case, evidence that George Gallego furnished an automatic gun and ammunition to Martinez in December 1992 for use by Giovanni Rosado. The government contends the evidence is admissible under Rule 404(b).
Both sides agree that the test for receipt of evidence pursuant to Rule 404(b) is whether the evidence is (1) offered for a purpose other than to prove the defendant's criminal propensity, (2) relevant, and (3) more probative than unfairly prejudicial. E.g., United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989). It is clear as well that the trial court may receive "evidence of prior acts to inform the jury of the background of the conspiracy charge, in order to help explain how the illegal relationship between the participants in the crime developed, or to explain the mutual trust that existed between the conspirators." United States v. Rosa, 11 F.3d at 333-34. Contrary to defendants' suggestion, the government is not limited to prior acts substantially similar to that charged where, as here, the evidence is offered to prove something other than knowledge or intent.
It is not yet clear whether the evidence in question is relevant to a disputed issue. See, e.g., Colon, 880 F.2d at 660-61. The appropriate course therefore is to grant defendants' motion, but only to the extent that the government shall advise the Court, out of the presence of the jury, prior to offering this evidence in order to permit a determination in light of the state of the record at that time.
The Martinez Motions
The motions addressed here were made by Martinez's new counsel on January 8, 1996, long after the expiration of the time fixed by the Court for pretrial motions. See FED. R. CRIM. P. 12(c). The motions are untimely. They are denied also on the merits.
Evidence of Subornation of Perjury
The government intends to adduce evidence from Giovanni Rosado, allegedly a member of the conspiracy and now a cooperating witness, that Rosado and Martinez arranged for one Joseph Amato to give false testimony for the purpose of explaining innocently certain damage to Rosado's car that allegedly was sustained during the crime. Martinez moves in limine to preclude the government from doing so.
The government offers the disputed evidence in order to establish Martinez's consciousness of guilt, which is an entirely appropriate purpose. E.g., United States v. Gatto, 995 F.2d 449, 455 (3d Cir. 1993); see also United States v. Tracy, 12 F.3d 1186, 1195 (2d Cir. 1993); United States v. Qamar, 671 F.2d 732 (2d Cir. 1982). Nor is the Court persuaded that any unfairly prejudicial effect of the evidence would substantially outweigh its probative value.
The cases relied upon by Martinez are not apposite. Krulewitch v. United States, 336 U.S. 440, 93 L. Ed. 790, 69 S. Ct. 716 (1942), the case principally relied upon, held only that evidence of a co-conspirator's effort to persuade a prospective witness to keep silent was not admissible, against hearsay objection, under the co-conspirator exception to the hearsay rule because the co-conspirator's statements were made after the conclusion of the main conspiracy. Moreover, the evidence to be offered here evidently will consist, at least in substantial part, of Martinez's own statements.
Accordingly, the motion to preclude is denied.
Martinez moves also for a separate trial. He bases the motion solely on his expectation that the government will introduce evidence of shocking callousness on the part of Alfredo Gallego, evidence that Alfredo Gallego sat on or next to the body of the murdered driver while he drove the truck to another location. Arguing that Martinez could object to this evidence, which is "less relevant" to the case against him, if Martinez were tried separately, he contends that a joint trial would be unduly prejudicial.
As the Supreme Court recently emphasized, "there is a preference in the federal system for joint trials of defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 113 S. Ct. 933, 937, 122 L. Ed. 2d 317 (1993). In Zafiro, the Court refused "to adopt a bright-line rule, mandating severance whenever codefendants have conflicting defenses." 113 S. Ct. at 937-38. In doing so, it held that "a district court should grant a severance ... only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Id. at 938.
As Zafiro acknowledged, a risk warranting severance "might occur" if evidence inadmissible against one defendant, if tried alone, would be admitted against a co-defendant. Here, however, Martinez overstates the risk of prejudice, as the jury should be well able to separate any reaction to Gallego's actions from actions of Martinez. Moreover, it is far from clear that evidence of Gallego's alleged conduct would be inadmissible against Martinez even in a separate trial, particularly in view of the conspiracy charges against him. Indeed, in characterizing the evidence as "less relevant" in a separate trial, Martinez concedes its relevance. In all the circumstances, the Court holds that the risk of prejudice is not sufficient to warrant a severance. See also, United States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir. 1995). Martinez application therefore is denied. Martinez remains free to seek a limiting instruction if so advised. See Zafiro, 113 S. Ct. at 938.
The government's motion for an in limine determination that the quoted portion of the allocution of George Gallego is admissible in evidence is granted. Its motion for a determination that it may compel Arthur Brown to invoke his privilege against self-incrimination before the jury is denied. Nor shall the government elicit the fact that Brown invoked the privilege before the jury absent further leave of the Court as indicated above.
The motion by defendants to exclude the so-called Gonzalez stalking reports and evidence of the alleged December 1992 handgun transaction involving Rosado is granted to the limited extent described above and otherwise denied.
The motions by Steven Martinez for a severance and to exclude evidence of alleged subornation of perjury are denied in all respects.
Dated: January 16, 1996
Lewis A. Kaplan
United States District Judge