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U.S. v. GRIGGS

November 22, 2004.

UNITED STATES OF AMERICA
v.
ARNOLD GRIGGS Defendant.



The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

MEMORANDUM OPINION

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 are admitted.

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[5] 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 evidence.

  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 ...


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