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 a suppression hearing, where Delgado indicated that Bermudez was not the source of the gun. Nevertheless, he was convicted, and received the same sentence, seventy months, as Delgado.
On appeal, he challenged the admission of the drug-related statements as only marginally probative, and highly prejudicial. A majority of the panel disagreed. Since the entire defense theory was that the police were lying, the majority concluded that it was “important” for the government to establish why the police had focused on Bermudez that night. “Without a reasonable explanation for singling out Bermudez, the officers’ testimony as to everything that followed could have been suspect.” In addition, the district court gave two “detailed limiting instructions” that the “jury could reasonably be expected to comply with.”
In an extremely nuanced and thoughtful opinion (of the sort not typically seen in this circuit when it comes to Rule 404(b)), Judge Underhill dissented. He viewed the drug statements as improper “bolstering evidence” and noted that the district court did not rely on credibility in admitting them. “Simply offering an alternative version of events (or here, merely anticipating that the defense will do so) does not amount to a defense attack on the credibility of government witnesses, and certainly does not justify the admission of bolstering evidence during the government’s direct examination.”
Bermudez’ drug dealing was not “relevant to any of the substantive issues in this felon-in-possession gun case.” Here, although the majority make this clear, the government had called Bermudez a drug dealer in its opening, and had all three officers to testify about the drug statement before their credibility had been attacked by the defense. To this judge at least, permitting the government to preemptively bolster its witnesses’ credibility before it had even been challenged was both improper and unprecedented.
Not only did Judge Underhill view the evidence as irrelevant, he found that its probative value was surpassed by its prejudicial potential. “In my view, the officers’ motivation for watching Bermudez was entirely irrelevant, unless and until Bermudez attacked their credibility on the ground that they were not motivated to watch him,” which he never did.
Bermudez also challenged the so-called “blind strike” method of jury selection, under which the parties simultaneously exercise their peremptory challenges, and thus do not know which jurors the other has struck. Here, since during one round, he and the government struck the same juror, he argued that he was deprived of the full use of his allotted number of challenges.
The circuit disagreed. The Supreme Court approved of this method in 1894, and there has been no intervening change in the law.