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.”

Stalking Points

United States v. Curley, No. 09-3314-cr (2d Cir. April 25, 2011) (Jacobs, Wesley, Chin, CJJ)

In this circuit, it is a fairly rare occurrence for a conviction to be vacated based on a Rule 404(b) error. But here, James Curley, convicted of interstate stalking offenses, will get a second bite at the apple.

Background

In 2006, Curley’s marriage to his wife, Linda, dissolved, and his behavior became increasingly bizarre. After serving her with divorce papers, he began following her, and recruiting family members to do so, as well. Linda obtained custody of their children and an order of protection. Curley did not take this all too seriously, however, since then secretly installed a GPS device on her car - a friend tracked her movements on the internet and forwarded the information back to Curley. Linda only found out about it when she had an automobile accident in New Jersey and a mechanic discovered the GPS device. This prompted Curley to drive from New York to the shop, where he lied about his identity and reasons for the visit.

In 2008, he was charged with two counts of interstate stalking and one count of interstate violation of a protective order. At trial, the district court admitted the following evidence under Rule 404(b): four incidents in which Curley was violent to Linda; (2) an incident some sixteen years earlier in which Curley’s brother, Michael, beat her and Curley told her not to report it to the police; an incident a few years later in which Michael was arrested for resisting arrest and, under pressure from Curley and Michael, Linda testified falsely at two subsequent trials; evidence relating to a 2008 traffic stop of Curley, in which he was allegedly driving a stolen rental car from which three rifles, ammunition, a bulletproof vest and ski mask, and a “last will and testament” were recovered.

As the trial unfolded, Linda testified about Curley’s prior violence and the incidents with Michael, including the forced perjury, but the district judge did not give a limiting instruction. Before the traffic stop evidence, however, the court instructed that the evidence was being offered for the “very specific purpose” of determining Curley’s “intent back at the time of the” offense. In its final charge, the court told the jury that the traffic stop evidence could be considered only on the issue of Curley’s intent, while the other evidence went only to Linda’s “reasonable fear.”

The jury convicted Curley, and he was sentenced to an above-Guideline term of sixty-three months’ imprisonment.

The Circuit’s Decision

The circuit analyzed the 404(b) evidence in three groups - Curley’s violence towards Linda; everything to do with Michael; and the traffic stop evidence. It found an abuse of discretion with respect to the latter two groups.

1. Curley’s Violence Towards Linda

First, the court found that the district court did not err in admitting Curley’s past abuse of Linda. Some of that abuse was so close in time to the charged conduct that it was “inextricably intertwined” with it, and hence “directly relevant” to Curley's intent and Linda's fear.

The abuse that occurred in earlier years was “also relevant and not unfairly prejudicial.” When a defendant is charged with domestic violence, a “history of domestic violence is relevant to show intent to harass or intimidate.” And the temporal remoteness did not preclude a finding of relevancy, since the acts collectively demonstrated a “pattern of activity that continued up to the time of the charged conduct.”

2. Linda’s Interactions with Michael

The district court erred, however, in permitting Linda to testify that Michael beat her and pressured her to lie about his resisting arrest case. This evidence was not sufficiently similar to the charged crimes to allow the jury to reasonably infer Linda’s fear, particularly since Curly was not charged with conspiring with his brother to harass or intimidate Linda. Moreover, Michael’s activities did not “parallel” Curley’s, since he was not involved in any of the charged conduct. This evidence accordingly had little probative value - one episode occurred sixteen years before the charged crimes and the other twelve - and posed a “high risk” that “evidence of Michael’s conduct would unfairly prejudice Curley.” It had no “real purpose other than to show that Michael - and not Curley - had a bad character” and thus improperly focus the jury on Curley’s “clan,” rather than on the allegations in the indictment.

Nor was the prejudice mitigated by the limiting instruction. The instruction was “not sufficient, given the low probative value of the evidence and the high risk of prejudicial effect.” The impact of the limiting instruction was also blunted by its poor timing; it came only at the end of the case - there was no contemporaneous instruction.

3. Curley’s 2008 Traffic Stop

The district court also erred in admitting evidence of the traffic stop. This evidence was admitted to show Curley’s intent and Linda’s fear, although the stop occurred some fourteen months after the charged conduct. While subsequent acts can be admitted under Rule 404(b), the temporal difference may impact the probative value of the evidence. Here, there was insufficient similarity between the traffic stop and the charged crimes. Indeed, there was no evidence that Curley’s activities on the day of the traffic stop were “related to or direced at” Linda at all. Relating the traffic stop to Linda required a “tenuous and unduly long chain of inferences without any further evidentiary guidance.” The risk of prejudice was also very high because the evidence was “significantly more sensational and disturbing than the charged crimes.” The circuit was particularly concerned about the “introduction of guns into the trial.” This was “especially troubling because it tended to show Curley was more violent and disturbed than he appeared from the other evidence.”

Here, as well, the court also found that the limiting instructions were not a cure. There was an “overwhelming probability that the jury” would be “unable to follow the court’s instructions” and the evidence was “devastating to the defense," since its primary effect was to show Curley’s “bad character” and “incite the jury.”

4. Harmless Error

The court also held that the erroneous admission of the Rule 404(b) evidence affected the outcome. “The record does not provide us with fair assurance that the erroneously admitted evidence ... did not substantially sway the jury.” The court’s reasoning is unsatisfyingly sparse, however - it simply repeats its prior holding that the 404(b) evidence was prejudicial, and notes that the government relied on it in summation.

Action Jackson

United States v. Jackson, No. 08-5151-cr (2d Cir. 2009) (McLaughlin, Katzmann, CJJ, Korman, DJ)

Here, the circuit concluded that erroneous introduction of prejudicial “other acts” evidence required a new trial.

The Facts

Police officers responding to a “shots fired” call in Queens encountered Jackson and others outside the target apartment building. Jackson fled, and has he ran, one of the officers claimed to see what looked like the butt of a gun in his pocket. Jackson was arrested later coming out of a different building. He was unarmed, but the police found a gun in a trash can in the courtyard that separated the two buildings. Jackson was charged with being a felon in possession of that gun.

The next day, the police executed a search warrant in the target apartment and found guns, drugs, bulletproof vests and cash. Jackson was not charged with possessing those items, but at 11:15 on the night before the trial was to begin, the government moved to admit them at trial, claiming it had “eye witnesses” testimony that they were his. The government claimed that the evidence was “necessary background” and would go to “opportunity, plan and lack of mistake.”

The district court admitted it, holding that evidence that Jackson was in an apartment with “that kind of armament” is “highly relevant” and “not unduly prejudicial.” Accordingly, the government called a witness who testified that, on the night Jackson was arrested, he brought her to the target apartment so that she could use the bathroom. This was the government’s only evidence tying him to the apartment. The government also introduced into evidence photographs of all of the contraband found in the apartment, as well as four actual guns.

The Evidence Was Erroneously Admitted

The circuit reversed, finding that the evidence from the apartment was “not admissible for any proper purpose.” First, it was not proper background evidence, as it was “not particularly helpful to explain the crime.” The only crime that Jackson was charged with occurred on the street, not in the apartment, and the government did not need to introduce the contents of the apartment to explain why the police were at the building, why they pursued Jackson after he bolted, or why he was charged with possessing a gun.

The court also rejected the government’s argument that the evidence was relevant to Jackson’s opportunity or motive. These matters were not really at issue at trial, since Jackson’s defense was that he did not have a gun at all. Moreover, even though evidence that Jackson had ready and contemporaneous access to guns was relevant circumstantial evidence that he possessed the gun he was charged with, the evidence the government introduced went “far beyond what was necessary for this purpose,” and the government never argued at trial that the evidence showed opportunity.

The Error Was Not Harmless

This case presented the perfect storm of harmfulness: a weak case, improper use by the government, and truly baffling limiting instructions.

First, the circuit found the government’s case to be “by no means overwhelming.” The officer who said he saw what looked like the but of a gun in Jackson’s pocket admitted on cross-examination that he was not sure it was a gun. No one saw Jackson put anything in the trash can where the gun was found, and the gun had no fingerprints on it.

The government also misused the evidence by “invit[ing] the jury to infer that Jackson at least associated with dangerous drug dealers equipped with an array of weapons who operated a narcotics business out of a residential apartment building.” In its summation the government argued that the evidence showed “exactly what was going on that day” and “who the defendant really is.”

Finally, the district court’s limiting instructions were terrible. The court told the jury that the case had “nothing to do with a narcotics charge” and that the jury should not consider the drugs “for any reason whatsoever” because they were being admitted simply to show what was found in the apartment. The circuit concluded that there was an overwhelming probability that the jury would be unable to follow an instruction to ignore the drug evidence. Moreover, the instruction only mentioned the drugs, not the guns, leaving open the possibility that the “jury might have believed that the weapons [found in the apartment] ... could contribute to a finding that Jackson possessed the gun” he was charged with. A jury is not likely to be able to follow an instruction that evidence is “merely background” where the evidence is highly prejudicial and the government puts it “at the center of the trial.” Since that was true here, the error was not harmless.

Murder, She Dotes

United States v. Young, No. 07-2729-cr (2d Cir. October 8, 2009) (Jacobs, Walker, Leval, CJJ)

Defendant Laval Farmer was a member of the Bloods street gang, charged with a 2001 gang-related murder and and 2002 gang-related attempted murder, along with various associated firearms offenses. At least three years before the charged offenses he acquired the unfortunate nickname of "Murder." At his trial the court allowed witnesses to refer to him by that name and the prosecutors to repeatedly use it in highly inflammatory ways. As a result, the court of appeals vacated the attempted murder conviction, but let the murder conviction stand based on the strength of the evidence.

Background

In July of 2001, members of a rival gang, the Crips, assaulted two members of Farmer's Bloods crew. Farmer took it upon himself to avenge the beatings. Believing that a fourteen-year-old boy wearing blue clothing was a Crip, Farmer shot and killed him. It turned out that the boy was a popular fourteen-year-old, and not a gang member.

A few months after the shooting, Farmer moved to Pennsylvania and associated with another Blood, Jaquel Patterson. Farmer and Patterson had a strained relationship; Patterson frequently disparaged Farmer's Bloods bona fides, and there were occasions where Patterson did not honor the Bloods' code of behavior during incidents involving Farmer. In July of 2002, Farmer decided to teach Patterson a lesson. He entered Patterson's bedroom with a gun, forced Patterson to apologize and plead for his life, then shot him in his body, legs, arms and face. Patterson survived.

The Trial

At trial, Farmer moved to strike the nickname "Murder" from the indictment and preclude any reference to him by that name at the trial. The district court denied these requests, and Farmer was referred to as "Murder" throughout the trial. The government referred to him by that name at least three times in its opening, and several times more in its summation, suggesting that he was trying to "live up to his name of Murder." Worse still, in the rebuttal summation the government used the name nearly thirty times, repeatedly tying it to Farmer's offense conduct.

The Appeal

On appeal, the circuit was highly critical of the government's conduct.

It first surveyed the case law on the use of nicknames, holding that a trial court need not preclude the use of a suggestive nickname where "it help[s] to identify the defendant, connect him to the crime, or prove other relevant matter, or when coherent presentation of the evidence entail[s] passing reference to it," as long as the name's probative value outweighs its potential for prejudice.

Here, it was error for the district court to permit the government to elicit testimony of Farmer's nickname, except for references by witnesses who knew him by that name. Farmer's identity was not at issue and his nickname had "no legitimate relationship to the crimes charged." Rather, the name strongly suggested "a propensity to commit particularly heinous crimes, including the very offenses charged in the indictment."

But the more serious problem here arose from the "prosecutors' frequently repeated, gratuitous invocation of Farmer's nickname in their addresses to the jury, uttered in a context that, in effect, invited the jurors to infer that the defendant had earned the nickname among his gang colleagues as a a result of his proclivity to commit murder." Here, the government's conduct amounted to a "flagrant abuse." Even so, however, the court did not grant Farmer a new trial on every count.

The 2001 murder was "supported by such overwhelming evidence that conviction was a certainty." For the 2002 attempted murder, however, the evidence was "far less conclusive." The shooting was not witnessed, and it was plausible that Farmer acted in self-defense. Alternatively, there was a view of the evidence that Farmer shot Patterson to settle a personal score, not to elevate his status within the Bloods, as required by the statute of conviction. The court accordingly vacated the counts associated with the attempted murder and remanded the case for a new trial on those counts only.

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.”

Shipping Bricks

United States v. Bermudez, No. 06-5119-cr (2d Cir. June 17, 2008) (Walker, Calabresi, CJJ, Underhill, DJ)

Richie Bermudez was convicted, after a jury trial, of being a felon in possession of a firearm. On appeal, he challenged an evidentiary ruling, as well as the district court’s jury selection method.

The Evidentiary Ruling

Police officers were watching Bermudez on the street in a high-crime area of the Bronx. The officers were in an unmarked car, and three of them overheard him tell an associate that he had “fresh bricks back at his apartment.” Shortly thereafter, they saw him open the trunk of his car and give a gun to someone named Delgado, at which point both were arrested. Delgado pled guilty to gun possession, was sentenced to seventy months’ imprisonment, and did not appeal.

Bermudez went to trial, and his first jury hung. At the retrial, he introduced Delgado’s testimony from a suppression hearing, where Delgado indicated that Bermudez was not the source of the gun. Nevertheless, he was convicted, and received the same sentence, seventy months, as Delgado.

On appeal, he challenged the admission of the drug-related statements as only marginally probative, and highly prejudicial. A majority of the panel disagreed. Since the entire defense theory was that the police were lying, the majority concluded that it was “important” for the government to establish why the police had focused on Bermudez that night. “Without a reasonable explanation for singling out Bermudez, the officers’ testimony as to everything that followed could have been suspect.” In addition, the district court gave two “detailed limiting instructions” that the “jury could reasonably be expected to comply with.”

In an extremely nuanced and thoughtful opinion (of the sort not typically seen in this circuit when it comes to Rule 404(b)), Judge Underhill dissented. He viewed the drug statements as improper “bolstering evidence” and noted that the district court did not rely on credibility in admitting them. “Simply offering an alternative version of events (or here, merely anticipating that the defense will do so) does not amount to a defense attack on the credibility of government witnesses, and certainly does not justify the admission of bolstering evidence during the government’s direct examination.”

Bermudez’ drug dealing was not “relevant to any of the substantive issues in this felon-in-possession gun case.” Here, although the majority make this clear, the government had called Bermudez a drug dealer in its opening, and had all three officers to testify about the drug statement before their credibility had been attacked by the defense. To this judge at least, permitting the government to preemptively bolster its witnesses’ credibility before it had even been challenged was both improper and unprecedented.

Not only did Judge Underhill view the evidence as irrelevant, he found that its probative value was surpassed by its prejudicial potential. “In my view, the officers’ motivation for watching Bermudez was entirely irrelevant, unless and until Bermudez attacked their credibility on the ground that they were not motivated to watch him,” which he never did.

Jury Selection

Bermudez also challenged the so-called “blind strike” method of jury selection, under which the parties simultaneously exercise their peremptory challenges, and thus do not know which jurors the other has struck. Here, since during one round, he and the government struck the same juror, he argued that he was deprived of the full use of his allotted number of challenges.

The circuit disagreed. The Supreme Court approved of this method in 1894, and there has been no intervening change in the law.