United States v. Donovan

577 F.Supp.3d 107

UNITED STATES of America,

v.Kaiam DONOVAN, Defendant.

20-CR-374 (PKC)

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

Signed December 22, 2021

Gillian Kassner, Sara K. Winik, Government Attorneys, United States Attorney's Office, Brooklyn, NY, for United States of America.

John Michael Burke, Kelley J. Sharkey, Attorney at Law, Douglas G. Morris, Public Defender, Federal Defenders of New York, Inc., Brooklyn, NY, David Kirby, O'Connor & Kirby, Pound Ridge, NY, Michael H. Sporn, New York, NY, for Defendant.

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Trial of Defendant Kaiam Donovan is scheduled to begin with jury selection on January 3, 2022. Now before the Court are the parties’ motions in limine requesting that the Court exclude or allow certain evidence at trial. For the reasons discussed below, the parties’ motions are granted in part and denied in part.

BACKGROUND

On October 16, 2020, Defendant was arraigned on a two-count indictment charging him with one count of conspiring to distribute and possess with intent to distribute cocaine base, and one count of distributing and possessing with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, respectively. (Indictment, Dkt. 3.) On October 22, 2021, a grand jury returned a Superseding Indictment that no longer contained a conspiracy charge and instead contained three separate substantive cocaine distribution charges, each on a different date: March 27, 2020; May 12, 2020; and May 20, 2020. (S-1 Indictment, Dkt. 50.) The Government represents that it has, inter alia , video recordings of the alleged transactions and laboratory reports confirming the identity and weight of the substances Defendant sold to an undercover officer (UC102) on the charged dates. (See Complaint & Search Warrant Application, Dkt. 1, ¶ 9; see also Dkts. 13, 24.)

On December 13, 2021, Defendant filed two motions in limine to exclude certain evidence offered by the Government. (See Defendant's Motion in Limine ("Def. Br."), Dkt. 77; Motion to Exclude Expert Testimony, Dkt. 78). The same day, the Government moved in limine to be permitted to introduce certain evidence. (See Government's Motion in Limine ("Gov. Br."), Dkt. 83.)

On December 15, 2021, the Court held a pretrial conference ("PTC") where, among other things, it ruled on several of the parties’ motions, and reserved ruling on others. (See 12/15/2021 Minute Entry.) The Court directed the parties to submit supplemental briefs regarding outstanding evidentiary requests. (See id. ) On December 20, 2021, the parties submitted their additional briefs. (See Defendant's Supplemental Brief ("Def. Supp. Br."), Dkt. 89; Government's Supplemental Brief ("Gov. Supp. Br."), Dkt. 90.) The Court now considers the remaining evidentiary matters.

LEGAL STANDARD

"Evidence is relevant if[ ] (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401.¹ Relevant evidence is admissible unless the United States Constitution, a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court say otherwise. Fed. R. Evid. 402. Under Federal Rule of Evidence 403, "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403.

"[D]istrict courts enjoy broad discretion over the admission of evidence." United States v. Delgado , 971 F.3d 144, 153 (2d Cir. 2020). "A district court abuses its discretion when it acts arbitrarily or irrationally, or premises its decision on an error of law." United States v. Walker , 974 F.3d 193, 203 (2d Cir. 2020), cert. denied , ––– U.S. ––––, 141 S. Ct. 2823, 210 L.Ed.2d 943 (2021).

DISCUSSION

I. Uncharged Drug Transactions

A. Legal Standard – Other Acts

Under Federal Rule of Evidence 404(b), "[e]vidence of any other crime, wrong, or 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." Fed. R. Evid. 404(b). Even so, "[t]he Second Circuit's inclusionary rule allows the admission of such evidence for any purpose other than to show a defendant's criminal propensity, as long as the evidence is relevant and satisfies the probative-prejudice balancing test of Rule 403 of the Federal Rules of Evidence." United States v. Lyle , 919 F.3d 716, 736 (2d Cir. 2019), cert. denied , ––– U.S. ––––, 140 S. Ct. 846, 205 L.Ed.2d 470 (2020).

Not all evidence of uncharged misconduct constitutes other crimes evidence for purposes of Rule 404(b). See id. "Rather, evidence of uncharged criminal activity is not considered other crimes evidence if it arose out of the same transaction or series of transactions as the charged offense, if it is inextricably intertwined with the evidence regarding the charged offense, or if it is necessary to complete the story of the crime on trial." Id.

B. The Court Declines to Admit Evidence of Uncharged Drug Transactions

The Government seeks to introduce evidence of Defendant's alleged involvement in uncharged drug transactions with (1) UC102, and (2) other people.

1. Uncharged Transactions with UC102

The Government argues that "evidence of [Defendant's] uncharged cocaine sales to UC102 is admissible as direct evidence of the charged conduct" because both the charged and uncharged transactions "occurred during a short four-month window of time[,] ... occurred in the same general location," and involved Defendant selling to UC102 in UC102's car after Defendant and UC102 exchanged text messages. (Gov. Br., Dkt. 83, at 26.) The Government also contends that the uncharged transactions with UC102 are "inextricably intertwined with the charged sales" and are "necessary to complete the story" because some uncharged sales occurred in between the charged transactions, and, on those occasions, Defendant discussed future transactions with UC102. (Id. ) The Government posits that this evidence will help "avoid jury confusion." (Id. )

The Court disagrees. First, although the Government initially charged Defendant with a drug-related conspiracy in violation of 21 U.S.C. §§ 841(a)(1) and 846 (see Indictment, Dkt. 3), it has since dropped the conspiracy charge and replaced it, in the superseding S-1 Indictment, with "three separate substantive distribution charges, each on a different date" (see S-1 Indictment, Dkt. 50). United States v. Donovan , No. 20-CR-374 (PKC), 2021 WL 5819915, at *1 (E.D.N.Y. Dec. 6, 2021). The Government has not explained how uncharged drug transactions on different dates are "direct evidence" of the charged sales, simply because the charged and uncharged transactions occurred in similar circumstances during a four-month window. Many businesses, lawful or otherwise, sell the same product to the same customers repeatedly (e.g. , coffee shops). Each sale is not part of one extended transaction or a single "series." Cf. United States v. Williams , No. 13-CR-419 (DLI), 2016 WL 4536864, at *6 (E.D.N.Y. Aug. 30, 2016) (concluding that the defendant's conversations concerning his possession of a firearm and drug sales were "direct evidence of the crimes charged" because, unlike here, they "occurred during the period of the charged conspiracy " (emphasis added)).

Nor are the uncharged sales here "inextricably intertwined" with the charged sales. The Government alleges that Defendant sold cocaine to UC102 on three occasions, which are captured on video. The charged sales are straightforward, and the jury does not need to hear about additional uncharged sales to understand the evidence directly relating to them, which includes video recordings, text messages, and laboratory reports. See United States v. Martoma , No. 12-CR-973 (PGG), 2014 WL 31191, at *3 (S.D.N.Y. Jan. 6, 2014) ("Courts have not found charged and uncharged conduct inextricably intertwined where the charged crimes are straightforward and may be fully understood without reference to the uncharged conduct."). That some of the alleged uncharged transactions occurred "in between" the charged transactions is immaterial; it merely reflects the transactions the Government chose to charge and those it did not.

The Government also fails to explain how the uncharged sales are "necessary to complete the story" of the charged transactions. The "story" of the charged transactions is that, on three occasions, Defendant sold cocaine to UC102. As noted, Defendant is not charged with a conspiracy or a continuing course of conduct. Cf. United States v. Newton , No. 01-CR-635 (CSH), 2002 WL 230964, at *3 (S.D.N.Y. Feb. 14, 2002) ("While the proffered evidence may tend to show that [the defendant] was engaged in a pattern of activity ..., knowledge of that activity does not assist in understanding the charged crimes."). Evidence of additional discrete, uncharged transactions on different dates from those alleged in the S-1 Indictment, that do not have clear video corroboration, is hardly necessary to clarify the case for the jury. Cf. id. ("The fact that [the defendant] may have committed similar fraudulent acts in close temporal proximity to the charged crimes furnishes an element of context, but it is certainly not crucial information without which the jury will be confused or the government's theory of the case unfairly curtailed."). If anything, such evidence is likely to confuse the jury about why the Government is attempting to prove additional interspersed transactions when the jury has been asked to determine Defendant's guilt as to a specific three. In any event, the Government chose to charge three discrete transactions. That those alleged drug sales resemble other alleged drug sales reflects the nature of the drug trafficking business; it does not, however, ...