Case 1:19-cr-00496-CM Document 119 Filed 03/04/21 Page 1 of 14
`,. rr=========i
`USDCS_DNY
`DOCUMENT
`~ BLBCTR.ONICALLY ~
`DOC#: _____ -+-_.., __ ,
`DATE Fll.,ED: 3 / '-I I 2. 1
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`X
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`UNITED ST A TES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`- - - - - - - - - - -- - - - ---
`UNITED STATES OF AMERICA,
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`-against-
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`CAL VIN HUDSON,
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`__________________
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`x.
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`Defendant.
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`19 CR 496-01 (CM)
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`DECISION AND ORDER ON DEFENDANT'S MOTION TO SEVER CERTAIN COUNTS
`AND GOVERNMENT'S MOTIONS IN LIM/NE
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`McMahon, C.J.:
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`Calvin Hudson stands charged in an eleven-count indictment with various crimes: six
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`relate to an alleged drug-dealing conspiracy, and five relate to an alleged loan-sharking scheme.
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`Hudson has filed a motion asking the Court to sever the trial of the drug counts from the trial of
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`the extortion counts. He claims that the drug and extortion counts deal with entirely distinct
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`courses of conduct, and that trying them together would work a substantial prejudice against
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`him, and violate his right to a fair trial. The Government opposes the motion, arguing that the
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`offenses are properly joined because they have a sufficient logical connection to each other, and
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`because the Government's evidence on the drug counts and the extortion counts overlap.
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`The parties have also filed motions in limine asking the Court to issue pretrial rulings on
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`various evidentiary matters.
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`Background
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`According to the Government, it intends to establish at trial-
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`through witness testimony,
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`wiretap recordings, audio and video recordings, phone records, text communications, physical
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`evidence, and documents-
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`that Hudson was a narcotics supplier in the East Harlem
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`Case 1:19-cr-00496-CM Document 119 Filed 03/04/21 Page 2 of 14
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`neighborhood of Manhattan, who also provided extortionate loans and used threats of violence
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`to extract payments from multiple victims. The Government's theory at trial will be that Hudson
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`had ready access to large amounts of cash to lend at extortionate rates because of his thriving
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`drug business, which involved the sale of large quantities of cocaine, crack cocaine, and heroin.
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`As a result, on multiple occasions, Hudson easily provided tens of thousands of dollars in cash
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`to both Victim-1 and Victim-2. The Government says that some of the evidence proving Counts
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`One through Six (the "Drug Counts") and the evidence proving Counts Seven through Eleven
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`(the "Extortion Counts") will come from the same witnesses. Government Memo at 2.
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`Hudson's Severance Motion
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`Hudson claims that " unless the Superseding Indictment is bifurcated as requested, Mr.
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`Hudson would be prejudiced in numerous ways." Id. at 2. Hudson claims he would very much
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`like to testify in his own defense on the extortion counts, but would not be able to at a joint trial
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`without having to offer self-incriminating testimony on the drug counts-as to which he intends
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`to stand on the presumption of innocence and not testify. Id. Hudson claims that this "improper
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`joinder" of counts would force him to waive his constitutional right to testify on the extortion
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`counts. Id. Hudson also claims that evidence that he allegedly carried a firearm during the drug
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`conspiracy would negatively infect the j ury's consideration of whether he made threats of
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`violence-
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`some of which are alleged to have involved guns-in the extortion/loan-sharking half
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`of the case. And he claims that "There is a substantial risk that a jury, confronted with this cobbled(cid:173)
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`together set of disparate allegations, would conclude based on the sheer number of different
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`offenses charged that Mr. Hudson was likely guilty of some or all of the counts, and thus convict
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`him without properly giving individualized attention to whether the Government has met its
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`evidentiary burden as to any or all of the eleven counts when analyzed separately." Id.
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`Case 1:19-cr-00496-CM Document 119 Filed 03/04/21 Page 3 of 14
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`Hudson argues that the principal "inference" the Government is relying on to link the
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`disparate charges-
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`that defendant used the money from his illegal narcotics business to engage
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`in the loan sharking scheme-"is as fatally prejudicial as it is offensive and unsupported."
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`Defendant's Reply at 2-3. Indignant that the Government would suggest that the only way he
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`could possess large sums of money is from drug dealing, Hudson insists that "he built a
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`legitimate, profitable construction business in his community, and that he operated aspects of it
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`frequently in cash." Id. Obviously, Hudson would not want the jury to infer that he had no
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`source of income other than dealing in drugs, and since the Government admits that it cannot
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`actually trace the money used for the " loans" to any particular drug deal or even to the drug
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`business generally, the importance of getting information about Hudson's other business
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`activities before the jury is patent.
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`But defendant also argues that the alleged linkage between funds reaped from the alleged
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`drug conduct and funds used for his alleged extortion is irrelevant. He cites United States v.
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`Castellano, 416 F. Supp. 125 (E.D.N.Y. 1975) for the proposition that "neither Section 892 nor
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`Section I 955 is concerned with the source of the money used for the purpose of either [illegal]
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`gambling or loan sharking[.]" Castellano, 416 F. Supp. at 130- 3 1. Since the source of money
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`tending to prove used to extend credit to Victims 1 and 2 is not an element of the offense, Hudson
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`argues that evidence tending to prove such matters is irrelevant and inadmissible, and so cannot
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`provide the nexus for joining otherwise "unrelated" charges.
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`At bottom, Hudson asks the Court to sever because "his right to a fair trial would be
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`confounded by these eleven counts being tried together, as he would be unable to testify as to
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`the non-drug counts, while remaining silent as to the drug counts."
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`At a conference held in court on September 23, 2021, the court permitted defendant to
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`Case 1:19-cr-00496-CM Document 119 Filed 03/04/21 Page 4 of 14
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`make an ex parre and in camera proffer of what his testimony would be at a separate trial on the
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`loan sharking counts, and why he would be precluded from telling that story at a joint trial. I
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`am divulging nothing from that ex parte proceeding by saying Hudson believes he has an
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`innocent explanation that would exonerate him on the extortion charges, but that same
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`explanation would hurt his case against the drug charges, if he were subject to cross examination
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`on those drug charges.
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`The Law Regarding Joinder and requested Severance
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`Federal Rule of Criminal Procedure 8(a) provides that two or more offenses against a
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`single defendant may be joined in a single indictment
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`if the offenses charged ... are of the same or similar character, or
`are based on the same act or transaction, or are connected with or
`constitute parts of a common scheme or plan.
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`Fed. R. Crim. P. 8(a); see United States v. Turojf, 853 F.2d I 037, I 042 (2d Cir. 1988)). "Each
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`of these tests for when offenses may be tried together reflects a policy determination that gains
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`in trial efficiency outweigh the recognized prejudice that accrues to the accused." Id. ( citing
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`United States v. Werner, 620 F.2d 922, 929 (2d Cir. I 980)). "The propriety of joinder under
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`Rule 8(a) is a question of law." United States v. Ajlouny , 629 F.2d 830, 842 (2d Cir. 1980).
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`Rule 8(a) does not require "too precise an identity between the character of the offenses."
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`Werner, 620 F.2d at 926. Indeed, for purposes of Rule 8(a), '" [s]imilar' charges include those
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`that are ' somewhat alike,' or those ' having a general likeness' to each other." United States v.
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`Rivera, 546 F.3d 245,253 (2d Cir. 2008) (quoting Werner, 620 F.2d at 926). ). Under this " liberal
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`standard for joinder," United States v. McGrath, 558 F.2d 1102, 1106 (2d Cir. 1977), multiple
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`distinct counts "warrant joinder in a single trial" when they have "sufficient logical connection"
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`to one another, United States v. Ruiz, 894 F.2d 50 I , 505 (2d Cir. 1990), where "the same
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`4
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`Case 1:19-cr-00496-CM Document 119 Filed 03/04/21 Page 5 of 14
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`evidence may be used to prove each count," United States v. Blakney, 941 F .2d 114, 116 (2d Cir.
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`1991 ), or where the evidence proving the counts is " interconnected and overlapping," United
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`States v. Amato, 15 F.3d 230, 236 (2d Cir. 1994). "For purposes of analysis under Rule 8(a),"
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`however, "no one characteristic is always sufficient to establish similarity of offenses, and each
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`case depends largely on its own facts." Blakney, 941 F.2d at 116 (internal quotations and
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`citations omitted).
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`Federal Rule of Criminal Procedure 14 provides that, even where joinder is otherwise
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`proper under Rule 8, the Court may grant a severance "[i]f the joinder of offenses ... in an
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`indictment, an information, or a consolidation for trial appears to prejudice a defendant or the
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`government .. . . " Fed. R. Crim. P. 14. In order to succeed on a severance motion under Rule
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`14, however, " 'the defendant must show not simply some prejudice but substantial prejudice."'
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`United States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004) (quoting Werner, 620 F.2d at 928)
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`( emphasis in original). Under this standard, "defendants are not entitled to severance merely
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`because they may have a better chance of acquittal in separate trials." Zafiro v. United States,
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`506 U.S. 534, 540 (1993). This high threshold for severance reflects the "well-recognized"
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`principle "that joint trials serve the public interest in economy, convenience, and the prompt
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`trial of the accused." Turoff, 853 F.2d at 1039. In fact, " ri]t would impair both the efficiency and
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`the fairness of the criminal justice system to require . . . that prosecutors bring separate
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`proceedings, presenting the same evidence again and again, requiring victims and witnesses to
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`repeat the inconvenience (and sometimes trauma) of testifying .. . . " Richardson v. Marsh, 481
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`U.S. 200, 210 (1987). Consistent with this understanding, the Second Circuit has stated that
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`"[t]he principles that guide the district court's consideration of a motion for severance usually
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`counsel denial" of a motion on prejudice grounds. United States v. Rosa, 11 F.3d 315, 341 (2d
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`5
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`Cir. 1993).
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`A defendant seeking severance shoulders a "heavy burden of showing that joinder will
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`result in ' substantial prejudice."' Amato, 15 F.3d at 237 (quoting Turoff, 853 F.2d at 1043). Even
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`in those rare instances where a defendant establishes a "high" risk of prejudice, " less drastic
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`measures, such as limiting instructions, often will suffice to cure any risk of prejudice." Zafiro,
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`506 U.S. at 539 (citing Richardson, 481 U.S. at 2 11); see United States v. Rittweger, 524 F.3d
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`171 , 179 (2d Cir. 2008) (same). The Second Circuit has recognized that any prejudice ofjoinder
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`··is largely absent in situations where evidence of separate crimes would be admissible anyway."
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`United States v. Halper, 590 F.2d 422, 431 (2d Cir. 1978). Indeed, "[u)nfair prejudice does not
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`result if evidence admissible to prove each charge is also admissible to prove the other charge:·
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`United States v. Peoples, 748 F.2d 934, 936 (2d Cir. 1984).
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`When a defendant claims that joinder is prejudicial because he wishes to testify on some
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`but not all of the counts in an indictment, the defendant must "make[] a convincing showing that
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`he has both important testimony to give concerning one count and strong need to refrain from
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`testifying on the other." Sampson, 385 F.3d at 191 (quoting Werner, 620 F.2d at 930). To
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`establish that this type of prejudice warrants severance, "[i]t is settled that a mere unexplicated
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`assertion of this sort is not enough." Werner, 620 F.2d at 930. Rather, "a particularized showing
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`must be made concerning the testimony the defendant wishes to give and his reasons for
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`remaining silent on the joined counts," which allows the Court to "make an independent
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`evaluation of whether the defendant will be prejudiced to an extent that outweighs the interest
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`favoringjoinder." Id. (quoting United States v. Jamar, 56 l F.2d 11 03, I 108 n. 9 ( 4th Cir. 1977)).
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`"In making such a showing, it is essential that the defendant present enough information(cid:173)
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`regarding the nature of the testimony he wishes to give on one count and his reasons for not
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`6
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`wishing to testify on the other-
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`to satisfy the court that the claim of prejudice is genuine," and
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`to allow the court to then weigh that prejudice against the efficiencies of joinder. Sampson, 385
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`F.3d at 191 (quoting Baker v. United States, 401 F.2d 958, 977 (D.C. Cir. 1968)). Consistent
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`with this instruction, District Courts within this Circuit have denied severance where a defendant
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`provides an insufficiently detailed explanation of the testimony he intends to offer regarding
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`certain counts. See, e.g., United States Krug, 198 F. Supp. 3d 235 (W.D.N.Y. 2016) (denying
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`severance motion where "the defendant explains ' his reasons for not wishing to testify on' some
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`counts," but "does not, as he must, provide information ' regarding the nature of the testimony'
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`he intends to provide" ( quoting Sampson, 3 85 F.3d at 191 )); United States v. Ezeobi, 10 Cr. 669
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`(DLC), 2011 WL 3625662, at *4 (S.D.N .Y. Aug. 17, 20 11 ) (denying severance motion where
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`defendant " does not explain in any detail what testimony he would give if he took the stand").
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`All Counts in the lndiclment are Properly Joined Under Rule 8
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`The counts contained in the Indictment satisfy the j oiner requirements of Rule 8(a).
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`There is "sufficient logical connection" between the Drug Counts and the Extortion Counts to
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`support their joinder, because the Government intends to argue that Hudson used proceeds from
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`his illegal narcotics business to make the extortionate loans made to Victim-I and Victim-2, and
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`that the guns Hudson carried on his person to protect himself in connection with his drug
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`business, were the guns that instilled fear in his extortion victims. See Ruiz, 894 F.2d at 505
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`(multiple distinct counts "warrant joinder in a single trial" when they have "sufficient logical
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`connection" to one another). The Government's theory of the case is sufficient to link the two
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`sets of charges.
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`Hudson's legal argument that evidence about the "source of the funds" used to extend
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`extortionate credit is irrelevant, inadmissible at trial, and therefore not a proper basis for joinder
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`7
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`Case 1:19-cr-00496-CM Document 119 Filed 03/04/21 Page 8 of 14
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`is simply wrong. "Evidence is relevant if: (a) it has any tendency to make a fact more or less
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`probable than it would be without the evidence; and (b) the fact is of consequence in determining
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`the action." Fed.R.Evid. § 401. One of the elements of the crime "extortionate extension of
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`credit" that the Government must prove beyond a reasonable doubt- and therefore "an issue of
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`consequence in determining the action"-
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`is that the defendant extended credit to the victim. 1
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`That Hudson had access to large amounts of cash- whether from his lawful business, as he
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`contends, or from his illegal narcotics distribution business, as the Government argues-tends
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`to make it more probable that he made the loans. Absence proof that Hudson had the ability to
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`make the alleged extortionate loans, the jury might reject the Government's allegations out of
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`hand, without even considering the Government's evidence about defendant's extortionate
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`conduct. So, while the source of funds used for the loans is not an element of the offense that
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`the Government must prove beyond a reasonable doubt, proving that Hudson had the ability to
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`make large cash loans as a result of his drug dealing is neither irrelevant or immaterial to the
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`Government's case in chief.
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`Severance Not Warranted Under Rule 14
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`Because the counts are capable of being j oined under Rule 8, the counts will not be
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`severed pursuant to Rule 14 unless Hudson meets his "heavy burden of showing that joinder
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`will result in 'substantial prejudice."' Amato, 15 F.3d at 237 (quoting Turoff, 853 F.2d at 1043).
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`Hudson claims he would suffer substantial prejudice if the drug counts are tried together with
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`the extortion counts, since he will effectively be deprived of his Fifth Amendment right to testify
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`in his defense on the extortion counts.
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`Title 18, United States Code, Section 892 makes it a crime to make any extortionate extension of credit. "For you
`to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt: First,
`that the defendant made, or conspired to make, an extortionate extension of credit; and Second, that the defendant
`did so knowingly. Pattern Jury Instructions for Federal Criminal Cases.
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`8
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`Case 1:19-cr-00496-CM Document 119 Filed 03/04/21 Page 9 of 14
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`The court has considered at length counsel's proffer under seal about the testimony that
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`Mr. Hudson would give concerning hi s legitimate business activities and his dealings with
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`alleged extortion Victims 1 and 2. I concede that the information that Mr. Hudson wishes to
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`convey to the jury, if believed by the trier of fact, would tend to negate the Government's theory
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`that Hudson's drug dealing was the source of funding for the money that he admittedly provided
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`(albeit under sharply disputed circumstances) to Victims 1 and 2. This might well affect the
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`verdict on the extortion charges.
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`However, in its Sur Reply (requested by the Court after it allowed defendant to make his
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`ex parte proffer), the Government has set forth its most thorough proffer of its proposed
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`evidence. According to the Government, it would hope to have CW-I, Victim-I , and Victim-2
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`testify at a trial on the extortion counts, that:
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`CW-1 has known Hudson for almost all ofCW-1 ' s life. CW-I began selling
`narcotics for Hudson in approximately 1986 or 1987. During this period,
`Hudson bought multiple kilograms of powder cocaine at a time, which was
`then cooked into crack cocaine. CW-1 bagged crack cocaine for Hudson at
`an apartment in the vicinity of I 05th or I 06th Street in Manhattan, and sold
`dime bags of that crack cocaine for Hudson. CW- I is expected to further
`testify that during the 1990s and 2000s, Hudson and CW-1 were arrested
`and convicted on unrelated charges, spent time in prison, and lost touch.
`After CW- I was released from prison, around 2012, CW-1 contacted
`Hudson and asked Hudson for work. From then until approximately
`February 2018, CW-I assisted Hudson with Hudson's narcotics business,
`picking up, delivering, and selling narcotics, and picking up and delivering
`large quantities of cash. In some instances, as CW-1 is expected to testify,
`Hudson personally cooked or directed others to cook some of Hudson' s
`cocaine into crack cocaine. The testimony from CW- I will further establish
`that Hudson protected his drug business with guns, carrying guns on his
`person and supplying at least one gun to CW-I, who at the time was one of
`Hudson' s subordinate drug dealers.
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`The Government expects CW-1 to further explain that due to CW- 1 's
`longstanding relationship with Hudson, primarily as someone who worked
`for Hudson's drug trafficking business, Hudson not only felt comfortable
`engaging in drug dealing with CW-1, but also in trusting CW-1 with
`information about his other criminal activities and involving CW-I in those
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`Case 1:19-cr-00496-CM Document 119 Filed 03/04/21 Page 10 of 14
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`activities, including Hudson's loansharking and extortion scheme of
`Victim- I .
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`Victim-I is expected to testify that during 2017 and 2018, Hudson loaned a
`total of approximately $400,000 in cash to Victim- I, a subcontractor, who
`needed the funds to pay Victim-1 's employees. In return, Hudson demanded
`huge interest payments (e.g., $50,000 interest on a $ I 00,000 loan) and
`additional substantial late fees (e.g., $1 ,000 per day). When Victim-I fell
`behind on Victim-1 ' s payments, Hudson and his co-conspirator, Charles
`Kenyatta--<luring phone calls, via text messages, and at in person
`meetings-physically assaulted and threatened to kill or harm Victim- I if
`Victim-I did not make the payments they demanded. Victim-I is expected
`to testify that at some point Victim- I also met CW- I, who would occasionally
`pass messages regarding the loans between Victim-I and Hudson.
`Additionally, at least one of Victim- I 's conversations with Hudson
`regarding the loans took place during a three-way call involving Hudson,
`Victim-I , and CW-I. Ultimately, out of fear for Victim-I and Victim-1 's
`family, Victim-I cashed multiple fake checks in order to give Hudson the
`cash he demanded.
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`Corroborating Victim-1 's account, CW-I is expected to testify that Hudson
`told CW- I that Hudson had loaned a large amount of money to Victim- I
`and charged Victim- I a high interest rate. Hudson also told CW- I that
`Victim- I owed Hudson money from those loans. CW- I is further expected
`to testify that at some point CW-1 set up a three-way call among CW- I,
`Hudson, and Victim-I, during which CW-I heard Hudson discuss the
`money he had given to Victim-I and threaten Victim-I. A few days
`following that call, Hudson told CW-I that Victim-I had borrowed more
`money and again owed Hudson money. Hudson' s preexisting relationship
`with CW- I , involving years of illegal activity, crucially explains why
`Hudson would involve CW-I in his extortion scheme and why Hudson
`would trust CW- 1 to assist in an illegal scheme. Indeed, during the same time
`that Hudson apprised CW-1 of Hudson's extortion of Victim- I, Hudson was
`actively involved in selling drugs to CW-1, who was by then acting at the
`direction of law enforcement. 2
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`Government Sur Reply at 2-4.
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`With regard to Victim-2, the Government says that Victim-2 would testify that:
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`In 2018, Hudson gave Victim-2 tens of thousands of dollars in cash when
`Victim-2 was unable to make payroll. Victim-2 eventually repaid Hudson,
`with interest. In 2019, Hudson told Victim-2 that Hudson would pay
`Victim-2's vendor approximately $70,000, which Victim-2 owed. Victim-
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`2 Unbeknownst to Hudson and Victim-I , at the time CW-I was passing messages to Victim-I from Hudson and
`during the three-way call, CW-I was working with and at the direction of law enforcement.
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`10
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`Case 1:19-cr-00496-CM Document 119 Filed 03/04/21 Page 11 of 14
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`2 thereafter paid Hudson approximately $40,000 to reimburse Hudson
`before learning that Hudson did not in fact pay the vendor and had no
`intention of paying the vendor. When Victim-2 confronted Hudson, Hudson
`demanded the remaining $30,000, threatening that he would kidnap and
`torture Victim-2 unless Victim-2 paid. Victim-2, who would testify that
`Victim- 2 had previously seen Hudson in possession of two different
`handguns, that Victim-2 had been told by Hudson that Hudson would "put
`two bullets" in Victim-2's head on prior occasions when the two disagreed,
`that Victim-2 had been told by Hudson that Hudson had spent 18 years in
`jail for murder, and that Victim-2 had witnessed Hudson lose his temper
`and threaten to harm others, paid Hudson the money.
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`The Government further expects that Victim-2 would testify on direct
`concerning two discrete incidents that are relevant both to the drug case and
`the extortion case. First, in approximately November 2018, Hudson
`permitted Victim-2 to reside temporarily in an apartment that Hudson
`owned in the Bronx. When Victim-2 moved into the apartment, it was
`empty except for a stovetop pot, baking soda, and what appeared to Victim-
`2 to be a sifter. Victim-2 was not certain but believed that these items were
`drug paraphernalia. Second, during the same period, Victim-2 overheard a
`phone conversation during which Hudson discussed, in substance, that
`Hudson was about to receive a new delivery, which would need to be
`chopped up. Victim-2 believed Hudson's conversation was about drugs.
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`Government Sur Reply at 9- 10.
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`The Court is satisfied that the Government's theory of the extortion case cannot be
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`presented in the absence of CW-1 's testimony about Hudson's epic drug dealing. The decades(cid:173)
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`long relationship between Hudson and CW-1-a relationship forged in the illegal narcotics
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`distribution trade-is inextricably intertwined with Hudson's involvement in the loansharking(cid:173)
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`extortion schemes. CW-1 ' s expected testimony shows why Hudson trusted CW-1 with
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`information about his criminal activities, exposed CW-1 to the tens of thousands of dollars in cash
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`that Hudson made dealing drugs, and possessed firearms in CW-1 's presence. Moreover, it was
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`within the same time period that CW-1 worked for Hudson's drug business that Hudson involved
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`CW-1 in his loansharking and extortion of Victim-I. Thus, the nature ofCW-1 's relationship with
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`Hudson explains to the jurywhy Hudson would trust CW-1 to participate in Hudson's extortion
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`Case 1:19-cr-00496-CM Document 119 Filed 03/04/21 Page 12 of 14
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`scheme.
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`CW-1 will also corroborate Victim-2's account that Hudson regularly carried a gun,
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`which was a factor in making Victim-2 believe that Hudson would harm Victim-2 if Victim-2
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`fai led to pay Hudson.
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`As for Victim-2's observations of Hudson' s drug dealing and gun toting, that testimony
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`is admissible as direct evidence of Victim-2's belief (his state of mind at the time of the alleged
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`extortion) that Hudson would follow through on his threats of violence. In extortion cases
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`brought under the Hobbs Act, I 8 U .S.C. § 195 1, the Government is required to prove "that
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`property was taken from the victim "by the wrongful use of actual or threatened force, violence,
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`or fear." 18 U.S.C. § 195 1(b)(2) (defining " extortion") (emphasis added). Hence, to satisfy its
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`burden of proof, the Government is permitted to present evidence about the extortion victim' s
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`state of mind. See Leonard B. Sand et al., Modem Federal Jury Instructions, Comment to Instrs.
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`50-6 and 50-1 3 ("The victim's state of mind is of paramount importance in assessing fear. It is
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`we ll settled that a victim's testimony is admissible on this point.").
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`The motion for severance is denied.
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`Government Remaining Still Relevant In Limine Motions
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`I.
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`EVIDENCE OF HUDSON' S CONVICTIONS FOR DRUG AND WEAPONS
`OFFENSES IS ADMISSIBLE PURSUANT TO RULE 404(b) IF HUDSON PUTS
`KNOWLEDGE OR INTENT AT ISSUE
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`The Government asks that, if Hudson argues at trial that he has no knowledge of or
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`involvement with drugs or weapons, it be allowed to introduce evidence, about his prior
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`convictions for drug and weapons crimes, as proof of his "opportunity, intent, ... knowledge, ..
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`. absence of mistake, or absence of accident" in committing the charged offenses, pursuant to
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`Federal Rule of Evidence 404(b).
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`The motion is granted.
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`Case 1:19-cr-00496-CM Document 119 Filed 03/04/21 Page 13 of 14
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`II.
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`THE GOVERNMENT ASKS THAT IT BE PERMITTED TO CROSS-EXAMINE
`THE DEFENDANT REGARDING CERTAIN TOPICS SHOULD HE ELECT TO
`TESTIFY
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`The Government asks that, in the event defendant testifies, the Government be allowed
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`to cross-examine defendant about (1) his drug dealing in East Harlem in the 1980s and 1990s,
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`and (2) his past convictions for firearms and controlled substances.
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`The Government also asks that, if defendant portrays himself on the stand as a law(cid:173)
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`abiding citizen, or someone who has never been involved with drugs, guns, or violence, that it
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`be permitted to cross-examine Hudson about his 1993 convictions for burglary and attempted
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`robbery, and his 20 IO conviction for sale of untaxed cigarettes, and that he was on parole during
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`part of the charged narcotics conspiracy.
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`The motion is granted.
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`III.
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`EVIDENCE OF PRIOR STATEMENTS OF VICTIM-2 IS ADMISSIBLE IF HUDSON
`ASSERTS RECENT FABRICATION OR IMPROPER MOTIVE
`
`The Government asks that, if Hudson claims that Victim-2' s testimony has been recently
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`fabricated or that Victim-2 had a motive to lie, it be permitted to elicit testimony from Victim-2
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`(or from a police officer) about a complaint Victim-2 made to the
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`ew York City Police
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`Department (" YPD'') on or about April 25, 2019, concerning threats of harm Hudson had
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`made to Victim-2.
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`According to the Government, Victim-2 told detectives from the YPD that Victim-2
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`had entered into a business arrangement with Hudson to borrow $65,000, which Victim-2 agreed
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`to repay with interest. Victim-2 stated that after Victim-2 had repaid Hudson in full , Hudson
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`began calling Victim-2 "nonstop" and "threatening to harm" Victim-2 in an attempt to get more
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`money from Victim-2. Certain of those threats included Hudson stating to Victim-2 that " I will
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`shoot you twice in the head." Victim-2 told the detectives that Victim-2 was "extremely fearful"
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`Case 1:19-cr-00496-CM Document 119 Filed 03/04/21 Page 14 of 14
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`of Hudson "due to his violent criminal past" and that Hudson had threatened Victim-2 in the
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`past with a firearm. Victim-2 also told the detectives that he did not want Hudson arrested or
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`prosecuted, but wanted to make sure the incident was documented.
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`The motion is granted. Should defendant claim, as the Government suggests, that
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`Victim-2 has recently fabricated that Hudson extorted Victim-2 in order to evade repaying a
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`business debt that Victim-2 owed the defendant, the Government will be permitted to introduce
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`Victim-2's prior consistent statement. See Tome v. United States, 513 U.S. 150, 159 (1995)
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`(holding that the Rule 80 l (d)( l )(B)(i)(ii) "permits the introduction of a declarant's consistent
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`out-of-court statements to rebut a charge ofrecent fabrication or improper influence or motive"
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`where "those statements were made before the charged recent fabrication or improper influence
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`or motive").
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`This constitutes the decision and order of the Court.
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`As the parties requested, the Court has requested a trial date for the fourth quarter of
`"I
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`202 1.3
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`Dated: March 4, 2021
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`/
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`BY ECF TO ALL COUNSEL
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`3 To ensure the safety of all persons entering the SDNY courthouses during the COVID-19 pandemic, the Court
`has established best practices for limiting the transmission of COVID-19, including, among other measures,
`mandatory double masking and enforced social distancing. Select courtrooms have been reconfigured to allow
`for social distancing during jury trials. Because there are a limited number of courtrooms that have been
`reconfigured to accommodate jury trials, and because only one jury can be selected each day consistent with
`health and safety regulations applicable during the pandemic, the Board of Judges has established a procedure for
`deciding the order in which trial-ready cases will be heard and in what courtrooms those trials will be held. Since
`defendant has been released on bai l conditions and currently at liberty in the community, and therefore falls near
`the bottom of the priority list for criminal trials, the Court believes it prudent to request a date in the fall, when it
`is more likely this case will be given a date certain for trial.
`
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