The opinion of the court was delivered by: Paul L. Friedman United States District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the government's motion in limine to admit evidence of other crimes, wrongs, or acts pursuant to Rule 404(b) of the Federal Rules of Evidence. The Court heard oral argument on this motion on February 1, 2011, and took it under advisement. Upon consideration of the parties' papers, the oral arguments presented by counsel, the relevant legal authorities, and the entire record in this case, the Court will grant in part and deny in part the government's motion.
The defendant, Ted Giovanny Loza, former chief of staff for District of Columbia Councilmember Jim Graham, is charged with one count of conspiracy, in violation of 18 U.S.C. § 371; three counts of bribery, in violation of 18 U.S.C. § 201(b); one count of extortion, in violation of 18 U.S.C. § 1951; and one count of making false statements in violation of D.C. Code § 22-2405. The charges arise primarily from an alleged plan entered into by defendant and his co-conspirators to unlawfully "control and dominat[e] the taxicab industry in the District of Columbia." Indictment ¶ 13.*fn1
The government asks the Court to admit three categories of evidence of other crimes, wrongs, or acts: (1) the defendant's alleged acceptance of an all expenses paid trip to Ethiopia in the summer of 2004; (2) the defendant's alleged acceptance, in 2009, of $200 and a piece of luggage from an associate on whose behalf the defendant allegedly had intervened with a District of Columbia agency; and (3) the defendant's alleged failure to list certain required items on his 2004, 2007, and 2009 Financial Disclosure Forms. See Mot. at 1-2. The government contends that "[e]vidence of these incidents is offered to prove the charged offenses; it is not, however, offered merely to establish the defendant's criminal character." Id. at 2.
During oral argument on the government's motion, the defendant stated that he no longer opposed admission of the first category - the alleged acceptance of an all expenses paid trip to Ethiopia. The Court therefore will admit such evidence. Defendant, however, does oppose the admission of the second and third categories. Defendant argues that "the evidence sought to be admitted either is not probative of any issue other than character, or the probative value of the evidence is substantially outweighed by the danger of unfair prejudice . . . ." Opp. at 6.
In considering the admissibility of other crimes, wrongs, or acts under Rule 404(b) of the Federal Rules of Evidence, the Court must apply a two-step analysis. First, the Court must determine whether "the evidence [is] probative of some material issue other than character." United States v. Clarke, 24 F.3d 257, 264 (D.C. Cir. 1994). Under Rule 404(b), evidence of other crimes, wrongs, or acts is admissible "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." FED. R. EVID. 404(b). This is not an exclusive list of relevant purposes, and any purpose for which such evidence is introduced is a proper purpose so long as the evidence is not offered solely to prove character or criminal propensity. See United States v. Mahdi, 598 F.3d 883, 891 (D.C. Cir. 2010); United States v. Pettiford, 517 F.3d 584, 588 (D.C. Cir. 2008); United States v. Miller, 895 F.2d 1431, 1436 (D.C. Cir. 1990). Furthermore, in this circuit the Rule is viewed as one of inclusion rather than exclusion. United States v. Long, 328 F.3d 655, 660-61 (D.C. Cir. 2003); United States v. Bowie, 232 F.3d 923, 929-30 (D.C. Cir. 2000).
Second, if the Court determines that the other crimes evidence is admissible for a legitimate purpose, the Court then must decide whether it nevertheless should be excluded under Rule 403 of the Federal Rules of Evidence because "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVID. 403; see United States v. McCarson, 527 F.3d 170, 173-74 (D.C. Cir. 2008); United States v. Clarke, 24 F.3d at 264 ("The second step requires that the evidence not be inadmissible under Rule 403."). Under Rule 403, the test is "unfair prejudice," not prejudice or harm to the defense. United States v. Pettiford, 517 F.3d at 590 ("Rule 403 'does not bar powerful, or even 'prejudicial' evidence. Instead, the Rule focuses on the 'danger of unfair prejudice,' . . . .'") (quoting United States v. Gartmon, 146 F.3d 1015, 1021 (D.C. Cir. 1998); FED. R. EVID. 403) (emphasis in original); United States v. Cassell, 292 F.3d 788, 796 (D.C. Cir. 2002) ("Virtually all evidence is prejudicial or it isn't material. The prejudice must be unfair.") (internal quotations and citation omitted).
As stated, the government requests the admission of three categories of evidence. Because defendant no longer opposes admission of the first category, the Court discusses in turn the two remaining categories and determines whether the government's proffer and the rationale for admission of each category of evidence meet the requirements for admission under Rules 404(b) and 403.
A. $200 and a Piece of Luggage
The government seeks to introduce evidence that, in 2009, the defendant allegedly accepted $200 and a piece of luggage from an associate on whose behalf the defendant allegedly had intervened with a District of Columbia agency. Mot. at 2. As the government states: "In order to convict the defendant of bribery and conspiracy to commit bribery, the government must prove that he knowingly accepted or agreed to accept things of value in exchange for performing official acts." Id. at 9-10. The government argues that this category of other crimes evidence "is offered to establish the defendant's intent when he received bribes from Mr. [Abdul] Kamus, his knowledge regarding the bribes, and the absence of mistake regarding the bribes, as charged in Counts One through Four (Bribery and Conspiracy to Commit Bribery)" of the Indictment. Id.
Although this evidence may be probative of some purpose other than character, the Court finds that the probative value is limited and is - at this stage - "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVID. 403. The Court will, however, consider admitting this evidence in rebuttal - or on cross-examination of the defendant if he testifies - "but only if the defendant brings into question" his ...