The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Kaboni Savage's Motion to Strike Government's Introduction of Curtis Singleton's Grand Jury Testimony (ECF No. 1078). 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)*fn1 ; 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.) 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 Savage, Merritt and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada.
Trial commenced on February 4, 2013. During its case in chief, the Government called Curtis Singleton as a witness. (Feb. 13 Hr'g Tr. 240, ECF No. 1073 (filed under seal).) Singleton provided testimony on February 13 and 14, 2013. (Id.; Feb. 14 Hr'g Tr., ECF No. 1095 (filed under seal).) Singleton testified, among other things, about an altercation he had with Defendant on January 7, 2001 at Defendant's home on Darien Street in Philadelphia, Pennsylvania. (Feb. 13 Hr'g Tr. 258.)
On February 15, 2013, Defendant filed the instant Motion. (Def.'s Mot., ECF No. 1078.) The Government filed a Response in opposition to the Motion on February 20, 2013. (Gov't's Resp., ECF No. 1083.)
A. The Parties' Contentions
Defendant requests that the Court reconsider its ruling which permitted the Government to read into evidence grand jury testimony given by Singleton as a prior consistent statement under Rule 801(d)(1)(B) of the Federal Rules of Evidence. On direct examination, Singleton explained to the jury that, during an altercation with Defendant at Defendant's home, Defendant struck him on the side of the head with a gun. (Feb. 13 Hr'g Tr. 258.)*fn2 During cross examination by defense counsel, Singleton testified that he was interviewed by Special Agent Kevin Lewis and Detective Thomas Zielinski on March 9, 2004 and April 30, 2004. (Feb. 13 Hr'g Tr. 297, 299.) Defense counsel attempted to impeach the credibility of Singleton on a number of occasions.*fn3 On redirect, the Government sought to rehabilitate Singleton by introducing a portion of the testimony he provided to the grand jury in May of 2004. (Feb. 14 Hr'g Tr. 12-15.) Singleton testified before the grand jury about the altercation at Defendant's home. (Id.) Specifically, Singleton stated that Defendant pointed a gun at him, demanded that Singleton return the money, and then struck Singleton over the head with the gun. (Id. at 12-14.) He further testified that he took $300 from Defendant, and that Barbara Savage was present during this incident. (Id.)
Defendant maintains that Singleton's testimony before the grand jury about being struck by Defendant with a gun was improperly admitted because it did not qualify as a prior consistent statement under Federal Rule of Evidence 801(d)(1)(B). Specifically, Defendant argues that the statement was made to the grand jury after the time that Singleton's motive to falsify arose. Defendant contends that at the time Singleton met with Special Agent Lewis and Detective Zielinski in March and April of 2004, he was entrenched in drug distribution, and that because of this criminal exposure, he was motivated to "adopt law enforcement's position that he was struck by a gun in order to curry favor with the Government, whom Singleton feared would prosecute him for his drug activities." (Def.'s Mot. 2-3.) Defendant maintains that it was at these meetings that Singleton's motive to fabricate arose, and that because Singleton's testimony before the grand jury occurred after these meetings, any statements made before the grand jury would not qualify as prior consistent statements.
The Government responds that the grand jury testimony was properly admitted as a prior consistent statement under Rule 801(d)(1)(B). It is the Government's position that through defense counsel's aggressive cross examination of Singleton, they "implicitly or explicitly claimed that [Singleton] was lying during his testimony" and that as a result, the motive to fabricate arose during this trial and not during Singleton's meetings with law enforcement officials in 2004. (Gov't's Resp. 2, 4.)
Rule 801(d)(1)(B) of the Federal Rules of Evidence states that a prior statement made by a witness is not hearsay when it "is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying" Fed. R. Evid. 801(d)(1)(B). "Prior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely because [he] has been discredited." Tome v. United States, 513 U.S. 150, 157 (1995). The purpose of the Rule permitting admission of consistent statements is to "rebut a charge of recent fabrication or improper influence or motive" and not to "bolster the veracity of the story told." United States v. Frazier, 469 F.3d 85, 88 (3d Cir. 2006) (internal citations omitted).
In order for a prior consistent statement to be admitted into evidence under Rule 801(d)(1)(B), the following four requirements must be met: (1) the declarant must testify at trial and be subjected to cross examination; (2) there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant's testimony; (3) the proponent must offer a prior consistent statement that is consistent with the declarant's challenged in-court testimony; and (4) the prior consistent statement must be made prior to the time that the supposed motive to falsify arose. Id. The parties agree that the first three elements are not at issue. The only issue raised by Defendant is whether ...