MEMORANDUM & ORDER
Defendant Tyquan Midyett is charged in a February 2009 superseding indictment (“Indictment”) with one count of conspiring, between May 2006 and December 2007, to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(l)(A)(iii) (Count 1); three counts of distributing and possessing with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), in, on and within 1,000 feet of (a) the real property comprising a private elementary and secondary school, and (b) the real property comprising a housing facility owned by a public housing authority in violation of 21 U.S.C. § 860(a) (Counts 2, 5 & 10); and one count of possessing a firearm after having previously been convicted of a crime punishable by a term of imprisonment exceeding one year in violation of 18 U.S.C. § 922(g)(1) (Count 11).
Pending before the court is Midyett’s oral motion, first raised on February 23, 2009 following jury selection, to preclude the government from playing a portion of the December 7, 2006 video clip of an alleged drug transaction involving Midyett and a confidential informant (“Cl”) to the jury.
The government opposed Midyett’s oral motion at the time it was made on February 23, 2009 and, with the court’s permission, submitted a written opposition on February 24, 2009. (Dkt. 277, Government’s Letter, dated February 24, 2009, in Opposition to Defendant’s February 23, 2009 Motions In Limine (“Gov.Opp.”); 2/23/09 Tr. at pp. 286-287). After consideration of the parties’ oral and written positions and for the reasons set forth herein, Midyett’s motion is granted, except as outlined below.
I. BACKGROUND
The court assumes the parties’ familiarity with the underlying facts of the instant case. See United States v. Brown, No. 07-cr-874,
As noted above, Midyett is charged, inter alia, with participating in a cocaine base distribution conspiracy (Indictment, Count 1), and distribution and possession with intent to distribute cocaine base near a school
During the five minute and seven second video clip, it appears that the Cl approaches Midyett, allegedly requests to purchase crack cocaine, and follows Midyett, at Midyett’s direction, to building 113. (12/07/06 Vid. Clip at 0:00-1:06.) While the Cl is following Mi-dyett to the building, the UF approaches the Cl and begins a conversation with the Cl that lasts for most of the remainder of the video clip (the “CI-UF conversation”). (Id. at 1:07-5:07.) While the Cl is speaking with the UF, they follow Midyett into building 113 at which time Midyett instructs the Cl, who is with the UF, to wait for him at the bottom of the stairs, and ascends the stairs himself. (Id. at 1:07-2:00.) As the Cl waits for Mi-dyett, the Cl and the UF continue to converse. (Id. at 2:01-4:26.) At the conclusion of the clip, the Cl and the UF both ascend one flight of stairs to a landing where Mi-dyett is waiting. Contrary to the government’s assertions (Gov. Opp. at p. 2; 2/23/09 Tr. at p. 286), it is unclear from the video clip whether the UF purchases crack cocaine from Midyett. The Cl appears to purchase fourteen of what the government contends are vials of crack cocaine for $42.00 from Midyett. The UF continues to speak to the Cl both during his alleged drug purchase from Midyett, as well as immediately afterward when she and the Cl, who appears to be counting his just-purchased vials, descend the stairs. (12/07/06 Vid. Clip at 4:27-5:07.)
The substance of the CI-UF conversation appears, from the video clip and transcript, to depict: (1) banter between acquaintances who have not seen each other in awhile; (2) the UF informing the Cl that she had “gotten caught,” and “if they catch me again,” she would “do one to three”; (3) the UF stating that she is going “to smoke it here”, the Cl responding “If you’re going to smoke it here, be careful,” and the UF’s further response that “You know I’m not going to”; (4) discussion about where the UF lives, her marital state in response to the Cl’s request for her number; and (5) recollections of previous experiences shared by the Cl and the UF, including the UF’s suggestion to the Cl to “hit those stores together” (collectively, the “Non-Drug Conversation”).
The Cl and the UF also appear to discuss the price Midyett was allegedly charging for the the crack cocaine. As this portion of the conversation appears to be central to the government’s opposition to Midyett’s motion to preclude, the government’s English translation follows:
Cl: What, what does he have nickels or treys?
UF1: Whom?
Cl: This one.
UF1: Treys, they’re three bucks.
Cl: Yeah? Oh ...
UF1: Three bucks.
Cl: Uh-huh. So ...
UF1: So that they won’t take you for a fool.
Cl: Yeah. He told me they are nickels and, and nah, fuck that!
UF1: No, they’re three bucks.
Cl: Yeah.
UF1: Look at what I’m going to give him.
Cl: Uh-huh.
UF1: Three bucks.
Cl: Um. All right.
UF1: [Voices overlap]. I’m going to give it to him first so that you can see.
Cl: Uh-huh.
UF1: So, that they won’t take you for a fool.
Cl: Uh-huh. One ...
UF1: So, for 20 you can buy six.
Cl: How many?
UF1: Six for 20.
Cl: [Voices overlap]. Six?
*335 UF1: Seven for 21.
Cl: Seven for 21?
UF1: Uh-huh.
Cl: Okay, then. I have 40. So, then, seven, 14 times ... 42, right? Because it’s seven for 21.
UF1: Uh-huh.
Cl: Okay, so then it’s 14 for 42.
UF1: Uh-huh.
Cl: Okay. Okay, 14 then.
(hereinafter, the “Drug Conversation”).
II. DISCUSSION
Midyett moves to preclude the entire CI-UF conversation because “it is not 801(d)(2)(E) material.”
The court finds that neither the Cl’s statements nor the UF’s statements fall under any hearsay exception under Federal Rule of Evidence (“FRE”) 803. Nor are they non-hearsay prior statements of a witness pursuant to FRE 801(d)(1), admissions of a party-opponent under 801(d)(2)(A), nor co-conspirator statements in furtherance of a conspiracy under FRE 801(d)(2)(E). Accordingly, the only avenue for admissibility of the Cl’s statements is the same avenue being proffered by the government for the UF’s statements: the statements are being proffered for the non-hearsay purposes of providing background or context and not for the truth of the matters asserted. The court finds, however, that the CI-UF conversation is inadmissible as (1) irrelevant (with regard to the Non-Drug Conversation) to the issues being tried; (2) inadmissible hearsay; and (3) any probative value is outweighed by the risk of unfair prejudice.
A. The Non-Drug Conversation Is Irrelevant Evidence And Inadmissible Under Federal Rules of Evidence 401 and 402.
The court finds that the Non-Drug Conversation between the Cl and the UF is not relevant evidence as defined by FRE 401. The Non-Drug Conversation does not have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less
B. The Drug Conversation Is Offered For The Truth Of The Matter Asserted And Is Inadmissible Hearsay.
The court also finds that the Drug Conversation between the Cl and the UF is inadmissible hearsay. Indeed, notwithstanding the government’s bald contention that the Drug Conversation is simply not hearsay, one of the non-hearsay purposes for which the government proffers such evidence supports the court’s finding that the Drug Conversation is, in fact, being offered for the truth of the matter asserted and thus, is inadmissible hearsay. Namely, the government asserts that the Drug Conversation is being proffered to “make clear why Midyett and the Cl agree on $42 as the price for the fourteen crack vials” (Gov. Opp. at p. 3). Considering, however, that the Drug Conversation proves the price charged by Midyett for the crack cocaine he allegedly sold and for which he is charged with distributing on December 7, 2006, the court is hard pressed to accept the government’s contention that the Drug Conversation is not being offered for the truth of the matter asserted, ie., that the UF was correct in informing the Cl that Midyett charged “three bucks” for each vial of crack cocaine. (12/07/06 Vid. Tr. at 3:25— 5:08.) Thus, as it is being offered for the truth of the matter asserted, the Drug Conversation constitutes hearsay and is inadmissible. See, e.g., United States v. Pedroza,
C. The Government’s Reliance On United States v. Davis Is Misplaced As The Principles Set Forth In Davis Are Wholly Inapplicable To The Instant Case.
Even assuming, arguendo, that the Drug Conversation is not hearsay, before considering the Drug Conversation’s probative value versus prejudicial effect as set forth in section 11(D), infra, the court addresses a fundamental misunderstanding by the government regarding the circumstances that will justify the admission of the Drug Conversation for the non-hearsay purpose of providing context and/or background. The government relies, to no avail, on United States v. Davis,
Under Davis, in the Seventh Circuit (as in the Second Circuit), “tape recorded conversations between a defendant and a third party informant are admissible where the defendant’s statements are offered as verbal acts or admissions and the third party’s statements are necessary to place the defendant’s statement in proper context.”
Unlike in Davis, Barone, Walker or Perez, the CI-UF Drug Conversation does not include as a participant either a defendant or a co-conspirator, whose non-hearsay statements would be admissible as admissions under FRE 801(d)(2)(A) or as co-conspirators’ statements in furtherance of a conspiracy under FRE 801(d)(2)(E), respectively. Moreover, neither the Cl’s nor the UF’s statements during the Drug Conversation could be classified as non-hearsay under Bar-one and its progeny, irrespective of the fact that neither of the parties to the conversation is a defendant or co-conspirator. Indeed, instead of focusing on the identity of the parties in the conversation, Perez suggests that “what matters is whether the statements for which the informant’s statements provide context are hearsay.”
D. The Drug Conversation Is Inadmissible For The Non-Hearsay Purpose Of Providing Context As Its Prejudicial Effect Outweighs Its Probative Value.
The appropriate analysis to determine the admissibility of out-of-court statements offered for a purpose other than the truth is grounded in Federal Rules of Evidence 401 and 403. United States v. Paulino,
In determining the relevance and importance of such evidence, courts have asked:
(i) Does the background ... evidence contribute to the proof of the defendant’s guilt? ... (ii) If so, how important is it to the jury’s understanding of the issues? (iii) Can the needed explanation of background ... be adequately communicated by other less prejudicial evidence or by instructions? (iv) Has the defendant engaged in a tactic that justifiably opens the door to such evidence to avoid prejudice to the Government?
Reyes,
(v) Does the declaration address an important disputed issue in the trial? ... Is the same information shown by other uncontested evidence? ... (vi) Was the statement made by a knowledgeable declarant so that it is likely to be credited by the jury? (vii) Will the declarant testify at trial, thus rendering him available for cross-ex*338 amination? If so, will he testify to the same effect as the out-of-court statement? Is the out-of-court statement admissible in any event as a prior consistent, or inconsistent, statement? (viii) Can curative or limiting instructions effectively protect against misuse or prejudice?
Id. at 70-1. In this case, virtually every variable weighs against the admission of the evidence of the CI-UF Drug conversation.
The non-hearsay purpose proffered by the government to introduce the Drug Conversation is to put “Midyett’s actions in context.” (Gov. Opp. at p. 3.) Although the government does not specify which of Midyett’s actions the Drug Conversation will put into context, the government asserts that such evidence will (1) demonstrate that Midyett is “out there on a regular basis and part of this conspiracy as opposed to just a random — you know, a person who sells one or two vials here and there,” and (2) “make clear why Midyett and the Cl agree on $42 as the price for the fourteen crack vials.” (2/23/09 Tr. at pp. 286-7; Gov. Opp. at pp. 2-3.) The court finds that the government’s proffered non-hearsay purpose for the Drug Conversation is only minimally relevant with respect to Midyett’s drug conspiracy charge, but is relevant to the charge against Midyett for drug distribution on December 7, 2006.
“The only elements of a ... narcotics conspiracy offense are the existence of a conspiracy and the defendant’s willful joining it.” United States v. Torres, No. 1:07-cr-15,
The outcome differs with respect to the charge against Midyett for drug distribution on December 7, 2006. The elements of an offense for drug distribution are the knowing possession of a quantity of drugs with the intent to distribute them. Morales v. United States, No. 01-cv-7194,
The court next weighs its finding of relevance against the risk for unfair prejudice resulting from the admission of the statements made by the CF and the UF during the Drug Conversation and finds that the risk of prejudice posed substantially outweighs the probative value of such evidence. The potential for prejudice, if these statements were admitted at trial, is great because: (1) the Drug Conversation relates to important issues in dispute, i.e., whether Mi-dyett deals crack cocaine; (2) although the
Accordingly, as the risk of unfair prejudice significantly outweighs the probative value of the Drug Conversation for the proffered non-hearsay purpose of providing context, and as the court has found that the Non-Drug Conversation is inadmissible as irrelevant evidence, the court grants Midyett’s motion to preclude the government from introducing (in the video clip, in the complete video, and in the transcript,) the Non-Drug Conversation and, except as provided herein, specific portions of the CI-UF Drug Conversation, taking into account some practical and technical considerations. The court notes that limited portions of the CI-UF conversation overlap with segments of the video where Midyett is present and/or where Midyett is speaking. Midyett’s statements on the video, however, are admissible as defendant admissions under Rule 801(d)(2)(A). Thus, as defense counsel represented at the February 23, 2009 conference following the jury selection that he could “live with” “little snippets” of inconsequential conversation between the Cl and others (2/23/09 Tr. at p. 282,) the court rules as follows: (1) The government shall remove the audio from 1:07 through 1:49 of the 12/07/06 video clip (GX 54, 12.7.2006_CD9.wmv); the government shall remove the audio from the corresponding section from the complete 12/07/06 video (GX 5), i.e., from 14:27:54 through 14:28:38; and the government shall redact the corresponding lines from the transcript (GX 5A), ie., lines 2:03 through 2:21.(2) The government shall remove the audio from 2:01 through 4:26 of the 12/07/06 video clip (GX 54, 12.7.2006_CD9.wmv); the government shall remove the audio from the corresponding section from the complete 12/07/06 video (GX 5), ie., 14:28:38 through 14:30:57; and the government shall redact the corresponding lines from the transcript (GX 5A), ie., lines 3:01 through 6:10.(3) The remaining audio and visual portions of the 12/07/06 video clip (GX 54, 12.7.2006_CD9.wmv) and the corresponding sections from the complete 12/07/06 video (GX5) and the transcript (GX 5A) shall remain intact and may be played for the jury.
III. CONCLUSION
For the foregoing reasons, the court grants Midyett’s motion to preclude the government from introducing (in the video clip, in the complete video, and in the transcript,) the Non-Drug Conversation in its entirety, and specific sections of the CI-UF Drug Conversation within the practical and technical considerations delineated above.
SO ORDERED.
Notes
. Although Midyett did not specifically move to preclude the corresponding objectionable sections of the 12/07/06 video clip from the 12/07/06 transcript and the complete 12/07/06 video, the court shall consider the motion as seeking to preclude the government from introducing the objectionable sections from all three sources, i.e., the 12/07/06 video clip, the transcript and the complete video. Transcript of Jury Selection on February 23, 2009 (“2/23/09 Tr.”), at pp. 281-83, 286-89; see Government Exhibit ("GX”) 54, video clip 12.7.2006_CD9.wmv ("12/07/06 Vid. Clip”); GX 5A, Transcript of 12.7.2006_CD9.wmv video clip ("12/07/06 Vid. Tr.”); GX 5, 12/07/2006 Video, including transaction between confidential informant and Mi-dyett, in its entirety ("Complete 12/07/06 Vid.”)
. The court notes that, although the substance of the Cl and UF's conversation is not always entirely clear, the court attempted to parse the meaning of the more vague portions of the CI-UF conversation by viewing the complete video, approximately twenty-five minutes, from the Cl’s session on December 7, 2006. (See Complete 12/07/06 Vid.)
. With regard to the events depicted in the video and set forth in the corresponding transcript, the court makes no finding of fact except for purposes of this motion. Factual determinations are the sole province of the jury.
. Fed.R.Evid. 801(d)(2)(E) provides in relevant part:
A statement is not hearsay if ... The statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
. Although the government only refers to the Drug Conversation in its oral argument and opposition papers, for purposes of Midyett’s motion to preclude the entire CI-UF conversation at pages 2 through 6 of the transcript of the 12/07/06 video clip, the court will consider the government’s opposition to apply to the entire disputed CI-UF conversation, including the Non-Drug Conversation and the Drug Conversation. (See Gov. Opp. at pp. 2-3; 2/23/09 Tr. at 286-87.)
. Federal Rule of Evidence 402 provides in relevant part that “All relevant evidence is admissible .... Evidence which is not relevant is not admissible.” Fed.R.Evid. 402.
. As the court determines that there is no legitimate need for such background and/or context with respect to the drug conspiracy charge, the statements are, in reality, being offered to prove the truth of the matter asserted, and is thus, inadmissible hearsay.
. Although not in dispute, the court notes that the Cl's statements to Midyett during his conversation with Midyett are admissible non-hearsay as Midyett’s statements are non-hearsay defendant admissions and the Cl’s statements are simply being offered to place Midyett’s admissions in proper context. See Barone,