USA v. Jones et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States of America v. Dustin Oliver Jones
Case No. 1:21-cr-00004-TMB-1
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
This Order follows the Court’s oral ruling denying the Government’s oral motion to introduce
certain evidence under Federal Rule of Evidence (“Rule”) 404(b). The Court DENIES the motion
for the reasons stated below.
On June 28, 2022, the Government filed a Notice of 404(b) Material (the “Notice) in which it gave
notice of its intent to introduce evidence of Defendant Dustin Oliver Jones’s prior bad acts in its
case in chief.1 Namely, the Government stated it expected to introduce the following testimony
from three witnesses that Jones was engaging in drug trafficking activities leading up to his arrest
on November 14, 2020:
• 	The first witness will testify that they met the defendant at a half-way house in
2018, and subsequently lived with the defendant at the witness’ residence.
During that time, the witness and the defendant began shipping and receiving
narcotics, which continued through July of 2020. This evidence will be used to
show that the defendant had the intent to distribute drugs during the course of
the conspiracy as well as evidence to show that the defendant had the intent to
distribute the narcotics seized from the F/V CHASER on November 14, 2020.
• 	The second witness will testify that the defendant met a source of supply for
narcotics in May of 2020. Additionally, the witness will testify that they met
the defendant in Washington State with two drug mules traveling to Alaska in
late June of 2020.
• 	The third witness will testify that the defendant and the witness agreed to ship
a 	vehicle 	to 	Prince 	of 	Whales 	Island 	for 	the 	witness. 	The 	defendant
subsequently asked Alaska Marine Lines to divert the vehicle to Ketchikan,
Alaska, in which a third party picked up the vehicle. The third party took the
vehicle to the interisland ferry where it was stopped by police. A dog search of
the vehicle resulted in a positive hit for controlled substances in which no
narcotics were found. During that time, the third party had control of the vehicle
for approximately twenty minutes without observation. The government also
1 Dkt. 196 (Notice).
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expects to elicit testimony from one or more law enforcement officers about the
events leading up to the search of the vehicle sent to the third witness.2
The Government argued Jones’s “subjective knowledge and intent are central issues in this case,
and his prior involvement in distributing controlled [substances] is highly material.”3 It added,
The transactions described in the witness testimony represent the same sort of
conduct that is reflected in Count 1 of the Indictment. The testimony of the
witnesses is strong evidence that the transactions actually occurred. And the
transactions at issue took place in the months immediately before Counts 2 and 3
of the Indictment and after Count 1 of the Indictment.4
Jones did not file a motion or otherwise respond to the Notice prior to the start of trial.
This morning before jury selection, the Government orally moved to introduce the evidence
described in the Notice. Jones objected on the basis that these alleged prior bad acts are not
sufficiently similar to the charged offenses under Rule 404(b) and that the testimony is
substantially more prejudicial than probative under Rule 403.
Under Rule 404(b)(1), evidence of a defendant’s prior conviction, wrong, or act is inadmissible
“to prove a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.”5 “This prohibition reflects the ‘underlying premise of our criminal
justice system, that the defendant must be tried for what he did, not for who he is.’”6 However,
because such evidence “may be highly relevant,”7 Rule 404(b)(2) provides that it “may be
admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”8 To introduce evidence under Rule
404(b),
The Government carries the burden to 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).9
2 Dkt. 196 at 2–3.
3 Id. at 4.
4 Id.
5 Fed. R. Evid. 404(b)(1).
6 United States v. Verduzco, 373 F.3d 1022, 1026 (9th Cir. 2004).
7 Id.
8 Fed. R. Evid. 404(b)(2).
9 United States v. Charley, 1 F.4th 637, 647 (9th Cir. 2021).
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If the Court finds these requirements are met, it must then determine, under Rule 403, whether the
“probative value [of the evidence] is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.”10
The Court concludes the disputed testimony is inadmissible under Rule 404(b) at this time.
Beginning with the car Jones purportedly shipped to his sister, the Government concedes that law
enforcement found no drugs in the vehicle.11 The evidence is therefore insufficient to establish
Jones was using the car to ship controlled substances.12 The remaining disputed testimony presents
a closer issue. Nevertheless, the Court is not compelled at this time to conclude that the evidence
is sufficiently similar or probative, particularly when Jones has not yet contested his knowledge or
intent.13 Likewise, on balance, the Court finds at this time that the danger of unfair prejudice to
Jones substantially outweighs the probative value of this evidence under Rule 403.14
As the Court noted in its oral ruling, the Government may move again to introduce this evidence
if Jones opens the door. The Government shall not refer to these prior bad acts unless and until the
Court orders otherwise, and the Government shall so instruct its witnesses.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: July 11, 2022.
10 Fed. R. Evid. 403; see also United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005).
11 See, e.g., Dkt. 196 at 3 (noting “no narcotics were found”).
12 Charley, 1 F.4th at 647 (the evidence must be sufficient to support a finding that defendant
committed the other act).
13 See United States v. Torres, 824 F. App’x 467, 469 (9th Cir. 2020) (unpublished) (noting in drug
trafficking case that “the district court did not allow the government to introduce [evidence of the
defendant’s prior drug trafficking conviction] until after it determined that Torres had put at issue
his knowledge and intent”).
14 Fed. R. Evid. 403.
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