The opinion of the court was delivered by: Garaufis, United States District Judge.
This Memorandum and Order (M&O) addresses and resolves a number of requests and motions raised by the United States ("Government") or the defendants Vincent Basciano ("Basciano") and Patrick DeFilippo ("DeFilippo") in the ongoing trial in this case. Familiarity with the facts of this case and all prior rulings is assumed.
I. The Blue Thunder Heroin Trial
On April 6, 2006, the parties made a number of applications in reference to Basciano's criminal trial for narcotics trafficking in the early 1990s. (See Trial Transcript ("Trial Tr.") at 7564-81.) The Government seeks to admit evidence of Basciano's heroin trafficking and jury tampering. Basciano seeks to admit evidence of his home detention awaiting trial and of his acquittal in the case. (Id. at 7572.)
In my ruling of February 17, 2006, I ruled that the Government may not submit evidence to the jury related to Basciano's trafficking of heroin as enterprise evidence or as Rule 404(b) evidence. (M&O of Feb. 17, 2006 at 13-14.) That Basciano was tried for trafficking heroin in the Southern District of New York (the so-called "Blue Thunder" case) has now been mentioned several times at trial. (See Trial Tr. at 7564-76.) Basciano seeks to admit evidence that (1) he was detained on house arrest from 1991-1994 as part of that case and (2) he was acquitted in the Blue Thunder trial. The Government, in turn, argues that this evidence should not be admitted, or alternately, should it be admitted, the Government should be allowed to introduce evidence under Rule 404(b) to prove Basciano's involvement in heroin trafficking.
Several key Government witnesses have expressed an inability to identify with specificity the dates when certain alleged events occurred. The defense seeks to introduce evidence that Basciano was held under house arrest during a period from 1991 to 1994, to demonstrate to the jury certain limitations on Basciano's freedom of movement during that time period. I find no reason to exclude evidence admitted for such a purpose. The defense may submit such evidence (preferably by stipulation, as the period of house arrest is verifiable by written documentation).
Both sides submitted briefs on the question of the admissibility of evidence of acquittals. (Gov't Ltr of Mar. 8, 2006; Basciano Ltr of Mar. 8, 2006.) After careful review, I find that evidence that Basciano was acquitted of a heroin charge is neither probative nor relevant in this case. In a murder and racketeering trial that has spanned two months and has a transcript expected to reach close to 10,000 pages, a few passing mentions of Basciano's involvement with heroin have not prejudiced the defendant to a degree that requires such a rebuttal. Introduction of such evidence can only serve to confuse and distract the jury. I therefore exclude the evidence of Basciano's acquittal.
For the same reason, I also deny the Government's motion to strike the mention of an acquittal by Basciano's attorney. This case is not about heroin trafficking and any further mention of heroin trafficking by either party is excluded as having so little probative value as to be substantially outweighed by unfair prejudice or confusion to the jury in this final stage of the trial. In accordance with this finding, Basciano's home detention shall be referenced as the result of "an unrelated case," with no further mention of the case's substance or outcome.
II. Attorney-Client Privilege
On April 4, 2006, Basciano's attorney asked the court to have a portion of Thomas Lee's testimony stricken as it revealed a conversation protected by attorney-client privilege. (Trial Tr. at 6865-66.) While I originally ruled that a certain conversation between Thomas Lee and Basciano was not admissible because it was covered by the attorney-client privilege, I granted the Government's motion for reconsideration, finding the privilege was lifted by the presence of a third party. (Sealed M&O of Feb. 24, 2006; Sealed M&O of Mar. 23, 2006.) In the Government's motion for reconsideration, it argued that privilege was destroyed by the presence of Dominick Cicale during the conversation at issue. (Gov't Ltr of Mar. 20, 2006.) At trial, Thomas Lee testified that Dominick Cicale waited downstairs during the conversation, but that Joseph Massino's lawyer, David Breitbart, was present for the conversation. (Trial Tr. at 6835-37.) Following this conversation, Basciano's attorney asked the court to strike this portion of the testimony and issue a jury instruction to disregard it. (Id. at 6865-66.)
My prior finding that attorney-client privilege was waived by the presence of Dominick Cicale is no longer applicable. It is possible that David Breitbart's presence waived the attorney-client privilege, or it is possible that Breitbart was participating in a joint defense conversation, which would be covered by privilege. As the court does not have further information to make a finding, and in an excess of caution, I fall back on my prior ruling that the conversation was privileged and therefore inadmissible. I grant Basciano's request to strike the protected conversation from the record. The following lines of the transcript are stricken: page 6835 line 22 until page 6836 line 19 and page 6836 line 25 until page 6837 line 6.*fn1 The transcript will now read:
Q: In that law office, did you, Mr.Basciano and Mr. Breitbart have a conversation?
Q: At the time of that meeting, what was the status of Mr. ...