United States of America v. Barnason et al, No. 1:2010cv03335 - Document 129 (S.D.N.Y. 2012)
Court Description: OPINION re: 102 MOTION in Limine to Admit Evidence Pursuant to Rules 415 and 404(b) of the Federal Rules of Evidence filed by United States of America and 99 MOTION in Limine filed by Steven Katz, Stanley Kats: For the reasons set forth wi thin, the Plaintiffs are permitted to introduce evidence concerning Barnason's status as a Level III sex offender, but evidence concerning the factual details underlying Barnason's 1986 and 1987 convictions may not be admitted. Evidence concerning the 2004 encounter between Barnason and Vasquez is admissible. (Signed by Judge Robert W. Sweet on 2/9/2012) (ab)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -- -X UNITED STATES OF AMERICA[ 10 Civ. 3335 Plaintiff[ OPINION and CAROL ENGLE, VIRGINIA MONCADA [ STACIE EDWARDS-MELCHOR[ KIMBERLY SMITH[ and AMY MARTLETT [ Intervenor Plaintiffs t -against- WILLIAM BARNASON and STANLEY KATZ [ as Owner and Manager of 144 West 73rd Streett 140 West 75th Streett and 142 West 75th Streett New York[ New York[ and STEPHEN KATZ t Defendants. ----"X A P PEA RAN C E S: At for Plaintiff PREET BHARARA United States Attorney for the Southern District of New York 86 Chambers Stt 3rd Floor New York t NY 10007 By: Tara M. LaMorte t Jeannette A. Vargas [ Esq. Attorney for Defendant Stanley Katz LAW OFFICE OF DEWEY GOLKIN, ESQ. SS Liberty Street, Suite 17C New York, NY 10005 By: Dewey Golkin, Esq. At GOULD & BERG, LLP 222 Bloomingdale Road White ains, NY 10605 By: Jane Ius Gould, Esq. z Sweet, D.J. Defendants Stanley Katz ("Stanleyn) and Stephen Katz ("Stephen~ and, with Stanley, the "Katz Defendants") have filed a motion in limine seeking to preclude introduction of, or reference to, evidence of Defendant William Barnason's ("Barnason" and, with the Katz Defendants, the "Defendants") status as a Registered Level III sex fender, Barnason's 1986 conviction of the crime of attempted sexual abuse in the first degree, Barnason's conviction in 1987 of the crime of rape in the first degree and sodomy in the first degree and the acts underlying both the 1986 and 1987 convictions. The Katz Defendants have also sought to preclude introduction of evidence related to an leged 2004 encounter between Barnason and Luz Vasquez ("Vasquez") during which Barnason allegedly groped Vasquez. The United States of America (the "Government filed its own motion lf ) has limine to admit evidence related to Barnason's prior sexual assaults pursuant to Fed. R. Evid. 415 and 404(b). Government seeks to admit evidence that the Katz Defendants had knowledge that Barnason is a Level III sex fender and to use Barnason's prior sex crimes as 1 sposition to commit sexual evidence of his motivation and assaults and his lack of ef ctive inhibitions against acting on such impulses. Upon the conclusions set forth below, the Plaintiffs are permitted to introduce evidence concerning Barnason's status as a Level III sex offender, but evidence concerning the factual details underlying Barnason's 1986 and 1987 convictions may not be admitted. Evidence concerning the 2004 encounter between Barnason and Vasquez is admissible. Prior Proceedings On April 20, 2010, the Government filed a complaint against Barnason and Stanley, seeking monetary damages, civil penalties, punitive damages, and injunctive relief to enforce the Fair Housing Act, 42 U.S.C. Government's complaint Level III sex §§ 3601, et ~ The leged that Barnason, a registered fender, was employed by Stanley as superintendent of various apartment buildings and that, during his time as superintendent, female tenants were the victims of repeated sexual harassment by Barnason and 2 Stanley. The complaint alleged that Barnason, who has access to the tenants' apartments, routinely demanded to have sexual relations with female tenants, and that if his sexual demands were not complied with, Barnason withheld mail delivery and apartment repairs or threatened tenants with eviction. Stanley was alleged to have been aware of Barnason's conduct and refused to take meaningful steps to address the legations, despite receiving multiple complaints of sexual harassment. Barnason and Stanl were both alleged to have conditioned rental fees on sexual favors to Barnason. On July 9, 2010, Carol Engle, Virginia Moncada, Stacie Edwards-Melchor, Kimberly Smith and Amy Martlett (the "Intervenor- aintiffs" and, with the Government, the "Plaintif filed their intervenor complaint. ff) The Intervenor-Plaintiffs are female tenants who resided in the buildings Stanley owned where Barnason worked as the superintendent. In his answer to the Intervenor-Plaintiffs' complaint, Stanley asserted three counterclaims against the Intervenor-Plaintiffs, including libel, destruction property and conspiracy to defraud rent. 3 On December 10, 2010, Stanley filed a motion for summary judgment, contending that that prior lit ion the Housing Part of the Civil Court of the City of New York and case. doctrine of res judicata precluded the Government's Because res judicata had not been established, the motion was denied on June 2, 2011. On July 28, 2011, the Government moved to amend its complaint to include Stephen Katz ("Stephen") as a defendant. The amended complaint alleged that Stephen, the son of Stanley, became manager of the apartment buildings 2009, and since taking over daily management July the buildings, Stephen subjected female tenants to a hosti environment by repeatedly subjecting them to vulgar and offensive epithets because the gender. The Government's motion to amend was granted. On August 3, 2011, the Intervenor-Plaintiffs filed a motion for judgment on the pleadings regarding Stanley's first and third counterclaims. On December 9, 2011, Intervenor Plaintiffs' motion, whi was converted to a motion for summary judgment, was denied. 4 On December 16 2011 1 both the Government and the 1 limine. Katz Defendants filed the instant motions The motions were heard and marked fully submitted on February 11 2012. The Facts On September 16 1 1986 1 Barnason l having been indicted for sexual abuse in the first degree l pled guilty to the crime of attempted sexual abuse in the first degree in the County Court of Suffolk County. guilty plea l As a result of this Barnason was sentenced to and indeterminate sentence of one and one-half to three years imprisonment. One year later l on September 16 1 1987 1 Barnason l having been charged with three counts of rape in the first degree and eight counts of sodomy in the first degree I pled guilty to three counts of rape in the first degree and one count of sodomy in the first degree in the County Court of Suffolk County. For these crimes l Barnason received an indeterminate sentence of imprisonment of ten to twenty years. The relevant facts of the present civil case are set forth in detail in the Court1s June 5 21 2011 opinion denying Stanley's motion for summary judgment. See United States v. Katz, No. 10 Civ. 3335, 2011 WL 2175787, at *1-4 (S.D.N.Y. June 2, 2011). Familiarity with those facts is assumed. The Applicable Standard A. Fed. R. Evid. 415 In general, "propensity" evidence is inadmissible. See Fed. R. Evid. 404(b) ("Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character."). However, an exception exists for cases involving sexual abuse and child molestation. See Fed. R. Evid. 413-415i Doe ex reI. Glanzer v. Glanzer, 232 F.3d 1258, 1267-68 (9th Cir. 2000) ("Fed. R. Evid. 415 R. Evid. 413 . . together with its companions Fed . . and Fed. R. Evid. 414 . . was passed to make an exception to Fed. R. Evid. 404(b), which imposed a blanket prohibition on propensity evidence.") LeCompte, 131 F.3d 767, 769 (8th Cir. 1997) 6 i (citing U.S. v. U.S. v. Meacham, 115 F.3d 1488, 1491 (10th Cir. 1997)). Fed. R. Evid. 415 provides, in relevant In a c 1 case involving a claim for reI f based on a party's leged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided Rules 413 and 414. Evidence that is offered pursuant to Fed. R. Evid. 415 must still be subjected to the balancing test provided in Fed. R. Evid. 403, and the Court is obligated to weigh probat value the evidence against the danger of unfair prejudice and confusion and considerations of undue delay. See Morris v. Eversl ,No. 00 . 8166DC, 2004 WL 856301, at *2 (S.D.N.Y. Apr. 20, 2004) While some appellate courts have imposed judicially craf consideration rules as to dist ct judges' evidence under Fed. R. Evid. 415, the Second rcuit has instructed district courts to apply Fed. R. Evid. 403 less stringently to avoid having Rule 403 preclude evidence Congress intended to make admissible. States v. Larson, 112 F.3d 600, 604 See United (2d Cir. 1997) ("With respect to the Rule 403 balancing, however, the [congressional] sponsors stated that \ [t]he presumption is the evidence admissible pursuant to these rules [Fed. R. 7 Evid. 413-15] is typically relevant and probative, and that its probative value is not outweighed by any risk of prejudice. '") Cir. 2010) i see also Martinez v. Cui, 608 F.3d 54, 60 (1st (recognizing the Second Circuit in Larson as one of the Courts of Appeals that has instructed its district courts to apply a more inclusive standard in its Rule 403 analysis of Rule 415 evidence). Fed. R. Evid. 415 has been held to be applicable to claims against employers, "without regard to whether the alleged victim or person accused is a party to the litigation." James v. Ti , 194 F.R.D. 398, 401 (D. Conn. 1999). B. Fed. R. Evid. 404 (b) Fed. R. Evid. 404(b) provides: Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. . This evidence may be admiss for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. 8 Fed. R. Evid. 404(b). "Evidence of prior criminal conduct is Evidence 404(b) and 403 if admissible under Federal Rules it is relevant to an issue at trial other than the defendant's character, and if its probative va substantially outweighed by the sk unfair prejudice." United States v. Williams, 205 F.3d 23, 33 (c is not (2d Cir. 2000) ing United States v. Livoti, 196 F.3d 322, 326 (2d Cir. 1999)). Under the "inclusionary" approach to the rule followed by this circuit, such evidence "is admissible for any purpose other than to show a defendant's criminal propensity./J United States v. Roldan 804 (2d Cir. 1990) , 916 F.2d 795 (citing United States v. Harris l 1 733 F.2d 994, 1006 (2d Cir. 1984». Evidence Concerning Barnason's Status As A Level III Sex Offender And The Factual Details Of The Crimes Underlying Barnason's Prior Convictions The Government 1 pursuant to Fed. R. Evid. 415 and Fed. R. Evid. 404(b), seeks to admit evidence concerning Barnason's status as a Level III sex offender and the factual details underlying Barnason/s 1986 and 1987 convictions to prove Stanl 's intent to violate the Fair Housing Act, rebut the Katz Defendants' argument that the victims fabricated 9 their claims in response to eviction proceedings and establish Barnason/s propensity to commit the types of acts leged. The Defendants seek to preclude the introduction of this evidence I highlighting the age of the convictions and contending that the danger of prejudice outweighs the probat value of this evidence. The Defendants also state that the evidence is not admissible under Fed. R. Evid. 415 because the acts alleged do not fall under the definition of "sexual assault" as provided in Federal Rules of Evidence. A. Fed. R. Evid. 415 Is Applicable To The Present Action As an initial stepi must first be determined whether Fed. R. Evid. 415 is applicable. As noted above I in "a civil case involving a claim for relief based on a party/s alleged sexual assault or child molestation l the court may admit evidence that the party committed any other sexual assault or child molestation. as provided in The evidence may be considered es 413 and 414." Fed. R. Evid. 415. R. Evid. 413(d) defines "sexual assault:" 10 Fed. In this rule and Rule 415, "sexual assault" means a crime under federal law or under state law . involving: (1) any conduct prohibited by 18 U.S.C. chapter 109Ai (2) contact, without consent, between any part of the defendant's body - - or an object and another person's geni s or anusj (3) contact, without consent, between the fendant's genitals or anus and any part of another person's body; (4) deriving sexual pleasure or gratification from infl ing death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)-(4). There is no dispute that Barnason's 1986 and 1987 convictions fall under Rule 415's definition of "sexual assault or child molestation." However, the parties disagree concerning whether the acts alleged in the present action constitute "sexual assault." According to the Defendants, because the sexual acts the Government alleges were consensual, they do not qualify as instances of "sexual assault," thereby rendering Rule 415 inapplicable. The Defendants also dispute the Government's use of Title 18 to establish "sexual assault" in this case, as all of the sections in language limiting tIe 18 begin with applicability of the section to those 11 "in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any . facility of . . which persons are held in custody by direction any Federal department./I According to the tIe 18's Defendants, the acts alleged do not fall within jurisdictional scope. Although there are multiple instances of sexual assault alleged, there is at least one instance where the evidentiary record establishes the conduct at issue to under Rule 413's definition of "sexual assault. H I In her deposition testimony, Intervenor Plaintiff Kimberly Smith described an interaction in which Barnason entered Ms. Smith's apartment, removed her bathrobe and performed oral sex: Q: So, you ran into him in the hallway? A: That's correct. Q. Okay. And how soon after you both walked into the apartment did he take off your robe? A. Almost immediately. Q. Had you said anything at that point in time? A. I don't recall saying anything really, the conversation was, it was just happened very quickly, very aggressively. Before I knew I was on the bed, back on the bed and I was afraid of him. I wanted to just say, hey, no, no, get away, but I was afraid of him. Q. Were you physically afraid of him? 12 A. Yes. Q. Did you say anything during this encounter with him? A. No. Q. Approximately how long did the encounter last? A. Fifteen minutes, 10, 15 minutes. Q. Did you make any attempt to physically push him away with either your hands or your legs at that time? A. Probably, yea, urn-hum. I said no, no, no, no, I don't, no, no uh. Q. And I remember earlier you said you thought because you had your period you were safe. Had you communicated that to him? A. I did. Q. SO, you did. What did you say to him? A. I said I have my period. Q. And did he say anything in response? A. No, he just opened up my robe and, you know. I said no, no, no, no, don't, don't, no. Smith Dep. at 48-50. Because Intervenor-Plaintiff Smith's deposition testimony establishes an instance of "contact, without consent, between any part the defendant's body or an object - - and another person's genitals or anus," Fed. R. Evid. 413(d) (2), the evidentiary record includes sufficient evidence of "sexual assault" so as to make Fed. R. Evid. 415 applicable to the present action. B. Evidence Of Barnason's Status As A Level III Sex Offender Is Admissible Evidence of Barnason's status as a Level III sex offender is admissible to establish both the Katz Defendants' 13 level of intent, recklessness or negligence and state of mind as well as Barnason/s propensity to commit the alleged acts. The Plaintiffs seek to hold Stanley both directly and the Fair Housing Act vicariously liable for violations l which prohibits discrimination in housing on the basis of sex. See 42 U.S.C. § 3604(b). To prove direct liability for Barnason/s harassment of his tenants l Stanley acted with tortious intent meaning Stanley intended 1 it must be shown that for Barnason to engage in the discriminatory conduct. Burl 2257 1 Indus. v. Ellerth 141 L.Ed.2d 663 l See 524 U.S. 7421 758, 118 S.Ct. (1998). Stanley can also be held cariously liable if he "knew or should have known about the conduct and failed to stop at 759, or l Indus. 1 524 U.S. if Barnason's acts were found to be outside of the scope of his employment 1 if Stanley acted recklessly or negligently. Id. at 757-58. Especially in light of the fact that Stanley is alleged to have received complaints from female tenants l evidence that Stanley had knowledge of Barnason/s criminal history and his status as a Level III sex offender is relevant to evaluat recklessness or negligence. 14 Stanley/s level of intent 1 With respect to Stephen, the Plaintiffs intend to prove that Stephen created a hostile housing environment. See Rich v. Lubin, No. 02 Civ. 6786 (TPG) , 2004 WL 1124662, at *4-5 (S.D.N.Y. May 20, 2004). Stephen's knowledge of Barnason's sex offender status is relevant to determining whether he took appropriate action regarding complaints about Barnason's conduct when became manager of the apartment buildings in July 2009. Furthermore, the Plaintiffs intend to seek punitive damages. In a discrimination context, the question of punitive damages general focuses on a defendant's "malice or reckless indifference to the federally protected rights." ~C~o.~n=n~e~l~__ v~._B~i~d~e_r_m_a~nn~I~n~d~u~s~.~~I~n~c~., __ (S.D.N.Y. 1999) 56 F. Supp. 2d 360 t 369 (addressing punitive damages in ADA actions) "[T]he terms 'malice' and 'reckless t ultimately focus on actor's state mind." Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999). Stanley can be held vicariously liable for punitive damages in his role as Barnason's employer, if it can be shown, for example, that he "authorized" Barnason's acts, that Barnason "was unfit and [Stanley] was reckless in employing him t " or that he "ratified or approved" Barnasonts acts. 15 Restatement (Second) of Agency, § 527 U.S. at 542-43. 217C, cited with approval in Kolstad, Evidence of Barnason's sex offender evant to status is question punitive damages, as this evidence is highly probative of the state of mind of the Katz Defendants. With respect to Barnason, evidence concerning the fact that he is a Level III sex offender can be used to establish his propensity to commit the alleged acts. As noted above, Fed. R. Evid. 415 is applicable to the present action and, whi Rule 404(b) generally prohibits the introduction of prior crimes to establish a defendant's propensity to commit an alleged act, Rule 415 creates an exception to this Rule 404(b) prohibition. F.3d at 1267-68; at 1491; see ~~~~~, See Glanzer, 232 131 F.3d at 769; Meacham, 115 F.3d so Larson, 112 F.3d at 604. In addition to being relevant with respect to the Katz Defendants' state of mind and Barnason's propensity, evidence of Barnason's sex offender status is to the credibility of potential witnesses. so relevant Courts have previously held that evidence of prior sex crimes can be admitted to bolster or undermine witnesses' credibility. 16 See, e.g., United States v. McGuire, 627 F.3d 622, 627 (7th r. 2010) (allowing testimony of other minors, besides the one whom the defendant was charged with molesting, noting that "[t]he evidence was material because the defense was that [the victim in the charged offense] was a 1 ."); United States v. Batton, 602 F.3d 1191, 1198 (10th Cir. 2010) ("Batton [the defendant] claimed at trial that he did none of which J.D. the acts [the victim] accused him, making the 1995 conviction a crucial piece of evidence to help the jury determine the validity of J.D.'s accusations."). Notwithstanding Fed. R. Evid. 415, a court must still perform Rule 403's balancing test and evaluate whether the probative value of the evidence outweighs the danger of unfair prejudice. noted above, See Morris, 2004 WL 856301, at *2. As Second Circuit applied a presumption that the probative value of evidence of past sexual assaults is not outweighed by risk of unfair prejudice. States v. Davis, 624 F.3d 508, 512 (2d Cir. 2010) 112 F.3d at 604. See United i Larson, Here, the likelihood that admission of the Katz Defendants' knowledge of Barnason's status as a Level III sex offender will result in unfair prejudice against them is minimal, as the evidence concerns Barnason's previous 17 conduct and does not involve the Katz Defendants. With respect to Barnason, the danger of undue prejudice is limited by the fact that only his status as a Level III sex offender may be admitted, not the factual details underlying his previous convictions. The fact that Barnason's convictions occurred in the mid-1980s does not diminish the probative value of the evidence, as Congress explicitly rejected imposing any time limit on prior sex offense evidence. Larson, 112 F.3d at 605 See ("Neither Rule 403 nor any analogous Rule provides any bright line rule as to how old is too old."); see also 140 Congo Rec. S12990 ("No time limit is imposed on the uncharged offenses for which evidence may be admitted; as a practical matter, evidence of other sex offenses by the defendant is often probative and properly admitted, notwithstanding substanti lapses of time in relation to the charged offense or offenses. H ). As such, Fed. R. Evid. 403 provides no basis upon which to exclude introduction of Barnason's status as a Level III sex offender. Because Fed. R. Evid. 415 applies and because the probative value of the evidence outweighs the danger of 18 prejudice, evidence of Barnason's status as a Level I I I sex offender is admissible. C. Evidence Concerning The Underlying Details Of Barnason's Previous Crimes Are Inadmissible As noted above, although Barnason committed acts of sexual as aintiffs state that t, the Defendants contend that the alleged sexual act ty between Barnason and the building tenants was consensual. The Government that Congress passed Rule 415 to address precisely this type of situation and that the circumstances underlying Barnason's past crimes are admissible under Rule 415 to prove that Barnason sexually assaul The 1 s the victims in this case. ive history of Fed. R. Evid. 415 can serve to reveal Congress' intent: Another ground for consideration is probability. For example, consider a rape case in which the defense attacks the victim's assertion that she did not consent, or represents that the whole incident was made up by the ctim. If there is conclusive evidence that the defendant has previous engaged in similar acts - such as a prior conviction the defendant for - then defense's claim of consent or fabrication would normally amount to a contention that the victim made up a false charge of inst a person who just happened to be a rapist. The inherent improbability of such a coincidence s similar crimes evidence a high 19 degree of probative value, and supports its admission in such a case. 137 Congo Rec. 84925 1 ed. Apr. 24, 1991) i see 4928 also 137 Congo Rec. S3191, 3240 (daily ed. Mar. 13, 1991) Cleveland V. KFC Nat. . CO' ~------------~----------~~------- Ga. 1996) I 948 F. Supp. 62 1 i 64-65 (N.D. (citing Rule 415 / s legislative history). The Government contends that there are substantial simi between the circumstances surrounding Barnason/s t previous sex crimes and sexual assaults the present action that render the nature of Barnason/s previous assaults probat of whether he committed the instant offenses. These similarities include the fact that cases Barnason/s victims were his neighbors vict were vulnerable I he engaged in the all his ctims l both sets of I that Barnason's that Barnason was intoxicated when conduct and both current and former l Barnason claims are lying. The Government contends that the circumstances Barnason's past sexual crimes should be admitted under Rule 415 because the similarities between Barnason's previous crimes and current accusations establish Barnason's propensity to commit crimes alleged here. 20 However, a review the Division of Parole's Comments/Supervision Plan from 2000 reveals differences between conduct alleged underlying Barnason's 1986 this case and conduct 1987 convict Barnason's crimes in the 1980s involved sexual acts aga In one case, Barnason fondl visited children. the buttocks of young girl who s home to trade stickers with Barnason's daughter. In the second case, one victim described how she and three friends were playing in bedroom of Barnason's daughter. Barnason entered and began playing "doctor" with the children, instructing them to remove their pants. did, Barnason removed his pants, touched geni s and requested they touch him. When they children's The Division Parole report also states that Barnason vaginally and anally penetrated each of the children. There is a dearth of case law this Circuit concerning how district courts should apply Fed. R. Evid. 415, cf. Glanzer, 232 F.3d at 1268 (providing a three-step inquiry in applying Fed. R. Evid. 415 and factors to consider applying Rule 403's analysis to Rule 415 evidence), and it is unclear how the dissimilarities 21 tween Barnason's prior crimes and the conduct alleged here affect Rule 415's applicability. However, it is "universal among the courts of appeals [] that nothing in Rule 415 removes evidence admissible under that rule from Rule 403 scrutiny./I Martinez, 608 F.3d at 60. As noted above, the Second Circuit has held that Rule 403 should be applied less rigorously in evaluating Rule 415 evidence to avoid Rule 403 from precluding evidence Congress intended to make admissible. See Larson, 112 F.3d at 604; see also Martinez, 608 F.3d at 60 (citing Larson and noting that some circuits "have instructed district courts to apply Rule 403 less stringently, at least in some cases, to avoid having Rule 403 swallow evidence Congress clearly intended to make admissible./I) . Recently, the Second Circuit evaluated whether a dist ct court appropriately applied Rule 403 to evidence of a defendant's previous sex crimes. Davis, 624 F.3d 508 (2d Cir. 2010). moved to have certain of the See United States v. In Davis, the Government fendant's prior convictions admitted into evidence, namely a 1991 conviction for sodomy by forcible compulsion and 2007 convictions for numerous offenses including sexual assault, rape and kidnapping. 22 Id. at 511. The dist ct court applied Fed. R. Evid. 414, which like Fed. R. Evid. 415 addresses the admissibility of prior sex crimes, and granted the motion In part and denied it in part. The Court admitted the 1991 conviction, but encouraged a stipulation that redacted the fact that the victim was the defendant's daughter, and the Court precluded the 2007 conviction because "the details of that offense conduct are so likely to lame the jury" that "its potential for prejudice, undue prejudice, is very high." Id. The Second Circuit, acknowledging its decision in Larson that prior convictions' prejudici value would normally not be outweighed by the risk of prejudice, endorsed the district judge's approach: The calibration necessary to distinguish 'highly' prejudicial from 'unfairly' prejudicial will often be difficult to determine. In this case, the Dis ct Judge demonstrated his concern for the issue by excluding the 2007 convictions and encouraging the stipulation that redacted from the record the explos fact that the victim of the 1991 conviction was the Defendant's daughter . . at 512. 23 In comparing the present action to the Davis case, the facts underlying Barnason's 1986 and 1987 convictions, including the fact that his daughter was involved in each offense, are similarly "explosive." Additionally, the probative value of the facts underlying Barnason's prior convictions is limited, as the prior crimes involved the sexual molestation of children Barnason met through his daughter, while the present crimes involve Barnason's alleged sexual assault of women he met at his place of business. Furthermore, the acts alleged in the instant action are dissimilar from Barnason's previous crimes. The limited probative value of the evidence, when balanced against the high potential for undue prejudice, renders the factual details underlying Barnason's 1986 and 1987 convictions inadmissible under Fed. R. Evid. 403. D. Evidence Concerning Barnason's Level III Sex Offender Status Is Also Admissible Pursuant To Rule 404(b) In addition to Fed. R. Evid. 415, the Government seeks to admit Barnason's sex offender status pursuant to Fed. R. Evid. 404(b). Rule 404(b) permits introduction of "[e]vidence of a crime, wrong, or other act" so long as such 24 evidence is not offered "to prove a person's character in order to show that on a parti ar occasion the person acted in accordance with the character." Fed. R. Evid. 404(b). Such evidence is admissible to prove "motive, opportunity, intent, preparation, plan, , identity, absence of mistake, or lack of accident." the Second Circuit's" Id. As noted above, under ionary" approach, evidence of other crimes, wrongs, or acts is admissible for "any purpose other than to show a de 's criminal propensity." Roldan-Zapata, 916 F.2d at 804. The Plaintif 'seek to introduce evidence of Barnason's Level III sex offender status against Katz Defendants for contemplated within Rule 404(b). With respect to ey, the Government seeks to admit this evidence to demonstrate that his intent, recklessness or negligence superintendent Defendants, a Level III sex offender to his buildings. With respect to both Katz Government is seeking to introduce this evidence to establish the Katz Defendants' ent, recklessness or negligence when they allegedly refused to take adequate steps to protect female tenants, notwithstanding their knowledge of complaints and Barnason's 25 status. sex of Because this evidence is being admitted for purposes of establishing the Katz Defendants knowledge and I Barnason/s status as a Level I I I sex offender is I admiss against With re Katz Defendants under Rule 404(b). to Barnason l Fed. R. Evid. 415 and its legislative history establish Congress evidence of a defendant/s prior s dence. applicable to the low crimes to be admissible notwithstanding Rule 404(b) on "propensityll intent to I IS general prohibition AccordinglYI Rule 404(b) is not aintiffsl ef s to admit dence of Barnason/s status as a Level I I I sex offender against Barnason. Evidence Concerning Barnason's Alleged Assault Of Vasquez Is Admissible During discoverYI Government deposed Vasquez l who resided in one of the apartment buildings at issue in this case for a period of approximately testified while under I years. Vasquez on one occasion in August 2004, Barnason l influence alcohol, groped Vasquez l breasts and attempted to push her into her apartment. 26 Vasquez testified that she kicked Barnason in the groin and entered her apartment without Barnason lowing her. After the incident, Vasquez allegedly complained to Stanley and threatened to call the police. Barnason later showed up intoxicated at Vasquez' place oyment, where he allegedly continued to physical harass Vasquez. The Katz Defendants seek to lude evidence ated to this August 2004 encounter, contending that Fed. R. Evid. 415 does not apply because the conduct alleged in present action does not constitute " def Fed. R. Evid. 413(d). assault" as The Katz endants further state that the probative value of this by is outweighed danger of unfair prejudice, as the regarding 2004 incident is unnecessary considering PI if can call other witnesses to the i their case. Fair Housing Act makes it unlawful "[t]o discriminate t any person in the terms, conditions, or privi or rental of a dwelling, or in the provision ces or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(b) 27 The Government, in its amended complaint and possibly earlier l has alleged that "since at least 2004 1 through approximately March 23 1 1 2010 1 Defendants Stanley Katz and Barnason have sUbjected numerous female tenants living in the Properties to severe and pervasive sexual harassment verbal sexual advances l ll ll l 1 which included "unwanted "unwanted sexual touching l "unwanted sexual language / " "conditioning the terms conditions of sexual favors or inebriated l ll l ll l granting and privileges of women/s tenancy on l unwelcome "attempting to enter dwellings while drunk demanding sex "granting and denying tangible ll l housing benefits based on sex ll l and "taking adverse action against female tenants when they refused or objected to Barnason s sexual advances. l /I Am. Compl. , 20. The Government has stated its intention to prove its case by introducing evidence at trial that August 2004 1 l inter alia l in late Barnason physically attacked Vasquez while he was intoxicated push her into The Government l groped her inappropriatelYI attempted to apartment called her so intends to establish fensive names. Stanley had notice of the 2004 incident yet took no action to remove Barnason from his position. 28 Notwithstanding the Katz Defendants' characterization of the August 2004 incident as a prior act, the Government's amended complaint establishes that Barnason's 2004 encounter with Vasquez is part of the Plaintiffs' Act. sent action brought under the Fair Housing Barnason's alleged conduct toward Vasquez falls wi the ambit amended complaint, as the encounter provides evidence of a female tenant who was sexually harassed by Barnason when he subjected her to unwanted sexual advances, unwanted touching, unwanted sexual language and attempted to enter her apartment while intoxicated. The evidence is probative of the Government's Fair Hous claims, and the probative Act of this evidence is not outweighed by any danger of r prejudice. Accordingly, evidence concerning the alleged 2004 encounter between Barnason and Vasquez is admissible. Conclusion Based on the s and conclusions set forth above, the Plaintiffs are permitted to introduce evidence concerning Barnason's status as a Level III sex of , but evidence concerning the factual details underlying Barnason's 1986 and 29 1987 convictions may not be admitted. Evidence concerning the 2004 encounter between Barnason and Vasquez is admissible. It is so ordered. New York, NY February ~ , 2012 ROBERT W. SWEET U.S.D.J. 30
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