UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) UNITED STATES OF AMERICA ) ) v. ) Criminal No. 09-0026 (PLF) ) RICO RODRIGUS WILLIAMS, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION AND ORDER

This matter is before the Court on the government’s motion in limine to introduce

other crimes and bad acts evidence pursuant to Federal Rule of Evidence 404(b). The Court

heard oral argument on the motion on February 18, 2010, and took it under advisement. After

carefully considering the parties’ papers, the relevant case law, and the oral argument made by

counsel both at the motions hearing on February 18, 2010 and at the motions hearing on July 29,

2010, where the Court heard argument on the defendant’s motion to exclude the government’s

expert witness, the Court will grant the government’s Rule 404(b) motion in part and deny it in

part.

In considering the admissibility of evidence of other crimes, wrongs or acts under

Rule 404(b) of the Federal Rules of Evidence, the Court must apply a two-step analysis. First, the

Court must determine whether “the evidence [is] probative of some material issue other than

character.” United States v. Clarke,

(D.C. Cir. 1994). Under Rule 404(b),

evidence of other crimes, wrongs or acts is admissible as “proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” FED . R. EVID .404(b). This is not an exclusive list of relevant purposes, and any purpose for which such evidence is

introduced is a proper purpose so long as the evidence is not offered solely to prove character or

criminal propensity. See United States v. Mahdi,

(D.C. Cir. 2010); United

States v. Pettiford,

(D.C. Cir. 2008); United States v. Miller,

(D.C. Cir. 1990). Furthermore, in this circuit the Rule is viewed as one of inclusion rather

than exclusion. United States v. Long,

(D.C. Cir. 2003); United States v.

Bowie,

(D.C. Cir. 2000).

Second, if the Court determines that the other acts evidence is admissible for a

legitimate purpose, the Court then must decide whether it nevertheless should be excluded under

Rule 403 of the Federal Rules of Evidence because “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.” FED . R. EVID . 403; see United States v. McCarson,

(D.C. Cir.

2008); United States v. Clarke,

(“The second step requires that the evidence not

be inadmissible under Rule 403”). Under Rule 403, the test is “unfair prejudice,” not just

prejudice or harm to the defense. See United States v. Pettiford,

(Rule 403 “does

not bar powerful or even ‘prejudicial’ evidence . . . [It] focuses on the ‘danger of unfair

prejudice,’ . . .”); United States v. Cassell,

(D.C. Cir. 2002) (“Virtually all

evidence is prejudicial or it isn’t material. The prejudice must be unfair.”).

The government asks the Court to admit nine categories of other crimes or bad

acts evidence. The Court discusses each of these categories in turn and determines whether the

government’s proffer and the rationale for admission of each category of evidence meet the

2 requirements for admission under Rules 404(b) and 403.

First, the government seeks to introduce testimonial evidence that on

approximately ten occasions from 2003 through 2005, the defendant orchestrated, and in many

instances directly participated in, assaults as part of gang initiation ceremonies that were very

similar to the beating that resulted in the victim’s death during a Gangster Disciple initiation

ceremony on July 3, 2005. The government’s theory is that like the gang initiation in which the

victim was struck and killed on July 3, 2005, each of these earlier instances was a gang initiation

orchestrated by the defendant and conducted in a similar manner. The Court agrees with the

government that this evidence is admissible as proof of a common plan or scheme, motive,

intent, and possibly identity with regard to Count One of the Indictment, charging murder under

(a). The Court concludes that the prejudicial impact of this evidence does not

substantially outweigh its significant probative value.

Second, the government seeks to introduce testimonial evidence that in 2004 and

2005, while in Germany, the defendant participated in the decision to initiate approximately four

United States Army soldiers then deployed in Iraq into the Gangster Disciples in a manner

similar to the initiation ceremonies that took place in Germany. The government argues that this

evidence also shows a common plan or scheme, motive, and intent with regard to Count One of

the Indictment. For the reasons just discussed, the Court is inclined to agree, but first requires a

more detailed proffer from the government as to the defendant’s actual “participat[ion] in the

decision” and his specific conduct.

Third, the government seeks to introduce testimonial evidence that the defendant

participated in several assaults involving individuals at a nightclub where the defendant was

3 employed as a bouncer, including one in which he knocked out and injured an individual with

one punch. The government argues that this evidence is admissible both because these assaults

were intended to further the purposes of the defendant’s gang and to show that the defendant had

knowledge about the strength of his punches and the level of injury he could inflict. The Court

agrees with the government on the second theory only — this evidence is relevant to the

defendant’s mens rea with regard to Count One, and, conversely, to the absence of mistake or

accident. When admitted for this purpose, the probative value of the evidence is not substantially

outweighed by its prejudicial impact.

Fourth, the government seeks to introduce evidence that the defendant ordered

gang members to strike fellow gang members in the face in order to further the purposes of the

gang. The government also seeks to have several witnesses testify that in order to maintain

discipline and loyalty within the structure of the gang, the defendant threatened individuals,

either directly or through other gang members, in order to make them attend gang meetings and

to ensure that they did not leave the gang. The government has proffered that some of the

witnesses who would so testify are the same individuals identified by the letters A through H in

Counts Two, Three, and Four of the Indictment, the counts charging witness tampering under

(b)(3). To the extent that this evidence relates directly to events on July 3 and 4 or

shortly before those dates with respect to A through G, it may either be highly probative Rule

404(b) evidence or evidence directly relevant to prove knowledge, intimidation, and threats — all

elements that must be proved under Counts Two and Three. It will be admitted. The Court

requires a further proffer with respect to Count Four. The government also argues that this same

evidence also may be relevant to the state of mind of the witnesses with whom defendant

4 allegedly tampered. With respect to this last possibility, the Court will need a more detailed

proffer before considering its admission in the government’s case in chief.

Fifth, the government seeks to introduce evidence that the defendant continued to

make threats, both direct and indirect, to members of the gang who remained in Germany after

the defendant had left Germany for the United States following the victim’s death. The

government’s proffered evidence also includes allegations that the defendant’s threats involved

the removal or concealment of gang related tattoos and that the defendant had contact

information for and may have contacted family members of certain gang members.1 Any such

evidence may be relevant to the state of mind of the witnesses with whom defendant allegedly

tampered. It therefore may be admissible evidence in the government’s rebuttal case.

Sixth, the government seeks to introduce evidence that members of the gang were

involved in the possession, use and distribution of illegal drugs while in Germany. As the

government itself notes, this evidence at most would serve the purpose of rebutting the possible

defense that the group of individuals the defendant associated with in Germany was not a violent

street gang involved in illicit activity but only a social club. While this seems somewhat

attenuated, the Court will consider admitting this evidence in rebuttal but only if the defendant

brings into question the alleged illicit and violent nature of the gang.

The seventh, eighth, and ninth categories of evidence are, respectively, that the

defendant was carrying a concealed hand gun when he was arrested, that he possessed several

assault-style weapons and ammunition in his residence in Virginia, and that in the same residence

1 The government clarified at oral argument on February 18, 2010 that its proffer with respect to threats involving the removal or concealment of gang-related tattoos is not really Rule 404(b) evidence at all but is directly relevant to proving Count Four.

5 the defendant also possessed marijuana and digital scales. The Court concludes that there is no

basis for admitting these categories of evidence under Rule 404(b) because the crimes with

which the defendant is charged do not involve either guns or drugs and there is no other apparent

relevance of this evidence.

For these reasons, the Court will grant in part and deny in part the government’s

motion. The various categories of evidence will be admitted under the parameters described

above and with appropriate limiting instructions. Accordingly, it is hereby

ORDERED that the government’s motion in limine to introduce other crimes and

bad acts evidence pursuant to Federal Rule of Evidence 404(b) [24] is GRANTED in part and

DENIED in part.

SO ORDERED.

/s/__________________________ PAUL L. FRIEDMAN United States District Judge

DATE: August 11, 2010

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