The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge
Currently before the court is the Government's motion in limine pertaining to the prosecution of Defendant Volkan Mergen. The Government seeks to introduce evidence of uncharged acts by Defendant. (Gov't Motion (Docket Entry #58).) Defendant opposes this request. (Def. Opp. (Docket Entry #64).) For the reasons that follow, the Government's motion in granted in part and denied in part.
In or about May 2001, Defendant began acting as a paid informant for the FBI, providing information about organized crime activity in the New York City area. In 2002, his status changed from informant to cooperator. Over the years, he received monthly payments of as much as $3,500 from the FBI for his services. His cooperation primarily consisted of providing information about the criminal activities of others and engaging in certain activities with the knowledge of the FBI, such as making loanshark payments or controlled drug buys. The charges in the present Indictment stem from crimes allegedly committed by Defendant while he was cooperating with the FBI.
The Superseding Indictment (S-2) charges Defendant with six counts of criminal conduct. Count One charges Defendant with interstate travel in aid of racketeering, relating to the arson of a residence at 215 Hamden Avenue in Staten Island. Counts Two and Three charge Defendant with conspiracy to distribute and distribution of cocaine and marijuana between 2002 and 2004. Counts Four and Five charge Defendant with robbery conspiracy and attempted robbery of an individual operating a check cashing business from a vehicle at a gas station in Staten Island. Count Six charges Defendant with using, carrying, and possessing a firearm in relation to this robbery conspiracy and attempted robbery. At trial, Defendant will assert two affirmative defenses: duress as to Count One, and public authority (both actual and apparent) as to all Counts.
In order to rebut Defendant's affirmative defenses, the Government seeks to introduce evidence of additional, uncharged acts at his upcoming trial. Specifically, the Government seeks to admit evidence of the following acts:
1) Credit card fraud in 2001 or 2002 ("Fraud");
2) Burglary of a car dealership in 2001 or 2002 ("2001 Burglary");
3) Criminal possession of a firearm in March 2002 ("Firearm Possession");
4) Destruction of a stolen vehicle in March 2003 ("Vehicle Destruction");
5) Unlawful possession of a machete in March 2004 ("Machete Possession"); and
6) Burglary of counterfeit Rolex watches from a vehicle in January 2006 ("2006 Burglary").
(See Gov't Motion 1.) The details of these uncharged acts are set forth in the Government's brief and will not be recounted here. (See id. 3-8.) Defendant asks the court to preclude the Government from introducing any of this evidence.
Rule 404(b) of the Federal Rules of Evidence prohibits the admission of evidence of the accused's "[o]ther crimes, wrongs, or acts" if the evidence is offered to show that the accused acted in conformity with the prior bad acts. Such evidence may be admissible, however, if offered for a non-propensity purpose, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b); see United States v. Germosen, 139 F.3d 120, 127 (2d Cir. 1998) (noting that uncharged acts evidence can be admitted "for any purpose except to show criminal propensity"). Although the Second Circuit has adopted an "inclusionary approach" to the admissibility of uncharged act evidence under Rule 404(b), United States v. Brennan, 798 F.2d 581, 589 (2d Cir. 1986), such evidence is still subject to the balancing test of Rule 403. United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994). As such, it may be excluded "if its ...