United States District Court, E.D. New York
MEMORANDUM AND ORDER
KIYO A. MATSUMOTO, District Judge.
A three-count superseding indictment, filed on April 28, 2014, charges defendants Paul Rivera ("Mr. Rivera") and Michael Garrett ("Mr. Garrett") (collectively, "defendants") with racketeering (Count I), racketeering conspiracy (Count II), interstate prostitution (Count III), conspiracy to engage in sex trafficking and sex trafficking of children (Count IV), sex trafficking and sex trafficking of children (Count V), conspiracy to distribute and possess with intent to distribute heroin, cocaine base, cocaine and marijuana (Count VI), possession with intent to distribute heroin and cocaine (Count VII), conspiracy to commit murder in-aid-of racketeering (Count IX), murder in-aid-of racketeering (Count X), murder while engaged in a narcotics trafficking offense (Count XI), using, carrying and possessing a firearm (Count XIV), and causing death through use of a firearm (Count XV). (Id. ) Mr. Garrett also is charged with money laundering (Count VIII), and Mr. Rivera is charged with witness tampering (Count XII) and attempted obstruction of justice (Count XIII). (Superseding Indictment (S-3) ("Indictment"), ECF No. 94, filed 4/28/14.)
These charges arise from the defendants' alleged involvement in a group known as "Together Forever" ("TF") or "TF Mafia" that operated in the neighborhood of Brownsville in Brooklyn, New York, as well as in Scranton, Pennsylvania. (Id. at 2.) The indictment alleges that defendants were both leaders of TF Mafia. (Id. )
This Memorandum and Order addresses the following pretrial motions before the court, which were filed by the government and the defendants as motions in limine pursuant to the Third Pretrial Scheduling Order. ( See Third Pretrial Scheduling Order, ECF No. 139, filed 10/17/14.)
The government moves to (1) preclude the defendants from offering evidence of prior good conduct; and (2) introduce Mr. Rivera's proffer statements if he triggers any of the waiver provisions of the proffer agreement. (Gov't's First Mots. in Limine ("Gov't Mots."), ECF No. 165, filed 1/20/15.)
Mr. Rivera, in his opposition, seeks to preclude the letters that Mr. Rivera wrote to Assistant United States Attorney William Houser ("AUSA Houser") prior to his proffer. (Paul Rivera Mem. of Law in Opp. to Gov't's Mot. in Limine ("Rivera Opp.") at 4, ECF No. 183, filed 2/14/15.)
In Mr. Garrett's opening motions, he requests that the court order the government to (1) immediately disclose all statements that the government seeks to introduce as coconspirator statements under Federal Rule of Evidence 801; (2) provide Mr. Garrett a bill of particulars and answer certain questions in relation to his money laundering charge; and (2) make certain disclosures pursuant to Rule 16. (Michael Garrett Mot. in Limine ("Garrett Mot."), ECF No. 164, filed 1/20/15.) Mr. Garrett also makes numerous additional requests in his opposition to the government's first motions in limine. ( See Michael Garrett Resp. in Opp. re First Mot. in Limine ("Garrett Opp.", ECF No. 181, filed 2/13/15.) Specifically, Mr. Garrett made the following requests for disclosure: (1) "more specific notice" as to "when and where" the alleged activities relating to the interstate prostitution and sex trafficking charges occurred and identification of "the specific computer images" the government intends to introduce at trial ( id. at 30); (2) a "detailed offer of proof" relating to Mr. Garrett's drug dealing in the late 1990s ( id. at 32); (3) "a specific offer of proof" relating to a car stop of Mr. Rivera in Pennsylvania and weapons seized from Mr. Rivera's apartment ( id. at 32-33); (4) "a written summary" of any testimony of the government's Internal Revenue Service ("IRS") witness and disclosure of what documentary evidence the government will offer in relation to the way Mr. Garrett spent money from the TF Mafia account ( id. at 33); (5) "documentary evidence" that the government intends to introduce in relation to the murder and conspiracy to murder charges ( id. at 33); (6) "immediate disclosure" of emails from Mr. Garrett's Gmail account. (Id. at 40.) Additionally, Mr. Garrett requests severance of the tampering and attempted obstruction of justice charges against Mr. Rivera, and severance from Mr. Rivera in the event that Mr. Rivera's proffer statements are introduced. (Id. at 34-36.)
The court will address the parties' arguments relating to the admissibility of digital media evidence and admissibility of evidence of defendants' other acts pursuant to Federal Rule of Evidence 404(b) in separate orders. At Mr. Garrett's request at a status conference on April 10, 2014, the court has postponed addressing the government's motion in limine to exclude the sexual behavior of alleged victims prior and subsequent to their involvement with TF.
I. Government's Motion to Preclude Evidence of Defendants' Good Conduct
Evidence that a defendant engaged in prior good acts, when the defendant has not been charged with "ceaseless" criminal conduct is generally irrelevant and inadmissible. See United States v. Gambino, 838 F.Supp. 744, 748 (S.D.N.Y. 1993) ("[A] defendant cannot introduce evidence of innocent behavior on other occasions to prove his innocence."); United States v. Nekritin, No. 10-CR-491, 2011 WL 2462744, at *5 (E.D.N.Y. June 17, 2011) (Matsumoto, J.) ("While non-criminal activities may be relevant where the defendant is alleged to have engaged in "ceaseless" criminal conduct, [a] defendant may not seek to establish his innocence... through proof of the absence of criminal acts on specific occasions.'") (quoting United States v. Scarpa, 913 F.2d 993, 1010-11 (2d Cir. 1990)). The admission of evidence of a defendant's prior good conduct to establish his innocence is also impermissible under Federal Rule of Evidence 404(b) ("Rule 404(b)"), because such evidence "would in effect be an attempt to demonstrate appellant's good character by proof of specific good acts." United States v. O'Connor, 580 F.2d 38, 43 (2d Cir. 1978); see also United States v. Al Kassar, 660 F.3d 108, 123 (2d Cir. 2011) (upholding district court's decision to exclude evidence of prior good acts as inadmissible under Rule 404(b)). Furthermore, pursuant to Federal Rule of Evidence 403, a district court may exclude evidence of a defendant's prior good acts if it finds that any minimal probative value of such evidence is outweighed by the likelihood of jury confusion and the risk of jury nullification. See Al Kassar, 660 F.3d at 124 ("And the trial judge was rightly concerned that, to the extent any of the evidence [of prior good acts] could be construed to relate to the charged conspiracies, the jury would find it extremely confusing, if not incomprehensible.").
Here, the defendants are not charged with "ceaseless" criminal activity, but rather with racketeering and racketeering conspiracy, and specific acts and a pattern of criminal conduct, including drug trafficking, sex trafficking, murder, firearms offenses money laundering as to Mr. Garrett, and witness tampering and attempted obstruction of justice by Mr. Rivera. ( See generally, Indictment; see also Gov't Reply Mem. in Further Supp. of Its First Mot. in Limine ("Gov't Reply") at 6, ECF No. 193, filed 2/27/15.) Mr. Garrett anticipates that the government will introduce evidence of the historical background of TF, which "opens the door to the complete background" of the organization. (Garrett Opp. at 38.) Mr. Garrett also contends that he "should be permitted to cross examine" witnesses' recollections of instances of good conduct "to challenge the[ir] credibility." (Id. ) The court finds these arguments unavailing given the requirements of Rule 404(b) and the risk of jury confusion, and finds that evidence of unrelated prior good conduct, i.e., charitable giving or cooperation with law enforcement, is inadmissible. To the extent that evidence of good conduct is relevant to the charged conduct (i.e., to establish an alibi) or may be necessary to prevent misleading the jury, the court will consider its introduction at trial. The defendants are cautioned, however, that evidence of good conduct that does not refute evidence of the offense charged will not be admitted.
II. Government's Motion to Introduce Mr. Rivera's Proffer Statements Pursuant to Its Waiver Provisions
The government and Mr. Rivera agree that the statements made by Mr. Rivera at his August 30, 2012 proffer session may be admitted at trial against Mr. Rivera if Mr. Rivera triggers the waiver provisions of the proffer agreement. The waiver expressly states that in the event Mr. Rivera testifies at trial and "offers testimony materially different" from the proffer statements or "any evidence or argument are offered" which are "inconsistent with" any proffer statements, the waiver will be triggered. (Gov't Mot. at 34 (quoting Gov't Exh. L).)
The court will construe the waiver provision of Mr. Rivera's proffer agreement pursuant to the guidance provided by the Second Circuit. The waiver here, which is similarly worded to the waiver provision in United States v. Barrow, 400 F.3d 109, 118-19 (2d Cir. 2005), constitutes "an expansive waiver" reaching "any evidence, whether offered directly or elicited on cross-examination, " as well as any "factual assertions, " whether made "directly or implicitly." The Barrow court "specifically recognized that factual assertions could be implied by counsel in an opening statement or in questions posed on crossexamination." United States v. Roberts, 660 F.3d 149, 157-58 (2d Cir. 2011). The court is required "to consider carefully what fact, if any, has actually been implied to the jury before deciding whether proffer statements fairly rebut it." Barrow, 400 F.3d at 119. The Second Circuit has cautioned that "arguments or questions challenging the ...