United States District Court, D. Connecticut
STEFAN R. UNDERHILL, District Judge.
On January 15, 2016, I held a pretrial conference with Robert Spector and Gabriel Vidoni, counsel for the government, and Diane Polan, counsel for the defendant, Tony Brown. The purpose of the conference was to discuss my trial procedures and address the motions in limine that the parties have filed. During the conference, I gave counsel the opportunity to conduct an oral argument regarding their respective pending motions (docs. # 148, 149, 157, 160, 162).
As set forth in more detail on the record, I have considered the parties respective motions and rule as follows:
(1) Brown's motion for a hearing on the admissibility of audio and videotape evidence (doc. # 148) is denied without prejudice. The parties have come to a preliminary agreement on Attorney Polan's proposed redactions and are free to raise the issue again in another motion should the parties fail to agree on the final redactions.
(2) Brown's motion to strike his alleged alias from the indictment and preclude reference to the alias at trial (doc. # 149) is denied as moot. The parties agree that Brown's alleged alias need not be stricken from the indictment because I do not intend to show the jury the indictment. Furthermore, the parties agree that the admissibility of the alias rises and falls with the other pending motions in limine. Accordingly, I denied the instant motion (doc. # 149) as moot.
(3) The government's motion regarding the admissibility of the alleged October 2013 narcotics transaction between Brown and Perry Flowers, as observed by the government's witness ("CW") (doc. #157) is denied in light of my ruling on Brown's cross motion (doc. # 160).
(4) Brown's motion to preclude reference to an alleged drug transaction that occurred in October 2013 and any reference to potential future drug transactions not charged in the indictment (doc. # 160) is granted.
Brown's motion (doc. # 160) seeks to preclude reference to other instances in which he was allegedly involved in a drug transaction. In support of this, Brown argues that any attempt to use evidence of other drug transactions would violate Federal Rule of Evidence 404(b)'s prohibition on the use of other bad acts ("404(b) evidence") to prove a defendant's bad character. See Fed.R.Evid. 404(b). The government responds by arguing that (1) evidence of the October 2013 transaction and statements regarding potential future transactions are not considered 404(b) evidence because both are "inextricably intertwined" with the charged conduct; and (2) even if considered 404(b) evidence, it would be admissible to prove Brown's knowledge of his participation in a drug transaction, his identity, or his absence of mistake. Doc. # 157 at 7-8.
The Second Circuit has provided the standard for considering uncharged evidence outside the scope of 404(b):
[E]vidence 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. Carboni, 204 F.3d 39, 44 (2d Cir. 2000).
As stated in further detail on the record, the government has failed to establish that the alleged October 2013 drug transaction is "inextricably intertwined with evidence regarding the charged offense." Id. Nor is it "necessary to complete the story of the crime on trial." Id.
The alleged events in October 2013 and the potential future transactions in New London provide context to the charged conduct only insofar as they show that Flowers and Brown have an existing drug distribution relationship. Because a conspiracy is not charged, those facts are not relevant to, nor necessary to prove, the charged conduct. Moreover, in spite of the government's attempt to argue the contrary, there is no need to admit evidence of the October 2013 transaction in order to complete the story of the allegations in the indictment.
Rather, evidence of the October 2013 transaction is being used for the sole purpose of establishing that, if Brown sold crack cocaine to Flowers in October 2013, it is more likely that he did so again on November 4, 2013, and again on December 18, ...