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conducting Rule 404(b) analysis after finding that, "although the proffered evidence is certainly relevant to show the background of the charged conspiracy, it does not appear to be inexorably intertwined." (internal quotation marks and indicators of alterations from the original omitted)
Summary of this case from U.S. v. KassirOpinion
S1 06 Cr. 34 (JFK).
April 30, 2007
OPINION ORDER
The Defendant, Damion Townsend, is charged by superseding indictment with one count of conspiracy to distribute crack cocaine and one count of possession of a firearm in furtherance of the narcotics conspiracy. By letter dated April 16, 2007, the Government has moved in limine to introduce at trial evidence of the Defendant's uncharged illegal acts and physical evidence recovered from the Defendant's apartment. For the following reasons, the Government's motion is granted in part, denied in part, and decision is in part deferred.
BACKGROUND
The charges in the superseding indictment (the "Indictment") stem from the Defendant's alleged involvement in a conspiracy to sell crack cocaine to a confidential informant ("CI") from July 12 to July 17, 2005. The Government intends to present evidence that the CI arranged to purchase approximately 60 grams of crack cocaine from the Defendant and Darryl Winfree, Townsend's former co-defendant and alleged co-conspirator; that the Defendant and Winfree were able to provide the CI only with powder cocaine but then accompanied the CI to Defendant's apartment where Townsend assisted the CI in "cooking" the powder cocaine into crack cocaine; and that the Defendant was armed with a 9mm handgun throughout this transaction.
Darryl Winfree was charged by superseding information with one count of conspiracy to distribute crack cocaine and one count of possession of a firearm. Winfree pleaded guilty to the information on March 6, 2007.
In the instant motion, the Government seeks to introduce as direct proof of the narcotics conspiracy and firearm charges (i) evidence of two transactions between Defendant and the CI, which occurred respectively in April and June 2005, in which Defendant sold handguns to the CI ("category (i)"); (ii) evidence "regarding other occasions" during which the CI witnessed Defendant carrying a handgun while engaged in narcotics transactions ("category (ii)"); and (iii) physical evidence recovered from Defendant's apartment in December 2005, including a 9mm handgun, marijuana, and a scale containing residue of crack cocaine ("category (iii)"). (Gov't Letter of Apr. 16, 2007, at 2.) Alternatively, the Government seeks to introduce the evidence under Federal Rule of Evidence 404(b), or under United States v. Giglio, 405 U.S. 150 (1972), as evidence of its witness's "bad acts".
Defendant argues in essence that the proffered evidence should be suppressed under Federal Rule of Evidence 403, because its probative value is substantially outweighed by the danger of unfair prejudice. The defense also contends that Defendant's knowledge or intent regarding the charged crimes cannot be inferred from the proffered evidence and thus there is no proper purpose under Rule 404(b) for admission of the evidence. In the alternative, Defendant requests that the Court reserve decision on admissibility until the trial unfolds and the Court determines whether the issue of Defendant's state of mind actually has been placed in dispute.
DISCUSSION
I. Admissibility of Proffered Evidence as Direct Proof of Crimes Charged in the Indictment
It is well established in the Second Circuit that "`evidence of uncharged criminal activity is not considered other crimes evidence under Fed.R.Evid. 404(b) if it [1] arose out of the same transaction or series of transactions as the charged offense, [2] if it is inextricably intertwined with the evidence regarding the charged offense, or [3] if it is necessary to complete the story of the crime on trial.'" United States v. Nektalov, 325 F. Supp. 2d 367, 370 (S.D.N.Y. 2004) (quotingUnited States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000)). In addition, where the Government must prove a conspiracy existed, evidence of acts committed in furtherance of the conspiracy is not Rule 404(b) `other acts' evidence, but rather, it is direct evidence of the acts charged in the Indictment. United States v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992). If evidence is determined to be admissible as intrinsic or direct proof of the charged crimes, as distinguished from "other acts" under Rule 404(b), the Government need not fulfill Rule 404(b)'s notice requirement, and the Court is not required to instruct the jury against making an improper inference of criminal propensity.Nektalov, 325 F. Supp. 2d at 372. However, "where it is not manifestly clear that the evidence in question is intrinsic proof of the charged crime, the proper course is to proceed under Rule 404(b)." Id.
The Government argues that the evidence in categories (i) and (ii), relating to prior handgun and narcotics transactions conducted by the Defendant with or in the presence of the CI, is directly admissible because it is inextricably intertwined with Townsend's participation in the charged narcotics conspiracy and is necessary to complete the story of the charged crimes. Specifically, the Government asserts that admission of the proffered evidence is required to explain the development of Townsend's relationship with the CI and the trust that developed between them.
The Court agrees that the uncharged firearm and drug transactions that comprise categories (i) and (ii) may help to depict the relationship between Townsend and the CI, demonstrate the trust that developed between them, and thus explain, for example, why Townsend would have offered to take the CI back to his apartment and there assist in the "cooking" of the powder cocaine into crack form. Nevertheless, although the proffered evidence is "certainly relevant to show the background of the charged conspiracy, [it] do[es] not appear to be `inexorably intertwined.'" Id. at 370. The Government asserts in conclusory fashion that evidence of the other narcotics and firearms transactions "provides the basis for the CI's charged transaction with the defendant," (Gov't Letter of April 16, 2007, at 3), but has not shown how the charged offenses necessarily stem from or are part and parcel of the firearm sales that took place in April and June 2005 or the narcotics transactions that occurred at unspecified other times. The fact that the Defendant "may have committed similar . . . acts in close temporal proximity to the charged crimes furnishes an element of context, but it is certainly not crucial information without which the jury will be confused or the government's theory of the case unfairly curtailed." United States v. Newton, No. S1 01 Cr. 635 (CSH), 2002 U.S. Dist. LEXIS 2414, at *8 (S.D.N.Y. Feb. 11, 2002).
Moreover, although the uncharged acts in categories (i) and (ii) involve conduct that is generally similar to the conduct underlying the offenses charged in the indictment, the similarity is not so marked as to warrant admitting the uncharged acts as direct proof of the charged offenses. The uncharged illegal transactions at issue are rather generically described by the Government as the Defendant's sale of firearms to the CI on two occasions in April and June 2005 and, even more vaguely, as "narcotics transactions" that took place on "other occasions" during which the CI observed Defendant carrying a firearm. (Gov't Letter of April 16, 2007, at 2.) There is no remarkable similarity between these events and the crack cocaine transaction that underlies the charged conspiracy. Compare United States v. Chen Xiang, No. S1 02 Cr. 271 (RCC), 2003 U.S. Dist. LEXIS 12343, at *9 (S.D.N.Y. May 16, 2003) (admitting uncharged acts as direct proof of charged offenses after finding that "the nature of the charged and uncharged crimes is remarkably similar"). Thus, the Court concludes that the evidence in categories (i) and (ii) is not admissible as direct proof of the offenses charged in the Indictment.
It should also be noted that the Government cites several inapposite cases in support of its argument that evidence of uncharged acts should be admitted as direct proof to show the background of the charged conspiracy or the development of a relationship between co-conspirators. For example, the Government cites United States v. Inserra, 34 F.3d 83 (2d Cir. 1994), for the proposition that "evidence of other acts may be admitted to provide the jury with the complete story of the crime charged by demonstrating the context of certain events relevant to the charged offense." (Govt. Br. at 3.) Inserra, however, deals only with the admissibility of evidence under Rule 404(b), not with admissibility as direct proof of the crimes charged. The other cited cases also deal with admissibility under 404(b), rather than as direct proof.
The Government also contends that the physical evidence recovered from the Defendant's apartment, in category (iii), is directly admissible as tools of Townsend's narcotics trade. Where a defendant is charged with a conspiracy that involves narcotics, "the Second Circuit has looked favorably on the admission of a gun or firearms." United States v. Van Putten, No. 04 Cr. 803 (PKL), 2005 U.S. Dist. LEXIS 4009, at *9-10 (S.D.N.Y. Mar. 14, 2005). The Second Circuit routinely permits introduction of firearms evidence as proof of drug conspiracies "because drug dealers commonly keep firearms on their premises as tools of the trade." United States v. Mitchell, 328 F.3d 77, 83 (2d Cir. 2003) (internal quotation marks and citation omitted). Similarly, scales are also deemed to be tools of the narcotics trade. See United States v. Perez, 144 F.3d 204, 208 (2d Cir. 1998). Narcotics and tools of the narcotics trade "seized after the termination of a conspiracy are admissible to prove the prior existence of the conspiracy." United States v. Bermudez, 526 F.2d 89, 96 (2d Cir. 1975). Here, although seized five months after the dates of the charged conspiracy, the 9mm handgun and the scale containing crack cocaine residue constitute intrinsic proof of Townsend's alleged involvement in the July 2005 conspiracy to sell crack cocaine and his carrying of a 9mm handgun in furtherance of that conspiracy. Thus, the handgun and scale are admissible as relevant, direct proof of the offenses charged in the Indictment.
Having found that the handgun and scale are intrinsically relevant to the narcotics conspiracy, the Court must next determine whether the proffered evidence survives the balancing test set forth in Federal Rule of Evidence 403. Rule 403 states, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403. Here, as noted above, the fact that a scale containing crack residue and a 9mm handgun were found in the Defendant's apartment is probative of Defendant's participation in the charged conspiracy to sell crack while armed with a 9mm handgun. The probative nature of the evidence is not outweighed by any prejudicial effect, since the evidence at issue is no more inflammatory or sensational than the conduct with which Defendant has been charged. See United States v. Williams, 205 F.3d 23, 34 (2d Cir. 2000).
The defense argues that the Government's "`tools of the trade' argument does not prevail" because additional occupants were present in Townsend's apartment when the evidence was seized, and therefore it is uncertain to whom the handgun and scale belonged. (Def. Letter of April 25, 2007, at 4.) It is undisputed that the evidence was seized from an apartment belonging to Townsend. The presence in the apartment of other occupants at the time of seizure presents a question of weight rather than admissibility. See, e.g., United States v. Roldan-Zapata, 916 F.2d 795, 805 (2d Cir. 1990) (finding that defense's argument that the existence of drug-related items in the apartment did not tend to prove defendant's use or control of those items goes to the weight of the evidence, not its admissibility). Accordingly, the Court grants the Government's motion to admit the scale and handgun recovered from Defendant's apartment as intrinsic proof of the charged crimes.
The Court finds, however, that the marijuana recovered from the apartment cannot be admitted as direct proof. The marijuana is not inextricably intertwined with any evidence from the Defendant's alleged involvement in the crack cocaine conspiracy or the related firearm charge. Further, the Government has not shown that introduction of the marijuana is necessary to complete the story of the charged offenses. Accordingly, the Government's motion to admit the marijuana as direct proof is denied.
II. Admissibility of Proffered Evidence Under Rule 404(b)
The Government moves in the alternative for the admission of the proffered evidence as "other act" evidence under Federal Rule of Evidence 404(b). Rule 404(b) provides in relevant part:
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. It may, however, be 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). The Supreme Court has set forth four requirements that should be followed by courts exercising their discretion under Rule 404(b): "Prior bad-acts evidence must be (1) offered for a proper purpose, (2) relevant, and (3) substantially more probative than prejudicial. In addition, (4) at defendant's request, the district court should give the jury an appropriate limiting instruction." United States v. Downing, 297 F.3d 52, 58 (2d Cir. 2002) (citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)). Courts of the Second Circuit have adopted an "inclusionary approach" under Rule 404(b), admitting evidence of prior crimes, wrongs or acts "unless it is for the sole purpose of showing defendant's bad character, or unless it is overly prejudicial under Fed.R.Evid. 403 or not relevant under Fed.R.Evid. 402." United States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996). The Court need only determine by a preponderance of the evidence under Rule 104(a) whether a jury could reasonably find that the defendant committed the proffered prior acts. See Huddleston, 485 U.S. at 687-90. The district court has broad discretion to admit evidence pursuant to Rule 404(b), and its ruling will not be overturned on appeal absent abuse of discretion. See United States v. Carboni, 204 F.3d at 44.
The Government asserts several grounds for the admissibility of the proffered evidence under Rule 404(b). First, the Government contends that all of the proffered evidence is admissible because it is probative of the Defendant's knowledge or intent and thus may rebut any defense in which Townsend claims a lack of requisite knowledge or intent. Second, the Government maintains that the evidence of uncharged illegal firearms and narcotics transactions conducted by Townsend with or in the presence of the CI (categories (i) and (ii)) is admissible to explain the context of the charged conspiracy and show the development of the relationship between Townsend and the CI. Third, the Government contends that the physical evidence recovered from Townsend's apartment (category (iii)) is admissible as "tools of the trade". Each category of evidence will be discussed in turn.
The Government, in its letter, argues for admission of the proffered evidence under Rule 404(b) solely on the ground that the evidence will rebut any claim by Defendant that he did not possess requisite knowledge or intent to commit the charged crimes. However, the Government, in its "direct proof" section, has made several other arguments for admission that are applicable in the context of Rule 404(b). Specifically, the Court will consider in the 404(b) context the Government's arguments that categories (i) and (ii) should be admitted because the evidence provides meaningful background and context for the charged crimes; and that evidence from category (iii) should be admitted under 404(b) as evidence of "tools of the trade" of Defendant's narcotics trafficking.
i. Evidence of Defendant's April and June 2005 Firearm Transactions
The Court agrees that category (i) of the proffered evidence would be admissible to rebut any claim made by the Defendant that he lacked the requisite state of mind to commit the charged crimes. "It is well settled that evidence of prior acts may be admitted to show a defendant's knowledge or intent." United States v. Ozsusamlar, 428 F. Supp. 2d 161, 165-66 (S.D.N.Y. 2006) (collecting cases). Here, evidence that Townsend sold firearms to the CI in April and June 2005 could establish that Townsend had the requisite state of mind to commit the narcotics conspiracy and firearm offense.
The Government speculates that Townsend will raise a defense that he lacked the requisite knowledge or intent to commit the narcotics conspiracy and firearm possession offenses with which he is charged. Evidence of Townsend's prior sales of handguns to the CI would then be admissible because "`it is sufficiently similar to the conduct at issue to permit the jury reasonably to draw from that act the knowledge [or intent] inference advocated by the proponent of the evidence.'" United States v. Aminy, 15 F.3d 258, 260 (2d Cir. 1994) (quoting United States v. Peterson, 808 F.2d 969, 974 (2d Cir. 1987)).
If the Government's evidence of uncharged acts "is offered to prove the defendant's knowledge or intent, the offer of similar acts evidence should await the conclusion of the defendant's case and should be aimed at a specifically identified issue." United States v. Ozsusamlar, 428 F. Supp. at 167 (quotingUnited States v. Figueroa, 618 F.2d 934, 939 (2d Cir. 1980)). However, other-act evidence "may be admissible in the Government's case-in-chief if it is clear that the defendant will dispute the issue at trial." United States v. Inserra, 34 F.3d at 90. Here, however, despite the Government's speculation, the defense has given no indication that it will dispute the issue of Townsend's state of mind. It may become evident that the defense will place Townsend's state of mind squarely at issue, for example, during defense counsel's opening statement. See, e.g.,United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992) (finding that defendant's knowledge and intent were clearly at issue after defense counsel stated in opening statement that a dispute existed as to whether defendant "knew and agreed, [and] conspired to possess with intent to distribute, heroin"). On the other hand, the defense "may completely forestall the admission of other act evidence on the issue of intent by expressing a decision not to dispute that issue." Id. For example, the defense may claim in its opening statement that Townsend was not present for any of the narcotics transactions charged in the Indictment.See United States v. Tarricone, 996 F.2d 1414, 1421 (2d Cir 1993) ("Where a defendant claims that he did not commit the charged acts, as opposed to claiming that he acted innocently or mistakenly, knowledge and intent, while technically at issue are not really in dispute.") (internal quotation marks and citation omitted)); United States v. Colon, 880 F.2d 650, 657 (2d Cir. 1989) ("Our cases have . . . recognized a distinction between defense theories that claim that the defendant did not do the charged act at all, and those that claim that the defendant did the act innocently or mistakenly, with only the latter truly raising a disputed issue of intent."). It is thus not possible, at present, to determine whether category (i) of the proffered evidence is admissible under Rule 404(b) on the ground that the evidence is probative of Townsend's intent or knowledge.
The evidence in category (i) is admissible under Rule 404(b), however, as relevant background information. Evidence of the prior illegal handgun sales between Townsend and the CI may "provide background for the events alleged in the indictment, or enable the jury to understand the complete story of the crimes charged, or how the illegal relationship between coconspirators developed." United States v. Reifler, 446 F.3d 65, 91-92 (2d Cir. 2006) (internal quotations marks and citations omitted). The handgun transactions conducted between Townsend and the CI, relatively shortly before the alleged crack cocaine conspiracy, help to explain the development of their criminal relationship. The evidence of the prior illegal dealings is especially important to explain "the basis for the trust between" Townsend and the CI. United States v. Brennan, 798 F.2d 581, 590 (2d Cir. 1986). Further, the evidence of the prior handgun sales is also relevant evidence whose probative value outweighs the danger of unfair prejudice, thus satisfying Federal Rule of Evidence 403. Here, there is no danger of unfair prejudice, because the proffered evidence is no more inflammatory than the conduct charged in the Indictment, "the standard for `unfair prejudice' that has been applied by the Second Circuit." United States v. Stevens, No. S1 03 Cr. 669 (JFK), 2004 U.S. Dist. LEXIS 17892, at *6 (S.D.N.Y. Sept. 7, 2004) (collecting cases). Defense counsel's contention that evidence of Townsend's dealings in firearms is rendered especially inflammatory by the recent tragic shootings at Virginia Tech is without merit. Thus, pursuant to Rule 404(b), the Government may introduce evidence of Townsend's alleged sales of handguns to the CI in April and June, 2005, subject to a limiting instruction.
ii. Evidence that Defendant Engaged in Narcotics Transactions While Armed on "Other Occasions"
The Government's proffer of the category (ii) evidence is far too vague to allow the Court to determine whether the evidence is admissible under Rule 404(b). The Government does not state when the alleged other narcotics transactions occurred, where they occurred, who apart from Townsend participated in the transactions, or the roles played by Townsend and the CI during the transactions. Without a more detailed proffer, it is impossible for the Court to determine whether the evidence of other transactions is relevant, for example, to explain the context of the conspiracy or the relationship of trust that developed between Townsend and the CI. In addition, even if Townsend's state of mind were to be placed in dispute, the vagueness of the Government's proffer would prevent the Court from concluding that the "other occasions" during which Townsend conducted narcotics transactions while armed are relevant to the issue of Defendant's knowledge or intent. Because the Government has not detailed its proffer of the category (ii) evidence, the Court reserves judgment on its admissibility under Rules 403 and 404(b) until the Government provides a more specific proffer.
iii. Marijuana Seized from Defendant's Apartment
Because the Court already has ruled that the scale and handgun seized from Townsend's apartment are admissible as direct proof of the charged crimes, the Court need only determine whether the marijuana is admissible under Rule 404(b). To be admissible under Rule 404(b), "subsequent similar act evidence . . . must be relevant to an issue other than criminal propensity." United States v. Germosen, 139 F.3d 120, 128 (2d Cir. 1998). Uncharged bad acts that occurred after the commission of the charged crime may be admitted under Rule 404(b) for the purpose of showing the defendant's knowledge or intent. See id. Evidence that Townsend possessed marijuana, five months after the charged conspiracy, bears no relevance to the Defendant's state of mind regarding the charged crimes. The Government has asserted no other proper purpose for the admission of the physical evidence, such as showing motive, identity, or absence of mistake. In addition, the Government has made no showing that the marijuana is useful to explain the background of the charged crack cocaine conspiracy or the relationship between actors in the conspiracy. Thus, the marijuana is inadmissible under Rule 404(b).
III. Giglio Evidence
The Government also contends that, pursuant to Giglio v. United States, 405 U.S. 150 (1972), the proffered evidence should be admitted because the "Government's witness who will testify about these acts participated in many of the acts." (Govt. Letter of Apr. 16, 2007, at 6.) Presumably, the "Government witness" is the CI. Under Giglio and its progeny, the Government "can elicit this information from its witnesses on direct examination in order to defuse the impact of `bad acts' on the witnesses' credibility and to `avoid the appearance that [the Government is] concealing impeachment evidence from the jury.'" United States v. Van Putten, 2005 U.S. Dist. LEXIS 4009, 26-27 (D.N.Y. 2005) (quotingUnited States v. Coonan, 938 F.2d 1553, 1561 (2d Cir. 1991)).
Here, the Court already has ruled that the category (i) evidence is admissible pursuant to Rule 404(b) and that the handgun and scale seized from Defendant's apartment, in category (iii), are admissible as direct proof. Thus the Court need not consider whether this evidence is admissible under Giglio. Regarding the category (ii) evidence, it is conceivable that, if the CI played a criminal role during the "other occasions" during which he observed Townsend deal in narcotics while armed, the CI could testify on direct examination about his criminal participation in these transactions in order to provide a full and accurate picture about his background. However, given the lack of detail in the Government's proffer, it is impossible for the Court to determine what criminal role, if any, the CI played during these narcotics transactions and, therefore, whether evidence of those transactions should be admitted under Giglio. "Because the Government has not detailed its proffer of this evidence, the Court reserves judgment on its admissibility until it is clear how the Government intends to present this evidence."United States v. Van Putten, No. 04 Cr. 803, 2005 U.S. Dist. LEXIS 4009, at *28 (S.D.N.Y. Mar. 14, 2005).
Finally, there is no indication that the seizure of the marijuana from Townsend's apartment inculpates the CI or any other Government witness in a bad act within the meaning ofGiglio. Therefore, the marijuana may not be introduced as Giglio evidence through the testimony of any Government witness.
CONCLUSION
Based on the foregoing, and pursuant to Federal Rules of Evidence 401, 402, 403, and 404(b) the Court GRANTS in part and DENIES in part the Government's motion in limine to introduce evidence of Defendant's other acts.
Specifically, the Government's motion to admit the evidence in categories (i) and (ii), as direct proof of the charged crimes, is DENIED. Regarding the physical evidence recovered from Defendant's apartment (category (iii)), the Government's motion to admit the handgun and scale as direct proof of the charged crimes is GRANTED. The Government's motion to admit the marijuana, either as direct proof of the charged offenses or as "other act" evidence under Rule 404(b), is DENIED.
The Government's motion to introduce evidence of Defendant's sale of handguns to the CI in April and June of 2005 (category (i)) as Rule 404(b) evidence is GRANTED, subject to the Defendant's request for a limiting instruction. Both sides are to submit a proposed limiting instruction no later than 5:00 pm, May 2, 2007.
The Court DENIES without prejudice the Government's motion, pursuant to Rule 404(b) and Giglio, to introduce evidence relating to uncharged narcotics transactions conducted by the Defendant while armed (category (ii)). The Government may renew its application for admission of the category (ii) evidence subject to its provision of a more detailed proffer.