The opinion of the court was delivered by: Matsumoto, United States District Judge:
Defendants Christopher Barret, Kareem Forrest, Ryan Anderson, Kerry Gunter, Charles Jones, Latoya Manning, Leon Scarlett and Omar Mitchell (collectively, "defendants") are charged with various narcotics trafficking crimes in a third superseding indictment (the "Superseding Indictment") filed on November 23, 2011. (See generally ECF No. 304, Superseding Indictment ("S-3").) Pending before the court are the parties' motions in limine and renewals of certain motions previously denied by the court. For the reasons set forth below, the court grants in part and denies in part the government's motions in limine; denies Barret's renewed motion to strike his aliases from the Superseding Indictment; and denies Anderson, Jones and Scarlett's renewed motions for severance.
I.The Charges Against Defendants
Count One of the Superseding Indictment charges Barret with knowingly
and intentionally engaging in a continuing criminal enterprise in
violation of 21 U.S.C. §§ 848(a) and (c)*fn2 and 18 U.S.C. § 3551 et seq.*fn3 (S-3 ¶¶ 1--21.) Count
Two charges all defendants with conspiracy to distribute marijuana in
violation of 21 U.S.C. §§ 841(b)(1)(A)(vii)*fn4 and
846,*fn5 and 18 U.S.C. § 3551 et seq. (Id. ¶ 22.)
Counts Three and Four charge Barret and Manning with maintaining and
conspiring to maintain a stash house in violation of 21 U.S.C. §§ 846
and 856(a)-(b),*fn6 and
18 U.S.C. § 3551 et seq. (Id. ¶¶ 23--24.) Count Five charges Barret,
Forrest, Anderson, Gunter, Jones, Manning and Scarlett with
distributing or possessing with intent to distribute marijuana in
violation of 21 U.S.C. §§ 841(a)(1)*fn7 and
841(b)(1)(A)(vii), and 18 U.S.C. §§ 2*fn8 and 3551 et
seq. (Id. ¶
25.) Count Six charges Barret, Forrest, Anderson, Gunter, Jones,
Scarlett and Mitchell with possessing, brandishing and discharging a
firearm in relation to drug trafficking crimes in violation of 18
U.S.C. §§ 924(c)(1)(A)(i),*fn9 924(c)(1)(A)(ii),
924(c)(1)(A)(iii), 2 and 3551 et seq. (Id. ¶ 26.) The Superseding
Indictment also contains criminal forfeiture allegations pursuant to
21 U.S.C. §§ 853(a), (p);*fn10 18 U.S.C. §
924(d);*fn11 and 28 U.S.C. § 2461(c).*fn12
(Id. ¶¶ 27--30.)
lessee . . . or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance."
The instant charges arise from defendants' alleged activities in connection with a Jamaican gang known as the "Fatherless Crew," of which Barret is allegedly the leader, or "Don." (See ECF No. 339, Affidavit of Joelle Ando in Support of Motion for Anonymous and Partially Sequestered Jury ("Ando Aff.") ¶ 3.) According to the government, the "Fatherless Crew" has a structured hierarchy; beneath the "Don," there are many armed enforcers or soldiers, including Barret's co-defendants. (Id. ¶ 5.) Together, "Fatherless Crew" members allegedly "generate revenue through a variety of criminal endeavors--particularly narcotics trafficking[,] and routinely use firearms, violence and intimidation to preserve and expand their power." (Id.)
The government asserts that the "Fatherless Crew" has nearly one hundred members in the United States, Jamaica, Canada and the United Kingdom, and more than a dozen members of the "Fatherless Crew" remain at large in the United States. (Id. ¶ 4.) Barret allegedly recruited at least fifteen crew members to illegally enter the United States from Jamaica and carry out acts of violence in furtherance of his narcotics operation in Queens. (Id. ¶ 6.) The government also claims that even after leaving Jamaica, Barret continued to direct the criminal activities of the 'Fatherless Crew' in Jamaica. (Id.) Specifically, Barret allegedly used proceeds from his Queens-based narcotics enterprise to finance ongoing operations of the 'Fatherless Crew' in Jamaica, and he smuggled weapons used by his United States-based enforcers into Jamaica for his crew members' use and to ensure that the guns would not be traced to crimes committed in the United States. (Id. ¶¶ 6-7.)
The government's affidavit in support of its motions in limine is unclear as to whether Barret continued to control the "Fatherless Crew" in Jamaica following his arrest on October 7, 2010. (Id.) The affidavit demonstrates, however, that Barret and members of the "Fatherless Crew" who remain at large in the United States threatened potential government witnesses in the weeks and months following Barret's arrest. (Id. at ¶¶ 9-14.)
The following is a summary of the pending motions, each of which the court will discuss in turn.
The government moves: (1) to admit as direct evidence of the charged crimes (a) certain acts allegedly committed by the defendants in furtherance of the conspiracy and
(b) Forrest's 2007 marijuana conviction; or in the alternative to admit such evidence pursuant to Federal Rule of Evidence 404(b); (2) to admit, pursuant to Federal Rule of Evidence 404(b), evidence relating to (a) defendants' membership in the "Fatherless Crew" in Jamaica prior to moving to the United States, (b) Barret and Scarlett's incarceration together with an individual named Clifton Williams in the General Penitentiary in Jamaica, (c) Barret's 2003 attempt to shoot a rival drug dealer, which resulted in the death of an innocent bystander, and (d) defendants' prior convictions for marijuana and firearms crimes, discussed in greater detail infra in Section III.B.3; (3) for leave pursuant to Federal Rule of Evidence 609 to cross-examine any defendants who elect to testify regarding their criminal convictions; and (4) for empanelment of an anonymous and partially sequestered jury. (See ECF No. 299, Government's Motions in Limine ("Gov't Mem.").)
Barret renews his motion to strike from the Superseding Indictment references to his aliases, which the court initially addressed and denied in its November 16, 2011 ruling.*fn13 (See ECF No. 321, Letter Brief in Opposition by Barret ("Barret's Second Opp'n") at 1.)*fn14
Anderson, Jones and Scarlett renew their motions for severance. (See ECF No. 317, Memorandum of Law in Opposition by Leon Scarlett ("Scarlett Opp'n") at 21-22; ECF No. 300, Motion in Limine by Ryan Anderson ("Anderson Mem.") at 5-6; ECF No. 322, Letter Brief in Opposition by Charles Jones ("Jones Opp'n") at 1.)
The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. Luce v. United States, 469 U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (same); Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Grp., 937 F. Supp. 276, 283 (S.D.N.Y. 1996) (same). "Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds." United States v. Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001). Indeed, courts considering a motion in limine may reserve decision until trial, so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co., 937 F. Supp. at 287. Further, the court's ruling regarding a motion in limine is "subject to change when the case unfolds, particularly if the actual testimony differs from what was [expected]." Luce, 469 U.S. at 41.
II.Admissibility of Proffered Evidence as Direct Evidence of Charged Crimes
The government seeks to introduce as direct proof of the charged crimes evidence of: (1) Forrest's 2007 conviction for possession of marijuana; (2) the 2009 attempted murder of a drug dealing rival by two of Barret's soldiers at his behest, in which both the rival and the rival's driver were shot; (3) Barret's alleged issuance of a contract to murder Marlon Jones, his former drug trafficking partner, in retaliation for a perceived theft in 2009; (4) numerous other acts of violence that the defendants allegedly bragged about to co-conspirators to "enhance their stature within the narcotics organization"; and (5) various examples of criminal activity committed by defendants and their associates that related to and occurred during the charged conspiracy, as detailed below in Section
II.B.5. (Gov't Mem. at 9-21.)
The government argues that because these violent acts were "part and parcel to the narcotics conspiracy and continuing criminal enterprise charged," they are "highly probative of the existence of the conspiracy [and] the lengths that defendants would go to defend the drug trafficking operation." (Id. at 17.) In particular, the government contends that narcotics-related shootings that occurred during the timeframe of the charged conspiracy demonstrate "instances of the defendants brandishing and discharging firearms in furtherance of the operation of a narcotics trafficking conspiracy--the exact charge that is contained in Count Six of the superseding indictment." (ECF No. 336, Reply to Government's Motion in Limine ("Gov't Reply") at 34.) In addition, the government argues that the proffered evidence is relevant as direct evidence of Barret's leadership of the continuing criminal enterprise, defendants' participation in the conspiracy and their respective roles in the enterprise. (See id. at 36-38.)
Moreover, the government contends, the probative-prejudice balancing analysis required by Federal Rule of Evidence 403 favors admission of the evidence because the probative value of the uncharged crimes is great, particularly with respect to evidence of the defendants' involvement in drug-related shootings. (Gov't Mem. at 20.) In addition, because defendants are charged with discharging firearms in furtherance of drug trafficking, the "government must be allowed to provide evidence proving that the defendants took exactly those actions." (Id.) The government further argues that the proposed evidence is not substantially outweighed by the danger of unfair prejudice to the defendants because the evidence does not involve conduct that is any more sensational or disturbing than the crimes charged. (Id. at 19.) Finally, in the event that the court finds any of the aforementioned evidence inadmissible as direct evidence, the government moves to admit such evidence as "other act" evidence pursuant to Federal Rule of Evidence 404(b). (Id. at 23.)
Defendants oppose the admission of the proffered evidence primarily on grounds that: (1) the evidence is inadmissible as direct evidence because the underlying acts did not arise out of the same transactions charged, are not inextricably intertwined with evidence of the charged offenses, and are not necessary to complete the story of the crimes charged in this case; (2) even if the evidence is relevant, the danger of unfair prejudice outweighs its probative value because the proposed evidence is more serious than the charged crimes; (3) the proffered evidence would be unnecessarily cumulative for purposes of establishing a relationship among the defendants or as background to the conspiracy because seizures, video recordings and cooperating witnesses are available to prove the same; and (4) some evidence may have pre-dated the charged conspiracy, which is alleged in the Superseding Indictment to have begun in approximately November 2006. (See Barret's Second Opp'n at 3-4; Jones Opp'n at 1; ECF No. 318, Letter Brief in Opposition by Omar Mitchell ("Mitchell Opp'n") at 1; Scarlett Opp'n at 6-10.)
It is well settled in the Second Circuit that where an indictment contains a conspiracy charge, "[a]n act that is alleged to have been done in furtherance of the alleged conspiracy" is considered "part of the very act charged." United States v. Diaz, 176 F.3d 52, 79 (2d Cir. 1999) (internal quotation marks and alterations omitted); see United States v. Thai, 29 F.3d 785, 812 (2d Cir. 1994) (in conspiracy cases, "uncharged acts may be admissible as direct evidence of the conspiracy itself"). Consequently, evidence of uncharged criminal conduct is relevant and not considered "other crimes" evidence under Federal Rule of Evidence 404(b) ("Rule 404(b)") if the uncharged conduct "arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial." United States v. Khan, 591 F. Supp. 2d 202, 205 (E.D.N.Y. 2008) (quoting United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000)); see United States v. Nektalov, 325 F. Supp. 2d 367, 370 (S.D.N.Y. 2004) (same).
Acts of violence are frequently deemed to have been performed as overt acts in furtherance of, and thus are direct evidence of, an alleged drug distribution conspiracy. The Second Circuit has recognized that "[b]ecause narcotics conspiracies are illicit ventures, disputes are frequently settled by force or the threat of force" and that "advancing the aim of a narcotics conspiracy can involve performing ancillary functions such as . . . enforcing discipline and chastising rivals." United States v. Santos, 541 F.3d 63, 72 (2d Cir. 2008) (quoting United States v. Soto-Beniquez, 356 F.3d 1, 18 (1st Cir. 2003)); see United States v. Sureff, 15 F.3d 225, 228-29 (2d Cir. 1994) (noting that "drug trafficking is often attended by violence"); Khan, 591 F. Supp. 2d at 205 ("Intimidation, violence, and the payment of debts is generally understood to be intertwined with the management and operation of narcotics conspiracies. . . .").
Moreover, the Second Circuit has noted that "[v]iolence furthers such a conspiracy when used to collect debts directly . . . or [to] send the message that those suspected of stealing from the conspiracy would be treated harshly." Santos, 541 F.3d at 72 (internal citation and quotation marks omitted). In addition, "testimony about violent acts and firearm possession during or around the time of a narcotics conspiracy appropriately establishe[s a coconspirator's] conduct during the charged conspiracy." United States v. Gadsden, 300 F. App'x 108, 110 (2d Cir. 2008).
Although relevant, evidence of uncharged acts may nonetheless be inadmissible pursuant to Federal Rule of Evidence 403 if "its probative value is substantially outweighed by a danger of . . . unfair prejudice." Fed. R. Evid. 403; see also United States v. Bourne, No. 08-CR-888, 2011 WL 4458846, at *12 (E.D.N.Y. Sept. 23, 2011) ("Evidence of uncharged acts may be admissible, subject to limitations imposed by Rule 403 . . . ."). "The term 'unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Old Chief v. United States, 519 U.S. 172, 180 (1997). To determine whether evidence is unduly prejudicial, the court considers it in the context of the crime alleged. Evidence shall be excluded as unduly prejudicial when it is "more inflammatory than the charged crime." United States v. Livoti, 196 F.3d 322, 326 (2d Cir. 1999); cf. United States v. Pitre, 960 F.2d 1112, 1120 (2d Cir. 1992) (finding no unfair prejudice where "evidence of prior narcotics transactions 'did not involve conduct any more sensational or disturbing than the crimes with which [the appellants were] charged.'") (quoting United States v. Roldan-- Zapata, 916 F.2d 795, 804 (2d Cir. 1990)).
1.Forrest's 2007 Conviction for Possession of Marijuana
The government seeks to admit evidence that Forrest was convicted in September 2007 of Criminal Possession in the Fifth Degree in Kings County Criminal Court as direct evidence on grounds that the conviction "proves that within the time frame of the conspiracy Forrest actually possessed the type of controlled substance he is charged with conspiring to distribute and possess with intent to distribute." (Gov't Mem. at 13, 18.) In opposition, Forrest argues that the prior conviction is irrelevant to the issue of Forrest's purported participation in the charged narcotics distribution conspiracy because the misdemeanor conviction arose in the context of an incident in which Forrest was smoking marijuana. (ECF No. 301, Letter Brief in Opposition by Kareem Forrest ("Forrest Opp'n") at 2.)
Possession of marijuana in the fifth degree is a class B misdemeanor under New York State Penal Law, which prohibits possession of marijuana that is "burning or open to public view" in a public place or possession of a mixture or compound of marijuana in an aggregate weight of more than twenty-five grams. NYPL § 221.10. The court finds that Forrest's use of such a limited quantity of marijuana is not probative of whether he possessed marijuana for purposes of distributing the same in furtherance of the charged conspiracy, particularly in light of the government's allegations that he was a "top lieutenant" in Barret's crew who was "heavily involved" in controlling, weighing, packaging and distributing large quantities of marijuana. (Gov't Mem. at 7.) Therefore, the court denies the government's motion to introduce evidence of Forrest's prior misdemeanor possession as direct evidence of the crimes with which he is charged. Moreover, as discussed infra in Section III.B.3.a, the court finds this evidence inadmissible as "other act" evidence under Rule 404(b).
The government seeks to introduce evidence that in 2009, at Barret's behest, two soldiers planned an ambush to kill a rival who refused to work for Barret, and as a result, both the rival and his driver were shot. (Gov't Mem. at 9.) The government alleges that Barret ordered this murder because he "wanted everyone in Queens to sell marijuana for his crew" and he employed violence against those who refused to cooperate with his efforts. (Id.)
The court finds that evidence of an order from Barret to his soldiers to murder of one of Barret's rivals is relevant as direct evidence of the conspiracy because it shows the nature and existence of the conspiracy as well as Barret's leadership in the organization. See United States v. Miller, 116 F.3d 641, 682 (2d Cir. 1997) (finding no abuse of discretion in district court's conclusion that proof of murders of persons considered to be threats to the gang was "relevant to show the existence and nature of the enterprise and the conspiracy"); see also Khan, 591 F. Supp. 2d at 205 (finding uncharged murders and threats relevant to demonstrate defendant's alleged leadership role). Furthermore, evidence that the rival and his driver were shot during the course of the attempted murder is relevant as direct evidence of Count Six of the Superseding Indictment, which charges defendants with the possession and discharge of guns in furtherance of the drug trafficking conspiracy. (S-3 ¶ 26.)
Moreover, the court finds that the probative value of this direct evidence outweighs the risk of prejudice. "[C]courts in this circuit have repeatedly expressed disapproval of the admission of uncharged criminal conduct that is 'more serious than the charged crime.'" Khan, 591 F. Supp. 2d at 206 (quoting United States v. Williams, 205 F.3d 23, 34 (2d Cir. 2000)). In Khan, for example, the court excluded evidence of an uncharged murder on grounds that it was overly prejudicial in a case against the alleged head of a "powerful, violent, cocaine trafficking organization." 591 F. Supp. 2d at 205. There, the defendant was charged in an eighteen-count indictment that included charges of "importation and possession of cocaine" and "engaging as a . . . leader of a continuing criminal enterprise in the Eastern District of New York and elsewhere." Id. Even though the Khan court found that the uncharged murder was relevant as part of the crimes charged because "violence . . . is generally understood to be intertwined with the management and operation of narcotics conspiracies," the court excluded the evidence on grounds of undue prejudice because the defendant was "not charged with any crimes of violence, intimidation or firearms." Id. at 205-06.
In contrast to Khan, all defendants in the instant prosecution, except Manning, face charges of firearms and violence. Therefore, evidence of the 2009 incident does not involve conduct that is "any more sensational or disturbing than the crimes with which [defendants are] charged.'" Pitre, 960 F.2d at 1120. Accordingly, the court grants the government's motion to introduce evidence as to all defendants except Manning, that Barret ordered his soldiers to kill a rival and that the rival and his driver were shot by Barret's soldiers as a result.
3.2009 Contract for Murder
The government seeks to introduce evidence that in retaliation for a perceived theft, Barret offered a thirty-pound marijuana bounty for the murder of his former drug trafficking partner, Marlon Jones, in 2009. (Gov't Mem. at 9.) Barret allegedly instructed his crew to kill Marlon Jones when Barret was out of town so that he would have an alibi for the murder. (Id.) The government contends that as a result of Barret's "contract to murder," one of Barret's soldiers unsuccessfully attempted to kill Marlon Jones in a night club just weeks before Barret's arrest. (Id.)
The same principles discussed above in Section II.B.2 apply to evidence of this alleged "contract" to kill Marlon Jones, which the court finds to be "[no] more sensational or disturbing than the crimes with which [defendants are] charged.'" Pitre, 960 F.2d at 1120. Accordingly, the court grants the government's motion to admit evidence except as to Manning regarding Barret's alleged "contract" to kill Marlon Jones as direct evidence of the charged crimes.
4.Acts of Violence Asserted by Defendants
The government seeks to introduce evidence of the following shootings and other firearm-related acts of violence that defendants allegedly "bragged about to other crew members" to "enhance their stature within the narcotics organization":
(1) Scarlett allegedly "admitted to shooting a man named Jeff British at a night club and confessed to shooting a sixteen-year-old kid in front of an off-duty police officer just before he left Jamaica"; (2) Anderson allegedly "admitted that he carried guns and was involved in armed home invasion robberies" to steal marijuana from rival drug dealers; and (3) Forrest allegedly "admitted that he shot the man who stabbed his brother in Brooklyn." (Gov't Mem. at 10-11, 15.)
Scarlett contends that such evidence should be excluded because it is "highly prejudicial" and has "no correlation to the marijuana conspiracy in this case." (Scarlett Opp'n at 9.) He notes in particular that because the alleged shooting of the sixteen-year-old occurred in Jamaica, it "bears no relevance on either the domestic marijuana conspiracy or the 924(c) count of this incident." (Id.) Forrest opposes introduction of his alleged admission because the government does not specify the date on which Forrest allegedly made the statement and does not "represent that this statement is admissible as a co-conspirator statement under [Federal Rule of Evidence] 801(d)(2)(E)." (Forrest Mem. at 4.)
Upon review of the government's allegations, the court finds that there is inadequate information to find that the proffered evidence is relevant as direct evidence of the charged conspiracy. The government's memorandum does not specify the dates on which Scarlett, Forrest or Anderson allegedly made the aforementioned statements or the dates on which the underlying events supposedly occurred. In at least one instance, as Scarlett notes, the shooting allegedly occurred in Jamaica and pre-dated the charged conspiracy. (See Scarlett Opp'n at 9; Gov't Mem. at 10-11.) Moreover, the government does not contend that any of the events underlying the statements made by Scarlett, Forrest and Anderson relate to the alleged drug conspiracy. Accordingly, the court has no basis to conclude that the underlying events "arose out of the same transaction or series of ...