Folder. It is a simple, basic format that is easy for me to read.
• The California Model that I provided last term is fine if you modify it for the appropriate court.
  • You will find it in the Files==>Supplemental Reading folder under the title starting "People's Response".