The opinion of the court was delivered by: Seybert, District Judge:
Pending before the Court is the Government's motion in limine to admit evidence of evidence of the Defendant Christian Tarantino's prior crimes and other bad acts in its case-in-chief. For the reasons that follow, that motion is GRANTED IN PART AND DENIED IN PART. Also pending is the Defendant's request to preclude testimony from the Government's handwriting and ballistics experts. That motion is DENIED.
A short summary of the facts is sufficient to ground the discussion that follows. For a more detailed factual background, see the Court's March 4, 2011 Order. Briefly, the Defendant is charged with participating in three murders. Count One of the Indictment alleges that he and others participating in a 1994 armored car robbery. During the robbery, Louis Dorval, one of the Defendant's co-conspirators, shot and killed an armed guard. Count Two charges the Defendant with the obstruction-of-justice murder of Dorval. Counts Three and Four, respectively, charge him with the obstruction-of-justice murder and conspiring to commit the obstruction-of-justice murder of Vincent Gargiulo, the Defendant's former business partner and one-time criminal co-conspirator.
In prosecuting this case, the Government has relied heavily on a cooperating witness and on an audiotape that the Government maintains contains a secretly-recorded conversation between the Defendant and Gargiulo (the "Gargiulo Tape"). The cooperating witness, Gaetano "Guy" Fatato, was a criminal associate of both Dorval and Tarantino, and the Government anticipates that he will testify to two key points: first, that Dorval admitted to Fatato that Dorval and Tarantino participated in the armored car robbery and second, that when he (Fatato) asked Tarantino about his involvement in the robbery, Tarantino became angry at Dorval for discussing the heist outside the group of robbers. The Gargiulo Tape also implicates Tarantino in the armored car robbery and the Dorval murder because, according to the Government, he can be heard discussing details of both crimes.
The Court first addresses the Government's motion to admit evidence of the Defendant's prior bad acts and then considers the Defendant's motion to preclude certain expert testimony.
I. Uncharged Crimes and Prior Bad Acts
The Government contends that evidence that evidence of the Defendant's prior crimes and bad acts is admissible as direct evidence or background evidence of the crimes charged in the Indictment, and/or as "other crimes and acts" evidence admissible under Federal Rule of Evidence 404(b) ("Rule 404(b)"). Specifically, the Government seeks to introduce evidence that: (1) in 1989, Tarantino and Gargiulo trafficked in stolen fur coats and that Tarantino was convicted in 1991 in connection with that crime; (2) in December 1993, Tarantino and Dorval stole over 200 leather and fur coats from a Filene's Basement and that Dorval was indicted in connection with attempts to fence these coats just days before his murder; (3) in 1993 and 1994, Tarantino, Dorval and others committed a number of robberies and drug deals; (4) in July 2000, the defendant was in prison on a state charge arising out of an attempted robbery of an undercover narcotics officer; and (5) in mid 1999 through early 2000, Tarantino helped an associate distribute the date-rape drug GHB. (Gov. Mot. at 1-2.) The evidence in each of these categories is addressed below.
The Government argues that most of the evidence
described in its motion is direct or background evidence that may be admitted without reference to Rule 404(b). It maintains, however, that all of the evidence described in its motion is nevertheless admissible as Rule 404(b) "other crimes" evidence. The Court addresses the legal standard for each theory in turn.
1. Direct or Background Evidence
Evidence of an uncharged crime or prior bad act is direct or background evidence--admissible apart from Rule 404(b)--of the charged crimes when the uncharged conduct "arose out of the same transaction or series of transactions of the charged offense, if it [is] inextricably intertwined with the evidence regarding the charged offense, or it is necessary to complete the story of the crime [on] trial." United States v. Towne, 870 F.2d 880, 886 (2d Cir. 1989) (quotations omitted); see also United States v. Gonzales, 110 F.3d 936, 942 (2d Cir. 1997). To be admissible on this ground, the evidence need not directly establish an element of a charged crime as long as it provides background for the events charged in the Indictment. See United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir. 1991); see also United States v. Gonzalez, 110 F.3d 936, 941 (2d Cir. 1997); United States v. Samet, 200 F. App'x 15, 21 (2d Cir. 2006) (summary order). Where the witnesses participated in the criminal acts about which they testify, this "background evidence" may include facts that the Government elicits to avoid the appearance that it was hiding impeachment evidence from the jury. Coonan, 938 F.2d at 1561 (2d Cir. 1991).
2. Federal Rule of Evidence 404(b)
Rule 404(b) provides in relevant part:
Other Crimes, Wrongs, or Acts.--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). Under this rule, courts should admit other crimes evidence that is offered for a proper purpose and relevant, and whose probative value is not substantially outweighed by its potential to prejudice the defendant.
Huddleston v. United States, 485 U.S. 681, 691-92 (1988); United States v. Di Geronimo, 598 F.2d 746, 753 (2d Cir. 1979). "In addition, . . . at the defendant's request, the district court should give the jury an appropriate limiting instruction." United States v. Downing, 297 F. 3d 52, 58 (2d Cir. 2002). Rule 404(b)'s list of proper purposes is non-exhaustive. Courts should apply an inclusionary approach to "other acts" evidence and admit evidence of uncharged crimes or prior bad acts, subject to Rule 403 balancing, in all situations where the evidence is offered "for any purpose other than to show a defendant's criminal propensity." United States v. Jaswal, 47 F.3d 539, 544 (2d Cir. 1995). Among the long list of purposes for which "other acts" evidence has been admitted is "to help explain how [an] illegal relationship between participants in [a] crime developed, or to explain the mutual trust that existed between coconspirators." United States v. Rosa, 11 F.3d 315, 334 (2d Cir. 1993); Unites States v. Pitre, 960 ...