MEMORANDUM-DECISION AND ORDER*fn1
Defendant Kofi Yevakpor ("Defendant") has been indicted on two (2) felony counts: (a) attempted importation of a controlled substance from Canada - namely heroin, a Schedule I controlled substance - in violation of 21 U.S.C. §§ 952, 960 & 963; and (b) possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841. See Indictment (Dkt. No. 5). The amount of heroin exceeds one (1) pound - actually weighing about 5.8 pounds. See id.; Complaint (Dkt. No. 1).
The Government possesses numerous pieces of evidence that it intends to use at trial, and a number of witnesses that it intends to call. See Gov't Proposed Witness List (Dkt. No. 22); Gov't Proposed Exhibit List (Dkt. No. 23). The Government's evidence includes three one-minute video segments that were recorded by the Customs Area Security Center ("CASC") system "which consists of a series of cameras at the Champlain, New York Port of Entry which run continuously and capture video images at different locations within the facility." Gov't Response to Motion (Dkt. No. 27) at 2-3. The video clips were recorded during the border stop and search of Defendant. See Gov't Proposed Exhibit List (Dkt. No. 23) at 2, Ex. 10. According to the Government's papers, "[t]he images are recorded on a DVR machine and can be preserved on a compact disc. The system continuously records and tapes over stored images every 6 to 7 days." Gov't Response to Motion (Dkt. No. 27) at 3.
Defendant has filed a motion in limine challenging the Government's use of the three one-minute video segments, arguing, inter alia, that the "surveillance provided to the defendant to date is not complete and only represents a small clip of the entire time the defendant was recorded in and about the secondary inspection area." See Deft's Second Motion in limine (Dkt. No. 18) at 2. The Court reads this language in the Motion as challenging the proffered evidence under, inter alia, Federal Rule of Evidence ("FRE") 106.
A second pre-trial evidentiary issue has also been raised by the parties. By letter dated January 26, 2006, the Government provided notice to Defendant of its intent to call New York State Police Senior Investigator Samuel Mercado ("Mercado") as an expert witness. Letter from AUSA (Dkt. No. 17, Attach. 2; Dkt. No. 26, Attach. 1). The Government intends to call Mercado to testify on the value of the heroin involved in the case and the role and methods of transporters in heroin trafficking. This includes the type of heroine seized, the origins of the heroine, its purity, the typical wholesale value per kilogram, the retail value per glassine baggie, the difference in retail value depending on location of sale, the typical wholesale weight of a gram, the pricing formula, the estimated value of the heroin seized and the estimated net profits using a price of $10.00 per glassine baggie based upon 10,000 glassine bags per kilogram after sale in New York City. Id. The Government also seeks to have Mercado testify as to the methods used to bring heroin across an international border, the typical charge for transporting heroin, and the ways in which transporters receive compensation. Id. Mercado is not a fact witness in the present case, and the substance of his testimony will be based upon his training, experience and review of the reports, records and evidence in this case.
Defendant seeks to exclude Mercado's testimony by a Motion in limine dated January 30, 2006. Deft's First Motion in limine (Dkt. No. 17, Attach. 1). Defendant contends that the Government failed to give proper notice, and that Mercado's testimony is otherwise prejudicial, irrelevant, confusing and cumulative. Id.
The Court held a conference with counsel, on Wednesday, February 1, 2006, to address these issues. See Minute Entry (Dkt. No. 24). It appears that the Government does not possess any video other than the three one-minute segments, as the rest of the tape was recorded-over or erased by the Port personnel. The Court has viewed the three one-minute segments of videotape.
For the reasons that follow, the Court grants Defendant's Second Motion in limine (Dkt. No. 18) as to the three one-minute videotape segments, and will not allow the admission or use of the videotape segments at trial. However, the Court denies the First Motion in limine (Dkt. No. 17) as to the testimony by the Government's expert witness - with limitations as to the scope of said testimony.
"The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial."... "A motion in limine to preclude evidence calls on the court to make a preliminary determination on the admissibility of the evidence under Rule 104 of the Federal Rules of Evidence."... "Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds."... A district court's in limine ruling "is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the... proffer."
Highland Capital Mgmt., L.P. v. Schneider, 379 F. Supp. 2d 461, 467 (S.D.N.Y. 2005) (citing and quoting, inter alia, Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (citation and internal quotation marks omitted); Commerce Funding Corp. v. Comprehensive Habilitation Servs., Inc., No. 01 Civ. 3796(PKL), 2004 WL 1970144, at *4 (S.D.N.Y. Sept. 3, 2004) (citing FED. R. EVID. 104(a)); Luce v. United States, 469 U.S. 38, 41 (1984)).
B. The Three One-Minute Videotape Segments
When the Court viewed the three one-minute videotape segments, the following was observed:
Segment 1: October 18, 2005 - 13:40:00 to 13:40:59 (1:40 P.M. to 1:40:59 P.M.):
Defendant being detained at the secondary inspection area, Defendant carrying suitcase(s) from car into inspection area.
Segment 2: October 18, 2005 - 13:59:00 to 13:59:59 (1:59 P.M. to 1:59:59 P.M.): Search of suitcase(s) by officers, and Defendant's attempted use of cellular telephone. Segment 3: October 18, 2005 - 14:04:00 to 14:04:59 (2:04 P.M. to 2:04:59 P.M.):
Defendant and a companion sitting in secondary area, where Defendant allegedly gives materials/documents to companion, while suitcase(s) had been taken to another location. Gov't Proposed Exhibit List (Dkt. No. 23) at 2, Ex. 10.
The video segments do not clearly show the results of any search; they do not show a search of Defendant's person or of his companion's person before, during or after the border stop; and they do not show Defendant's subsequent arrest or anything else that may have occurred during the border stop and search. There is no volume or audio component accompanying the visual.
Furthermore, the three video segments have been preserved to the exclusion of the rest of the video surveillance, and neither the Government nor Defendant are certain how much else existed on the videotape prior to erasure/re-recording. From viewing the time stamps on the video segments, however, the Court notes that at least twenty-two (22) minutes of tape are missing from the first to the third segment (eighteen (18) minutes between segments one and two, and four (4) minutes between segments two and three). No one is certain how much tape, if any, existed before segment one or after segment three.
Federal Rule of Evidence 106 at least partially codifies the "Doctrine of Completeness", and states that: "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." FED. R. EVID. 106. See, generally, Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72 (1988) (Brennan, J.). Defendant has ...