469 F.Supp.3d 193
S.D.N.Y.2019Background
- Defendants Johnson, Green, and Murray are charged in an S5 indictment with RICO racketeering conspiracy, narcotics conspiracy, and multiple firearms and violence-related offenses arising from alleged membership/leadership in the "Blood Hound Brims" (trial set for Feb. 19, 2019).
- Government moved in limine to admit (a) evidence of defendants' incarceration during the conspiracy, (b) certain post-indictment/co‑defendant statements from incarcerated declarants as co‑conspirator statements, (c) excerpts from a rap video, (d) charts summarizing voluminous jail records, and (e) specified uncharged violent acts; it also sought limits on certain cross‑examination topics.
- Defendants moved to exclude various categories: specific uncharged violent acts, prior arrests/convictions, certain drug‑seizure evidence, rap videos, ballistics/chemist testimony, and to limit impeachment/cross‑examination on unrelated civil suits and other collateral matters.
- Court applied RICO/intrinsic‑evidence principles, Fed. R. Evid. 404(b), 403, 801(d)(2)(E), and 609 to evaluate admissibility, balancing probative value against unfair prejudice and considering whether uncharged acts were "inextricably intertwined" with the charged enterprise or admissible to prove the enterprise/pattern.
- Key rulings: several uncharged violent acts and robberies admitted as direct evidence of the RICO enterprise (where they related to robberies/discipline/recruitment); some acts excluded (e.g., a 2010 tow‑truck assault, Mandela Store shooting excluded as direct evidence but parts admissible as statements in furtherance); evidence of Johnson's and Murray's incarcerations admitted as intrinsic background (Green's limited incarceration excluded); rap video excerpts excluded as more prejudicial than probative; certain co‑conspirator prison‑statements admitted and others excluded; Murray's challenge to the 2010 suppressed‑firearm claim waived and his civil‑suit cross‑examination limited in scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of uncharged violent acts as intrinsic RICO evidence | Govt: acts show pattern, enterprise, promotion/enrichment and are "direct evidence" of RICO (not 404(b)) | Johnson/Murray: incidents unrelated or too remote; require 404(b) and are unfairly prejudicial under Rule 403 | Court admitted incidents that fit enterprise purposes (robberies, disciplinary/retaliatory violence, recruitment) and excluded those with weak nexus (e.g., tow‑truck assault; Mandela shooting excluded as direct evidence though aspects admissible as statements) |
| Admission of incarceration evidence | Govt: prison/incarceration is intrinsic to the story of this prison‑origin gang; shows operation, recruitment, communications | Defs: pervasive prejudice from revealing incarceration; risks undermining presumption of innocence | Admitted for Johnson and Murray (central to enterprise and specific prison communications); denied for Green (brief incarceration, proffer too speculative); limiting instruction and no reasons for prior incarcerations to be elicited on direct case |
| Co‑conspirator statements (post‑indictment, in prison) under Fed. R. Evid. 801(d)(2)(E) | Govt: statements made during incarceration furthered conspiracy (recruitment, warnings, ‘‘fire on sight,’’ efforts to silence or to recruit) | Defs: many proffers vague or post‑indictment; some declarants (e.g., rival gang member) not part of same conspiracy; some statements mere bragging | Admitted statements that: were admissions against interest, aimed to protect/advance conspiracy (recruitment, warnings, orders to silence) or informed co‑conspirators; excluded bragging/past‑only boasts and statements lacking independent corroboration or nexus to the conspiracy |
| Rap video excerpts and lyrics | Govt: lyrics/videos promote gang, warn rivals, foster cohesion; admissible as adoptive or co‑conspirator statements | Defs: tenuous connection to charged activity, highly prejudicial and inflammatory | Excluded: court found insufficient direct reference to BHB/activities and unfair prejudice outweighed probative value under Rule 403 |
| Murray's Aug. 14, 2010 firearm seizure and civil suit | Govt: seeks to introduce firearm possession evidence; limit cross‑examination on civil suit merits | Murray: firearm was suppressed in state court; civil suits show official misconduct; impeachment on lawsuits necessary for bias/credibility | Court: Murray waived suppression motion (no timely pretrial suppression); firearm evidence admissible; cross‑examination of Officer Villavizar on traffic stop and bias allowed but details of court decisions/settlement and collateral litigation excluded under Rule 403; limited scope for questions about alleged precinct harassment reserved pending proffers |
| Chemist testimony on old drug test (Green) | Govt: lab tests show cocaine; reanalysis for cocaine base was "not confirmed" but disclosure timely | Green: late identification of test notes; ambiguous language requires defense expert and preclusion | Court: disclosures were timely and interpretable (positive cocaine test; ‘‘not confirmed’’ for base); chemist testimony allowed |
Key Cases Cited
- Baez v. United States, 349 F.3d 90 (2d Cir.) (RICO prosecutions may admit uncharged offenses to establish enterprise and pattern)
- Mejia v. United States, 545 F.3d 179 (2d Cir.) (discussion of enterprise/proof of pattern in racketeering cases)
- Basciano v. United States, 599 F.3d 184 (2d Cir.) (uncharged acts admissible to prove existence/nature of RICO enterprise)
- Vernace v. United States, 811 F.3d 609 (2d Cir.) (violence arising from personal disputes can, in some circumstances, be RICO‑related)
- Smith v. United States, 568 U.S. 106 (2013) (defendant bears burden to prove withdrawal from conspiracy; conspiracy is continuing)
- Bourjaily v. United States, 483 U.S. 171 (1987) (preponderance standard for preliminary finding of conspiracy for co‑conspirator statements)
- Paulino v. United States, 445 F.3d 211 (2d Cir.) (Rule 403 prejudice standard: evidence not unduly prejudicial if not more inflammatory than charged crime)