Opinion
03 Cr. 1409 (VM)
June 3, 2004
DECISION AND ORDER
Defendant Jean Demosthene ("Demosthene") was charged in a two-count superceding indictment with possession of more than 500 grams of cocaine with intent to distribute, and with conspiracy to distribute more than 500 grams of cocaine. Trial on this matter has been scheduled to commence on June 14, 2004. The parties have filed several pre-trial motions in limine seeking to admit or exclude certain evidence at trial. The Court considers each of the motions below.
The parties filed their respective motions in letter briefs to the Court. The Court has considered the following submissions in ruling on the parties' motions: Government's Motion In Limine, dated Mar. 24, 2004; Government's Motion In Limine, dated Mar. 26, 2004; Defendant's Motion In Limine and Response to the Government's Motions, dated Apr. 5, 2004; Government's Responses to Defendant's Motions, two letters dated May 4 2004; Government's Response to Defendant's Motion, dated May 7, 2004; Government's Supplemental Letter, dated May 20, 2004; Defendant's Opposition to Government's Motion, dated May 24, 2004; and any exhibits attached to these submissions. Except where specifically referenced, no further citation to these sources will be made.
I. BACKGROUND
On October 26, 2003, Demosthene was a passenger in a vehicle traveling toward New Jersey through the Lincoln Tunnel. The vehicle, which was rented, was involved in a traffic accident. When police officers discovered that the license of the individual driving the vehicle was suspended and that Demosthene was not listed on the rental-car agreement, the police impounded the vehicle and subsequently discovered 600 grams of cocaine in the trunk. The driver of the vehicle is now a cooperating witness ("CC-1"). In statements to the police shortly after his arrest, Demosthene claimed that he was unaware that there were any narcotics in the trunk.The following day, a trained canine working with a Port Authority police officer (the "PA canine") searched the vehicle in which Demosthene was a passenger at the time of his arrest. The PA canine alerted to the odor of controlled substances in certain parts of the vehicle. Demosthene was ultimately charged in a two-count superceding indictment with possession with intent to distribute over 500 grams of cocaine on October 26, 2003; and with participation in a conspiracy to distribute narcotics between March 2003 and October 26, 2003.
Some of the evidence at issue in the pending motions before the Court relates to an incident that occurred on July 12, 2003 outside the residence of Demosthene's mother in Pleasantville, New Jersey (the "residence"). On that day, police officers were called to the residence and found a pool of blood in the roadway. Eyewitnesses informed the police officers that Demosthene was shot after a fight between Demosthene and several other males outside the residence.
Although the various eyewitness accounts differ to some degree, the police reports of these accounts describe that two males arrived at the residence in bicycles allegedly looking to start a fight with one of Demosthene's relatives. When Demosthene emerged, a fight ensued between Demosthene and the two males, and possibly others. The two males ran away, but returned about 20 minutes later in a car driven by a third male. According to statements made to the police by Demosthene's family members, one of the males struck Demosthene's vehicle, which was parked in the driveway, leaving a dent. After Demosthene pushed the male away from the vehicle, the altercation escalated into an all-out brawl involving several individuals. During the fracas, Demosthene was shot several times and was left lying on the street outside the residence. Family members took Demosthene to a hospital where he eventually recovered from his gunshot wounds.
As part of their investigation of the crime scene, the police officers noticed a Mercedes-Benz parked in the driveway of the residence, which they later came to learn belonged to Demosthene. The Government contends that when the officers looked inside the vehicle, they observed a plastic bag containing a large amount of cash lying on the front seat. The police later determined that the bag contained $5,000 in denominations of one hundred, fifty, twenty, and ten dollar bills. Demosthene has submitted a sworn affidavit that on July 12, 2003, the plastic bag containing the money was not in plain view in the front seat, but rather, was inside a closed console and was therefore not visible.
The Government furnished the Court with several photographs related to the July 12, 2003 incident, including the outside area of the residence, the driveway area, the exterior and interior of Demosthene's vehicle, and the plastic bag with the currency.
The Pleasantville police officers called a trained narcotics canine (the "Pleasantville canine") to the scene, together with his handler, to assist with the search of both the general area of the shooting and Demosthene's vehicle. According to the police report, the Pleasantville canine initially alerted to the odor of narcotics inside the vehicle from the outside. Thereafter, the Pleasantville canine handler permitted the Pleasantville canine to search the interior of the vehicle, where the canine further alerted to the odor of controlled substances inside vehicle and in particular, in the locked glove compartment; and on the cash found inside the vehicle.
The Pleasantville police took Demosthene's vehicle to the police precinct, where they obtained consent to search the vehicle from Demosthene's wife, Nadia Francois ("Francois"), later that day. The officers, however, were unable to open the vehicle's locked glove compartment. On July 14, 2004, the officers obtained a search warrant for the vehicle from a New Jersey State judge and thereafter had the glove compartment forcibly opened. At this point, the Pleasantville canine again alerted to the odor of controlled substances in the glove compartment. The police did not find any narcotics in the vehicle.
II. THE PARTIES' MOTIONS IN LIMINE
A. DOG SNIFF EVIDENCE
The Government has filed a motion in limine to admit the evidence of the dog sniff from both the PA canine and the Pleasantville canine. Demosthene opposes the Government's motion. For the reasons discussed below, the Court grants the Government's motion.
Although the Government casts its submission as an opposition to defense counsel's suggestion that the Court should the preclude dog sniff evidence, defense counsel has not so moved. The Court will construe the Government's submission as a motion to admit this evidence.
Demosthene argues that the dog sniff evidence should be excluded on four grounds: (1) dog sniff evidence is generally unreliable; (2) the dog sniff evidence has little probative value that is outweighed by its risk of prejudice; (3) the July 12 and 14 2003 dog sniffs should be excluded as "other acts" evidence with regard to count two of the superceding indictment, which charges Demosthene with possession with intent to distribute narcotics on October 26, 2003; and (4) the July 12 and 14 dog sniff alerts violated his rights under the Fourth Amendment to the United States Constitution against unlawful searches and seizures. In the alternative, Demosthene requests a hearing on this issue. The Court considers each of these arguments in turn.
Demosthene, relying almost exclusively on precedent that is not binding on this Court, argues that many courts have excluded dog sniff evidence because it is inherently unreliable as an indicator as to the presence of narcotics. While the Court acknowledges that there has been some difference of opinion on this point among some courts in other districts, the Second Circuit and district courts in this circuit have admitted evidence of a dog sniff alert. See, e.g., United States v. Marji, 158 F.3d 60, 62-63 (2d Cir. 1998) (stating that dog sniff evidence is admissible, although it should not be given "special weight" if it is uncorroborated); United States v. Perez, No. 01 Cr. 0848, slip op. at 2-3 (S.D.N.Y. Oct. 16, 2002) (noting that courts in this circuit have admitted dog sniff evidence provided that § 3500 materials regarding the dog's handler and training are produced to the defendant); United States v. Sierra-Garcia, 760 F. Supp. 252, 268 (E.D.N.Y. 1991) (stating that issue of dog sniff evidence relates not to reliability, but rather, to relevance and to the weight of the evidence).
Based on this precedent, the Court finds that the dog sniff evidence at issue here is not so inherently unreliable to warrant its exclusion at Demosthene's trial. The Court will admit this evidence provided that the Government produces all the materials pursuant to 18 U.S.C. § 3500 ("§ 3500") regarding the canines' training and the Government properly lays a foundation for the admissibility of this evidence through the testimony of the respective dog handlers. Demosthene will have the opportunity to review this material and cross-examine the handlers in order to further explore the reliability of the dog sniff alert evidence under the circumstances. Demosthene is not precluded from arguing the weight and/or probative value of this evidence to the jury during his closing statements.
For similar reasons, the Court rejects Demosthene's contention that the dog sniff evidence should be excluded pursuant to Federal Rule of Evidence 403 ("Rule 403") because its probative value is substantially outweighed by the danger of unfair prejudice. As discussed above, with the § 3500 materials regarding the canines' training and with the opportunity to cross-examine their handlers, Demosthene may explore and subsequently argue the probative value of the dog sniff evidence to the jury. Moreover, the other evidence that the Government has indicated that it will present at trial to corroborate the dog sniff evidence, coupled with the opportunity that Demosthene will have to explore this evidence on cross-examination, mitigates any risk of prejudice to Demosthene.
Demosthene's argument that the dog sniff alerts should be excluded because they cannot inform the jury where and when the scent originated, or by whom, is unpersuasive. These issues go to the weight of the evidence that Demosthene may pursue on cross-examination of the dog's handlers and properly argue to the jury in closing statements. Also unpersuasive is Demosthene's argument that the dog sniff alert of the PA canine in October 2003 does not provide sufficient information to support an inference regarding Demosthene's knowledge that there were narcotics in the trunk of the vehicle. The sniff alert of the PA canine relates to the presence of narcotics inside the vehicle in which Demosthene was riding at the time of his arrest, thereby supporting the Government's charge that Demosthene possessed narcotics at that time. It does not, by itself, necessarily establish that Demosthene knowingly possessed the narcotics with the specific intent to distribute them. As indicated in the Government's submissions to the Court, the Government intends to rely on other evidence to support an inference that Demosthene knew that there were narcotics in the vehicle. For these reasons, the Court finds that the probative value of the dog sniff evidence is not substantially outweighed by the risk of unfair prejudice.
Demosthene objects to the admission of the Pleasantville canine sniff alerts on July 12 and 14, 2003 on the grounds that they constitute impermissible "other acts" evidence with regard to the second count in the superceding indictment, which charges Demosthene with narcotics possession in October 2003. According to Demosthene, this evidence tends to demonstrate that he has a propensity to commit these offenses.
Federal Rule of Evidence 404(b) ("Rule 404(b)") provides that evidence of other crimes or wrongs, or acts may not be admitted to show a propensity to commit a crime, but may be admitted "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . ." Fed.R.Evid. 404(b).
In this case, the record indicates that in statements to the authorities shortly after his arrest on October 26, 2003, Demosthene denied knowledge that the narcotics were in the trunk of the vehicle. Although the July 2003 dog sniffs are not directly relevant to the charge that Demosthene possessed narcotics in October 2003, a rational jury could infer from this evidence that Demosthene was involved with narcotics, such that it would be admissible under Rule 404(b) to rebut any suggestion by Demosthene at trial that he did not know at the time of his arrest that the trunk of vehicle contained narcotics. See United States v. Perez, 325 F.3d 115, 129 (2d Cir. 2003). The Court will admit the July 2003 dog sniff alerts with regard to the narcotics possession charge on this limited basis with an appropriate limiting instruction. In the event that Demosthene does not argue lack of knowledge as a defense to this charge, the Court will issue a limiting instruction to the jury that this evidence is to be considered only with regard to the conspiracy charge against him.
It is clear that with regard to count one of the superceding indictment, which charges Demosthene with conspiracy to distribute narcotics between March and October 2003, the July 2003 dog sniff alerts do not relate to "other acts" by Demosthene that are subject to Rule 404(b), but rather, the alerts are direct evidence of the alleged conspiracy and would be admissible as such.
Finally, the Court also rejects Demosthene's argument that the July 2003 dog sniff alerts should be excluded because they constituted warrantless searches of his vehicle. Under the "fruit of the poisonous tree" doctrine, evidence obtained as a result of acts in violation of the Fourth Amendment may not be used against a criminal defendant. See Costello v. United States, 365 U.S. 265, 280 (1961). In general, law enforcement officers first must "obtain advance judicial approval of searches and seizures through the warrant procedure,. . . ." Terry v. Ohio, 392 U.S. 1, 20 (1968). A well-recognized exception to this warrant process for searches and seizures is the so-called "automobile exception." Under this exception, law enforcement officers may lawfully search an automobile without a warrant if there is probable cause to believe that the automobile contains contraband or evidence. See California v. Acevedo, 500 U.S. 565, 569-70 (1991). This exception recognizes the mobility of automobiles and the relative ease with which evidence or contraband contained therein may be removed or destroyed. See id.
In this case, the record indicates that the Pleasantville police were investigating a serious shooting, which occurred in proximity to Demosthene's vehicle. The officers later learned that during the altercation, someone struck the vehicle and left a dent on the trunk, which escalated the fighting. Officers also found shell casings, clothing, and a bicycle that was used in the fight near the automobile. Under these circumstances, the Court is persuaded that the police officers had probable cause to believe that the vehicle, or its contents, was, at least in part, the source of the dispute The Government correctly points out that because the automobile was unlocked, any evidence or contraband therein could easily have been removed had a search not been conducted at that time. Accordingly, the Court concludes that the dog sniffs of Demosthene's vehicle on July 12 and 14, 2003 did not violate his rights under the Fourth Amendment.
According to the police reports, the police officers who obtained eyewitness accounts at the hospital where Demosthene was taken relayed the information they gathered to the officers still at the scene.
Even assuming that the police did lack probable cause to perform a dog sniff of Demosthene's vehicle following the melee on July 12, 2003, the Court agrees with the Government that this evidence would nonetheless be admissible under the independent source and inevitable discovery doctrines. Under the independent source doctrine, evidence obtained unlawfully may be admitted if the Government can demonstrate that the evidence would have been ultimately discovered through a lawful independent source. See Murray v. United States, 487 U.S. 533, 537 (1988) (citing Nix v. Williams, 467 U.S. 431, 443 (1984)). Under the inevitable discovery doctrine, evidence unlawfully obtained is admissible if the Government demonstrates, by a preponderance of the evidence, that the evidence would have been inevitably discovered through lawful means. See United States v. Cabassa, 62 F.3d 470, 472-73 (2d Cir. 1995). In employing this doctrine, a court should consider the totality of the circumstances as they were in the moments just prior to the illegal search. See id. at 473.
In this case, it is clear that a lawful search of Demosthene's vehicle was inevitable (and indeed, a lawful search was performed a few days after the altercation). The record indicates that the Francois, the registrant of the vehicle, gave her written consent to its search. Moreover, the police subsequently sought and obtained a formal search warrant for the vehicle from a New Jersey state judge. Thus, the Government has demonstrated that the dog sniff alerts of Demosthene's vehicle in July 2003, even if initially unlawful, would inevitably have been performed shortly thereafter through independent and lawful means.
The Court denies Demosthene's request for a hearing on this issue. Demosthene's arguments seeking to exclude the dog sniff alert evidence are concerned with whether this evidence is reliable, lacks probative value, and is unfairly prejudicial against him. These matters require the Court make an evidentiary ruling as a matter of law and do not raise significant factual disputes to warrant a hearing. Because Demosthene does not base his objections to the dog sniff evidence on any alleged unreliability of the two particular canines at issue here, the Court finds that there is no need to hold a hearing on this matter.
In his submission to the Court, Demosthene does briefly allude to the need for a hearing in order to "explor[e] . . . the accuracy of the particular canine in this case, the exact circumstances of the dog sniff at issue, and any corroborating evidence, . . ." (Defendant's Motion In Limine and Response to the Government's Motions, dated Apr. 5, 2004, at 6.) As discussed above, however, these matters are for Demosthene to explore on cross-examination of the handlers and to argue during closing statements, and do not require a hearing.
For the foregoing reasons, the Government's motion in limine to admit evidence of the dog sniff alerts in July and October 2003 is granted. The Government may introduce this evidence provided that it produces all the relevant § 3500 materials regarding the canines' training and handler to the defense prior to trial and that the Government lays a proper foundation for this evidence at trial through the examination fo the respective handlers. Demosthene will have an opportunity to cross-examine the canine handlers.
B. THE MONEY SEIZED FROM DEMOSTHENE'S VEHICLE
Demosthene seeks to preclude the introduction of the $5,000 in cash that was found from his vehicle on July 12, 2003, the day he was shot outside the residence, on the grounds that it was unlawfully seized without a search warrant. In the alternative, Demosthene asserts that a hearing on this question is required. The Government contends that the cash was in plain view through a plastic bag lying on the front seat, and thus, was subject to seizure under the "plain view" exception to the warrant requirement. See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993); United States v. Kiyuyung, 171 F.3d 78, 83 (2d Cir. 1999). In response, Demosthene has filed an affidavit attesting that the cash was not in plain view at the time, but rather, was concealed in the vehicle's console.
Generally, a factual dispute of this nature would require a hearing to enable the Court to determine whether there is factual support for the application of the plain view exception. However, the Court finds that a hearing on this issue is not required for the same reasons that a hearing is not required with regard to the July 2003 dog sniff alerts. As discussed above, the totality of the circumstances at the time of the shooting provided the Pleasantville police officers with ample probable cause to search the vehicle under the automobile exception to the warrant requirement. Moreover, it is clear that even if the money were not in plain view at the time it was seized, the Government would ultimately have discovered it by the same independent and lawful means that provided the basis for the dog sniff alerts. The written consent of Francois, and the judicial search warrant, while obtained after the seizure of the money, would have provided separate bases for its seizure. Accordingly, Demosthene's motion in limine to suppress the $5,000 seized from his vehicle on July 12, 2003 is denied.
Demosthene points out that both Francois's consent and the formal search warrant were not obtained until the days that followed the incident. This circumstance only reinforces the application of the automobile exception in this case given the unlikely prospect that the money would still have been in the car had the police officers waited a day or two to search the vehicle in order to obtain express consent or a court-issued search warrant.
C. EVIDENCE OF OTHER ACTS
The Government has filed motions in limine to admit various other evidence related to Demosthene's alleged drug dealings both during and before the time frame of the alleged conspiracy charged in the superceding indictment. Specifically, the Government seeks to introduce following evidence: (I) the testimony of CC-1 that Demosthene participated in narcotics transactions with him during the time period of the alleged conspiracy; (2) evidence that Demosthene participated in narcotics transactions with another individual prior to the time period of the alleged conspiracy; (3) evidence of the surrounding events and details related to the July 12, 2003 shooting, including (i) that the fight that occurred on that day was between rival drug dealers, (ii) that certain persons the police interviewed after the incident refused to provide information, (iii) that Demosthene himself refused to identify his shooter; and (iv) CC-l's testimony that after the shooting, Demosthene possessed a firearm that he intended to use in the event of further confrontations; (4) that following his arrest on October 26, 2003, Demosthene offered CC-1 $10,000 to falsely represent to the authorities that he (Demosthene) had no involvement with the narcotics that were found in the trunk of the vehicle; (5) evidence of unexplained wealth by Demosthene; and (6) testimony of witnesses that they knew Demosthene by certain aliases. Demosthene opposes the introduction of most of this evidence essentially on the grounds that the evidence is irrelevant and because its probative value outweighs the risk of unfair prejudice under Rule 403.
The Court, having carefully considered the parties' arguments, finds that this evidence is admissible to prove the Government's charges in this case. Specifically, the evidence of Demosthene's alleged drug dealings with CC-1 between March and October 2003 is clearly admissible as direct evidence of the conspiracy charged. See United States v. Baez, 349 F.3d 90, 93-94 (2d Cir. 2003) (stating that uncharged acts are direct evidence of a conspiracy and are not subject to Rule 404(b) provided the evidence is relevant and its probative value outweighs the risk of unfair prejudice).
With regard to evidence of alleged drug dealings prior to March 2003, the Court notes that the Second Circuit follows an inclusionary rule, that is, evidence of other bad acts are generally admissible for any purpose, other than to demonstrate a propensity to commit the charged offense, provided the evidence is relevant and the probative value versus unfair prejudice balancing process tips in favor of inclusion. See United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000); United States v. Tubol, 191 F.3d 88, 95 (2d Cir. 1999). Accordingly, evidence of Demosthene's bad acts that occurred before the time period of the charged conspiracy would be admissible for the limited purpose of rebutting any suggestion by Demosthene that he lacked the requisite knowledge or intent to commit the offenses charged in the indictment. If Demosthene so suggests, the evidence will be admissible with an appropriate limiting instruction to the jury to limit its scope as indicated above.
The Court likewise finds admissible the evidence of the events surrounding Demosthene's shooting on July 12, 2003. The Government has represented that it intends to call CC-1, who was present at the incident outside the residence, to testify that what transpired in the altercation was a drug-related event. If CC-1 so testifies, his testimony would clearly be admissible as direct evidence of Demosthene's participation in a narcotics conspiracy as charged in the superceding indictment. In addition, because CC-1 will be a common witness regarding the events on July 12 and on October 26, his testimony regarding his interactions with Demosthene is relevant to the issue of whether Demosthene knowingly and willingly possessed narcotics at the time of his arrest.
With regard to the evidence that eyewitnesses to the July 12 incident and Demosthene himself were less than cooperative with the police investigation of the shooting, the Court finds it admissible at trial because it is relevant and probative of the offenses charged. First, evidence tending to show a lack of cooperation with the investigation of the July 12 incident is direct evidence that suggests the existence of a conspiracy between Demosthene and others and that this incident was related to the alleged conspiracy. Second, the Court agrees with the Government that evidence tending to demonstrate that Demosthene was unwilling to identify his assailant and that he offered CC-1 money to lie to the authorities is relevant to his consciousness of guilt, which would support both the offenses charged by the Government. Cf. United States v. Terry, 702 F.2d 299, 314 (2d Cir. 1983) (holding that the defendant's refusal to provide palm prints after arrest was admissible evidence to demonstrate consciousness of guilt).
The Court also finds admissible CC-l's testimony that Demosthene carried a firearm after the incident for possible future altercations. This evidence, when coupled with any testimony by CC-1 that he engaged in narcotics transactions with Demosthene, is directly relevant to both the conspiracy charge and to Demosthene's knowledge and intent to engage in both the charged offenses.
In short, the Court finds that all these details surrounding the events of July 12, 2003 are admissible as relevant and probative to prove the Government's theory that Demosthene participated in a narcotics conspiracy and to provide the jury with a complete picture and assist it in placing into context the Government's charge that he knowingly possessed with the intent to distribute narcotics when he was arrested. The Court notes that much of this evidence will come in the form of live witness testimony, which the Court has little doubt will be subjected to vigorous cross-examination by counsel for Demosthene. Demosthene's argument that the Government is improperly attempting to inject the events of July 12, 2003 into this case is unpersuasive. The superceding indictment charges Demosthene with conspiracy to engage in narcotics activities from March 2003 to October 26, 2003, which covers the July 12 altercation. The Government, as always, carries the burden to prove all the elements of the charged offenses beyond a reasonable doubt. The Government must also prove to a jury beyond a reasonable doubt that Demosthene possessed with the intent to distribute narcotics on October 26, 2003. The Court discerns no impropriety in seeking to admit this evidence to prove these charges.
The Government also seeks to admit certain evidence of unexplained wealth by Demosthene as further evidence of the charges against him. Specifically, the Government seeks to introduce evidence that despite being employed as a part-time card dealer at a casino, Demosthene had $5,000 in cash inside his vehicle on July 12, 2003, that he purchased his Mercedes-Benz in March 2003 for approximately $30,000 in cash, and that on other occasions during the time frame of the alleged conspiracy, Demosthene possessed large sums of cash.
Evidence of unexplained wealth is generally admissible as the basis of an inference of illicit gains. See United States v. Amuso, 21 F.3d 1251, 1263 (2d Cir. 1994). In isolation, the probative value of unexplained wealth may be dubious. However, in connection with all the other evidence the Government has indicated that it will adduce at trial, evidence of unexplained wealth is relevant and probative as to whether Demosthene was involved with narcotics as the Government has charged. Demosthene has not challenged the Government's motion to admit this evidence, and the Court discerns no reason to exclude it.
Finally, the Government moves to admit testimony by certain witnesses who allegedly engaged in narcotics transactions with Demosthene that he was known by certain aliases and that in some cases, these aliases were the only names by which they knew Demosthene. The Court agrees with the Government that this evidence is admissible in light of its relevancy to the identification of Demosthene as the participant in these alleged narcotics transactions and because it provides further context to the Government's charge that Demosthene was engaged in a narcotics conspiracy by explaining the alleged relationship Demosthene had with his co-conspirators. See United States v. Edwards, 342 F.3d 168, 180 (2d Cir. 2003) (admitting alias evidence).
In ruling on the admissibility of this evidence, the Court has remained mindful that under Rule 403, relevant evidence whose probative value is outweighed by its risk of unfair prejudice to the defendant should be excluded. See Fed.R.Evid. 403. The Court has carefully considered the potential prejudicial effect of this evidence in light of Demosthene's arguments and concludes that its highly probative nature to the offenses charged, coupled with Demosthene's ability to cross-examine the witnesses that will be the source of much of the evidence, and the Court's limiting instructions, where appropriate, tips the Rule 403 balancing scale in favor of admitting this evidence.
D. IN-COURT IDENTIFICATION
Demosthene moves to exclude any in-court identification of Demosthene by two Government witnesses, W1 and W2, who were each shown a photograph of Demosthene, unless a hearing is held to determine the source of the identification. The Government agrees that a hearing is required to establish a proper foundation for the identification. Accordingly, the Court has scheduled a hearing on this issue only, to he held on Thursday June 10, 2004 and 11:00 a.m.
III. ORDER
For the foregoing reasons, it is hereby
ORDERED that the motion of the Government to admit evidence of the dog sniff alerts of July 12 and 14, 2003 and of October 26, 2003 is GRANTED, provided that the Government produces all materials pursuant to 18 U.S.C. § 3500 relating to the canines' training and handlers prior to trial, and that the Government establishes a proper foundation for the evidence through these materials and through the in-court examination of the respective canine handlers. Defendant Jean Demosthene ("Demosthene") shall have an opportunity to cross-examine the respective canine handlers; and it is further
ORDERED that the motion of Demosthene to exclude evidence that $5,000 in cash was found in his vehicle on July 12, 2003 is DENIED; and it is further
ORDERED that motion of the Government to admit evidence of other acts of Demosthene relating to narcotics activities during and before the time frame of the charged conspiracy is GRANTED, provided that evidence of narcotics activities that occurred prior to the time frame of the charged conspiracy will be admissible only to rebut any suggestion by Demosthene that he lacked knowledge or intent to commit the charged offenses; and it is further
ORDERED that the motion of the Government to admit evidence related to the events of July 13, 2003 that culminated in Demosthene's shooting is GRANTED; and it is further ORDERED that the motion of the Government to admit evidence of Demosthene's unexplained wealth and that Demosthene was known by certain aliases is GRANTED; and it is further
ORDERED that the motion of the Government to admit evidence that Demosthene offered a cooperating witness $10,000 in exchange for providing false testimony to the authorities is GRANTED; and it is further
ORDERED that the parties are directed to appear before the Court on Thursday, June 10, 2004 at 11:00 a.m. for a hearing on the in-court identification of Demosthene by two Government witnesses.
SO ORDERED.
New York, New York