Case 1:20-cr-00183-RJJ ECF No. 387, PageID.

2626 Filed 12/31/21 Page 1 of 14

THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THE UNITED STATES OF AMERICA,

Case No. 1:20-CR-183
Plaintiff,
Hon. Robert J. Jonker
v. Chief U.S. District Court Judge

KALEB JAMES FRANKS,

Defendant.

DEFENDANT’S RESPONSE TO GOVERNMENT’S MOTION TO ADMIT

EVIDENCE UNDER RULE 404(b)

The government has asked the Court to allow it to present at trial evidence

related to supposed “other acts” (to allegedly show “predisposition”), citing Federal

Rule of Evidence 404(b). See RE. 370: Gov. Motion to Admit, PageID # 2440-47. Mr.

Franks now offers the following memorandum of law to support his objection to the

government’s motion. He incorporates here by reference the arguments made in the

defendants’ motion to dismiss. See RE. 379: Motion to Dismiss, PageID # 2518-36.

As the Court is, at this point, quite familiar with the facts and the procedural

posture of this case, Mr. Franks will forgo reciting that background.1

1 As Mr. Franks and his codefendants have recently explained to the Court, the government’s latest
production of discovery has been remarkably delayed from the anticipated September production
time. See, e.g., RE. 383: Motion to Admit Statements, PageID # 2556 n.3; RE. 385: Motion to
Continue, PageID # 2622-23. The defense still has not received these new discovery materials from
the discovery coordinating team in New York. The materials amount to some 385 or 386 gigabytes
and could conceivably contain additional information related to the topics covered here, such as
criminal history or the alleged “partially manufactured firearms.” Should the defense uncover
relevant information while reviewing this new material, it would ask the Court to allow for
presentation of that information.
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Legal Discussion

Federal Rule of Evidence 404(b) provides a default rule barring admission of

evidence of other crimes, wrongs, or acts. See Fed. R. Evid. 404(b)(1). Such evidence

“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.” Id. Such evidence may

be admissible for another purpose, like “proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” See

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

This exception to the general rule precluding admission applies in “limited

circumstances.” See, e.g., United States v. Mtola, 598 F. App`x 416, 420 (6th Cir.

2015). And those circumstances, according to case law and common sense, do not

exist here. The Supreme Court, for one, has made it clear that other-acts evidence

in the entrapment context has no relevance unless related to activity similar to the

charges at hand. In Jacobson v. United States, for example, the Court noted that

government internal guidelines of the time provided direction for undercover

operations and clarified “that an inducement to commit a crime should not be

offered unless” reasonable indications existed showing “that the subject is engaging,

has engaged, or is likely to engage in illegal activity of a similar type.” Jacobson v.

United States, 503 U.S. 540, 549 n.2 (1992) (emphasis added).

In considering entrapment and predisposition, the Sixth Circuit looks to five

factors, as discussed, for example in United States v. McLernon, 746 F.2d 1098,

1114, 1126 (6th Cir. 1984), where the court found entrapment as a matter of law.

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The McLernon court analyzed these factors as “relevant to determining a

defendant’s prior disposition,” including: (1) the character or reputation of the

defendant (including a relevant prior criminal record); (2) whether the government

made the initial suggestion to engage in criminal activity; (3) whether the

defendant engaged in the criminal activity for profit; (4) whether the defendant

evidenced reluctance to commit the offense, overcome only by repeated government

inducement/persuasion; and (5) the nature of the inducement/persuasion provided

by the government. See McLernon, 746 F.2d at 1112.

As discussed in the defendants’ joint motion to dismiss filed just a few days

ago, the evidence here comes up completely wanting in the predisposition arena

(and indicates the defendants’ marked reluctance to participate in the schemes and

activities suggested by the government’s agents and informants). And the

government’s proffer of an eight-and-a-half-year-old home invasion involving theft

of “money and a checkbook” can hardly alter or even contribute to the predisposition

equation for Mr. Franks. Cf. RE. 370: Gov. Motion to Admit, PageID # 2442.

Police reports of the incident indicate that the home involved was that of Mr.

Franks’s step-uncle, and that the money taken amounted to about $300 in change,

removed from a plastic “change bank”/“change bottle.” So Kaleb Franks snuck into

his step-uncle’s home (right next door to his mother and step-father’s home) and

pinched a bunch of loose change. At the time, Kaleb was abusing heroin. Now, of

course, he has an exemplary record of getting himself clean and sober, as explored

further below.

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The event’s lack of relevance glows even brighter in the light of the offense’s

HYTA (Holmes Youthful Trainee Act) disposition, a disposition that ultimately

resulted in the charge’s dismissal. See, e.g., RE. 57: Motion for Rev. of Detention

Order, PageID # 404. (With regard to a 2011 possession-of-cocaine conviction, Mr.

Franks got that conviction expunged, so he does not have any sort of felon status.

See id.)

As an elementary matter, predisposition cannot mean simply a predisposition

to do wrong. Many things society might consider wrong do not qualify as criminal

offenses (we no longer condemn fornicators to corporal punishment, even if they

were cheating on their longsuffering spouses). Likewise, many offenses simply don’t

raise a lot of modern eyebrows (or at least don’t seem like they should involve

criminal sanctions in certain circumstances): for example, Michigan’s indecent-

exposure law provides for a one-year misdemeanor if one skinny dips in a rustic,

secluded lake with other consenting adults. See M.C.L. § 750.335a(1) (criminalizing

the open exposure of one’s person). Without wandering too far into the

jurisprudential weeds, then, predisposition must be read with due regard for the

inherent subjectivity of defining what it means to be inclined to wrongdoing.

A malum in se offense, one that is “naturally evil,” of course, certainly bears

little resemblance to its foil, the malum prohibitum offense that society has simply

declared illegal (e.g., driving on the wrong side of the road). And Jean Valjean’s

theft of bread to feed children in his family certainly stands apart from guillotine-

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ing thousands in the name of revolution, even if one act was technically illegal and

the other sanctioned by leaders.

So predisposition cannot relate to a predisposition to engage in any sort of

law breaking or “wrongdoing.” It simply wouldn’t make sense to read the concept so

broadly, and courts have rejected that tack. See, e.g., United States v. Bramble, 641

F.2d 681, 682 (9th Cir. 1981). Taking a few more examples, a student’s yen for

smoking a joint (still a federal crime, regardless of state legalization) cannot

compare to an inclination to kidnap, engage in human trafficking, or organize a

scheme to defraud retirees with dementia of their life savings.

The law in this entrapment context supports making even finer distinctions.

The Supreme Court has rejected government efforts to show predisposition through

older criminal convictions, even when those convictions did resemble the charge at

issue. In Sherman v. United States, 356 U.S. 369, 375 (1958), the Court

acknowledged the government’s “additional evidence” that it presented to try show

that the defendant had been “ready and willing to sell narcotics should the

opportunity present itself,” namely the defendant’s two past narcotics convictions.

But “a nine-year-old [drug] sales conviction and a five-year-old [drug] possession

conviction are insufficient to prove petitioner had a readiness to sell narcotics at the

time [the informant] approached him, particularly when we must assume from the

record he was trying to overcome the narcotics habit at the time.” See id. at 375-76.

Even the concurrence in Sherman (a concurrence that saw fundamental

jurisprudential issues differently from the majority) recognized that predisposition

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involves “a general intention or predisposition to commit, whenever the opportunity

should arise, crimes of the kind solicited.” See id. at 382 (Frankfurter, J.,

concurring) (emphasis added).

Justice Frankfurter, in concurring in Sherman, emphasized the prejudice

that defendants can face in these circumstances, the possibility that a defendant

looking at the government’s predisposition evidence might have to consider forgoing

the claim of entrapment versus running “the substantial risk that, in spite of

instructions, the jury will allow a criminal record or bad reputation to weigh in its

determination of guilt of the specific offense of which he stands charged.” Id. The

justice admonished that “a test that looks to the character and predisposition of the

defendant rather than the conduct of the police loses sight of the underlying reason

for the defense of entrapment.” Id. Regardless of “the defendant’s past record and

present inclinations to criminality, or the depths to which he has sunk in the

estimation of society, certain police conduct to ensnare him into further crime is not

to be tolerated by an advanced society.” Id. at 382-83 (Frankfurter, J., concurring).

Critically for the purposes of this response, “[t]he possibility that no matter

what his past crimes and general disposition the defendant might not have

committed the particular crime unless confronted with inordinate inducements,

must not be ignored.” Id. at 383 (Frankfurter, J., concurring). “Past crimes do not

forever outlaw the criminal and open him to police practices, aimed at securing his

repeated conviction, from which the ordinary citizen is protected.” Id. Likewise, past

crimes and prior bad acts do not equate to predisposition to commit new crimes.

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Courts within the Sixth Circuit have followed this guidance on other-acts

evidence needing to relate to current charges to be admissible. In United States v.

Hood, 811 F. App`x 291, 297 (6th Cir. 2020), for example, the Sixth Circuit noted

that, “[a]lthough [the defendant’s] internet search history may [have]

demonstrate[d] an inclination to view lewd images of teenage girls—pageant

contestants no less—it hardly demonstrate[d] a predisposition to violate the law by

having sexual relations with minors.”

A. Mr. Franks 2013 home-invasion conviction lacks any sort of

relevance and bears absolutely no resemblance to the current
charge, making it useless for consideration of any possible
“predisposition.”

In considering Rule 404(b) generally (not necessarily in this specific

entrapment/predisposition context), courts consider several factors. As the Sixth

Circuit has said, “Prior bad acts, including prior convictions, can be admitted under

Rule 404(b), which requires (1) use of evidence for a proper purpose (that is, other

than as character or propensity evidence), (2) relevance, (3) that the evidence not be

substantially more unfairly prejudicial than probative pursuant to Rule 403, and (4)

that the court give a limiting instruction, if requested, such that the jury will only

consider the evidence for the proper purpose rather than as character or propensity

evidence.” See United States v. Stout, 509 F.3d 796, 799 (6th Cir. 2007).

Considering these factors in this context, the government simply can’t

shoehorn Mr. Franks’s prior home-invasion adjudication into the mold for

admission. First, the adjudication bears no resemblance to the charged offense, so it

has no value with regard to showing propensity. This lack of value then renders it

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irrelevant. And without any probative value, its potential to cause prejudice comes

to the forefront.

While Mr. Franks had a troubled young-adulthood, his prior home-invasion

conviction completely lacks relevance here where it will be almost nine years old at

the time of trial and bears absolutely no resemblance to the current charge against

Mr. Franks. The records from the 2013 offense indicate it did not involve forced

entry. Basically, while still battling his drug-related demons, Mr. Franks snuck into

his step-uncle’s home and stole a bunch of loose change and some checks.

The home-invasion incident bears no resemblance to the sort of “other acts”

that the Sixth Circuit has said can indicate predisposition. It looks nothing like the

paperback books describing, explicitly, minors engaged in sexual activity, as in

United States v. Nelson, where “[t]he seized paperbacks [we]re relevant as to

whether or not [the defendant] was predisposed to send for pedophilic materials.”

See United States v. Nelson, 847 F.2d 285, 288 (6th Cir. 1988). Unlike those books,

the home invasion here offers nothing with regard to violence, abduction, or

overthrowing the governor.

In the almost nine years since he sustained that adjudication (treated under

HYTA), Mr. Franks has pursued a rehabilitation-oriented career, working at

Meridian Health Systems, in the area of drug and alcohol treatment. See RE. 57:

Motion for Rev. of Detention Order, PageID # 404. Before his arrest on the instant

charge, he had worked there for four years. Id. He was also volunteering with

Families Against Narcotics, and working with the 6th Circuit Court in Pontiac,

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helping probationers with drug addiction. Id. Along with all this, Mr. Franks was

working with Rise Up Recovery. Id. Once a heroin user, Mr. Franks has been sober

since he went to jail for the home-invasion adjudication in 2013. Id. Using his own

past experiences as background, he had turned to helping others struggling with

addiction; he represents the ideal of a once-drug-offender turning his life around. Id.

With regard to associates, since February 29, 2018, Mr. Franks has owned a

house in Waterford, Michigan, where (before his arrest here) he was living with his

fiancée and her mother. See id. If the “central inquiry” in an entrapment case is

whether authorities “implanted a criminal design” in the mind of an otherwise law-

abiding person or whether the government merely provided an opportunity to

commit an offense to one who is already predisposed to do so, Mr. Franks’s life in

the last eight years is one of law-abiding, productivity. See Nelson, 847 F.2d at 287

(citing case law). The idea that this prior offense of stealing change from an uncle

could indicate predisposition to conspire to kidnap a governor baffles counsel.

B. The government’s own evidence shows that the supposed

“partially manufactured firearms” have no relevance in the
“predisposition” context; taking that evidence in the light most
favorable to the government, the allegations show merely a
profit motive and no predisposition toward violence or crimes
against persons.

The same weaknesses undermine the government’s arguments related to the

so-called “partially manufactured firearms”: the government’s allegations (and Mr.

Franks make no concessions regarding those allegations) show, at best for the

government, a profit motive. See, e.g., RE. 370-2: Attach. 2, Gov. Motion to Admit,

PageID # 2450. Nothing the government has presented indicates a predisposition

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toward violence, kidnapping, harming or threatening others, or even committing

any sort of trespass or property damage.

Courts have long rejected arguments like the government’s, such mental

gymnastics aimed at turning a criminal record in general, or some other poor

decision making, into predisposition to commit the charged crime. Forty years ago,

in United States v. Bramble, the Ninth Circuit was clear: “possessing marijuana is

not a similar offense to selling heroin, and that it was therefore reversible error to

admit into evidence an earlier conviction of possession of marijuana for the purpose

of proving intent to sell heroin,” and a conviction for possessing of marijuana is not

probative of predisposition to sell cocaine. Bramble, 641 F.2d at 682-83.

A willingness to illegally sell a firearm, to make some extra cash, does not

show predisposition to terrorize or kidnap someone. The Sixth Circuit said as much

in Hood, when it cited the Supreme Court’s decision in Jacobson, discussed above,

which “makes clear that what matters is the severity of the pre-inducement conduct

in relation to the crime attempted.” Hood, 811 F. App`x at 297. Indeed, the Hood

court admonished the government that it is not free to induce more-serious crimes

simply because its target may have already committed a lesser offense. Id.

These gun allegations (and the home invasion) hardly compare in severity to

the charge here. Nor do these gun allegations qualify as res gestae evidence. See,

e.g., Mtola, 598 F. App`x at 420 (discussing how Rule 404(b) and background/res

gestae concepts may provide “alternative grounds for admission”). The allegations

presented by the government do not touch on the charged conspiracy. That

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conspiracy is not “intertwined” with the gun allegations. This sort of “propensity

evidence” is just the sort of thing the rules of evidence protect against.

C. Even if the Court finds that this evidence could be admissible,

Rule 403 militates against its admission.

Should the court decide that the government’s proffered evidence is relevant

and otherwise admissible, the Court should still exclude it since “its probative value

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.” See Fed. R. Evid. 403.

Rule 404(b) protects people from the very real risk that a jury may punish

them for old, unrelated wrongdoing . . . or conclude that “once a criminal, always a

criminal.” Courts have long warned of this risk, which falls squarely within the

circle of Rule 403’s parallel protections. See, e.g., Stout, 509 F.3d at 801 (including a

district court’s observation that prior-bad-acts evidence can carry the potential for

prejudice because it can be both inflammatory and distracting; while the prior bad

acts in that case were “creepier” than the charged conduct, the fact remains that

prior acts carry the kind of prejudicial potential Rule 403 aims at). A Rule 403

weighing must occur before a court admits prior-/other-acts evidence. See, e.g.,

Bramble, 641 F.2d 683.

The government hardly needs this evidence. Compare Stout, 509 F.3d at 800

(considering government’s need for evidence). The evidence adds nothing of any

value with regard to whether the defendants conspired to kidnap the governor.

While it may show that a young and troubled Mr. Franks stole change from a

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relative, it hardly shows that he was lawless, violent, inclined to engage in high-risk

behavior, or prone to being notably anti-social—and was somehow predisposed to

kidnapping. And even if the government “needed” this evidence, that need alone

cannot establish admissibility. As the Stout court reasoned, “While it is true that

the government’s need for the evidence should be weighed along with its probative

value to determine whether it should be admitted under Rule 403, the need for the

evidence does not make the evidence more likely to prove that which it is offered to

prove.” Id. “Probative value and need for the evidence are separate considerations

that weigh in favor of admission under the Rule 403 balancing test.” Id. Here,

neither need nor probative value exist, and the risk of unfair prejudice is high.

Conclusion

Criminal history and “other acts,” considered in the entrapment and

predisposition context, must be similar to the charge at hand. Otherwise, they are

simply irrelevant. In Mr. Franks’s case, a nearly nine-year-old minor home-invasion

charge (involving a young man stealing change from an uncle) has absolutely no

relevance with regard to an alleged predisposition to kidnap a governor. Likewise,

the supposed “partially manufactured firearms” mean nothing here because the

evidence shows that if Mr. Franks participated in such a scheme it was only to

obtain money and involved nothing more than an attempt at an illegal sale.

The government should not be allowed to circumvent Rule 404(b) and

introduce evidence of “other acts” to do exactly what Rule 404(b) prohibits: try to

show “that on a particular occasion the person [allegedly Mr. Franks] acted in

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accordance with the [supposed bad] character” the government thinks the “other

acts” prove. Compare Fed. R. Evid. 404(b)(1). (Should the Court decide to admit the

evidence, Mr. Franks does ask the Court to give the jury a limiting instruction. See,

e.g., Stout, 509 F.3d at 799.) As the case law affirms, the predisposition question

does not create a “free for all” for presenting criminal history, other bad acts, and

the like to prove a general penchant for wrongdoing.

Respectfully submitted,

Date: December 31, 2021 By: /s/ Scott Graham

Scott Graham
Attorney for Defendant Franks
Business Address:
1911 West Centre Avenue, Suite C
Portage, Michigan 49024
(269) 327.0585
[email protected]

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CERTIFICATE OF COMPLIANCE

In accordance with Local Criminal Rule 47.2(b)(ii), counsel asserts that this

brief contains 3,248 words, as counted by Microsoft Word, version 16.54.

Respectfully Submitted,

By: /s/ Scott Graham

Dated: December 31, 2021 SCOTT GRAHAM
Attorney for Defendant Franks
Business Address:
1911 West Centre Avenue, Suite C
Portage, Michigan 49024
(269) 327.0585
[email protected]

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