The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
Presently before the Court are various pre-trial motions by Defendant Ledwin Castro ("Castro"). Castro contends that: (1) the indictment must be dismissed under the rule announced in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed. 2d 684 (1959) because it violates the Fifth Amendment's prohibition on double jeopardy; (2) the Government should be precluded from calling FBI Special Agent Reynaldo Tariche as an expert witness; and (3) the Court should preclude various pieces of evidence that the Government intends to offer at the trial.
The factual background and procedural history of this case has been discussed in this Court's prior decision. United States v. Vasquez, 258 F.R.D. 68 (E.D.N.Y. 2009). The Court presumes familiarity with this decision and will discuss only those facts that bear on the instant pre-trial motions.
Castro is charged with conspiracy to commit assault with a dangerous weapon in aid of racketeering activity, 18 U.S.C. § 1959(a)(6), assault with a dangerous weapon in aid of racketeering activity, 18 U.S.C. § 1959(a)(3), and the discharge of a firearm during a crime of violence, 18 U.S.C. § 924(c)(1). These charges stem from Castro's alleged participation in two drive-by shootings in Nassau County on June 18, 2003.
Castro is allegedly a member of MS-13, a nationwide criminal gang organized into local subunits referred to as "cliques." The evidence at the first trial showed that, on the night of the shootings, Castro, David Vasquez and two other MS-13 gang members, Ralph Admettre and Nieves Argueta, drove to a laundromat in Hempstead to search for members of SWP, a rival gang. From a van parked in a gas station parking lot across the street, Vasquez opened fire on a crowd outside the laundromat, wounding Ricardo Ramirez and Douglas Sorto.
Less than one hour later, Castro, Vasquez, Admettre and Argueta traveled to a delicatessen in Freeport where they encountered a group of young black men that they believed to be members of the Bloods, another rival gang. At Vasquez's urging, Argueta shot Carlton Alexander seven times in the back. Despite being struck by multiple gunshots, Alexander survived. Between July 10, 2003 and July 17, 2003, the Nassau County Police Department arrested Castro, Vasquez, Admettre, and Argueta for their roles in the shootings.
Following Castro's arrest, he and his defense counsel met with then Nassau County Assistant District Attorney Frank X. Schroeder. Based upon these discussions, the Nassau County District Attorney's Office ("NCDAO") determined that Castro was willing to provide important information concerning the homicide of Jaime Figueroa. Ultimately, the NCDAO offered Castro the opportunity to plead to a lesser charge in connection with the June 18, 2003 shootings in exchange for his cooperation in the Figueroa homicide prosecution. Pursuant to this agreement, the NCDAO called Castro as a witness in a grand jury proceeding related to the Figueroa homicide. Before the grand jury, Castro testified that he was a member of MS-13 and stated that Johnny Rodas and Mario Jimenez, fellow MS-13 gang members, admitted to him that they murdered Figueroa.
On May 12, 2004, former ADA Schroeder was cross-designated to serve as a Special Assistant United States Attorney to assist in the USAO's investigation of MS-13. As a result of this investigation, on June 23, 2005, a federal grand jury returned a superseding indictment against six MS-13 members including, among others, Castro, Vasquez, Admettre and Argueta, arising out of a series of violent crimes allegedly committed by MS-13, including the June 18, 2003 shootings. Prior to trial, United States District Judge Leonard Wexler severed the charges against Castro and Vasquez from the charges against several of their co-Defendants. The Defendants' remaining co-Defendants pleaded guilty to assault and Admettre pleaded to the conspiracy charge and to using a firearm during a crime of violence. However, Castro and Vasquez proceeded to trial on July 19, 2005.
At the trial, the Government called Hector Alicea, an officer with the New York State Police, to provide expert testimony with regard to MS-13. Alicea testified concerning, among other things, MS-13's history, structure, and modes of communication. The Government also called the three shooting victims, Admettre, and another co-Defendant to testify against the Defendants. In addition, the Government offered into evidence telephone records, the gun used in the shootings, ballistics reports, and the Defendants' post-arrest confessions.
On July 26, 2005, a jury found Castro and Vasquez guilty on all counts. However, on appeal, the Second Circuit vacated their convictions and remanded the case to the District Court finding that Alicea's testimony violated the Confrontation Clause of the Sixth Amendment and Fed. R. Evid. 703 because he had taken out of court statements obtained from MS-13 members during custodial interrogations and conveyed the substance of those statements to the jury. United States v. Mejia, 545 F.3d 179, 199 (2d Cir. 2008).
At the re-trial, the Government will be required to prove, among other things, that MS-13 was a racketeering enterprise within the meaning of 18 U.S.C. § 1959(b)(1) and 18 U.S.C. § 1961(1). In particular, the Government will have to show that MS-13 was involved in acts and threats of murder. To that end, the Government intends to prove that MS-13 members planned and carried out the homicides of Figueroa, Damian Corrente, and Dagoberto Ramos, prior to committing the assaults charged in this case. In order to establish that MS-13 is a racketeering enterprise, the Government will also rely, at least in part, on the expert testimony of FBI Special Agent Reynaldo Tariche.
Castro and Vasquez were, as in the first trial, scheduled to be tried together. However, Vasquez pleaded guilty on the eve of this impending trial and while the pre-trial motions were still pending before the Court. Nevertheless, the Court will address the ...