USA v. Bermudez, No. 06-5119 (2d Cir. 2008)
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06-5119-cr USA v. Bermudez 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2007 (Argued: March 10, 2008 Decided: June 17, 2008) Docket No. 06-5119-cr -----------------------------------------------------x UNITED STATES OF AMERICA, Appellee, -- v. -RICHIE BERMUDEZ, Defendant-Appellant. -----------------------------------------------------x B e f o r e : WALKER, CALABRESI, Circuit Judges, and UNDERHILL, District Judge.* 22 Appeal by Defendant Richie Bermudez from a judgment of 23 conviction, entered in the United States District Court for the 24 Southern District of New York (Gerard E. Lynch, Judge), for being 25 a felon in possession of a firearm, in violation of 18 U.S.C. § 26 922(g)(1). 27 admitting police testimony as to drug-related statements made by 28 defendant; that the blind strike method of jury selection is 29 both constitutional and consistent with Federal Rule of Criminal 30 Procedure 24(b); and that comments made during the government s 31 closing arguments were not unfairly prejudicial. 1 2 We conclude that the district court did not err in * The Honorable Stefan R. Underhill, United States District Judge for the District of Connecticut, sitting by designation. -1- 1 AFFIRMED. 2 Judge UNDERHILL dissents, in part, in a separate opinion. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ROGER BENNET ADLER, New York, N.Y., for Defendant-Appellant. LISA R. ZORNBERG, Assistant United States Attorney, of counsel, (Jonathan S. Kolodner, Assistant United States Attorney, of counsel, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee. JOHN M. WALKER, JR., Circuit Judge: 17 Defendant-Appellant Richie Bermudez appeals from his 18 conviction on one count of possession of a firearm after having 19 previously been convicted of a felony, in violation of 18 U.S.C. 20 § 922(g)(1). 21 grounds that the district court (Gerard E. Lynch, Judge) 22 improperly admitted police testimony as to drug-related 23 statements purportedly made by Bermudez; the district court s 24 usage of the blind strike method of jury selection violated 25 Federal Rule of Criminal Procedure 24(b) as well as Bermudez s 26 constitutional rights; and two comments made by the government 27 during summation were unfairly prejudicial. 28 of defendant s arguments and affirm the judgment of conviction. 29 30 He argues that a new trial is warranted on the We reject all three BACKGROUND In light of the jury s decision to convict Bermudez, we view -2- 1 the facts of the case in the light most favorable to the 2 government. 3 77 (2d Cir. 2006); see also Arlio v. Lively, 474 F.3d 46, 51 (2d 4 Cir. 2007). 5 including Sergeant Von Kessel, and Officers Guerrero, Eiseman, 6 Johnson, and Collura conducted undercover surveillance near 7 several nightclubs in the Bronx, an area that had a history of 8 illegal drug activity and violence. 9 operation, Officer Eiseman noticed Bermudez walking from club to See Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, On June 26, 2004, New York City police officers During the surveillance 10 club and speaking with various people on the street. Suspecting 11 that Bermudez might be involved in street-level narcotic sales, 12 Officer Eiseman continued to watch Bermudez. 13 approached the area where Officer Eiseman s unmarked car was 14 parked, Officer Eiseman overheard Bermudez tell another man that 15 he had fresh bricks back at his apartment, which Officer 16 Eiseman understood to refer to kilograms of cocaine, and that 17 Bermudez could get 500 grams at ten o clock the next morning. As Bermudez 18 By radio, Officer Eiseman and his partner, Officer Collura, 19 informed the team of the drug-related conversation that they had 20 overheard, prompting the other officers to focus their attention 21 on Bermudez. 22 Guerrero then watched Bermudez and another man, Carlos Delgado, 23 walk toward a Toyota Camry parked in a well-lit area nearby. 24 Both officers saw Bermudez open the trunk, pull out a gun, and From a second car, Sergeant Von Kessel and Officer -3- 1 hand it to Delgado, who placed the gun in the waistband of his 2 pants. 3 sequence of events, provided a description of the two men, and 4 told the team to move in and arrest them. 5 Sergeant Von Kessel radioed the team to report this The officers converged on the scene and stopped Bermudez and 6 Delgado. When Officer Johnson arrived, he promptly approached 7 Delgado based on Sergeant Von Kessel s description, frisked him, 8 and retrieved the gun. 9 pants. The police also found $2600 in Delgado s Bermudez and Delgado were then arrested and each was 10 subsequently charged with one count of possession of a firearm 11 after having been convicted of a felony, in violation of 18 12 U.S.C. § 922(g)(1). 13 his conviction or his sentence of seventy months imprisonment. 14 Delgado pled guilty and did not appeal from Bermudez s first trial began in September 2005 and ended 15 when the jury deadlocked. At his April 2006 retrial, the 16 foregoing evidence was presented to the jury. 17 Delgado as their only witness, but he invoked his Fifth Amendment 18 privilege and declined to testify. 19 testimony, the district court allowed his testimony from an 20 earlier unsuccessful suppression hearing to be read to the jury. 21 At that hearing, Delgado admitted to possessing a gun but, 22 consistent with his claim of an absence of probable cause, 23 disputed the police officers entire account of how it came into 24 his possession. The defense called In lieu of Delgado s trial According to Delgado, it was not Bermudez, but a -4- 1 man Delgado had just met who gave him the gun inside one of the 2 nightclubs. 3 parked Toyota Camry and claimed instead that the police stopped 4 and searched him without probable cause as he was exiting a 5 nightclub. 6 Delgado testified that it was shopping money for children s 7 clothes. 8 Massachusetts because clothes were cheaper in New York. 9 Delgado also denied walking with Bermudez to the As for the $2600 found on his person at the arrest, He claimed that he had come to New York from The jury returned a guilty verdict against Bermudez on May 10 2, 2006, and, after denying his motion for a new trial, the 11 district court gave Bermudez the same sentence of seventy months 12 imprisonment that it had given Delgado. 13 judgment of conviction. Bermudez now appeals the DISCUSSION 14 15 Bermudez raises three issues on appeal. He argues that the 16 district court erred in admitting testimony about the drug- 17 related statements that he purportedly made, because they were 18 more prejudicial than probative; that the district court s use of 19 the blind strike method of jury selection is unconstitutional 20 and inconsistent with Federal Rule of Criminal Procedure 24(b); 21 and that the government s statements during closing arguments 22 unfairly prejudiced him. 23 I. 24 The Admissibility of Bermudez s Drug-Related Statements Under Federal Rule of Evidence 403, relevant evidence may -5- 1 be excluded if its probative value is substantially outweighed by 2 the danger of unfair prejudice. 3 courts have broad discretion to balance probative value against 4 possible prejudice, United States v. LaFlam, 369 F.3d 153, 155 5 (2d Cir. 2004), and we will not disturb that balancing unless 6 there is a clear showing of abuse of discretion or that the 7 decision was arbitrary or irrational, United States v. Ansaldi, 8 372 F.3d 118, 131 (2d Cir. 2004). 9 Fed. R. Evid. 403. District Bermudez argues that the district court erred in admitting 10 Officer Eiseman s testimony that he overheard Bermudez make 11 statements suggestive of narcotics trafficking, namely that he 12 had fresh bricks, a common form of cocaine, in his apartment, 13 and that he could get 500 grams the following morning. 14 claims that the testimony at best was marginally relevant and 15 that it was unnecessary for Officer Eiseman to testify as to what 16 specifically had prompted him to call the surveillance team to 17 focus their attention on Bermudez. 18 marginal probative value, Bermudez asserts, was the high risk 19 that the jury would view him as a drug dealer and be more 20 inclined to convict him on the gun charge based on this 21 irrelevant fact. 22 abused its discretion in admitting the testimony on direct 23 examination, and that the proper course would have been to admit 24 the statements only after the defense had opened the door to Bermudez Weighing against this Bermudez further argues that the district court -6- 1 2 the issue of credibility on cross-examination. The district court, however, found the probative value of 3 the drug-related statements to be significant because the 4 primary issue at trial would be whether the officers saw what 5 they say they saw with respect to the gun. 6 credibility of the officers account was the reason why they 7 chose to watch Bermudez so closely. 8 judge further determined that the risk of prejudice from brief 9 references to drug-dealing was relatively low in this case: I Critical to the The experienced district 10 don t believe that references to drug dealing are somehow 11 shocking or more prejudicial in comparison to the gun charge in 12 the case. 13 To minimize any potential prejudicial effect, the district 14 judge issued two limiting instructions once after Officer 15 Guerrero testified that she received a radio communication 16 regarding the drug conversation overheard by Officer Eiseman and 17 his partner, and again after Officer Eiseman testified as to the 18 conversation itself. 19 this testimony was only relevant in evaluating the evidence to 20 try to judge the credibility of what the officers are telling 21 you, as it explained why the officers were watching Bermudez, 22 and that it was entirely irrelevant as to whether Bermudez did 23 or did not possess a gun on this particular occasion. 24 108-10 ( I just want to make doubly, triply, emphatically clear The district judge instructed the jury that -7- See Tr. 1 to you that it s not your responsibility to decide whether Mr. 2 Bermudez is involved in anything with respect to narcotics. 3 That s not the charge. ).1 4 Under these circumstances, we conclude that the district 5 court s decision to admit the testimony was not an abuse of 6 discretion. 7 that the authenticity of the officers account would be 8 contested. 9 defense s only witness and indeed, the only potential It was apparent from the beginning of the retrial At his prior suppression hearing, Delgado, the 10 exculpatory witness, as the district court noted disputed 11 every aspect of what the officers claimed to have seen, including 12 their claim that he received the gun from Bermudez out of the 13 trunk of a Camry. 14 testimony, over the government s objection, in advance of 15 Bermudez s first trial in September 2005. 16 knew that Delgado s testimony would be admitted when it told the 17 jury during opening statements in the second trial that 18 credibility specifically, whether the police had fabricated a 19 story to justify Bermudez s arrest was at the heart of the 20 case. 21 1 2 3 4 5 The district court decided to admit this The defense therefore Given the properly anticipated centrality of the officers 1 These instructions belie the dissent s assertion that [n]one of the limiting instructions given in this case told the jury that they could not consider whether Bermudez was a drug dealer when deciding whether he was guilty of the gun charge. Dissent at 13. -8- 1 credibility to the outcome of the case, the district court was 2 not required to wait for Bermudez to launch a direct credibility 3 attack on cross-examination before admitting the officers 4 testimony as to Bermudez s drug-related comments. 5 Supplemental App. at 50, 52 (permitting the government to elicit 6 the drug-related testimony at Bermudez s initial September 2005 7 trial, and noting that the whole issue is whether these officers 8 are to be believed anyway, . . . the defense will presumably be 9 saying all these guys aren t telling the truth, and the Cf. 10 officers credibility is central ). 11 second trial, Bermudez did not request the district court to 12 defer the drug-related testimony until the defense had opened the 13 door; rather, he moved to preclude the testimony altogether. 14 We further note that at the To convince the jury that the officers story was credible, 15 it was important for the government to establish, as a foundation 16 for the actions taken by the surveillance team that night, why 17 the officers attention was focused on Bermudez as opposed to any 18 number of other individuals in the high crime area. 19 reasonable explanation for singling out Bermudez, the officers 20 testimony as to everything that followed could have been suspect. 21 Thus, providing this explanation to the jury was highly 22 probative, as the district court found, and contributed 23 importantly to the completeness of the officers account. 24 United States v. Thai, 29 F.3d 785, 813 (2d Cir. 1994) (holding -9- Without a See 1 that, where the defense theory was that government informants 2 were lying, testimony that corroborated the informants account 3 was properly admitted under Rule 403). 4 Moreover, any danger of unfair prejudice was minimized by 5 the district court s two detailed limiting instructions, issued 6 immediately after Officers Guerrero and Eiseman testified to the 7 drug-related statements. 8 were insufficient to eradicate the statements prejudicial effect 9 fails because [a]bsent evidence to the contrary, we must presume Any argument that these instructions 10 that juries understand and abide by a district court s limiting 11 instructions. 12 Cir. 2002); see also Zafiro v. United States, 506 U.S. 534, 540- 13 41 (1993) ( [E]ven if there were some risk of prejudice, here it 14 is of the type that can be cured with proper instructions, and 15 juries are presumed to follow their instructions. (internal 16 quotation marks and citation omitted)). 17 here, the jury could reasonably be expected to comply with the 18 limiting instructions; thus, the instructions sufficed to cure 19 any possibility of prejudice. 20 United States v. LaFlam, 369 F.3d 153, 157 (2d Cir. 2004) 21 (holding, in an armed robbery case, that the district court did 22 not abuse its discretion in admitting evidence of the defendant s 23 uncharged drug use because the district court properly balanced 24 probative value against prejudice and also gave a limiting United States v. Downing, 297 F.3d 52, 59 (2d Under the circumstances Zafiro, 506 U.S. at 541; cf. -10- 1 instruction to the jury that reduced any potential prejudice that 2 introduction of the uncharged other act evidence might have 3 caused ). 4 II. 5 The Blind Strike Method of Jury Selection Bermudez next challenges the district court s employment of 6 the blind strike method of jury selection. Under this method, 7 both parties simultaneously, rather than alternately, exercise 8 their peremptory challenges and thus do not know which jurors the 9 other has struck. He claims that this method violated Federal 10 Rule of Criminal Procedure 24(b) and his constitutional rights to 11 due process and effective assistance of counsel. 12 Bermudez argues that because both he and the government struck 13 the same juror, he was effectively deprived . . . of the full 14 and knowledgeable use of his allotted challenges. 15 Br. at 18. 16 In particular, Appellant s The Supreme Court s express approval of the blind strike 17 method in Pointer v. United States, 151 U.S. 396 (1894), 18 forecloses Bermudez s argument. 19 whether a defendant is entitled of right to have the government 20 make its peremptory challenges first, that he might be informed, 21 before making his challenges, what names had been stricken from 22 the list by the prosecutor. 23 such right existed, and that a defendant is only entitled of 24 right to strike [a certain number of names] from the list of In Pointer, the Court addressed Id. at 409. -11- The Court held that no 1 impartial jurymen furnished him by the court. Id. at 412. 2 In a non-capital felony case, Federal Rule of Criminal 3 Procedure 24(b) sets the number of peremptory challenges to which 4 a defendant is entitled at ten and the government at six; it does 5 not prescribe any method for the exercise of those challenges. 6 See Fed. R. Crim. P. 24(b); United States v. Blouin, 666 F.2d 7 796, 798 (2d Cir. 1981). 8 discretion to determine the way peremptory challenges will be 9 exercised. 10 11 Rather, trial courts retain a broad United States v. Thompson, 76 F.3d 442, 451 (2d Cir. 1996) (internal quotation marks and citation omitted). Under Pointer and Rule 24(b), Bermudez had a right only to 12 reject ten jurors from the full list, and this right was fully 13 accorded to him by the method that Judge Lynch selected: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Being required to make all of his peremptory challenges at one time, [defendant] was entitled to have a full list of jurors . . . . Such a list was furnished to him, and he was at liberty to strike from it the whole number allowed by [Rule 24(b)], with knowledge that the first 12 on the list, not challenged by either side, would constitute the jury . . . . It is true that, under the [blind strike] method pursued in this case, it might occur that the defendant would strike from the list the same persons stricken off by the government; but that circumstance does not change the fact that the accused was at liberty to exclude from the jury all, to the number [ten], who, for any reason, or without reason, were objectionable to him. No injury was done if the government united with him in excluding particular persons from the jury. 31 Pointer, 151 U.S. at 411-12. Thus, no constitutional deprivation 32 or violation of Rule 24(b) occurred when Bermudez struck the same -12- 1 2 juror as the government. We further note that all five circuits that have considered 3 similar challenges to the blind strike method have upheld it as 4 constitutional and consistent with Rule 24(b). 5 v. Warren, 25 F.3d 890, 894 (9th Cir. 1994) ( Even when the 6 government and a defendant challenge the same juror, the blind 7 strike method does not impair a defendant s full use of his or 8 her peremptory challenges. 9 defendant s challenges may not overlap the government s. See United States Rule 24(b) does not specify that a 10 (citations omitted)); United States v. Norquay, 987 F.2d 475, 478 11 (8th Cir. 1993), abrogated in part on other grounds by United 12 States v. Thomas, 20 F.3d 817, 823 (8th Cir. 1994); United States 13 v. Mosely, 810 F.2d 93, 96-97 (6th Cir. 1987); United States v. 14 Roe, 670 F.2d 956, 961 (11th Cir. 1982); United States v. Sarris, 15 632 F.2d 1341, 1343 (5th Cir. 1980). 16 in upholding the use of the blind strike method of exercising 17 peremptory challenges. 18 III. The Government s Closing Arguments 19 We join our sister circuits Bermudez s final contention is that he was unfairly 20 prejudiced by two statements made during the government s closing 21 arguments. 22 claim that he traveled to New York to purchase discount 23 children s clothing because life experience tells you the cost 24 of the trip from Massachusetts to New York was more than any The first was a comment casting doubt on Delgado s -13- 1 discount on clothing he was going to find here. 2 the government s rebuttal to the argument that it was hiding 3 something by not calling as a witness Officer Eiseman s partner, 4 Officer Collura, who also allegedly overheard Bermudez s drug- 5 related statements. 6 Collura have told you, that he overheard the same thing? 7 The second was The government stated, What would Officer [R]eversal on the basis of improper prosecutorial 8 statements during summation is warranted only when the 9 statements, viewed against the entire argument before the jury, 10 deprived the defendant of a fair trial. United States v. 11 Myerson, 18 F.3d 153, 163 (2d Cir. 1994) (internal quotation 12 marks and citation omitted). 13 substantially prejudiced by the government s summation because 14 the district court promptly issued a curative instruction after 15 each comment to ensure that the jury did not draw any improper 16 inferences. 17 (2d Cir. 2004) (holding that the prosecutor s statements were not 18 misconduct causing substantial prejudice where the district judge 19 provided an immediate curative instruction). 20 Bermudez s challenge to the prosecution s summation arguments 21 fails. In this case, Bermudez was not See United States v. Thomas, 377 F.3d 232, 244-45 Accordingly, 22 CONCLUSION 23 For the foregoing reasons, the judgment of conviction is 24 AFFIRMED. -14- 1 UNDERHILL, District Judge, concurring in part and dissenting in 2 part: 3 I join parts II and III of the majority opinion, but 4 respectfully dissent from the affirmance of the District Court s 5 evidentiary ruling. 6 overheard admission that he had a significant quantity of drugs 7 for sale which the majority affirms on the ground that the 8 admission was permissible to bolster the credibility of police 9 officers expected to testify at trial violated clearly The pre-trial decision to admit Bermudez s 10 established precedent of this Court that bolstering evidence can 11 be admitted only after credibility has been attacked. 12 addition, the result of the District Court s Rule 403 balancing 13 fell outside the range of reasonable outcomes and therefore 14 amounts to an abuse of discretion. 15 substantial prejudice as a result of the erroneous evidentiary 16 ruling, I would vacate the judgment and remand the case for a new 17 trial. In Because Bermudez suffered 18 I. Bolstering Evidence 19 The error in admitting Bermudez s statements about illicit 20 drugs as bolstering evidence becomes clear by focusing on the 21 timing and substance of the challenged evidentiary ruling.1 Apr. 1 2 3 4 5 1 The entirety of the District Court s ruling follows: In the first place, I deny the defendant s motion in limine to exclude testimony regarding statements allegedly made by Mr. Bermudez regarding drugs. As I ruled in the previous trial, the -15- 1 27 Tr. at 3-4.2 2 to an actual attack on any witness s credibility or following the 3 admission into evidence of Carlos Delgado s transcribed 4 testimony. 5 limine in advance of any testimony in Bermudez s second trial, 6 indeed, before the jury was selected. 7 motion in limine was decided, the District Court had not admitted 8 Delgado s statement. 9 whether Delgado s testimony would be offered by the defendant, The ruling was not made during trial in response Rather, the ruling was made when deciding a motion in At the time Bermudez s The District Court did not then even know 10 Apr. 27 Tr. at 4 (District Court: I imagine Mr. Delgado s 11 testimony is likely to be offered by the defense. ); indeed, the 12 District Court still did not know if Delgado s testimony would be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 probative value of these statements seems to me significant. The whole issue is whether the officers saw what they say they saw with respect to the gun that is charged. The officers will be describing various movements of Mr. Bermudez, particularly as I imagine Mr. Delgado s testimony is likely to be offered by the defense, those movements will be contested. It would be highly peculiar, it seems to me, for a jury to try to address whether the officers saw what they said they saw without some understanding of why the officers would be watching Mr. Bermudez. So I think there is significant probative value to putting before the jury why the officers attention was focused on Mr. Bermudez. The prejudice, on the other hand, does not seem to me to be significant. I don t believe that references to drug dealing are somehow shocking or more prejudicial in comparison to the gun charge in the case. And whatever prejudice there is can and will be further minimized by a limiting instruction which will be given. Apr. 27 Tr. at 3-4. 1 2 3 2 The four-day trial took place on April 27 and 28 and May 1 and 2 of 2006. Citations to the trial transcript will indicate the day of trial and transcript page. -16- 1 offered as the government neared the end of its case in chief. 2 May 1 Tr. at 214 ( Now, if on the other hand you re not going to 3 offer Delgado s testimony . . . . ). 4 admit the bolstering evidence was made before the District Court 5 could have known whether and how Bermudez would choose to attack 6 the police officers credibility.3 7 Therefore, the decision to Significantly, despite the majority s heavy reliance on the 8 need to admit the evidence to bolster the credibility of police 9 officers expected to testify at trial, the District Court never 10 mentioned credibility in its ruling on the motion in limine; the 11 first mention of credibility was in a limiting instruction. 12 Instead, when admitting the evidence, the District Court merely 13 anticipated that the prosecution and defense would offer two 14 conflicting versions of the events leading to Bermudez s arrest, 15 Apr. 27 Tr. at 4 (Bermudez s movements will be contested ), and 16 believed that the officers motivation for watching Bermudez was 17 important, id. ( there is significant probative value to . . . 18 why the officers attention was focused on Mr. Bermudez ). 19 Simply offering an alternative version of events (or here, merely 1 2 3 4 5 6 7 8 3 The majority attempts to support the admission in the second trial with descriptions of what occurred during the first trial, an effort that I believe is inappropriate. See Sojak v. Hudson Waterways Corp., 590 F.2d 53, 55 (2d Cir. 1978) (per curiam) ( Because we cannot anticipate whether the question of admissibility will arise in the same manner on the retrial, we will not attempt to indicate in advance what the trial court s ruling should be. ). -17- 1 anticipating that the defense will do so) does not amount to a 2 defense attack on the credibility of government witnesses,4 and 3 certainly does not justify the admission of bolstering evidence 4 during the government s direct examination. 5 government would be permitted to offer evidence to bolster the 6 credibility of its witnesses during their direct testimony in any 7 case in which the defendant intends to put on evidence. 8 9 If it did, the No one suggests that Bermudez s admitted drug dealing was relevant to any of the substantive issues in this felon-in- 10 possession gun case. 11 Court was to provide the jury with some understanding of why the 12 officers would be watching Mr. Bermudez. 13 majority, the officers motivation is [c]ritical to the 14 credibility of the officers account. 15 of Bermudez s drug dealing, in other words, bolsters the 16 officers credibility. 17 that the District Court could allow the government to bolster its 18 witnesses before an attack on their credibility in light of the 19 properly anticipated centrality of the officers credibility. 20 Majority at 8. 21 1 2 3 4 The only relevance cited by the District Id. According to the Majority at 7. Evidence The majority now holds, without citation, Never before has this Court held that anticipation is 4 This Court has recognized that even cross-examining a witness s direct testimony does not necessarily amount to an attack on credibility. United States v. Fernandez, 829 F.2d 363, 366 (2d Cir. 1987) (per curiam). -18- 1 sufficient to render bolstering evidence admissible. By so 2 holding, the majority significantly departs from this Court s 3 many decisions that evidence to bolster a witness s credibility 4 is not admissible unless and until the witness s veracity is 5 attacked. 6 (2d Cir. 2007); United States v. Porges, 80 Fed. Appx. 130, 132 7 (2d Cir. 2003) (summary order); United States v. Gaind, 31 F.3d 8 73, 78 (2d Cir. 1994); United States v. Pierre, 781 F.2d 329, 332 9 n.1 (2d Cir. 1986); United States v. Borello, 766 F.2d 46, 56 (2d E.g., United States v. Quinones, 511 F.3d 289, 312-13 10 Cir. 1985); United States v. Jones, 763 F.2d 518, 522 (2d Cir. 11 1985); United States v. Edwards, 631 F.2d 1049, 1051 (2d Cir. 12 1980); United States v. Arroyo-Angulo, 580 F.2d 1137, 1146 (2d 13 Cir. 1978); see also 1 McCormick on Evidence § 33 at 147 (Kenneth 14 S. Broun ed., 6th ed. 2006) (hereinafter McCormick ) ( [A]s a 15 general proposition, bolstering evidence is inadmissible. 16 the time of the direct examination, it is uncertain whether the 17 cross-examiner will attack the witness s credibility; the counsel 18 might later waive cross-examination [or conduct limited cross- 19 examination]. . . . 20 must ordinarily hold information favorable to the witness s 21 credibility in reserve for rehabilitation ); id. at § 47. 22 no reason to break with this Court s clearly established 23 precedent on the permissible use of bolstering evidence. 24 As of For that reason, the witness s proponent I see In this case, the government painted Bermudez as a drug -19- 1 dealer in its opening statement and elicited evidence of 2 Bermudez s fresh bricks conversation through its direct 3 examination of government witnesses Guerrero, Eiseman, and Von 4 Kessel before Bermudez cross-examined them. Thus, the bolstering 5 evidence was not admissible when presented. Moreover, even if 6 the District Court had properly precluded bolstering evidence 7 until redirect (or until the government s rebuttal case, after 8 Bermudez presented Delgado s testimony), the drug dealing 9 conversation still should not have been admitted unless Bermudez 10 attacked the officers credibility on the ground that they had no 11 motivation to watch his actions the only conceivable basis of 12 admissibility. 13 Not every attack on credibility would justify admission of 14 evidence of Bermudez s drug dealing; impeachment with prior 15 inconsistent testimony is an obvious example of an attack on 16 credibility that would not open the door to the bolstering 17 evidence admitted in this case. 18 has been opened to rehabilitative evidence, [t]he general test 19 of admissibility is whether [the bolstering evidence] is 20 logically relevant to explain the impeaching fact. 21 rehabilitating facts must meet the impeachment with relative 22 directness. 23 fortified at another, distinct point. 24 (emphasis added). In determining whether the door The The wall, attacked at one point, may not be McCormick, § 47 at 221 The testimony that Bermudez had drugs to sell -20- 1 was not logically relevant to explain the impeaching fact 2 unless and until the impeachment challenged the officers 3 motivation to watch him a line of impeachment never undertaken 4 by Bermudez. 5 Delgado s testimony, which consisted of a transcript 6 available to the District Court in advance of its ruling, merely 7 contradicted, in a general sense, Eiseman s testimony that 8 Bermudez handed a gun to Delgado. 9 testimony, however, called into question the officers motivation Nothing in Delgado s 10 for surveilling Bermudez, so the fact that an officer may have 11 overheard Bermudez offer drugs for sale was not relevant to 12 rehabilitate the officers credibility. 13 defense attacked the officers motivation for watching Bermudez, 14 their motivation was entirely irrelevant. 15 Unless and until the Although the standard of review is abuse of discretion, this 16 Court has repeatedly held that a discretionary decision that is 17 legally erroneous necessarily amounts to an abuse of 18 discretion. 19 Ltd., 460 F.3d 434, 439 (2d Cir. 2006). 20 established precedent from this Court that credibility can be 21 bolstered only after it is attacked and only with evidence 22 addressing the basis of the attack. 23 motion in limine conflicts with that authority, I conclude that 24 the District Court committed legal error and therefore abused its E.g., Aqua Stoli Shipping Ltd. v. Gardner Smith Pty -21- There is clearly Because the ruling on the 1 discretion by admitting Bermudez s statements about drugs to 2 bolster the credibility of government witnesses before their 3 credibility had been attacked. 4 II. The Rule 403 Balancing 5 Rule 403 of the Federal Rules of Evidence provides that 6 [a]lthough relevant, evidence may be excluded if its probative 7 value is substantially outweighed by the danger of unfair 8 prejudice. 9 entitled to considerable deference and will ordinarily not be A trial judge s rulings with respect to Rule 403 are 10 overturned absent an abuse of discretion. 11 203 F.3d 164, 173 (2d Cir. 2000). 12 evidence is grounds for reversal only where it affects a 13 substantial right of one of the parties. Id. at 174 (quoting 14 Fed. R. Evid. 103(a)). 15 Costantino v. Herzog, The improper admission of This case meets that high standard. The drug evidence had 16 no probative value to any substantive issue in this gun case, yet 17 its admission subjected Bermudez to tremendous prejudice: (1) 18 that the jury would no longer decide whether the defendant on 19 trial had possessed a gun, but rather whether the drug dealer on 20 trial had possessed a gun, and (2) that Bermudez would be 21 required to defend against drug distribution charges never 22 brought against him. 23 24 The majority states that the officers motivation for watching Bermudez was critical to the[ir] credibility. -22- 1 Majority at 7. 2 the officers motivation for watching Bermudez is relevant to 3 whether the Eiseman saw what he said he saw that night. 4 view, the officers motivation for watching Bermudez was entirely 5 irrelevant, unless and until Bermudez attacked their credibility 6 on the ground that they were not motivated to watch him. 7 police officer testified that he was at the scene and saw what he 8 saw, without explaining why he watched, no jury would pause to 9 wonder why he watched that s his job. 10 Yet it is unclear, at best, how an explanation of In my If a Even if motivation became an issue on cross-examination 11 which it did not 12 available to the District Court short of admitting the exact 13 conversation wholesale. 14 172, 184 (1997) ( [W]hat counts as the Rule 403 probative value 15 of an item of evidence, as distinct from its Rule 401 16 relevance, may be calculated by comparing evidentiary 17 alternatives. . . . 18 on grounds of unfair prejudice, the availability of other means 19 of proof may . . . be an appropriate factor. ) (quoting Advisory 20 Committee s Notes on Fed. R. Evid. 403). 21 District Court could have allowed the officers to testify why 22 they were conducting surveillance in that area,5 or that Eiseman 1 2 3 there was a plethora of possibilities See Old Chief v. United States, 519 U.S. [W]hen a court considers whether to exclude 5 For example, the Officers Guerrero and Eiseman and Lieutenant Von Kessel each testified that they were assigned to conduct surveillance at the intersection because the area had a history of illegal drug -23- 1 grew suspicious of Bermudez because of the way he was acting,6 or 2 even that he took an interest in Bermudez because he overheard 3 Bermudez discuss what Eiseman perceived to be some unspecified 4 illegal activity. 5 substantially less prejudicial means of proof further diminishes 6 any probative value the drug dealing comments may have had. 7 The ready existence of multiple viable and The pre-trial ruling that the fresh bricks conversation 8 would be admitted caused Bermudez immediate and acute prejudice. 9 Before the jury heard the first word of testimony, the government 10 had labeled Bermudez a big-time drug dealer in its opening 11 statement: 12 that night, were very familiar with that intersection. 13 been there many, many times responding to reports of drug dealing 14 . . . . 15 on Westchester Avenue overheard this man, Richie Bermudez, having 16 a conversation about a drug deal. 17 like he was a big-time drug dealer. 18 government then proceeded to elicit testimony about Bermudez s 19 drug dealing throughout its case in chief. [T]he officers who were watching the intersection They ve And then two of the officers who were sitting in the car They overheard him talking Apr. 27 Tr. at 26-27. The E.g., id. at 50 1 2 3 activity and violence associated with the nightclubs located on the corners of the intersection. Apr. 27 Tr. at 43-44, May 1 Tr. at 131, 180. 1 2 3 4 6 Eiseman testified that he focused on Bermudez initially because Bermudez was walking around from club to club, not going inside anywhere, which was a little suspicious. May 1 Tr. at 138-39. -24- 1 (testimony of Officer Guerrero: recounting police radio 2 transmission that, I can t believe this guy just tried to make a 3 drug transaction, a drug deal, right in front of us ), Apr. 28 4 Tr. at 111 (Officer Guerrero did not see Bermudez possess drugs), 5 id. at 112 (query about whether drug dealers use stash houses), 6 id. at 113-15 (query whether officers could have obtained search 7 warrant based on Bermudez s statements about drugs), May 1 Tr. at 8 140 (testimony of Officer Eiseman: 9 tell the male Hispanic in the white shirt that he had fresh I heard . . . Mr. Bermudez, 10 bricks back at his apartment. ), id. at 141-42 (Question: When 11 you overheard Mr. Bermudez talking about fresh bricks what did 12 you understand that to mean? 13 The male Hispanic in the white T-shirt stated that he needed 500 14 grams. ), id. at 186 (testimony of Lieutenant Von Kessel: 15 Bermudez was telling the guy that he was with that he is a big 16 time guy, that he doesn t deal with the little stuff. 17 deals with the big stuff. ). 18 government cannot fairly be described as brief references to 19 drug dealing. 20 trial, indeed from the government s opening, Bermudez had to 21 defend against two charges: 22 distribution. Eiseman: Kilograms of cocaine. ; He only The testimony elicited by the Majority at 7. From the very beginning of the illegal gun possession and drug 23 The term unfair prejudice, as to a criminal defendant, 24 speaks to the capacity of some concededly relevant evidence to -25- 1 lure the factfinder into declaring guilt on a ground different 2 from proof specific to the offense charged. 3 Notes to Rule 403 explain, [u]nfair prejudice within its 4 context means an undue tendency to suggest decision on an 5 improper basis, commonly, though not necessarily, an emotional 6 one. 7 quotations omitted). 8 is that a jury will convict for crimes other than those charged 9 or that, uncertain of guilt, it will convict anyway because a So, the Committee Old Chief, 519 U.S. at 180 (internal citations and The risk in admitting prejudicial evidence 10 bad person deserves punishment. 11 and citation omitted). 12 preventive conviction even if [the defendant] should happen to 13 be innocent momentarily. 14 Id. at 181 (internal quotation As such, prejudicial evidence invites Id. Here, when conducting the required balancing under Rule 403, 15 the District Court did not consider the most significant danger 16 of prejudice from admission of the drug dealing admission 17 the jury would decide Bermudez s guilt on the gun charge based 18 upon his admitted drug dealing. 19 balancing performed was inadequate. 20 that As a result, the Rule 403 It is precisely because Bermudez was charged with gun 21 possession that the substantively irrelevant evidence of drug 22 dealing poses a particularly significant risk of prejudice. 23 is axiomatic that drug dealing and guns go hand in hand. 24 States v. Hernandez, 85 Fed. Appx. 269, 271 (2d Cir. 2004) -26- It United 1 (summary order) ( guns are frequently tools of the drug trade ) 2 (citing United States v. Flaharty, 295 F.3d 182, 200 (2d Cir. 3 2002)). 4 would misuse the drug dealing evidence to explain why Bermudez 5 possessed the gun, a purpose for which it was not offered, as 6 opposed to explaining why the officers were watching Bermudez, 7 its intended purpose. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Thus, there is a very substantial danger that a jury The District Court s limiting instructions were necessary, but insufficient to overcome the prejudice to Bermudez. As noted in the commentary to Federal Rule of Evidence 105: If the prejudicial effect of evidence substantially outweighs its probative value, despite a limiting instruction, then the nonoffering party can argue that the evidence should be completely excluded because any limiting instruction would be inadequate. Rules 403 and 105 are interrelated, because a Judge in determining the prejudice to be suffered from proffered evidence must necessarily take into account whether this prejudice can be sufficiently ameliorated by a limiting instruction. The more effective the instruction in controlling prejudice, the less prejudice is taken into account in the Rule 403 balancing process. As the Advisory Committee Note to Rule 403 observes, the prejudice to be considered under that Rule is the prejudice that is left after a limiting instruction has been given. 28 Stephen A. Saltzburg, Daniel J. Capra, and Michael M. Martin, 29 Commentary to Federal Rule of Evidence 105, U.S.C.S. Court Rules: 30 Federal Rules of Evidence (Rules 101 - 700) at 93 (2007). 31 32 None of the limiting instructions given in this case told the jury that they could not consider whether Bermudez was a drug -27- 1 dealer when deciding whether he was guilty of the gun charge. 2 The first instruction given by the District Court was the 3 strongest, but it was untimely given the day after the 4 testimony it addressed7 and it was focused on the narcotics 5 conversation : Even if you were to believe that he did engage in 6 such a narcotics conversation, you can t use that as any evidence 7 that he likely had a gun. 8 instruction informed the jury that the evidence of other crimes 9 is not relevant and anything else he may have done on any Apr. 28 Tr. at 108-10. The second 10 other occasion or not done isn t really to the point. May 1 Tr. 11 at 141. 12 testimony that Bermudez was overhead explaining that he was a 13 big time drug dealer. 14 should have expressly prohibited the jury from considering 15 whether Bermudez was a drug dealer when deciding the gun case. No limiting instruction was given following Von Kessel s Id. at 186. Each limiting instruction 16 Even if the limiting instructions had been perfect and 17 perfectly timely, they would have been insufficient in this case. 18 Although this Court generally presumes that juries follow 19 limiting instructions, that presumption evaporates where there 20 is an overwhelming probability that the jury will be unable to 1 2 3 4 5 6 7 Not including the government s opening statement, the first mention of Bermudez s drug dealing came during the direct testimony of Officer Guerrero on April 27. Apr. 27 Tr. at 50. The first limiting instruction was given at the end of the defense cross-examination of Guerrero the following day. Apr. 28 Tr. at 108-10. -28- 1 follow the court s instructions and the evidence is devastating 2 to the defense. 3 Cir. 1994). 4 31 (2d Cir. 2007) ( [W]e have found it inappropriate to presume 5 that a district court s limiting instructions were obeyed when 6 such instructions required jurors to perform mental 7 acrobatics. ); United States v. Colombo, 909 F.2d 711, 715 (2d 8 Cir. 1990) (finding overwhelming probability that, despite 9 limiting instructions, the jury was unable to dispassionately United States v. Jones, 16 F.3d 487, 493 (2d See also United States v. Becker, 502 F.3d 122, 130- 10 consider evidence of rape and sodomy admitted as background in 11 a trial for RICO conspiracy and narcotics violations). 12 too much of a jury first to hear that Bermudez was selling 13 kilogram quantities of cocaine, and then to expect them to ignore 14 that fact when deciding whether he possessed a gun. We ask 15 A district court abuses or exceeds the discretion 16 accorded to it when . . . its decision though not necessarily 17 the product of a legal error or a clearly erroneous factual 18 finding cannot be located within the range of permissible 19 decisions. 20 (2d Cir. 2001) (footnote omitted). 21 Rule 403 balancing in this case was outside the range of 22 permissible decisions and thus amounts to an abuse of discretion. Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 I believe the result of the 23 III. Conclusion 24 The District Court abused its discretion when it admitted -29- 1 the drug-related conversation, because the probative value, if 2 any, of that evidence was substantially outweighed by its 3 overwhelmingly prejudicial effect. 4 evidence were otherwise admissible under Rule 403 to rehabilitate 5 police officers credibility, the District Court erred when it 6 denied Bermudez s motion in limine with prejudice before trial, 7 because evidence to bolster credibility is not admissible until a 8 witness s credibility has been attacked. 9 respectfully dissent from Part I of the majority decision and 10 Moreover, even if the Accordingly, I would reverse the judgment and remand for retrial. -30-
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