United States v. Barret

UNITED STATES OF AMERICA

v.CHRISTOPHER BARRET et al., Defendants.

10-cr-809 (S-3)(KAM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Date: December 21, 2011

MEMORANDUM AND ORDER

MATSUMOTO, United States District Judge:

Defendants Christopher Barret, Kareem Forrest, Ryan Anderson, Kerry Gunter, Charles Jones, Latoya Manning, Leon Scarlett and Omar Mitchell (collectively, "defendants") are charged with various narcotics trafficking crimes in a third superseding indictment (the "Superseding Indictment") filed on November 23, 2011. (See generally ECF No. 304, Superseding Indictment ("S-3").) Pending before the court are the parties' motions in limine and renewals of certain motions previously denied by the court. For the reasons set forth below, the court grants in part and denies in part the government's motions in limine; denies Barret's renewed motion to strike his aliases from the Superseding Indictment; and denies Anderson, Jones and Scarlett's renewed motions for severance.

BACKGROUND¹

I. The Charges Against Defendants

Count One of the Superseding Indictment charges Barret with knowingly and intentionally engaging in a continuing criminal enterprise in violation of 21 U.S.C. §§ 848(a) and (c)² and 18 U.S.C. § 3551 et seq.³ (S-3 ¶¶ 1-21.) Count Two charges all defendants with conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 841(b)(1)(A)(vii)⁴ and 846,⁵ and 18 U.S.C. § 3551 et seq. (Id. ¶ 22.) Counts Three and Four charge Barret and Manning with maintaining and conspiring to maintain a stash house in violation of 21 U.S.C. §§ 846 and 856(a)-(b),⁶ and18 U.S.C. § 3551 et seq. (Id. ¶¶ 23-24.) Count Five charges Barret, Forrest, Anderson, Gunter, Jones, Manning and Scarlett with distributing or possessing with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1)⁷ and 841(b)(1)(A)(vii), and 18 U.S.C. §§ 2⁸ and 3551 et seq. (Id. ¶ 25.) Count Six charges Barret, Forrest, Anderson, Gunter, Jones, Scarlett and Mitchell with possessing, brandishing and discharging a firearm in relation to drug trafficking crimes in violation of 18 U.S.C. §§ 924(c)(1)(A)(i),⁹ 924(c)(1)(A)(ii), 924(c)(1)(A)(iii), 2 and 3551 et seq. (Id. ¶ 26.) The Superseding Indictment also contains criminal forfeiture allegations pursuant to 21 U.S.C. §§ 853(a), (p);¹⁰ 18 U.S.C. § 924(d);¹¹ and 28 U.S.C. § 2461(c).¹² (Id. ¶¶ 27-30.)

The instant charges arise from defendants' alleged activities in connection with a Jamaican gang known as the "Fatherless Crew," of which Barret is allegedly the leader, or "Don." (See ECF No. 339, Affidavit of Joelle Ando in Support of Motion for Anonymous and Partially Sequestered Jury ("Ando Aff.") ¶ 3.) According to the government, the "Fatherless Crew" has a structured hierarchy; beneath the "Don," there are many armed enforcers or soldiers, including Barret's co-defendants. (Id. ¶ 5.) Together, "Fatherless Crew" members allegedly "generate[] revenue through a variety of criminal endeavors-particularly narcotics trafficking[,] and routinely use firearms, violence and intimidation to preserve and expand their power." (Id.)

The government asserts that the "Fatherless Crew" has nearly one hundred members in the United States, Jamaica, Canada and the United Kingdom, and more than a dozen members of the "Fatherless Crew" remain at large in the United States. (Id. ¶ 4.) Barret allegedly recruited at least fifteen crew members to illegally enter the United States from Jamaica and carry outacts of violence in furtherance of his narcotics operation in Queens. (Id. ¶ 6.) The government also claims that even after leaving Jamaica, Barret continued to direct the criminal activities of the 'Fatherless Crew' in Jamaica. (Id.) Specifically, Barret allegedly used proceeds from his Queens-based narcotics enterprise to finance ongoing operations of the 'Fatherless Crew' in Jamaica, and he smuggled weapons used by his United States-based enforcers into Jamaica for his crew members' use and to ensure that the guns would not be traced to crimes committed in the United States. (Id. ¶¶ 6-7.)

The government's affidavit in support of its motions in limine is unclear as to whether Barret continued to control the "Fatherless Crew" in Jamaica following his arrest on October 7, 2010. (Id.) The affidavit demonstrates, however, that Barret and members of the "Fatherless Crew" who remain at large in the United States threatened potential government witnesses in the weeks and months following Barret's arrest. (Id. at ¶¶ 9-14.)

II. The Instant Motions

The following is a summary of the pending motions, each of which the court will discuss in turn.

The government moves: (1) to admit as direct evidence of the charged crimes (a) certain acts allegedly committed bythe defendants in furtherance of the conspiracy and (b) Forrest's 2007 marijuana conviction; or in the alternative to admit such evidence pursuant to Federal Rule of Evidence 404(b); (2) to admit, pursuant to Federal Rule of Evidence 404(b), evidence relating to (a) defendants' membership in the "Fatherless Crew" in Jamaica prior to moving to the United States, (b) Barret and Scarlett's incarceration together with an individual named Clifton Williams in the General Penitentiary in Jamaica, (c) Barret's 2003 attempt to shoot a rival drug dealer, which resulted in the death of an innocent bystander, and (d) defendants' prior convictions for marijuana and firearms crimes, discussed in greater detail infra in Section III.B.3; (3) for leave pursuant to Federal Rule of Evidence 609 to cross-examine any defendants who elect to testify regarding their criminal convictions; and (4) for empanelment of an anonymous and partially sequestered jury. (See ECF No. 299, Government's Motions in Limine ("Gov't Mem.").)

Barret renews his motion to strike from the Superseding Indictment references to his aliases, which the court initially addressed and denied in its November 16, 2011ruling.¹³ (See ECF No. 321, Letter Brief in Opposition by Barret ("Barret's Second Opp'n") at 1.)¹⁴

Anderson, Jones and Scarlett renew their motions for severance. (See ECF No. 317, Memorandum of Law in Opposition by Leon Scarlett ("Scarlett Opp'n") at 21-22; ECF No. 300, Motion in Limine by Ryan Anderson ("Anderson Mem.") at 5-6; ECF No. 322, Letter Brief in Opposition by Charles Jones ("Jones Opp'n") at 1.)

DISCUSSION

I. Motion in Limine

The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. Luce v. United States, 469 U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (same); Nat'l Union Fire Ins. Co. v.L.E. Myers Co. Grp., 937 F. Supp. 276, 283 (S.D.N.Y. 1996) (same). "Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds." United States v. Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001). Indeed, courts considering a motion in limine may reserve decision until trial, so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co., 937 F. Supp. at 287. Further, the court's ruling regarding a motion in limine is "subject to change when the case unfolds, particularly if the actual testimony differs from what was [expected]." Luce, 469 U.S. at 41.

II. Admissibility of Proffered Evidence as Direct Evidence of Charged Crimes

The government seeks to introduce as direct proof of the charged crimes evidence of: (1) Forrest's 2007 conviction for possession of marijuana; (2) the 2009 attempted murder of a drug dealing rival by two of Barret's soldiers at his behest, in which both the rival and the rival's driver were shot; (3) Barret's alleged issuance of a contract to murder Marlon Jones, his former drug trafficking partner, in retaliation for a perceived theft in 2009; (4) numerous other acts of violence that the defendants allegedly bragged about to co-conspirators to "enhance their stature within the narcotics organization"; and (5) various examples of criminal activity committed bydefendants and their associates that related to and occurred during the charged conspiracy, as detailed below in Section II.B.5. (Gov't Mem. at 9-21.)

The government argues that because these violent acts were "part and parcel to the narcotics conspiracy and continuing criminal enterprise charged," they are "highly probative of the existence of the conspiracy [and] the lengths that defendants would go to defend the drug trafficking operation." (Id. at 17.) In particular, the government contends that narcotics-related shootings that occurred during the timeframe of the charged conspiracy demonstrate "instances of the defendants brandishing and discharging firearms in furtherance of the operation of a narcotics trafficking conspiracy--the exact charge that is contained in Count Six of the superseding indictment." (ECF No. 336, Reply to Government's Motion in Limine ("Gov't Reply") at 34.) In addition, the government argues that the proffered evidence is relevant as direct evidence of Barret's leadership of the continuing criminal enterprise, defendants' participation in the conspiracy and their respective roles in the enterprise. (See id. at 36-38.)

Moreover, the government contends, the probative-prejudice balancing analysis required by Federal Rule of Evidence 403 favors admission of the evidence because the probative value of the uncharged crimes is great, particularlywith respect to evidence of the defendants' involvement in drug-related shootings. (Gov't Mem. at 20.) In addition, because defendants are charged with discharging firearms in furtherance of drug trafficking, the "government must be allowed to provide evidence proving that the defendants took exactly those actions." (Id.) The government further argues that the proposed evidence is not substantially outweighed by the danger of unfair prejudice to the defendants because the evidence does not involve conduct that is any more...