The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Robert Merritt's Motion to Preclude Evidence of Prior Bad Acts. (ECF No. 354.) For the following reasons, Defendant's Motion will be granted in part and denied in part.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment (the "Indictment") charging Defendant with: conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1); conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9); six counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 10-15); 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.) In the Indictment, Defendant was charged along with three co-defendants, Kaboni Savage, Steven Northington, and Savage's sister, Kidada Savage. Lamont Lewis, Defendant's cousin, 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 Defendant, Savage, and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada.
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 Savage and Kidada solicited and ordered Defendant and Lewis to set fire to the home of Eugene Coleman, a former associate of Savage. (Indictment 21-23.) Savage believed that Coleman was cooperating with the Government and planned to testify against Savage in his 2005 federal drug conspiracy trial.*fn2 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 and carried out by Defendant and Lewis in order to intimidate Coleman and prevent him from testifying against him at the 2005 drug conspiracy trial.
Defendant has filed a Motion to Preclude Evidence of Prior Bad Acts. (Def.'s Mot., ECF No. 354.) The Government has filed a response. (Gov't's Resp., ECF No. 461.) Defendant has also filed a Reply. (Def.'s Reply, ECF No. 472.) We held a hearing on the pretrial motions. At that hearing, the parties presented additional argument on the Motion.
Defendant seeks to prohibit the Government from introducing evidence of uncharged prior bad acts and prior convictions, arguing that such evidence is only intended to prove conformity therewith and would be unfairly prejudicial. (Def.'s Mot. 2-7.) In particular, Defendant requests that the Court prohibit the Government from introducing evidence of four specific prior acts: (1) Defendant's threats to kill Eric Satterthwaite, A.W., and Y.D.*fn3 in relation to Defendant's participation in the murder of Norman Simon; (2) evidence that Defendant threatened a potential witness at gunpoint in a state prosecution and attempted to abduct that witness in an automobile*fn4 ; (3) evidence that, on three occasions, Defendant sold illegal drugs on Jerome Street in Philadelphia; and (4) evidence that Defendant stole and later possessed a firearm. (Def.'s Mot. 1.) In its Response, the Government argues that it will restrict some of the aforementioned evidence to the sentencing phase of the trial and that the remaining acts consist of prior convictions, which constitute intrinsic evidence committed in furtherance of the RICO conspiracy. (Gov't's Resp. 2.)
The admissibility of evidence at the guilt phase of the trial is governed by the Federal Rules of Evidence. Specifically, when considering the admission of prior bad acts, Rules 404(b) and 403 apply. See United States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002) (applying Rules 404(b) and 403 and finding that district court's decision to admit evidence of prior uncharged conspiracy was proper and not unduly prejudicial).
Under the Federal Rules of Evidence, "[e]vidence 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 . . . ." Fed. R. Evid. 404(b). 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, 686 (1988). The spirit of Rule 404(b) is inclusionary and, as such, the Rule 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 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), we must determine whether the evidence satisfies a four-part standard for admissibility. See United States v. Green, 617 F.3d 233, 239-245 (3d Cir. 2010) (providing comprehensive history of treatment of bad character evidence in British and American legal systems); see also 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*fn5 ; (3) contain a probative value that outweighs its prejudicial effect under Federal Rule of Evidence 403 (discussed infra); and (4) be accompanied by an appropriate limiting instruction.*fn6 See Huddleston, 485 U.S. at 691-92; United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1988) (applying Huddleston four-part test in the Third Circuit).
This analysis need not be performed for evidence that is intrinsic to, or part and parcel of, the charged offenses. Id. at 245; see also United States v. Haas, 184 F. App'x 230, 234 (3d Cir. 2006) (noting that intrinsic evidence is exempt from a Rule 404(b) analysis).*fn7 Most Circuits define intrinsic ...