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.”