USA v. Lowe

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Criminal Case No. 20-cr-326-WJM
UNITED STATES OF AMERICA,
Plaintiff,
v.
SCOTT LOWE,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART GOVERNMENT’S NOTICE
OF INTENT TO INTRODUCE EVIDENCE PURSUANT TO FEDERAL RULE OF
EVIDENCE 404(B) AND MOTION IN LIMINE TO ADMIT EVIDENCE
The Government charges Defendant Scott Lowe with: (1) one count of
possession with intent to distribute a mixture and substance containing a detectable
amount of 3,4-Methyl-enedioxy-methamphetamine (MDMA), a Schedule I controlled
substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); (2) one count of
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(i); and (3) one count of possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1). (ECF No. 52.)
This matter is before the Court on the Government’s Notice of Intent to Introduce
Evidence Pursuant to Federal Rule of Evidence 404(b) and Motion in Limine to Admit
Evidence (“Motion”), filed on October 4, 2021. (ECF No. 81.) Defendant responded on
October 20, 2021. (ECF No. 83.) For the reasons set forth herein, the Motion is
granted in part and denied in part.
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I. FACTUAL BACKGROUND
On February 11, 2014, Defendant pled guilty to one count of possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). (ECF No. 81-1 at 1.) Defendant
was sentenced to 48 months’ imprisonment, followed by 3 years of supervised released
(Id. at 34–35.) The terms of Defendant’s supervised release included a requirement
that “[t]he [D]efendant shall submit his or her person, property, house, residence,
papers, [computers (as defined in 18 U.S.C. § 1030(e)(l)), other electronic
communications or data storage devices or media,] or office, to a search conducted by
a United States probation officer. . . .” (Id. at 36.)
On December 2, 2019, United States Probation Officers Jordan Buescher and
Ashlie Diener searched Defendant’s apartment unit and uncovered: (1) capsules used
in the distribution of MDMA; (2) messages on Defendant’s cellphone indicating that he
was attempting to buy large amounts of narcotics; and (3) cell phone search results
indicating that Defendant had visited a webpage relating to a grip for a Kahr firearm.
(ECF No. 81 at 6; ECF No. 81-2.)
On February 24, 2020, Buescher, Diener, and members of the Denver Police
Department conducted another home visit after receiving a report that Defendant was
abusing his son and engaging in domestic violence against his wife. (ECF No. 81-3 at
1.) During the search, police discovered that Defendant’s wife was in possession of a
loaded Smith & Wesson 9 mm handgun and a second magazine in a black holster in
her pants holding six rounds of ammunition for a Kahr firearm. (ECF No. 81 at 8; ECF
No. 81-3 at 3.) In searching the apartment, the Probation officers found plastic bags, a
digital scale, a pill press, suspected steroids, and other drug paraphernalia. (ECF No.
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81 at 8.) Following this search, Defendant was arrested on second degree assault
charges. (ECF No. 81-3 at 3.)
Thereafter, during the February 27, 2020 search of a storage unit in Defendant’s
apartment building, law enforcement uncovered, inter alia:
a loaded Kahr Arms .40 caliber CM40 handgun with serial
number JN4570; firearm ammunition; a clear plastic bag of
containing approximately 25 grams of methamphetamine
and MDMA; a black ski mask; two parking ticket return
envelopes issued to the defendant at 901 Sherman Street,
#724, Denver, Colorado, one of which contained a
handwritten note stating, “zip molly- 1800, 52 off white-
2460, X pills- 300, 1g moon rock $20, powder?”; a
prescription of “Vyvanse” belonging to Lowe; a black t-shirt
with “Police” printed on the front and back; numerous small,
unused, clear plastic baggies with blue devil images; digital
scales; prescription medication for Ashley Lowe, the Lowe’s
ex-wife; a passport and social security card belonging to
Zach Reedholm, the defendant’s former brother-in-law;
numerous forged checks made out to Zach Reedholm; and
numerous pieces of stolen mail.
(ECF No. 81 at 1–2.)
II. LEGAL STANDARDS
“The admission or exclusion of evidence lies within the sound discretion of the
trial court . . . .” Robinson v. Mo. Pac. R.R. Co., 16 F.3d 1083, 1086 (10th Cir. 1994);
see also United States v. Golden, 671 F.2d 369, 371 (10th Cir. 1982) (“Trial judges
have discretion to decide whether an adequate foundation has been laid for the
admission of evidence.”).
Under Federal Rule of Evidence 401, “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would without the evidence; and
(b) the fact is of consequence in determining the action.” Relevant evidence is
generally admissible and should only be excluded “if its probative value is substantially
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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. “Irrelevant evidence is not admissible.” Fed. R. Evid. 402.
Federal Rule of Evidence 404(b) provides:
(1) Prohibited Uses. Evidence of any other crime, wrong, or
act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.
(3) Notice in a Criminal Case. In a criminal case, the
prosecutor must:
(A) provide reasonable notice of any such evidence
that the prosecutor intends to offer at trial, so that the
defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for
which the prosecutor intends to offer the evidence
and the reasoning that supports the purpose; and
(C) do so in writing before trial--or in any form during
trial if the court, for good cause, excuses lack of
pretrial notice.
A court considers a four-factor test when determining the admissibility of
evidence under Rule 404(b). The test requires that:
(1) the evidence must be offered for a proper purpose; (2)
the evidence must be relevant; (3) the trial court must make
a Rule 403 determination of whether the probative value of
the similar acts is substantially outweighed by its potential for
unfair prejudice; and (4) pursuant to FED.R.EVID. 105, the
trial court shall, upon request, instruct the jury that evidence
of similar acts is to be considered only for the proper
purpose for which it was admitted.
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United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000) (quotation omitted); see
Huddleston v. United States, 485 U.S. 681, 691–92 (1988) (discussing four sources that
serve as “the protection against . . . unfair prejudice” when admitting evidence under
Rule 404(b)).
III. ANALYSIS1
In its Motion, the Government seeks an order confirming that it may introduce the
following evidence at trial: (1) Defendant’s prior conviction in Criminal Case No. 13-cr-
468-PAB, as well as the corresponding plea agreement and transcript of his change of
plea hearing; (2) the results of the December 2, 2019 search of Defendant’s apartment;
and (3) results of the February 24, 2020 search of Defendant’s apartment. (ECF No.
81.)
A. 	Evidence Regarding Defendant’s Prior Conviction
The Government seeks an order allowing it to introduce Defendant’s prior
conviction, as well as the plea agreement and transcript of Defendant’s change of plea
hearing. (ECF No. 81 at 3–5.) The Government contends that this evidence will be
offered to establish Defendant’s motive, intent, knowledge, absence of mistake, and
identity. Specifically, the Government contends that: (1) the sentence and conviction
tend to show Defendant “was using the storage unit to hide the firearms and narcotics,
because the terms of his supervised release allowed probation officers to search his
residence for contraband”; (2) the sentence and conviction demonstrate that
Defendant’s unlawful possession of a firearm was knowingly undertaken; (3) the plea
1 In the Motion, the Government seeks a ruling about whether it may introduce evidence
at trial. (ECF No. 81.) Although motions in limine generally relate to requests to exclude
evidence, the Court will nonetheless analyze the issues raised in the Motion to avoid extensive
evidentiary disputes at trial.
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agreement contained admissions of prior narcotics activity, which demonstrates that
Defendant had the knowledge or intent necessary to commit possession with intent to
distribute a mixture and substance containing a detectable amount of 3,4-Methyl-
enedioxy-methamphetamine (MDMA); and (4) the stipulated facts in the plea
agreement, including that he was living with Ashley Reedholm at the time, connect
Defendant to the storage unit in the case. (Id. at 4–5.)
Defendant responds that the probative value of the prior conviction is “minimal at
best” and is too remote in time to be admissible pursuant to Rule 404(b). (ECF No. 83
at 3, 5.) He further argues that the proffered evidence is highly prejudicial and should
be excluded pursuant to Rule 403. (Id. at 3–5.) The Court agrees with Defendant in
part.
The Court concludes that the Government will not be permitted to use
Defendant’s prior conviction and plea agreement to demonstrate Defendant’s specific
intent to distribute narcotics. Although it is proper to use prior drug involvement to show
plan, motive, or intent in a drug trafficking offense, see United States v. Watson, 766
F.3d 1219, 1237 (10th Cir. 2014), the relevance of Defendant’s prior conviction to
demonstrate Defendant’s specific intent to distribute narcotics is undermined by the
lengthy period of time between the prior acts and the alleged conduct charged in the
Superseding Indictment, see United States v. Becker, 230 F.3d 1224, 1232 (10th Cir.
2000) (recognizing that “prior narcotics involvement is relevant when that conduct is
‘close in time, highly probative, and similar to the activity with which the defendant is
charged’” and that “[f]our to six years transcends our conception of ‘close in time’”).
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Here, the Court concludes that Defendant’s 2014 plea agreement and conviction are too
remote to be admissible as Rule 404(b) evidence.
Moreover, although the Government seeks to offer Defendant’s prior conviction
to establish Defendant’s intent, knowledge, and motive, the Court concludes that the
probative value of the prior conviction being introduced at the onset of the trial is
substantially outweighed by a danger of unfair prejudice, and is thus properly excluded
under Rule 403.2
Defendant has not moved to bifurcate the evidence and deliberation against the
felon-in-possession charge against Defendant from the remaining charges.
Nonetheless, it is the Court’s longstanding practice—on its own motion, if necessary—to
bifurcate trials containing a 18 U.S.C. § 922(g)(1) charge pursuant to Federal Rule of
Criminal Procedure 14. In the Court’s view, the introduction of evidence regarding the
felon-in-possession charge will necessarily inform the jury of Defendant’s status as a
felon, and in all likelihood will be unduly prejudicial in the jury’s consideration of the
other charges. Accordingly, on its own motion, the Court will bifurcate the trial against
Defendant. Counts 1 and 2 will be tried first. After the jury returns a verdict on those
2 The Court further disagrees that the Government must be permitted to introduce
Defendant’s 2014 plea agreement to explain Defendant’s connection to Ashley Reedholm. The
Probation Office’s notes of the February 24, 2020 search of Defendant’s apartment demonstrate
that U.S. Probation officers are aware of Ms. Reedholm’s connection to Defendant and may
therefore testify to that connection at trial. (See ECF No. 83-3 at 3.) Because there are other
avenues for the Government to demonstrate Ms. Reedholm’s connection to Defendant, the
Court concludes that the plea agreement’s relevance to establish Defendant as the owner of the
storage locker’s contents is outweighed by a danger of unfair prejudice to Defendant under Rule
403.
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offenses, the parties will immediately move on to their evidence regarding Count 3. The
same jury will hear that evidence and deliberate on Count 3.3
Although the Court will not allow the Government to introduce evidence of
Defendant’s status as a felon during the first phase of the trial, the Court nonetheless
believes that the Government should be permitted to introduce certain evidence
pertaining to Defendant’s criminal history at trial. Such information is critical to set the
scene for the jury and will provide relevant context about why Buescher and Diener
were supervising Defendant and why Defendant might store firearms and narcotics in a
storage unit rather than his apartment. Without this evidence the sequence of events
underlying the charged conduct in this case will make little sense to the jury.
Accordingly, the Court will allow the Government to inform the jury that Defendant was
under supervision by the United States Probation Office due to a prior violation of law.
However, the Government is not permitted to introduce evidence during phase one of
the trial referencing this prior violation of law as a felony conviction.
Accordingly, this portion of the Motion is granted in part and denied in part.
B. 	Evidence Uncovered During December 2, 2019 and February 24, 2020
Searches
The Government argues that evidence recovered as a result of the December 2,
2019 and February 24, 2020 searches is not subject to Rule 404(b) because it is
intrinsic to the crimes charged. (ECF No. 81 at 6.) Specifically, the Government argues
that the December 2, 2019 search “occurred less than three months before the charged
3 To the extent that the parties do not reach a stipulation regarding Defendant’s felon
status and knowledge that he had been convicted of a felony, the Court will allow the
Government to introduce Defendant’s prior conviction during phase two of the trial. If necessary
at that time, the Court will revisit whether the Government should also be permitted to introduce
Defendant’s plea agreement and the transcript of the change of plea hearing.
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offense,” “involved the same probation officers as the later search,” “set the stage for
why the [D]efendant was hiding the contraband charged in this case outside of his
residence,” and “produced evidence intimately connected with the narcotics and Kahr
firearm charged in this case” and should therefore be considered intrinsic evidence. (Id.
at 6–7.) The Government further argues that the Superseding Indictment encompasses
the timeframe of the February 24, 2020 search and that this search “led to the February
27, 2020 storage unit search.” (Id. at 8.)
In response, Defendant argues that the February 27, 2020 search “could not
conceivably be ‘inextricably intertwined’ with the supervision searches” as they were
“conducted by different officers, in different governments, for different purposes.” (ECF
No. 83 at 2.) He further argues that the “February 24 search by probation officers
provided absolutely no basis for the February 27 storage unit search by Denver
detectives” and that the alleged evidence uncovered on February 24 had “absolutely
nothing to do with the storage unit search.” (Id. at 3.) The Court disagrees.
“Rule 404(b) only applies to evidence of acts extrinsic to the charged crime.”
United States v. Lambert, 995 F.2d 1006, 1007–08 (10th Cir. 1993) (quoting United
States v. Pace, 981 F.2d 1123, 1135 (10th Cir. 1992), cert. denied, 507 U.S. 966
(1993)). “Other act evidence is intrinsic when the evidence of the other act and the
evidence of the crime charged are inextricably intertwined or both acts are part of a
single criminal episode or the other acts were necessary preliminaries to the crime
charged.” Id. (citation omitted); see also United States v. Parker, 553 F.3d 1309, 1314
(10th Cir. 2009) (recognizing that “[i]ntrinsic evidence is directly connected to the factual
circumstances of the crime and provides contextual or background information to the
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jury” whereas “[e]xtrinsic evidence . . . is extraneous and is not intimately connected or
blended with the factual circumstances of the charged offense” (citations omitted)).
Here, the Court concludes that the evidence obtained during the December 2,
2019 and February 24, 2020 searches is intrinsic to the factual circumstances
surrounding the Superseding Indictment and is therefore admissible at trial.4 After all,
the evidence obtained during the December 2, 2019 and February 24, 2020 searches—
including the capsules, pill press, digital scale, plastic bags, drug paraphernalia, as well
as the cell phone messages indicating that Defendant was both looking to purchase
narcotics and searching for a grip for a Kahr firearm—is directly connected to the factual
circumstances of the offenses charged in the Superseding Indictment.5 The evidence
directly relates to the Government’s theory that Defendant was the owner of the items
uncovered in the storage unit, as well as Defendant’s intent to distribute narcotics and
possess a firearm in furtherance of a drug trafficking crime.
To the extent that Defendant argues that the probative value of the evidence
obtained as a result of the December 2 and February 24 searches is outweighed by
unfair prejudice, the Court disagrees. After all, “Rule 403 does not protect a party from
4 Even if the evidence was not intrinsic to the crimes charged, the Court would
nonetheless find that this evidence is admissible pursuant to Rule 404(b) for the proper purpose
of showing Defendant’s motive and intent. See Watson, 766 F.3d at 1237. Moreover, the
evidence is relevant given the temporal proximity and relation to the instant charged offenses.
See United States v. Conway, 73 F.3d 975, 981 (10th Cir. 1995) (upholding admission of prior
arrests for selling cocaine from motel rooms to support a charge for possession with intent to
distribute cocaine from neighboring motel).
5 Moreover, the Court notes that the time period identified for Counts 1–3 in the
Superseding Indictment explicitly includes the February 24, 2020 search and allows for the
inclusion of the December 2, 2019 search. (See ECF No. 52 (alleging that Counts 1–3 began
on a “date unknown but not later than on or about February 24, 2020, through on or about
February 27, 2020”).)
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all prejudice, only unfair prejudice.” Watson, 766 F.3d at 1242 (recognizing that unfair
prejudice is assessed by analyzing whether the “[e]vidence . . . makes a conviction
more likely because it provokes an emotional response in the jury or otherwise tends to
affect adversely the jury’s attitude toward the defendant wholly apart from its judgment
as to his guilt or innocence of the crime charged”).
However, the Court agrees with Defendant’s assertion that the allegations of
child and spousal abuse against Defendant are “highly inflammatory,” “prejudicial,” and
“likely to inflame the jury.” (ECF No. 83 at 4.) The Court will permit the witnesses to
testify that Buescher, Diener, and members of the Denver Police Department visited
Defendant’s home on February 24, 2020; however, these witnesses may not testify that
this home visit was conducted after receiving a report that Defendant was abusing his
son and/or wife or that Defendant was thereafter charged with second degree assault.
(ECF No. 81-3 at 1.) For the same reason, the Government will not be permitted to
introduce Buescher’s March 6, 2020 report regarding the February 24, 2020 search.
(See ECF No. 81-3.) However, Buescher will be permitted to testify regarding the
February 24, 2020 search in a manner that is consistent with this Order.
The Court further agrees that the Government will not be permitted to introduce
Buescher’s notes of the December 2, 2019 search as it contains a legal conclusion that
“[i]n review of the phone, it was very evident the D[efendant] was engaged in narcotic
trafficking.” (ECF No. 81-2 at 2.) Nonetheless, Buescher will be permitted to testify as
to his observations during the December 2, 2019 search.
This portion of the Motion is granted in part and denied in part as set forth herein.
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IV. CONCLUSION
For the reasons set forth above, the Court ORDERS that:
1. 	The Government’s Notice of Intent to Introduce Evidence Pursuant to Federal
Rule of Evidence 404(b) and Motion in Limine to Admit Evidence (ECF No. 81) is
GRANTED IN PART AND DENIED IN PART as set forth herein; and
2. 	By way of separate order, the Court will reset the Final Trial Preparation
Conference and Trial.
Dated this 19 th day of November, 2021.
BY THE COURT:
______________________
William J. Martinez
United States District Judge
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