The opinion of the court was delivered by: Audrey B. Collins Chief United States District Judge
ORDER DENYING GOVERNMENT'S MOTION IN LIMINE
Pending before the Court is the Government's Motion in Limine No. 1 to Introduce Additional Narcotics Transactions, filed on July 18, 2011. Defendant Israel Sanchez ("Defendant") filed an Opposition on November 14, 2011, and the Government filed a Reply on November 21, 2011. The Motion came on for hearing on December 5, 2011. Upon consideration of the parties' submissions, argument of counsel and the case file, the Court DENIES the Motion.
Defendant Israel Sanchez has been charged in a four-count indictment with conspiracy to distribute and distribution of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), respectively.*fn1 The Government filed a notice of Defendant's prior felony drug trafficking conviction pursuant to 21 U.S.C. § 851, based on Defendant's prior felony conviction of possession with intent to distribute cocaine in Santa Barbara Superior Court case no. SM62665.
The indictment alleges that "[b]eginning on a date unknown, and continuing to on or about September 27, 2007, in Santa Barbara County, . . ., [Defendant], . . . and [co-defendant Daniel Benitez] together with co-conspirator Jesse Anthony Nunez, aka 'Birdy' . . . , and others . . . conspired and agreed with each other to knowingly and intentionally distribute at least fifty grams of actual methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A)(viii)." First Superseding Indictment ("Indictment"), 1:24-28, 2:1-7.*fn2 In the charged conspiracy, Defendant is identified as the supplier of methamphetamine, and the co-defendants are identified as middlemen or couriers. The indictment alleges four specific incidents between June and July 2007 in which Defendant supplied methamphetamine to distributors who, in turn, distributed that methamphetamine to an FBI confidential informant ("CI").
In its Opening Brief, the Government describes the indictment's four methamphetamine deals in detail. The Court will not repeat all of those details here, but each deal involved Nunez or Benitez selling meth to a CI immediately after meeting with or having numerous phone calls with each other and Defendant. Some of the phone calls among Defendant, Benitez and Nunez involved references to obtaining and packaging the meth about to be sold to the CI. Some of the deals involved strange driving patterns suggestive of narcotics drop-offs or pick-ups or counter-surveillance; brief meetings at hotels; and instances of counter-surveillance performed by Defendant.
The Government now moves in limine for an order permitting it to introduce evidence of other narcotics transactions orchestrated by Defendant. The proposed evidence will be in the form of testimony from three witnesses. The Government contends that this evidence is admissible as direct evidence of the charged conspiracy because it is inextricably intertwined with the alleged offense conduct. In the alternative, the Government argues that the evidence is admissible under Fed. R. Evid. ("Rule") 404(b) to prove Defendant's motive, opportunity, intent, preparation, plan, knowledge, and absence of mistake or accident.
Defendant argues that the proffered evidence is inadmissible because it is not "inextricably intertwined" with the charged conduct. Defendant also contends that the proffered evidence is not being offered for any of the purposes permissible under Rule 404(b), but instead is impermissible propensity evidence. Finally, Defendant contends that, even if the evidence is admissible under Rule 404(b), its probative value is substantially outweighed by the danger of unfair prejudice and should therefore be excluded under Rule 403.
The Court's power to rule on motions in limine stems from "the court's inherent power to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4 (1984). The Government moves for the admission of the additional narcotics transactions on two bases: that these transactions are "inextricably intertwined" and, alternatively, that they are admissible under Rule 404(b).
Evidence of "other acts" is not subject to Rule 404(b) analysis if it is "inextricably intertwined" with the charged offense. See United States v. Vizcarra--Martinez, 66 F.3d 1006, 1012 (9th Cir. 1995). This exception applies when (1) "particular acts of the defendant are part of . . . a single criminal transaction," or when (2) "'other act' evidence . . . is necessary in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime; it is obviously necessary in certain cases for the government to explain either the circumstances under which particular evidence was obtained or the events surrounding the commission of the crime" Id. at 1012--13. In order to satisfy this exception, "[t]here must be a sufficient contextual or substantive connection between the proffered evidence and the alleged crime." Id. at 1013.
Alternatively, under Rule 404(b), other acts evidence is admissible if it (1) tends to prove a material point in issue; (2) is not too remote in time; (3) is proven with evidence sufficient to show that the act was committed; and (4) if admitted to prove intent, is similar to the offense charged. See United States v. Murillo, 255 F.3d 1169, 1175 (9th Cir. 2001), cert. denied, 535 U.S. 948 (2002). The court must then assess the evidence under Fed. R. Evid. 403. See United States v. Rude, 88 F.3d 1538, 1549--50 (9th Cir. 1996).
Relevant evidence may be excluded "if 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." Rule 403. "Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403." Hankey, 203 F.3d at 1172 (citation omitted). Rule 403's "major function is ...