United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, District Judge.
Pending before the court is the Government's motion in limine to admit evidence of Defendant's prior efforts to tamper with witnesses, destroy evidence, and otherwise obstruct justice, as direct evidence of offenses charged in the Superseding Indictment or, in the alternative, pursuant to Rule 404(b). (Gov't Mem. (Dkt. 424).) On April 30, 2013, the court held a status hearing and directed the parties to submit supplemental briefs. (See Apr. 27, 2013, Min. Entry). For the reasons set forth below, the Government's motion is GRANTED.
Although styled as a "Motion in Limine to Admit Evidence of Obstruction, " the Government's initial submission consisted of a twelve-page narrative reciting what amounts to a significant preview of its case. The narrative included a recitation of alleged criminal conduct underlying all twenty-three Counts of the Superseding Indictment. (See generally Gov't Mem.) It also summarized various uncharged prior bad acts, including three alleged incidents of obstruction of justice (id. at 6-7, 9-10, 14); three prior state convictions (id. at 4, 6); two additional prior arrests (id. at 10 n. 7, 11); a summary of Defendant's disciplinary infractions while in prison (id. at 8); and description of several incidents involving Defendant's associates (id. at 11-12).
Because it was not clear if in seeking to admit "evidence of obstruction" at trial, the Government sought the admission of only the three incidents labeled as obstruction of justice or of all the above uncharged prior bad acts, the court directed the parties to submit supplemental briefs. (See Apr. 27, 2014, Min. Entry). In its supplemental brief, the Government clarifies that it seeks the admission of the following three incidents. (See generally Gov't Supp. Mem. (Dkt. 448).)
A. Evidence of Obstruction Following the Murder of Frederick Brooks
On June 16, 2001, Defendant allegedly shot and killed Frederick Brooks, which is charged as several Counts of the Superseding Indictment. (See Superseding Indictment (Dkt. 217).) The Government states that it intends to elicit testimony at trial that in the aftermath of the murder Defendant worked with members of his criminal enterprise to dispose of the firearm he used to kill Brooks. (See Gov't Supp. Mem. at 2.)
In 2001, Defendant was arrested and tried in New York State Criminal Court for the murder of Frederick Brooks. (Gov't Mem. at 6.) The Government represents that on the day of the murder, two eyewitnesses, referred to as Witness A and Witness B, made recorded statements to the Assistant District Attorney, reporting having seen Defendant shoot Brooks in the head. (Id.) Both witnesses later identified Defendant as the shooter in a police lineup and during testimony before a grand jury. (Id.) Later these witnesses refused to testify at Defendant's state criminal trial, and, during material witness proceedings, they recanted their prior statements and stated that they had been threatened by Defendant and his associates. (Id.) The state court found that Herron had procured the unavailability of the witnesses and permitted the prosecution to introduce the witnesses' prior grand jury testimony at trial. (Id.) The Government states that Witness A and B will testify in the instant case that they elected not to testify against Defendant in the state proceedings because Defendant personally threatened them. (Gov't Supp. Mem. at 2.)
Furthermore, the Government represents that Defendant instructed at least one other potential witness, Witness C, who understood that Defendant would have sought to kill him had he agreed to testify against him, to lie about Defendant's role in the murder. (Gov't Mem. at 6.) The Government states that it intends to call Witness C to testify that Defendant instructed him to lie about Defendant's involvement in the Brooks murder. (Gov't Supp. Mem. at 2.) The Government also notes that Witness D testified at the state trial that he saw Defendant kill Brooks, but refused to identify him from the stand for fear of retaliation. (See Gov't Mem. at 7.) It is not clear if the Government intends to call Witness D at trial.
Finally, the Government states that it plans to call additional unidentified witnesses to testify that, while in jail awaiting the state criminal trial, Defendant sent members of his crew to threaten witnesses who were expected to testify against him. (Gov't Supp. Mem. at 2.)
B. Evidence of Obstruction Following the Murder of Richard Russo
On May 9, 2008, Defendant allegedly shot and killed Richard Russo, which is charged as several Counts of the Superseding Indictment. (Gov't Mem. at 9-10.) The Government states that Witness C, one of his crew members, will testify that after the murder, Defendant provided him with cash in an effort to keep him from approaching police. (Id.; Gov't Supp. Mem. at 2.) Witness C will also testify that Defendant made efforts to eliminate forensic evidence and disposed of the firearm that Defendant had used to kill Russo. (Gov't Mem. at 9-10; Gov't Supp. Mem. at 2.)
C. Additional Evidence of Obstruction of Justice
In addition to the above, the Government intends to offer testimonial and physical evidence to establish that Defendant publicly warned members of his organization and the public, through social media and other means, of the consequences of providing information to law enforcement regarding Defendant and the enterprise's involvement in criminal activities. (Gov't Mem. at 14; Gov't Supp. Mem. at 2.) The Government also intends to call a witness to testify that in one instance, Defendant threatened to kill a member ...