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Case 1:20-cr-00330-PAE Document 387 Filed 10/29/21 Page10of21 prejudice pursuant to Rule 403; in addition, (4) at defendant’s request, the district court should give the jury an appropriate limiting instruction. United States v. McCallum, 584 F.3d 471, 475 (2d Cir. 2009) (citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)). “Other act’ evidence serves a proper purpose so long as it is not offered to show the defendant’s propensity to commit the offense.” Curley, 639 F.3d at 57 (citing Fed. R. Evid. 404(b)). When the government must prove a conspiracy charge, evidence of other acts committed “in furtherance of the conspiracy” is not “other act” evidence under Rule 404(b), but rather, it is direct evidence of the acts charged in the Indictment. United States v. Townsend, No. S1 06 CR. 34 (JFK), 2007 WL 1288597, at *1 (S.D.N.Y. May 1, 2007) (citing United States v. Concepcion, 983 F.2d 369, 392 (2d Cir. 1992)). However, “other acts” are only admissible as evidence of a conspiracy “as long as they are within the scope of the conspiracy.” United States v. Cummings, 60 F. Supp. 3d 434, 437 (S.D.N.Y. 2014) vacated on other grounds 858 F.3d 763 (2d Cir. 2017) (quoting United States v. Bagaric, 706 F.2d 42, 64 (2d Cir. 1983)). Evidence of uncharged conduct is not considered other act evidence under Rule 404(b) “if it [1] arose out of the same transaction or series of transactions as the charged offense, [2] if it is inextricably intertwined with the evidence regarding the charged offense, or [3] if it is necessary to complete the story of the crime on trial.” United States v. Nektalov, 325 F. Supp. 2d 367, 370 (S.D.N.Y. 2004) (quoting United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000)). However, “where it is not manifestly clear that the evidence in question is intrinsic proof of the charged crime, the proper course is to proceed under Rule 404(b).” Townsend, 2007 WL 1288597, at *1 (citing Nektalov, 325 F. Supp. 2d at 372). DOJ-OGR-00005674