The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the government's motion to admit certain evidence as intrinsic evidence or, in the alternative, to admit it as other crimes evidence under Rule 404(b) of the Federal Rules of Evidence. The defendant, through prior counsel, filed a written opposition to this motion. Current defense counsel adopted this opposition as his own and, at a motions hearing before the Court on March 15, 2012, elaborated on the arguments as to why such evidence should be excluded.
The government seeks the admission of evidence at trial of three categories of evidence: (1) facts and circumstances regarding events in 1986 and 1987 that led to the defendant's 1990 federal drug conspiracy conviction in the United States District Court for the Southern District of Florida; (2) the defendant's admissions to alleged co-conspirator Jerry Harvey in the 1980's concerning the defendant's drug smuggling activities; and (3) facts and circumstances regarding events that led to the defendant's 1985 Bahamian drug conviction and his escape from prison with the assistance of alleged co-conspirators Jerry Harvey, Billy Long and Andy Gerst.*fn1 The government seeks to introduce these three matters both as evidence "intrinsic" to the crime charged in this case and as admissible extrinsic other crimes evidence under Rule 404(b). See Government's Memorandum on Admissibility of Certain Intrinsic Evidence or in the Alternative Motion to Admit Other Crimes Evidence Pursuant to Federal Rule of Evidence 404(b) ("Mot.") [Dkt. No. 146].
The indictment in this case alleges that from at least the 1990's to at least 2004, the defendant conspired with others to unlawfully, knowingly, and intentionally distribute and possess with the intent to distribute large quantities of cocaine. The indictment alleges that this fourteen-year conspiracy took place in the United States, Mexico, Canada, Colombia, the Bahamas, Spain, France, Italy, and elsewhere. The government's Third Amended Bill of Particulars identifies meetings and conversations "beginning no later than 1990" between the defendant and numerous co-conspirators, including, as relevant here, Jerry Harvey, Billy Long, Gary Paulson, John Dwyer, John Sager, and Andy Gerst. All of these individuals, among others, are identified as co-conspirators in the Third Amended Bill of Particulars.
The District of Columbia Circuit has expressed skepticism about the concept of "inextricably intertwined" or "intrinsic evidence," as distinguished from traditional Rule 404(b) "other crimes" evidence, see United States v. Bowie, 232 F.3d 923, 927-28 (D.C. Cir. 2000), noting that "[b]ifurcating the universe into intrinsic and extrinsic evidence has proven difficult in practice. Which of a defendant's acts should be considered [part of] the charged crime and which should not is often uncertain." Id. at 927. Moreover, "treating evidence as inextricably intertwined not only bypasses Rule 404(b) . . . but also carries the implicit finding that the evidence is admissible for all purposes notwithstanding its bearing on character," thus eliminating the defendant's right to a limiting instruction. Id. at 928.
The D.C. Circuit nevertheless has recognized, "at least in a narrow range of circumstances," that evidence can be intrinsic to the charged crime. United States v. Bowie, 232 F.3d at 929. See also United States v. Alexander, 331 F.3d 116, 126 (D.C. Cir. 2003). At the very least, if the evidence offered "is of an act that is part of the charged offense, it is properly considered intrinsic." United States v. Bowie, 232 F.3d at 929. See also United States v. Mahdi, 598 F.3d 883, 891 (D.C. Cir. 2010). In addition, "some uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime." United States v. Bowie, 232 F.3d at 929. Some bad acts can be so close in time and place as to be a part of the charged crime. And this may be particularly so in conspiracy cases, which involve an ongoing course of conduct rather than a single act. 1 STEPHEN A. SALTZBURG, MICHAEL M. MARTIN, & DANIEL J. CAPRA, FEDERAL RULES OF EVIDENCE MANUAL § 404.02, at 404-25 (9th ed. 2006). On the other hand, unlike other circuits, the D.C. Circuit has said that "there is no general 'complete the story' or 'explain the circumstances' exception to Rule 404(b)." United States v. Bowie, 232 F.3d at 929; see id. at 928 ("The 'complete the story' definition of 'inextricably intertwined' threatens to override Rule 404(b).").*fn2
It follows that where the evidence is intrinsic to the crime charged, it is by definition not "other crimes" evidence and its admissibility is not determined under a Rule 404(b) analysis. United States v. Green, 617 F.3d 233, 249 (3d Cir. 2010) ("If uncharged misconduct directly proves the charged offense, it is not evidence of some 'other' crime."). Furthermore, since intrinsic evidence is evidence of an act that is part of the charged offense or of contemporaneous acts that facilitate commission of the charged offense, the fact that such conduct may have led to a prior conviction is wholly irrelevant. In other words, the fact of conviction is not admissible.
With these precepts in mind, the Court turns now to the government's primary argument - namely, that each of the three series of events it seeks to admit is intrinsic to the conspiracy with which the defendant is charged in this case.
The Court agrees with the government that conversations the defendant had with "his soon-to-be co-conspirators," Mot. at 3, Gary Paulson, John Sager, and Jerry Harvey, while incarcerated in the Miami Correctional Center - as described on the bottom half of page 3 and the carryover paragraph of page 4 of the government's motion and in paragraphs 2 through 5 of the government's Third Amended Bill of Particulars - constitutes evidence intrinsic to this case that will be admitted. As the government explains, these conversations are relevant to proving the inception of the very conspiracy that the grand jury has charged.
The Court does not agree with the government, however, that the defendant's activities from December 1986 to March 1987, which is outside the period of the charged conspiracy - as described on the bottom of page 2 and the top of page 3 of the government's motion - constitutes evidence intrinsic to the crime charged in this case. The government argues that this is evidence of how the defendant developed credibility and trust with other large scale drug traffickers, who later became his co-conspirators. Mot. at 10-11. The government also argues that this evidence shows the defendant's level of sophistication and ability to move large quantities of cocaine to Europe and Canada. Id. at 13. But this evidence does not constitute intrinsic evidence under Bowie: the defendant's actions in 1986 and 1987 are neither part of the charged offense nor contemporaneous acts that facilitated the commission of the charged offense. At best, this evidence "completes the story" or "explains the circumstances" leading up to the period in which the conspiracy was conceived, evidence that is not admissible as intrinsic evidence in this Circuit. United States v. Bowie, 232 F.3d at 929.
The government also seeks to introduce evidence regarding the defendant's discussions in the 1980's with future co-conspirator Jerry Harvey about drug smuggling techniques and how to drop illegal narcotics with the use of airplanes, along with the defendant's admission to Harvey that he had been smuggling hundreds of kilograms of cocaine from Colombia to the Bahamas and then into the United States. See Mot. at 4. It appears that the government also views this information as "association evidence," Hr'g Tr. (3/15/2012) at 42 (unofficial rough transcript), and as demonstrating the high level of drug trafficking that allowed the defendant to establish credibility with his later co-conspirators. But this also fails the test for admissibility under Bowie. While some circuits have held that evidence that establishes associations or prior relationships may be admissible because it may be relevant to show the defendant's knowing participation in a later conspiracy and thus is inextricably intertwined with the facts on trial, see, e.g., United States v. Johnson, 12 F.3d 827, 831 (8th Cir. 1994); United States ...