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Case 1:20-cr-00330-PAE Document 204 Filed 04/16/21 Page 193 of 239

“[E]vidence 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.’” United States v. Quinones, 511 F.3d 289, 309 (2d Cir. 2007) (quoting United States v.
Towne, 870 F.2d 880, 886 (2d Cir. 1989)). Where “the indictment contains a conspiracy charge,
uncharged acts may be admissible as direct evidence of the conspiracy itself.” United States v.
Diaz, 176 F.3d 52, 79 (2d Cir. 1999) (internal quotation marks omitted) (quoting United States v.
Miller, 116 F.3d 641, 682 (2d Cir. 1997)); see also United States v. Thai, 29 F.3d 785, 812 (2d Cir.
1994). “An act that is alleged to have been done in furtherance of the alleged conspiracy . . . is not
an ‘other’ act within the meaning of Rule 404(b); rather, it is part of the very act charged.” United
States v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992).

The Second Circuit “follows the ‘inclusionary’ approach to ‘other crimes, wrongs, or acts’
evidence, under which such evidence is admissible unless it is introduced for the sole purpose of
showing the defendant’s bad character, or unless it is overly prejudicial under Fed. R. Evid. 403
or not relevant under Fed. R. Evid. 402.” United States v. Pascarella, 84 F.3d 61, 69 (2d Cir.
1996) (internal citation omitted); see also United States v. Paulino, 445 F.3d 211, 221 (2d Cir.
2006); United States v. Zackson, 12 F.3d 1178, 1182 (2d Cir. 1993). Under this approach,
uncharged acts are admissible in a conspiracy case where they are used to (i) explain the
development of the illegal relationship between coconspirators; (ii) explain the mutual criminal
trust that existed between coconspirators; and/or (iii) complete the story of the crime charged. See
Diaz, 176 F.3d at 80; United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996); United States v.
Rosa, 11 F.3d 315, 334 (2d Cir. 1993). In addition, evidence of “other acts” is admissible under
Rule 404(b) if it (i) is advanced for a proper purpose, “such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident,” Fed. R. Evid.

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