Scott Free

United States v. Scott, No. 10-3978-cr (2d Cir. April 6, 2012) (Pooler, Parker, CJJ)

In 2009, two NYPD detectives arrested defendant Scott after witnessing him engage in what they said was a hand-to-hand drug sale. At trial, the district court permitted the detectives to testify, over objection, that they had seen Scott several times before, and had spoken to him several times, for as long as twenty minutes. The circuit, finding that this evidence violated both Rule 404(b) and Rule 403, vacated the judgment and remanded the case for a new trial.

The circuit first concluded that the evidence was indeed Rule 404(b) evidence, and not something else. Rule 404(b) covers other “acts,” not other “bad acts,” and here, the detectives’ description of their prior contacts with Scott clearly would bear adversely on the jury’s assessment of his character. The court distinguished this case from those where the evidence was limited to officers’ testifying that they had seen the defendant in the past. “The difference between a police officer’s mere observations of a defendant in an area and testimony that two different detectives had had occasion to speak to him up to five times and for up to twenty minutes ... is substantial.” This latter scenario “indicates to a jury” that the defendant is “at a minimum, the sort of person who warrants a level of police observation to which law-abiding citizens are unaccustomed” and thus that he is a person “with a propensity to engage in wrongful, criminal or otherwise unusual behavior that would attract the attention of the police.”

Next, the court found that the evidence was inadmissible under Rule 404(b), following the Huddleston factors. The court found that the evidence was not admissible as to Scott’s identity, because Scott’s identity was not at issue. His defense was that he did not engage in a drug sale, and not that the detectives arrested the wrong person. But even if identity were disputed, that would only justify permitting the officers to testify that they had seen Scott before, not that they had had numerous lengthy conversations wit him.

The court also rejected the government’s novel argument that the officers’ familiarity with Scott would somehow free up their powers of observation to focus better on what he was doing. In fact, this argument only supported the view that the evidence went to Scott’s criminal propensity. “There is only one reason a person is better able to tell what someone he knows is doing, which is that he knows what someone he is familiar with is likely to be doing.”

The court also held that the evidence was not admissible to bolster the credibility of the detectives by explaining their actions, which the court sometimes permits to ward off a defense argument that police testimony was suspect because the officers appeared to have singled out the defendant, or that the evidence corroborated the detectives’ other testimony. Here there was no fact that could be corroborated by the officers’ having seen and spoken with Scott before.

Finally, the court found both that the district court did not engage in a full Rule 403 analysis and that, in any event, the admission of the evidence violated Rule 403.

The district court’s only comment about any possible prejudice was that the evidence would not lead the jury to conclude that Scott had been previously arrested. But that was insufficient, because Rule 404(b) covers any acts that might relate to a persons’ character, and the evidence here surely implied that Scott had had “substantial contact with the police that was not benign.” The lower court's “too narrow” view of prejudice was error. Under its own review, the circuit found “no probative value” to the evidence, and that any minimal value was “substantially outweighed by the risk of prejudice” since the testimony clearly telegraphed what Scott was “likely to be doing” - dealing drugs.

Finally, the court found that the error was not harmless. The government’s case was “not particularly strong”: the observations were made through a patrol car’s tinted windows, from a great distance, and using only the side- or rear-view mirrors. Some of the testimony was also of suspect credibility: the supposed drug sale took place in broad daylight, with no lookout, and no one noticed the obvious police vehicle nearby. Moreover, the officers did not find drugs on Scott or the alleged buyer. The evidence was also clearly important to the prosecution, which opened on it and dedicated one sixth of its summation to it. The summation was particularly prejudicial because it perpetuated the propensity argument that the officers were better able to tell what Scott was doing because, since they knew him, they knew what he was “likely to be doing.”

Formula 404

United States v. Mercado, No. 08-1017-cr (2d Cir. July 17, 2009) (Calabresi, Wesley, CJJ, Droney, DJ)


In this split decision, the court upheld the admission of Rule 404(b) evidence - prior firearms sales - on the issue of intent in a drug conspiracy trial. The majority did not delve too deeply into the facts; instead, it rather formulaically noted that the prior transactions showed how the relationship of trust between the defendant and his co-conspirator developed, and rebutted the defendant’s argument that his actions were the innocent acts of a friend. The court also found no error in the district court’s Rule 403 balancing.

Judge Droney dissented, giving a much more complete picture of the facts of the case. The charged conduct involved the defendant, Townsend, and his friends, Jones - a cooperating witness - and Winfree. On the day he was arrested, Townsend drove them on some errands, one of which was a stop for Jones to purchase cocaine, which Winfree had arranged. Jones then persuaded Townsend to go back to Townsend’s apartment, where Jones cooked the powder into crack.

Townsend was charged with a cocaine conspiracy, a crack conspiracy, and a firearms charge - there was a gun hidden in his car - but was convicted only of the cocaine charge.

The Rule 404(b) evidence was that three months before the drug transaction Jones - who was already cooperating with the government - made arrangements for Townsend to purchase a handgun, and that one month before the drug transaction Jones purchased a different handgun from him.

Judge Droney carefully deconstructed the proffered reasons for admitting the 404(b) evidence, and found them all lacking. As to “background,” he noted that “some particular aspect of the background or the relationship of mutual trust must be in issue and the proffered evidence must be particularly relevant to that issue.” He found none of those characteristics present here, since the charged drug conspiracy had “no similarity” to the prior gun sales, and Townsend’s role in the gun sales “was not offered to support a theory regarding his role in the drug conspiracy.”

The gun sales were also “not particularly relevant to the development of mutual trust between Jones and Townsend.” Townsend did not dispute that relationship, and admitted that he and Jones had known each other since childhood, had lived together for a time, and were very close at the time of the offense.

Judge Droney also found fault with the district court’s Rule 403 balancing, particularly since the court permitted the two guns themselves to be entered into evidence, which “likely contributed to the substantial prejudicial effect of the testimony regarding the gun sales. The impact of the handguns as full exhibits far exceeded their very low probative value.” Finally, he noted that the gun sales were initiated by Jones when he was already cooperating, further diminishing their probativeness as to Townsend’s intent to join in Jones’ later effort to purchase cocaine.

Judge Droney next found that both the limiting instructions and the final jury charge on the Rule 404(b) evidence were inadequate. They included “knowledge” as one of the issues on which the evidence could be considered, even though Townsend’s knowledge of Jones’ cocaine activity was not at issue at the trial. The district judge also cited an incorrect time period, potentially confusing the jury as to which acts or agreements could form the basis for the conspiracy conviction.

Finally, Judge Droney concluded that these errors affected the outcome, since the government had a weak case as to Townsend’s intent, the only disputed issue in the case. The primary evidence on that issue was the testimony of Jones, who was “hardly a credible witness.”

Bonnano Republic

United States v. Massino, No. 07-1618-cr (2d Cir. October 10, 2008) (Hall, Livingston, CJJ, McMahon, DJ) (per curiam)

Patrick DeFilippo was convicted of racketeering and other offenses in connection with his involvement with the Bonnano crime family, and the district court sentenced him to forty years’ imprisonment. He challenged two evidentiary rulings, albeit without success.

1. Mobsters are Always “Guilty as Charged”

During a recorded conversation between a Bonnano cooperating witness and DeFilippo’s co-defendant, the cooperator remarked that the feds usually charged mobsters with “nine thousand six hundred and eight-four other charges.” At trial, the government asked the cooperator why he had said this and he replied “to win their confidence.” Not satisfied with this answer, however, the prosecutor went back to the subject twice more, asking him whether he knew of anyone involved in organized crime who had ever “been charged with a crime that they were not guilty of.” The cooperator said that he did not.

On appeal, DeFilippo characterized this as improper opinion testimony. The circuit agreed, finding that the questioning seemed “designed to prompt the witness to declare that anyone linked to organized crime who is charged with a crime is in fact guilty of that crime.” This had nothing to do with DeFilippo, “did not address issues relating to” his guilt, and hence was error.

However, the court held that the error was harmless. There was substantial other evidence of DeFiloppo’s guilt, and the prosecutor did not emphasize the improper testimony in its arguments to the jury.

2. “Killing the Kids”

When cross-examining the cooperator, defense counsel attempted to show that the witness could not recall any of his recorded conversations except for the two that he testified about on direct-examination, in an effort to show that he had been coached. To rebut this, the prosecutor elicited the cooperator’s recollection that, in one conversation, other Bonnano family members discussed killing the children of anyone who cooperated against the family.

The court of appeals held that this testimony was relevant to rebut the defendant’s argument, but was “troubl[ing]” under Rule 403. The statement was “highly inflammatory” and went far beyond establishing the witness’ ability to remember other recorded conversations. Moreover, his credibility could have been rehabilitated with “any one of a number of ‘evidentiary alternatives.’” The appellate court even went so far as to conclude that the government selected this particular memory precisely for its “unfairly prejudicial” effect.

Nonetheless, it found no abuse of discretion, since the district court engaged in the proper Rule 403 balancing, and did not act arbitrarily or irrationally.

Trial by Error

United States v. Al-Moyad, No. 05-4186-cr (2d Cir. October 2, 2008) (McLaughlin, Parker, Wesley, CJJ)

Defendants Al-Moayad and Zayed were convicted in front of Judge Johnson of conspiring to provide material support to Hamas and Al-Qaeda, designated terrorist organizations. Al-Moayad was also convicted of related substantive offenses. He was sentenced to seventy-five years in prison, while Zayed was sentenced to forty-five years.

The defendants asserted that they were entrapped. Their trial, however, was marred by a string of spectacularly unfair evidentiary rulings that gravely undermined their defense. The court of appeal remanded the case for a new trial before a different judge.

Background

This case arose through the efforts of a confidential informant named Al-Anssi. In November of 2001, Al-Anssi approached the government and offered to furnish - for money - information regarding terrorism. Among ththe possible targets he mentioned was Al-Moayad, whom Al-Anssi described as the imam of a mosque, but who also ran a bakery and a school. Al-Anssi claimed that Al-Moayad supported terrorist groups. Defendant Zayed was Al-Moyad’s assistant. Although Al-Anssi demanded millions of dollars for his work, in all he was paid only about $100,000, and, in 2004, he set himself on fire outside the White House to publicize his claim that he was entitled to more money.

The FBI sent Al-Anssi to Yemen several times in 2002; the plan was to have Al-Anssi introduce the defendants to another informant, “Saeed,” who was posing as a wealthy American who wanted to donate money to support terrorist activities. Also, in September of 2002, Al-Anssi attended and videotaped a wedding hosted by Al-Moayad. At the wedding, a representative of Hamas made a speech proclaiming that, thanks to Hamas, there would be a terrorist attack in Tel Aviv that same day. And, indeed, there was - a suicide bombing on a bus.

In 2003, Al-Anssi set up a sting operation in Germany. He introduced the two defendants to Saeed, and they discussed Saeed’s anticipated donation to their causes. The defendants were arrested after a final meeting in Germany.

The Trial Errors

1. Improper Testimony

At trial, the government called Gideon Black as its final witness. He was on the Tel Aviv bus that Hamas bombed, as mentioned in the wedding speech. The district court overruled the defendant’s motions to preclude Black’s testimony and to instead allow them to stipulate that they knew that Hamas was engaged in terrorist activities. The court also permitted the government to introduce, through Black, graphic photographs and a DVD depicting the event. Moreover, the court permitted Black to testify about the horrible aftermath of bombing, not just the bombing itself, also over objection.

On appeal, the court held that the district court’s Rule 403 balancing with respect to this evidence was so skewed as to be “arbitrary.” Worse still, the district court refused to give a meaningful limiting instruction. In fact, the evidence was largely irrelevant. The defendants were not charged with any offense in connection with the Tel Aviv bus bombing. Moreover, the evidence was not necessary to show that the defendants knew that Hamas was involved in violence, because the defendants never denied knowing this. Finally, even if it were proper to admit evidence that the bombing occurred, evidence of the bombing’s aftermath was even less probative at trial and far more prejudicial.

Judge Johnson permitted other improper testimony, as well. During the government’s rebuttal case, the judge had admitted into evidence a document that purported to be an application form for a terrorist training camp. The form had been partially filled out by someone named Abu Jihad, and listed defendant Al-Moayad as his sponsor. The judge then permitted the government to call someone named Goba - who had attended the training camp - as a witness. Although the government proffered that Goba would only testify only about the form itself, in it elicited testimony that went far beyond the scope of the proffer.

Goba testified about his experiences in the training camp, including visits to the camp from Osama Bin Laden, and described speeches that Bin Laden made. In addition, during Goba’s tesitmony the government introduced an Al Jazeera news video documenting that visit.

The court of appeals again found error. First, the court noted that Judge Johnson failed to undertake a conscientious Rule 403 balancing at all, perhaps because of the government’s misleading proffer about what Goba would say. But it was clearly error to admit Goba’s testimony, particularly the parts relating to Bin Laden. This was “highly inflammatory and irrelevant and should not have been permitted.” There was, after all, no evidentiary connection between Goba the defendants.

Having held that the testimony of both Black and Goba was error, the appellate court went on to hold that error was not harmless as to the issue of the defendants’ predisposition, which went to the heart of their entrapment defense. Here, while there was some evidence of predisposition, it was not overwhelming, and much of the government’s proof on that issue was inadmissible for other reasons. Moreover, the government’s conduct with respect to Black’s and Goba’s testimony magnified the prejudicial effect. For each witness, the government repeatedly elicited testimony that was well beyond the scope of its proffer.

2. Al-Anssi’s Notes

While in Yemen, Al-Anssi took notes of his meetings with Al-Moyad and Zayed. During its examination of Al-Anssi, the government introduced those notes as substantive evidence, without any limitation. This, too, was error.

First, the notes were not properly admitted as prior consistent statements, because they were made after Al-Anssi’s motive to fabricate - his expectation that he would be paid large amounts of money by the FBI - had already arisen. Nor was the evidence admissible to rehabilitate Al-Anssi’s credibility.

Finally, the notes were inadmissible to rebut any supposed false impression created during the defendants’ examinations of Al-Anssi. It is true that redirect examination can be used for this purpose, but “otherwise inadmissible evidence can be used to rebut a false impression only if the evidence is carefully limited.” Generally, in such situations, the district court must admit the evidence for a clearly defined, limited purpose, and not for its truth. Here, by contrast, Judge Johnson admitted the notes in their entirety, for their truth, and without any limitation.

The erroneous admission of Al-Anssi’s notes was not harmless, given its effect on the defendants’ entrapment defense. Several assertions in the improperly admitted notes that were critical to the government’s predisposition case were not duplicated anywhere else. The notes were also seriously prejudicial for other reasons. They were the only evidence that Al-Moayad had a relationship with Bin Laden after the 1980's, a critical point at trial, and also suggested Al-Moayad had given material support to Hamas.

3. Improper Admission Other Evidence

The court held that the admission of other evidence, without limitation, was error.

First, the form showing that Al-Moayad had sponsored an applicant to an Al-Qaeda training camp, discussed above, was inadmissible hearsay. The court of appeals rejected the government’s argument that the form was a co-conspirator’s declaration, since there was no evidence that Al-Moayad was in a conspiracy with the person who filled out the form.

Next, it was also error to admit the wedding speech, at least without limitation. The speech was not a co-conspirator statement, since there was no evidence that Al-Moayed was in a conspiracy with the speaker.

Third, the government admitted a will found in Croatia in which the testator indicated that he was willing to die as a martyr. This, the circuit held, was hearsay, but the government used it for its truth.

These three errors, together, contributed substantially to the unfairness of the trial.

4. Cumulative Impact

Finally, the court also agreed with the defendants that the collective impact of all of the district court’s errors rendered the trial fundamentally unfair.

Comment

This case has several noteworthy features. Most importantly, it clearly illustrates the importance of preserving evidentiary errors in the district court. Every error the court reversed on was objected to by the defense attorneys, and with great specificity. That was critical here, since it is highly unlikely that the court would have reversed here on plain error grounds.


Another noteworthy feature of this case is the unusually high degree of government misconduct, both at trial and on appeal. At trial, the government repeatedly took advantage of the fact that the judge was asleep at the wheel by introducing evidence that it must have have known was improper, and by repeatedly going beyond its own proffers as to the supposedly limited purpose of the evidence. On appeal, the misconduct took a different form. As least as they were described by the circuit itself, the government made numerous arguments on appeal that seem to have been wholly without basis in law or fact.

This case also introduces a new feature: the “concurrence by footnote.” Throughout the opinion, there are footnotes revealing that Judge Wesley took a position that differed from the views of the other two judges. But he did not write separately on those points, and did not quibble with the ultimate outcome.

Finally, it is noteworthy that the circuit sent this case back to a different judge with no analysis and with none of the usual qualifications that are intended to spare the district judge’s feelings.