USA v. Alexander

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JEROD ROBERT ALEXANDER, a/k/a
“Pac Man,”
Defendant.
Case No. 3:21-cr-00048-SLG-MMS
ORDER RE GOVERNMENT’S OMNIBUS MOTIONS IN LIMINE
Before the Court at Docket 93 is the Government’s Omnibus Motions in Limine.
Defendant Jerod Alexander did not file a response. 	The Government raises three
issues.
I. 	Rule 404(b) Evidence
First, the Government seeks to introduce evidence of Mr. Alexander’s prior
drug convictions pursuant to Evidence Rules 402, 403, and 404(b) as evidence in
support of Defendant’s “intent, preparation, and plan to distribute and possess with
intent to distribute drugs on the dates alleged in the Indictment.”1 	The Government
identifies two of Mr. Alexander’s prior drug convictions: (1) a 2013 state drug
conviction after he was found in possession of “55.4 grams of heroin, 207.1 grams of
marijuana, and $23,000 in cash”;2 and (2) a 2013 federal conviction for one count of
1 Docket 93 at 2.
2 Docket 93 at 2 (citing Final Presentence Inv. Rep. (sealed) at 8 & n.1, U.S. v. Alexander, Case
No. 3:13-cr-00052-SLG (D. Alaska Aug. 13, 2013), ECF No. 21); see also Charge Disposition: Def.
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Possession with Intent to Distribute and three counts of Distribution of Controlled
Substances involving heroin.3
Evidence of a prior conviction is not admissible to show that the defendant has
a bad character or is prone to criminal activity. 	But pursuant to Federal Rule of
Evidence 	404(b), 	it 	may 	be 	introduced 	to 	show 	motive, 	opportunity, 	intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. “To prove
that the evidence is offered for one of these reasons, it is the government's
responsibility to show that the evidence (1) proves a material element of the offense
for which the defendant is now charged, (2) if admitted to prove intent, is similar to
the offense charged, (3) is based on sufficient evidence, and (4) is not too remote in
time.”4 	Further, a court “must analyze the evidence pursuant to Rule 403 and
determine whether its probative value outweighs its prejudicial effect,” and the
Government must demonstrate relevance by “articulat[ing] precisely the evidential
hypothesis by which a fact of consequence may be inferred from the other acts
evidence.” 5
In the instant case, Mr. Alexander is charged with drug and firearm-related
Convicted on Charge, State v. Alexander, Case No. 3AN-11-13257CR (Alaska Super. Ct. June 14,
2013).
3 Docket 93 at 2 (citing Am. J., U.S. v. Alexander, Case No. 3:13-cr-00052-SLG (D. Alaska Aug. 27,
2013), ECF No. 29).
4 U.S. v. Ramirez-Robles, 386 F.1234m 1242 (9th Cir. 2004), citing United States v. Beckman, 298
F.3d 788, 794(9th Cir. 2002), then citing United States v. Arambula-Ruiz, 987 F. 2d 599, 602 (9th
Cir. 1993).
5 Arambula-Ruiz, 987 F.2d at 602-03 (citations omitted).
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offenses, including one count of Distribution of Controlled Substances involving
heroin and one count of Possession of Controlled Substances with Intent to Distribute
involving fentanyl and heroin.6 The Ninth Circuit has “consistently held that evidence
of a defendant’s prior possession or sale of narcotics is relevant under Rule 404(b) to
issues of intent, knowledge, motive, opportunity, and absence of mistake or accident
in prosecutions for possession of, importation of, and intent to distribute narcotics.”7
Thus, Mr. Alexander’s prior convictions are relevant to at least one material element
of the charged offenses. 	Next, Mr. Alexander’s prior drug convictions are not only
similar to the charged conduct, but his prior federal drug conviction charges are
substantially identical to the instant drug charges. 	As Mr. Alexander was convicted
of the prior drug offenses, that fact “is sufficient proof that [he] committed the prior
act.”8 And Mr. Alexander’s 10-year-old state and federal drug convictions are not too
remote in time, given that the Ninth Circuit has repeatedly held that 13-year-old
convictions are not too remote in time for purposes of Rule 404(b). 9
Therefore, the Court finds that the Government has satisfied the four Rule
404(b) requirements for admission of the prior convictions. 	However, the Court
defers its Rule 403 ruling on these convictions pending trial and its consideration of
6 Docket 104 at 1-2 (1st Superseding Indictment).
7 United States v. Vo, 413 F.3d 1010, 1018 (9th Cir. 2005) (quoting United States v. Mehrmanesh,
689 F.2d 822, 832 (9th Cir.)).
8 See Arambula-Ruiz, 987 F.2d at 603.
9 See Vo, 413 F.3d at 1013, 1018-19; United States v. Ross, 886 F.2d 264, 267 (9th Cir. 1989).
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any defenses Mr. Alexander may raise. Accordingly, this portion of the Government’s
motion is denied without prejudice to renew at trial, with the renewal of such motion
to be made outside the presence of the jury. There shall be no reference to the jury
as to the prior drug convictions unless and until otherwise ordered.
II. 	Rule 902 Certified Electronic Records
The 	Government 	next 	“seeks 	authentication 	of 	electronic 	records 	by
certification pursuant to Fed. R. Evid. 803(6), 902(11), and 902(13).” 10 The electronic
records in question are “portions of four Cellebrite reports . . . from phones seized
from the defendant’s residence.” 11 In support of its motion, the Government attached
a certification from Brandon Hunter, the Digital Forensic Lab Manager for the Alaska
Bureau of Investigation, who certified that he extracted data from multiple cell phones
using specialized mobile forensic tools, and that he processed those extractions with
Cellebrite Physical Analyzer.12 	Mr. Hunter states in his certification that he extracts
data from digital devices, including mobile devices, as part of his professional
responsibilities.13 	Evidence Rule 902(11) requires that any such certification meets
the requirements of Rule 803(6)(A)-(C),14 and the Government asserts that the
10 Docket 93 at 6.
11 Docket 93 at 6.
12 Docket 93-1 at 1. While the certification does not explicitly state that the extractions in question
are tied to the instant case, the Court will assume that they are given the Government’s proffer and
the lack of an objection from the defense.
13 Docket 93-1 at 1.
14 Rule 803(6) covers the requirements of the exception to hearsay involving records of a regularly
conducted activity. It requires that:
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certification does so.15 	Given that the defense has not objected to this issue, this
portion of the Government’s motion is granted.
III. 	Rule 609 Impeachment by Prior Conviction
Finally, the Government gives notice pursuant to Rule 609 that it will “seek to
attack the defendant’s character for truthfulness by evidence of his prior [drug]
convictions” and a 2010 robbery conviction, if Mr. Alexander seeks to testify in the
case.16 If Mr. Alexander elects to testify, then the Court will allow the Government to
impeach by using the prior state and federal drug convictions, in the event those
convictions were not admitted under Evidence Rule 404(b). The Court defers a ruling
on the admissibility of Mr. Alexander’s robbery conviction until after he informs the
Court on whether he plans to testify; if he does, the Court will rule on this issue before
his testimony on direct examination, so that the Court may determine if “its probative
value, supported by specific facts and circumstances, substantially outweighs its
prejudicial effect.”17 Accordingly, this portion of the Government’s motion is granted
at this time as to the drug convictions only and deferred as to the robbery conviction.
(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, organization, occupation, or calling, whether or not
for profit; [and] (C) making the record was a regular practice of that activity.
15 Docket 93 at 7.
16 Docket 93 at 10. Mr. Alexander was convicted for Robbery in the Second Degree on March 10,
2010, in Alaska Superior Court. See Docket 104 at 4 (1st Superseding Indictment); Charge
Disposition: Def. Convicted on Charge, State v. Alexander, Case No. 3AN-09-07126CR (Alaska
Super. Ct. Mar. 22, 2010).
17 Fed. R. Evid. 609(b). Because the robbery conviction is over 10 years old, this subsection of the
rule applies.
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CONCLUSION
In light of the foregoing, the motion at Docket 93 is GRANTED IN PART AND
DENIED IN PART as explained herein.
DATED this 16th day of August, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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