FOR PUBLICATION
IN THE DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
UNITED STATES OF AMERICA and the
PEOPLE OF THE VIRGIN ISLANDS,
Plaintiffs,
v.
SHAWN TYSON and KELROY MORRELL,
Defendants.
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Criminal No. 2008-49
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ATTORNEYS:
St. Claire Theodore, AUSA
Ishmael Meyers, Jr., AUSA
St. Thomas, U.S.V.I.
For the plaintiffs. 
Leonard B. Francis, Esq. 
St. Thomas, U.S.V.I.
For defendant Shawn Tyson.
Darren John-Baptiste, Esq.
St. Thomas, U.S.V.I.
For defendant Kelroy Morrell.
ORDER
GÓMEZ, C.J.
Before the Court is the motion in limine of the plaintiffs,
United States of America and the People of the Virgin Islands
(together, the “Government”), to admit certain evidence as
“inextricably intertwined” with alleged crimes.  In the
alternative, the Government notices its intent to present
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evidence under Federal Rule of Evidence 404(b).  
  
On July 31, 2008, defendant Shawn Tyson (“Tyson”) traveled
by plane from Johnson City, Tennessee to St. Thomas, U.S. Virgin
Islands.  Agents from the Bureau of Alcohol, Tobacco and Firearms
suspected Tyson of transporting firearms.  After arriving in St.
Thomas, Tyson placed his luggage in a car that met him at the
airport.  The car was driven by defendant Kelroy Morrell
(“Morrell”).  Officers from the Virgin Islands Police Department
subsequently stopped the car and arrested Tyson and Morrell
(together, the “Defendants”), as well as a third occupant of the
car.  A search yielded several firearms and boxes of ammunition
as well as firearm cases and magazines.  Also found were several
photographs and video clips recorded on a cellular phone and a
camera.  Those photographs and clips showed the Defendants posing
with firearms. 
Thereafter, the Defendants were charged with various
firearm-related offenses.  Count One charges them with conspiracy
to traffic firearms in violation of 18 U.S.C. § 371.  Counts Two
through Thirteen charge them with aiding and abetting in the
trafficking of firearms in interstate and foreign commerce in
violation of 18 U.S.C. § 922(a)(1)(A).  In Counts Fourteen
through Twenty-Four, the Defendants are charged with aiding and
abetting in the trafficking of firearms in violation of V.I. CODE
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ANN tit. 14, § 2253(a).  Count Twenty-Five charges the Defendants
with aiding and abetting each other in the transfer of a firearm
to be used in a crime in violation of 18 U.S.C. § 924(b).  In
Count Twenty-Six, Tyson is charged with transferring firearms to
an out-of-state resident in violation of 18 U.S.C. § 922(a)(5). 
Count Twenty-Seven charges Morrell with aiding and abetting in
the unauthorized possession of a firearm in violation of V.I.
CODE ANN tit. 14, § 2253(a).
The trial of this matter is currently scheduled for January
14, 2009.
In its motion in limine, the Government asks to present two
general items of evidence.  First, the Government wishes to
introduce the photographs and clips captured on the Defendants’
cellular phone and camera.  The Government asserts that this
evidence demonstrates the existence and nature of the alleged
conspiracy.
Second, the Government wishes to present evidence that
Tyson, a National Guardsman, was wearing his uniform when he was
arrested even though he was not on military assignment at that
time.  That conduct, the Government contends, violates United
States Army regulations.  The Government intends to call Army
personnel to testify about those regulations.  According to the
Government, Tyson’s act of wearing his uniform in contravention
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of those regulations demonstrates that he was attempting to
deflect law enforcement scrutiny.
Federal Rule of Evidence 404(b) provides that “evidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith,” but, unless inadmissible under another Rule, is
“admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Fed. R. Evid. 404(b).  Rule
404(b) “does not apply to evidence of uncharged offenses
committed by a defendant when those acts are intrinsic to the
proof of the charged offense.” United States v. Gibbs, 190 F.3d
188, 217 (3d Cir. 1999).  “[A]cts are intrinsic when they
directly prove the charged conspiracy.” United States v. Cross,
308 F.3d 308, 320 (3d Cir. 2002).
Here, Count One of the indictment charges that the
Defendants, from about December 15, 2007 until about July 31,
2008, conspired to transport firearms and ammunition in
interstate and foreign commerce.  The indictment specifies that,
as part of their conspiracy, the Defendants bought firearms and
ammunition from firearms dealers in Tennessee and transported
them to the Virgin Islands by commercial airliner.  Importantly,
the indictment alleges that it was Tyson himself who transported
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the firearms and ammunition aboard commercial flights.
Evidence that Tyson was wearing his military uniform, though
not on military assignment, demonstrates Tyson’s effort to appear
as though he was on official business.  Significantly, that
conduct, which occurred during the commission of the alleged
underlying offenses, was directly related to Tyson’s effort to
further the alleged conspiracy by deflecting attention from his
criminal conduct.  Evidence of Tyson’s attire at the time of his
arrest is therefore intrinsic to the crimes alleged in the
indictment because it may be used to directly prove those crimes.
See United States v. Wilson, 46 Fed. Appx. 93, 96 (3d Cir. 2002)
(unpublished) (explaining that testimony that “‘goes directly’ to
issues material to the indictment . . . constitutes intrinsic,
not extrinsic evidence”).  As a consequence, the Court will allow
the Government to introduce that evidence at trial.
To the extent the Government seeks to present evidence that
Tyson violated Army regulations, such evidence is extrinsic
because it does not prove, either directly or even indirectly,
the crimes alleged in the indictment.  The Court further finds
that such evidence, to the extent it is presented in the
Government’s case-in-chief, carries the risk of unfairly
prejudicing the Defendants or confusing the jury, and thus will
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1  The Court’s conclusion is without prejudice to the
Government’s presenting any evidence, including evidence of Army
regulations, to the extent necessary during its rebuttal case.
disallow it under Rule 403.1
The Court is without sufficient information at this time to
rule on the admissibility of the photographs and video clips. 
Accordingly, the Court will reserve judgment on that proposed
evidence for trial.
For the foregoing reasons, it is hereby
ORDERED that the Government’s motion is GRANTED in part and
DENIED in part; it is further
ORDERED that the Government may present evidence of Tyson’s
attire at the time of his arrest; and it is further
ORDERED that the Government may not present testimony
concluding that Tyson violated United State Army regulations.
   S\                          
       
       CURTIS V. GÓMEZ
      
         
    Chief Judge
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