The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
The government has moved to admit: (1) certain evidence
concerning defendant's past conduct pursuant to Fed.R. Evid.
404(b); (2) certain recorded statements made by the defendant to
his wife on May 19, 2004; (3) a May 1, 2004 out-of-court
statement made by an alleged eyewitness to defendant's conduct
pursuant to Fed.R. Evid. 803(1) or 803(2) (3); and (4) other May
1, 2004 out-of-court eyewitness statements for background
informational purposes. As set forth below, the 404(b) motion is
denied in its entirety. The recorded and eyewitness statements
In a Superseding Indictment filed on September 29, 2004,
defendant Arnold Griggs ("Griggs") was charged with possession of
a loaded handgun in violation of 18 USC § 922(g) (1). Griggs
allegedly brandished a loaded Glock handgun during a melee
outside a Bronx nightclub on May 1, 2004. According to the
Superseding Indictment, Griggs has been convicted of four prior
felonies. On October 1, 2004, the defendant moved to suppress certain
statements that he allegedly made to police officers at the time
of his arrest on May 1, 2004. (See Garnett Aff. ¶¶ 5-9.)
However, this issue was resolved in open court based on the
government's representation that it would not seek to offer such
statements into evidence at trial.
1. Admission of Evidence of Defendant's Past Conduct
Pursuant to Rule 404(b)
Rule 404(b) states:
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, provided that upon request by the accused,
the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during
trial if the court excuses pretrial notice on good
cause shown, of the general nature of any such
evidence it intends to introduce at trial.
Fed.R. Evid. 404(b). Rule 404(b) codifies the common law rule
that "[e]vidence of other acts is not admissible to prove that
the actor had a certain character trait, in order to show that on
a particular occasion he acted in conformity with that trait."
Hynes v. Coughlin, 79 F.3d 285, 290 (2d Cir. 1996).
Courts of the Second Circuit "follow an inclusionary rule,
allowing the admission of [Rule 404(b)] evidence for any purpose other than to show a defendant's criminal propensity, as
long as the evidence is relevant and satisfies the [Fed R. Civ.
P. 403] balancing test. . . ." United States v. Inserra,
34 F.3d 83, 89 (2d Cir. 1994); United States v. Carboni,
204 F.3d 39, 44 (2d Cir. 2000); United States v. Nektalov,
325 F. Supp.2d 367, 371 (S.D.N.Y. 2004). Under this inclusionary rule,
"other act" evidence is admissible unless: (1) it is offered to show
defendant's bad character or for some other improper purpose; (2)
it is not relevant to a consequential issue at trial; (3) its
probative value is substantially outweighed by its possible
prejudice; or (4) it is unaccompanied by an appropriate limiting
instruction. See United States v. Edwards, 342 F.3d 168, 176
(2d Cir. 2003) (citing United States v. Pitre, 960 F.2d 1112,
1119 (2d Cir. 1992); United States v. Pascarella, 84 F.3d 61,
69 (2d Cir. 1996) (stating that "other act" evidence is
admissible unless (1) it is offered "for the sole purpose of
showing the defendant's bad character[,]" (2) it is unduly
prejudicial pursuant to Fed.R. Evid. 403, or (3) it is not
relevant to a consequential issue at trial).
"In the Rule 404(b) context, similar act evidence is relevant
only if the jury can reasonably conclude that the act occurred
and that the defendant was the actor." Huddleston v. United
States, 485 U.S. 681, 689 (1988) (citing United States v.
Beechum, 582 F.2d 898, 912-13 (5th Cir. 1978)). In Huddleston,
the Supreme Court held that the trial court is required to make preliminary determination as to whether the jury could reasonably
find by a preponderance of the evidence that the alleged prior
act did, in fact, occur. Id. at 690; see also Jack B.
Weinstein & Marsha A. Berger, Weinstein's Federal Evidence §
104.30 at 104-51 n. 11 (2001).
A trial court's decision whether to admit or exclude other-act
evidence pursuant to Fed.R. Evid. 404(b) is subject to review on
an abuse-of-discretion standard. See, e.g. Hynes v.
Coughlin, 79 F.3d 285, 291 (2d Cir. 1996) (citing United States
v. Peterson, 808 F.2d 969, 974 (2d Cir. 1987)).
Evidence of a 1988 Murder in Washington, D.C.
The government seeks to introduce evidence from witnesses who
will testify that they saw the defendant shoot and kill a man in
Washington, D.C. in 1988. (Second Letter from Michael Farbiarz of
10/1/04 at 1-2.) The defendant opposes the admission of this
evidence on three grounds: (1) that based on the evidence
presented, a reasonable jury could not find by a preponderance of
the evidence that defendant committed the alleged 1988 crime
(Letter from Ronald L. Garnett of 10/07/04 at 2-3); (2) that the
alleged 1988 crime is substantially more prejudicial than
probative (Id.); and (3) that the alleged 1988 crime is not
relevant to whether defendant committed the instant offense
because the acts are not sufficiently similar. (Letter from Maurice H. Sercarz of
11/09/04 at 3-4.)
According to defendant's October 7, 2004 submission, the facts
of which the government has not contested, the defendant was
tried three times for his alleged role in the 1988 killing.
(10/07/04 Garnett Letter at 2.) The first trial was terminated by
a mistrial order after it was disclosed that the government had
withheld Brady evidence relating to a witness' prior
identification of another person as the person who had committed
the shooting. (Id.) During the second trial, it was disclosed
that a second government witness had also previously identified
another individual, and not the defendant, as the person who had
committed the shooting. (Id.) Based on the late disclosure of
this exculpatory material, defendant's conviction was apparently
vacated on appeal. (Id. at 2-3.) The third trial, which
commenced in 1995, ended in an acquittal. (Id.)
The government has failed to rebut the allegations of the
defendant as to the reliability of the evidence concerning
defendant's role in the 1988 shooting, based on the outcome of
the Washington trials. The government has not provided a basis
for this Court to conclude that a reasonable jury could find,
based on a preponderance of the evidence, that the defendant shot
and killed a man in Washington, D.C. in 1988. For this reason,
evidence of the 1988 Washington, D.C. shooting will not be admitted into
1997 New York Arrest for Possession of a Firearm
The government seeks to introduce evidence that on October 17,
1997, defendant was arrested in an automobile in which a
briefcase was found that apparently contained a handgun and
business documents relating to a nightclub. (Second Farbiarz
Letter of 10/1/04 at 2.) Defendant challenges the admission of
this evidence on the following grounds: (1) that based on the
evidence presented, a reasonable jury could not find by a
preponderance of the evidence that defendant committed the
alleged 1997 crime (10/07/04 Garnett Letter at 4); (2) that the
proposed evidence is substantially more prejudicial ...