United States District Court, D. Vermont
OPINION AND ORDER
WILLIAM K. SESSIONS, III, District Judge.
The parties have submitted several pretrial motions. This memorandum and order addresses the Government's Motions in Limine, ECF No. 304, and Defendant's Motions in Limine, ECF No. 324.
I. Government's Motions in Limine
The Government has filed several motions in limine. First, the Government seeks to admit evidence of Nastri's other alleged criminal activity, including the conspiracy's distribution of drugs in addition to heroin in Vermont and in Maine, and evidence of Defendant's attempts to acquire narcotics to sell in jail while incarcerated for this charge. The Government has also moved to exclude references to witnesses' child custody matters during cross-examination. Finally, the Government moves to admit evidence of Nastri's prior felony drug convictions as impeachment if he testifies.
A. Evidence of other criminal activity
The Government seeks to introduce evidence of Nastri's alleged additional criminal activity including (a) the conspiracy's distribution of crack and powder cocaine and prescription pills (in addition to heroin) in Vermont; (b) the conspiracy's trafficking in crack and powder cocaine and prescription pills in Maine during and after the charged period of heroin distribution in Vermont; and (c) Nastri's alleged attempts to acquire narcotics to sell in jail. The Government argues that this evidence is intrinsically relevant to the charged offense, or, in the alternative, that it is admissible under Fed.R.Evid. 404(b)(2).
Evidence of an uncharged crime is not "other act" evidence proscribed by Rule 404(b)(1) if it "(1) arose out of same transaction or series of transactions; (2) is inextricably intertwined with the evidence regarding the charged offense; or (3) is necessary to complete the story of the crime on trial." United States v. Gonzalez, 110 F.3d 936, 942 (2d Cir. 1997)(internal quotations omitted). Evidence falling within these categories may be admitted without regard to Rule 404(b). In conspiracy cases, the Second Circuit has found other acts evidence admissible to "inform the jury of the background of the conspiracy charged, to complete the story of the crimes charged, and to help explain to the jury how the illegal relationship between the participants in the crime developed." United States v. Williams, 205 F.3d 23, 33-34 (2d Cir. 2000)(quoting United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992)).
In the alternative, the Government seeks to admit the evidence under Rule 404(b)(2), which provides that evidence of other acts may be admissible to prove "motive, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed.R.Evid. 404(b). The Second Circuit follows "an inclusionary rule, allowing the admission of such evidence for any purpose other than to show a defendant's criminal propensity, as long as the evidence is relevant and satisfies the probative-prejudice balancing test of Rule 403 of the Federal Rules of Evidence." United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994).
1. Evidence of Trafficking in Other Drugs
Defendant Nastri has been charged with conspiracy to distribute heroin. The Government seeks to introduce evidence regarding the alleged conspiracy's trafficking in other illegal substances beyond heroin, such as crack and powder cocaine and prescription drugs. The Government seeks to introduce this evidence for multiple reasons. The trafficking of other drugs "arose out of the same transaction or series of transactions" as it occurred alongside the heroin trafficking and involved the same conspirators. Gonzalez, 110 F.3d at 942. The Government contends that it would therefore be impossible to disentangle evidence of other drug trafficking from evidence relating only to heroin trafficking, and that doing so would leave the jury with an "incomplete, distorted narrative" of the alleged conspiracy's activities. Because the heroin trafficking occurred alongside trafficking in other substances, admission of this evidence would "enabl[e] the jury to understand the complete story of the crimes charged." United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009) (quotations omitted). As a result, it is "inextricably intertwined" with the evidence of the charged offense, therefore making it admissible evidence under Gonzalez. 110 F.3d at 942. The Court therefore finds that this evidence is intrinsically relevant to the charged offense such to make its admission appropriate.
Furthermore, the probative value of this evidence outweighs its potential prejudicial effect such to satisfy the Rule 403 balancing test. The prejudicial effect of the evidence would not outweigh its probative value because it concerns conduct that is equally or less serious than the charged conduct. See Mercado, 573 F.3d at 141-42 (finding evidence of uncharged gun crime satisfied Rule 403 with respect to count involving possession of firearm because the evidence was "not especially worse or shocking than the transactions charged"). Defendant argues that references to other drugs (in particular, crack cocaine) would be prejudicial because of the public's negative associations with these drugs. However, any concerns about negative public associations apply equally to the heroin trade, the conduct actually charged. The evidence of other drug trafficking therefore satisfies the probative-prejudice balancing test under Rule 403.
2. Evidence of Drug Trafficking in Maine
The First Superseding Indictment charges Nastri with conspiring to distribute heroin in Vermont "and elsewhere" from Spring 2011 to April 2013. The Government also seeks to admit evidence that the conspiracy trafficked in heroin and other drugs in Maine during and after the time the conspiracy occurred in Vermont. This evidence is admissible under Gonzalez for largely the same reasons as the evidence of other drug trafficking in Vermont: the sales in Maine were part of the same series of drug transactions and involved some of the same conspirators, and therefore "arose out of the same transaction or series of transactions;" evidence of these sales is "inextricably linked" with the evidence of the charged offense (as the charged offense includes conduct "elsewhere"); and the evidence helps "complete the story of the crime on trial" because the evidence regarding Nastri's activity in Maine explains why his conduct in Vermont did not span the entire conspiracy period. Finally, this evidence is particularly relevant to the conspiracy because it helps "explain to the jury how the illegal relationship between the participants in the crime developed"; several of the co-conspirators, including Nicole Rivers and Raven Peres, served as drug distributors in Maine. Thus, evidence of drug trafficking in Maine is also admissible under Rule 404(b).
This evidence also meets the requirements of Rule 403 because the alleged conduct that took place in Maine is essentially identical to the Vermont conduct. Thus, it would not be unfairly prejudicial to admit this evidence as ...