United States v. ACKIES, 2:16-cr-00020

Defendant Carey Ackies charged in a two-count indictment for conspiracy to possess with intent to distribute heroin and 28+ grams of cocaine base, and possession with intent to distribute those drugs (and aiding and abetting), with alleged conduct circa January 18, 2016.
Government intends to call two cooperating witnesses (Witness #1 and Witness #2) who will testify about multiple prior drug transactions and contacts with Ackies beginning in 2015 (meetings in New York and transfers via bus/Amtrak to Maine).
Witness #1 will describe meeting Ackies in April 2015, discussing supply of heroin, crack, and oxycodone, deliveries via couriers at the Concord Coach Bus station, and plans to deliver large quantities to Maine.
Witness #2 will describe making ‘‘runs’’ for Ackies, transporting drugs from New York to Maine (backpack exchanges at bus stations), delivering proceeds to Ackies, and picking up packages from Ackies’s apartment and a stash location.
Ackies moved in limine to preclude this testimony as neither intrinsic to the charged offenses nor admissible under Fed. R. Evid. 404(b), and as unduly prejudicial under Rule 403.
The Court denied the motion, holding the prior contacts were intrinsic to the conspiracy or, alternatively, admissible under Rule 404(b), and that their probative value was not substantially outweighed by unfair prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of pre-2016 drug transactions	Testimony is admissible as intrinsic evidence or, alternatively, under Rule 404(b) to show motive, intent, plan, knowledge, identity	Prior transactions are unrelated "other acts" that should be excluded under Rule 404(b) and Rule 403 as unduly prejudicial	Court: Transactions are intrinsic to the charged conspiracy and, alternatively, admissible under Rule 404(b); motion denied
Whether evidence is necessary to tell the story of the crime	Gov: Prior contacts explain how conspirators "came together" and the development of the illegal relationship	Ackies: Prior transactions are distinct and remote from the charged conduct	Court: Such evidence completes the narrative and proves agreement — intrinsic evidence doctrine applies
Use of Rule 404(b) as alternative basis	Gov: 404(b) notice provided; prior acts admissible to prove motive, intent, preparation, plan, knowledge, identity	Ackies: 404(b) should not be used to admit propensity evidence	Court: 404(b) would permit admission for legitimate purposes; limiting instruction will be given if requested
Risk of unfair prejudice under Rule 403	Gov: Probative value is high (explaining conspiracy formation and agreement)	Ackies: Pretrial acts would unfairly prejudice jury to convict for prior bad acts	Court: Probative value not substantially outweighed by unfair prejudice; Rule 403 exclusion not warranted

United States v. Gobbi, 471 F.3d 302 (1st Cir.) (distinguishes intrinsic evidence from other-acts evidence)
United States v. Souza, 749 F.3d 74 (1st Cir.) (prior acts intrinsic when they complete the story or go to an element of the offense)
United States v. Taylor, 284 F.3d 95 (1st Cir.) (evidence necessary to complete the story of the charged crime is intrinsic)
United States v. Robles-Alvarez, 874 F.3d 46 (1st Cir.) (prior smuggling trip admissible as intrinsic because it explained formation of conspiracy)
United States v. Medina-Martinez, 396 F.3d 1 (1st Cir.) (conspiracy requires proof of an agreement)
United States v. Green, 698 F.3d 48 (1st Cir.) (other-acts evidence in conspiracy cases may explain background, formation, and mutual trust of conspirators)