U.S. v. Midyett

• Decision Date: 22 February 2009
• Docket Number: No. 07-CR-874 (KAM).,07-CR-874 (KAM).
• Parties: UNITED STATES of America v. Tyquan MIDYETT, Defendants.
• Court: U.S. District Court — Eastern District of New York

603 F.Supp.2d 450

UNITED STATES of America v. Tyquan MIDYETT, Defendants.

No. 07-CR-874 (KAM).

United States District Court, E.D. New York.

February 22, 2009.

David Bitkower, United States Attorneys Office, Eastern District of New York, Brooklyn, NY, for Plaintiff.

Joel S. Cohen, New York, NY, for Defendants.

MEMORANDUM & ORDER

MATSUMOTO, District Judge:

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)(1)(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).

By letter dated July 8, 2008, the government moves in limine to introduce at trial evidence of Midyett's uncharged criminal act of allegedly possessing a gun on December 10, 2007,¹ as well as his November 30, 2000 arrest and subsequent conviction on March 7, 2001 for criminal possession of a controlled substance in the third degree.² (Dkt. 95, Government's Letter Motion to Introduce Evidence Pursuant to Rule 404(b) ("Gov. Mem."), dated July 8, 2008, pp. 1-3.) For the reasons set forth herein, the government's motion is granted in part and denied in part.

I. BACKGROUND

The charges in the Indictment stem from Midyett's alleged involvement in a conspiracy to sell crack cocaine in and around the Marcy Houses, a public housing complex run by the New York City Housing Authority in the Bedford-Stuyvesant neighborhood in Brooklyn, New York, beginning in or around May 2006 and terminating in or around December 2007.³ (Indictment, Count 1.) The government intends to present evidence that (1) Midyett participated in several crack cocaine transactions as part of the alleged conspiracy, some of which were captured on videotape; (2) during one of these videotaped narcotics transactions, on July 3, 2007, Midyett showed a cooperating witness a gun, which he referred to as the "Atlanta Police" handgun; (3) Midyett was arrested on January 9, 2007, along with co-defendant Michael Brown, during a search of Brown's apartment at 125 Nostrand Avenue, from which officers seized 60-70 vials of crack cocaine and a .22 caliber revolver; from outside the apartment, officers also recovered additional vials of crack cocaine in a Ziploc-style bag, which had allegedly been thrown from Brown's bathroom window; and (4) Midyett was again arrested for selling vials of crack cocaine to an undercover police officer at the Marcy Houses on December 10, 2007 and that the officer observed "the handle of a gun" on Midyett's person during the transaction; the gun was never recovered. (Gov. Reply at p. 3; dkt. 224, Government's Sur-Reply in Support of Motion to Introduce Evidence Pursuant to Rule 404(b) ("Gov. Sur-Reply"), dated January 12, 2009, at p. 2); U.S. v. Brown et al., 596 F.Supp.2d 611, 616-24 (E.D.N.Y.2009); U.S. v. Midyett, No. 07-cr-874, 2009 WL 363905, at *4, *5, 2009 U.S. Dist. LEXIS 8865, at *13, *15 (E.D.N.Y. Feb. 6, 2009).

In the instant motion, the government seeks, inter alia, to introduce evidence of Midyett's arrest on November 30, 2000 at 125 Nostrand Avenue in the Marcy Houses in Brooklyn, New York under Federal Rule of Evidence 404(b). (Gov. Mem. at p. 3.) The government intends to offer evidence that the police officer allegedly observed Midyett having difficulty opening a door and when he inquired whether there was a problem, Midyett allegedly attempted to grab the officer's gun, attempted to assault the officer, and attempted to flee. (Id.) Midyett denies these allegations of a struggle with the police officer. (Dkt. 185, Midyett's Response In Opposition to the Government's Motion to Introduce Evidence Pursuant to Rule 404(b) ("Midyett Response"), dated December 1, 2008, at p. 4.) The government also seeks to introduce evidence that, upon his arrest, Midyett was found in possession of 60 vials of crack cocaine and subsequently pleaded guilty on March 7, 2001 to criminal possession of a controlled substance in the third degree, and was sentenced to one to three years in prison. (Gov. Mem. at p. 3.)

The government also moves for the admission of evidence pursuant to Rule 404(b), or as direct proof of the drug conspiracy, or both, that, on December 10, 2007, Midyett was observed in possession of a firearm, specifically, a .9 millimeter Smith and Wesson. (Gov. Reply at p. 20 & n. 3.)

Midyett argues in essence that the proffered evidence should be precluded under Federal Rule of Evidence 403, because its limited probative value is substantially outweighed by the danger of unfair prejudice. (Midyett Response at pp. 2-4.) Midyett also contends that the proffered evidence is outside the scope of the conspiracy, and thus, is not relevant under Federal Rule of Evidence 402, however, as superseded in February 2009, the Indictment now charges that the conspiracy existed between May 2006 and December 2007. (Midyett Response at pp. 4-5; Dkt. 211, Midyett's Sur-Reply in Opposition to the Government's Motion to Introduce Evidence Pursuant to Rule 404(b) ("Midyett Sur-Reply"), dated December 23, 2008, at pp. 1-2); see supra at p. 452 n. 3 & infra at p. 461 n. 7.

II. DISCUSSION

A. MOTION IN LIMINE

The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n. 2, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.1996); Nat'l. Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F.Supp. 276, 283 (S.D.N.Y. 1996). Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. See also Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94-cv-5520, 1998 WL 665138, at *3, 1998 U.S. Dist. LEXIS 15093, at *11 (S.D.N.Y. Sept. 25, 1998). Indeed, courts considering a motion in limine may reserve judgment until trial, so that the motion is placed in the appropriate factual context. See Nat'l. Union Fire Ins. Co., 937 F.Supp. at 287. Further, the court's ruling regarding a motion in limine is "subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the [movant's] proffer." Luce, 469 U.S. at 41, 105 S.Ct. 460.

B. ADMISSIBILITY OF MIDYETT'S NOVEMBER 30, 2000 ARREST AND SUBSEQUENT MARCH 7, 2001 CONVICTION UNDER RULE 404(b)

The government moves to admit evidence of Midyett's November 30, 2000 arrest at 125 Nostrand Avenue, Brooklyn, New York and his subsequent March 7, 2001 conviction for criminal possession, as "other act" evidence, pursuant to Rule 404(b), regarding charges against Midyett for, inter alia, drug possession and distribution. Federal Rule of Evidence 404(b) provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .

Fed.R.Evid. 404(b).

The Supreme Court has set forth four requirements for courts to follow in exercising their discretion under Rule 404(b): "Prior bad-acts evidence must be (1) offered for a proper purpose, (2) relevant, and (3) substantially more probative than prejudicial. In addition, (4) at defendant's request, the district court should give the jury an appropriate limiting instruction." United States v. Downing, 297 F.3d 52, 58 (2d Cir.2002) (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). Courts of the Second Circuit have adopted an "inclusionary approach" under Rule 404(b), admitting evidence of other crimes, wrongs or acts "unless it is introduced for the sole purpose of showing defendant's bad character, or unless it is overly prejudicial under Fed.R.Evid. 403 or not relevant under Fed.R.Evid. 402." United States v. Pascarella, 84 F.3d 61, 69 (2d Cir.1996). In the Rule 404(b) context, the court need only determine that a "jury [could have] reasonably conclude[d] that the [other] act occurred and that the defendant was the actor." See Huddleston, 485 U.S. at 689, 108 S.Ct. 1496. The district court has broad discretion to admit evidence pursuant to Rule 404(b), and its ruling will not be overturned on appeal absent abuse of discretion. See United States v. Carboni, 204 F.3d 39, 44 (2d Cir.2000).

The Government contends that evidence of Midyett's November 30, 2000 arrest and subsequent March 2001 conviction are admissible under Rule 404(b) because such evidence is probative of Midyett's knowledge and/or intent, and thus, may rebut any defense in which Midyett claims a lack of requisite knowledge and/or intent. Indeed, the government asserts that Midyett has already proffered defense theories that bring his state-of-mind into question. Namely, based on Midyett's own affidavit regarding his January 9, 2007 arrest, the government contends that Midyett intends to pursue a "mere presence" defense theory with respect to any charges stemming from the January 9, 2007 arrest. (Dkt. 147, Midyett Affidavit ("Midyett Aff."), sworn on September 10, 2008, at ¶¶ 2-3; Gov. Reply at pp. 15-16.)

In this affidavit, Midyett states that, on January 9, 2007, he was "visiting a legal resident of [125...