United States v. Wright, No 08-0322-cr (2d Cir. October 19, 2009) (Jacobs, McLaughlin, Parker, CJJ)
Here, the circuit held that the admission of defendant McCallum’s two prior drug convictions – which it termed “propensity evidence in sheep’s clothing” – during his federal crack trafficking trial was an abuse of discretion. It also found the error to be harmless, however, and affirmed.
McCallum was a member of a drug crew in Spring Valley, New York. At trial, the government sought to offer into evidence his two prior convictions for possession and attempted sale of cocaine, arguing that they were admissible under Rule 404(b) to show his knowledge and intent. The district court allowed the evidence, but did not explain why it believed it was admissible.
The circuit began by noting that its “inclusionary approach” to Rule 404(b) does not give the government “carte blanche” to offer “any prior act of the defendant in the same category of crime.” In fact, where the government offers the evidence to establish knowledge or intent it must show a “similarity or connection between the two acts that makes the prior act relevant.” But, because of the risk that a jury will engage in “generalized reasoning about a defendant’s criminal propensity” such evidence “merits particularly searching, conscientious scrutiny,” particularly when it involves prior convictions, as opposed to other bad acts. Prior convictions should only be admitted after a careful Rule 403 balancing.
Here, there was no indication that the district court “engaged at all in the Rule 403 inquiry, let alone the required conscientious one” and the circuit would not presume that the district court “appreciated the seriousness of the risk that introducing the convictions would undermine the fairness of the trial.” While it was true that McCallum did not clearly indicate that the issues of knowledge or intent would not be disputed, which rendered them “sufficiently in dispute for the similar acts evidence to be relevant and … admissible,” there was no basis for the district court to find any sort of probative need. There was extensive testimony from McCallum’s co-conspirators about the operation of the conspiracy, and the government introduced drugs seized from the apartment they shared along with extensive audio and video surveillance. “Given all of this evidence, we are at a loss to understand how the court or the government could believe that the prior convictions were necessary to prove … intent and knowledge and that they passed muster under Rule 403.” It was accordingly an abuse of discretion to admit the convictions.
The error here was harmless in light of the government’s “indisputably strong” case against McCallum. The court warned, however, that in a “different case, in which prior convictions were admitted but the government’s other evidence was not overwhelming, or where the other harmless error factors tilted more strongly in the defendant’s favor, or where the government’s summation emphasized the prior convictions, a different result could well be indicated.”