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United States of America v. Christopher Barret et al

December 31, 2011

UNITED STATES OF AMERICA
v.
CHRISTOPHER BARRET ET AL., DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge

MEMORANDUM AND ORDER

Defendants Christopher Barret, Kareem Forrest, Ryan Anderson, Latoya Manning and Leon Scarlett (collectively, "defendants") are charged with various narcotics trafficking crimes in a fourth superseding indictment (the "Superseding Indictment"), filed on December 27, 2011. (See generally ECF No. 395, Superseding Indictment ("S-4").)

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)*fn1 and 18 U.S.C. § 3551 et seq.*fn2 (S-4 ¶¶ 1--22.) Count Two of the Superseding Indictment charges defendants with conspiring to distribute and possess with intent to distribute more than 1000 kilograms of marijuana between November 2006 and November 2010, in violation of 21 U.S.C. §§ 841(b)(1)(A)(vii)*fn3 and 846,*fn4 and 18 U.S.C. § 3551 et seq.*fn5 (Id. ¶ 23.) 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. ¶¶ 24--25.)

Count Five charges Barret, Forrest, Anderson, 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. ¶ 26.) Count Six charges defendants with using, carrying, possessing, brandishing and discharging a firearm in furtherance of drug-trafficking crimes between November 2006 and October 2010, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i),*fn9 924(c)(1)(A)(ii), 924(c)(1)(A)(iii), 2*fn10 and 3551 et seq. (Id. ¶ 27.)

On December 21, 2011, the court ruled on the parties' motions in limine, with the exception of a discrete issue regarding which the court reserved decision until further briefing was filed, upon request from Mitchell's counsel. See generally United States v. Barret, 10-CR-809, 2011 WL 6704862 (E.D.N.Y. Dec. 21, 2011). Having received and reviewed additional submissions from Mitchell and the government, the court herein sets forth its ruling on the outstanding motion in limine, in which the government seeks to introduce evidence against Mitchell that Mitchell "always carried a gun," which he allegedly used, together with Scarlett, to rob a truck driver in Queens for marijuana in 2003.*fn11

For the reasons set forth below, the court (1) denies the government's motion to admit this evidence as direct evidence of the conspiracy; (2) denies without prejudice the government's motion to admit the evidence as an "other act" pursuant to Federal Rule of Evidence 404(b) ("Rule 404(b)") against Mitchell or Barret; and (3) grants the government's motion to admit the evidence as an "other act" pursuant to Rule 404(b) against Scarlett only.

BACKGROUND*fn12

I.The Instant Motion

A.Admission of Testimony as Direct Evidence

In the pending motion in limine, the government moves to admit as direct evidence of the charged conspiracy testimony that during the course of the alleged conspiracy, Scarlett "described [a 2003] incident in which co-conspirators Omar Mitchell and Leon Scarlett robbed a truck driver at gunpoint and stole a large quantity of marijuana, which [Mitchell and Scarlett] provided to co-defendant Christopher Barret to distribute." (Gov't Mem. at 11; ECF No. 377, Government's Supplemental Letter Brief ("Gov't Supp. Br.") at 1.) The government contends that because Scarlett made this statement during the course of the conspiracy "to highlight a particular instance of violence to illustrate his point about the relative importance of certain members of the conspiracy and the division of illegal proceeds," the evidence is "intertwined with the charged offenses." (Gov't Supp. Br. at 6.)

Mitchell and Barret*fn13 oppose the government's motion to admit testimony regarding Scarlett's statement primarily on grounds that the evidence is "not necessary for the ostensible purposes of establishing a relationship amongst the defendants, or as background to the conspiracy" in light of the availability of seizures, surveillance recordings and testimony from cooperating witnesses to prove relationship and background. (ECF No. 318, Letter Brief in Opposition by Omar Mitchell ("Mitchell Opp'n") at 1; ECF No. 321, Letter Brief in Opposition to Government's Motions in Limine by Christopher Barret ("Barret Opp'n"), at 2.)

B.Admission of Testimony Pursuant to Rule 404(b)

In the alternative, the government seeks to admit testimony regarding Scarlett's statement pursuant to Rule 404(b). The government contends that the testimony is admissible for "numerous relevant, non-propensity purposes," including (1) to establish the background of the conspiratorial relationships among Barret, Mitchell and Scarlett; (2) to prove Mitchell's intent, and knowledge and access to firearms; (3) to prove knowledge and intent with respect to Mitchell's involvement in the charged narcotics conspiracy; (4) to show Barret's leadership role and acquisition of substantial resources from narcotics trafficking; (5) to illustrate Mitchell and Scarlett's roles in the later narcotics enterprise and "provide the jury with a vivid example of how their activities as armed enforcers had the effect of furthering Barret's narcotics enterprise--as opposed to being simply random acts of violence"; and (6) to explain how Barret jump-started his marijuana trafficking business in the United States with the infusion of a large quantity of "free" marijuana. (Gov't Supp. Br. at 5.)

Mitchell, Barret and Scarlett oppose admission of the testimony regarding Scarlett's statement pursuant to Rule 404(b) on grounds that there is insufficient evidence for the district court to find by a preponderance that each defendant committed the acts alleged. (Barret Opp'n at 4; Mitchell Opp'n at 3-4; Scarlett Opp'n at 10.) Mitchell in particular argues that there is insufficient evidence to support a finding that he actually committed the alleged robbery because the government witness's testimony will be "too unreliable without any corroborating evidence." (Mitchell Opp'n at 3-4.) He further argues that the government witness's unreliability is demonstrated by the fact that the government initially stated that the robbery ...


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