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.


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 a mechanic discovered the GPS device. This prompted Curley to drive from New York to the shop, where he lied about his identity and reasons for the visit.

In 2008, he was charged with two counts of interstate stalking and one count of interstate violation of a protective order. At trial, the district court admitted the following evidence under Rule 404(b): four incidents in which Curley was violent to Linda; (2) an incident some sixteen years earlier in which Curley’s brother, Michael, beat her and Curley told her not to report it to the police; an incident a few years later in which Michael was arrested for resisting arrest and, under pressure from Curley and Michael, Linda testified falsely at two subsequent trials; evidence relating to a 2008 traffic stop of Curley, in which he was allegedly driving a stolen rental car from which three rifles, ammunition, a bulletproof vest and ski mask, and a “last will and testament” were recovered.

As the trial unfolded, Linda testified about Curley’s prior violence and the incidents with Michael, including the forced perjury, but the district judge did not give a limiting instruction. Before the traffic stop evidence, however, the court instructed that the evidence was being offered for the “very specific purpose” of determining Curley’s “intent back at the time of the” offense. In its final charge, the court told the jury that the traffic stop evidence could be considered only on the issue of Curley’s intent, while the other evidence went only to Linda’s “reasonable fear.”

The jury convicted Curley, and he was sentenced to an above-Guideline term of sixty-three months’ imprisonment.

The Circuit’s Decision

The circuit analyzed the 404(b) evidence in three groups – Curley’s violence towards Linda; everything to do with Michael; and the traffic stop evidence. It found an abuse of discretion with respect to the latter two groups.

1. Curley’s Violence Towards Linda

First, the court found that the district court did not err in admitting Curley’s past abuse of Linda. Some of that abuse was so close in time to the charged conduct that it was “inextricably intertwined” with it, and hence “directly relevant” to Curley’s intent and Linda’s fear.

The abuse that occurred in earlier years was “also relevant and not unfairly prejudicial.” When a defendant is charged with domestic violence, a “history of domestic violence is relevant to show intent to harass or intimidate.” And the temporal remoteness did not preclude a finding of relevancy, since the acts collectively demonstrated a “pattern of activity that continued up to the time of the charged conduct.”

2. Linda’s Interactions with Michael

The district court erred, however, in permitting Linda to testify that Michael beat her and pressured her to lie about his resisting arrest case. This evidence was not sufficiently similar to the charged crimes to allow the jury to reasonably infer Linda’s fear, particularly since Curly was not charged with conspiring with his brother to harass or intimidate Linda. Moreover, Michael’s activities did not “parallel” Curley’s, since he was not involved in any of the charged conduct. This evidence accordingly had little probative value – one episode occurred sixteen years before the charged crimes and the other twelve – and posed a “high risk” that “evidence of Michael’s conduct would unfairly prejudice Curley.” It had no “real purpose other than to show that Michael – and not Curley – had a bad character” and thus improperly focus the jury on Curley’s “clan,” rather than on the allegations in the indictment.

Nor was the prejudice mitigated by the limiting instruction. The instruction was “not sufficient, given the low probative value of the evidence and the high risk of prejudicial effect.” The impact of the limiting instruction was also blunted by its poor timing; it came only at the end of the case – there was no contemporaneous instruction.

3. Curley’s 2008 Traffic Stop

The district court also erred in admitting evidence of the traffic stop. This evidence was admitted to show Curley’s intent and Linda’s fear, although the stop occurred some fourteen months after the charged conduct. While subsequent acts can be admitted under Rule 404(b), the temporal difference may impact the probative value of the evidence. Here, there was insufficient similarity between the traffic stop and the charged crimes. Indeed, there was no evidence that Curley’s activities on the day of the traffic stop were “related to or direced at” Linda at all. Relating the traffic stop to Linda required a “tenuous and unduly long chain of inferences without any further evidentiary guidance.” The risk of prejudice was also very high because the evidence was “significantly more sensational and disturbing than the charged crimes.” The circuit was particularly concerned about the “introduction of guns into the trial.” This was “especially troubling because it tended to show Curley was more violent and disturbed than he appeared from the other evidence.”

Here, as well, the court also found that the limiting instructions were not a cure. There was an “overwhelming probability that the jury” would be “unable to follow the court’s instructions” and the evidence was “devastating to the defense,” since its primary effect was to show Curley’s “bad character” and “incite the jury.”

4. Harmless Error

The court also held that the erroneous admission of the Rule 404(b) evidence affected the outcome. “The record does not provide us with fair assurance that the erroneously admitted evidence … did not substantially sway the jury.” The court’s reasoning is unsatisfyingly sparse, however – it simply repeats its prior holding that the 404(b) evidence was prejudicial, and notes that the government relied on it in summation.

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