United States District Court, S.D. New York
For Armani Cummings, also known as " Al,", Defendant: Avraham Chaim Moskowitz, Moskowitz & Book, LLP, New York, NY; Daniel Steven Parker, Parker & Carmody, LLP, New York, NY; Diane Ferrone, Diane Ferrone, Esq, New York, NY.
For USA, Plaintiff: Hadassa Robyn Waxman, Timothy Donald Sini, United States Attorney Office, SDNY, New York, NY; Michael Gerber, Assistant United States Attorney, Southern District of New York, White Plains, NY.
DECISION AND ORDER
Victor Marrero, United States District Judge.
Defendants Armani Cummings (" Cummings" ), Jose Munoz (" Munoz" ), and
Christopher Nwanko (" Nwanko" ) (together, " Defendants" ) are charged with conspiracy to distribute and possess with intent to distribute 280 grams or more of crack cocaine, in violation of 21, U.S.C. § § 846 and 841(b)(1)(A), and with possessing firearms in furtherance of the conspiracy, in violation of 18 U.S.C. § 924(c). Cummings is also charged with the narcotics-related homicides of Laquan Jones and Carl Copeland in violation of 21 U.S.C. § 848(e), and 18 U.S.C. § § 924(c) and 924(j). Munoz is charged with the narcotics-related homicide of Shameck Young and with conspiring to commit and committing Hobbs Act robbery, in violation of 18 U.S.C. § § 924(c)(1)(A)(ii), 924(c)(1)(C)(i) and 2.
The Government now moves in limine seeking admission of certain evidence, specifically: (1) prior arrests and convictions of Munoz; (2) violent acts committed by Nwanko;  (3) gang membership of Cummings and Munoz; (4) threats made by Cummings and Munoz to cooperating witnesses; and (5) incarcerations of Cummings and Munoz.
Cummings has also moved for a hearing pursuant to Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), to determine whether the Government's proposed cooperating witnesses were functioning as agents of the Government when Cummings made certain statements to them or in their presence that the Government seeks to introduce.
For the reasons described below, the Government's motion is granted in part and denied in part, and Cummings's motion for a Massiah hearing is denied.
A. PRIOR ARRESTS AND CONVICTIONS
The Government moves to admit evidence of Munoz's prior arrests for narcotics sales and of his conviction for possession of a firearm as " direct evidence of narcotics conspiracy" and " of his possession of firearms in furtherance of the narcotics conspiracy." (Government's Letter Motion in Limine, dated October 27, 2014 (" Gov't Letter Mot." ), at 4.)
1. Legal Standard
In conspiracy cases, " the Government may offer proof of acts not included within the indictment, as long as they are within the scope of the conspiracy." United States v. Bagaric, 706 F.2d 42, 64 (2d Cir. 1983). Accordingly, the uncharged criminal activity does not fall within the ambit of Federal Rule of Evidence 404(b) " if it 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. Carboni, 204 F.3d 39, 44 (2d Cir. 2000). Where evidence meets this standard, the Court need not instruct the jury against making an improper inference of criminal propensity. However, " where it is not manifestly clear that the evidence in question is intrinsic proof of the charged crime, the proper ...