United States v. Johnson, S5 16 Cr. 281 (PGG)

• Citation: 469 F.Supp.3d 193
• Decision Date: 16 February 2019
• Docket Number: S5 16 Cr. 281 (PGG)
• Parties: UNITED STATES of America, v. Latique JOHNSON, Brandon Green, and Donnell Murray, Defendants.
• Court: U.S. District Court — Southern District of New York

469 F.Supp.3d 193

UNITED STATES of America,

v.Latique JOHNSON, Brandon Green, and Donnell Murray, Defendants.

S5 16 Cr. 281 (PGG)

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

Signed February 16, 2019

Andrew Ken-Wei Chan, Christopher Jordan Clore, Abigail S. Kurland, Allison Carol Nichols, Jared P. Lenow, Jessica K. Feinstein, U.S. Attorney's Office, New York, NY, for Plaintiff.

Susan J. Walsh, Vladeck, Raskin & Clark P.C., Zoe Jayde Dolan, Zoe Dolan, Attorney at Law, New York, NY, for Defendant Brandon Green.

Donald D. Duboulay, Donald duBoulay, Esq., New York, NY, for Defendant Thomas Morton.

Richard Bruce Lind, Richard Lind Attorney at Law, New York, NY, Joshua Jacob Horowitz, Horowitz Tech Law P.C., Garden City, NY, for Defendant David Cherry.

James E. Neuman, James E. Neuman, Esq., New York, NY, for Defendant Manuel Rosario.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.:

Trial in this matter will begin on February 19, 2019. Defendants Latique Johnson, Brandon Green, and Donnell Murray are charged with racketeering conspiracy, narcotics conspiracy, and with using, possessing, carrying, brandishing and discharging firearms during and in relation to a crime of violence and a drug trafficking crime. Johnson and Murray are also charged with assault and attempted murder in aid of racketeering, (S5 Indictment (Dkt. No. 418)) The charges against the Defendants arise out of their alleged participation in the Blood Hound Brims, an alleged racketeering organization engaged in narcotics trafficking and acts of violence, including assault, robbery, attempted murder, and conspiracy to commit murder, (Id. )

This Opinion addresses the parties' motions in limine. (Dkt. Nos. 459, 464, 468, 469, 476)

I. GOVERNMENT MOTIONS IN LIMINE

In its motions in limine, the Government seeks permission to introduce: (1) evidence of all three Defendants' incarceration during the alleged conspiracies; (2) certain alleged co-conspirator statements made after this case was indicted and the declarants were incarcerated; (3) excerpts from a rap video; and (4) charts regarding voluminous jail records, and the corresponding testimony of a summary witness, The Government also gives notice that it intends to introduce evidence of certain uncharged acts of violence allegedly committed by the Defendants.

The Government also asks this Court to limit or preclude cross-examination concerning: (1) Defendant Murray's civil lawsuit against New York City Police Department ("NYPD") Officer Abraham Villavizar; (2) allegations made by sex trafficking victims concerning Cooperating Witness No. 6, a former pimp; (3) Cooperating Witness No. 7's use of a prostitute in the 1980s; (4) Cooperating Witness No. 5's masturbation before a female corrections officer and female inmates while in detention; (5) Cooperating Witness No. 1's Pre-sentence Report ("PSR"); (6) NYPD Internal Affairs Bureau findings that Officer Jeffrey Valenzano drank alcohol while on duty, misused time, and violated NYPD record-keeping procedures; (7) Detective John Munley's misdemeanor convictions from the late 1990s; and (8) civil lawsuits brought against various law enforcement witnesses, including NYPD Officers Jeffrey Sisco, Abraham Villavizar, and Michael Dougherty, and NYPD Detective Edward Wilkowksi. (See Govt. MIL (Dkt. No. 469))

Defendants have not opposed the Government's motion concerning Cooperating Witness No. 7's use of a prostitute in the 1980s, and Detective Munley's misdemeanor convictions. Accordingly, the Government's motions in limine are granted as to these matters.

II. DEFENDANTS' MOTIONS IN LIMINE

Defendant Johnson has moved in limine to preclude (1) evidence of certain uncharged criminal conduct, including a robbery in late 2011 or 2012; a 2011 robbery of various drug customers; a 2014 shooting at a Bronx bodega; and a 2013 drug seizure in Scranton, Pennsylvania; and (2) cross-examination concerning his criminal record, in the event he testifies. Johnson also seeks to preclude or limit the testimony of NYPD Detective Jonathan Fox, the Government's ballistics expert, who intends to offer opinions involving toolmark identification.¹ (Johnson MIL (Dkt. No. 468) at 5, 12, 19)

Defendant Green has moved in limine to preclude (1) rap videos and lyrics; and (2) testimony from a chemist concerning certain drug analyses she performed. (Green MIL (Dkt, No. 460) at 1; Jan. 17, 2019 Green Ltr. (Dkt. No. 476); Jan. 28, 2019 Green Ltr. (Dkt. No. 491))

Defendant Murray has moved in limine to generally preclude evidence of his prior arrests and convictions, and uncharged crimes or "bad acts." In particular, Murray seeks to preclude evidence of (1) his alleged possession of a firearm and ammunition on August 14, 2010; and (2) drugs, drug paraphernalia, and other contraband recovered inside his Dover, Delaware residence on January 4, 2017. Finally, Murray seeks to preclude photographs showing him with large amounts of cash. (Murray MIL (Dkt. No. 464) at 3, 5-6)

DISCUSSION

I. UNCHARGED ACTS OF VIOLENCE

The Government's motion in limine gives notice that it intends to introduce evidence of six uncharged acts of violence that were allegedly committed in furtherance of the charged racketeering enterprise. The Government maintains that the uncharged violent acts listed in its motion constitute "direct evidence of the charged racketeering conspiracy" and therefore are admissible without reference to Fed. R. Evid. 404(b). (Govt. MIL (Dkt. No. 469) at 12 n.1)²

Johnson and Murray have moved to preclude three of the violent acts listed by the Government: (1) Murray's May 2010 alleged assault of a tow-truck driver; (2) Johnson's January 2012 alleged slashing of members of a rival gang at a strip club; and (3) Johnson's December 2, 2014 shooting of an individual in a bodega. (Govt. MIL (Dkt. No. 469) at 12-16; Johnson MIL (Dkt. No. 468) at 7-10; Murray MIL (Dkt. No. 464) at 1)

Johnson also seeks to preclude evidence of (1) his alleged robbery of an individual of jewelry and money in late 2011 or early 2012; and (2) Johnson and Murray's alleged robbery of drug customers in December 2011. (Johnson MIL (Dkt. No. 468) at 5, 7-9) Johnson contends that this conduct is not direct evidence of the charged offenses and is not admissible under Fed. R. Evid. 404(b), because the Government has not identified a proper purpose for introducing these acts. Johnson further contends that this evidence is inadmissible under Fed. R. Evid. 403. (Johnson MIL (Dkt. No. 468) at 7-10)

The Government contends that evidence of these acts is admissible as direct evidence of the charged crimes or, in the alternative, is admissible under Rule 404(b). (Govt. Opp. Br. (Dkt. No. 483) at 6)

A. Applicable Law

1. Uncharged Criminal Conduct as Direct Evidence

Where uncharged criminal activity " ‘arose out of the same transaction or series of transactions as the charged offense, ... [or] is inextricably intertwined with the evidence regarding the charged offense, or ... is necessary to complete the story of the crime[s]’ " for which a defendant is on trial, the evidence "is considered direct evidence of the charged offenses." United States v. Kassir, No. 04 Cr. 356, 2009 WL 976821, at *2 (S.D.N.Y. Apr. 9, 2009) (quoting United States v. Gonzalez, 110 F.3d 936, 942 (2d Cir. 1997) ). "However, ‘where it is not manifestly clear that the evidence in question is intrinsic proof of the charged crime, the proper course is to proceed under Rule 404(b).’ " Id. (quoting United States v. Nektalov, 325 F. Supp. 2d 367, 372 (S.D.N.Y. 2004) ).

Courts in this District employ a narrow construction in determining whether uncharged crimes are direct evidence of charged offenses. See United States v. Martoma, 12 Cr. 973 (PGG), 2014 WL 31191, at *3 (S.D.N.Y. Jan. 6, 2014). For example, uncharged conduct is not "inextricably intertwined" with charged conduct simply because it "provides context or is relevant" to charged conduct. Accordingly, "numerous courts in this circuit ... [have] found it necessary to conduct Rule 404(b) analysis of uncharged criminal activity that merely provided context or was somehow relevant to the charged conduct." Kassir, 2009 WL 976821, at *2 (citations omitted). "In deciding whether uncharged conduct is ‘inextricably intertwined’ with charged conduct[,] ... courts have considered whether ‘[the] details of the uncharged transaction are necessary to understand the charged transaction.’ " Martoma, 2014 WL 31191, at *3 (quoting United States v. Stein, 521 F. Supp. 2d 266, 271 (S.D.N.Y. 2007) ).

Uncharged conduct is somewhat more readily admissible as direct evidence in racketeering cases, however, because the Government is required to prove, inter alia, the existence of a racketeering enterprise, and an agreement among the enterprise's members to conduct the affairs of the enterprise through a pattern of racketeering activity. See, e.g., United States v. Ashburn, No. 11 Cr. 303, 2015 WL 588704, at *7 (E.D.N.Y. Feb. 11, 2015). Accordingly, " ‘it is well settled that in prosecutions for racketeering offenses, the government may introduce evidence of uncharged offenses to establish the existence of the criminal enterprise.’ " Id. at *8 (quoting United States v. Baez, 349 F.3d 90, 93 (2d Cir. 2003) (per curiam ) and citing United States v. Mejia, 545 F.3d 179, 206 (2d Cir. 2008) ).

Indeed, " ‘proof of the enterprise and pattern elements of racketeering "may well entail evidence of numerous criminal acts by a variety of persons," ’ " and such evidence is " ‘admissible against each defendant "to prove (i) the existence and nature of the RICO enterprise and (ii) a pattern of racketeering activity on the part of each defendant by providing the requisite relationship and continuity of illegal activities." ’ " Id. (quoting United States v. Basciano, 599 F.3d 184, 207 (2d Cir. 2010) (quoting United States v. DiNome, 954 F.2d 839, 843, 844 (2d Cir. 1992) )).

2. Uncharged Criminal Conduct Under Rule 404(b)

Fed. R. Evid. 404(b) provides that while...