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.
I. THE GOVERNMENT'S RULE 404(b) MOTION IN LIMINE
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
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
[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[b] (Matthew Bender 2d ed. 1997). "Rule
404(b) governs the admissibility of extrinsic evidence only." 2
Weinstein's Federal Evidence § 404.20[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[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[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 ...