Opinion
S1 06 Cr. 1064 (JFK).
July 26, 2007
OPINION ORDER
The Defendant, Tyrone Laster ("Defendant"), is charged by superseding indictment with the sole count of being in possession of a firearm that had been shipped and transported in interstate commerce after Defendant previously had been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Defendant was arrested on September 26, 2006 at an apartment in the Bronx, allegedly in possession of a Raven. 25-caliber, semiautomatic handgun. The Government seeks to offer testimony to show that, during a robbery of a restaurant in Laurel, Mississippi allegedly committed by the Defendant on September 23, 2006, three days prior to his arrest on the instant charge, Defendant used "the same gun that was found on the defendant's person in the Bronx." (Govt. Br. at 1.) The evidence will be introduced in the form of eyewitness testimony, presumably that of an individual who observed Defendant during the robbery. The Government seeks to introduce evidence of Defendant's prior possession of a gun as direct evidence that Defendant was in possession of a gun on or about the date charged in the indictment. Alternatively, the Government seeks to introduce the evidence under Rule 404(b) as proof of Defendant's motive, knowledge, and intent.
It is well established in the Second Circuit that "`evidence of uncharged criminal activity is not considered other crimes evidence under Fed.R.Evid. 404(b) if it [1] arose out of the same transaction or series of transactions as the charged offense, [2] if it is inextricably intertwined with the evidence regarding the charged offense, or [3] if it is necessary to `complete the story of the crime on trial.'" United States v. Nektalov, 325 F. Supp. 2d 367, 370 (S.D.N.Y. 2004) (quotingUnited States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000)). If evidence is determined to be admissible as intrinsic or direct proof of the charged crimes, as distinguished from "other acts" under Rule 404(b), the Government need not fulfill Rule 404(b)'s notice requirement, and the Court is not required to instruct the jury against making an improper inference of criminal propensity.Nektalov, 325 F. Supp. 2d at 372. Evidence tending to show that a defendant possessed the same gun on a date other than the date of possession charged in the indictment may be admitted as direct evidence, because "continuous possession of the same gun does not amount to a series of crimes, but rather constitutes a single offense," United States v. Towne, 870 F.2d 880, 886 (2d Cir. 1989).
Here, however, the Government has not sufficiently described the substance of the proffered testimony. Specifically, the Government has not set forth the basis for the witness's testimony or the degree of specificity with which the witness will identify the gun used in the robbery as similar to the gun allegedly possessed by Defendant at the time of his arrest. Thus, the Court cannot yet determine whether the Government's proffered evidence of Defendant's prior, uncharged gun possession "arose out of the same transaction or series of transactions as the charged offense, . . . is inextricably intertwined with the evidence regarding the charged offense, or . . . is necessary to complete the story of the crime on trial." Carboni, 204 F.3d at 44.
Accordingly, the Government is directed to submit to the Court, no later than July 30, 2007, a more detailed proffer of its evidence regarding Defendant's alleged possession of a handgun during the robbery on September 23, 2006. Defendant shall submit its response no later than August 2, 2007.