The opinion of the court was delivered by: Matsumoto, United States District Judge:
The government moves to introduce evidence that indicates that in December 2010 and January 2011, the two months after the end date of the conspiracy charged in the Fourth Superseding Indictment (the "Superseding Indictment"), Mitchell was involved in marijuana-trafficking activity with co-conspirator Clifton Williams, Mr. Barret's alleged marijuana supplier during the charged conspiracy. (See Gov't Mem. dated 1/18/2012.) The disputed evidence consists, in part, of text messages that were found on a cellular telephone recovered from Mr. Williams' residence, and phone records that indicate that the messages were sent from the phone recovered from Mr. Mitchell's person during his arrest. (Id. at 1.) As indicated in the government's motion, a phone analysis report of Mr. Williams' phone that contains the text messages themselves has already been admitted into evidence, without objection, as Government Exhibit 497. Mr. Mitchell objects to admission of the evidence, as summarized infra. The court sets forth herein its bases for admitting the text messages and related evidence.
In sum and substance, the text messages show that, after the arrest of Mr. Mitchell's co-defendants on trial and others on October 7, 2010, he called Mr. Williams to request that a package of marijuana be sent to Mr. Mitchell. (Id. at 2.) Mr. Mitchell informed Mr. Williams that he intended to sell the marijuana to customers in New York, in part, to assist his brother, co-defendant Mr. Barret. (Id.) Thereafter, on January 21, 2011, Mr. Mitchell sent a text message to Mr. Williams, listing his home address as a delivery address. (Id.) Upon receiving ten pounds of marijuana from Mr. Williams at that address on January 28, 2011, Mr. Mitchell texted Mr. Williams again, requesting that a second marijuana package be sent to a different address. (Id.) Before he could make that second delivery, however, Mr. Williams was arrested. (Id. at 2.)
Nevertheless, Mr. Mitchell continued to send text messages to Mr. Williams, who received the messages through his girlfriend. (Id. at 2.) In particular, Mr. Mitchell asked how he should pay the $8,000 he owed for the ten-pound shipment of marijuana, which Mr. Mitchell had successfully received and sold. (Id.) Mr. Williams instructed Mr. Mitchell to give $2,000 to Mr. Barret's cousin "Georgia" to help pay for Mr. Barret's legal bills, and to deposit the remaining $6,000 into a bank account that Mr. Williams' girlfriend would set up for that purpose. (Id.)
B.The Government's Motion
The government asserts that the admitted text messages are direct evidence of the charged conspiracy because they are "inextricably intertwined with the charged offenses" and because "evidence that Mr. Mitchell continued to engage in drug deals for the organization (or more specifically, on behalf of the organization's leader Mr. Barret) after the arrests of Mr. Barret and most of his crew is necessary to 'complete the story of the crime on trial.'" (Id. at 4-5.) The government also argues that the marijuana transactions between Mr. Mitchell and Mr. Williams arose out of the same "series" of transactions as the charged narcotics conspiracy because they involved the same source of supply (Mr. Williams); used the same method of procurement (priority express mail from Arizona through the U.S. Postal Service); and used the exact same method of payment for the marijuana (depositing money into a bank account designated by Mr. Williams). (Id. at 5.)
The government contends that the fact that Mr. Mitchell possessed contact information and was able to directly communicate with Mr. Williams is "itself powerful evidence that Mr. Mitchell's role in the organization was far more than that of a simple 'hanger-on,'" and that it "directly contradicts Mr. Mitchell's defense. . . that Mr. Mitchell was not 'actually a member of some enterprise whose object was to distribute over 1,000 kilograms of marijuana.'" (Id. at 2) (quoting Trial Transcript Jan. 9, 2010 at 62).
In the alternative, the government asserts that this evidence is properly admitted as "other act" evidence pursuant to Federal Rule of Evidence 404(b) ("Rule 404(b)") because it directly corroborates a significant matter in the case -- testimony from cooperating witnesses that Mr. Mitchell was a member of the narcotics conspiracy and distributed marijuana on behalf of the organization. (Id. at 5.)
Mr. Mitchell objects to admission of the text messages on grounds that the disclosure has been untimely and that he would be unfairly prejudiced by its introduction because he has not had a fair opportunity to discover this link between himself and Mr. Williams until today. (Mitchell Mem. at 1.) Mr. Mitchell also argues that the text messages should be precluded as direct evidence because they relate to an offense that is independent of the charged conspiracy. (Id. at 2.) Moreover, Mr. Mitchell contends that the evidence should be precluded under Rule 404(b) because "the relevance here is highly speculative and dangerous because the jury may misinterpret the later offense as evidence of participation and membership in the charged conspiracy when there may be an equally or more plausible, and more benign explanation." (Id.)
A.No Unfair Prejudice Against ...