United States v. White, No. 11-772-cr (2d Cir. August 30, 2012) (Jacobs, Calabresi, Pooler, CJJ)
Here, a divided circuit panel concluded that two evidentiary errors prejudiced the outcome of Lance White’s felon-in-possession trial. The court vacated the conviction and remanded the case for a new trial.
1. Erroneous Preclusion of Others Arrests and Charging Decisions
The case involved the stop of a minivan that contained White and four women. Officers found three firearms, one supposedly in White’s right front pocket. Two others were recovered from a purse belonging to one of the women, Jennings. Initially, all five individuals were charged in state court with possessing all three guns. Eventually the state dropped all charges against three of the women. For Jennings, the state pursued charges only for the guns in her purse. Over White’s objection, the district court granted the government’s motion to preclude White from introducing evidence of the initial decision to charge all of the women with all of the guns, finding that such evidence was categorically inadmissible.
But the circuit found that this was error. A criminal defendant has a broad right to introduce evidence “tending to prove that another person may have committed the crime” with which he is charged. Such evidence may include the government’s charging decisions – such decisions “may be proper subjects for cross-examination and argument if otherwise admissible,” although they are not per se admissible. “District courts may not automatically exclude such evidence without an inquiry into its relevance and probative value.”
Here, the evidence was relevant to whether White possessed a firearm – “evidence that the other occupants of the vehicle were charged with possession of the firearm allegedly found in White’s pocket was plainly relevant to the question of [his] possession.” Those charging decisions “might very well” have “caus[ed] a jury to doubt the officers’ testimony that they recovered the firearm at issue from White’s person,” particularly since this was the only “significant issue at trial.” In
New York the so-called “ automobile presumption” creates a presumption that all occupants of an automobile possessed a firearm found there, except where the weapon is “found upon the person of one of the occupants.” Thus, that the state originally charged all four women with all of the guns, including the one supposedly found on White’s person supported his theory that “none of the firearms was found on his person” and discredited “the officers’ testimony to the contrary.”
Nor was the district court in rejecting reject this relevant evidence under Rule 403. Indeed the court’s 403 balancing was fatally skewed by virtue of its holding that such evidence was, per se, not relevant at all. Here, the probative value of the evidence was, in fact, “high” – “crucial to proving” the defense theory. Accordingly, the preclusion was error.
2. Restriction of Cross-Examination
The district court also erred in preventing the defense from cross-examining one of the arresting officers about an adverse credibility finding against him in a different federal felon-in-possession case. The circuit now employs a “non-exhaustive list of factors that bear on the admissibility of prior credibility findings.” The district court here erred by relying on the rigid, two-part test rejected by the circuit’s later precedents.
Here, the totality of the factors weighed strongly in favor of admissibility. The prior testimony that was found to be false “was made under oath in a judicial proceeding” and “plainly involved an important matter at issue” in the prior case. The prior false testimony took place “just months before White’s trial” and the officer’s motives were the same in both cases – an “attempt to secure a conviction.” Finally, the officer gave “no explanation for the previous inconsistencies in his testimony.” Thus, the prior adverse credibility finding was “relevant and highly probative” here.
3. The Errors Were “Far From” Harmless
Here, the evidence the district court precluded “spoke directly to a critical element of the” government’s case; the preclusion “prevented White from presenting a complete defense.” This is true even though other officers also claimed that they recovered a gun from White’ pocket. It was “certainly possible” that the jury, “if presented with reasons to doubt” one officer’s testimony “might similarly have questioned the testimony of the” others.
4. The Dissent
Chief Judge Jacobs dissented on both points. For the charging decision, he believed that the evidence was properly excluded under Rule 403. The “vexing” explanations of state law involved in admitting the evidence might well have confused the jury. And, while Judge Jacobs agreed that the district court applied an incorrect legal standard to assess the admissibility of the prior credibility finding, he would have ordered a Jacobson remand to allow the district court to apply the right test.