The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
On August 14, 2009, the government moved to admit certain evidence pursuant to Rule 404(b) of the Federal Rules of Evidence, and argued in favor of admission of other evidence to which it claims Rule 404(b) does not apply. The government also moved in limine to preclude admission of statements and other evidence expected to be offered by defendant Luis M. Batista, including evidence of Batista's own out-of-court statements or records that seem to cast him in a positive light, on grounds that he has not provided a basis for introducing the statements contained therein or explained their relevance.
In its opposition to the government's motion, Batista moved to preclude testimony from a New York City Police Department ("NYPD") lieutenant as to what Batista's attorney said to the lieutenant about statements made to the attorney by Batista, on grounds that such testimony would constitute inadmissible hearsay.*fn1
For the reasons set forth below, the government's motion is denied in part, and granted in part. Batista's motion to preclude testimony is denied.
This Memorandum and Order assumes familiarity with the charges and background of this case. For more details about the facts and circumstances of this case, please see the court's Memorandum & Order dated March 31, 2009 denying Batista's motion to suppress evidence.
In summary, Batista and Henry Conde are charged together in the fifth superseding indictment. Batista, a former NYPD detective, is charged in Count One with conspiracy to distribute, and to possess with intent to distribute, cocaine, cocaine base ("crack"), and MDMA ("ecstasy"). In furtherance of this conspiracy, Batista allegedly provided confidential law enforcement information to Virgilio Hiciano, identified in the indictment as John Doe #1, who engaged in drug trafficking and related acts of violence in Brooklyn, New York, between approximately January 1998 to July 2007. Batista is further alleged to have witnessed Hiciano and a confidential informant give cocaine to a woman on numerous occasions, and to have distributed a small quantity of ecstasy.
Batista is charged in Count Two with conspiracy to commit bank fraud, and in Count Three with bank fraud, for allegedly providing the Municipal Credit Union with fraudulent proof of termite inspection and treatment in order to secure a mortgage for the purchase of a house located in Elmont, New York.
Defendant Conde, a former NYPD Sergeant serving on the Queens Internal Affairs Bureau ("IAB"), is charged in Counts Four and Five with making false statements to agents of the Federal Bureau of Investigation ("FBI") regarding his use of the Internal Affairs Professional Computer System.
Counts Seven and Eight charge both Batista and Conde with conspiracy to obstruct justice and obstruction of justice for knowingly and intentionally obstructing, influencing, or impeding an Eastern District of New York grand jury investigation and trial.
A.Government's Motion for Admission of Evidence Pursuant to Federal Rule of Evidence 404(b)
The government seeks to introduce certain evidence in support of the narcotics and obstruction charges pursuant to Rule 404(b) of the Federal Rules of Evidence, including evidence that:
* Members of the alleged conspiracy also distributed heroin and marijuana;
* Batista placed ecstasy in a woman's drink without her knowledge;
* Batista was pulled over by the police for driving while intoxicated with another member of the alleged conspiracy;
* Batista falsely claimed credit for an anonymous call placed to the police with information about the shooting of a police officer during a drug-related arrest;
* Batista obstructed and attempted to obstruct an investigation into the death of a police officer.
Rule 404(b), which governs the admissibility of evidence concerning defendant's other bad acts and uncharged crimes, provides, in relevant part, that:
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[.]
Fed. R. Evid. 404(b). "[E]vidence of uncharged criminal activity is not considered other crimes evidence under Fed R. Evid. 404(b) if it arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial." United ...