United States District Court, S.D. New York
OPINION & ORDER
KATHERINE B. FORREST, District Judge.
On October 8, 2013, a Grand Jury sitting in the Southern District of New York returned Indictment 12 Cr 802 (ECF No. 50) against defendant David Delva; that Indictment was superseded on June 12, 2014 (ECF No. 146). Defendant faces trial on eight counts: robbery conspiracy (Count One), robbery (Count Two), kidnapping conspiracy (Count Three), kidnapping (Count Four), brandishing a firearm during a crime of violence (Count Five), narcotics conspiracy (Count Six), a firearms offense in connection with a drug crime (Count Seven), and felon in possession of a firearm (Count Eight). Trial began on September 8, 2014.
Before this Court are motions in limine filed by both parties. The defendant has moved to preclude testimony by an alleged victim of the offense - identified as "JA" - of a sexual assault and urination upon her, alleged to have occurred during the course of the robbery and kidnapping offenses charged in Counts One through Four. (ECF No. 139.) He also seeks an Order excluding certain "other act" evidence pursuant to Federal Rule of Evidence 404(b). (ECF No. 142.) Finally, defendant filed a motion seeking an inquiry into the DNA sample's chain of custody (ECF No. 180), but later informed the Government that this issue is moot (ECF No. 181). The Government opposes the motion as to the sexual assault and urination and has represented that it is seeking to admit some but not all of the "other act" evidence - specifically what are referred to as Acts One through Four, Eight, and Ten. (ECF No. 149.) Each of the four acts relates to prior robberies the defendant or others are alleged to have committed.
The Government has itself affirmatively moved for an in limine ruling to preclude cross examination of prior criminal acts by a male victim ("Male Victim") of the robbery and kidnapping who is expected to testify at trial and certain criminal acts by a cooperating witness ("CW"), who is also expected to testify. (ECF No. 138.) It also seeks to preclude the testimony of a proposed expert regarding the mental illness of the CW. (ECF No. 154.)
The Court provided a draft of this Opinion to counsel prior to an initial "final pretrial conference" on July 10, 2014. (ECF No. 157.) That draft contained the same rationale and outcome as that set forth herein, with the exceptions of modifications to the portions relating to the defendant's proposed expert.
I. FACTUAL BACKGROUND
The defendant is alleged to have participated in a brutal Hobbs Act robbery and kidnapping that occurred over a period of days spanning September 2 through 4, 2012, in the Bronx, New York. The Government contends that at trial it will prove the following series of events:
At approximately 10:30 p.m. on September 2, 2012, a woman referred to as "JA" returned home to her apartment in the Bronx, New York. In the hallway of her building, she was confronted by at least two armed men who pushed her into her apartment at gunpoint; they were joined by others at various points. JA was immediately bound, gagged, beaten, and she was subsequently raped. The alleged robbers ransacked the apartment looking for money and drugs; when none were found, they forced JA to call her then-boyfriend, a drug dealer (whom they believed had or had access to money) and request that he come to the apartment (he is refused to herein as "Male Victim"). JA was held captive for over two days before she reached her boyfriend and he came to the apartment. When the boyfriend (referred to herein as the "Male Victim") arrived, he was beaten with fists and a gun, stabbed, bound, and blindfolded. Despite the blindfold, the Male Victim retained a limited ability to see what was happening. He was forced to give the robbers keys to a second apartment in which he stored cash.
The CW, who was identified by the Male Victim as one of the robbers, later identified by the CW as having been a participant. The CW pled guilty pursuant to a cooperation agreement and is expected to testify at trial, despite the fact that a message was passed by an inmate at the MCC to him warning him not to testify.
During a protective sweep at the apartment of the CW (incident to the CW's arrest pursuant to a warrant), law enforcement recovered a gun and drugs from an open closet; these items were identified as belonging to Delva. Delva was then taken into custody. During a search incident to his arrest, crack cocaine was recovered from his person.
a. The Male Victim's Criminal Past
The Male Victim is expected to testify at trial pursuant to an immunity agreement. For a number of years, including as recently as one year ago, the Male Victim was a large-scale marijuana dealer, dealing in pound quantities on a weekly basis; he did not pay taxes on the proceeds from such sales. He is not a United States citizen and was deported in 2001 and returned illegally in 2006 by using false identification documents; subsequent to that time, he lived under aliases to avoid detection. The Government intends to elicit these facts on direct examination. The Government seeks to preclude cross examination, however, of the following:
1. Acts of domestic violence against his then-girlfriend, JA, including one incident just prior to the events of September 2 through 4, 2012, in which he discharged a firearm;
2. Drug dealing that predates the Male Victim's 2001 deportation and goes back to at least 1988. He was arrested in 1998 for, among other crimes, a drug offense, subsequently agreed to cooperate, and was sentenced to time served. Thereafter he was deported to Jamaica (where he remained until 2006).
3. His participation in several large cocaine deals prior to his arrest in 1998.
4. A 1988 arrest involving physical altercation with another man in which he hit the man over the head with a baseball bat.
5. A 1988 conviction for drug possession, 1992 for drug distribution, and 2001 for his role in a continuing criminal enterprise, as well as cocaine, marijuana, opium, and money laundering conspiracies.
6. The Male Victim's cooperation in connection with his 1998 arrest.
7. A 1996 arrest for bail jumping bail (these 1996 charges were eventually dismissed).
8. The discovery in connection with his 1998 arrest of possession of a device used to steal the identity of one cell phone account holder to another cell phone (to allow for unauthorized calls and charges).
b. Issues Relating to the CW
The CW has a history of mental health treatment as well as a prior criminal record. The Government intends to elicit the CW's criminal past and mental health history on direct examination. The Government has raised two issues in limine with regard to the CW, one relating to a proposed expert on his mental health and the second relating to an incident for which he was neither arrested nor prosecuted.
The defendant has subpoenaed his medical records from various facilities. On July 7, 2014, the defendant notified the Government that he intended to call an expert witness, Dr. Karen Rosenbaum, on topics relating to mental health issues. The Government moved to preclude the proposed expert on the basis that notice was untimely and incomplete, and that to the extent that the proposed expert would testify concerning the credibility of the defendant, such testimony would invade the province of the jury and should otherwise be precluded under Rules 401, 403, and 608 of the Federal Rules of Evidence. (ECF Nos. 154.) At the conference on July 10, 2014, the defendant clarified Dr. Rosenbaum's proposed testimony as limited to providing definitions of medical terms the defendant anticipated would be necessary as a result of certain medical evidence.The Court discussed with the parties the possibility of a stipulation as to any such definitions, but the defendant represented that he planned to call Dr. ...