The opinion of the court was delivered by: John F. Keenan, United States District Judge
Before the Court are requests by both parties for pre-trial rulings with respect to various types of evidence sought to be introduced at trial. For the reasons that follow, the Government's motion is granted in part. The Court will reserve judgment on Defendant's motion at the present time.
In a single count superseding indictment dated February 19, 2010, Defendant Harold Lopez ("Lopez" or "Defendant") is charged with conspiracy to distribute one kilogram and more of heroin and 500 grams and more of cocaine from in or about September 2008 until August 2009. At trial scheduled to begin on October 4, 2010, the Government hopes to prove that Lopez participated in a distribution cell for an international heroin trafficking organization based in Colombia and Ecuador, whereby Lopez's group received shipments of heroin which it sold, along with powder cocaine, in the United States. The cell then transferred the narcotics proceeds to Ecuador using wire transfers and money couriers.
The Government seeks to introduce either as direct proof of the narcotics conspiracy or pursuant to Rule 404(b) of the Federal Rules of Evidence: (1) testimony from cooperating witnesses (co-defendants in the charged conspiracy) who participated in Ecuadorean heroin deals with Lopez prior to the timeframe charged in the superseding indictment; and (2) three prior narcotics arrests and other trafficking activities that occurred before 2008. In conjunction with these prior arrests, the Government moves to preclude Lopez from introducing the fact that two of the narcotics charges were ultimately dismissed. Finally, the Government seeks to offer statements of co-conspirators pursuant to Rule 801(d)(2)(E). Lopez opposes the motion in its entirety, and by letter dated July 15, 2010, moves to preclude the Government from cross-examining him about two convictions from 1993 should he decide to testify in his own defense.
Evidence of an uncharged crime is not considered "other act" evidence if it: (1) "arose out of the same transaction or series of transactions as the charged offense"; (2) "is inextricably intertwined with the evidence regarding the charged offense"; or (3) "is necessary to complete the story of the crime on trial." United States v. Gonzalez, 110 F.3d 936, 942 (2d Cir. 1997) (internal quotations and alterations omitted); see United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (evidence of uncharged falsification of business inventory admitted to prove charged crime of making false statements to obtain a line of credit); United States v. Christie, No. 08 Cr. 1244, 2010 WL 286617, at *1 (S.D.N.Y. Jan. 14, 2010) (admitting as direct evidence of narcotics conspiracy testimony that defendant and cooperating witness imported cocaine, hashish, and marijuana into the United States prior to timeframe charged in the indictment). This evidence may be admitted without regard to Rule 404(b) of the Federal Rules of Evidence and its attendant notice requirements and limiting instructions. See United States v. Brand, No. 04 Cr. 194, 2005 WL 77055, at *3 (S.D.N.Y. Jan. 12, 2005).
However, "where 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). Rule 404(b) provides 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 "follow[s] an inclusionary rule, allowing the admission of such evidence for any purpose other than to show a defendant's criminal propensity, as long as the evidence is relevant and satisfies the probative-prejudice balancing test of Rule 403 of the Federal Rules of Evidence." United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994); see United States v. Brand, 467 F.3d 179, 196 (2d Cir. 2006); United States v. LaFlam, 369 F.3d 153, 156 (2d Cir. 2004).
In conspiracy cases, "other acts" evidence may be admitted under Rule 404(b) "to inform the jury of the background of the conspiracy charged, to complete the story of the crimes charged, and to help explain to the jury how the illegal relationship between the participants in the crime developed." United States v. Williams, 205 F.3d 23, 33-34 (2d Cir. 2000). The prior bad acts may be of the same nature as the charged crime, such that the issue of relevance as background evidence is more clear cut. See United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992) (affirming admission under Rule 404(b) of testimony of two co-conspirators regarding previous heroin transactions between them and the defendant in order to elucidate the background of the charged narcotics conspiracy and the relationship among the conspirators); United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (affirming admission of Rule 404(b) evidence of prior cocaine transactions between co-conspirator and defendant where testimony about their pre-existing relationship "furthered the jury's understanding of how the instant transaction came about and their role in it"). However, the Court of Appeals has also upheld the introduction of evidence of prior bad acts dissimilar to the charged conduct, where the evidence would nevertheless establish "the development of the relationship" and "the basis for the trust" between co-conspirators. United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009) (affirming admission of 404(b) evidence of prior gun sales between defendant and co-conspirator to provide background for crack cocaine conspiracy alleged in the indictment); see Williams, 205 F.3d at 33 (affirming admission under Rule 404(b) of evidence of defendant's participation with two co-conspirators in a marijuana deal, credit card fraud, and filing false assault charges as relevant background information for subsequent cocaine conspiracy charges); United States v. Pascarella, 84 F.3d 61, 73 (2d Cir. 1996) ("[F]or prior bad act evidence to be admissible, the act need not be sufficiently similar that it approaches near identity with the elements of the offense charged. . . . In contrast, evidence of wholly different acts has been held admissible to show the background of a conspiracy or the development of a relationship of trust between the participants." (internal quotations and citations omitted)).. Finally, even if prior bad act evidence may provide relevant background, it may be excluded where "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Fed. R. Evid. 403.
A. Cooperating Witness Testimony
Although the superseding indictment covers conduct from September 2008 until August 2009, the Government alleges that the charged conspiracy originated with uncharged heroin trafficking activity that took place as early as 2005. To that end, the Government proffers the testimony of three cooperating witnesses ("CW-1," "CW-2," and "CW-3") who participated in the distribution of Ecuadorean heroin and laundering of narcotics proceeds with Defendant prior to September 2008. Specifically, CW-1 and CW-2 would testify that they supplied Defendant with Ecuadorean heroin from 2005 to 2006 at his residence at 32 Varet Street in Brooklyn. CW-3 would testify that he or she assisted Defendant in processing and packaging heroin from about 2005 or 2006 until Defendant's arrest in April 2009 first at CW-3's residence in Brooklyn, and later at 92-14 88 Avenue in Queens. Both CW-2 and CW-3 would testify that they accompanied Lopez in picking up shipments of Ecuadorean heroin. Finally, CW-2 would testify that he and Lopez were stopped on October 1, 2008 while driving in a car equipped with hidden compartments or "traps."
Defense counsel requests that the Court postpone its ruling on the admissibility of the cooperating witnesses' testimony until the Government provides 3500 material. However, the Government's proffer in its reply brief sufficiently details the cooperating witnesses' testimony such that no delay is necessary. Defendant's anticipated defense is that he did not participate in a conspiracy. Thus, the testimony of the cooperating witnesses (Defendant's alleged co-conspirators in this case) that they engaged in the importation and distribution of Ecuadorean heroin with Defendant prior to and beyond 2008 is admissible as evidence that corroborates the existence of the instant conspiracy and the identity of its members. See United States v. Romero-Padilla, 583 F.3d 126, 130 (2d Cir. 2009) (per curiam) (although evidence of defendant's previous plans with a co-conspirator to import narcotics into the United States through Mexico and the Dominican Republic "did not concern the charged conspiracy, it was relevant background evidence inasmuch as it corroborated the charge that [the co-conspirator] and [defendant] were partners during the charged conspiracy" such that Rule 404(b) did not apply); United States v. Canales, No. 09 Cr. 976, 2010 WL 2505578, at *1 (S.D.N.Y. June 7, 2010) (in case involving conspiracy to throw away non-waste mail, "testimony regarding prior instances of mishandling of the mail is sufficiently intertwined with evidence regarding the charged offense to be probative of the existence of the conspiracy, including the relationship, if any, between [defendant] and her alleged co-conspirators"). The ...