The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Kaboni Savage's Motion in Opposition to Anticipated Government Motion to Introduce 404(b) Evidence. (ECF No. 392.) For the following reasons, Defendant's Motion will be denied.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment (the "Indictment") charging Defendant Kaboni Savage with: conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1); twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15); tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8); conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9); retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16); and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment, ECF No. 480.)*fn2 Savage was charged along with three co-defendants, Steven Northington, Robert Merritt, and his sister, Kidada Savage. Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Kaboni Savage, Merritt, and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada Savage.
On October 9, 2004, six people, including four children, died as a result of arson at a home located at 3256 North Sixth Street, Philadelphia, Pennsylvania. The Indictment alleges that Kaboni Savage and Kidada Savage solicited and ordered Lewis and Merritt to set fire to the home of Eugene Coleman, a former associate of Savage. (Indictment 21-23.) Kaboni Savage believed that Coleman was cooperating with the Government and planned to testify against him in his 2005 federal drug conspiracy trial.*fn3 The firebombing took the lives of Coleman's mother, infant son, and four other relatives. The Government intends to show at trial that the firebombing was ordered by Savage in order to intimidate Coleman and prevent him from testifying against him at the 2005 drug conspiracy trial.
Savage has filed a Motion in Opposition to Anticipated Government Motion to Introduce 404(b) Evidence. (Def.'s Mot., ECF No. 392.) The Government filed an Omnibus Response in Opposition. (Gov't's Resp., ECF No. 462.) We held a hearing on the pretrial motions. At that hearing, the parties presented additional argument on the Motion.
Kaboni Savage seeks to prohibit the Government from introducing evidence of uncharged, prior bad acts arguing that such evidence would be prejudicial surplusage. (Def.'s Mot. 3-4.) In its Response, the Government argues that all of the overt acts charged by the grand jury in the Indictment constitute intrinsic evidence committed in furtherance of the RICO conspiracy and that all of the remaining evidence that the Government intends to introduce consists of predicate acts. (Gov't's Resp. 2.)
Under the Federal Rules of Evidence:
Evidence of a crime, wrong or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. This evidence may be admissible for another purpose . . . On request by the defendant in a criminal case, the prosecutor must provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial . . . before trial . . . .
Accordingly, parties may not introduce "evidence of extrinsic acts that might adversely reflect on the actor's character, unless that evidence bears upon a relevant issue in the case such as motive, opportunity, or knowledge." Huddleston v. United States, 485 U.S. 681, 685 (1988). Rule 404(b) is inclusionary and favors admissibility. See United States v. Long, 574 F.2d 761, 765-66 (3d Cir. 1978) (discussing "exclusionary" and "inclusionary" approaches of different circuits prior to adoption of Rule 404(b)). The primary purpose of Rule 404(b) is "simply to keep from the jury evidence that the defendant is prone to commit crimes or is otherwise a bad person, implying that the jury needn't worry overmuch about the strength of the government's evidence." United States v. Taylor, 522 F.3d 731, 735 (7th Cir. 2008) (internal citation omitted).
If the evidence to be admitted is deemed extrinsic under Rule 404(b),
the court must determine whether the evidence satisfies a four-part
standard for admissibility. See United States
v. Butch, 256 F.3d 171, 175-76 (3d Cir. 2001) (citing United States
v. Mastrangelo, 172 F.3d 288, 294 (3d Cir. 1999). To be admissible
under Rule 404(b), evidence must: (1) have a proper evidentiary
purpose; (2) be relevant under Federal Rule of Evidence 402*fn4
; (3) contain a probative value that outweighs its prejudicial
effect under Federal Rule of Evidence 403*fn5 ; and (4)
be accompanied by an appropriate limiting instruction.*fn6