Sweet, D. J.
Plaintiff East Coast Novelty Company ("East Coast") has moved in limine for an order precluding Defendants City of New York (the "City"), Frank Biehler ("Inspector Biehler"), and Mitchell Kolpan ("Detective Kolpan") (collectively the "Defendants") from introducing at trial any evidence, testimony or reference primarily concerning: (1) the prior arrests or convictions of East Coast's principals; (2) references to "organized crime," "La Cosa Nostra," or "the Mafia"; and (3) the invocation of the Fifth Amendment privileges during the respective depositions of Louis and Benedetto Cinquegrana. In turn, the Defendants have moved in limine for an order: (1) dismissing the Plaintiff's sixth cause of action concerning conspiracy under state or federal law; and (2) limiting the availability and calculation of Plaintiff's alleged damages.
For the reasons set forth below, the motions of East Coast and the Defendants are granted in part and denied in part.
East Coast is a New Jersey corporation authorized to do business in the State of New York. Its principal office is in the City of Newburgh, New York, and its primary business is importing Class "C" fireworks.
The City is a domestic municipal corporation with full governmental authority, existing under the laws of the State of New York.
Inspector Biehler is an Inspector with the New York City Police Department (the "Department"), who was the ranking officer in charge of the Manhattan South Public Morals Division. Detective Kolpan was an undercover officer with the Department.
Prior Proceedings and Facts
The relevant proceedings and facts are fully set forth in the prior opinions of this Court, familiarity with which is presumed. See East Coast Novelty Co. v. City of New York, 781 F. Supp. 999, 1002-03 (S.D.N.Y. 1992) ("East Coast I"); East Coast Novelty Co. v. City of New York, 809 F. Supp. 285, 287-88 (S.D.N.Y. 1992) ("East Coast II"). The underlying events at issue concern the Department's seizure of the Plaintiff's entire inventory of fireworks in Newburgh, New York. East Coast alleges that it is a properly licensed importer of fireworks that has complied with the pertinent governmental authorities.
The fireworks were seized as part of "Operation Skyrocket," initiated by the Department after two successive Fourth of July fireworks displays at the Bergen Hunt and Fish Club. After the fireworks were seized, a destruction hearing was held. The confiscated inventory was ordered to be destroyed, and the fireworks were then taken to the Department's Rodman's Neck facility where they were destroyed.
The present motions were argued on January 18, 1994, final papers were submitted to the Court as of January 24, 1994 and the motions were considered fully submitted on that date. The trial of this action is presently scheduled to commence on February 4, 1994.
I. Admission of Prior Arrests, Convictions, and Alleged "Organized Crime" Connections of the Principals Will Be Determined At Trial
In 1981 and 1982, Louis and Benedetto Cinquegrana, alleged by the Defendants to be the principals of East Coast, were convicted of conspiracy to manufacture and distribute explosives (M-80's) in violation of federal law.
Since that time neither has been the subject of criminal proceedings.
The Defendants seek to admit evidence of the Cinquegranas' prior convictions.
The Defendants contend that the prior convictions of Benedetto and Louis Cinquegrana reveal the principals' intent, knowledge, motive and state of mind with respect to East Coast's damage claims. For example, Defendants claim that admission of these prior convictions will shed light on whether Louis Cinquegrana had the requisite intent to make an illegal sale to Kolpan, East Coast II, 809 F. Supp. at 289, and whether Benedetto Cinquegrana had a criminal intent in introducing Louis to Detective Kolpan.
A. The Admissibility of Prior Convictions Under Rule 404(b) Will Be Determined At Trial
Rule 404(b) of the Federal Rules of Evidence, entitled "Other Crimes Wrongs or Acts," provides:
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.
Under Rule 404(b) four criteria for determining the admissibility of other acts, or prior convictions, must be considered, including: (1) the proper purpose; (2) the relevance; (3) the probative-prejudicial balance; and (4) the ability to limit damaging evidence as provided by Rule 105. See Huddleston v. United States, 485 U.S. 681, 689-92, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988). The Second Circuit generally allows into evidence relevant facts regarding a defendant's prior crimes except to the extent such prior crimes would tend to prove only criminal propensity. United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989); United States v. Brennan, 798 F.2d 581, 589-90 (2d Cir. 1986), cert. denied, 490 U.S. 1022, 104 L. Ed. 2d 187, 109 S. Ct. 1750 (1989).
It is difficult for a court to weigh the probative-prejudicial balance before the commencement of a trial. See, e.g., United States v. Benedetto, 571 F.2d 1246, 1249 (2d Cir. 1978) ("we have emphasized that admission of such strongly prejudicial evidence should normally await the conclusion of the defendant's case, since the court will then be in the best position to balance the probative worth of, and the government's need for, such testimony against the prejudice to the defendant."). Some courts, in criminal cases, have determined that such decisions should be made at the close of the defendant's argument before raising prior convictions as evidence of intent, because intent may in fact be inferable from the act itself. See United States v. Danzey, 594 F.2d 905 (2d Cir.), cert. denied, 441 U.S. 951 (1979); United States v. Alessi, 638 F.2d 466 (2d Cir. 1980).
It is evident that the admission of the Cinquegranas' prior conspiracy convictions may be relevant to the knowledge, intent, and planning of the officers at the time of seizure and thereby relevant to the propriety of the sale and the extent of the seizure, if the convictions were known to the officers. Similarly, the police officers' perception of East Coast's connections to "organized crime" will be admitted if it is relevant to the knowledge of the Defendants.
Accordingly, such questions will be determined under the traditional balancing test after the Plaintiff's evidence is presented and in the light of these conclusions.
B. Admission of Prior Convictions Under Rule 609 Will Be Determined At Trial
Federal Rules of Evidence Rule 609(a) permits impeachment of a witness by evidence of conviction of a crime punishable by death or imprisonment for more than one year or for any crime, even if not a felony, which "involved dishonesty or false statement, regardless of the punishment." Fed. R. Evid. 609(a). Rule 609(b) limits the admission of convictions more than ten tears old, "unless the court determines, in the interest of justice, that the probative value of the conviction, supported by specific facts and circumstances substantially outweighs its prejudicial effect." Fed. R. Evid. 609(b). The proponent of the prior conviction must give sufficient advance written notice of the intent to use such evidence to provide the adverse party with a fair opportunity to contest its use.
According to Weinstein's Evidence,
Gordon v. United States, 127 U.S. App. D.C. 343, 383 F.2d 936 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029, 20 L. Ed. 2d 287, 88 S. Ct. 1421 (1968) ("Gordon") is the seminal case analyzing the admissibility of prior convictions for impeachment purposes. Gordon lists the following four factors for courts to consider: (1) the nature of the crime as acts involving fraud, resting on dishonest conduct; (2) the nearness or remoteness of the prior conviction; (3) similarity between the past crime and the charged crime; (4) the effect if the defendant does not testify out of fear of being prejudiced because of impeachment of prior convictions; and (5) the credibility of the witness. Gordon, 383 F.2d at 940.
East Coast seeks to exclude evidence of the Cinquegranas' convictions on the grounds that its prejudicial value outweighs the probative value of the evidence. The Cinquegranas' prior convictions of conspiracy to manufacture and distribute explosives are not by definition crimes of fraud or dishonesty, and therefore do not fall within the first Gordon criteria.
The second criteria, that of time, does not preclude the introduction of the evidence. Their explosives convictions are not so old as to be precluded from admission at trial. See e.g., U.S. v. Palumbo, 401 F.2d 270 (2d Cir. 1968) (the impeachment of a criminal defendant upheld in 1967 trial by convictions for armed robbery in 1929, breaking and entering in 1937 and 1946, receiving stolen property in 1945 and armed robbery in 1956).
The third criteria, the similarity between the "charged crime" and the prior convictions, of course is not relevant here as there is no charged crime. Rather, the evidence of the prior convictions is relevant to the Defendants' motive and intent in the action at issue as well as that of the principals of East Coast. For the same reason, the fourth factor, the importance of the testimony, weighs in favor of admitting the prior explosive manufacture convictions.
Finally, the fifth factor, credibility of the witness, militates in favor of admitting this prior conviction. In United States v. Gilbert, 668 F.2d 94 (2d Cir. 1981), cert. denied, 456 U.S. 946, 72 L. Ed. 2d 469, 102 S. Ct. 2014, the Second Circuit upheld the admission of a prior mail fraud conviction that was more than 10 years old because the district judge had properly found that its probative value substantially outweighed its prejudicial effect against the defendant. Had the defendant chosen to testify, "his credibility would be a crucial issue. . . ." Gilbert, 668 F.2d at 97.
The Supreme Court has held that evidence of prior convictions are not generally suitable for in limine rulings.
A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context. This is particularly true under Rule 609(a)(1), which directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant. To perform this balancing, the court must know the precise nature of the defendant's testimony, which is unknowable when, as here, the defendant does not testify.
Luce v. United States, 469 U.S. 38, 41, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984). See also United States v. Feola, 651 F. Supp. 1068, 1127 (S.D.N.Y. 1987) (deferring in limine motions to preclude prior convictions until trial "when the record has been more fully developed."), aff'd without op., 875 F.2d 857, (2d Cir. N.Y. 1989).
In United States v. Washington, the Second Circuit held that the:
function of determining whether the probative value of defendant's testimony outweighs the prejudicial effect of his prior conviction or convictions is explicitly left to the discretion of the trial judge. Fed. R. Evid. 609(a). United States v. Gilbert, 668 F.2d 94, 97 (2d Cir. 1981), cert. denied, 456 U.S. 946, 72 L. Ed. 2d 469, 102 S. Ct. 2014 (1982); United States v. Hawley, 554 F.2d 50, 52-53 (2d Cir. 1977).