The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Malik Snell's Motion in Limine to Preclude Government's Rule 404(b) Evidence. (Doc. No. 171.) For the following reasons, Defendant's Motion will be granted in part and denied in part.
A. Indictment and First Trial
On May 27, 2008, the grand jury returned an indictment charging Defendant Malik Snell ("Defendant"), a Philadelphia Police Officer, and co-defendants Tyree Aimes and Stephon Gibson with conspiracy to interfere with interstate commerce by robbery in violation of 18 U.S.C. § 1951 (Count One); attempted interference with interstate commerce by robbery in violation of 18 U.S.C. § 1951 (Count Two); possession of a firearm during or in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count Three); and aiding and abetting in violation of 18 U.S.C. § 2. (Doc. No. 12.) These charges arose out of an attempted home invasion robbery that occurred in Pottstown on December 16, 2007. The purpose of the robbery was to steal proceeds of illegal drug sales that were being kept in a safe at the Pottstown address. Trial was scheduled for October 16, 2008. (Doc. No. 75.) Aimes and Gibson entered pleas of guilty and agreed to cooperate with the Government. (Doc. Nos. 77-77, 82-83.)
Prior to the first trial, the Government filed a motion in limine to admit Rule 404(b) prior bad act evidence against Defendant. The evidence to be introduced at trial was the testimony of two drug dealers, Keino Herring and Hector Jauregui, and involved the theft of illegal drug proceeds by Defendant. The Government's motion was granted because Defendant was offering a "mere presence" defense to the charges of participating in the Pottstown robbery. At trial, Defendant testified in his own defense that Tyree Aimes asked him for a ride to Pottstown to collect some money that was owed him; that he agreed to provide the ride for Aimes and co-conspirator Stephon Gibson in the spirit of Christmas; that he did not know about the robbery; that he panicked when Aimes ran back to the car after the attempted robbery; and that he fled from police in panic. Defendant maintained that he was merely present at the scene of the crime and that he did not know the purpose of the trip to Pottstown or what occurred in the Pottstown apartment. The Government ultimately chose not to introduce this Rule 404(b) evidence at trial.
The trial of Defendant ended in a mistrial when the jury deadlocked on all counts. (Doc. No. 92.)
B. Superceding Indictment
After the first trial, the Government filed a Superceding Indictment which included the original counts and two additional counts: interference with interstate commerce by robbery in violation of 18 U.S.C. § 1951 (Count Four); and using or carrying a firearm during or in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count Five). (Doc. No. 100.) These charges arose out of the robbery of a drug dealer named Ricardo McKendrick, Jr. It is alleged that on December 14, 2007, Defendant, in police uniform and driving a Dodge Intrepid that was outfitted like a police car, stopped McKendrick and took $40,000 in drug proceeds that were in a bag in McKendrick's vehicle.
C. Second Superceding Indictment and Second Trial
On March 3, 2009, the Government filed a Second Superceding Indictment, which added the charge of witness retaliation in violation of 18 U.S.C. § 1513(b)(2) (Count Six). (Doc. No. 119.) Count Six alleged that on January 30, 2009, Defendant threatened harm to Keino Herring and Ricardo McKendrick, Jr., in retaliation for their cooperation with federal law enforcement authorities.
Defendant went to trial on Counts One through Six of the Second Superceding Indictment on March 24, 2009. The Government moved to introduce two incidents of Rule 404(b) evidence against Defendant, one through the testimony of Aimes and the other through the testimony of Herring and Jauregui. Defendant raised no objection to this Rule 404(b) evidence and the Government was permitted to present the testimony of Aimes, Herring, and Jauregui.
Aimes testified that on several occasions in December 2007, Defendant instructed Aimes and Gibson to "case" houses suspected of being involved in drug activity. Aimes testified that he observed Defendant using a black Dodge Intrepid, which was outfitted like a police car, to perform a car stop on a woman coming out of one of the suspected drug houses. Later that day, Defendant gave Aimes approximately one pound of marijuana, telling Aimes that he got ten pounds of marijuana from the car stop. The Government offered evidence of Defendant's dealings with Aimes and Gibson in the days prior to the Pottstown robbery in order to prove that Defendant possessed the requisite knowledge and intent to commit the robbery of drug dealer proceeds on December 16, 2007, and to rebut his "mere presence" defense. The Government also contended that evidence of the previous dealings among Defendant, Gibson, and Aimes related to the theft of drug proceeds explained why the three co-conspirators trusted each other and why there was no need to discuss the method or the robbery during the trip up to Pottstown.
Keino Herring testified that he arranged to purchase $170,000 worth of cocaine from drug dealer Hector Jauregui. At the same time, Herring hired Defendant to steal back the $170,000 in drug proceeds from Jauregui. After the drug transaction between Herring and Jauregui's drug runner, Defendant performed a police stop and took the money from Jauregui's drug runner. Herring paid Defendant approximately $50,000 out of the $170,000 for his role in the crime. Jauregui testified that he arranged to sell the ...