The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
Defendant Rafael Casimiro ("Casimiro") was charged in a one-count superseding indictment with conspiring with others to distribute and to possess with the intent to distribute 500 grams and more of mixtures and substances containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B), and 846. Pending before us is the Government's motion in limine, in which the Government seeks to admit certain evidence at trial either as direct evidence of Casimiro's guilt or as evidence of Casimiro's knowledge and intent under Rule 404(b) of the Federal Rules of Evidence ("Rules").
For the reasons stated herein, we grant the Government's motion in part.
On June 27, 2011, the Government filed a motion in limine to admit four categories of evidence: (1) evidence that Casimiro engaged in cocaine transactions with a cooperating witness ("CW") on multiple occasions from 2005 through 2009; (2) evidence that Casimiro engaged in small-quantity marijuana transactions with CW on multiple occasions from 2003 through 2009; (3) evidence that Casimiro purchased a small quantity of steroids from CW on two occasions in or about 2005; and (4) evidence that in 2005 or 2006, Casimiro showed CW a hidden compartment in his car used to store narcotics.
On July 5, 2011, defense counsel submitted a letter brief in opposition to the Government's motion. Thereafter, the Court scheduled oral argument to address the issues raised in the parties' submissions. The central purpose of the oral argument, which was held on July 7, 2011, was to ascertain the nature of Casimiro's defense because the admissibility of the above-mentioned categories of evidence turns, in part, on the nature of the defense.
At oral argument, defense counsel clarified that Casmiro's defense would focus on attacking the credibility of the Government's witnesses, including the credibility of CW. Defense counsel also made clear that Casimiro would not deny that he was present the location of the narcotics transaction that was charged in the superseding indictment.
Following the oral argument, the Government submitted a supplemental letter submission further addressing the issues raised earlier in the day and the defense responded thereto.
It is well-settled that other act evidence may be admitted under Rule 404(b) if: (1) evidence is offered for a proper purpose, namely, a purpose other than to prove the defendant's bad character or criminal propensity; (2) the evidence is relevant to an issue in the case; and (3) the evidence satisfies the probative-prejudice balancing test of Rule 403. See United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993) United States v. Colon, 880 F.2d 650, 656 (2d Cir. 1989). "[I]f requested to do so, the court must give an appropriate limiting instruction to the jury." Colon, 880 F.2d at 656.
It is clear that other act evidence is offered for a proper purpose if introduced to show a defendant's knowledge or intent. See Fed. R. Evid. 404(b) ("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 . . .); see also Colon, 880 F.2d at 656 ("Examples of such proper purposes include those listed specifically in Rule 404(b), among these being intent.").
It is likewise clear that the assertion of a "mere presence" defense opens the door to other act evidence because such a defense makes the defendant's knowledge and intent central issues in the case. See, e.g., United States v. Gadsden, 300 F. App'x 108, 110 (2d Cir. 2008) ("Testimony about prior drug sales may be used to establish 'knowledge' and 'intent' where the defendant repeatedly raises a 'mere presence' defense, as that defense fails to make a "statement to the court of sufficient clarity to indicate that the issue[s] [of knowledge or intent] will not be disputed.") (quoting Colon, 880 F.2d at 659); United States v. Aminy, 15 F.3d 258, 260 (2d Cir. 1994) ("Where, for example, the defendant does not deny that he was present during a narcotics transaction but simply denies wrongdoing, evidence of other arguably similar narcotics involvement may, in appropriate circumstances, be admitted to show knowledge or intent."); United States v. Bruno, 873 F.2d 555, 561-62 (2d Cir. 1989) ("The government was entitled to prove Bruno's intent pursuant to Fed. R. Evid. 404(b) because he had placed his intent in issue by claiming that he was 'merely present' during the drug transaction."). Here, Casimiro does not challenge his presence at the scene of the drug transaction nor has defense counsel stipulated or otherwise stated with sufficient clarity that Casimiro's intent will not be an issue at trial. Colon, 880 F.2d at 656-59. Accordingly, evidence of similar narcotics transactions may be used to challenge Casimiro's defense that there is an innocent explanation for his presence at the scene.
More importantly, this conclusion is not altered by defense counsel's assertion that Casimiro's defense will be grounded in attacking the credibility of the Government's witnesses. As the Second Circuit squarely held in United States v. Tarricone, such a defense does not remove the issue of knowledge or intent from the case. 996 F.2d 1414, 1422 (2d Cir. 1993). Specifically, as the Second Circuit reasoned:
We find no abuse of discretion in the district court's decision to admit the testimony. A statement to the jury that the government's witnesses will be shown to be untruthful is simply not a sufficient commitment that the defendant removes the issue of knowledge or intent from the case. We emphatically disagree with [defendant's] theory that a defense depending exclusively on attacking the credibility of the government's witnesses is the functional equivalent of a defense that the defendant did not commit the charged acts. An attack on the credibility of the government's witnesses is essentially a claim that the government has not met its burden ...