United States District Court, D. Maine
ORDER ON MOTION IN LIMINE TO PRECLUDE TESTIMONY OF
Z. SINGAL, UNITED STATES DISTRICT JUDGE.
the Court is Defendant Carey Ackies's Motion in Limine to
Preclude Testimony of Confidential Informants Relating to
404(b) Evidence (ECF No. 193). After carefully considering
the Motion and the Government's Response (ECF No. 195),
the Court DENIES the Motion.
matter is set for trial beginning November 27, 2017.
Defendant is charged in a two-count Indictment with (1)
conspiracy to possess with intent to distribute heroin and 28
grams or more of cocaine base on or about January 18, 2016,
and (2) possession with intent to distribute heroin and 28
grams or more of cocaine base, and aiding and abetting such
conduct, on or about January 18, 2016. (See
Indictment (ECF No. 9), PageID #s 39-40.) Defendant seeks to
exclude testimony by two cooperating witnesses regarding
their involvement with Defendant in drug transactions that
predate January 18, 2016, the date of the drug seizure that
lead to Defendant's arrest. The Government has
represented to Defendant that it anticipates that one
witness, Witness #1, will testify in part
that he met [Defendant] . . . in approximately April 2015
through another acquaintance for the purpose of purchasing
heroin for further distribution in the District of Maine. At
this initial meeting, he and [Defendant] also discussed
[Defendant] supplying cocaine base (crack-cocaine) and
oxycodone. Prices were also discussed. He received a delivery
within a short period of time. He communicated with
[Defendant] but met couriers (“runners”), usually
at the Concord Coach Bus Lines station in Portland, Maine,
where the exchanges (drugs for cash) would occur. Most
deliveries involved more than one substance. Most often, it
was crack and heroin and the quantities were, at times,
significant. The most frequent runner he met was [Witness
#2], who he believed was dating [Defendant]'s sister.
[Witness #2] was the person arrested on January 18, 2016 . .
. [Witness #1] also met [Defendant] twice in New York where
they discussed business, including most recently, around
Christmas 2015. He provided [Defendant] with drug proceeds on
each occasion and received a small amount of drugs . . .
Before having law enforcement contact on January 14, 2016, he
and [Defendant] discussed the delivery of 400 grams of heroin
and 400 grams of crack-cocaine to the District of Maine for
(Def.'s Mot. in Limine (ECF No. 193), PageID #s 995-96.)
The Government has represented to Defendant that it
anticipates that the other witness, Witness #2, will testify
that he met [Defendant] through [Witness #2]'s
fiancée . . . Because he needed money, [Witness #2]
started making drug runs for [Defendant]. He delivered drugs
for [Defendant] in New York and to the District of Maine. His
compensation depended on where [Defendant] asked him to
deliver drugs to, and usually he was compensated from the
money that was provided to him by the customers. He traveled
to Maine by Amtrak and bus. Most of the time, he engaged in
backpack exchanges at the bus station. Usually, he was not
aware of how much, or what type of drugs, he was
transporting. He knew that [Witness #1] was one of
[Defendant]'s customers in the District of Maine. He
delivered packages to [Witness #1] and received money from
him. After the deliveries to the District of Maine, [Witness
#2] returned to New York with the proceeds and delivered them
to [Defendant] . . . He previously picked up packages of
drugs from [Defendant] at [Defendant's] apartment, and
believes that [Defendant] had a secondary “stash”
(Def.'s Mot. in Limine, PageID # 997.) Defendant contends
that this evidence is neither intrinsic to the charged
offenses nor admissible pursuant to Federal Rule of Evidence
404(b), and is further inadmissible pursuant to Rule 403.
(Def.'s Mot. in Limine, PageID #s 999-1002.)
Defendant recognizes, evidence that is “intrinsic to,
” or “comprises part and parcel of” an
offense charged in an indictment is not governed by Federal
Rule of Evidence 404(b), which limits “other
acts” evidence. United States v. Gobbi, 471
F.3d 302, 311 (1st Cir. 2006). “Intrinsic evidence
includes prior acts that are part of [the] necessary
description of the events leading up to the crime or that
go to an element of the charged offense.” United
States v. Souza, 749 F.3d 74, 84 (1st Cir. 2014)
(alterations in original) (quotation marks omitted). The
Court readily determines that the contacts and drug
transactions between the cooperating witnesses and Defendant
that precede the date charged in the Indictment are intrinsic
to the charged offenses, for two reasons. First, the evidence
of prior contacts and transactions is “necessary to
complete the story of the charged crime, ” United
States v. Taylor, 284 F.3d 95, 101 (1st Cir. 2002), and
to explain how the cooperating witnesses and Defendant
“came together” to form the charged drug
conspiracy, United States v.
Robles-Alvarez, 874 F.3d 46, 51 (1st Cir. 2017). Second,
the evidence of prior contacts and transactions goes to prove
an element of the charged conspiracy, the existence of an
agreement between Defendant and others to distribute drugs
from New York to Maine. See United States v.
Medina-Martinez, 396 F.3d 1, 5 (1st Cir. 2005)
(“To prove conspiracy in a criminal case, the
government must prove beyond a reasonable doubt that an
agreement existed to commit the underlying substantive
offense . . . .”); see also United States v.
Williams, No. 08-CR-112-P-S, 2009 WL 387396, at *1 (D.
Me. Feb. 13, 2009) (admitting evidence regarding the recovery
of certain firearms as intrinsic to a charged offense because
the evidence “may assist the jury in concluding that
the alleged conspirators were engaged in the business of
selling in New York City firearms purchased in Maine”).
Court finds United States v. Robles-Alvarez to be
instructive. In that case, the First Circuit concluded that
the district court did not err in admitting evidence of a
drug smuggling trip from Antigua to Puerto Rico via St.
Martin despite the fact that this trip preceded the trips
comprising the charged conspiracy to import drugs from St.
Martin to Puerto Rico. Robles-Alvarez, 874 F.3d at
51. The First Circuit explained:
[T]he district court did not abuse its discretion in
admitting evidence of the Antigua smuggling trip because such
evidence was intrinsic to the charged conspiracy. Clearly,
the meeting between the appellant, Robles-Ortiz, and
Rodríguez in St. Martin, during which the group
discussed the possibility of becoming partners in a drug
smuggling operation, was part of the necessary description of
the events leading up to the crime. Absent this evidence, the
jury could have been left wondering about how the various
co-conspirators came together. And, in turn, evidence of the
appellant's and Robles-Ortiz's participation in a
drug smuggling trip to Antigua not only explained why they
were passing through St. Martin, but also why
Rodríguez would have trusted the pair and decided to
go into business with them.
Id. (internal citation and quotation marks omitted).
In this case, as in Robles-Alvarez, evidence of the
prior contacts and transactions involving the cooperating
witnesses and Defendant helps explain the origins of the
conspiracy and the nature of the relationship between the
conspirators. Defendant's attempts to distinguish
Robles-Alvarez are unconvincing.
alternative, the Court concludes that the evidence Defendant
seeks to exclude is admissible pursuant to Federal Rule of
Evidence 404(b) to prove motive, intent, preparation, plan,
knowledge, or identity. See Fed.R.Evid. 404(b)(2);
United States v. Green, 698 F.3d 48, 55 (1st Cir.
2012) (“We have repeatedly held that, in a conspiracy
case, evidence of other bad acts . . . can be admitted to
explain the background, formation, and development of the
illegal relationship, and, more specifically, to help the
jury understand the basis for the co-conspirators'
relationship of mutual trust.” (quotation marks
omitted)). At trial, Defendant is free to assert any specific
objection to Rule 404(b) being used as an alternative basis
for admitting the evidence Defendant seeks to exclude. At
Defendant's request, the Court will provide the jury a
limiting instruction as to any evidence admitted under Rule
404(b). Finally, regardless of the basis for admission of the
challenged evidence, the Court determines that its probative
value is not substantially outweighed by a danger of unfair
prejudice. See Fed.R.Evid. 403.
foregoing reasons, Defendant's Motion is DENIED WITHOUT
PREJUDICE to Defendant reasserting any objection at trial to
testimony by the cooperating witnesses regarding ...