The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Familiarity with the background of this case is assumed. See generally United States v. Defreitas, 2010 WL 1850950 (E.D.N.Y. May 6, 2010); United States v. Defreitas, 2010 WL 1223244 (E.D.N.Y. Mar. 24, 2010). The government moves in limine to admit certain evidence against defendants Russell Defreitas and Abdel Nur as direct evidence of the charged conspiracies, contending that it falls outside the scope of Federal Rule of Evidence 404(b). (See generally Docket Entry No. 206 ("Gov't Mot."); Docket Entry No. 245 ("Gov't Reply").) In the alternative, the government moves to admit the same evidence as an exception to Rule 404(b). Defreitas alone opposes the government's motion.*fn1 For the reasons set forth below, the motion is granted in part with decision reserved in part as to Defreitas, and granted in part and denied in part as to Nur.
The government describes its proffered evidence with respect to Defreitas as:
[A]udio and video recordings of statements made by Defreitas to government witnesses and coconspirators [wherein he] discusses . . . international travel under false names, welfare fraud, building and detonating explosives in Guyana and stealing cargo from [JFK] . . . as well as additional ideas for criminal activity, including obtaining firearms from a foreign country and attacking targets in the vicinity of JFK Airport, such as a nearby Jewish school or neighborhood. (Gov't Mot. at 1.) The government additionally proffers evidence that Defreitas "made efforts to secure false travel documents to assist [a] coconspirator in traveling illegally to the United States," as well as statements in which Defreitas "informed the coconspirator that he had helped illegal aliens enter the United States before." (Id. at 2.) As against Nur, the government moves to introduce recordings of conversations between several of his alleged coconspirators relating to Nur's arrest "in Guyana in February 2007 for allegedly engaging in sexual assault. The conspirators discussed the arrest, its effect on the conspiracy and Nur's involvement therein." (Id.)
The government moves to admit the above evidence under two theories.*fn2 First, it contends that it is admissible as direct evidence of the charged conspiracies, making Rule 404(b) inapplicable. (See Gov't Mot. at 2.) Specifically, the government contends that Defreitas' recorded conversations are "direct evidence of conspiratorial intent," and serve to "explain the actions and tactics of the plotters." (Id. at 3.) Defreitas counters that "the proffered evidence . . . are tangential issues, easily excised, which, at best, would improperly shift a jury's focus from the material issues in the case." (Resp. at 1.) Furthermore, he contends that the recorded statements were "merely boastful puffing," which were "never meant to be taken seriously." (Id. at 2.)
Assuming, arguendo, that the above evidence does fall within the scope of Rule 404(b), the government argues in the alternative that all of it is admissible under established exceptions to that rule. (Id. at 5--8.) Specifically, the government contends that it is offering the evidence in order to show defendants' preparations, plans, knowledge, and motives, and not their criminal propensity. Defreitas rejects these contentions, and further argues that even if the evidence in question is being offered for a proper purpose, its probative value is substantially outweighed by the risk of unfair prejudice. (Resp. at 4.)
Rule 404(b), which governs the admissibility of evidence concerning a 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 . . . 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 States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (emphasis added) (citation and internal quotation marks omitted); see also United States v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992). "[W]here it is not manifestly clear that the evidence in question is intrinsic proof of the charged crime, the proper course is to proceed under Rule 404(b)." United States v. Nektalov, 325 F. Supp. 2d 367, 372 (S.D.N.Y. 2004).
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 a defendant's criminal propensity. United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002) (internal quotation marks omitted). The relevant standard was set forth in United States v. Edwards, which held that evidence of other bad 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." 342 F.3d 168, 176 (2d Cir. 2003) (citations omitted). A non-exhaustive list of "proper purposes" is set forth in Rule 404(b) itself, as quoted above.
Regarding the second inquiry, the inclusionary approach "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 ...