UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
June 24, 2010
UNITED STATES OF AMERICA,
RUSSELL DEFREITAS, ALSO KNOWN AS "MOHAMMED," ABDUL KADIR, ALSO KNOWN AS "AUBREY MICHAEL SEAFORTH," AND ABDEL NUR, ALSO KNOWN AS "COMPTON EVERSLEY," DEFENDANTS.
The opinion of the court was delivered by: Dora L. Irizarry United States District Judge
DORA L. IRIZARRY, United States District Judge
By Memorandum & Order dated June 3, 2010, the court reserved decision as to a portion of the government's motion to admit certain evidence against defendant Russell Defreitas pursuant to Federal Rule of Evidence 404(b). See United States v. Defreitas, 2010 WL 2292194, at *3 (E.D.N.Y. June 3, 2010). Specifically, the court held that it could not evaluate the parties' respective arguments without transcripts of the relevant conversations. See id. Both parties subsequently submitted, for the court's review, the transcript of the conversation containing Defreitas' statements about a possible attack on a Jewish school.*fn1 Defreitas stated that he opposed the introduction of only the latter portion of this conversation.*fn2
As an initial matter, having reviewed the disputed portion of this transcript, the court concludes that it is not manifestly clear that the evidence contained therein is "intrinsic proof of the charged crime," and accordingly proceeds with a Rule 404(b) analysis. See United States v. Nektalov, 325 F. Supp. 2d 367, 372 (S.D.N.Y. 2004). Under this analysis, the government has demonstrated both a proper purpose for the proffered evidence, and its relevance to a disputed trial issue. However, after carefully reviewing the disputed portion of the transcript in question, the court concludes that the risk of undue prejudice substantially outweighs its limited probative value. See FED. R. EVID. 403. Regarding the latter, Defreitas' motive, preparation, and plan for attacking JFK may all be demonstrated through other admissible evidence. The risk of undue prejudice, in contrast, is high; evidence of Defreitas' feelings of animus towards those of the Jewish faith, and discussions concerning a possible attack on a Jewish school, present a strong possibility of "unduly inflame[ing] the passion of the jury, confus[ing] the issues before the jury, [and] inappropriately lead[ing] the jury to convict on the basis of conduct not at issue in the trial." United States v. Quattrone, 441 F.3d 153, 186 (2d Cir. 2006). Accordingly, the government's motion to admit certain evidence is DENIED as to the portion of the conversation contained between 00:31:22 and 00:33:00 of the transcript.