The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
The facts underlying this matter were discussed at length in the court's December 15, 2009 Memorandum & Order, United States v. Lekhtman, 2009 WL 5095379 (E.D.N.Y. Dec. 15, 2009), denying the Lekhtman defendants' pre-trial omnibus motion in its entirety. (Docket Entry 70.) As such, the parties' familiarity with the factual and procedural history of this case is presumed. The facts are repeated here only to the extent they are relevant to the government's motion in limine.
On December 8, 2009, defendants Yevsey Lekhtman, Simon Benimetsky, Roman Dudkin and Yelena Raykhman were named in a five -count second superseding indictment ("Indictment"), charging them with: (1) conspiracy to embezzle, steal and obtain by fraud and materially false statements, funds provided and insured under Subchapter IV of Title 20 of the United States Code, in violation of 20 U.S.C. § 1097(a) ("student aid fraud conspiracy"); (2) a substantive count of fraud in violation of 20 U.S.C. § 1097(a) ("student aid fraud"); (3) theft of public money from the United States Department of Education ("DOE") in violation of 18 U.S.C. § 641 ("theft of DOE funds"); (4) conspiracy to obtain visas by submitting false documents to the Immigration and Naturalization Service and Department of Labor ("DOL") in violation of 18 U.S.C. § 1546 ("visa fraud conspiracy"); and (5) theft of public money from the United States Department of Labor, in violation of 18 U.S.C. § 641 ("theft of DOL funds" or "WIA fraud"). The indictment also contains criminal forfeiture allegations with respect to Counts Three, Four and Five. Defendant Dudkin is charged in Counts One through Four only.
The trial of defendant Dudkin*fn1 is scheduled to begin on February 1, 2010. On December 21, 2009, the government moved, in limine, to: (1) introduce evidence regarding Dudkin's alleged participation in two conspiracies with which he is not charged (Count Five and student-visa fraud), pursuant to Federal Rule of Evidence 404(b); (2) preclude the defense from introducing exculpatory statements made by Dudkin during interviews with government agents; and (3) introduce Dudkin's proffer statements, if necessary to rebut any inconsistent factual assertions made by the defense.
On January 19, 2010, the court heard oral argument on the government's motion. At the oral argument, the court was informed of new information regarding the circumstances surrounding the proffer agreement entered into by the parties. Further briefing on this issue was granted and, accordingly, the court reserves decision at this time as to this prong of the government's motion. For the following reasons, the government's motion is granted in part and denied in part.
I. Evidence of Uncharged Crimes
Federal Rule of Evidence 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). The Second Circuit has adopted "an inclusionary approach" to Rule 404(b) evidence, precluding admission only when evidence of other bad acts is offered to demonstrate the defendant's criminal propensity. United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002) (internal quotation marks omitted); see also United States v. Carlton, 534 F.3d 97, 101 (2d Cir. 2008). This inclusionary approach, however, "does not obviate the need to identify the fact or issue to which the evidence is relevant." United States v. Mercado, 2009 WL 2096234, at *5 (2d Cir. July 17, 2009) (internal quotation marks omitted). "There must be a clear connection between the prior act evidence and a disputed issue at trial." Id.; see also United States v. Gordon, 987 F.2d 902, 908 (2d Cir. 1993) (probative value of other bad acts "depends largely on whether or not there is a close parallel between the crime charged and the acts shown") (citation and internal quotation marks omitted). Assuming that the evidence is admissible under Rule 404(b), the court must also scrutinize it under Rule 403 to determine if its probative value is substantially outweighed by the potential for unfair prejudice. See FED. R. EVID. 403; United States v. Gilan, 967 F.2d 776, 782 (2d Cir. 1992).
As a general matter, evidence of other acts is correctly admitted if: "(1) it [is] offered for a proper purpose; (2) it [is] relevant to a disputed trial issue; (3) its probative value is [not] substantially outweighed by its possible [unfair] prejudice; and (4) the trial court administer[s] a proper limiting instruction." United States v. Edwards, 342 F.3d 168, 176 (2d Cir. 2003) (citations omitted).
The government seeks to introduce evidence of the defendant's purported role in the crime charged in Count Five of the Indictment, i.e., theft of DOL funds or WIA fraud, and his role in an uncharged student visa fraud conspiracy allegedly conducted at Centurion. Dudkin was not charged in Count Five, nor were any of the defendants charged with the alleged student visa fraud conspiracy.
a. Proper Purpose/Reasonable Notice
The government argues that evidence of these similarly conducted, uncharged frauds may be introduced to show Dudkin's intent, plan, knowledge, and opportunity with respect to the charged crimes, as well as the lack of mistake or accident in committing the charged crimes. These are proper purposes under Rule 404(b). The defendant argues that the government's proffer in this regard is insufficient. This argument is without merit. No specific form or particularity of the notice is required. The government cites the proper purposes, the type of evidence that will be probative on those issues, and the precise manner in which the evidence ...