The opinion of the court was delivered by: Baylson, J.
MEMORANDUM REGARDING UNITED STATES'S MOTIONS IN LIMINE
The United States filed a Motion In Limine and a Supplemental Motion In Limine to Introduce Evidence of Other Acts Pursuant to Federal Rule Evidence 404(b), as well as a Memorandum Regarding Evidence of Uncharged Overt Acts. (Mot. in Limine, ECF No. 100; Suppl. Mot. in Limine, ECF No. 128; Memo., ECF No. 155.) Defendants Richard Corbin ("Corbin") and Johnnie Corley ("Corley") oppose the Motions. (Corbin Resp., ECF No. 150; Corley Resp., ECF No. 129.) On May 24, 2011, the Court entered an order granting in part and denying in part the United States's Motions. (Order, ECF No. 159.) This Memorandum will state the reasons.
A grand jury indicted Corbin and Corley, along with several others, for multiple counts of various offenses, including interference with interstate commerce by robbery, conspiracy to commit interference with interstate commerce by robbery, carrying a firearm during a crime of violence, possession with intent to distribute Schedule II substances, and conspiracy to possess with intent to distribute Schedule II substances. (Second Superseding Indictment, ECF No. 85.) Several of their co-defendants have pled guilty and are now cooperating with the United States.
The United States seeks to introduce the following evidence as either intrinsic evidence or evidence of "other acts" under Rule 404(b): (1) Defendants' prior gunpoint robberies of drug dealers; (2) Defendants' gunpoint robbery of a Metro PCS store on June 11, 2009 and Corbin's armed robbery of Jackson's Convenience Store on July 7, 2009; (3) Corbin's physical and emotional abuse of witness and former romantic interest Sharon Stevenson ("Stevenson"); (4) Corbin's prior armed robbery of the LaCon Pharmacy in October 2007; (5) Corbin's armed bank robberies in March and December 1993, which resulted in convictions for robbery and carrying a firearm during a crime of violence; (6) Corley's June 16, 2003 gunpoint robbery of a federal credit union; (7) Corley's imprisonment from September 17, 2003 until May 15, 2009; and (8) Defendants' threats to witnesses. (Mot. in Limine at 6-7; Suppl. Mot. in Limine at 2-3; Memo. at 5-8.) The United States plans to introduce this evidence through the testimony of several cooperating witnesses in the form of Defendants' admissions, Defendants' direct threats to some of the witnesses, and the witnesses' first-hand experiences. The Court will address each category in turn.
The Court held hearings on the Motions on April 14, 2011 and May 24, 2011. At the hearings, the Court did not receive evidence but heard the parties' arguments.
The Third Circuit most recently addressed the standards for admission of evidence of "other acts" in United States v. Green. 617 F.3d 233 (3d Cir. 2010). Acknowledging that evidence is either intrinsic, and not subject to Rule 404(b), or extrinsic, the Court clarified when evidence is "intrinsic." Id. at 245. Evidence is intrinsic (1) if it directly proves the charged offense or (2) "uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime." Id. at 248-49. The Court rejected the "inextricably intertwined" test as confusing, unnecessary, and over-inclusive. Id. at 246-48.
All remaining evidence of "other acts" is subject to Rule 404(b), which simply burdens the proponent to provide notice and requires the Court to issue a limiting instruction upon request. Id. at 249. Nevertheless, "[t]o be admissible under Rule 404(b), evidence of uncharged crimes or wrongs must (1) have a proper evidentiary purpose; (2) be relevant; (3) satisfy Rule 403; and (4) be accompanied by a limiting instruction (where requested) about the purpose for which the jury may consider it." Id. (citing United States v. Butch, 256 F.3d 171, 175 (3d Cir. 2001)). The evidence must fit into a chain of logical inferences, no link of which may be the inference that Defendants have the propensity to commit the crimes charged. Id. at 250; see also United States v. Williams, 458 F.3d 312, 319 (3d Cir. 2006) (asserting "a proponent's incantation of the proper uses . . . does not magically transform inadmissible evidence into admissible evidence") (quotations omitted).
In essence, Rule 404(b) is a rule of inclusion, so long as the evidence is not introduced solely to prove the defendant's character but is probative of any other material issue. Green, 617 F.3d at 244, 250 (citing Huddleston v. United States, 485 U.S. 681, 686 (1988)). Rule 404 only prohibits use for propensity -- no other use is prohibited. See id. at 244.
As noted, this evidence remains subject to the balancing of Rule 403, which precludes admission of evidence if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." See id. at 249 n.15; Fed. R. Evid. 403."Evidence is unfairly prejudicial only if it has an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. It is unfairly prejudicial if it appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case." Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980) (quotations and citations omitted).
A. Prior Robberies of Drug Dealers
The United States wants to introduce evidence that Corley and Corbin worked together to rob drug dealers at gunpoint before they switched their targets to the pharmacies at issue in this case. The United States argues this evidence will be introduced to show the conspiracy and relationship between Defendants, to provide a coherent narrative and background for the jury, and to show opportunity. (Mot. in Limine at 10-15.) Corley and Corbin contend that the prior robberies of drug dealers are unrelated to the alleged pharmacy robberies, such that they only go to character, and introduction of this evidence would be unfairly prejudicial and confusing. (Corley Resp. at 4-5; Corbin Resp. at 3-4.)
The Court will admit evidence of these robberies for the purposes advanced by the United States. Applying the Green framework, Defendants' prior gunpoint robberies of drug dealers are admissible to show their relationship with each other and to establish the background of the conspiracy, to provide background information to the jury, and to show Defendants' opportunity to conspire together. In United States v. Traitz, the Third Circuit recognized proper, unenumerated purposes for evidence of "other acts" in the conspiracy context include showing a shared tradition of violence and a symbiotic relationship, which reveal the background of the charges, the parties' familiarity with one another, and their concert of action. 871 F.2d 368, 389 (3d Cir. 1989). Based on those non-propensity purposes, the court affirmed the district court's admission of twenty-four tape recordings regarding uncharged acts of violence the defendants committed. Id. In this case, the United States intends to offer the testimony of cooperating witnesses to establish that Corbin and Corley previously conspired together to rob drug dealers at gunpoint. Such evidence in this conspiracy case serves the purposes approved in Traitz -- it shows Defendants' shared ...