*1 graded, sentencing judge, and the ately the maximum available sentence under the life.”). although required impose not a consecu- statute is top sentence on of the fif- tive firearms literally, Read as we believe the “ex- sentence, would retain the au- teen-year 924(c)(1)(A) cept” clause of subsection appropriate, if thority to do so consistent be, exempts should the clause Whitley 3553(a), thereby § avoiding with 18 U.S.C. from the ten-year consecutive minimum anomaly. perceived discharging sentence for a firearm because The Fourth was also Circuit concerned subject he is to the higher fifteen-year reading that a literal of the “except” clause provided by minimum sentence section prohibition displace would of section 924(e). The case must therefore be re- 924(c) im imprisonment that “no term manded for resentencing. Upon resen- posed person on a under this subsection tencing, Whitley subject remains to the concurrently shall run other term fifteen-year minimum provided sentence imprisonment....” 18 U.S.C. 924(e), by section and the sentencing judge 924(c)(1)(D)(ii). § Studifin, See authority retains any appropriate to select argument at 423 & n. 8. This assumes that sentence, consistent with 18 U.S.C. if “except” literally, clause is read 3553(a), § whether or pursuant five-, seven-, ten-year pun minimum Guidelines,6above that minimum. provided by ishments subdivisions 924(e)(l)(A)(i)-(iii) imposed would be con Conclusion currently. That is incorrect. If the “ex The case is remanded for resentencing. cept” literally, read clause is those less- than-fifteen-year minimum punishments imposed
would not be at all on a defendant 924(e).
punished under section A defen subject higher
dant minimum of 924(e) section exempt would be from the America, UNITED STATES of lower minimum penalties of subsection Appellee, 924(c)(1)(A). course, sentencing Of judge authority would retain the to reflect of a by offender’s use firearm increas BERMUDEZ, Richie Defendant- fifteen-year ing the minimum sentence to Appellant. level, any appropriate consistent with 18 Docket No. 06-5119-CR. 3553(a), § high U.S.C. even as as life. See States, 485, 487,
Custis v.
United
U.S.
United States Court of Appeals,
(1994)
114 S.Ct.
U.S.C. is life parole); without Decided: June Washington, (9th Cir.2006) (“When 1139 n. 8 sentence, statute fails to state a maximum
6. The Government contends that the Guide- Government pro- assume that the 120 months Court, range by lines used District 382 to discharge provision vided the firearm months, 924(c)(l)(A)(iii) was incorrect and should have applicable subsection been Whitley. 360 months to life. Both reject the Guidelines assumption, Because we range used the Court and the different we leave the calculation of correct Guide- (with bottom) range urged by range a lower now lines to the District Court on remand.
method of selection violated Federal 24(b) Rule of Criminal Procedure as well as Bermudez’s rights; constitutional two comments made *3 during summation unfairly prejudi- were reject cial. We all three of defendant’s arguments and affirm judgment of con- viction.
BACKGROUND light jury’s In decision to convict Bermudez, we view the facts of the case light govern- most favorable to the Indus., ment. Kosmynka See v. Polaris Adler, Roger City, Bennet New York for Inc., (2d Cir.2006); see Defendant-Appellant. Lively, also Arlio v. R. Zornberg, Lisa Assistant United Cir.2007). 26, 2004, On June New York (Jonathan counsel, Attorney, States of S. City police including Sergeant officers— Kolodner, Assistant United States Attor- Kessel, Guerrero, Von and Officers Eise- counsel, ney, brief), on the for Michael man, Johnson, and Collura—conducted un- Garcia, Attorney J. for the dercover surveillance near night- several York, Southern of New District New York Bronx, clubs in the an area that had a City, Appellee. for history illegal drug activity and violence. During operation, the surveillance Officer WALKER, CALABRESI, Before: Eiseman noticed Bermudez walking from UNDERHILL, Judges, Circuit and club to club speaking with various Judge.* District people on the street. Suspecting that Ber- might mudez be involved in street-level dissents, Judge part, UNDERHILL sales, narcotic Officer Eiseman continued in separate opinion. a to watch Bermudez. As ap- Bermudez WALKER, JR., JOHN M. Circuit proached the area where Officer Eiseman’s Judge: parked, unmarked car was Officer Eise- man overheard Bermudez tell another man Defendant-Appellant Richie Bermudez that he had “fresh bricks back at his apart- appeals from his conviction on one count of ment,” which Officer Eiseman understood possession of a firearm after having previ- cocaine, to refer to kilograms of and that ously felony, been convicted of a in viola- Bermudez get grams could ten § tion 922(g)(1). of 18 argues U.S.C. He o’clockthe next morning. that a new trial is warranted on the (Gerard grounds radio, that the district court E. By Officer Eiseman part- and his Lynch, Judge) improperly police ner, Collura, admitted Officer informed the team of drug-related as to statements drug-related conversation that Bermudez; purportedly overheard, made the dis- had prompting the other offi- usage trict court’s the “blind strike” cers to focus their attention on Bermu- * Underhill, necticut, Stefan R. Honorable sitting by designation. Judge States District for the District of Con- parked Toyota car, ing with Bermudez Sergeant Von From a second dez. claimed instead Camry watched then and Officer Guerrero Kessel proba- him man, Delga- and searched without stopped Carlos and another Bermudez exiting nightclub. Camry parked ble cause as he was do, Toyota toward a walk at the person officers saw found on his nearby. area Both As for $2600 well-lit trunk, arrest, pull gun, “shop- out a testified that it was open Delgado placed money” for children’s clothes. He Delgado, ping it to who and hand Ser- had come to New York pants. of his claimed that he gun in the waistband the team to re- clothes were radioed from Massachusetts because geant Von Kessel events, provided cheaper in New York. sequence this port *4 men, two and told description of the jury guilty verdict The returned arrest them. to move in and team and, 2, 2006, May on against Bermudez and on the scene converged officers The trial, a new denying after his motion for Delgado. and When Bermudez stopped the same gave court Bermudez the district arrived, ap- promptly he Officer Johnson imprisonment seventy months’ sentence Sergeant on Von Delgado based proached now given Delgado. that it had Bermudez him, re- frisked and description, Kessel’s appeals judgment of conviction. found police also gun. trieved the pants. Bermudez Delgado’s $2600 DISCUSSION arrested and each was Delgado were then appeal. on Bermudez raises three issues with one count of subsequently charged court erred in argues He that the district having after been of a firearm
possession testimony drug-relat- admitting about felony, in violation of 18 convicted of a made, he purportedly statements that ed Delgado pled guilty § 922(g)(1). U.S.C. than prejudicial were more because his conviction or appeal not from and did use of that the district court’s probative; imprison- seventy months’ his sentence selection strike” method the “blind ment. and inconsistent is unconstitutional began Septem- trial Bermudez’s first 24(b); Procedure Federal Rule of Criminal dead- ber 2005 and ended when dur- statements government’s and that the retrial, the fore- April locked. At his unfairly closing arguments prejudiced ing jury. presented was going evidence him. only as their Delgado defense called witness, Fifth Amend- he invoked his but Admissibility of Bermudez’s I. The testify. In and declined to privilege ment Drug-Related Statements testimony, trial the dis- Delgado’s lieu of Rule of Evidence testimony an Under Federal his trict court allowed if “may be excluded hearing to relevant evidence suppression earlier unsuccessful substantially out hearing, probative its value jury. At be read to the but, danger preju of unfair weighed by the gun Delgado possessing admitted to courts Fed.R.Evid. 403. District an absence of dice.” with his claim of consistent to balance cause, have broad discretion offi- probable disputed prejudice, against possible it came into his value account of how cers’ entire LaFlam, it was According Delgado, possession. Cir.2004), not disturb and we will Bermudez, Delgado just had but a man
not
showing
there is a clear
balancing “unless
him
inside one of
gave
gun
who
met
that the decision
or
walk-
of abuse of discretion
Delgado also denied
nightclubs.
irrational,”
arbitrary or
To
any potential prejudicial
was
minimize
ef-
(2d Cir.2004).
Ansaldi,
fect,
judge
the district
issued
two
instructions —once after Officer Guerrero
argues that
Bermudez
the district
testified that she received a radio commu-
admitting
Officer Eiseman’s
court erred
nication regarding
conversation
testimony that he overheard Bermudez
overheard
Officer Eiseman and his
suggestive of
make statements
narcotics
partner, and again after Officer Eiseman
namely
trafficking,
that he had “fresh
testified as to the conversation itself. The
bricks,”
cocaine,
a common form of
in his
judge
district
instructed the
that this
apartment,
that he
get
could
testimony
“in evaluating
relevant
following
grams
morning.
try
the evidence to
to judge
claims that the
at best was mar
of what the
telling you,”
officers are
it
ginally relevant and that it was
as
unneces
sary
explained why
testify
for Officer Eiseman to
as to
the officers were watching
specifically
Bermudez,
what
prompted
him to call
“entirely
and that it was
irrele-
the surveillance team to focus their atten
vant” as to whether Bermudez did or did
tion on
Weighing against
Bermudez.
this
possess
particular
this
occa-
*5
value,
marginal probative
Bermudez as
(“I just
sion. See Tr. 108-10
want to make
serts,
high
was the
risk that
the
doubly, triply, emphatically
you
clear to
drug
would view him as a
dealer and be
your
that it’s not
responsibility to decide
him
gun
more inclined to convict
on the
whether Mr. Bermudez
any-
is involved in
charge based on this irrelevant fact. Ber-
thing
respect
to narcotics. That’s not
argues
mudez further
that
the district
charge.”).1
the
in admitting
court abused its discretion
the
circumstances,
Under these
we conclude
examination,
testimony on direct
and that
that the district court’s decision to admit
proper
the
course would have been to ad
was not an abuse of discre-
only
mit the statements
after the defense
tion.
It
apparent
was
beginning
from the
“opened
the door” to the issue of
of the retrial
that
authenticity
credibility on
cross-examination.
officers’ account would be contested. At
court, however,
The district
found the
his prior suppression hearing, Delgado, the
probative value of the drug-related state-
indeed,
defense’s
witness—and
“the
“significant”
ments to be
pri-
because the
only potential
witness,”
exculpatory
as the
mary issue at trial would be “whether the
district court
disputed every aspect
they say
officers
they
saw what
saw with
noted —
of what the
seen,
officers claimed to have
respect
gun.”
to the
Critical to the credi-
including their claim that he received the
bility of the officers’ account was the rea-
gun from Bermudez out of the trunk of a
why they
son
chose watch Bermudez so
Camry. The district court decided to ad-
closely.
experienced
district
judge
testimony,
mit this
government’s
over the
further determined that the
preju-
risk of
objection, in advance of
dice from brief references to
Bermudez’s
drug-dealing
first
trial
in
relatively
September
in
low this case: “I don’t
2005. The defense
believe that
drug
references to
therefore knew that
dealing
Delgado’s testimony
are
shocking
somehow
or
prejudicial
more
in would be admitted when it told
comparison
gun charge
during
the case.”
opening
statements
the second
1. These instructions belie the dissent's asser-
consider whether Bermudez was a
tion that
limiting
"[n]one of the
instructions
deciding
dealer when
guilty
whether he was
given
this case told the
charge.”
that
could
Dissent at 170-71.
properly
account was
admitted
formants’
credibility specifically, whether
trial
—
403).
under Rule
justify
story
had fabricated
at the heart
arrest —was
Bermudez’s
Moreover, any
preju
of unfair
danger
the case.
court’s
dice was minimized
the district
instructions,
limiting
detailed
issued
two
anticipated centrality
properly
Given
immediately after
Guerrero and
Officers
credibility to the outcome of
of the officers’
drug-related
Eiseman testified
was not re-
the district court
Any argument that these in
statements.
to launch
quired to wait for Bermudez
to eradicate
structions were insufficient
credibility attack on cross-examina-
direct
prejudicial effect fails be
the statements’
testimo-
admitting the officers’
tion before
“[ajbsent
contrary,
evidence to the
cause
com-
drug-related
Bermudez’s
ny as to
juries
understand
presume
we must
Supplemental App.
ments. Cf.
and abide
a district court’s
to elicit the
(permitting
Downing,
instructions.” United States v.
ini-
testimony at Bermudez’s
drug-related
(2d Cir.2002);
52, 59
see also
trial,
noting that
September
tial
States,
540-
v. United
U.S.
Zafiro
these officers
issue is whether
“the whole
(1993)
L.Ed.2d 317
S.Ct.
anyway, ...
the defense
are to be believed
(“[E]ven
preju
if there were some risk of
saying
guys
all these
be
presumably
will
dice,
that can be
type
here it is of the
truth,” and
officers’
telling the
“the
aren’t
instructions,
juries
proper
cured with
central”).
note
We further
their instructions.”
presumed
are
to follow
trial, Bermudez did not
that at the second
(internal
citation
quotation marks and
district court
to defer
request
*6
omitted)).
here,
Under the circumstances
until the defense
drug-related
jury
reasonably
expected
could
be
door; rather, he moved to
opened
instructions;
comply with the
testimony altogether.
preclude the
thus,
any
to cure
the “instructions sufficed
Zafiro, 506 U.S.
possibility
prejudice.”
jury that the officers’
To convince the
933;
541,
113 S.Ct.
United
credible,
for
important
it was
story was
cf.
Cir.2004)
LaFlam,
establish, as a founda-
government
case,
robbery
that
(holding, in an armed
by
taken
the surveil-
tion for the actions
not abuse its discre
the district court did
why the officers’
night,
lance team that
the defen
admitting
evidence of
tion
op-
on Bermudez as
attention
focused
was
because the
uncharged drug use
dant’s
any
of other
posed to
number
individuals
balanced
properly
district court
a rea-
high
in the
crime area. Without
gave a
against prejudice and “also
value
singling out Ber-
explanation for
sonable
jury
that re
limiting instruction to
mudez,
testimony as to ev-
the officers’
that intro
any potential prejudice
duced
that
could have been
erything
followed
other act evi
uncharged
duction
Thus,
explana-
providing
this
suspect.
caused”).
have
might
dence
as
highly probative,
was
tion
found,
court
and contributed
the district
Jury
Method of
The “Blind
II.
Strike”
of the of-
importantly
completeness
Selection
ficers’ account. See
(2d Cir.1994)
challenges the dis
Bermudez next
Thai
that,
of the “blind
theory
employment
the defense
trict court’s
(holding
where
Under
ly-
method of
selection.
informants were
strike”
government
that
was
method,
simultaneously,
parties
in-
this
both
testimony that corroborated the
ing,
alternately,
per-
rather than
exercise their
by
accorded to him the
Judge
method that
emptory challenges and thus do not know Lynch selected:
jurors the other has struck.
which
He
Being required to
all
per-
make
of his
method
claims that this
violated Federal
emptory
time,
challenges at one
[defen-
24(b)
Procedure
Rule of Criminal
and his
was entitled to
dant]
have a full list of
rights
process
to due
constitutional
jurors....
Such a list was furnished to
particu-
effective assistance
counsel. In
him,
liberty
and he was at
to strike from
lar,
argues
because both he
it the
by
whole
allowed
number
[Rule
juror,
struck
government
and the
the same
24(b) ], with
knowledge
the first 12
effectively
...
“deprived
he was
of the full
list,
on the
challenged by
side,
either
knowledgeable
use of his
chal-
allotted
would constitute
jury....
lenges.” Appellant’s Br. at 18.
that,
It is true
under the [blind strike]
Supreme
express approval
Court’s
pursued
method
in this
it might
of the blind strike method in Pointer v.
occur that
the defendant would strike
States,
151 U.S.
S.Ct.
from the list
persons
the same
stricken
(1894),
Under Pointer and Rule abrogated Bermu- in on part grounds other dez only reject had a right jurors Thomas, ten United States v. 823 (8th list, the full Cir.1994); and this right fully was Mosely, United States v.
165 2004) (6th Cir.1987); (holding prosecutor’s that the state United F.2d 96-97 (11th Roe, causing not misconduct sub F.2d ments were v. States Sarris, Cir.1982); judge where the district prejudice stantial Cir.1980). (5th join We curative instruc an immediate provided tion). the use of upholding challenge circuits Accordingly, our sister Bermudez’s exercising per method of blind strike arguments the summation prosecution’s challenges. emptory fails. Closing Argu-
III. The Government’s CONCLUSION ments reasons, foregoing judgment the For is that final contention Bermudez’s of conviction is Affirmed. unfairly by two state prejudiced he was government’s clos during made ments a comment arguments. UNDERHILL, The first was
ing Judge, District claim that he Delgado’s on casting doubt dissenting part: concurring part purchase York to discount traveled to New majority III join I II and parts experience “life clothing children’s because from the respectfully dissent opinion, but you trip cost of the from Massa tells of the District Court’s eviden- affirmance York was more than chusetts to New pre-trial decision to ad- tiary ruling. going he was to find clothing discount on admission that mit Bermudez’s overheard government’s here.” The second was quantity drugs for significant he had a hiding that it argument rebuttal majority affirms on the sale—which calling as a witness Offi something permissible ground that the admission was Collura, Officer partner, cer Eiseman’s credibility officers bolster Bermudez’s allegedly overheard who also testify clear- expected to at trial-—-violated drug-related statements. of this Court that ly precedent established stated, have would Officer Collura “What only can be admitted bolstering evidence the same you, that he overheard told In attacked. after has been thing?” addition, of the District Court’s the result “[Rjeversal improp the basis of range fell outside the balancing Rule 403 during summa statements prosecutorial er therefore outcomes and of reasonable the state warranted when tion is Be- to an abuse of discretion. amounts ments, argument entire against viewed prej- suffered substantial cause Bermudez jury, deprived defendant before the erroneous eviden- udice as a result of Myerson, a fair trial.” judgment vacate the tiary ruling, I would *8 Cir.1994) (internal (2d quota F.3d 163 a trial. the case for new and remand omitted). In this marks and citation tion substantially prej not Bermudez was Bolstering Evidence I. government’s summation be by udiced the admitting in Bermudez’s The error promptly court issued cause the district bolstering drugs illicit as about statements each comment to curative instruction after by focusing on the clear evidence becomes any that the did not draw ensure challenged timing and substance improper inferences. See United Thomas, (2d Tr. at 3-4.2 The evidentiary ruling.1 Apr. 244-45 Cir. deny defendant's ruling place, I the In the first entirety the Court’s 1. The of District testimony exclude re- in limine to motion follows: during made trial in re- how not Bermudez would choose to attack the ruling was any credibility.3 attack on witness’s officers’ to an actual sponse following the into admission credibility or Significantly, despite majority’s the Delgado’s transcribed evidence of Carlos heavy reliance on the need to admit the Rather, ruling the was made testimony. credibility evidence to bolster the of police deciding a motion in limine in ad- when trial, expected testify officers to the testimony in vance of Bermudez’s sec- credibility District Court never mentioned indeed, trial, ond before the was se- limine; motion in ruling in its on the the lected. At the time Bermudez’s motion credibility first mention of was in a limit- decided, limine the District Court had Instead, ing instruction. when admitting Delgado’s not admitted statement. The evidence, the merely the District Court District did not then even know Court anticipated prosecution that and de- Delgado’s testimony whether would be of- fense would offer two conflicting versions defendant, Tr. at 4 by Apr. fered arrest, leading of the events to Bermudez’s (District imagine Delgado’s “I Mr. Court: (Bermudez’s Apr. 27 Tr. at 4 “movements by likely is to be offered contested”), will be believed defense.”); indeed, the District Court still watching officers’ motivation for Bermudez Delgado’s testimony if would (“there did not know id. was important, significant is be offered as the neared probative why value to ... the officers’ May 1 Tr. at 214 Bermudez”). end of its case chief. attention was focused on Mr. (“Now, you’re hand if on the other Simply offering an alternative of version testimony....”). (or going Delgado’s here, to offer merely anticipating events Therefore, so) the decision to admit the bol- the defense will do does not amount to was made before stering evidence the Dis- attack gov- defense on the witnesses,4 trict have known certainly Court could whether and ernment does not garding allegedly by prejudice statements made Mr. there is can and will be further regarding drugs. As I ruled in the minimized instruction which trial, previous given. Apr. value of these will be 27 Tr. at 3-4. significant. statements seems to me The four-day place April trial took whole is whether the officers saw what issue May and 28 and 1 and 2 of 2006. Citations to they they respect say saw with transcript day the trial will indicate the charged. that is transcript page. trial and describing will be officers various Bermudez, particularly movements of Mr. as majority attempts support 3. The to imagine Delgado's testimony likely admis- I Mr. defense, descriptions sion the second trial with be offered those movements trial, during what occurred the first an effort highly pecu- will be contested. It would be liar, me, inappropriate. Sojak that I believe is See try it seems to for a Waterways Corp., Hudson they address whether officers saw what Cir.1978) curiam) ("Because (per we cannot understanding said without some saw anticipate question whether the of admissibili- why watching the officers would be Mr. Ber- ty will arise in the same manner on the retri- significant proba- mudez. So I think there is al, attempt we will not to indicate in advance putting jury why tive value to before the be.”). ruling what the trial court's should officers’ attention was focused on Mr. Bermu- *9 dez. hand, prejudice, the recognized on other does not 4. This Court has that even cross- significant. examining seem to me to be I don’t testimony believe a witness’s direct does that drug dealing references to necessarily are somehow not amount to an attack on credi- Fernandez, shocking prejudicial comparison bility. or more in United v. States 829 F.2d 363, (2d Cir.1987) curiam). gun charge to the (per in the case. And whatever 366
167 1978); 1 on see also McCormick Evidence bolstering of evidence justify the admission (Kenneth ed., § 33 at 147 S. Broun 6th direct examina- during government’s the “McCormick”) (“[A]s ed.2006) (hereinafter did, would be government If it the tion. bolstering evidence general proposition, to bolster the to offer evidence permitted of the time of the during their is inadmissible. As credibility its witnesses examination, it in direct is uncertain whether in case which direct attack the cross-examiner will the wit put to on evidence. defendant intends credibility; might the counsel later ness’s admit- suggests that Bermudez’s No one conduct limit [or waive cross-examination any of the dealing was relevant to drug ted cross-examination]____ For that rea ed felon-in-posses- issues in this substantive son, proponent must ordi the witness’s relevance cited sion case. information favorable to the narily hold provide the District Court was credibility in witness’s reserve for rehabili why the offi- understanding “some with tation”); § I id. at 47. see no reason to watching be Mr. Bermudez.” cers would clearly this established break with Court’s majority, to the the officers’ According Id. permissible use of bol precedent on “[cjritical credibility motivation is stering evidence. Majority at 162. the officers’ account.” case, government painted In this drug dealing, Evidence of Bermudez’s words, drug dealer in its opening the officers’ credibili- Bermudez as other bolsters holds, and elicited evidence of Bermu- majority now without cita- statement ty. The tion, through bricks” conversation that the District Court could allow dez’s “fresh government direct examination of wit- its witnesses its bolster Guerrero, Eiseman, Kessel credibility their nesses Von before an attack on them. centrality before Bermudez cross-examined light properly anticipated of “the Thus, Majority bolstering evidence was not ad- credibility.” officers’ Moreover, presented. when even missible properly preclud- if the District Court had before has this Court held Never (or bolstering evidence until redirect ed is sufficient to render bolster anticipation rebuttal after government’s until the holding, ing By admissible. so evidence Delgado’s testimony), presented departs majority significantly dealing conversation still should drug many decisions that evidence this Court’s unless Bermudez have been admitted not credibility is not ad to bolster a witness’s credibility the officers’ attacked unless and until the witness’s ve missible they had no motivation to ground that v. racity E.g., is attacked. United States only conceivable watch his actions —the (2d 289, Quinones, Cir. 511 F.3d 312-13 admissibility. basis 2007); Porges, v. 80 Fed. United States Cir.2003) credibility (2d every attack on would 130, (summary Not 132 Appx. Gaind, evidence of Bermu- order); justify admission of v. United States (2d dealing; impeachment pri- 73, Cir.1994); v. dez’s United States 78 (2d testimony is an obvious ex- Pierre, 329, 1 or inconsistent F.2d n. Cir. 781 332 Borello, attack on 1986); ample F.2d of an v. United States bolstering (2d Cir.1985); open v. door States would United (2d Cir.1985); case. In deter- Jones, admitted this evidence opened Edwards, mining whether the door has been evidence, (2d general Cir.1980); “[t]he rehabilitative States v. Ar bol- admissibility [the is whether Cir. test of royo-Angulo, 580 F.2d *10 to logically credibility is relevant witnesses stering evidence] before credibility fact. explain impeaching reha- their had been attacked. impeach- facts must meet bilitating wall, directness. The
ment with relative Balancing II. The Rule 403 point, may not be attacked at one fortified Rule the Federal Rules of Evi- another, McCormick, point.” at distinct relevant, dence that provides “[a]lthough added). (emphasis § The testi- 47 at may probative evidence be excluded if its drugs had mony that Bermudez to sell was substantially value is outweighed by the explain im- “logically relevant danger prejudice.” of unfair A trial fact” unless and until the im- peaching judge’s rulings respect to Rule 403 peachment challenged the officers’ motiva- are entitled to considerable deference and him—a line of impeachment tion to watch ordinarily will not be overturned absent an never undertaken Bermudez. abuse of discretion. Herzog, Costantino v. (2d Cir.2000). The “im- testimony, which Delgado’s consisted of proper grounds admission of evidence is a transcript available to District Court only for reversal it where affects ‘a sub- ruling, merely in advance of its contra- right’ stantial of one of parties.” Id. at dicted, sense, general in a Eiseman’s tes- 103(a)). 174 (quoting Fed.R.Evid. timony gun that handed a Delgado. Nothing Delgado’s testimo- high This case meets that standard. however, ny, question called into the offi- The drug evidence had no value Bermudez, surveilling cers’ motivation for substantive issue in this may so the fact that an officer have over- yet subjected its admission Bermudez to drugs for heard Bermudez offer sale was (1) prejudice: tremendous that not relevant to rehabilitate the officers’ no longer would decide whether the defen- credibility. and until the Unless defense possessed dant on trial had gun, but officers’ attacked the motivation for rather whether the drug dealer on trial Bermudez, watching their motivation was (2) possessed gun, that Bermu- entirely irrelevant. required dez would be against to defend charges distribution brought never Although the standard of review is against him. discretion, abuse of this Court has re peatedly discretionary held that a decision majority states that the officers’ legally “necessarily” erroneous watching motivation for Bermudez was E.g., amounts to an abuse of discretion. “critical credibility.” Majority to the[ir] at Aqua Shipping Ltd. v. Stoli Gardner unclear, best, 162. Yet it is an how Ltd., Pty Smith explanation of the officers’ motivation for Cir.2006). clearly There is established watching Bermudez is relevant to whether precedent credibility from this Court that the Eiseman “saw what he said he saw” can be 1 bolstered after it is attacked view, that night. my In the officers’ moti- and only addressing with evidence the ba watching vation for entirely Bermudez was sis of the attack. Because the ruling irrelevant, on unless and until Bermudez at- in limine motion conflicts with that tacked their ground authority, I conclude that the District were not motivated to watch him. If Court legal committed error and therefore officer testified that he was at the abused saw, its discretion admitting Bermu- scene and saw what he without ex- watched, dez’s drugs plaining why statements about to bolster the he no would
169 watching were the intersection who why he watched—that’s pause to wonder very were familiar with inter- night, job. his They’ve many, many been there section. an became issue Even if motivation reports drug of deal- responding times not— it did cross-examination —which .... then the officers who ing And two of possibilities of avail- plethora was a there in the car on sitting were- 'Westchester short of admit- the District Court able to man, this Richie Ber- Avenue overheard wholesale. the exact conversation ting mudez, drug a conversation about a having States, 519 U.S. v. United See Old Chief They talking him like he deal. overheard 172, 184, L.Ed.2d 574 117 S.Ct. Apr. dealer.” 27 Tr. big-time drug was a (1997) (“[W]hat Rule 403 counts as the proceeded then government at 26-27. The evidence, as of an item of ‘probative value’ drug to elicit about Bermudez’s ‘relevance,’ may Rule 401 distinct from its throughout E.g., case in chief. dealing its evidentiary al- by comparing be calculated (testimony at of id. Officer Guerrero: .... a court considers ternatives [W]hen that, recounting radio transmission grounds of unfair “whether to exclude on ‘availability guy just of other means “I can’t this tried to make prejudice,’ the believe deal, transaction, an fac- proof may appropriate drug drug right ... be ”) (Officer Advisory (quoting us”), tor.’ Committee’s Apr. front of 28 Tr. at 403). example, For Notes on Fed.R.Evid. possess not Bermudez Guerrero did see have allowed the the District Court could drugs), (query id. at 112 about whether conduct- testify why they officers to were houses), id. at 113— drug dealers use stash area,5 that Eise- in that or ing surveillance (query whether officers could have ob- suspicious man of Bermudez because grew on Bermu- tained search warrant based acting,6 he was or even that he way May 1 drugs), dez’s statements about Tr. an interest in Bermudez because he took (testimony of Eiseman: “I at 140 Officer Bermudez discuss what Eise- overheard Bermudez, heard ... Mr. tell the male unspecified man to be some ille- perceived in the white shirt that he had Hispanic multi- gal activity. ready The existence of apartment.”), at his id. fresh bricks back substantially prejudicial viable and less ple (Question: you over- at 141-42 “When proof further diminishes means talking about fresh heard Mr. dealing com- value the you understand that bricks what did may ments have had. “Kilograms of co- mean?” Eiseman: caine.”; Hispanic “The male the white ruling that the “fresh pre-trial grams.”), that he needed 500 T-shirt stated be admitted bricks” conversation would (testimony Lieutenant Von id. at 186 and acute caused Bermudez immediate guy “telling Kessel: Bermudez the first prejudice. Before the heard guy, time big was with that he is a that he testimony, word of deal with the little stuff. that he doesn’t big-time drug Bermudez a dealer labeled n stuff.”). big He deals with the statement: officers opening “[T]he its that he focused on Bermu- Lieu- 6. Eiseman testified 5. Guerrero and Eiseman and Officers "walking each testified that initially tenant Von Kessel because Bermudez was dez at the assigned club, were to conduct surveillance going inside around from club history the area had a intersection because suspicious.” anywhere,” “a little which was illegal drug activity violence associated May 1 Tr. at 138-39. nightclubs on the comers of with the located 43-44, May Apr. 27 Tr. at the intersection. Tr. *12 (2d Cir.2004) order) elicited the can- 271 (summary (“guns trade”) frequently as “brief are tools fairly drug be described references of the (citing United States v. Majority Flaharty, at 162. From drug dealing.” to (2d Cir.2002)). 182, Thus, trial, there a is very beginning the indeed the very danger jury substantial that a would opening, the Bermudez government’s from drug dealing misuse the evidence to ex- against charges: illegal two had to defend plain why possessed gun, the a drug and gun distribution. possession purpose offered, for which it was not as prejudice,’ ‘unfair a “The term as to opposed explaining why the officers defendant, speaks capacity criminal Bermudez, watching were its intended concededly relevant evidence of some purpose. declaring guilt lure the factfinder into on a The District Court’s limiting instructions proof specific from ground different necessary, were but insufficient to over- So, charged. the offense Committee prejudice come the to Bermudez. As not- ‘[ujnfair explain, to Rule 403 preju- *13 deciding possessed whether he when conversation, can’t use that as you gun. likely gun.” Apr. had a that he evidence The second instruction Tr. at 108-10. or ‘exceeds’the “A district court ‘abuses’ evidence of jury that
informed the ... accorded to it when its deci discretion “any- and “is not relevant” other crimes necessarily though product sion— any other may he have done on thing else clearly erroneous legal of a error or really to the or not done isn’t occasion located within finding factual be —cannot limiting 141. No May 1 Tr. at point.” decisions.” Zer range permissible following Von Kes- given was instruction York, Inc., New vos v. Verizon was over- testimony that Bermudez sel’s (footnote omitted). (2d Cir.2001) 163, 169 “big was a time” explaining that he head I result of the 1 Rule 403 believe the limiting Each dealer. Id. 186. drug balancing in this case was outside the expressly prohibit- should have instruction permissible decisions and thus range Ber- considering whether ed the to an abuse of discretion. amounts deciding dealer when mudez was III. Conclusion case. its discretion The District Court abused limiting if the instructions Even drug-related conver- when it admitted timely, perfectly perfect been sation, value, any, if because the insufficient this case. would have been substantially was out- of that evidence presumes Although generally this Court overwhelmingly prejudicial weighed its instructions, that juries limiting follow Moreover, if even the evidence effect. an “evaporates where there is presumption under Rule 403 otherwise admissible were that the will overwhelming probability credibility, officers’ to rehabilitate court’s instructions be unable to follow the when it denied the District Court erred to the de- devastating evidence preju- motion in limine with Bermudez’s Jones, F.3d fense.” United trial, evidence to bol- because dice before (2d Cir.1994). See also United until a credibility is not admissible ster (2d Becker, 122, 130-31 v. States credibility has been attacked. witness’s Cir.2007) (“[W]e inappropri- have found it dissent from Accordingly, respectfully I limit- that a district court’s presume ate to majority decision and would Part I of the such obeyed were when ing instructions for re- judgment and remand reverse jurors perform required instructions trial. ”); acrobatics.’ ‘mental Cir.1990)
Colombo, that, de-
(finding overwhelming probability instructions, was
spite limiting consider evidence dispassionately
unable to
first
instruction
including
government’s opening
Tr. at 50. The
7. Not
statement,
given
end of the defense cross-examina-
at the
the first mention of Bermudez’s
day. Apr.
following
Guerrero the
drug dealing
during the direct testimo-
tion of
came
April
Apr. 27
Tr. at 108-10.
ny
of Officer Guerrero
Notes
commentary
ed in the
to Federal Rule of
dice’
context
an
within its
means
undue
Evidence 105:
tendency
suggest
improp-
decision on an
prejudicial
If the
effect of evidence sub-
basis, commonly, though
er
not necessari-
stantially
value,
outweighs
its
ly,
Chief,
an emotional one.” Old
519 U.S.
despite
instruction,
a limiting
then the
(internal
180,
at