The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
On January 14, 2011, the Government filed a motion in limine seeking to admit evidence of uncharged criminal conduct at the guilt phase of the upcoming trial of Defendant Vincent Basciano ("Basciano"). (See Motion in Limine (Docket Entry # 1023) ("Gov't Motion").) The Government's motion is granted. However, in light of facts that came to light at a February 3, 2011 hearing held to resolve issues raised by the Government's motion, the court reconsiders its January 12, 2011 order on the Government's previous motion to admit uncharged criminal conduct. (See Order on Motion in Limine (Docket Entry # 1019) ("January 12 Order").) Familiarity with the January 12 Order is assumed. The court has determined that, contrary to its prior order, the Government will not be permitted to admit evidence regarding Basciano's alleged solicitation of the murder of Assistant United States Attorney Greg Andres.
A. The Government's First Motion to Admit Uncharged Acts Evidence
On January 12, 2011, the court issued an order granting in part and denying in part the Government's first motion in limine to admit, under Federal Rule of Evidence 404(b) and otherwise, evidence of prior criminal acts committed by Basciano. (See January 12 Order.) At the time of the January 12 Order, the operative indictment was the ninth superseding indictment. (See "S-9 Indictment" (Docket Entry # 464).) The S-9 Indictment charged Basciano with conspiring to murder Randolph Pizzolo in aid of racketeering between November 1 and November 30, 2004 (id. ¶¶ 52-54); murdering Pizzolo in aid of racketeering on November 30, 2004 (id. ¶¶ 55-56); a related weapons charge (id. ¶ 57); and conspiring to murder Patrick DeFilippo in aid of racketeering, between August 2003 and November 19, 2004 (id. ¶¶ 63-64). November 19, 2004 is the date on which Basciano was arrested on previous charges; he was in jail from that date until, and beyond, the time of Pizzolo's murder. (Id. ¶¶ 13, 15-23.)
Among the prior criminal acts the court held admissible in its prior order was Basciano's alleged solicitation of the murder of Assistant United States Attorney Greg Andres. (January 12 Order at 13-15.) In particular, the Government sought to admit evidence that Basciano met with Bonanno crime family boss Joseph Massino on November 23, 2004 -- after Basciano's arrest -- and asked Massino for permission to kill Andres; that Massino, in a subsequent, January 3, 2005 conversation, told Basciano not to go forward with his plan to kill Andres; and that, in a third conversation on January 7, 2005, Basciano told Massino that no one else knew of his request to kill Andres. (Id. at 13.) In addition, the Government sought to introduce the testimony of cooperating witness Generoso Barbieri, who would testify that, while he and Basciano were incarcerated together, Basciano told Barbieri that he knew where to find Andres and had a crew of capable enforcers at the ready. (Id.)
The court held that the Andres evidence was admissible as direct evidence of Basciano's role in the Bonanno organized crime family. (Id. at 13-15.) The court reached this conclusion, despite the potential for prejudice, because it found the Andres evidence to be the only other acts evidence the Government sought to admit that demonstrated that Basciano "held a position in the Bonanno family that, Basciano believed, entitled him to order murders outside the prison, and that involved asking Massino to approve of such murders." (Id. at 13-14.) In so ruling, the court assumed, based upon the language in the indictment, that the Government intended to present evidence at trial that Basciano participated in the charged crimes -- the conspiracy to murder, and the murder of, Randolph Pizzolo, in aid of racketeering, and the weapons charge -- in part after the time of his arrest and detention.
On January 13, 2011, the Government filed an eleventh superseding indictment, which is now operative. (See "S-11 Indictment" (Docket Entry # 1024).) The S-11 Indictment includes no charge relating to the alleged conspiracy to murder DeFilippo. However, the Government now seeks to admit evidence of the DeFilippo conspiracy because such evidence, the Government argues, demonstrates Basciano's position in the Bonanno crime family, as well as his motive, "at or about the time" of the charged Pizzolo murder. (See Gov't Motion at 5-6.)
In support of its argument, the Government refers to the transcript of a recorded January 3, 2005 conversation between Basciano and Massino. (Id. at 4-5.) According to this transcript, Massino told Basciano he knew Basciano thought DeFilippo "was gonna become a rat" and that Basciano therefore "now" wanted to "clip" DeFilippo, presumably meaning kill him. (Id. at 4.) Massino then told Basciano that he, Massino, would not allow this, saying, "I need facts, not opinions." (Id.) In response, Basciano said that DeFilippo "is a problem to you and me because he's gonna rally around and we gonna have a problem." (Id. at 5.) The Government describes this January 3, 2005 exchange as "the DeFilippo murder solicitation." (Id.)
On February 3, 2011, the court held a hearing in order to resolve two issues relevant to its decision as to the Andres and DeFilippo evidence: (1) whether or not the Government plans to offer evidence at trial that Basciano took action with relation to the Pizzolo murder after his November 19, 2004 arrest; and (2) whether the DeFilippo evidence and the Andres evidence are cumulative, such that the more prejudicial Andres evidence would no longer properly be admissible.
At the hearing, the Government made clear that it did not expect to offer any direct evidence that Basciano, after his arrest, was actively involved in the Pizzolo murder. Instead, the Government stated that it expected to prove, based on the testimony of Generoso Barbieri, who had been in jail with Basciano, that Basciano "continued to stay abreast of the progress of the conspiracy," in particular by checking the newspaper every day for news of Pizzolo's murder. (Hearing Tr. at 5-6.) In addition, according to the Government, after Pizzolo was killed, Dominick Cicale sent a note to Basciano to tell him the murder had been carried out. (Id. at 6.) As discussed in the court's previous order, the Government alleges that Basciano had tasked Cicale with carrying out the charged Pizzolo murder, along with several other murders Basciano planned. (January 12 Order at 11-12.)
The court asked whether there was evidence of any more "proactive" post-arrest involvement on Basciano's part. In response, the Government stated that Barbieri would testify that Basciano only started to check the papers for news of Pizzolo's killing after Basciano had had a meeting in prison, with someone whose identity the Government was not aware of. (Hearing Tr. at 6-7.) The Government stated that it also planned to offer Cicale's testimony that, after Basciano's arrest, Michael Mancuso "reaffirmed" the order to kill Pizzolo. (Id. at 7.) From these pieces of evidence, the Government argued, the jury could infer that Basciano, presumably during the meeting with the unidentified individual, relayed a message to Mancuso indicating that the Pizzolo murder should go forward. (Id. at 7-8, 10-11.) However, the Government acknowledged, "we don't have specific evidence that Mr. Basciano gave a specific order." (Id. at 7.) Moreover, the Government, when asked by the court whether it believed Basciano's pre-arrest involvement in the Pizzolo murder plot was sufficient to convict, responded affirmatively. (Id. at 16.)
As to the plot to kill DeFilippo, the Government averred that it began in August 2003, and was motivated by Basciano's belief that DeFilippo had decided to cooperate with the Government. (Id. at 3, 8.) The plot allegedly involved Basciano, prior to his arrest, sending notes, through a lawyer, to Massino, while Massino was incarcerated. (Id. at 3, 8-9.) The recorded January 2005 conversation, in which Massino referred to Basciano's desire to "clip" DeFilippo, referred back to these communications. (Id. at 3-4.) Furthermore, the Government stated that it expected Cicale to testify that Basciano, prior to his arrest, solicited Cicale's involvement in the DeFilippo murder. (Id. at 4, 8.) The Government argued that the DeFilippo evidence was admissible since it demonstrated Basciano's effort, prior to his arrest, to "consolidate his power" as acting boss of the family by eliminating rivals. (Id. at 9-10.) Furthermore, the DeFilippo evidence -- in particular, evidence of the notes ...