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May 3, 1999


The opinion of the court was delivered by: Orlofsky, District Judge.


This case presents interesting evidentiary issues which are unresolved in this Circuit. On June 5, 1998, Joseph Butch ("Butch") was arrested and charged with conspiracy to distribute and to possess with intent to distribute oxycodone, a narcotic drug and a controlled substance, in violation of 21 U.S.C. § 846. See Criminal Complaint (filed Jun 5, 1998); Indictment (filed Jun. 18, 1998). Butch's trial on the one count Indictment is scheduled to begin today, May 3, 1999. On April 26, 1999, the Government filed three motions in limine seeking: (1) "admission of certain evidence which is intrinsic to, and background of, the conspiracy charged in the Indictment, or in the alternative, to seek the admission of such evidence under [Federal Rule of Evidence] 404(b)," see Notice of 404(b) Motion (filed Apr. 26, 1999); (2) "exclusion at trial of certain evidence concerning prior conduct of a potential [Government] witness under [Rule] 608(b), see Notice of 608(b) Motion (filed Apr. 26, 1999); and (3) the admission of certain evidence concerning prior criminal convictions of the defendant should he testify at trial under [Rule] 609." See Notice of 609 Motion (filed Apr. 26, 1999). Butch opposes all three motions.

For the reasons set forth below, the Government's motion to admit into evidence the January and early May, 1998, events as "intrinsic" to the conspiracy charged in the Indictment shall be denied. The Government's Rule 404(b) motion as to this evidence, however, shall be granted, and the testimony of Robert Manning regarding the events of January and early May, 1998, shall be admitted into evidence at trial for the limited purpose of establishing the background of the conspiracy charged in the Indictment. In addition, the Government's Rule 608(b) motion seeking to exclude evidence of George Fronick's prior false testimony shall be denied. Finally, the Government's Rule 609 motion to admit Butch's 1984 federal and 1989 state convictions into evidence for the purpose of impeaching Butch's credibility, should he choose to testify, shall be granted in part and denied in part. The Government shall be permitted to impeach Butch's credibility using his 1989 state conviction, should he choose to testify. In all other respects, the Government's Rule 609 motion shall be denied.


The Government seeks to admit into evidence the testimony of Butch's alleged coconspirator, Robert Manning ("Manning"), relating to two instances of Butch's prior criminal conduct allegedly occurring before the commencement of the conspiracy charged in the Indictment. See Government Brief in Support of 404(b) Motion (filed Apr. 22, 1999) at 1 ("Gov.404(b) Brief"). The Government has proffered*fn1 that Manning will testify that in "January[,] 1998[,] . . . Manning agreed with Butch to allow Butch to take an Amerisource*fn2 oxycodone shipment [bound for] the Veterans Hospital in Philadelphia from the delivery truck that Manning was driving[, and that] Manning was paid $5,000 by Butch for his complicity in this theft." See id. (footnote added). The Government further proffers that Manning will testify that:

  [I]n about April[,] 1998, [Butch and Manning] began
  watching and following the truck driven by George
  Fronick in hopes of finding an opportunity to steal
  drugs from Fronick's truck. These events included
  Butch providing to Manning what he represented was a
  key to gain access to Fronick's truck. At one point
  [Frederick] Moll, Manning and Butch followed
  Fronick's truck in about May prior to May 19.
  Ultimately, as [the Government] expect[s] the
  testimony to show, Butch decided to solicit Fronick
  directly to aid in the theft on about May 19, 1998. .

See id. The Government contends that the January and early May, 1998, events "are intrinsic to the proof of the charged conspiracy, are part of that conspiracy, and should be admitted at trial[,]" subject only to the limits of Rule 403.*fn3 See Gov. 404 Brief at 2. Alternatively, the Government contends that the January and early May, 1998, events are "fully admissible under Rule 404(b) . . . as proof of opportunity, background, and common scheme and plan."*fn4 See Gov. 404 Brief at 4.

Butch opposes the motion. He contends that: (1) the January and early May, 1998, events are not intrinsic to the conspiracy charged in the Indictment; (2) the late date of the Government's disclosure unfairly prejudices Butch's defense; and (3) the Government "has failed to make the necessary showing to permit introduction pursuant to Rule 404(b) to establish opportunity[,]" background and common scheme and plan. See Defendant's Brief in Opposition to 404(b) Motion at 9-11 ("Def. 404 Brief").

  A. Intrinsic Versus Extrinsic Evidence and the Legal Standard
    Governing Rule 404(b) Motions

As a general rule, all relevant evidence is admissible. Fed. R. Ev. 402. Evidence is relevant if its existence simply has some "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Ev. 401; see United States v. Murray, 103 F.3d 310, 316 (3d Cir. 1997). "Rule 404(b), although viewed as a rule of inclusion rather than exclusion, provides for the exclusion of relevant evidence in certain situations." United States v. Sriyuth, 98 F.3d 739, 745 (3d Cir. 1996). Rule 404(b) 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
  accident. . . .

Fed. R. Ev. 404(b). As the United States Supreme Court stated in Huddleston v. United States, 485 U.S. 681, 685-86, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988):

  [Rule 404(b)] generally prohibits the introduction of
  evidence of extrinsic acts that might adversely
  reflect on the actor's character, unless that
  evidence bears upon [another] relevant issue in the
  case. . . .

Id. "Thus, the threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character." Sriyuth, 98 F.3d at 745-46 (quoting Huddleston, 485 U.S. at 686, 108 S.Ct. 1496).

Recently, in United States v. Mastrangelo, 172 F.3d 288, 294 (3d Cir. 1999), the Third Circuit succinctly stated the legal standard governing the admission of evidence pursuant to Rule 404(b):

  [A]dmissibility under [Rule] 404(b) requires: (1) a
  proper evidentiary purpose; (2) relevance under
  [Rule] 402; (3) a weighing of the probative value of
  the evidence against its prejudicial effect under
  [Rule] 403; and (4) a limiting instruction concerning
  the purpose for which the evidence may be used.

Id. (citing Huddleston, 485 U.S. at 691-92, 108 S.Ct. 1496; and United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992)); see also Sriyuth, 98 F.3d at 746; United States v. Palma-Ruedas, 121 F.3d 841, 851 (3d Cir. 1997), reversed on other grounds, sub nom United States v. Rodriguez-Moreno, ___ U.S. ___, 119 S.Ct. 1239, 143 L.Ed.2d 388, (1999); United States v. Scarfo, 850 F.2d 1015, 1019 (3d Cir. 1988).

"To meet the first requirement and show a proper evidentiary purpose, the government must `clearly articulate how that evidence fits into a chain of logical inferences' without adverting to a mere propensity to commit crime now based on the commission of crime then." Mastrangelo, 172 F.3d at 294 (quoting Sampson, 980 F.2d at 887). On this issue in Sampson, the Third Circuit stated:

  [T]he burden on the [G]overnment is not onerous. All
  that is needed is some showing of a proper relevance.
  Whereupon the trial court must judge the
  [G]overnment's proffered reason, the potential for
  confusion and abuse, and the significance of the
  evidence, and decide whether its probative value
  outweighs its prejudicial effect.

Sampson, 980 F.2d at 887 (discussing Government of Virgin Islands v. Pinney, 967 F.2d 912, 916 (3d Cir. 1992)).

Rule 404(b) "does not extend to evidence of acts which are `intrinsic' to the charged offense[.]" See Fed. R. Ev. 404(b) (Advisory Committee Note) (citing United States v. Williams, 900 F.2d 823 (5th Cir. 1990)); see also 2 Weinstein's Federal Evidence § 404.20[2][b] (Matthew Bender 2d ed. 1997). "Rule 404(b) governs the admissibility of extrinsic evidence only." 2 Weinstein's Federal Evidence § 404.20[2][b] (citation omitted). The Fifth Circuit's decision in United States v. Williams is one of the leading cases on the so-called "extrinsic/intrinsic" dichotomy. In Williams, the Fifth Circuit observed:

  The proper test to apply in deciding the
  admissibility of "similar acts" or "other acts"
  evidence [under Rule 404(b)] depends upon whether the
  evidence in question is "intrinsic" or "extrinsic"
  evidence. "Other act" evidence[, as contemplated by
  Rule 404(b),] is "intrinsic" when the evidence of the
  other act and the evidence of the crime charged are
  "inextricably intertwined" or both acts are part of a
  "single criminal episode" or the other acts were
  "necessary preliminaries" to the crime charged.

Williams, 900 F.2d at 825 (citations omitted); see also 2 Weinstein's Federal Evidence § 404.20[2][b].

As defense counsel points out, the Third Circuit has yet to address the specific issue of what constitutes "intrinsic" versus "extrinsic evidence." Yet, the Government's reliance on United States v. Blyden, 964 F.2d 1375, 1378 (3d Cir. 1992), for the proposition that the Third Circuit has embraced the Williams definition of "intrinsic," is not entirely misplaced. In Blyden, the Third Circuit held that "[w]hen the evidence of another crime is necessary to establish an element of the offense being tried, there is no `other crime[,]'" falling within the limiting provisions of Rule 404(b). 964 F.2d at 1378; see also United States v, Sriyuth, 98 F.3d 739, 747 (3d Cir. 1996). The Government, as well as Judge Weinstein's much cited treatise on evidence, have seized upon this language in Blyden as proof that the Third Circuit has endorsed the broad definition of "intrinsic" set forth in Williams. See Gov. 404 Brief at 3; see also 2 Weinstein's Federal Evidence § 404.20[2][b].

Butch, however, contends that Blyden must be read narrowly for the proposition that only conduct which "was an element of the offense" charged can be considered "intrinsic." See Def. 404 Brief at 4. District Courts in this Circuit have come out on both sides of this dispute. Compare United States v. Conley, 878 F. Supp. 751, 754 (E.D.Pa. 1994) (discussing Blyden's limited scope), with United States v. Bertoli, 854 F. Supp. 975, 1056-57 (D.N.J.), rev'd in part on other grounds and aff'd. in part 40 F.3d 1384 (3d ...

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