The opinion of the court was delivered by: Stengel, J.
Presently before the Court is Defendant Hikeem Torrence's Second Motion in Limine. For the following reasons, Defendant's Motion will be granted in part and denied in part.
On September 22, 2010 and September 7, 2011, a federal grand jury returned a seventy-three count indictment and an eighty-nine count superseding indictment, respectively, charging Defendant, Hikeem Torrence, along with nineteen (19) other Defendants with various crimes occurring on or about October 2001 through approximately October 6, 2010. These criminal acts were committed in and around the Bartram Village Housing Development (BVHD) in Southwest Philadelphia by a criminal enterprise known to law enforcement as the "Harlem Boys." Throughout the course of the investigation, police and federal authorities obtained and executed numerous search and seizure warrants, which led to the recovery of drugs, drug paraphernalia, drug proceeds, firearms, ammunition, fired cartridge casings, documents, photographs, letters and other mail, and other items.
Members of the enterprise committed, attempted, and threatened to
commit acts of violence, including murder, assault, and robbery, to
protect and expand the enterprise's criminal operations. The members
of the enterprise had varying roles. The Government alleges that
Defendant Torrence participated in the "Harlem Boys" as a distributor
of illegal narcotics and as a gunman for the enterprise. Torrence is
charged with nine (9) counts in the superseding indictment. These
counts include charges of conspiracy to participate in a racketeering
enterprise under 18 U.S.C. § 1962(d); conspiracy to distribute under
21 U.S.C. § 846; and distribution of cocaine base ("crack") under 21
U.S.C. § 841(a)(1). Torrence has filed five (5) pre-trial motions,
which have been briefed by the parties and argued in a pre-trial
motions hearing on May 15-16, 2012, where evidence and testimony were
provided by the government and counsel on various motions. The motions
include a motion to compel discovery (Doc. No. 61),*fn1
a motion to suppress physical evidence and statements and a
motion in limine to exclude evidence (Doc. No. 191),*fn2
a motion to sever (Doc. No. 300),*fn3 a
motion to deny the admission of tape recordings (Doc. No.
301),*fn4 and a second motion in limine (Doc. No.
364). This memo will address the Defendant's motion in limine (Doc.
II. Photographic Evidence
Torrence seeks to preclude the Government from introducing photographs
taken from his Facebook account.*fn6 Torrence argues
that these photos are irrelevant and unduly prejudicial.*fn7
Specifically, there are pictures of Torrence smoking a
"blunt," which is labeled Exhibit A. In this same photo, Torrence
appears to be gesturing with his hands as if he is holding an
invisible firearm. Other photos show Torrence "giving the finger"
(Exhibit G), pointing an imaginary gun, and making other gestures. He
is also depicted sitting or hanging around with other co-defendants
and making hand gestures like "giving the finger" or pointing (See
Exhibits E, H, I, J, K, L, and O). There is another picture,
Fed.R.Evid. 801(d)(2)(E). It is permissible that the Government introduce into evidence otherwise inadmissible declarations of alleged coconspirators "subject to the obligation of the Government, before the case is completed, to establish the existence of the conspiracy and prove aliunde as to every separate defendant." United States v. Continental Group, Inc., 603 F.2d 444, 456 (3d Cir. 1979); United States v. Bey, 437 F.2d 188, 191 (3d Cir. 1971). See also United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), Cert. denied, 397 U.S. 1028 (1970) (stating "While the practicalities of a conspiracy trial may require that hearsay be admitted 'subject to connection,' the judge must determine, when all the evidence is in, whether in his view the prosecution has proved participation in the conspiracy, by the defendant against whom the hearsay is offered, by a fair preponderance of the evidence independent of the hearsay utterances.") Given the large amount of interrelated testimony to be considered in this case, I find that any other approach to finding the statements admissible is impractical. Therefore, I will deny the Defendant's motion to suppress the statements made by co-defendant Moten as hearsay.
found on Mr. Stokes' Facebook, with the two men and a young lady posed in prison garments and taken inside a correctional facility, which is labeled Exhibit C.
Rule 401 of the Federal Rules of Evidence states:
Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.
Additionally, Rule 403 of the Federal Rules of Evidence states:
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Evidence is "unfairly prejudicial" if it has "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one"; "appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish"; or "may cause a jury to base its decision on something other than the ...