                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

____________________________
                                )
UNITED STATES OF AMERICA,       )
                                )
             v.                 )   Criminal Action No. 11-211 (RWR)
                                )
THEODORE GALE,                  )
                                )
          Defendant.            )
____________________________    )

                          MEMORANDUM ORDER

     On October 5, 2012, defendant Theodore Gale filed a motion

in limine to prohibit the government from using certain evidence

at trial.1    Gale argues that the evidence at issue is other

crimes evidence inadmissible under Federal Rule of Evidence

404(b) and the government “has not indicated any theory for

admitting such evidence at trial.”    (Def. Gale’s Mot. in Limine

to Exclude Other Crimes Evidence at 6.)      Alternatively, Gale


     1
       Specifically, Gale seeks to preclude the following
physical evidence: (1) evidence recovered when a search warrant
was executed at Gale’s home including “a ‘clear baggie containing
a white powder substance,’ ‘assorted drug paraphernalia,’ and a
whisk” (Def. Gale’s Mot. in Limine to Exclude Other Crimes
Evidence ¶ 6); (2) evidence recovered when a search warrant was
executed at defendant John Richards’s home including “a ‘clear
plastic twist containing a white rock-like substance,’ a ‘clear
vial containing an amber colored liquid [suspected PCP],’ a
bullet-proof vest, .45 caliber and 9 mm ammunition, and a number
of empty Ziploc bags” (id. ¶ 7). Gale also seeks to exclude
statements made by the defendants to the undercover officers
about conduct that allegedly occurred outside of the dates of the
offense charged in the superseding indictment (id. ¶ 8), such as
Richards’s drug-dealing activities on Capitol Hill and on Route 1
in Virginia (id. ¶ 9), and defendant Kenya Phillips having once
moved 20 kilograms of cocaine in one day and being able to sell
large amounts of marijuana (id. ¶ 10).
                                  -2-

contends that if the government were to argue that the challenged

evidence is direct evidence of the charged conspiracy and not

other act evidence, it is inadmissible because it is not

relevant, Fed. R. Evid. 402, and is unfairly prejudicial, Fed. R.

Evid. 403.

     Gale filed this motion 70 days beyond the July 27, 2012

deadline set for him to file all final pre-trial motions and

motions in limine, and just days before the October 15, 2012

trial date.    He neither sought nor received leave to file the

motion late.   Moreover, Gale offers no good cause or explanation

as to why he did not file this motion timely.   The evidence he

now seeks to exclude was disclosed through discovery and was

known to him well before the September 28, 2012 hearing on the

timely-filed pre-trial motions.    Indeed, as part of Gale’s

argument at the hearing on his motion to dismiss the indictment,

his counsel mentioned the very evidence he now seeks to preclude.

     Gale claims that the challenged evidence is other act

evidence that is inadmissible under Rule 404(b).   Rule 404(b)

bars a party from offering other act evidence “to prove a

person’s character in order to show that on a particular occasion

the person acted in accordance with the character.”   Fed. R.

Evid. 404(b)(1).   The government says it is not offering the

evidence for that impermissible purpose, though.   It says it is

offering the physical evidence in part to show that the intent of
                                -3-

the conspiracy was to sell cocaine base, as the indictment

alleges.   The government adds that it is offering the defendants’

boasts about prior drug-dealing to show how the defendants tried

to make the conspiracy succeed by persuading the sellers to sell

the cocaine on consignment with little risk.   Other act evidence

may be admissible under the rule for such other purposes.    Fed.

R. Evid. 404(b)(2).

     Even so, the government argues that these purposes for which

it is offering the challenged evidence show that both the

physical evidence and the defendants’ statements made during the

course of and in furtherance of the conspiracy were not other act

evidence at all, but were direct evidence to prove the existence

and object of the charged conspiracy.   And the record shows that,

contrary to Gale’s claim, the government has indeed indicated a

theory of relevance and admissibility of the evidence.

     The government argued at the September 28, 2012 motions

hearing that the physical evidence recovered from the defendants’

homes is direct evidence of the conspiracy because Gale and

Richards cooked the for-sale cocaine into crack cocaine to test

it before agreeing to purchase it.    The government also explains

that the items recovered from Gale’s and Richards’s homes were

the same kinds of instruments Gale and Richards used to cook the
                                 -4-

undercover powder cocaine into crack.2   (Govt.’s Opp’n to Def.

Gale’s Mot. in Limine at 9.)   Such evidence certainly is relevant

because it could help establish that the defendants intended to

distribute the cocaine they allegedly conspired to purchase from

the undercover officers.   Moreover, the weapons-related evidence

has been recognized by the D.C. Circuit as being often associated

with narcotics trafficking.    United States v. Jenkins, 928 F.2d

1175, 1180 (D.C. Cir. 1991) (citing United States v. Payne, 805

F.2d 1062, 1065 (D.C. Cir. 1986)) (holding that ammunition was

evidence of defendant’s intent to distribute narcotics); United

States v. McDowell, 762 F.2d 1072, 1075 (D.C. Cir. 1985) (holding

that a bulletproof vest was evidence of defendant’s intent to

distribute narcotics).

     The government contends that the statements made by the

defendants regarding their prior drug activity is direct evidence

of the conspiracy because they were boasts made by the defendants

to persuade the sellers to allow them to pay for only two

kilograms of cocaine and be fronted the other four kilograms.

(Id. at 8.)   Such statements allegedly made to ensure the success




     2
       Unless the government is able to tie the vial of PCP
recovered from Richards’s home to the cocaine conspiracy, the
vial of PCP and testimony about the vial of PCP will be excluded
under Federal Rule of Evidence 403 as the risk of unfair
prejudice to the defendants substantially outweighs the minimal
value the PCP has in proving a cocaine conspiracy.
                                   -5-

of the conspiracy would be relevant to prove the existence of the

conspiracy.

     Finally, this highly probative and direct evidence of the

charged conspiracy carries virtually no risk that “its probative

value is substantially outweighed by a danger of . . . unfair

prejudice, confusing the issues, misleading the jury, undue

delay, wasting time, or needlessly presenting cumulative

evidence.”    Fed. R. Evid. 403.   The evidence would not tend to

inflame the jury’s passions or lead to a verdict that ignored the

law and the government’s burden of proof.    The parties have been

invited to submit any needed cautionary jury instructions, and

one easily can be crafted to remind the jury that the defendants

are on trial only for the charged crime and no other.    There has

been no showing that the presentation of the challenged evidence

will unduly prolong the trial.

     In sum, Gale did not timely file this motion in limine, or

move for leave to file late, or offer good cause for failing to

do either.    In any event, Gale’s arguments that the challenged

evidence is inadmissible other act evidence, and would be

irrelevant and overly prejudicial, lack merit.    Thus, it is

hereby

     ORDERED that Gale’s motion [73] in limine to exclude other

crimes evidence, or alternatively, to exclude direct evidence on

grounds of relevancy and prejudice be, and hereby is, DENIED.
                          -6-


SIGNED this 15th day of October, 2012.



                                       /s/
                                RICHARD W. ROBERTS
                                United States District Judge
