Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 1 of 37 GOVERNMENT S IN LIMINE MOTION

Transcription

1 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 1 of 37 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, S15 07 CR 971 (RPP) - v. - CHRISTOPHER MICHAEL COKE, Defendant. GOVERNMENT S IN LIMINE MOTION PREET BHARARA United States Attorney for the Southern District of New York Attorney for the United States of America JOCELYN E. STRAUBER JOHN T. ZACH Assistant United States Attorneys - Of Counsel -

2 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 2 of 37 TABLE OF CONTENTS BACKGROUND I. The Superseding Indictment II. Summary of Expected Trial Evidence A. The Criminal Organization B. Conspiracy to Distribute Cocaine & Marijuana.. 8 C. Conspiracy to Deal in Firearms Without a License ARGUMENT I. Additional Evidence Concerning the Means and Methods of the Charged Conspiracy A. Witness Testimony B. Applicable Law C. Discussion Acts of Violence Narcotics Trafficking Activities in Kingston, Jamaica III. Expert Testimony A. Facts B. Applicable Law & Discussion CONCLUSION ii

3 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 3 of 37 Federal Statutes TABLE OF AUTHORITIES Fed. R. Evid Fed. R. Evid. 404(b) Cases Old Chief v. United States, 519 U.S. 172 (1997) United States v. Amuso, 21 F.3d 1251 (2d Cir. 1994) United States v. Birbal, 62 F.3d United States v. Brennan, 798 F.2d 581 (2d Cir. 1986) United States v. Carboni, 204 F.3d 39 (2d Cir. 2000) United States v. Curley, 639 F.3d 50 (2d Cir. 2011) 18, 20, 21 United States v. DeVillio, 983 F.2d 1185 (2d Cir. 1993).. 18 United States v. Duncan, 42 F.3d 97 (2d Cir. 1994) United States v. Gonzalez, 110 F.3d 936 (2d Cir. 1997) 16, 24, 25 United States v. Green, 648 F.2d 587 (9th Cir. 1981) United States v. Inserra, 34 F.3d 83 (2d Cir. 1994).. 20, 23 United States v. Langford, 990 F.2d 65 (2d Cir. 1993) United States v. Lasanta, 978 F.2d 1300 (2d Cir. 1992) United States v. Levy, 731 F.2d 997 (2d Cir. 1984) United States v. Locascio, 6 F.3d 924 (2d Cir. 1993) United States v. Lopez-Pena, (S.D.N.Y 2007) United States v. Maravilla, 907 F.2d 216 (1st Cir. 1990).. 19 United States v. Massiano, 546 F.3d 123 (2d Cir. 2008) iii

4 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 4 of 37 United States v. Matera, 489 F.3d 115 (2d Cir. 2007) United States v. McCallum, 584 F.3d 471 (2d Cir. 2009) United States v. Mejia, 545 F.3d 179 (2d Cir. 2008) United States v. Murray, 618 F.2d 892 (2d Cir. 1980) United States v. Muyet, 945 F. Supp. 586 (S.D.N.Y. 1996) 17, 22 United States v. Noorzai, (S.D.N.Y 2008) United States v. Pascarella, 84 F.3d 61 (2d Cir. 1996). 21, 26 United States v. Pedroza, 750 F.2d 187 (2d Cir. 1984) United States v. Pitre, 960 F.2d 1112 (2d Cir. 1992) United States v. Quinones, 511 F.3d 289 (2d Cir. 2007) United States v. Roldan-Zapata,916 F.2d 795 (2d Cir. 1990) , 24, 27 United States v. Rosa, 11 F.3d 315 (2d Cir. 1993)... passim United States v. Ruggiero, 928 F.2d 1289 (2d Cir. 1991).. 30 United States v. Salazar, (S.D.N.Y. 2007) United States v. Santiago,174 F.2d 16 (S.D.N.Y. 2001) United States v. Tapia-Ortiz, 23 F.3d 738 (2d Cir. 1994).. 30 United States v. Towne, 870 F.2d at , 25 United States v. Van Putten, 2005 WL United States v. Williams, 205 F.3d 23 (2d Cir. 2000) United States v. Willoughby, 860 F.2d 15 (2d Cir. 1988).. 19 United States v. Zedner, 401 F.3d 36 (2d Cir. 2005), 126 S. Ct (2006) iv

5 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 5 of 37 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, - v. - S15 07 CR 971 (RPP) CHRISTOPHER MICHAEL COKE, Defendant. GOVERNMENT S IN LIMINE MOTION Trial in this matter is scheduled to begin on September 12, The Government respectfully submits this motion to advise counsel and the Court of certain evidence the Government intends to offer at trial, in addition to the wire intercepts that are the subject of the defendant s pending motion to suppress. The Government contends that this evidence is admissible under the applicable Rules of Evidence and relevant caselaw. The evidence at issue falls into three categories. First, the Government seeks to admit cooperating witness testimony about the defendant s involvement in cocaine trafficking in Kingston, Jamaica, including his sales of crack cocaine via locations under his control. That evidence is direct proof of, and inextricably intertwined with, the narcotics conspiracy that is charged in the Indictment and it is therefore

6 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 6 of 37 admissible at trial in this case. Second, the Government seeks to admit witness testimony concerning acts of violence including murders, shootings and beatings committed by Christopher Michael Coke ( COKE or the Defendant ) or at his direction. These acts are evidence of the methods of operation of COKE s criminal organization, and are admissible both to complete the story of the charged narcoticstrafficking and firearms offenses and to provide background to the charged conspiracies. That evidence is necessary to explain COKE s fearsome reputation and his resulting control over his Kingston community and his power and influence in the United States. 1 Third, the Government seeks to admit the testimony of expert witnesses on the history and formation of Kingston-based criminal organizations, their control over garrison communities in Kingston, their involvement in narcotics and firearms trafficking, and the means by which these organizations carry out their criminal activities. The Government also seeks to admit expert testimony relating to the prices of narcotics in Jamaica and in the United States at various points in time relevant to 1 In the alternative, this evidence is admissible as proof of COKE s motive and opportunity to engage in both narcoticstrafficking and firearms-trafficking, pursuant to Federal Rule of Evidence 404(b). 2

7 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 7 of 37 the narcotics trafficking conspiracy charged in the Indictment. 2 This memorandum first sets out as background, in some detail, a description of the superseding Indictment and the anticipated witness testimony, physical evidence and intercepted conversations that are evidence of the charged conspiracies. This information is provided for context; it is not, however, intended as an exhaustive description of the Government s case or the Government s anticipated trial evidence. The memorandum then describes in greater detail evidence referenced above that the Government seeks to introduce at trial and anticipates may draw a defense objection, in an effort to resolve these evidentiary issues prior to trial. BACKGROUND I. The Superseding Indictment COKE is charged in a two-count superseding Indictment with conspiring to distribute marijuana and cocaine, in violation of Title 21, United States Code, Section 846, and conspiring to traffick in firearms, in violation of Title 18, United States Code, Section 371, from at least 1994 up to and including October The Government also expects to call a firearms expert, to address, among other topics, the flow of illegal firearms from the United States to various locations in the Caribbean, including Jamaica, and U.S. licensing and registration requirements for those in the business of dealing in firearms. 3

8 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 8 of 37 As described in the Means and Methods section of the Indictment, COKE is alleged to have controlled the Tivoli Gardens area in Kingston, Jamaica, since the early 1990s. COKE s organization was initially known as the Shower Posse and later as Presidential Click (the Organization ). The Organization s members resided in Tivoli Gardens, the United States and other locations. The Tivoli Gardens area was known as a garrison community a barricaded neighborhood guarded by armed men. COKE armed these men who acted at his direction with firearms he imported illegally from the United States and other locations. 3 From at least the early 1990s through late October 2007, members of COKE s Organization have been involved in drug trafficking, both in Kingston and in the New York area, as well as other locations. As alleged in the Indictment, Organization members have sold marijuana and crack cocaine in the United States at COKE s direction and on his behalf. They have sent some of the proceeds of their drug trafficking activities to COKE in Jamaica, in the form cash or other goods. These payments were made both as a tribute to COKE and to secure his assistance in connection with the narcotics trafficking businesses of his U.S.- based co-conspirators. In return, COKE provided protection to Organization members in the United States and elsewhere, and 3 COKE also distributed firearms to the leaders of other communities in Kingston. 4

9 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 9 of 37 assisted them in resolving conflicts related to their drug business. Organization members also obtained firearms in the United States and shipped them to COKE in Jamaica, at his request and direction. As further detailed in the Overt Acts section of the Indictment, COKE had multiple conversations with U.S.-based coconspirators, in which COKE discussed the shipment of firearms from the United States to Jamaica, advised the members of his Organization about the resolution of drug-related disputes, and made specific arrangements to receive the profits from certain marijuana sales. II. Summary of Expected Trial Evidence At trial, the Government expects to prove its case through (1) the introduction of intercepted telephone calls in which the defendant as well his Jamaica- and U.S.-based coconspirators participated, (2) the testimony of multiple cooperating witnesses, (3) the admission of physical evidence, including narcotics, cash and firearms seized from COKE s coconspirators in the United States and (4) the testimony of law enforcement officers who conducted the wire intercepts and participated in the seizures. A. The Criminal Organization At trial, the Government intends to offer proof in the form of cooperating witness testimony and intercepted telephone 5

10 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 10 of 37 calls to establish the existence, nature and methods of the criminal organization headed by COKE, initially known as the Shower Posse, and later re-named Presidential Click. COKE s father, Lester Lloyd Coke, also known as Jim Brown led the Organization until his death in 1992; shortly thereafter COKE took control. Some of the cooperating witnesses that the Government expects to call at trial will testify about their relationship with COKE s father, which facilitated their close connection with COKE. The cooperating witnesses are expected to explain that COKE s ability to obtain firearms from the United States was critical to his ability to control and strengthen his Organization, and to maintain his own power within it. Collectively, these witnesses are expected to testify that they discussed with COKE the need for firearms and the fact that the firearms came primarily from the United States, that they participated in test-firing of weapons from the United States in Tivoli Gardens, and that they personally received firearms issued to them by COKE. The cooperating witnesses are expected to describe what is referred to by Organization members as the System essentially the Organization s code of conduct. Pursuant to that code, COKE s soldiers (those members of the Organization who were issued firearms) were responsible for maintaining control over 6

11 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 11 of 37 their firearms loss of a firearm could result in serious penalties, including death. COKE s soldiers were required to use their firearms only in accordance with the direction of COKE and his lieutenants. The soldiers responsibilities included guarding narcotics in stash houses within or outside Tivoli Gardens, defending the area against rival organizations, locating, apprehending and in some cases punishing individuals at COKE s direction and participating in election-related activities including motivating members of surrounding communities to support particular candidates by intimidation. Soldiers were typically paid a salary on a regular basis by COKE and his lieutenants. The Government further expects the evidence to show that COKE s access to firearms allowed him to maintain strict order and discipline within the Tivoli Gardens community. For example, the soldiers access to firearms rendered the Tivoli Gardens area virtually off-limits to the local police the Jamaican Constabulary Force. As a result, COKE resolved all allegations of criminal conduct by or among Organization members COKE served as fact-finder with respect to allegations of wrongdoing, and he set and directed the imposition of the appropriate punishment. COKE also enforced rules governing his Organization s conduct no one could possess or use a firearm, sell cocaine, or commit robberies within Tivoli Gardens or the 7

12 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 12 of 37 surrounding communities without COKE s authorization. The witness testimony and intercepted telephone conversations will demonstrate that some members of COKE s organization re-located or traveled to the United States, where they trafficked in cocaine and marijuana. Those individuals routinely sent COKE cash (drug proceeds), firearms and other valuable items as a form of tribute and respect for COKE, and to support the Organization. In exchange, COKE assisted them in their drug businesses, helped them resolve any conflicts relating to unpaid narcotics debts or other issues and linked narcotics customers with suppliers. COKE s influence over his New Yorkbased narcotics trafficking co-conspirators, from his base in Kingston, was fundamentally a function of his and his soldiers involvement in and reputation for violence, and the fact that many family members of these U.S.-based narcotics traffickers had stayed behind in Jamaica and were therefore vulnerable to threats and intimidation. B. Conspiracy to Distribute Cocaine & Marijuana The Government intends to offer cooperating witness testimony, intercepted calls and seizures of marijuana and drug proceeds to establish the existence of, and COKE s participation in, the charged conspiracy to distribute kilogram-quantities of cocaine and thousands of pounds of marijuana in the United States. 8

13 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 13 of 37 On three separate occasions from June 2007 through September 2007, U.S. law enforcement agents seized a total of 400 pounds of marijuana and over $1,000,000 in drug proceeds in the New York area and in Tennessee. Through intercepted telephone calls and witness testimony, the Government expects to establish that those seizures were made from COKE s co-conspirators. Intercepted calls and witness testimony will also establish that COKE arranged to receive, and did receive the profits from sales of hundreds of pounds of marijuana in the United States, and intervened in narcotics-related disputes in which his U.S.-based co-conspirators were involved. The cooperating witnesses are also expected to testify that in the mid-1990s, COKE stored large quantities of cocaine in a stash house in Tivoli Gardens that was ultimately destined for the United States, the United Kingdom and Canada. From the mid- 1990s until at least 2002, COKE used numerous female couriers to transport cocaine from Kingston to locations including New York and Miami, where the cocaine would be sold. The couriers traveled to the U.S. by plane, after swallowing the cocaine or more often, inserting it into their bodies. Witness testimony is also expected to establish that as recently as 2007, COKE supplied cocaine to his associates in the New York City area for purposes of distribution in the United States. Furthermore, on intercepted telephone calls in 2007, COKE discusses with a co- 9

14 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 14 of 37 conspirator, in coded language, the price per kilogram of cocaine and asks how much the cocaine will sell for in New York. C. Conspiracy to Deal in Firearms Without a License Through intercepted telephone calls and witness testimony, as well as seizures of firearms, the Government intends to establish that COKE s U.S.-based co-conspirators (who were also involved in narcotics trafficking) obtained firearms and ammunition in the United States and shipped them, at his direction, to Jamaica. A number of the cooperating witnesses will testify that an individual known as Black John, one of COKE s high-level lieutenants, obtained firearms in the United States and shipped them to COKE in Jamaica by concealing them in barrels, boxes, refrigerators and appliances, among other vessels. The cooperating witnesses also will testify that another Organization member known as Rooster, a marijuana trafficker in the United States, was closely associated with COKE. The Government expects to offer in evidence firearms and a large cache of ammunition seized in Florida on June 28, On that date, DEA agents arrested Rooster and Black John at a Miramar Residence. The agents observed firearms in plain view, as well as cardboard boxes and packing materials consistent with bulk shipping, and large capacity magazines and ammunition in multiple calibers. A search warrant executed at 10

15 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 15 of 37 the residence shortly thereafter revealed additional quantities of ammunition of various types and calibers, a Beretta 9 mm pistol, a Smith & Wesson.45 caliber pistol, a Hi Point 9 mm pistol, various firearms parts, a bullet-proof vest, and documents and photographs. The documents included a partially completed Western Union money order listing the name Lloyd Raid in the Sender Information section. One of the cooperating witnesses will testify that Lloyd Reid, who also went by the name Kevin, a close associate of COKE, told him in early 2007 that he (Reid) shipped firearms to Jamaica; Reid also participated in multiple intercepted telephone calls with COKE where Reid discussed, in coded language, the types of firearms he could obtain for COKE. ARGUMENT I. Additional Evidence Concerning the Means and Methods of the Charged Conspiracy The Government respectfully submits that the additional cooperating witness testimony set forth below is admissible at trial. The cooperating witnesses are expected to provide additional specific details about the manner in which COKE ran and funded his Organization during the time-frame of the charged conspiracy, including through violence, extortion and local drug trafficking. COKE s conduct described below is fundamental to the 11

16 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 16 of 37 way in which COKE s organization functioned, and it is critical to an understanding of COKE s opportunity and capacity for the drug trafficking and firearms trafficking that is charged in the Indictment. Evidence of that conduct is therefore admissible as direct evidence, but in the alternative, is admissible pursuant to Federal Rule of Evidence 404(b), as background to the charged conspiracy, to establish the relationship between the defendant and his co-conspirators, and as proof of the defendant s opportunity and capacity. A. Witness Testimony The Government anticipates that the cooperating witnesses will describe a number of means by which COKE funded his Organization in Jamaica. These included extorting local businesses, an activity in which certain cooperating witnesses briefly participated. The Government expects the cooperating witnesses to testify that the business owners in the vicinity of Tivoli Gardens regularly provided COKE and his lieutenants with tribute payments, so that COKE would extend his soldiers protection to those businesses. Failure to pay would leave the businesses vulnerable to robberies by other criminal organizations or to retribution by COKE s Organization. The cooperating witnesses will also describe the defendant s involvement in sales of cocaine within Kingston. COKE s workers would cook the cocaine into crack at a safe 12

17 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 17 of 37 house location within Tivoli Gardens. The crack was distributed to local crack houses, locations from which individual users could purchase it, both in and around the Tivoli Gardens area. COKE controlled these locations at least from the early or mid- 1990s through at least 2003 and no one was allowed to sell crack or cocaine in the Tivoli Gardens area without his permission. COKE provided financial and other assistance to members of the Tivoli Gardens community in a variety of ways, cementing the allegiance and loyalty of many of its members. But a critical aspect of his control over the Tivoli Gardens community and his Organization based within it was COKE s use of violence, including murders, shootings and beatings. As noted above, because COKE s heavily armed soldiers patrolled the Tivoli Gardens community, it was largely closed to Jamaican law enforcement. The Government expects the cooperating witnesses to testify that COKE and his soldiers imposed COKE s rules within the Tivoli Gardens community by apprehending, judging and punishing those accused of wrongdoing. COKE would send his soldiers to find the offending party after such allegations were made, determine whether the allegations were accurate, and then determine and direct the imposition of punishment. These punishments which took place in an area of Tivoli Gardens known as the jail included beatings, shootings and murders. While these incidents did not take place in public 13

18 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 18 of 37 view, their occurrence was well-known by members of the Organization. In particular, the Government seeks to admit cooperating witness testimony that COKE murdered at least two individuals in Tivoli Gardens who failed to repay narcoticsrelated debts owed to COKE. The cooperating witness would testify that after an individual allegedly stole drug proceeds from COKE, COKE directed his soldiers to locate that individual and bring him to the jail in Tivoli Gardens. While the victim was tied down, COKE killed him with a chainsaw. The cooperating witness would also testify that a second victim failed to repay a drug debt to COKE and was also murdered in the jail. The Government also expects to establish, through cooperating witness testimony, that COKE murdered three other individuals for other offenses in violation of the community s rules. Cooperating witnesses also observed the imposition of less severe punishments such as beatings (for incidents of domestic violence) and a gunshot to the hand or the foot (for theft.) COKE s capacity to engage in violence, his access to firearms and his control over a group of armed soldiers, were well known to his U.S.-based co-conspirators (including the cooperating witnesses). As one co-conspirator explained on an intercepted telephone call after returning from a trip to 14

19 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 19 of 37 Jamaica, in describing a talking to given to him by COKE: [Y]ou can t play around with men from the Garden [Tivoli Gardens] because those men will kill you anywhere... and kill you in daylight. Anywhere they want to kill you, if they can kill you they re going to kill you and those men kill anybody. That s how the man had me in his house talking to me. (Intercepted telephone call on August 9, 2007 at 12:51 p.m., page 18, line 1). As the cooperating witness testimony will make clear, COKE s U.S.-based co-conspirators included successful narcotics traffickers, who were themselves armed, with significant histories of violence. These individuals sought COKE s advice and approval before, for example, confronting another member of the Organization with whom they had a conflict. They relied on him in some cases to intervene in such disputes. They gave away firearms and a portion of the profits from their drug businesses to COKE. COKE s involvement in brutal acts of violence, and his reputation for ruthlessness, was a crucial part of his global reach and the influence he had over his co-conspirators both in Kingston and in the United States. It was in part COKE s capacity for violence that bound his co-conspirators to him and made COKE s support a benefit to their business and his disapproval a risk to them and their families in Kingston. B. Applicable Law 15

20 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 20 of 37 The Second Circuit has repeatedly held that evidence of uncharged criminal activity is admissible when it constitutes intrinsic or direct proof of the charged crimes, and that such evidence is therefore not treated as other act evidence subject to Federal Rule of Evidence 404(b). See, e.g., United States v. Quinones, 511 F.3d 289, (2d Cir. 2007) ( evidence of uncharged criminal conduct is not evidence of other crimes, wrongs, or acts under Rule 404(b) if that conduct is inextricably intertwined with the evidence regarding the charged offense ) (quoting United States v. Towne, 870 F.2d 880, 886 (2d Cir.1989)); United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (evidence of uncharged crime is admissible as direct evidence of conspiracy 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 ) (internal quotation marks omitted); United States v. Gonzalez, 110 F.3d 936, 942 (2d Cir. 1997) (upholding admission of other crimes evidence as crucial background evidence that gave coherence to the basic sequence of the charged crime). Thus, evidence whose absence would leave a chronological or conceptual void in the story of the crime is intrinsic evidence, and thus not governed by Rule 404. Vol. 2 Jack B. Weinstein & Margaret A. Berger, Weinstein s Federal Evidence, 16

21 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 21 of [2][c] (2011). Underlying these holdings is the principle that the Government, in presenting its case to the jury, is entitled to provide a natural sequence of narrative evidence, and to present evidence that not only satisfies the formal definition of an offense but tells a... story with descriptive richness. See Old Chief v. United States, 519 U.S. 172, (1997). Consistent with that approach, courts in this District have recognized that acts of violence can be an integral part of a narcotics conspiracy, and thus admissible against those defendants who are charged in that conspiracy, but not personally charged with committing any acts of violence. See United States v. Rosa, 11 F.3d 315, 342 (2d Cir. 1993); United States v. Muyet, 945 F.Supp. 586, 596 (S.D.N.Y. 1996) (acts of violence admissible at trial as proof of existence and nature of narcotics conspiracy); United States v. Santiago, 174 F.Supp. 2d 16, 23 (S.D.N.Y. 2001). Rule 404(b) of the Federal Rules of Evidence, which addresses the admission of other act evidence and can serve as a separate basis for the admission of uncharged conduct provides, in relevant part: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or 17

22 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 22 of 37 accident. Fed. R. Evid. 404(b). The Second Circuit has adopted the inclusionary or positive approach to... Rule 404(b). United States v. Levy, 731 F.2d 997, 1002 (2d Cir. 1984); see also United States v. DeVillio, 983 F.2d 1185, 1194 (2d Cir. 1993) (noting inclusion approach in Second Circuit). Consistent with this approach, evidence of other crimes, wrongs, or acts is admissible for any purpose other than to show a defendant s criminal propensity, United States v. Brennan, 798 F.2d 581, 589 (2d Cir. 1986), and that is neither overly prejudicial under Rule 403, nor irrelevant under Rule 402, see United States v. Curley, 639 F.3d 50, 56 (2d Cir. 2011). The Second Circuit requires that evidence admitted pursuant to Rule 404(b): (1) be offered for a proper purpose; (2) be relevant to a disputed issue; (3) have a probative value that outweighs its potential for unfair prejudice pursuant to Federal Rule of Evidence 403; and (4) is accompanied by an appropriate limiting instruction. See Curley, 639 F.3d at (citing United States v. McCallum, 584 F.3d 471, 475 (2d Cir. 2009)). If these requirements are met, other act evidence is admissible to show motive, opportunity and intent, among other things, as set forth in Rule 404(b). To show opportunity is to show that the defendant 18

23 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 23 of 37 had some special capacity, ability or knowledge that would enable him to commit the crime. United States v. Maravilla, 907 F.2d 216, 222 (1st Cir. 1990) (Breyer, J.); see also United States v. Murray, 618 F.2d 892, 900 (2d Cir. 1980) (affirming admission of prior possession of marijuana as proof of opportunity and the intent to distribute large quantities of drugs ); United States v. Green, 648 F.2d 587, 592 (9th Cir. 1981) ( Opportunity... is intended to cover all or a part of a category called capacity.... The exceptions of knowledge, plan, motive, and opportunity are all closely related. ); cf. United States v. Zedner, 401 F.3d 36, 49 (2d Cir. 2005), rev d on other grounds, 126 S. Ct (2006) (evidence of prior fraud admissible because it tended to prove financial sophistication, his ability to execute complex schemes, and his ability to form intent to defraud ). Courts have similarly held that a defendant s involvement in uncharged crimes can be admissible as motive for the commission of the charged crime. See, e.g., United States v. Willoughby, 860 F.2d 15, 24 (2d Cir. 1988) (participation in uncharged robbery motive to commit charged crime of obstruction of justice with respect to robbery investigation); United States v. Pedroza, 750 F.2d 187, (2d Cir. 1984) (evidence of defendant s participation in uncharged cocaine transaction admissible as motive for charged kidnaping). The list contained in Rule 404(b), however is not 19

24 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 24 of 37 exhaustive, and the district court may admit evidence that serves any non-propensity purpose. See Curley, 639 F.3d at 57 (internal citations omitted). Indeed, it is well established in this Circuit that evidence is admissible pursuant to 404(b) to (1) prove the existence of the charged conspiracy as well as to show its background and history; (2) explain the development of the illegal relationship between the co-conspirators; (3) explain the mutual trust that existed between the co-conspirators; and (4) complete the story of the crime charged. See United States v. Langford, 990 F.2d 65, 70 (2d Cir. 1993); Rosa, 11 F.3d at (evidence of prior acts of car theft and drug dealing properly admitted to show development of illegal relationship between defendant and co-conspirator and to explain how defendant came to play important role in conspiracy); United States v. Pascarella, 84 F.3d 61, (2d Cir. 1996); United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992) (evidence of prior narcotics transactions admissible as relevant background information to explain relationship among alleged co-conspirators); United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990) (evidence of pre-existing drug trafficking relationship between defendant and co-conspirator admissible to aid jury's understanding of how transaction for which defendant was charged came about and his role in it); United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994) ( evidence of other bad 20

25 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 25 of 37 acts may be admitted to provide the jury with the complete story of the crimes charged by demonstrating the context of certain events relevant to the charged offense ); United States v. Lasanta, 978 F.2d 1300, 1307 (2d Cir. 1992) (affirming decision to admit evidence of prior drug dealing to explain how the co-conspirators came to interact with each other, and [to render] more plausible their joint participation in the heroin and cocaine conspiracies charged in the indictment. ). Evidence admissible either as direct evidence or pursuant to Rule 404(b) may be excluded pursuant to Federal Rule of Evidence 403 if its probative value is substantially outweighed by the danger of unfair prejudice. See Federal Rule of Evidence 403. In balancing prejudicial effect against probative value courts have considered whether the evidence concerned conduct more serious than the charged crime, see United States v. Williams, 205 F.3d 23, (2d Cir. 2000), and whether the acts tend to have an adverse effect upon a defendant that goes beyond proving the fact or issue that justified its admission into evidence, see United States v. Massiano, 546 F.3d 123, 132 (2d Cir. 2008). A limiting instruction may also be issued to minimize the evidence s prejudicial effect. See Curley, 639 F.3d at 57. C. Discussion 1. Acts of Violence 21

26 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 26 of 37 Evidence of COKE s involvement in violence murders, beatings and shootings should be admissible in this case as direct evidence of the charged conspiracies. Courts in this district have recognized that acts of violence are common tools of the narcotics trade; COKE s use of violence is integral to the way he ran the Organization through which he conducted his drug trafficking activities. See Van Putten, 2005 WL * 3; see also Muyet, 945 F.Supp. at 596 (acts of violence admissible as direct proof of narcotics conspiracy); Rosa, 11 F.3d at (acts of violence admitted as integral part of the conspiracy ); Towne, 870 F.2d at 886 (other acts necessary to complete the story of the crime charged). Indeed, COKE s ability to control narcoticstrafficking and firearms-trafficking activities in the United States, while based in Kingston, will be difficult for the jury to comprehend without a greater understanding of COKE s power within Jamaica power obtained largely through access to guns and capacity for violence. COKE s resulting stature and influence, in turn, was the basis for his relationship with narcotics traffickers in the United States and their willingness to provide him with firearms and drug proceeds and to seek his advice and approval. COKE was an asset to their businesses because they understood, for example, a mere telephone call from COKE or his lieutenants to the family of a drug customer could 22

27 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 27 of 37 get a drug debt paid. If not admissible as direct evidence of the charged conspiracy, these acts of violence are admissible as background to the charged conspiracy pursuant to Federal Rule of Evidence 404(b). For the reasons stated above, violence was a fundamental part of how COKE ran his Organization and secured the loyalty of its members; it was through that Organization and its members that COKE led the narcotics and firearms-trafficking conspiracies charged in the Indictment. See, e.g., Inserra, 34 F.3d at 89 (evidence that does not directly establish an element of the offense charged is admissible to provide background for the events involved in the case pursuant to 404(b)). Similarly, the co-conspirators willingness to participate in COKE s drug trafficking and firearms-trafficking activities is comprehensible only against the backdrop of the violent Organization that he ran. For that reason, evidence of COKE s violent acts which were witnessed by some of the cooperating witnesses is also admissible pursuant to Rule 404(b) to help explain how the illegal relationship between participants in the crime developed. See Rosa, 11 F.3d at 334. The probative value of the above-referenced evidence is not substantially outweighed by any unfairly prejudicial effect 23

28 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 28 of 37 in this case. See Fed. R. Evid Crimes of violence, in particular murders, are more serious than narcotics and firearmstrafficking. But the prejudicial impact of such crimes do not always outweigh their probative value, and they do not do so here. See, e.g., United States v. Birbal, 62 F.3d 456, 464 (evidence of heroin user s death following receipt of heroin from defendants properly admitted in heroin trafficking case); Gonzalez, 110 F.3d 936, 942 (2d Cir. 1997) (evidence of attempted burglary properly admitted in firearms possession case). These acts of violence are highly probative as they are integral to the workings of this conspiracy, and they explain the relationship between the co-conspirators and provide critical background to the jury. In the unique context of this case, the crimes of violence are not more sensational or disturbing than the crimes with which [the defendant] is charged and admission of evidence of such crimes is not unfairly prejudicial. See Roldan-Zapata, 919 F.2d at 804. Here, the Government s direct evidence of the crimes charged will include the seizure of a virtual arsenal of firearms, recorded calls where COKE discusses types of firearms he is to receive in Jamaica, testimony that COKE s U.S.-based co-conspirators were required to consult with 4 To mitigate any such prejudicial effect, the Government would propose a jury instruction with respect to the limited purpose for which this evidence is admitted. See Rosa, 11 F.3d at 334 (court properly instructed the jury that prior crimes evidence admitted for limited purpose). 24

29 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 29 of 37 him and receive his blessing prior to using violence against each other, and witness testimony about the virtual army of men that COKE controlled and supplied with firearms in Kingston. 5 The natural (and true) implication from that evidence is that COKE, as the leader of the Organization, was ready and willing to use violence to impose order and discipline within the Tivoli Gardens community. Thus evidence that such discipline in fact included, on several occasions, punishment by death at COKE s direction and with his participation is not unfairly prejudicial to the defendant. 2. Narcotics Trafficking Activities in Kingston, Jamaica Witness testimony that COKE possessed and distributed cocaine within Kingston from the early-1990s until at least 2003 also is not evidence of other crimes pursuant to 404(b). This conduct, which took place during the time-frame of the charged conspiracy arose out of the same... series of transactions as the charged offense... it is inextricably intertwined with the evidence regarding the charged offense. See Towne, 870 F.2d at 886; see also Gonzalez, 110 F.3d at 942 (evidence of thwarted burglary appropriately admitted as background evidence in illegal firearms possession case). COKE s handling of cocaine in Jamaica 5 The Government s evidence will also include testimony about an incident in which a co-conspirator of COKE stabbed an individual in the face over a drug debt, and will include testimony by the cooperating witnesses about their own criminal histories, which involve extensive violence. 25

30 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 30 of 37 was plainly inextricably intertwined with his efforts to transport cocaine to the United States for distribution. First, his access to cocaine in Jamaica enabled him to transport cocaine to the United States for sale, in addition to selling it in Kingston. Second, witness testimony will show that COKE used the same safe house in Tivoli Gardens both to press and prepare cocaine to be transported to the United States and to cook the crack that he distributed within Jamaica. Thus the local distribution operation shared the same facilities that were used to prepare cocaine for transportation to the United States. Furthermore, evidence of COKE s local cocaine business is admissible to show the background of [the] conspiracy charged in this case and the development of a relationship of trust between the participants. See Pascarella, 84 F.3d at (holding that evidence of wholly different acts are admissible for these purposes); see also Rosa, 11 F.3d at (defendant s prior narcotics dealings with co-conspirator properly admitted under 404(b) to establish illegal relationship between them and to explain why the co-conspirator appointed the defendant to a leading position within the Organization). One of the cooperating witnesses provided COKE with cocaine, was present at times when it was cooked into crack for local distribution, and was present on many occasions where cocaine was provided to the females that inserted it into their bodies for 26

31 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 31 of 37 transport to the United States. Evidence that the witness supplied the defendant with cocaine in Jamaica and was present at the stash houses where it was cooked helps explain the relationship of trust between COKE and that individual, and why COKE allowed that individual to be present when he provided cocaine to his couriers to be transported to the United States. In the alternative, COKE s access to cocaine and sale of cocaine within Jamaica is admissible pursuant to Federal Rule of Evidence 404(b) should he place at issue his motive or opportunity to obtain cocaine and transport it to the United States. The probative value of this evidence plainly outweighs its prejudicial effect, as the defendant s cocaine trafficking activity in Jamaica does not involve conduct any more sensational or disturbing than the cocaine trafficking conspiracy with which the defendant is charged. See Roldan- Zapata, 916 F.2d at 804 (admission of uncharged cocaine transactions pursuant to Rule 404(b) did not prejudice defendant charged with cocaine trafficking crimes). 27

32 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 32 of 37 II. Expert Testimony A. Facts The Government intends to call expert witnesses at trial to testify with respect to the following topics. 6 First, the nature and history of Jamaican criminal organizations and their leadership, specifically those organizations located in Kingston, Jamaica, the relationships between those organizations and their members in Jamaica, the United States and elsewhere, the criminal activities that these organizations engage in, including narcotics and firearms trafficking, and sending of tribute payments to Jamaica by organization members who travel and live abroad. Second, the prices of cocaine and marijuana in the United States and Jamaica during the time frame of the charged conspiracies and the routes by which cocaine typically reaches the United States and Europe, including via countries in the Caribbean. 7 B. Applicable Law & Discussion The admissibility of expert testimony is governed 6 The Government advised the defense counsel of its intention to call expert witnesses by letter dated June 8, The Government also expects to call an expert to testify about the prices of different types of firearms in the United States when sold legally and illegally and the means by which illegal firearms are trafficked from the United States, including to countries in the Caribbean, as well as the registration requirements necessary to deal in firearms in the United States. 28

33 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 33 of 37 by Rule 702 of the Federal Rules of Evidence, which provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Expert testimony is generally admissible if it will assist the trier of fact to understand the evidence or to determine a fact in issue. See United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994) ( [E]xpert witnesses are often uniquely qualified in guiding the trier of fact through a complicated morass of obscure terms and concepts. Because of their specialized knowledge, their testimony can be extremely valuable and probative). The decision to admit expert testimony is committed to the discretion of the trial court. See United States v. Schwartz, 924 F.2d 410, 425 (2d Cir. 1991). The Second Circuit has, on numerous occasions, approved the admission of expert testimony regarding the existence, nature and structure of criminal organizations. In United States v. Locascio, 6 F.3d 924, 936 (2d Cir. 1993), this Court upheld the admission of FBI agent testimony about organization, structure and terminology of organized crime families and the rules of La Cosa Nostra. See also United States v. Amuso, 21 F.3d 1251, (2d Cir. 1994) (holding such information is beyond the knowledge of the average citizen ); United States v. Matera,

34 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 34 of 37 F.3d 115, 121 (2d Cir. 2007)(expert testimony admissible to explain the operation, structure, membership, and terminology of organized crime families). 8 It is similarly commonplace in this Circuit for courts to admit expert testimony concerning narcotics-transportation routes commonly employed by traffickers within and outside the United States, as well as testimony regarding the prices of narcotics at various points within the distribution chain. This type of testimony is relevant to the narcotics conspiracy charged in this case, in particular the cocaine trafficking conspiracy, in which COKE allegedly transported cocaine via swallowers and body-carriers from Kingston, Jamaica for sale in the United States. The Second Circuit has held that, [c]ourts have consistently recognized... that the operations of narcotics dealers are a proper subject for expert testimony under Fed. R. Evid United States v. Ruggiero, 928 F.2d 1289, 1304 (2d Cir. 1991) (citation omitted). These operations include drug trafficking methods and routes. See, e.g. United States v. Tapia- Ortiz, 23 F.3d 738, 742 (2d Cir. 1994) (affirming admission of 8 In United States v. Mejia, 545 F.3d 179 (2d Cir. 2008), the Second Circuit cautioned that the expert s focus must remain on criminal organizations generally, as opposed to a particular organization or a particular defendant. See id. at Here the Government intends to elicit only general testimony about Kingston-based criminal Organizations and does not intend to elicit any specific testimony regarding the Organization or COKE himself. 30

35 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 35 of 37 expert testimony on methods, including the use of beepers by narcotics traffickers, the technique of using codes with beepers to signal the identity of the caller, and the use of cash and nicknames or false names by drug traffickers ). The prices of narcotics have also been deemed an appropriate subject for expert testimony. See United States v. Noorzai, 05 Cr. 19 (LTS/DC) (S.D.N.Y. 2008) (Judge Chin admitted expert testimony concerning methods and routes used to manufacture and transport Southwest Asian heroin, and prices of heroin at various locations during relevant periods); United States v. Lopez-Pena, 05 Cr. 191 (DC) (S.D.N.Y. 2007) (Judge Chin admitted expert testimony of on routes and methods used to produce and traffic cocaine from Colombia to the United States); United States v. Salazar, 05 Cr. 517 (LAK) (S.D.N.Y. 2007) (Judge Kaplan admitted expert testimony of DEA agent concerning, inter alia, prices of cocaine during relevant periods). Accordingly, the expert testimony the Government is seeking to introduce is plainly permissible under the relevant precedent and it should be admitted at trial. 31

36 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 36 of 37 CONCLUSION For the reasons set forth above, the Government respectfully requests that the various categories of evidence described above be admitted at trial in this matter. Dated: New York, New York August 22, 2011 Respectfully submitted, PREET BHARARA United States Attorney Southern District of New York By: /S JOCELYN E. STRAUBER JOHN T. ZACH Assistant United States Attorneys (212) /

37 Case 1:07-cr RPP Document 335 Filed 08/22/11 Page 37 of 37 CERTIFICATE OF SERVICE JOCELYN E. STRAUBER hereby affirms: 1. I am an Assistant United States Attorney in the office of Preet Bharara, United States Attorney for the Southern District of New York. 2. On August 22, 2011, I served copies of the foregoing Government s Memorandum of Law in Opposition to Defendant Christopher Michael Coke s Pre-Trial Motions by sending the same via Federal Express to Stephen H. Rosen, Esq. Law Offices of Stephen H. Rosen, P.A. 100 Almeria Avenue Suite 205 Coral Gables, Florida I declare under penalty of perjury that the foregoing is true and correct, pursuant to 28 U.S.C Dated: New York, New York August 22, 2011 /s JOCELYN E. STRAUBER