United States v. Abdalla

346 F.Supp.3d 420

UNITED STATES of America

v.Baktash Akasha ABDALLA and Ibrahim Akasha Abdalla, Defendants.

14 CR 716 (VM)

United States District Court, S.D. New York.

Signed October 23, 2018

Anna Margaret Skotko, Michael Dennis Lockard, Amanda Leigh Houle, Emil Joseph Bove, III, United States Attorney's Office, SDNY, Patrick Egan, New York, NY, for United States of America.

James Kousouros, Law Off. James Kousouros (NY), Dawn Marcella Cardi, Cardi & Edgar LLP, Philip L Weinstein, Sylvie Jill Levine, Federal Defenders of New York Inc. (NYC), Patrick James Joyce, New York, NY, Jeffrey G. Pittell, Maher & Pittell, LLP, Bayside, NY, Christopher Joseph Cassar, Christopher J. Cassar, P.C., Huntington, NY, Bruce A. Barket, Barket Marion Epstein & Kearon, LLP, Garden City, NY, for Defendants.

DECISION AND ORDER

VICTOR MARRERO, United States District Judge

Defendants Baktash Akasha Abdalla ("B. Abdalla"), Ibrahim Akasha Abdalla ("I. Abdalla"), Gulam Hussein, Vijaygiri Anandgiri Goswami, and Muhammad Asif Hafeez are charged with orchestrating an international narcotics conspiracy based in Kenya, with a distribution network that included the United States. (See"Superseding Indictment," Dkt. No. 55.) Trial of Baktash and Ibrahim Akasha Abdalla (collectively, "Defendants") is scheduled to begin before this Court on October 29, 2018. In light of the upcoming trial, the Government has filed a motion in limine seeking: to allow admission of certain evidence related to uncharged drug trafficking and acts of violence; to preclude Defendants from offering an entrapment defense; to preclude Defendants from offering evidence of, or otherwise discussing, purported improper conduct related to their expulsion from Kenya; and to impose certain security measures at trial. (See"Government Motion," Dkt. No. 90.)

For the following reasons, the Government Motion is GRANTED in part and DENIED in part.

I. BACKGROUND

On December 7, 2017, the Government filed the Superseding Indictment charging Defendants with conspiring to manufacture and distribute heroin, knowing and intending that it would be imported into the United States (Count One); conspiring to manufacture and distribute methamphetamine, knowing and intending that it would be imported into the United States (Count Two); distributing and aiding and abetting the distribution of heroin, knowing and intending that it would be imported into the United States (Count Three); distributing and aiding and abetting the distribution of methamphetamine, knowing and intending that it would be imported into the United States (Count Four); conspiring to use and carry firearms during and in relation to the offenses charged in Counts One through Four (Count Five); using, carrying, and brandishing a firearm during and in relation to the offenses charged in Counts One through Four and possessing and brandishing firearms in furtherance of the same offenses (Count Six); and conspiring to obstruct, influence, and impede an official proceeding (Count Seven). (See Superseding Indictment.)

On September 23, 2018, the Government filed a motion in limine requesting various rulings prior to the start of trial. (See Government Motion.) Specifically, the Government seeks: (1) a ruling that evidence of the Defendants' involvement in drug trafficking and acts of violence in and around 2014 through 2017 is direct proof of the charges in the Superseding Indictment (see id. at 7-24) or, alternatively, a ruling that such evidence is admissible pursuant to Federal Rule of Evidence 404(b) (see id. at 24-29); (2) to preclude Defendants from presenting an entrapment defense at trial (see id. at 29-33); (3) to preclude Defendants from offering commentary, argument, questioning, or evidence regarding purported improper conduct related to their expulsion from Kenya (see id. at 33-35); and (4) the implementation of certain security measures at trial (see id. at 35-42).

On October 4, 2018, I. Abdalla filed an opposition to the Government Motion. (See"I. Abdalla Opposition," Dkt. No. 106.) I. Abdalla asserts that the Government's proffered evidence of drug trafficking and acts of violence is not direct evidence of the crimes charged and is, moreover, unfairly prejudicial, under Federal Rule of Evidence 403, to I. Abdalla because it improperly groups I. Abdalla with his co-defendant B. Abdalla. (See id. at 2-9.) Furthermore, I. Abdalla argues, such evidence is inadmissible under Federal Rule of Evidence 404(b). (See id. at 9-11.) I. Abdalla also argues that a pretrial ruling on an entrapment defense would be premature (see id. at 11); the Court should allow I. Abdalla to offer commentary, argument, questioning, and evidence regarding purported improper conduct related to his expulsion from Kenya (see id. at 12); and the Court should deny the Government's requested security measures to the extent those measures forbid the disclosure of the identities of the confidential sources to Defendants (see id. at 13). Finally, in the event the Court grants any part of the Government Motion, I. Abdalla requests that the Court sever the trial of Defendants. (See id. at 14-17.)

On October 19, 2018, B. Abdalla filed an opposition to the Government Motion. (See"B. Abdalla Opposition," Dkt. No. 126, corrected version filed at Dkt. No. 127.) B. Abdalla opposes the Government's request for a ruling that certain evidence be deemed admissible, arguing that the evidence of uncharged drug-trafficking transactions and acts of violence should be excluded as irrelevant. B. Abdalla asserts that his defense will be that he did not commit the crimes charged in the Superseding Indictment, thus making the evidence contemplated by the Government Motion inadmissible under Federal Rule of Evidence 404(b). (See id. at 3-6.) B. Abdalla also argues that the Government's requests to preclude an entrapment defense and evidence or discussion of purported misconduct related to Defendants' expulsion from Kenya are premature. (See id. at 6.) Finally, B. Abdalla joins in the I. Abdalla Opposition. (See id. at 6.)

On October 20, 2018, the Government notified the Court that it would not file a reply in further support of the Government Motion. (See Dkt. No. 13 0.)

II. DISCUSSION

A. Motion for a Ruling on the Admissibility of Evidence of the Defendants' Drug Trafficking and Acts of Violence

The Government argues that the offenses charged in the Superseding Indictment were part of an "extensive international drug-trafficking business" operated by the Defendants. (Government Motion at 7.) As such, the Government contends that evidence of the Defendants' involvement in uncharged drug-trafficking transactions and related acts of violence is admissible as direct proof of the crimes charged in the Superseding Indictment. (See id. ) In the alternative, the Government asserts that such evidence is admissible pursuant to Federal Rule of Evidence 404(b) (" Rule 404(b)") because it provides important background for the charges in the Superseding Indictment. (See id. at 24-29.) Specifically, the Government seeks a ruling on the admissibility of evidence related to: (1) Defendants' trafficking of Mandrax precursor; (2) Defendants' trafficking of cocaine; (3) Defendants' trafficking of ephedrine; (4) Defendants' involvement in the kidnapping and assault of David Armstrong ("Armstrong"); (5) Defendants' involvement in an armed altercation with a person named Lemondo; and (6) Defendants' involvement in the murder of a person named Pinky. (See id. at 7-14.)

I. Abdalla opposes the Government's request, arguing that the evidence is not direct evidence of the charges in the Superseding Indictment and, moreover, is unfairly prejudicial to I. Abdalla because it improperly groups him with his co-defendant, B. Abdalla. (See I. Abdalla Opposition at 2-11.) B. Abdalla also opposes the Government's request, arguing that the Government should be precluded from offering at trial the other acts evidence described in the Government Motion. (See B. Abdalla Opposition at 3-6.)

Rule 404(b) prohibits the introduction of evidence of crimes, wrongs, or other acts "to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed. R. Evid. 404(b)(1). However, such evidence "may be admissible" to establish "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2). The Court of Appeals for the Second Circuit "follows the ‘inclusionary’ approach to ‘other crimes, wrongs, or acts’ evidence, under which such evidence is admissible unless it is introduced for the sole purpose of showing the defendant's bad character, or unless it is overly prejudicial under [Federal Rule of Evidence] 403 or not relevant under [Federal Rule of Evidence] 402." United States v. Carlton, 534 F.3d 97, 101 (2d Cir. 2008) ; see also United States v. Dupree, 870 F.3d 62, 76 (2d Cir. 2017) ("Under our Circuit's inclusionary approach, prior act evidence is admissible if offered for any purpose other than to show a defendant's criminal propensity.") (internal quotation marks omitted).

The Rule 404(b) analysis requires a court first to determine whether the contemplated evidence concerns bad acts other than the charged crimes. Evidence of an uncharged crime is not considered other crimes evidence -- and therefore not subject to Rule 404(b) analysis -- if it (1) "arose out of the same transaction or series of transactions as the charged offense," (2) "is inextricably intertwined with the evidence regarding the charged offense," or (3) "is necessary to complete the story of the crime [on] trial." United States v. Gonzalez, 110 F.3d 936, 942 (2d Cir. 1997) (quoting United States v. Towne, 870 F.2d 880, 886 (2d Cir. 1989) ). Such evidence need not "directly establish an element of the offense charged," but rather, it can "provide background" for the alleged events, and may be admitted to show "the circumstances...