The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Kidada Savage's Motion Requesting That The United States Provide Notice of Rule 404(b) Evidence That It Intends To Use At Trial (ECF No. 440) and Motion to Strike Surplusage from Third Superseding Indictment and Motion in Limine to Preclude Evidence of Bad Acts (ECF No. 771). For the following reasons, the Motions will be denied.
On June 22, 2011, a federal grand jury in Philadelphia returned a seventeen-count Second Superseding Indictment charging Defendant Kidada Savage with: conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1); 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 (Count 16); and use of fire to commit a felony, in violation of 18 U.S.C. §§ 844(h)(1) and (h)(2) (Count 17). (Second Superseding Indictment, ECF No. 229.)*fn2 In the Second, Third, and Fourth Superseding Indictments, Defendant was charged, along with three co-defendants - her brother Kaboni Savage, Robert Merritt, and Steven Northington. On March 14, 2011, the Government filed a Notice of Intent to Seek the Death Penalty against Savage, Merritt, and Northington pursuant to 18 U.S.C. §§ 3591, et seq. (ECF Nos. 196, 197, 198.) The Government is not seeking the death penalty for Defendant.
The Fourth Superseding Indictment ("Indictment") alleges that Defendant was an enforcer for Kaboni Savage's drug organization who participated in murders, murder conspiracy, arson, conspiracy to distribute controlled substances, witness tampering, and witness retaliation. (Fourth Superseding Indictment 9, ECF No. 480.) Specifically, the Fourth Superseding Indictment alleges that Defendant: threatened a number of potential witnesses and their families relating to possible testimony against Savage; enabled threats being issued to witnesses by serving as a conduit and performing research on witnesses and their families; contributed names to the Internet website "whosarat.com"; and conspired with others and facilitated the arson-murders of six individuals, including four children, in witness Coleman's home, located at 3256 North Sixth Street, Philadelphia, Pennsylvania. (Fourth Superseding Indictment 16-19, 21-24, 28-29.)
Defendant has filed a Motion Requesting That The United States Provide Notice of Rule 404(b) Evidence That It Intends To Use At Trial. (Def.'s Initial Mot., ECF No. 440.)*fn3 On December 2, 2012, Defendant filed an additional Motion to Strike Surplusage from Third Superseding Indictment and Motion in Limine to Preclude Evidence of Bad Acts. (Def.'s Mot., ECF No. 771.)*fn4 The Government filed a response on February 1, 2013. (Gov't's Resp., ECF No. 1011.) Defendant seeks to strike six paragraphs -- paragraphs 63, 68, 115, 116, 118, and 130 -- from the Indictment. (Def.'s Mot. 5.) In addition, Defendant claims that the Government intends to introduce evidence of the conduct contained in those challenged portions of the Indictment in violation of Federal Rules of Evidence 403 and 404(b). (Id.)
Defendant argues that six paragraphs of the Indictment allege events that are not intrinsic to the conspiracy and should be stricken. Each of the challenged paragraphs in the Indictment falls within the section listing overt acts, which is the conduct in which Defendants engaged to effect the objects and purposes of the RICO conspiracy charged in Count 1 of the Indictment. (See Fourth Superseding Indictment 9.)
Under Federal Rule of Criminal Procedure 7(d), "[u]pon the defendant's motion, the court may strike surplusage from the indictment or information." The notes to subdivision (d) provide that "[t]his rule introduces a means of protecting the defendant against immaterial or irrelevant allegations in an indictment or information, which may, however, be prejudicial." Fed. R. Crim. P. 7(d) advisory committee's notes; see also United States v. Hedgepeth, 434 F.3d 609, 612 (3d Cir. 2006). "Under the exacting standard by which they are evaluated, motions to strike surplusage are rarely granted." United States v. Alsugair, 256 F. Supp. 2d 306, 317 (D.N.J. 2003) (citing United States v. Giampa, 904 F. Supp. 235, 271 (D.N.J. 1995)). The Third Circuit has observed that "the scope of a district court's discretion to strike material from an indictment is narrow." United States v. Pharis, 298 F.3d 228, 248 (3d Cir. 2002).
Paragraph 63 alleges that "[o]n or about May 27, 2004, in Philadelphia, Kidada Savage obtained a license to carry a firearm in the Commonwealth of Pennsylvania." (Indictment 19.) Paragraph 68 alleges that "[o]n or about July 1, 2004, in Philadelphia, Kidada Savage purchased a Rossi .38 caliber handgun." (Id. at 20.) With regard to both of these allegations, Defendant argues that "[t]here is nothing criminal or even relevant about [Defendant's obtaining of a license to carry a firearm] that makes it remotely intrinsic to this RICO conspiracy" and that "[t]here is no allegation in the indictment or discovery that remotely suggests that the legal act of purchasing a handgun by Savage is intrinsic to the RICO conspiracy." (Def.'s Mot. 6-7.)
Two paragraphs of the Indictment challenged by Defendant refer to Internet profiles maintained by Defendant. Paragraph 115 alleges that "[o]n or about January 15, 2005, in Philadelphia, Kidada Savage, using the nickname 'Diz Matic' and a contact e-mail of 'firstname.lastname@example.org,' posted 'Informant Profiles' for witnesses Eugene Coleman, Myron Wilson and Craig Oliver on the internet website, 'whosarat.com.'" (Fourth Superseding Indictment 28-29.) Similarly, Paragraph 130 alleges that "[o]n or about April 24, 2007, in Philadelphia and elsewhere, Kidada Savage maintained a 'Myspace' web page on the internet, containing her photograph, the nickname 'DA,' Myspace URL 'http://www.myspace.com/dizmatic215,' and the wall quote, 'C wut I discovered is yall some snitch lovers, I might speak, but I don't fuck wit nobody.'" (Id. at 31.) Defendant challenges these paragraphs of the Indictment as being insufficiently connected to the charged conspiracy. (Def.'s Mot. 7-8.)
Defendant also seeks to strike paragraph 116 from the Indictment, which alleges that "[o]n or about February 14, 2005, in Philadelphia, Kidada Savage wrote a letter to Kaboni Savage, which letter, referring to witnesses and law enforcement officers, stated, 'I hope all them cock suckers die, I hope they die, they're mom's, wive's, children, there whole family (sic).'" (Indictment 29.) In a similar vein, Defendant challenges paragraph 118 of the Indictment, which alleges that "[o]n or about February 20, 2005, in Philadelphia, Kidada Savage threatened U.S. Bureau of Prisons employees at the FDC-Philadelphia, stating that she 'should have brought (her) motherfucking gun,' while making a shooting gesture." (Id.) Defendant argues that neither of these statements are evidence that proves the existence and nature of the enterprise or any other facet of the enterprise. (Def.'s Mot. 8.)
Defendant's arguments are unpersuasive. In describing the racketeering enterprise, the Indictment alleges that "[t]he KSO was an organization dedicated to committing drug trafficking offenses and violent crimes, including murder, arson, money laundering, the use and carrying of firearms during and in relation to violent crimes and drug trafficking crimes, witness tampering, retaliation against witnesses, and assault and battery." (Fourth Superseding Indictment 6.) The Government bears the burden of proving that Defendant was a member of the KSO, a racketeering enterprise. 18 U.S.C. § 1962(d). Defendant's obtaining of a gun license and purchase of a handgun, use of the Internet to threaten witnesses and reveal her intent to retaliate against such witnesses, communications with her brother about implicit threats to witnesses and law enforcement officials, and direct threats to law enforcement officials are all acts that fit the conduct of the racketeering enterprise of which it is alleged that she was a member. These allegations ...