Opinion
13 Cr. 58 (KBF)
06-10-2014
UNITED STATES OF AMERICA v. ANTHONY SERRANO, Defendant.
OPINION & ORDER
:
On January 14, 2014, Anthony Serrano was arraigned on a Superseding Indictment that charges him with participation in conspiracies to commit narcotics trafficking (Count I) and Hobbs Act robberies (Count II), as well as brandishing (or aiding and abetting another in brandishing) a firearm in furtherance of one or both of those conspiracies (Count III). (ECF No. 294.) Trial is scheduled to commence on June 16, 2014.
Before this Court are motions in limine filed by both parties. The defendant has moved to exclude certain cell site information and "other act" evidence; the Government has itself affirmatively moved for an in limine ruling with respect to this same "other act" evidence.
The Court announced its rulings orally on the record during the final pretrial conference on June 9, 2014. This Opinion sets forth the Court's rationale.
The "other acts" addressed in both motions are the following:
1. Evidence that, on July 28, 2013, the defendant met with a confidential informant ("CI-1") and they planned two burglaries allegedly using the
same modus operandi as used in the burglaries charged in the Superseding Indictment (the "Planned Burglaries Evidence");
2. Evidence that, in 2012 and 2013, in Jersey City, New Jersey, the defendant engaged in heroin and cocaine trafficking (the "Jersey City Narcotics Evidence"); and
3. Evidence that a cooperating witness (Victor Moral, or "CW-1"), who participated in robberies charged in the Superseding Indictment, first met the defendant in connection with their participation in a cargo theft conspiracy (the "Cargo Theft Evidence").
Both motions also address the admissibility of certain evidence that the defendant possessed and sold guns during the charged time period (the "Gun Evidence"). In a June 9, 2014 letter, however, the Government states that it will no longer seek to introduce the Gun Evidence at trial and thus withdraws its motion as to this issue. (ECF No. 424.) Accordingly, the Court declines to address the admissibility of the Gun Evidence in this Opinion.
Both motions also address the admissibility of certain evidence that the defendant possessed and sold guns during the charged time period (the "Gun Evidence"). In a June 9, 2014 letter, however, the Government states that it will no longer seek to introduce the Gun Evidence at trial and thus withdraws its motion as to this issue. (ECF No. 424.) Accordingly, the Court declines to address the admissibility of the Gun Evidence in this Opinion.
The defendant has proffered that he intends to argue that he was not a member of the robbery crew whose conduct forms the basis for the Superseding Indictment (the "Camacho Crew") and was not present at the robbery as to which CW-1 is expected to testify at trial. (See Serrano Opp. at 6-7, ECF No. 414.) In short, the defendant will argue that he was not present at and did not commit the charged crimes at all. The Government expects to be able to prove that the defendant's "M.O." was to be a behind-the-scenes participant in the robberies, that others would "do the dirty work," and that the defendant knew that a gun was going to be brandished in connection with the October 14, 2012 robbery, and that he sold narcotics obtained from the robberies from his own home. (See Gov't Br. at 3-5, ECF No. 406.)
For the reasons set forth below, the defendant's motions are DENIED and the Government's motion is GRANTED. I. BACKGROUND
To the extent both motions seek rulings as to the Gun Evidence, these portions of the motions are now moot in light of the Government's representation that it will not introduce this evidence at trial (ECF No. 424.) The Court does not understand this to mean that the Government is not pursuing Count III—the Court assumes it is—just that the Gun Evidence specified in its motion shall not be offered.
The defendant was arrested on August 1, 2013, and charged with the crimes set forth above. The Government has proffered it intends to prove at trial that the defendant participated in the following events:
1. A burglary of a narcotics stash house in Jersey City, New Jersey, on July 4, 2012, and that the defendant directed and organized the burglary but was not present during it;
2. A burglary in October 2012 on Webster Avenue in the Bronx, during which two kilograms of heroin were stolen; the defendant agreed to resell one kilogram;
3. A second burglary in October 2012—this one in Manhattan (versus the Bronx), on October 14, 2012 (the "Manhattan Robbery"), during which the Camacho Crew pulled a car of intended victims (believed to possess kilogram quantities of cocaine) over using a fake police car, brandished a firearm and carjacked the victim's vehicle; the defendant is alleged to have been blocking the street, and the Government contends that cell site evidence places the defendant at that street;
4. Two attempted robberies in late 2012—the first was to rob cash from a van and the defendant is alleged to have sent two of the Camachos to conduct surveillance; the second was to rob marijuana and again, the defendant sent a Camacho to conduct surveillance; and(See Gov't Br. at 3-4.)
5. A robbery in January 2013 that was in fact a sting operation, and in which the defendant participated in planning but not in the execution of the robbery itself.
The Superseding Indictment states that the defendant's charged conduct lasted "[f]rom at least in or about 2012, up to and including on or about July 31, 2013, in the Southern District of New York and elsewhere." (ECF No. 294.) II. STANDARD ON A MOTION IN LIMINE
"The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial." Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (internal quotation marks and citation omitted); accord Highland Capital Mgmt., L.P., v. Schneider, 551 F. Supp. 2d 173, 176 (S.D.N.Y. 2008). Rule 104 of the Federal Rules of Evidence requires that a court make a preliminary determination of the admissibility of all evidence. Fed. R. Evid. 104. "The trial court should exclude evidence on a motion in limine only when the evidence is clearly inadmissible on all potential grounds." United States v. Ozsusamlar, 428 F. Supp. 2d 161, 164-65 (S.D.N.Y. 2006) (citations omitted).
In limine rulings occur pre-trial, and that fact has some significance. The evidence at trial may come in differently than anticipated, altering the solidity of the proffered basis for a pre-trial ruling. This Court therefore invites parties who believe that the factual record developed at trial supports a revised ruling to bring such an application in a timely manner. III. FOURTH AMENDMENT STANDARDS
The defendant moves to preclude the introduction at trial of cell site information the Government obtained by subpoena from Verizon as violative of his Fourth Amendment right to be free from warrantless searches. (See Serrano Br. at 7-10, ECF No. 407.)
The Fourth Amendment provides, in relevant part, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. It generally prevents the Government from physically intruding into constitutionally protected areas to obtain information without a warrant. See United States v. Jones, 132 S. Ct. 945, 949 (2012). The Fourth Amendment also protects individuals against governmental intrusions that violate a reasonable expectation of privacy. See Rawlings v. Kentucky, 448 U.S. 98, 105-06 (1980).
The Fourth Amendment protects individuals from intrusions as to which there is both a subjective and objective expectation of privacy. United States v. Osorio, 949 F.2d 38, 40 (2d Cir. 1991). A subjective expectation of privacy is an expectation held by the defendant; an objective expectation refers to whether society has or is prepared to recognize that subjective privacy interest as reasonable. Id. The Supreme Court has held that there is no objective expectation of privacy with respect to information turned over to a third party. Smith v. Maryland, 442 U.S. 735, 734-44 (1979) (holding that a telephone user has neither a subjective nor objective expectation of privacy with respect to numbers dialed, and the information relating to which is thereafter maintained by the service provider); see also United States v. Miller, 425 U.S. 435, 442-44 (1976) (holding that a bank depositor has no legitimate expectation of privacy with respect to deposit information voluntarily conveyed to the banks in the ordinary course of conducting their business).
The Second Circuit has not yet directly addressed whether there is a reasonable expectation of a privacy interest in the type of historical cell site information at issue here. The Second Circuit has, however, held that there is no reasonable expectation of privacy in information provided to third parties in light of the general principles set forth in Smith and Miller. See United States v. Pascual, 502 F. App'x 75, 80, n.6 (2d Cir. 2012), cert. denied, 134 S. Ct. 231 (2013). The Pascual court reviewed an argument that the district court erred by admitting cell site information; because that argument had not been preserved below, it did so under the "plain error" standard. Id. The court determined that such admission had not been plain error and that, in fact, "the general principles adopted by those courts pointed the other way." Id.
There is a "good faith" exception to the remedy of suppression for searches conducted in violation of an individual's Fourth Amendment rights. United States v. Leon, 468 U.S. 897, 922 (1984). This exception applies when evidence is obtained from a search conducted on the reasonable belief of the validity of a warrant which is subsequently invalidated. Id. In determining whether this exception applies, the Court asks whether "a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Id. at 922 n.23. If reliance was reasonable, suppression is not warranted. See, e.g., United States v. Singh, 390 F.3d 168, 183 (2d Cir. 2004); see also 18 U.S.C. § 2703(d) (requiring court order based on "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation," but not a warrant, to obtain historical cell site data).
Fourth Amendment rights are personal rights and may not be vicariously asserted. United States v. Haqq, 278 F.3d 44, 47 (2d Cir. 2002). "[A] defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if th[e] defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure." United States v. Padilla, 508 U.S. 77, 81 (1993) (per curiam). The burden is on the defendant to establish that rights guaranteed by the Fourth Amendment and personal to him were violated. United States v. Paulino, 850 F.2d 93, 96 (2d Cir. 1988).
Thus, to bring a motion to suppress evidence as violative of the Fourth Amendment, a defendant must establish that he has the requisite personal interest in the thing or place searched; put another way, he must establish that he has standing to bring the motion. See, e.g., United States v. Ruggiero, 824 F. Supp. 379, 391 (S.D.N.Y. 1993), aff'd sub nom., United States v. Aulicino, 44 F.3d 1102 (2d Cir. 1995); see also United States v. Armedo-Sarmiento, 545 F.2d 785, 796 (2d Cir. 1976). In order to do so, a defendant generally must submit an "affidavit from someone with personal knowledge demonstrating sufficient facts to show that he had a legally cognizable privacy interest in the searched premises at the time of the search." Ruggiero, 824 F. Supp. at 391. An attorney's declaration is insufficient to make the appropriate showing. See Armedo-Sarmiento, 545 F.2d at 796. IV. RELEVANT EVIDENTIARY STANDARDS
Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Rule 402 provides that all relevant evidence is admissible, except as otherwise provided by the Federal Rules of Evidence or Act of Congress. Fed. R. Evid. 402. Rule 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 403.
Rule 404(b) provides:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.Fed. R. Evid. 404(b).
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. . . .
"It is well established that evidence of uncharged criminal activity is not considered other crimes evidence under Fed. R. Evid. 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. Gonzalez, 110 F.3d 936, 942 (2d Cir. 1997) (alterations and internal quotation marks omitted); United States v. Kassir, No. 04 Cr. 356 (JFK), 2009 WL 976821, at *2 (S.D.N.Y. Apr. 9, 2009), aff'd, United States v. Mustafa, 406 F. App'x 526 (2d Cir. 2011). Such evidence is direct evidence of a crime. See Kassir, 2009 WL 976821, at *2. A Rule 404(b) analysis is, however, prudent where it is not manifestly clear that the evidence in question is proof of the charged crime. Id.
The Supreme Court has stated, "[e]xtrinsic acts evidence may be critical to the establishment of the truth as to a disputed issue, especially when that issue involves the actor's state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct." United States v. Huddleston, 485 U.S. 681, 686 (1988).
The Second Circuit evaluates Rule 404(b) evidence under an inclusionary approach that allows evidence for any purpose other than to show a defendant's criminal propensity. United States v. McCallum, 584 F.3d 471, 475-76 (2d Cir. 2009) (finding that the district court's admission of the defendant's prior drug convictions, offered to show his intent to deal drugs and his knowledge of drug dealing, was error because the district court failed to conduct a Rule 403 analysis; the Second Circuit stated, "evidence of prior convictions merits particularly searching, conscientious scrutiny," because such evidence can lead to "generalized reasoning about a defendant's criminal propensity"); United States v. Paulino, 445 F.3d 211, 221-23 (2d Cir. 2006); United States v. Garcia, 291 F.3d 127, 136, 138-39 (2d Cir. 2002) (finding the district court abused its discretion in admitting evidence of a 12-year-old prior drug conviction where its only proffered similarity was that it involved cocaine). Courts may therefore admit evidence of other acts by the defendant if the evidence is relevant to an issue at trial other than the defendant's character and if the risk of unfair prejudice does not substantially outweigh the probative value of the evidence. United States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998); see also Garcia, 291 F.3d at 136.
This inclusionary approach does not invite the Government "to offer, carte blanche, any prior acts of the defendant in the same category of crime." McCallum, 584 F.3d at 475 (quoting Garcia, 291 F.3d at 137).
In considering the admissibility of evidence pursuant to Rule 404(b), a court must consider the following:
• Is the evidence offered for a proper purpose—that is, does it go to something other than the defendant's character or general criminal propensity?Garcia, 291 F.3d at 136.
• Is the evidence relevant?
• Does the probative value of the evidence substantially outweigh the danger of unfair prejudice?
• Has the court administered an appropriate limiting instruction?
Among the "proper purposes" for presenting evidence of extrinsic acts is knowledge. See McCallum, 584 F.3d at 475; United States v. Teague, 93 F.3d 81, 84 (2d Cir. 1996). Another "legitimate purpose for presenting evidence of extrinsic acts is to explain how a criminal enterprise developed; this sort of proof furnishes admissible background information in a conspiracy case" and can assist the jury in understanding the relationship of trust between the coconspirators. United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996); see also United States v. Rosa, 11 F.3d 315, 334 (2d Cir. 1993). Completing the story of the crimes is another a legitimate use of prior act evidence. United States v. Williams, 585 F.3d 703, 707 (2d Cir. 2009) (citing United States v. Reifler, 446 F.3d 65, 91-92 (2d Cir. 2006)). Evidence of other similar crimes is also admissible under Rule 404(b) "to prove the identity of the defendant as the person who committed the offense being prosecuted, and the decision whether to admit or exclude such evidence is committed to the discretion of the trial court." United States v. Campbell, 300 F.3d 202, 215 (2d Cir. 2002).
Once the Government has proffered a proper purpose for "other act" evidence, the Court must then determine whether the other act is in fact probative of the crimes charged. In this regard, the Government must identify the similarity or connection between the act at issue and an element of the crime charged. McCallum, 584 F.3d at 475; United States v. Brand, 467 F.3d 179, 197 (2d Cir. 2006); United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992). If the Government cannot identify some similarity or connection between the other acts and charged conduct, then evidence of such other acts cannot be probative of knowledge and intent. Garcia, 291 F.3d at 137-38; United States v. Tubol, 191 F.3d 88, 96 (2d Cir. 1999) (finding that admission of prior act was error where Government failed to show any similarity between a hoax bomb and an Israeli bomb).
The similarity or connection between the charged crime and the prior event goes to the question of relevance. To be relevant, the other act must be sufficiently similar to the conduct at issue to permit the jury reasonably to draw an inference from the act that the state of mind of the actor is as the proponent of the evidence asserts. United States v. Curley, 639 F.3d 50, 57 (2d Cir. 2011). The court abuses its discretion if the "chain of inferences" necessary to connect the other act evidence with the charged crime is "unduly long." Id.; see also United States v. Peterson, 808 F.2d 969, 974 (2d Cir. 1987). While the duration of elapsed time between two events can detract from the probative value of the prior event, Garcia, 291 F.3d at 138, "temporal remoteness of . . . acts does not preclude their relevancy." Curley, 639 F.3d at 59. In Curley, although some of the "other act" evidence predated the charged conduct by as much as 15 years, "collectively they demonstrate[d] a pattern of activity that continued up to the time of the charged conduct." Id.
It is, however, improper to receive evidence ostensibly as probative of knowledge when it is in reality "propensity evidence in sheep's clothing." McCallum, 584 F.3d at 477. The Government may not use Rule 404(b) to "parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to the defendant only by unsubstantiated innuendo." Huddleston, 485 U.S. at 689. Under Rule 404(b), similar act evidence is only admissible if it is relevant, and it is only relevant if the jury could reasonably conclude that the act occurred and that it is connected to the defendant. Id. V. DISCUSSION
A. Motion to Preclude Cell Site Evidence
Defendant's motion to preclude cell site evidence is cast as a motion in limine but is, in reality, a suppression motion. The time to bring such motions has long ago passed. On that basis alone, the Court could deny the motion as procedurally inappropriate. Nevertheless, the Court proceeds to substantive consideration of the defendant's motion.
There are several, independent substantive reasons why the defendant's motion concerning the cell site evidence fails. First, to bring a claim for a violation of his Fourth Amendment rights, the defendant must put forward an affidavit or other evidence establishing that he has a cognizable privacy interest in the thing searched. Here, it is uncontested that the information obtained from the third-party cell phone provider relates to a cell phone registered to the defendant's wife. The defendant has not proffered an affidavit that he has a privacy interest in that phone or the data on that phone. He cannot rely on the Government's position that it intends to link the defendant to the cell phone at trial as a basis for such an interest. Accordingly, the defendant's motion to preclude or suppress the cell site data is denied on the basis that the defendant has not established the requisite standing to bring the motion. See Armedo-Sarmiento, 545 F.2d at 796; Ruggiero, 824 F. Supp. at 391.
In addition, there is no recognized privacy interest in information provided to third-party vendors, see, e.g., Smith, 442 U.S. at 734-44 and Miller, 425 U.S. at 442-44, and it is uncontested that the particular cell site information here at issue relates to data obtained as calls were made from the subject cell phone. Thus, the cell site information is analogous to registers of calls as to which there is no cognizable privacy interest. See Miller, 425 U.S. at 442-44; see also Pascual, 502 F. App'x at 80, n.6.
Finally, the Court notes that the cell site information here was obtained pursuant to a subpoena authorized by United States Magistrate Judge Michael Dolinger pursuant to 18 U.S.C. § 2703(d). (Gov't Opp. Ex. A, ECF No. 412.) The defendant does not argue any failure to comply with the requirements of this statutory provision, which requires "specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(d). While the Supreme Court has not addressed the constitutionality of this provision, even if it were later invalidated, the same principles applying the good faith exception to searches conducted pursuant to warrants later invalidated would apply here. See, e.g., Leon, 468 U.S. at 922-23.
The Court need not reach the question of whether 18 U.S.C. § 2703 is constitutional in order to apply the good faith exception and to deny the defendant's motion.
B. "Other Act" Evidence
1. The Planned Burglaries Evidence
The Government proffers that it will seek to introduce evidence that, during a taped meeting between the defendant and CI-1 on July 28, 2013, (1) the defendant told CI-1 that he was planning a burglary of half-a-million to a million dollars' worth of watches and cash, in which he would be acting in a behind-the-scenes role—waiting around the corner from the robbery—that he described as his modus operandi (or "M.O.") from prior crimes; and (2) CI-1 proposed another cargo theft to the defendant, to which the defendant responded enthusiastically and described the need to do their "homework" in advance of that crime. (See Gov't Br. at 7-8.)
The Government argues that the Planned Burglaries Evidence is admissible under Rule 404(b) because it is probative of the defendant's identity as a member of the Camacho Crew, as well as of the defendant's intent, knowledge, and lack of mistake or accident. (See id. at 14-18.) The defendant contends that the Planned Burglaries Evidence is not admissible under Rule 404(b) because it is unrelated to the charged conspiracies and does not otherwise meet any of the exceptions set forth in Rule 404(b). (See Serrano Opp. at 4-7.) According to the defendant, rather than asserting a "mere presence" defense, he "intends to pursue a defense that he was not a member of the Camacho crew and [was] not present at the October 14, 2012 robbery." (Id. at 6.)
On its face, the Planned Burglaries Evidence post-dates the narcotics and robbery conspiracies involving the Camacho Crew by more than six months. This fact alone is not, however, determinative of admissibility. See, e.g., United States v. Abu-Jihaad, 630 F.3d 102, 132-33 (2d Cir. 2010); United States v. Rutkoske, 506 F.3d 170, 177 (2d Cir. 2007). Rather, the Court asks whether the Planned Burglaries Evidence is being offered for a proper purpose under Rule 404(b), and then whether, under Rule 403, the probative value of this evidence is substantially outweighed by the risk of unfair prejudice. See Garcia, 291 F.3d at 136. "Timing" is considered in connection with this weighing process; the more remote from the acts at issue, the less probative.
The Court finds that the Planned Burglaries Evidence is probative of the defendant's modus operandi in committing robberies, which was the same as that which he is alleged to have followed in connection with the charged robbery conspiracy involving the Camacho Crew. It would, of course, be even more probative if closer in time, but it retains probative value nonetheless. The Government alleges the evidence will show that the defendant stated his intention to wait nearby the robbery rather than to participate personally in confronting victims, as well as to send other crew members in his stead to physically execute the robberies. The Government alleges the defendant engaged in the same conduct with respect to prior robberies with the Camacho Crew. The Government also alleges the evidence will show that the defendant emphasized to CI-1 the need to do one's homework in advance of a robbery, which is the same language used by co-defendant and Camacho Crew member Javion Camacho to describe preparations for robberies. This common modus operandi is thus highly probative of the defendant's identity as a member of the Camacho Crew, which the defendant states he will contest at trial. This evidence is also highly probative of the reason why the defendant's victims will not be able to identify him at trial—because his modus operandi explicitly called for him to avoid confronting the victims directly (but rather confronted them through the use of proxies). In sum, the Court finds the Planned Burglaries Evidence to be probative of the defendant's identity, a proper purpose under Rule 404(b). See Campbell, 300 F.3d at 215; see also United States v. Speed, 272 F. App'x 88, 92 (2d Cir. 2008).
In light of the defendant's statement that he intends to assert he was not present at the Manhattan Robbery (rather than being "merely present" at the scene), the Court does not reach the issue of whether the Planned Burglaries Evidence is probative of additional proper purposes under Rule 404(b) such as intent, knowledge, and lack of mistake or accident. --------
The Court next considers whether, despite this probative value, the Planned Burglaries Evidence should nevertheless be excluded under Rule 403 in light of the risk of unfair prejudice. While it is true that this evidence carries the risk of some prejudice because it relates to conduct involving CI-1, who is not alleged to be a member of the Camacho Crew, and post-dates the activities of the Camacho Crew by several months, the Court does not find that this risk substantially outweighs its probative value. See United States v. Gelzer, 50 F.3d 1133, 1139 (2d Cir. 1995) ("Generally speaking, any proof highly probative of guilt is prejudicial to the interests of that defendant. The prejudice that Rule 403 is concerned with involves some adverse effect beyond tending to prove the fact or issue that justified its admission into evidence.") (internal quotation marks, alteration, and citation omitted). It is important for the jury to understand the defendant's modus operandi in committing robberies, and how that modus operandi informs both his membership in the Camacho Crew and the fact that his victims are not able to identify him as participating in the charged robberies. The jury will be given an appropriate limiting instruction in order to clarify that the defendant is not on trial for the Planned Burglaries Evidence itself, and that it is being offered as evidence of the defendant's identity as part of the crew involved in the charged conduct.
2. The Jersey City Narcotics Evidence
Count I charges the defendant with participating in a narcotics trafficking conspiracy to distribute, and to possess with intent to distribute, heroin and cocaine. The Jersey City Narcotics Evidence is direct evidence of that conspiracy—it is direct evidence that the defendant engaged in both heroin and cocaine trafficking during the time period charged in the Superseding Indictment. (See Gov't Br. at 8-9.) It is therefore not "other act" evidence and does not implicate Rule 404(b). See Gonzalez, 110 F.3d at 942; Kassir, 2009 WL 976821, at *2. Accordingly, the defendant's motion to preclude such evidence based on Rule 404(b) is denied and the Government's motion as to its admissibility is granted.
3. The Cargo Theft Evidence
The Government has proffered that it intends to introduce the defendant's participation in a cargo theft as background to how the defendant met and built a relationship of trust with CW-1. (See Gov't Br. at 19-20.) This is a proper purpose under Rule 404(b). See Williams, 585 F.3d at 707.
The Court has considered whether the Cargo Theft Evidence should be precluded under the balancing test set forth in Rule 403. The Court finds that the probative value of this evidence outweighs the risk of unfair prejudice. It is important that the jury understand how the defendant came to meet and build a rapport with CW-1. That such meeting and interaction occurred in connection with an uncharged crime does not require automatic preclusion of such evidence. The question for the Court is to determine whether the danger of any unfair prejudice (and, of course, there is some prejudice to a criminal defendant to have a cooperating witness describe meeting him in the context of criminal acts) substantially outweighs its probative value. It does not. The jury will be given an appropriate limiting instruction and it will be clear that the defendant is not here on trial for any cargo thefts described by CW-1, and that such evidence is simply offered as background as to how the two individuals came to meet each other. VI. CONCLUSION
For the reasons set forth above, the defendant's motion in limine is DENIED and the Government's motion in limine is GRANTED. The Clerk of Court is directed to terminate the motions at ECF Nos. 406 and 407.
SO ORDERED. Dated: New York, New York
June 10, 2014
/s/_________
KATHERINE B. FORREST
United States District Judge