USA v. Franks

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States of America v. Joseph Andrew Franks, IV
Case No. 3:21-cr-00086-TMB-MMS-1
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
Before the Court is Plaintiff United States of America’s (the “Government”) Omnibus Motion In
Limine (the “Motion”) to: (1) allow evidence of Defendant Joseph Andrew Franks, IV’s prior
DUI and drug convictions to impeach Franks should he testify at trial; (2) authenticate an
electronically generated report containing data extracted from Franks’s phone; and (3) admit
evidence of a prior police contact that occurred before Franks’s arrest in this case, Franks’s text
messages, and Franks’s prior drug conviction.1 Franks partially opposes the Motion.2 For the
reasons discussed below, the Motion at Docket 60 is GRANTED in part and DENIED in part.
Franks is charged with Possession of a Controlled Substance with Intent to Distribute3 (Count 1),
Possession of a Firearm in Furtherance of 	a Drug Trafficking Crime4 (Count 	2), Felon in
Possession of Firearms5 (Count 3), and Possession of Controlled Substances with Intent to
Distribute6 (Count 4).7 The Government alleges Franks knowingly and intentionally possessed
methamphetamine and heroin with the intent to distribute, knowingly possessed two pistols in
furtherance of this drug trafficking offense, and knowingly possessed these pistols knowing that
he had been convicted of a felony.8 The parties indicate that they anticipate trial to be bifurcated
so that the jury does not learn of Franks’ felony conviction until after reaching verdicts on
Counts 1, 2, and 4.9
In the Motion, the Government first “reserves the right” under Federal Rule of Evidence 609 “to
attack [Franks’s] character for truthfulness by evidence of” a prior felony DUI conviction and a
prior drug conviction.10 The Government next seeks to authenticate certified electronic records,
namely a Cellebrite report generated from Franks’s phone that contains data extracted from the
1 Dkt. 60 (Motion).
2 Dkt. 66 (Response).
3 21 U.S.C. § 841(a)(1), (b)(1)(C).
4 18 U.S.C. § 924(c)(1)(A)(i).
5 18 U.S.C. §§ 922(g)(1), 924(a)(2).
6 21 U.S.C. § 841(a)(1), (b)(1)(B)–(C).
7 Dkt. 2 (Indictment).
8 Id.
9 Dkt. 60 at 2; Dkt. 66 at 2.
10 Dkt. 60 at 2.
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phone, pursuant to Federal Rule of Evidence 902.11 Finally, pursuant to Federal Rules of
Evidence 402 or 404(b), the Government seeks to admit evidence of: (1) “a previous police
contact where Franks was driving the tow truck where the drugs and firearms described in
Counts 1–3 were found”; (2) text messages Franks “received and sent on his phone [on or] prior
to February 4, 2021, relating to the tow truck and to drug trafficking”; and (3) Franks’s prior
drug conviction.12
Franks opposes the admission of his prior convictions, arguing that: (1) these convictions should
not be admitted under Rule 609 because they are prejudicial and not probative of his character
for truthfulness; and (2) his prior drug conviction should not be admitted under Rule 404(b)
because it is over seven years old and does not reasonably pertain to his intent, knowledge,
motive, opportunity, or absence of mistake or accident in this case.13
A. Legal Standard
“A motion in limine is a procedural device to obtain an early and preliminary ruling on the
admissibility of evidence.”14 Motions in limine are appropriate when the “mere mention of
evidence during trial would be highly prejudicial.”15 Motions in limine “should not be used to
resolve factual issues or weigh evidence.”16 A court’s rulings on motions in limine are
provisional and may be reconsidered during the course of trial.17 A denial of a motion in limine
merely means that the court is unable to determine whether the evidence should be excluded
outside of the context of trial.18
i. 	Federal Rule of Evidence 609
Rule 609 “provides that the credibility of a witness may be attacked during cross-examination by
establishing that he has been convicted of a crime.” Whether the Court may permit the use of a
prior conviction for impeachment purposes depends—among other factors—on (1) the nature of
the conviction, and (2) whether the witness is the defendant.19 Where a party seeks to impeach a
11 Id. at 2–6.
12 Id. at 6–7.
13 Dkt. 66 at 1–2.
14 Barnard v. Las Vegas Metro. Police Dep’t, No. 2:03-cv-01524-RCJ-LRL, 2011 WL 221710,
at *1 (D. Nev. Jan. 21. 2011); Research Corp. Techs., Inc. v. Microsoft Corp., No. CV-01-658-
TUC-RCJ, 2009 WL 2971755, at *1 (D. Ariz. Aug. 19, 2009).
15 	Barnard, 2011 WL 221710, at *1 (quoting Black’s Law Dictionary 1109 (9th ed. 2009));
Research Corp., 2009 WL 2971755, at *1 (similar).
16 	Barnard, 2011 WL 221710, at *1 (citations omitted); BNSF Ry. Co. v. Quad City Testing
Lab., Inc., No. CV-07-170-BLG-RFC, 2010 WL 4534406, at *1 (D. Mont. Oct. 28, 2010)
(citations omitted); Research Corp., 2009 WL 2971755, at *1 (citations omitted).
17 Barnard, 2011 WL 221710, at *2 (citing, inter alia, Ohler v. United States, 529 U.S. 753, 758
n.3 (2000)); Research Corp., 2009 WL 2971755, at *2 (same).
18 	Barnard, 2011 WL 221710, at *2; BNSF, 2010 WL 4534406, at *1; Research Corp., 2009
WL 2971755, at *2.
19 Fed. R. Evid. 609.
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defendant with a prior conviction punishable by death or imprisonment for more than one year,
the conviction must be admitted “if the probative value of the evidence outweighs its prejudicial
effect to that defendant.”20 In balancing the probative value of evidence of a defendant’s prior
convictions against that evidence’s prejudicial effect, district courts in the Ninth Circuit consider
five factors: (1) the impeachment value of the prior crime; (2) the point in time of the conviction
and the witness’s subsequent history; (3) the similarity between the past crime and the charged
crime; (4) the importance of defendant’s testimony; and (5) the centrality of defendant’s
credibility.21 In addition, the parties may impeach any witness with evidence of any crime
involving a “dishonest act or false statement.”22
ii. 	Federal Rules of Evidence 901 and 902
To establish an item as authentic, its proponent must produce admissible evidence “sufficient to
support a finding that the item is what the proponent claims it is.”23 Rule 902(13) provides that
records are self-authenticating when they are “generated by an electronic process or system that
produces an accurate result, as shown by a certification of a qualified person that complies with
the certification requirements of Rule 902(11) . . . .” Rule 902(11) provides that domestic records
of a “regularly conducted activity,” as shown by a certification of the custodian or another
qualified person, are self-authenticating and do not require extrinsic evidence to be admitted. A
record of an event may qualify as a record of a “regularly conducted activity” if: “(A) the record
was made at or near the time by—or from information transmitted by— someone with
knowledge; (B) the record was kept in the course of a regularly conducted activity of a business
[or] organization; and (C) making the record was a regular practice of that activity[.]”24
iii. 	Federal Rules of Evidence 401–404
The relevance and admissibility of evidence at trial is governed in part by Rules 401, 402, and
403. Evidence is relevant under Rule 401 if it has “any tendency to make a material fact more or
less probable” and if it is “of consequence in determining the action.” Rule 402 provides that
relevant evidence is admissible unless otherwise excluded by the evidentiary rules, a federal
statute, or the Constitution; irrelevant evidence is not admissible.25 Under Rule 403, relevant
evidence may be excluded if its probative value is substantially outweighed by the danger of
“unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
20 Fed. R. Evid. 609(a)(1).
21 United States v. Hursh, 217 F.3d 761, 768 (9th Cir. 2000) (citing United States v. Browne, 829
F.2d 760, 762–63 (9th Cir. 1987)).
22 Fed. R. Evid. 609(a)(2); see also United States v. Glenn, 667 F.2d 1269, 1272 (9th Cir. 1982)
(“Convictions involving ‘dishonesty or false statement’ within the meaning of [R]ule 609(a)(2)
are automatically admissible; the court need not conduct a balancing test [pursuant to Rule
609(a)(1)].”).
23 Rule 901(a).
24 Fed. R. Evid. 803(6).
25 Fed. R. Evid. 402(a)–(b).
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needlessly presenting cumulative evidence.” Trial courts have discretion to limit or exclude
evidence under Rules 402 and 403.26
Rule 	404(b)(1) 	provides 	that 	evidence 	of 	a 	person’s 	prior 	crimes, 	wrongs, 	or 	acts 	are
inadmissible “to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.”27 “The rule is designed to avoid a danger that the
jury will punish the defendant for offenses other than those charged.”28 However, because such
evidence may be highly relevant, Rule 404(b)(2) provides that evidence of a person’s prior
crimes, wrongs, or acts “may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.”29 To introduce evidence under Rule 404(b), the Government must prove that the
proposed evidence satisfies four requirements:
(1) the evidence tends to prove a material point (materiality); (2)
the other act is not too remote in time (recency); (3) the evidence is
sufficient to support a finding that defendant committed the other
act (sufficiency); and (4) . . . the act is similar to the offense
charged (similarity).30
If the Court finds these requirements are met, it must then conduct the Rule 403 balancing test to
determine whether the evidence is admissible.31 If the evidence is admissible, “[t]he use of such
evidence must be narrowly circumscribed and limited.”32
B. Franks’s Prior Convictions (Rule 609)
Should Franks seek to testify in this case, the Government requests to “reserve the right” to
attack his character for truthfulness with evidence of Franks’s convictions for (1) Fourth Degree
Misconduct Involving Controlled Substances in 3PA-15-02889CR and (2) Felony DUI in 3PA-
13-01971CR.33 The Government states that Franks was convicted of these offenses in January
2016 and August 2015, respectively, and that each offense was punishable by over one year of
imprisonment.34 Franks urges the Court to deny the Government’s request because neither of
these 	offenses “inherent[ly]” involves dishonesty or false statements, indicating that the
probative value of allowing this evidence outweighs its prejudicial effect.35
To the extent the Government requests a ruling on the admissibility of evidence of these two
convictions for purposes of attacking Franks’s character for truthfulness, the Court finds that this
26 United States v. Scholl, 166 F.3d 964, 971 (9th Cir. 1999).
27 Fed. R. Evid. 404(b)(1); see also United States v. Charley, 1 F.4th 637, 645 (9th Cir. 2021).
28 Charley, 1 F.4th at 647.
29 Fed. R. Evid. 404(b)(2).
30 Charley, 1 F.4th at 647.
31 Fed. R. Evid. 403; see also United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005).
32 Id. (quoting United States v. Bailleaux, 685 F.2d 1105, 1109 (9th Cir. 1982)).
33 Dkt. 60 at 2.
34 Id.
35 Dkt. 66 at 1–2.
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evidence is inadmissible at this time. The Government does not present an argument that the
probative value of these two convictions substantially outweighs their prejudicial effect under
Rule 609. Absent a specific argument for their admission, Franks’s convictions for Felony DUI
in 3PA-15-02889CR and Fourth Degree Misconduct Involving Controlled Substances in 3PA-
13-01971CR are inadmissible. However, the Government may revisit this ruling if Franks
testifies in the case.
C. Cellebrite Report (Rule 902)
The Government next requests that the Court rule that the Cellebrite report, which contains data
extracted from Franks’s phone, is sufficiently authenticated for purposes of Rule 902.36 The
Government states that this report was acquired during the investigation in this case and that a
Task Force Officer for the Federal Bureau of Investigation has completed a certification of
electronic process records.37 Franks does not oppose the Government’s request.38 Having
reviewed the certification in question, the Court finds that it meets the requirements of Rule
902(11) and (13); the Government therefore need not call a live witness for purposes of
authentication of the Cellebrite report at trial.
D. Direct Evidence and Other Acts Evidence (Rules 402 and 404(b))
The Government requests to admit evidence of: (1) “a previous police contact where Franks was
driving the tow truck where the drugs and firearms described in Counts 1–3 were found”; (2) text
messages Franks “received and sent on his phone prior to February 4, 2021 relating to the tow
truck and to drug trafficking”; and (3) Franks’s prior drug conviction in 3PA-15-02889CR,
discussed earlier in the context of Rule 609.39 The Government argues that evidence of the prior
police contact and text messages evidence is admissible under Rule 402 because it is relevant to
Franks’s possession of the drugs and firearms; the Government also argues that this evidence is
admissible under Rule 404(b) because it concerns Franks’s “intent, preparation, plan, knowledge,
absence of mistake, and lack of accident” regarding possession of the drugs and firearms.40
Furthermore, the Government contends that the prior drug conviction is admissible under Rule
404(b) “to rebut a defense that Franks was unaware of the existence of the drugs . . . and that he
was merely in the wrong place at the wrong time.”41
Franks objects solely to admission of evidence of his prior drug conviction, arguing that this
conviction is over seven years old and “has no reasonable bearing on [his] intent, knowledge,
motive, etc. in 2023.”42
36 Dkt. 60 at 2–6; see also Dkt. 60-1 (Certificate of Authenticity of Data Copied from an
Electronic Device).
37 Id. at 2–3.
38 Dkt. 66 at 2.
39 Dkt. 60 at 6–7.
40 Id. at 8.
41 Id. at 12–13.
42 Dkt. 66 at 2.
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i. 	Prior Police Contact
The Government submits that on November 8, 2020, Franks was stopped by law enforcement
“driving the same tow truck where [law enforcement] found firearms and heroin on January 28,
2021,” the basis for Franks’s charges in this case.43 The Government plans to call the trooper
who stopped Franks on that date as a witness to testify that Franks was driving the tow truck.44
The Government contends that this testimony is admissible under Rule 402 because it “is direct
evidence of Franks’s possession and control of the tow truck”; since Franks is not the registered
owner of the tow truck, the Government will rely on this police contact as “direct evidence that
Franks, rather than another person, possessed the drugs and firearms found in the truck.”45
Furthermore, the Government argues that this evidence is admissible under Rule 404(b) to show
Franks’s “opportunity to use the tow truck to store his firearms and drugs, and that Franks did
not mistakenly or accidentally come into possession of the drugs while in the truck.”46 Franks
does not contest the admission of evidence concerning his November 8, 2020, police contact.47
The Court finds that evidence of the November 8, 2020, stop is admissible under Rule 402 to
show Franks’s possession and control of the tow truck, which is relevant to Franks’s possession
of the drugs and firearms found in the truck on January 28, 2021. Because this evidence is (1)
material to proving Franks’s alleged possession of the drugs and firearms; (2) close in time to his
subsequent police contact; (3) sufficient to support a finding that Franks possessed and
controlled the tow truck on November 8, 2020; and (4) involves Franks’s driving the tow truck,
as was allegedly also the case on January 28, 2021, it is also admissible under Rule 404(b)(2) to
prove opportunity and absence of mistake. However, at this stage, any evidence the Government
presents regarding Franks’s November 8, 2020, police contact is limited to evidence regarding
his possession and control of the tow truck on that date. The Court finds that the probative value
of this limited evidence is not substantially outweighed by the danger of unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.48 As set forth above, the evidence concerning Franks’s November 8, 2020,
police contact is admissible.
ii. 	Text Messages
The Government seeks to admit several text messages that Franks “sent and received about the
tow truck,” including:
• 	A January 12, 2021, conversation in which Franks agrees to tow a friend’s vehicle;
• 	A January 21, 2021, text sent by Franks about picking up the tow truck;
• 	A January 23, 2021, text received by Franks about replacing the transmission for the
“wrecker”;
43 Dkt. 60 at 9–10; see also Dkt. 60-2 (Incident Report).
44 Dkt. 60 at 10.
45 Id.
46 Id.
47 Dkt. 66 at 2.
48 See Fed. R. Evid. 403.
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• 	A January 23, 2021, text sent by Franks about going to the tow truck;
• 	A January 24, 2021, text sent by Franks saying “I’m at the tow truck”; and
• 	A January 28, 2021, text sent by Franks saying, “Got truck on road.”49
The Government contends that for the same reasons as those supporting admission of the prior
police contact, these text messages are admissible under Rules 402 or 404(b).50 Franks similarly
does not oppose the admission of these text messages.51 Consistent with the discussion above,
these text messages are admissible under Rule 402 to show Franks’s possession and control of
the tow truck and under Rule 404(b) to show opportunity and absence of mistake.
In addition, the Government seeks to admit text messages that Franks “sent and received that
indicate drug dealing”:
• 	A January 10, 2021, exchange where a friend says, “I’m out of drugs,” and Franks
responds, “Come over”;
• 	A January 27, 2021, exchange involving the following messages:
o 	Friend: “You good on clear.”
o 	Franks: “No.”
o 	Friend: “Really.”
o 	Franks: “Sorry been out.”
o 	Friend: “You’re not supposed to let that happen. Any idea when.”
o 	Franks: “No hopefully soon”; and
• 	February 2–3, 2021, messages received from a friend: “Hey can I get something from ya
today, I got $$$”; “Can I very quickly get g”; “Can you meet for one sec I have cash.”52
The Government argues that these messages are admissible under Rule 402 as direct evidence
that 	on 	both 	January 	28, 	2021, 	and 	February 	4, 	2021, 	Franks 	possessed 	heroin 	and
methamphetamine for purposes of distribution.53 The Government also argues that these
messages are admissible under Rule 404(b) as evidence of his “plan and preparation as it
concerns the methamphetamine, namely, to sell it as he had been doing previously.”54 Again,
Franks does not oppose the admission of this evidence.55
The Court finds that these text messages are relevant and admissible under Rule 402 to show
Franks’s alleged possession and distribution of methamphetamine and heroin on January 28,
2021, and February 4, 2021. Likewise, these text messages are admissible under Rule 404(b) as
evidence of Franks’s alleged plan and preparation to sell methamphetamine. The messages (1)
are material to proving his alleged possession and distribution of methamphetamine, (2) are not
too remote in time from January 28, 2021, and February 4, 2021, (3) are sufficient to support a
49 Dkt. 60 at 10–11.
50 Id. at 11.
51 Dkt. 66 at 2.
52 Dkt. 60 at 11–12; see also Dkt. 60-3 (Text Messages).
53 Dkt. 60 at 12.
54 Id.
55 Dkt. 66 at 2.
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finding that Franks possessed and intended to distribute methamphetamine on those two dates,
and (4) involve alleged conduct similar in nature to the offenses alleged in the Indictment.
Furthermore, the relatively high probative value of these text messages, which tend to increase
the likelihood that Franks possessed the drugs at issue in this case, does not appear to be
substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Therefore,
Franks’s text messages that may suggest drug dealing are admissible to show his alleged
possession and distribution of methamphetamine and heroin on January 28, 2021, and February
4, 2021, and to show his alleged plan and preparation to sell methamphetamine.
iii. 	Prior Drug Conviction
The Government also seeks to admit Franks’s conviction for Fourth Degree Misconduct
Involving Controlled Substances in 3PA-15-02889CR for purposes of showing his “intent,
knowledge, motive, opportunity, and absence of mistake or accident.”56 The Government asserts
that this conviction is relevant to rebut a defense that Franks lacked intent to distribute
methamphetamine and heroin.57 Franks objects to admission of this conviction because it “has no
reasonable bearing on [his] intent, knowledge, motive, etc. in 2023.”58
The Court concludes Franks’s prior conviction meets the second and third requirements for
admissibility under Rule 404(b)—recency and sufficiency. The conviction is sufficiently recent,
with the conduct underlying the prior case separated by about five years from the current case.59
And the conviction is sufficient proof to establish that Franks committed the prior offense.60
However, the Court cannot yet determine whether Franks’s prior drug conviction meets the first
and fourth requirements for admissibility under Rule 404(b)—materiality and similarity—or
whether the probative value of the evidence is substantially outweighed by a danger of unfair
prejudice. The Government has represented that this prior drug conviction demonstrates that
Franks “has possessed controlled substances,” but it is unclear whether the conviction is material
to Franks’s intent to distribute or to any other element beyond possession. Furthermore, Franks’s
prior drug conviction may make it slightly more likely that Franks possessed drugs in this case—
a fact that the Government may show with other, more probative evidence—but presents a
substantial risk of unfair prejudice to Franks. Finally, without more information about the
circumstances of the prior drug conviction, the Court cannot determine whether Franks’s conduct
in the previous case is sufficiently similar to his conduct in this case or whether the conviction’s
56 Dkt. 60 at 12.
57 Id.
58 Dkt. 66 at 2.
59 See United States v. Vo, 413 F.3d 1010, 1018–19 (9th Cir. 2005) (holding a thirteen-year-old
prior act admissible); United States v. Ross, 886 F.2d 264, 267 (9th Cir. 1989) (same); United
States v. Rude, 88 F.3d 1538, 1550 (9th Cir. 1996) (holding an eight-year-old prior act
admissible).
60 United States v. Calderon, 127 F.3d 1314, 1332 (11th Cir. 1997) (“It is elementary that a
conviction is sufficient proof that he committed the prior act.” (citing United States v. Arambula–
Ruiz, 987 F.2d 599, 603 (9th Cir. 1993))).
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probative value outweighs the danger of unfair prejudice to Franks.61 Franks’s prior drug
conviction is therefore inadmissible under Rule 404(b) at this time.
Accordingly, the Court GRANTS in part and DENIES in part the Motion at Docket 60 as
follows:
1. 	The Government’s request for a ruling that Franks’s convictions for Felony DUI in 3PA-
15-02889CR and Fourth Degree Misconduct Involving Controlled Substances in 3PA-13-
01971CR are admissible for impeachment purposes is DENIED.
2. 	The 	Government’s 	request 	for 	a 	ruling 	that 	the 	Cellebrite 	report 	is 	sufficiently
authenticated is GRANTED.
3. 	The Government’s request for rulings that: (1) the evidence concerning Franks’s
November 8, 2020, police contact is admissible to show Franks’s possession and control
of the tow truck; (2) Franks’s text messages pertaining to the tow truck are admissible to
show his possession and control of the tow truck and to show opportunity and absence of
mistake; and (3) Franks’s text messages pertaining to alleged drug dealing are admissible
to show possession and distribution of methamphetamine and heroin on January 28,
2021, 	and 	February 	4, 	2021, 	and 	to 	show 	a 	plan 	and 	preparation 	to 	sell
methamphetamine, is GRANTED.
4. 	The Government’s request for a ruling that Franks’s conviction for Fourth Degree
Misconduct Involving Controlled Substances in 3PA-13-01971CR is admissible to show
intent, knowledge, motive, opportunity, or absence of mistake or accident, is DENIED.
These rulings on the Motion are provisional and may be reconsidered during trial. In addition,
nothing in this Order relieves the parties of any requirements to make proper application to the
Court before seeking to admit evidence.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: February 23, 2023.
61 United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005) (When analyzing the similarity of
prior drug crimes under [Rule] 404(b), we look to the type of activity undertaken . . . as the
relevant 	factor.”); 	cf. 	Arambula-Ruiz, 	987 	F.2d 	at 	603 	(“The 	degree 	of 	similarity
required . . . will depend on the evidential hypothesis which is being employed.”) (quoting
United States v. Ramirez–Jiminez, 967 F.2d 1321, 1326 (9th Cir. 1992)); United States v.
Mayans, 17 F.3d 1174, 1183 (9th Cir. 1994) (“The trial court, however, was satisfied with
information of the crudest sort—the mere fact that appellant had allegedly made prior drug deals
with the co-defendants. But without further inquiry, the trial court was simply unable to make the
focused determination of relevance mandated by the authorities discussed above. It could not tell
whether or not appellant’s purported wrongdoing put him on notice of the facts about which he
disclaimed knowledge in this case. For this reason, the procedures used by the district court were
flawed.”).
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