U.S. v. Ozsusamlar

• Decision Date: 18 April 2006
• Docket Number: No. S1 05 CR. 1077(PKL).,S1 05 CR. 1077(PKL).
• Citation: 428 F.Supp.2d 161
• Parties: UNITED STATES of America, Plaintiff, v. Mustafa OZSUSAMLAR and Osman Ozsusamlar, Defendants.
• Court: U.S. District Court — Southern District of New York

428 F.Supp.2d 161

UNITED STATES of America, Plaintiff, v. Mustafa OZSUSAMLAR and Osman Ozsusamlar, Defendants.

No. S1 05 CR. 1077(PKL).

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

April 18, 2006.

COPYRIGHT MATERIAL OMITTED

B. Alan Seidler, New York, NY, for Mustafa Ozsusamlar.

Joyce Clemow London, Law Office of Joyce C. London, New York, NY, for Osman Ozsusamlar.

Alexander H. Southwell, Miriam Elizabeth Rocah, U.S. Attorney's Office, SDNY, New York, NY, for U.S.

OPINION AND ORDER

LEISURE, District Judge.

A Grand Jury indicted the defendants in this case, Osman Ozsusamlar ("Osman") and Mustafa Ozsusamlar ("Mustafa"), on October 17, 2005. On January 4, 2006, the Grand Jury returned a Superseding Indictment, charging both defendants with three counts each: one count of conspiracy to commit a murder for hire in violation of Title 18, United States Code, section 1958(b); one count of murder for hire in violation of Title 18, United States Code, sections 2 and 1958; and one count of conspiracy to commit extortion in violation of Title 18, United States Code, section 1951. The Government previously moved in limine for a ruling allowing it to introduce, in its case-in-chief, evidence that Mustafa was involved in a previous extortion that included threats of violence. The Government submitted that the evidence was admissible pursuant to Federal Rule of Evidence 404(b) to prove intent, knowledge, and absence of mistake or accident. That motion was denied on the ground that it was premature as Mustafa had not yet placed his intent at issue. The Government has now renewed its motion on the ground that Mustafa has not adequately removed the issue of intent from this trial. For the reasons set forth below, the Government's motion is GRANTED.

BACKGROUND

The defendants are father and son: Mustafa is the father and Osman is the son. According to the Government, the victims of the murder-for-hire scheme were a husband and wife who owed approximately $283,000 to the two defendants. (Gov't Letter Supp. Mot. 2, Mar. 23, 2006 ("Gov't Letter").) Mustafa, while incarcerated at the Metropolitan Correctional Center (the "MCC") pending sentencing following his conviction in a separate case, asked a fellow prisoner (the "CW") if he knew of someone who could collect the debt, by force if necessary, and kill the husband and/or wife¹ after the debt was collected, offering to pay the killer ten percent of the money collected. (Gov't Letter 2.) The CW reported the scheme to the Government, who, through the CW, supplied Mustafa with the contact information and first name of an undercover officer posing as a collector/hit man. (Gov't Letter 2.) Mustafa directed Osman to locate the victims' address and contact the undercover officer. (Gov't Letter 2.) Osman contacted the undercover officer and arranged a meeting, at which the two discussed the details of the scheme. (Gov't Letter 3.) Some time later, the undercover officer called Osman to tell him that he had carried out the scheme and that he had collected the debt. (Gov't Letter 3.) Osman and the undercover officer made arrangements to meet, and Osman was arrested when he arrived at the agreed-upon location. (Gov't Letter 3.)

The Government seeks to admit evidence, pursuant to Federal Rule of Evidence 804(b)(1), that Mustafa was involved in a previous extortion that included threats of violence. This evidence will consist of the prior sworn testimony of two witnesses who testified at a 1995 jury trial of Mustafa in the District of New Jersey on one count of conspiracy to take hostages and one count of hostage taking, in addition to several counts of alien smuggling. (Gov't Letter Supp. Renew Mot. 3, Apr. 14, 2006; Gov't Letter 5, 9 n. 6.) At the 1995 trial, Nermin Durson and Adnan Dikili testified that in or about July 1994, Mustafa, with the help of Osman, arranged for four aliens, including Durson, to be smuggled into the United States for a fee of approximately $10,000 per alien. (Gov't Letter 5.) They also testified that Mustafa brought Durson to Paterson, New Jersey, and demanded additional money from Dikili, who was Durson's boyfriend and who was living in Turkey at that time, before he would release Durson unharmed. (Gov't Letter 5.) The jury convicted Mustafa on all counts, but the Honorable Dickenson R. Debevoise, U.S. District Judge for the District of New Jersey, entered a judgment of acquittal on the two hostagetaking counts.

DISCUSSION

I. Motions in Limine

A motion in limine allows 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, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) (noting that, "[a]lthough the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials"); 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). The trial court should exclude evidence on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. See United States v. Van Putten, No. 04 Cr. 803, 2005 WL 612723, at *3 (S.D.N.Y. Mar.15, 2005) (Leisure, J.) (citing Noble v. Sheahan, 116 F.Supp.2d 966, 969 (N.D.Ill.2000)); see also Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94 Civ. 5220, 1998 WL 665138, at *3 (S.D.N.Y. Sept.25, 1998) (denying a motion in limine to preclude presentation of evidence regarding a potential punitive damages claim because the motion was too sweeping in scope to be considered prior to trial). 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 (citing Hawthorne Partners v. AT&T Techs., Inc., 831 F.Supp. 1398, 1400 (N.D.Ill. 1993)). Further, a 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 v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984).

II. Rule 404(b) Standards

Federal Rule of Evidence 404(b) provides in pertinent 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 that should be followed by courts 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) (Rehnquist, C.J.)). The Second Circuit has adopted an "inclusionary approach" under Rule 404(b), admitting evidence of prior 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) (citations omitted); see also United States v. Colon, 880 F.2d 650, 656 (2d Cir.1989). The Court need only determine by a preponderance of the evidence under Rule 104(a) whether a jury could reasonably find that the defendant committed the proffered prior acts. See Huddleston, 485 U.S. at 687-90, 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, in its memorandum in support of its in limine motion, informed the Court that it expected that the main issue in dispute at trial would be whether defendants intended to have the victims killed or to use force to collect the debt. (Gov't Letter 7.) The Government believed it most likely that defendants would argue that they merely were attempting to collect an outstanding debt and that the plot to use force or violence was a mistake or accident. (Gov't Letter 7.) The Government submitted that the prior testimony of Dikili and Durson is probative of Mustafa's intent because it establishes that defendants previously used similar tactics—viz., threats of violence—to collect money. (Gov't Letter 7.)

It is well settled that evidence of prior acts may be admitted to show a defendant's knowledge or intent. See United States v. Bok, 156 F.3d 157, 165-66 (2d Cir.1998) (finding trial court acted within its discretion in allowing admission of defendant's tax-paying record to prove his intent to commit tax evasion); United States v. Clemente, 22 F.3d 477, 482-83 (2d Cir.1994) (finding district court's admission of similar act evidence on issues of knowledge and intent proper); United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir.1993) ("Where a defendant claims that his conduct has an innocent explanation, prior act evidence is generally admissible to prove that defendant acted with the state of mind necessary to commit the offense charged."). However, evidence of a prior act "should not be admitted as proof of the defendant's knowledge or intent unless the other act is `sufficiently similar to the conduct at issue to permit the jury reasonably to draw from that act the knowledge [or intent] inference advocated by the proponent of the evidence.'" United States v. Aminy, 15 F.3d 258, 260 (2d Cir.1994) (Kearse, J.) (quoting...