When can an act be deemed to be part of a conspiracy? And how strong must the evidence be that the act was connected to the conspiracy? When is evidence admissible as intrinsic to the crimes charged, and when it is admissible pursuant to Fed. R. Evid. 404(b)? How does Fed. R. Evid. 403 affect a ruling? These questions are all relevant to United States v. Savage, 85 F.4th 102 (3d Cir. 2023).
The case involved the Kaboni Savage Organization (KSO), a violent drug-trafficking ring based in North Philadelphia. The ringleader of the gang was Kaboni Savage, who was convicted and sentenced to death in a separate proceeding. See United States v. Savage, 970 F.3d 217 (3d Cir. 2020). The KSO sold powder cocaine, crack cocaine, and liquid phencyclidine in North Philadelphia from 1997 through 2010. The gang committed murders, retaliated against witnesses who cooperated with the government, and, on one occasion, firebombed the family home of a former KSO member who had become a government witness. Kaboni Savage was convicted of ordering the firebombing.
The three defendants before the court in its 2023 opinion were Kidada Savage, Steven Northington, and Robert Merritt, all part of the KSO gang. Kidada was Kaboni’s sister and, while he was incarcerated, she coordinated KSO activities and issued orders to other KSO members on Kaboni’s behalf. The other two defendants carried out the orders. Northington, a drug dealer and enforcer for the KSO, caused and aided one murder and committed another. More specifically, Northington controlled a drug block in North Philadelphia and drove Lamont Lewis, a nonparty, to the drug block, where he identified a rival dealer whom Lewis shot for encroaching on the block. Northington also participated in the murder of a witness the day before the witness was scheduled to testify against Kaboni in a state-court murder trial. Merritt, who was not a full-fledged KSO member, sold drugs for the KSO and participated in the firebombing of the home that killed six people, including four children. Merritt often sold the drugs with his older cousin, Lewis, who was a KSO member and the shooter of the rival drug dealer.
The firebombing took place in October 2004. During the months preceding the firebombing, Kaboni expressed to Kidada in numerous phone calls his concern that KSO member Eugene Coleman was cooperating with the police. Kaboni telephoned Lewis, who expressed his fealty to Kaboni. Lewis gave the phone to Kidada so that she could speak with her brother and, when they finished their conversation, Kidada told Lewis that Kaboni had ordered him to “firebomb the Colemans’ house,” instructed Lewis to do the firebombing around 3:00 or 4:00 a.m. when “everybody is in the house,” and promised Lewis $5,000 for the work.
Lewis got cousin Merritt to assist him, and the two prepared for the firebombing. They went to a local gas station, bought two gas cans, filled them with gasoline, and put them in the trunk of the car before heading to Merritt’s house in West Philadelphia to pick up a gun. Before they got to the house, a Philadelphia highway patrol officer pulled them over for speeding. The officer was called to another scene, so he allowed them to leave and mailed Lewis the speeding ticket.
Lewis and Merritt got the gun from Merritt’s house, returned to North Philadelphia, and parked around the corner from the Coleman house, where they removed the cans from the trunk, stuffed a cloth into one of the cans to serve as a wick, and carried the two cans to the house. Lewis gave Merritt a lighter, then he kicked in the front door; heard a woman say, “Who’s that?”; entered the house; and fired two shots. Merritt immediately ran into the house and threw a lit gas can into the living room. This caused a big explosion, after which Merritt left the house, grabbed the unlit can, and threw it into the house. Lewis called Kidada to tell her that the job was done.
Although it was clear that Kaboni, Kidada, Lewis, and Merritt were involved in the firebombing, the government wanted to tie Northington to the crime. To do so, it sought to offer evidence of his arrest a month before the bombing. The arrest occurred when Northington, who was driving with his cousin in a rental vehicle approximately two miles from the Coleman residence, was pulled over by Philadelphia police officers. When the police asked him to identify himself, Northington gave a false name, but one of the officers recognized him and arrested him on a federal warrant. A search of the car revealed a loaded handgun, a full can of gasoline, and a bag of latex gloves in the car.
The government argued in a motion in limine that the evidence surrounding Northington’s arrest demonstrated that his actions were intrinsic evidence of his involvement in the charged RICO conspiracy and that the evidence would permit the jury to conclude that Northington intended to firebomb the Coleman home before the arrest prevented him from doing so. The government offered in support of its argument a recording of a June 2004 phone conversation between Kidada and Kaboni in which Kaboni ordered Kidada in coded language to instruct Northington that he “better go ahead” and “to get on that.” The coded language included a reference to “Money Sign,” a person never actually identified in the case.
Northington responded with two arguments, one of which was a clear loser and the other posed a more difficult question. The first argument was that the arrest was not intrinsic to the case against him because the government did not charge him with any acts relating to the Coleman killings. The reason the argument was unavailing was that the indictment charged that the KSO used acts of intimidation and retaliation, including murder, to maintain and further its objectives and that Northington committed two such murders. This meant that evidence that Northington endeavored to firebomb the Coleman home was highly probative of his participation in the charged RICO conspiracy since it tended to show his commitment to the KSO objectives.
Northington’s better argument was that the evidence was not capable of supporting a finding that he attempted to firebomb the Coleman residence. He offered several specific points in support of that argument, including these:
The June phone call occurred three months before his arrest, and the government was unable to explain the delay between Kaboni’s supposed order and the time of the arrest.
Northington was not part of the recorded phone call in which Kaboni told Kidada that an individual called “Money Sign” had “better get on that,” and no evidence attributed “Money Sign” to Northington. Kaboni never explicitly explained what “Money Sign” was supposed to do. Collect a debt? Sell drugs?
The government’s speculation about Northington’s intent when he was arrested was inconsistent with the facts that he was arrested approximately two miles from the Coleman residence while traveling in the opposite direction of that house and was closer to his own home than to the Colemans’.
The trial judge admitted the evidence as intrinsic to the charged conspiracy and permitted the government and the defense to argue about the proper inferences to be drawn from the circumstances of Northington’s arrest. The court of appeals conceded that Northington had reasonable grounds for arguing that the evidence involving his arrest and the phone call made three months earlier were insufficient to support a finding that he attempted to firebomb the Coleman family home. But the court stated that its task was not to decide whether the government was correct; it was to decide whether the trial judge abused discretion in admitting the evidence.
The court concluded that “[t]he government’s theory, although circumstantial and vulnerable to critique, is plausible.” The court noted that Northington was in the vicinity of the Coleman home with materials that could enable a firebombing; even if no one knew who “Money Sign” was, the reality was that Kaboni was fixated on Coleman; and the firebombing used the same type of materials that Northington possessed when he was arrested. Thus, “a jury could reasonably conclude that the evidence relating to Northington’s arrest showed that he intended to firebomb the Coleman home.”
The court had little difficulty in deciding that the evidence was not unduly prejudicial. After all, the evidence in the case implicated Northington in two other murders, which meant that “there was little risk that the evidence relating to Northington’s arrest would cause the jury to convict Northington for th[e] [fire bombing] murders on an improper emotional basis rather than on the evidence presented at trial.”
The trial judge ruled that, even if the circumstances surrounding Northington’s arrest did not establish that his actions were intrinsic to the charged conspiracy, the evidence was admissible under Rule 404(b) because it showed the relationship between the co-defendants, the nature and background of the conspiracy, the motive and intent for retaliating against government witnesses, and a specific method of retaliation. The trial judge also found that the probative value of the evidence was not substantially outweighed by a risk of unfair prejudice.
The court of appeals did not reach the question whether it was an abuse of discretion to admit the arrest evidence pursuant to Rule 404(b). It is certainly arguable that the probative value of the evidence for the purposes relied on by the trial judge was slight, given that there was substantial evidence in the case tying Northington to the KSO, showing that the KSO had a motive and intent to retaliate against government witnesses; tying Northington personally to such retaliation against a state court witness; and showing that murder such as the murder of the state court witness to which Northington was tied was a method of retaliation.
The Rule 404(b) balancing is different from an analysis of whether evidence is intrinsic. The marginal probative value of evidence offered to prove matters that already have been the subject of extensive proof means that the prejudicial effect, including the possibility that a jury will not understand why such evidence is offered and use it impermissibly as propensity evidence, might well warrant exclusion of evidence. To put this differently, if no reasonable jury could find that Northington intended to firebomb the Colemans’ house, there is a genuine risk that the jury would treat the arrest evidence as propensity evidence—i.e., as evidence that Northington was the kind of person who would engage in firebombing.
The case illustrates well the standard a trial judge must use in evaluating the government’s argument that evidence is intrinsic to charged offenses: As long as the jury could find the conditional fact—here, that Northington intended to firebomb the Colemans’ house—the evidence is admissible.
The case also illustrates the importance of trial judges paying close attention to the reason why evidence is admitted in making Rule 403 rulings.
Finally, the case illustrates the limits of appellate review of Rule 403 rulings: “We generally will not reverse a district court’s Rule 403 decision unless the ‘analysis [undertaken] and resulting conclusion’ is ‘arbitrary or irrational.’ United States v. Kellogg, 510 F.3d 188, 197 (3d Cir. 2007); see also id. (noting that if ‘judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal’ (citation and internal quotation marks omitted)).” United States v. Savage, 85 F.4th at 130.
