Cir. 1989), a narcotics case in which the Second Circuit held that evidence of prior trips by the defendant constituted reversible error under Rules 404(b) and 403. The court of appeals said at 674:
Evidence of another act should not be admitted to show knowledge unless the other act is "sufficiently similar to the conduct at issue to permit the jury reasonably to draw from that act the knowledge inference advocated by the proponent of the evidence." United States v. Peterson, 808 F.2d 969, 974 (2d Cir. 1987). "Similarity, being a matter of relevancy, is judged by the degree in which the prior act approaches near identity with the elements of the offense charged. There is no necessity for synonymity but there must be substantial relevancy. . . ." United States v. Kasouris, 474 F.2d 689, 692 (5th Cir. 1973) (emphasis in original); but see 2 Weinstein's Evidence P 404, at 404-90 to 404-91 (1988) (suggesting that trial court is given especially broad discretion to view acts as similar in narcotics cases). If the other-act evidence does not provide a reasonable basis for inferring knowledge, its offer for that purpose should be rejected on grounds of relevance.
As Afjehei goes on to hold, even if the trial court concludes that other-act evidence is sufficiently similar to be relevant (which I decline to do in the case at bar), it must still perform the balancing analysis envisioned by Rule 403, which allows the court to exclude relevant evidence if its probative value is substantially outweighed by its potential for unfair prejudice. The Second Circuit continued:
Though a ruling under Rule 403 is reviewed under the abuse-of-discretion standard, we have found it such an abuse to admit similar act evidence if the other act or acts are not sufficiently similar to the conduct at issue, or if the chain of inferences necessary to connect the evidence with the ultimate fact to be proved is unduly long.
Id. at 674 (citations omitted).
In the case at bar, I conclude without difficulty that the Rule 403 balance tips against the government in seeking to offer, at the trial of the Chase Bank consortium corporate fraud, evidence relating to the alleged Bank of New York individual loan fraud. The reasons for that conclusion appear sufficiently in the Rule 8(a) analysis, supra.
Seeking support in another drug case, the government cites United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990), for the proposition that Harris's prior acts relating to the Bank of New York would assist the jury in understanding the facts alleged with respect to the Chase Bank consortium credit agreement. That assertion is entirely conclusory and, given the underlying facts, both unsupported and unsupportable. The circumstances in Roldan-Zapata were entirely different: "The pre-existing drug-trafficking relationship between Akiva and Osario-Serva furthered the jury's understanding of how the transaction came about and their role in it." Id. at 804.
For the foregoing reasons, Count Twenty-Three will be severed from the trial of the other counts of the superseding indictment, and evidence of its underlying facts will not be admitted at that trial.
Trial of the case will go forward in conformity with this Opinion.
It is SO ORDERED.
Dated: New York, New York
October 23, 1992
CHARLES S. HAIGHT, JR.
UNITED STATES DISTRICT JUDGE