Archive | rule 404(b)

Friday, October 6th, 2017

Judge Engelmayer Issues a Significant 404(b) Opinion

Yesterday, Southern District Judge Paul Engelmayer issued a carefully reasoned and highly instructive opinion holding that a defendant’s prior drug offenses were inadmissible under Fed. R. Evid. 404(b) to prove his intent to distribute crack cocaine. The short opinion, available here, is a must-read.

The defendant in United States v. Robinson, 17-cr-249, is charged with one count of possessing crack cocaine with intent to distribute. He concedes that he possessed an 18-gram rock of crack cocaine, but argues that the possession was for personal use. To rebut this argument, the government sought to introduce the defendant’s four prior, crack-related convictions. Judge Engelmayer determined, however, that these convictions were not sufficiently similar to the charged conduct to be admissible.

Rule 404(b)(1) provides that “[e]vidence 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 …


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Categories: drug distribution, intent, rule 404(b)

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Thursday, April 12th, 2012

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 …


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Categories: Rule 403, rule 404(b), Uncategorized

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Friday, May 13th, 2011

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 …


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Categories: rule 404(b), Uncategorized

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Wednesday, October 28th, 2009

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 …


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Categories: rule 404(b), Uncategorized

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Sunday, October 11th, 2009

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 …


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Categories: nicknames, rule 404(b), Uncategorized

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Sunday, August 2nd, 2009

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 …


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Categories: Rule 403, rule 404(b), Uncategorized

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Sunday, June 22nd, 2008

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 …


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Categories: jury selection, rule 404(b), Uncategorized

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