*1 mаnner, framed this we the district court for further properly proceedings When Opinion. it clear that the Collection Letter is consistent with this think “false, deceptive, misleading” viola-
tion of the FDCPA. See U.S.C. may steep pro-
§ be several 1692e. There standing hurdles
cedural substantive way Easterling achieving bank-
ruptcy discharge of her student loans.
However, that, not alter fact this does as Collecto and the district court acknowl- America, UNITED STATES fully at all edge, Easterling times retained Appellee, right bankruptcy discharge
her to seek Moreover, anyone her debt. familiar v. attest, fragility possible
with life’s can it is WHITE, Defendant-Appellant. Lance Easterling’s life circumstances could Docket No. 11-772-cr. changed have since her November 2001 (or bankruptcy proceeding change will United Appeals, States Court of future), such that she could meet the Second Circuit. hardship” standard “undue articulated Accordingly, this Court in Brunner. we Argued: Feb. 2012. conclude that the Collection Letter’s state- Aug. Decided: 2012. Easterling’s ment that student loan debt Amended: Sept. “ineligible bankruptcy discharge” was false on its face.
Moreover, only is the Collection Let- representation
ter’s regard literally
false, it fundamentally misleading is also it suggests the debtor has no
possible discharging means of her student that, think bankruptcy. upon
loans We Letter,
reading the Collection the least
sophisticated might very consumer well re- counsel,
frain from seeking the advice of pursuing
who could then assist her in all
available means of discharging her debt
through bankruptcy. Collection Let- capacity
ter’s to discourage debtors from
fully availing legal themselves of their
rights misrepresentation renders its exact-
ly the kind of “abusive debt collection
practice[ designed ]” that the FDCPA was 1692(e). target. See U.S.C. reasons,
For foregoing judgment hereby the district court RE-
VERSED and the case is REMANDED to *4 Lewis, A. Federal Defenders
David York, N.Y., York, for Defen- New New dant-Appellant. Kаzemi, At-
Ali Assistant United States (Emily Berger,' Assistant United torney brief), for Loretta Attorney, on the States Attorney for the Lynch, States E. United York, Brooklyn, District of New Eastern N.Y., Appellee. JACOBS, Judge,
Before: Chief POOLER, and Circuit CALABRESI Judges. in a Judge dissents
Chief JACOBS opinion. separate CALABRESI, Judge: Circuit Defendant-Appellant Lance White was convicted, trial, being after a of a firearm. He was possession felon in imprisonment to 235 months’ sentenced The years’ supervised release. and five testimony at trial established four wom- traveling in a minivan with During stop day on the of his arrest. en frisk, allegedly recov- one firearm was pocket and two firearms ered from White’s purse from the of one were recovered The occupants of the vehicle. the other strategy at trial was seek defense’s of these fire- the first demonstrate and not on was found the vehicle arms person. White’s trial, court excluded two At the district First, court of evidence. pieces crucial Finally, evidence that the four women neither of excluded these errors was traveling in the same minivan as White harmless. The spoke excluded evidence initially charged of directly were to a critical element of the Govern- gun allеgedly person. found on White’s ment’s prevented case and its exclusion court, relying on case law established White from presenting complete defense. circuit, concluded that the outside our Gov- Accordingly, judgment of conviction of charging decisions are ernment’s never the district court is VACATED and the subjects proper for cross-examination or proceedings case REMANDED for con- reject argument. disagree We such a opinion. sistent with this categorical admissibility bar on the I. BACKGROUND
charging decisions. We hold that district may presumptively courts exclude evi- 6, 2008, August On acting information dence of the Government’s charging deci- provided by informant, a confidential inquiry sions without an into its relevance joint task force of the Federal Bureau of probative value to the respective case. (“FBI”) Investigation and the New York Here, we conclude the evidence was (“NYPD”) City Department Police stopped *5 only defense, relevant to White’s but Queens, a maroon minivan in New York. probative highly credibility also as to the The minivan occupied by was Lance White testimony provided by of the officers in- and four A women. search of the vehicle volvеd. in recovery firearms, resulted the of three one of allegedly which was found in The court also excluded evidence of a right pocket. White’s front White was judicial prior finding that discredited indicted for of a firearm testimony of Government witness. person previously convicted of a felony, in this, it did When the court did not have the § 922(g)(1). violation of 18 U.S.C. our benefit of decision United States v. Cedeño, (2d 79, 82-83, Cir.), 644 F.3d cert. A. Pretrial Motions — denied, U.S. -, 132 S.Ct. Occupants Other (2011), L.Ed.2d 201 which set out seven trial, non-exhaustive factors courts to consid Prior to the Government moved to er in determining probity arrests, and rele bar relating evidence to the charg- decisions, of a vance incident which a court ing subsequent case histo- has criticized a witness’s as un ries of the four women arrested with worthy arrest, of belief. the instant these White. At the time of White’s law weigh factors admissibility. favor of We enforcement officials recovered three fire- disagree with the allegedly district court’s conclu arms —one pocket, from White’s sion that the credibility adverse find and two from a purse belonging to one of ing probative was not vehicle, of the witness’s ve occupants other of the Shati- racity. might jury Evidence thаt lead a Jennings. to sha All five individuals were conclude that willing the officer was to lie charged arrested and on the day same in a similar case order to secure a court with possession state all three criminal conviction is both relevant and firearms. The State District Attorney’s because, probative. particularly This is so Office later all charges against dismissed us, (who in the case before White’s defense cen three women and White had been proving tered on that the same charged federally). detective As of December and other just Jennings, officers lied about the owner of the weapon person. on his purse, charged by remained the state. She if the were possession only charging of the decisions relevant or charged
was considered, probative could be “the value purse. recovered from her two firearms substantially of such evidence out- [was] evidence, to exclude Moving weighed by danger confusing that the histories argued Government case jury,” as it would misleading “invite a [the] women were irrelevant since of the four trial within a trial on the intricacies of the presumption under New York there is New York State Penal Code and cases in a “in any passenger vehicle is law that of other Id. at *5-6. individuals.” It possession” any weapon found there. Following the district court’s ruling, therefore, that admitting evidence argued, Clarification,” White filed a “Motion for pending charges the arrests and about seeking “Request introduce a for Labo- issues, confusing complex raise would ratory Report” relating Examination explanation an including constructive (the charges Jennings against purse possession under New York law. The owning report, occupant). On a box also contended that the evi- Government Case,” “Briefly labeled Describe the fol- speculation by would invite dence lowing “AT was stated: DEFT the status of the T/P/O about other individuals’ BE TO IN WAS FOUND POSSESSION counsel, response, cases. Defense OF 3 LOADED FIREARMS.” Defense evidence, pressed the relevance as- counsel that this statement argued was a serting that the arrests deci- “factual at least one observation” increased the that the fire- sions likelihood Jennings physically possessed officers that arm found on allegedly person White’s all three firearms recovered from the mini- by the possessed occupants instead other *6 van, including allegedly the firearm recov- physically generally. or the vehicle ered from pocket. White’s also noted that defense New York Penal 265.15(3) contains exception Law an In opposition, present- the Government possession constructive provision respect White, ed a document with found on applies person to firearms of which identical language: contained the occupants one of the of In view vehicle. “AT DEFT WAS FOUND TO BE T/P/O exception, of defense argued this counsel IN 3 POSSESSION OF LOADED FIRE- actually that if the firearm had been recov- presented ARMS.” The Government also pocket, charging ered from White’s printouts “Complaint Report” of forms for possession with occupants other of that August all five arrested on individuals weapon would have improper same 'been 2008. The form for each of these individu- New York law. under als stated in a text labeled box “Details” that “AT DEFT FOUND WAS IN T/P/O granted The district court the Govern- POSSESSION OF THREE LOADED motion, concluding ment’s that the Govern- FIREARMS.”1 charging decisions ment’s were irrelevant question to the of pos- whether White similarity The court that the held in the White, a firearm. sessed United States v. phrasing on all the forms indicated that (NGG), No. charging 08-CR-0682 2009 U.S. Dist. the statements were as decisions (E.D.N.Y. at *5 opposed LEXIS Dec. to factual observations the offi- 2009). Further, cers, context, the court found that even “[i]n noted respect, person, long they 1. we In this note that under New on his as were not so found law, appro- perfectly York it would have been person passenger on the of other charge priate possession of minivan. loaded firearms even if three none were found probative art rather duct of a witness that are legal term of possession [was] App. a factual observation.” 23.2 On truthfulness or untruthfulness. than basis, mo- the court denied White’s granted The district court the Govern- 23. App. tion. motion, precluding ment’s cross-examina-
tion the defense about the Goines case. Evidence Impeachment Applying the factors enumerated United Cruz, (2d Cir.1990), v. States 894 F.2d preclude also moved to The Government Judge the court concluded that Block had cross-examination of a Government wit- made no of Herrmann’s “general Herrmann, ness, regarding Detective Paul veracity” “entirely and the case was unre- testimony given Herrmann had before Dis- lated” to White’s. 2009 U.S. Dist. Block in an unrelat- Judge trict Frederick addition, LEXIS at *9. In because case, Goines, ed United States v. “complex of Judge nature” Block’s (E.D.N.Y.2009). Goines, F.Supp.2d 533 findings, the court noted it would be illegal a case the defendant with difficult to allow the questioning “without weapon, Herrmann testi- delving into the details of the facts and hearing at a suppression fied about case, history” of the specific Goines encounter with the defendant that street instances in which Block Judge had credit- In grant- led to the seizure of a firearm. ed and discredited Detective Herrmann. suppress motion to ing defendant’s Id. at *10. The court “decline[d] to invite and ammunition seized in that gun such distraction and confusion of Judge aspects Block found that certain resulting from considerations that [were] worthy Herrmann’s were far afield from the actual issues in the ease, In the present belief.3 the Govern- case.” Id. ment, part of its motion to limit cross- examination, argued though Judge Proceedings B. Trial portions Block had discredited some trial, testimony, Herrmann’s he had also found At the Government introduced tes- *7 testimony timony some of that credible. Defense from several of the officers who counsel, response, argued present during that the were White’s arrest. The credibility finding Herrmann, adverse was admissible main Government witness was junior under Federal Rule Major cross-examination member of the NYPD Case 608(b), that, permits of Civil Procedure which Herrmann part Unit. testified of a inquiry specific joint into instances of the con- FBI-NYPD investigation, he and his (3) "App." Appendix testimony”; 2. to References refer to the mann’s "The Court does not by Defendant-Appellant submitted White. testimony credit Herrmann’s that Goines run”; (4) broke into a "The Court does not (1) Specifically, Judge 3. Block found that: "If swung credit that ... Goines at Herrmann’s flicking ap- had Herrmann seen Goines what face”; "Further, (5) the Court cannot credit peared marijuana cigarette to be a to the testimony during strug- Herrmann’s this, ground, forego- in combination with the gle, voluntarily phrase Goines uttered the 'It ing, given could well have rise to reasonable "; (6) just was weed’ "Nor can the Court However, suspicion. light of the conflict- that, pas- credit Herrmann’s after evidence, ing the Court cannot credit that while, sively resisting feigned for a Goines observation"; (2) Herrmann made an such submission, guardrail then tumbled over a "Similarly, certainly while it could have add- with one of Herrmann's fellow officers and suspicion ed to Herrmann’s if Goines had Goines, card, began kicking punching.” and away recovering hurried without his ID F.Supp.2d aspect the Court cannot credit this Herr- at 540-44. the ear opened testified that he would be trav- Herrmann learned that White partners put away phone, door after White minivan near 155th in a maroon eling told Jamaica, subsequently when Guarino White 115th Drive and Street admitted, howev- stop moving. Herrmann Lieutenant San- Queens. Herrmann and er, that he had stated sworn unmarked traveling in an Rizzotti were dro “Sergeant Guarino then told affidavit Sergeant Frank Guarino. car driven stop defendant sum and substance traveled in members of the team The other van, back of the mini moving around police unmarked cars. two that he was the defendant stated [and] minivan, Herrmann stopping After away phone.” App. his cellular 88. putting side passenger Rizzotti walked to the minivan, of the stepped After White out approached while of the van Guarino Herrmann frisked White. Herrmann tes- conversation,” driver, “engaged [her] frisking he felt a tified that while the vehicle. get and asked her to out of right pocket front of White’s firearm that he App. 59. Herrmann testified lunch,” words jeans and shouted “hot code “in the back heard Guarino tell White carrying App. was a firearm. White moving App. around.” 59. stop [seat] Rizzotti testified that when he heard 61. up sliding opened Herrmann “then lunch,” standing “hot he was the words passenger to the side asked door him. App. behind and handcuffed White step to show his hands and [White] [him] stated that after 131. Herrmann further App. the vehicle.” 59. Rizzotti out of (Herrmann) handcuffed, was he re- af- similarly “[r]ight testified that it was “Cobra, handgun,” moved a .380 caliber ter” directed the driver out of the Guarino handle,” a black “loaded with with “[s]ilver said, stop your that he “[Y]ou minivan pocket. App. from seven bullets” White’s hands,” point,” that it “[a]t 61, 68, Rizzotti and Federal 118-19. time, not at some later that Herrmann Agent they Kieran Smith testified that opened passenger App. door. gun observed Herrmann take the from portions of Herrmann’s testimo- Certain 131,148-49. pocket. App. White’s While, ny were inconsistent. on direct Herrmann, again, faltered in his account examination, testify Herrmann did not search, He first however. testified phone on a cell talking White had been phone that he also retrieved White’s cell frisked, on cross examina- before he was asked if he pocket. from White’s When tion, acknowledged he that White had been had taken White’s wallet from his back left phone “briefly.” App. 85. De- on a cell said he could not “recall where pocket, he him questioned fense counsel also about *8 it He then got App. from.” 88. testi- [he] stop had told to whether Guarino White that not sure fied he was whether White talking initially on the Herrmann phone. “only a wallet the had and added testified that he did not remember thing recovered was the firearm.” [he] this, re- but after his recollection was App. recovering 89. He did not “recall” affidavit, previous freshed with a he re- phone, keys, cell or a wallet from White. on a talking called that White was cell App. 89. phone talking while Guarino was to the driver, that, stop Herrmann further testified after and that Guarino told White to recovering pock- on the Herrmann denied the firearm from White’s speaking phone. et, putting it the he went around to the driver’s side of was motion White gray him canvas away phone open that caused to the minivan and “observed Instead, App. a firearm inside of it.” bag the back door of the minivan. had bag explain and “found an- his basis for what were his state- searched the 70. He cross-exami- App. 71. On ments. The court said that it did not other firearm.” want nation, acknowledged Hеrrmann “open to the door to that” and ruled that stating that Guarino had affidavit sworn authority provided by the defense to told Herrmann the minivan and searched support introduction of the evidence did purse “found a revolver inside that he “to the go admitting issue courts App. seat.” 100. Rizzot- lying on the rear contents of memoranda that are submitted were recov- ti that two firearms testified App. to the court counsel.” Gov’t 268- vehicle, the interior of the but ered from 69.4 no knowl- personal testified that he had testi- edge of how this came about. Smith Jury Charge, Deliberations, C. Ver- handbag noticed a on the fied that Guarino dict, Sentencing and alerted side of the rear seat driver’s presence and Herrmann to the Smith day. The trial lasted one At charge after which purse, two firearms conference, objected the defense to the In guns. recovered the Smith’s Herrmann proposed charge, district court’s which de- affidavit, no mention sworn he made statutory purpose scribed of 18 U.S.C. recovery but ex- gun, of the of a second objection. 922. The court overruled the might he not have been asked plained that requested then the district scene, firearms were found at thе what court omit two references to the word found, they or whether there where were proposed language “violent” in the and the gun. awas second objection. granted charge, court The therefore, During the cross-examination of Herr- read as follows: mann, to the response Congress was of the view that the ease purse at two firearms were found persons with which certain were able to scene, sought to introduce defense acquire significant was a factor firearms evidence in the form of a impeachment prevalence of crime United of the memorandum portion Government’s States, gun and that federal control over suppression law on an earlier motion. dealers and restriction of the distribu- stated that “[t]he That memorandum helpful tion of firearms would be to state ... at precinct, taken to the purse in meeting and local authorities handgun time an additional was re- which problem. Accordingly, passed a ser- [it] purse.” App. from inside the covered designed give support ies of laws counsel offered this statement as Defense federal, state[,] and local law enforce- pursu- a party opponent an admission combating ment officials in crime. 801(d)(2). of Evidence ant to Federal Rule your jurors, you In role as are not to be Government, argued in opposition, policy concerned with the wisdom or the was an attor- that because the statement If in of these laws. fact violation has summary statements of ney-drafted occurred, the law should be enforced. officers, it was not admissi- three different statement, general, provisions these laws include ble, a prior inconsistent *9 categories peo- certain prohibit which of The also impeach Herrmann. Government or fire- ple possessing receiving from that if the court admitted the docu- noted ment, shipped case arms which were interstate prosecutor the main commerce[,] requires any person to required to take the stand would be Ap- pendix App.” refer to the submitted the Government. 4. References to "Gov't 244 The opportunity speak, App. of in firearms to be sir.” dealing
the business imposed court then a sentence of 235 licensed. (the top months’ incarceration of the the de- contends that government The range), years supervised of Guidelines five pеople of was within the class fendant release, conditions, specified and a $100 firearms possessing from prohibited special assessment. because in interstate commerce shipped punish- convicted of a crime had been he II. DISCUSSION more term of of imprisonment a
able year. one than evidentiary rulings, We review App. 179-80. including a trial limit court’s decision to cross-examination, deliberations, scope of for abuse day jury
After one
Figuer
of discretion. See United States v.
asking,
if we
happens
a note
sent
“What
Cir.2008).
oa,
(2d
222,
F.3d
“To
548
226
a
202. The
App.
cannot reach
verdict?”
abuse, we
that the
find such
must conclude
court,
response,
give
refused to
judge’s evidentiary rulings
trial
were arbi
requested
charge and
Government’s
Allen
trary
v.
and irrational.” United States
deliber-
jury
instead asked
to continue
Cir.2006)
Paulino,
(2d
211,
445 F.3d
217
following day,
found
ating.
(internal
omitted). But
quotation marks
a
weapon by
guilty
of a
White
court also
district
abuses its discretion
previously
felony.
of a
person
a
convicted
(1) its
an
“when
decision rests on
error
sentencing,
parties agreed
At
(such
application
wrong legal
law
statutory
a
mini-
fifteen-year
faced
White
principle)
clearly
or a
erroneous factual
mum
Armed Career
sentence under the
(2)
finding,
though
its
not
decision—
Act,
924(e)(1),
§
18
and a
Criminal
U.S.C.
necessarily
product
legal
of a
error or
range
to 235 months’
Guidelines
of 188
clearly
erroneous
factual
—cannot
argument
imprisonment.
hearing
After
located within
range
permissible
be
3553(a)
counsel on
from
the 18 U.S.C.
(in
Figueroa,
decisions.”
at
548 F.3d
226
factors, the court
if he
asked White
had
omitted).
if
quotation
ternal
marks
Even
say
anything
sentencing.
error,
reviewing
court
trial
finds
new
made a
White
statement. The court then
required
if the error was harmless.
it had
noted
received letters from
Arsdall,
673,
Delaware v. Van
475 U.S.
family
acknowledged
White’s
White’s
(1986).
684, 106 S.Ct.
245 have such at the time such weapon We therefore automobile appeal. that issue on is found.” N.Y. Penal hearsay questions, Law to decide no occasion 265.15(3) (the § possession “constructive opinion in forecloses the nothing this and in provision”). Appellant, response, point- considering hearsay ob- court from district (or ed out that New York Penal Law any other evi- to this evidence jections 265.15(3) § an important contains and dence) at re-trial. pertinent exception the constructive possession provision: provision the Arrests and that A. Evidence of Charging does not to a weapon of the extend found on the Decisions Other person occupants. of оne of the NY. Occupants See 265.15(3). argued, Penal Law White minivan, Following a search of the therefore, if discovery even of fire- traveling individuals the vehicle all five permitted arms in the vehicle the arrests charged possession arrested and with were charging and occupants other of of all three firearms recovered-—the two vehicle, they properly could not have Jennings’ purse firearms found in and the charged been possession with of all three allegedly pocket. found in White’s one firearms, specifically, not the one al- Queens Attorney subsequent District The legedly follows, pocket. found his It ly dropped charges against all defen contended, he charges made of except Jennings, charged who was dants the other occupants constituted evidence weapons of the two found possession with was, fact, that no firearm found his charged federal purse. her White was pocket. ly, possession in the instant with White, The district court against ruled allegedly recovered from his the firearm “[wjhile holding that a defendant is enti pocket. argues White district tled to cross-examine Government wit in excluding regard court erred evidenсe statements, nesses as to inconsistent charging ing the arrests and decisions charging Government’s decisions are not occupants other of the vehicle. We proper subjects for cross-examination and agree. argument.” 2009 U.S. Dist. LEXIS trial, Appellant sought At to admit evi- (internal quotation at *5 marks arrests, relating charging dence to the de- omitted). Relying on United v. States cisions, subsequent case histories (JBW), Carneglia, No. 08-CR-0076 occupants the other of the vehicle to con- (E.D.N.Y. U.S. Dist. LEXIS at *1 tradict the officers’ that one of 2009) Re, Jan. and United States v. pocket. the firearms was found White’s (7th Cir.2005), F.3d the court that, if gun submitted had ac- particular reasoned that charging “[t]he tually person, been recovered from his government choices of agents may rely none of the other individuals would have variety considerations, upon and those charged par- of that been regarding decisions one individual do not Government, gun. moving ticular necessarily speak separate to the issue of evidence, preclude argued guilt another individual’s innocence.” discovery of the firearms the minivan agree Id. do not categorical We such a charging of all permitted arrests аpplied admissibility rule should be to the present in the vehicle because passengers decisions. presence in an automobile ... of “[t]he “ presumptive firearm ... evidence In a criminal case ac ‘[t]he may any legal possession by persons occupying of its all cused introduce evidence *11 246 may proper subjects for cross-examina- may be person that another
tending
prove
crime with which
if otherwise
argument
have committed
tion and
admissible.
”
v. South
charged.’ Holmes
is
defendant
are
holding,
emphasize
we
we
so
1727,
319, 327, 126
Carolina,
S.Ct.
547 U.S.
admissibility
rule of
creating
per
not
se
(2006)
Am.
(quoting 40A
L.Ed.2d 503
164
in any
do not
charging
decisions. We
(1999)).
Jur.2d,
While
286
Homicide
district
way intend to tie the hands of
it
excluded where
“may be
such evidence
in the first
judges evaluating such evidence
per
the other
sufficiently connect
does not
reject an
simply
instance. We
inflexible
crime,”
it cannot be said
son to the
approach that evidence of the Govern-
charging de
evidence of
Government’s
charging decisions is never admissi-
ment’s
cisions,
cases,
re
speculative
“is
in all
criminal defendant. District
ble
mote,
prove
tend to
or dis
or does not
automatically
such
may
courts
not
exclude
at ...
trial.”
a material fact
issue
prove
inquiry
an
into its rele-
evidence without
Am.Jur.2d, Homicide
40A
(quoting
Id.
probative
vance and
value.
district
(1999)).
nothing ap
an all or
§ 286
Such
therefore,
court in this
committed
prin
longstanding
undermines the
proach
categorically
it
legal error when
ruled
guarantees
ciple that “the Constitution
are
government’s charging
“the
decisions
meaningful opportu
criminal defendants a
subjects
proper
for cross-examination
complete
defense.”
nity
present
argument.”
2009 U.S. Dist.
683, 690, 106
Kentucky, 476 U.S.
Crane v.
(1986) (internal
113147,
at *5.
we barred evidence firearm,” possessed a lant] White for its regard in all instances with no might jury. confuse or mislead the Id. at reliability or relevance. when “it has *5-6. Evidence is relevant Particularly when the evidence any tendency to make a fact more or less claim of inno is central to the defendant’s evi probable than it would be without the cence, categorical exclusion we find and, dence,” 401,5 an Fed.R.Evid. unless of the “infringe[s] upon weighty interest exception applies, all evidence “[r]elevant accused,” Scheffer, v. 523 United States admissible,” Fed.R.Evid. 402. Under 303, 308, 1261, 140 L.Ed.2d U.S. 118 S.Ct. standard,” “very v. low United States (1998), right 413 and threatens “the of the (2d Al-Moayad, 545 F.3d 176 Cir. case require prosecution’s accused to 2008), occupants evidence that the other meaningful ad to survive the crucible of charged the vehicle were Cronic, testing,” v. versarial United States allegedly of the firearm found White’s 648, 656, 104 466 U.S. S.Ct. 80 (1984). pocket plainly question relevant to the hold, therefore, L.Ed.2d 657 We possession. decisions of that the Government’s trial, advisoiy the Federal Rules of also Fed.R.Evid. 402 committee's 5. Since White’s (same); advisoiy Advisory Fed.R.Evid. 403 com- Evidence have been amended. The note "[tjhese (same); mittee’s note Fed.R.Evid. 608 adviso- Committee Notes indicate (same). analysis stylistic only. ry "Our changes are intended to be committee's note change any would thus be identical under either version There is no intent to result Scott, admissibility.” v. ruling Rule[s].” evidence Fed. United States Cir.2012) (2d advisory committee's note. See F.3d n. R.Evid. 401
247 charg- the very- that evidence of Government’s might decisions charging These was relevant to the issue of ing decisions the officers’ jury a to doubt cause well trial; pro- at the decisions were possession the firearm they recovered testimony that innocence and were cen- bative of White’s was person. White from White’s at issue tral to his defense. felon-in-possession a being charged firearm, of 18 U.S.C. violation a relevant, it Assuming evidence is of 18 a violation 922(g)(1). § To establish “if value may probative still be excluded its must 922(g)(1), § Government U.S.C. substantially outweighed by danger is (1) previ- the defendant was prove: unfair following: preju or more of the one (2) that felony, ously convicted of dice, issues, misleading confusing firearm, knowingly possessed defendant time, jury, delay, wasting undue or need (3) possessed that the defendant lessly presenting cumulative evidence.” interstate com- affecting in or firearm conducting In anal Fed.R.Evid. 403. 922(g)(1). § The 18 U.S.C. merce. See First, court also erred. ysis, the district trial was whether only issue at significant error, crucial to its Rule 403 is the firearm, and, spe- more possessed White categorical court’s initial determi district jury would believe cifically, whether the nation that it could not admit evidence of one was recovered officers’ claim that charging the Government’s decisions. argued As pocket. front from his concluded, court While the district law, below, pres- “[t]he under New York alternative, probative that “the value of any ... of firearm in an automobile ence “substantially such evidence” was out posses- evidence of its presumptive ... is confusing or weighed by danger occupying such automo- persons all sion White, jury,” misleading the 2009 U.S. found, ... weapon bile at the time such *5-6, at its Dist. LEXIS ... is found weapon ... if except such charging decisions are not occupants one of the upon person subjects for cross-examination obvi proper 265.15(3) Penal Law therein.” N.Y. balancing ated the need for such and cast added). light provi- In of this (emphasis In other balancing doubt as to the made. sion, charge decision the Government’s words, tainted inquiry the Rule 403 in the vehicle with passengers traveling all prior per ruling regarding the court’s se of all firearms recovered Moreover, by conclud charging decisions. theory that none day supports White’s not relevant at ing that the evidence was person found on his of the firearms was all, effectively assigned it little or the court testimony to the officers’ and discredits value, therеby shifting the probative no contrary. considerably in the balancing Rule 403 test favor. Government’s theory re fact that White’s ruling, initial the court al reasoning,” its quires complex a “chain of it exclude the ready at determined that would Dist. LEXIS U.S. evidence. But Rule 403 favors admissibili *6, that it is not relevant. does not mean only excluded when its For, ty: evidence is expressly “[t]he have stated: we substantially out necessary probative value is the chain of inferences length of weighed by prejudice confusion. with the ultimate to connect the evidence probative the The value of Government’s ... does not render proved fact to be high—White’s decisions here is charging v. Ra irrelevant.” United States evidence (2d discrediting the offi vich, centered on 1204 n. 10 Cir. defense 421 F.2d 1970) J.). therefore, find, testimony that a firearm was found cers’ (Friendly, We Blanco, pocket
his and evidence of the Govern- ment.” States v. 861 F.2d United (2d Cir.1988) (internal quotation ment’s decisions was crucial to omitted). proving theory. Under the circum- marks stances, potential we conclude *13 long haveWe held that a wit jury substantially confusion does not out- “pri- ness can be cross-examined based on weigh the value of the evidence.6 probаtive when his in occasions other reasons,
For these the district court’s cases had been criticized court as [a] exclusion of the Government’s de- unworthy of belief.” United States v. Ter cisions constituted manifest error. (2d Cir.1983). ry, 702 F.2d Pur 608(b), suant to Rule White wanted to
B.
Examination of Herrmann
Cross
respect
cross-examine Herrmann with
Regarding
Case
Goines
Judge
credibility findings
Block’s
in
Pursuant
to Federal Rule of
sought
inquire
Goines. Defense counsel
608(b):
Evidence
previously gave
“whether
tes
[Herrmann]
oath,
timony ...
in
under
another federal
Except for a criminal conviction under
gun possession
and whether
Rule
extrinsic evidence is not ad-
judge
that case refused to credit six
prove specific
missible to
instances of
aspects
testimony.”
different
of
[that]
witness’s conduct in order to attack or
Government,
App.
response,
257. The
support
the witness’s character
for
argued
that the
Judge
determinations
may,
truthfulness. But
the court
on
Block were neither relevant nor sufficient
cross-examination, allow them to
in-
be
ly probative of truthfulness to outweigh
quired
if they
probative
into
are
of the
danger
unfair prejudice
or confusion
character for truthfulness or untruthful-
of the issues.
ness of:
(1) the witness
Finding
Govеrnment,
for the
the district
608(b)(1).
Fed.R.Evid.
In applying
analyzed
court
two issues
discussed
rule,
Cruz,
may
a district court
impose
“[w]hile
at
894 F.2d
43. The court deter-
‘reasonable limits’ on cross-examination
“Judge
to mined that since
finding
Block’s
protect
harassment,
against, e.g.,
preju-
was not a
on Detective Herrmann’s
dice, confusion,
waste,
general
it must also
veracity, and the ease
entire-
[was]
give wide
ly
case],”
latitude to a defendant
in a
unrelated to [White’s
the Cruz
criminal
government
case to cross-examine
weighed against
factors
admission.
(inter-
Cedeño,
witnesses.”
because court, like argues that district veracity part on the lack of general Cedeño, in court in erred consid- the lower (b) witness, connection there was no factors. The Gov- ering only the two Cruz subject matter of the two between demurs, arguing ernment Cedeño recently, More F.2d at 43. cases. 894 it involved a entirely inapplicable because Cedeño, the dis was decided after which previously finding that the witness had us, we ruling in the case before trict’s specifically, the Government claims lied: ... not purport that “Cruz did noted Judge Block found certain as- that while two-part test.” 644 F.3d at rigid out a set testimony not credi- of Herrmann’s peсts held explained that while “Cruz 82. We ble, that Herr- expressly not find he did factors was of these two that consideration Cruz, and not mann had lied and hence finding a of abuse of to avoid sufficient Cedeño, reject this distinc- applies. We particular facts of discretion on credi- finding A that a witness is not tion. it not hold that consider only[,] case did from a fundamentally not different ble is two factors sufficient [was] ation of these just It often that the witness lied. finding in all cases.” Id. finding such a to avoid fact finder’s desire to use more reflects a court in Cede Concluding that the district moreover, Nothing, sug- gentle language. analysis to the two limiting ño “erred in its explicit is limited gests Cedeño consider in Cruz without factors discussed The instant findings that a witness lied. probity and affecting factors ing other case, therefore, by our deci- is controlled finding that a relevancy prior court’s sion Cedeño. lied,” articulated id. at we witness had Cedeño, noted that Cruz did we factors for courts seven non-exhaustive Instead, two-part test. rigid not set out a determining probity consider fac list of we articulated a non-exhaustive incident in which of a relevance admissibility tors that bear on testimony criticized witness’s court has (1) findings.7 apрears It credibility “whether the unworthy of belief: by any Cedeño, courts are not constrained principle that district Following we reaffirm the court, bility finding against district which did not have the bene- Herrmann was rele- at ruling, fit of Cedeño the time of its made highly probative vant and in this case. Goines, White, the same mistake we identified as The defendant like it inquiry error Cedeño limited its when charged with firearm. The Cruz, Following to the two Cruz factors. unequivocally district court that case “Judge the district court concluded that testimony; discredited it Herrmann’s con- finding finding Block’s was not a on Detec- it cluded that could not “credit” some of general veracity, tive Herrmann’s and the testimony Herrmann’s that portions entirely case is unrelated to this one.” testimony Herrmann’s “conflict[ed] 2009 U.S. Dist. at LEXIS Goines, testimony.” his earlier (“Courts *9; see also id. at *8-9 in the F.Supp.2d at 541. The district court even that, circuit interpreted have Cruz to mean suggested that Herrmann himself had re- in determining whether to admit a prior aspects testimony. canted certain of his determination, credibility a district court (“The See id. at 542 Court does credit has discretion to consider whether or not testimony Herrmann’s that Goines broke question general is a conсlu- run; into a is contradicted *15 veracity sion about the witness’s and only by testimony not Goines’s at the evi- whether or not there is a connection be- dentiary hearing, by but also Herrmann’s subject tween the matter of the witness’s own testimony parole hearing at the cases.”) (internal testimony in quo- the two his acknowledgment eventual at the evi- omitted). tation marks dentiary hearing that Goines did not have Significantly, the additional factors we tackled.”) away time to run before he was identified in weigh strongly Cedeño in fa- (internal omitted). Further, citation First, admissibility vor of here. Herr- implied court that Herrmann had lied testimony mann’s was made oath in under complaint state-court criminal with respect judicial Second, proceeding. his testimo- (“The to the same incident. See id. at 543 ny plainly involved an important matter: Court does Anot credit that Goines at issue in Goines was whether a firearm ‘punchfed]’ Herrmann, as Herrmann stat- and ammunition seized law enforcement ined the state-court criminal complaint, or Third, suppressed. officials should be face, swung that Goines at Herrmann’s suppression hearing in place Goines took Herrmann testified at evidentiary 26, February on just months before (internal hеaring.”) quotation marks and trial White’s on December 2009. omitted). brackets credibility judg- These Fourth, in attempting to secure a convic- plainly ments are probative of Herrmann’s tion, the motive for Herrmann’s discred- veracity jury’s and could affect a determi- testimony ited in Goines is identical to his willingness nation as to his to lie to secure purported motive in the instant case. Fi- Moreover, a criminal they conviction. are nally, Herrmann offered no explanation for particularly relevant the case before us previous inconsistencies his testimo- where the crux of the defense was that ny. finding weapon Herrmann lied about Cedeño,
Guided we have pocket little trouble White’s instead of elsewhere concluding Judge prior Block’s credi- vehicle.
rigid considering admissibility test when only might sideration of the two factors Cruz credibility findings. Though adverse appropriate support evidentiary be an not sufficient in the instant we leave ruling. cases, open possibility that in certain con- the Goines court also relied on district court’s conclusion whether find the We testimony. court aspects The district of Herrmann’s contrary erroneous. some Judge Block discreditеd questioning given while line of would have noted that This testimony, of Herrmann’s aspects certain the “wide latitude” that should be vein, portions. other In on he relied to criminal when afforded defendants inconsistencies opined witness, the court cross-examining a Government have been be- could (internal Herrmann’s Cedeño, quotation F.3d at 82 confusion, time, or lack passage cause of omitted), while allaying marks the district knowledge. agree of first-hand We fear that the evidence would “invite court’s reading is “ins- that this of Goines "White jury,” ... distraction confusion Block Judge Pet’rs Br. upportable.” White, Dist. at 2009 U.S. LEXIS expla- any such innocent not attribute did *10. testimo- to Herrmann’s discredited nation consid- To the extent district court’s emphasized repeatedly instead ny. He jury at targeted eration of confusion was testimony, that he could credit analysis, disagree the Rule 403 we also himself was portions of which Herrmann such would sub- confusion to disavow cross-examination. forced stantially outweigh the value of probative choosing to excuse Herrmann’s discred- credibility finding. Block’s adverse Judge rea- testimony by ascribing blameless ited court The district characterized the it, even a explanations to without sons and credibility finding as “far from the afield support hint the Goines court from actual issues case.” clearly court explanations, such the district U.S. Dist. LEXIS at *10. We *16 erred. above, for the disagree; reasons discussed Moreover, the district court’s fear prior testimony pro- both Herrmann’s the admitting the evidence would confuse relevant case. In bative and the instant it the attor- jury require would because by out in- starting deeming the evidence history into the and neys to delve facts cred- sufficiently probative of the witness’s is The district misplaced. the case Goines admitted, ibility to be the court below ef- “impose authority the to court retained balancing a true fectively made Rule 403 limits’ on ‘reasonable cross-examination impossible.8 harassment, e.g., preju- protect against, court’s de- We conclude the district Cedeño, confusion, dice, 644 waste.” exclude the adverse credibil- cision to Arsdall, (quoting 475 U.S. F.3d at 82 Van respect with to officer Herr- ity finding 1431). Furthermore, 679, S.Ct. at 106 range mann cannot be located within the simply sought the defense dispositively, permissible decisions. previously inquire [Herrmann] “whether oath, gave ... in another testimony under Harmless Error C. casе, gun possession and whether federal ad Even manifest errors in that case to credit six judge refused justify re mission of evidence do not testimony.” aspects of [that] different if, light of a conviction of all the versal It did not to delve into App. 257. seek circumstances, harmless. errors are inquire about facts of Goines case or case, district court’s errors in this instances Herrmann’s The specific when however, were far harmless. The testimony was discredited. The Govern- from opposite: spoke directly to a criti- could have asked the excluded evidence ment supra note 6. 8. See
cal element of the Government’s case and
and frisk were consistent with Herrmann’s
prevented
pre-
its exclusion
White from
respects.
in all material
Herrmann testi-
senting
complete
Wray
defense. See
v.
“Cobra,
fied that
personally
he
recovered a
(2d Cir.2000)
Johnson,
“[sjilver
202 F.3d
handgun,”
.380 caliber
with a
(noting
assessing
that in
harmlessness it is
handle,”
“right
black
from White’s
front
important
to consider whether the error
pants pocket.” App.
118-19. Rizzotti
plainly
‘on an
“bore
issue
critical
[was]
similarly testified that he observed Herr-
”
jury’s
Hynes
(quoting
decision’
v. mann
recover
“silver automatic with a
(2d
Cir.1996))).
Coughlin, 79 F.3d
right
black handle” from White’s “front
disputed
The sole
issue at tidal was wheth-
Smith,
pocket,” App.
who was
er
possessed
firearm: The Gov-
standing approximately
away
three feet
ernment’s case centered on the officers’
time,
from White at the
observed Herr-
claim that one was recovered from White’s
pistol”
mann remove a “silver
from White’s
pocket
front
and White set out to show
area,”
“right
App.
front waist
148-49.
that none of the firearms seized on that This, however, does not render the district
day were
person.
found on his
White’s
court’s errors harmless.
It
certainly
trial, therefore,
success at
hinged on his possible
jury,
presented
if
with
ability
testimony
to undermine the
of the
reasons to
testimony,
doubt Herrmann’s
law enforcement officers. Evidence that might similarly
questioned
have
the testi-
charged
Government
the other occu- mony of the other
espe-
officers. This is
pants
of the vehicle with
so,
cially
moreover, since these officers
firearm that
it claimed was found on
provided testimony
also
at trial that was
person
White’s
just
tended to do
that.
somewhat
inconsistent
sworn
addition, evidence that Herrmann’s testi-
Additionally,
affidavits.
admission of the
mony under oath in
pro-
a similar criminal
Government’s
decisions on the
ceeding was
by
judge
discredited
a district
day of
stop,
which could be read
casts doubt on his
very
on that
conflicting
with the account of the
issue in the instant case. Herrmann’s tes-
stop
officers,
all the
might
given
have
timony
moreover,
in this
was incon-
*17
jury
the
further reason to pause.
sistent on some matters: he wavered on
sum,
In
in a classic case of competing
whether White had
talking
been
on a cell
stories,
jury
presented
the
was not
with a
phone
frisked,
before he was
he could not
comprehensive picture. On the record be-
recall whether he retrieved White’s cell
us,
fore
we cannot conclude “with fair as-
phone during the frisk or whether he re-
surance” that district court’s erroneous ex-
covered a
keys
wallet or
from White’s
pieces
clusion of the two
of evidence at
pocket, and his testimony
regard-
at trial
issue “did not substantially influence the
ing recovery of the other firearms conflict-
Jackson,
jury.”
eyes of jury. the Wе do not discount the White also strength argues that the district court (1) Government’s case. The erred in excluding “Request Government for Lab- (2) notes that in addition oratory to Herrmann’s testi- Report,” Examination erred in mony, presented it testimony the of precluding two the admission a legal memo- other officers whose stop accounts of the by randum submitted the Government to (3) witnesses, charging the or the erred ed whether documents impeach Government credibility are findings admissible charge on the statuto- the giving (4) hearsay. majority’s explicit The recogni- § and 922(g), purpose of 18 U.S.C. ry affords allow- tion of circumstance the dis- error sentencing committed latitude on appeal, trict court needed certain him to to statements ing respond prevents opinion being the from misread In the of sentence. imposition to or overread. above, findings our we decline light of arguments. the of these merits consider A. majority holds opinion The there
III. CONCLUSION categorical be no exclusion of should reasons, judgment the foregoing For from charging documents evidence. the district court is VA- of conviction of but, event, any holding this Maybe; for case is REMANDED CATED judges harm trial does little because wоuld trial. a new virtually always exclude such evidence for view, multiple my and sound reasons. JACOBS, Judge, Chief DENNIS Judge Garaufis did not abuse his discre- dissenting: excluding charging tion documents in- I While I am respectfully dissent. in this case. admissibility of agree clined nutshell, In a were five people there may not suitable for charging decisions be car with guns. one three Under New and that the categorical a rule of exclusion law, all five pos- York were constructive admissibility findings credibility of adverse all guns except three session new subject been the prior cases has gun upon person.” “found N.Y. See law, I conclude: 265.15(3)(a). A Penal Law York New deci- respect charging A. With charged document all charging occupants sions, I affirm on the district court’s would guns. with of all three probative that the value ruling alternative dismissed, charge against was state White case such evidence was substan- charged was in federal court and White danger of confus- tially outweighed (on his possessing gun person). one jury; in that ing misleading charge. of that He convicted way, I vexed question would avoid the argue gun if wanted to had been majority opinion embraces. person, on his the drafter the state B. As to of Deteсtive would not have document *18 case, I the agree Herrmann with charged occupants possess- the other with the court’s majority opinion that district assuming that of course the drafter ing it— analysis have considered the seven should that nuance of New York law. understood But I remand factors Cedeño. would majority The error district finds the ruling to that judge for the district make apparent ruling charging that court’s docu- ordinary in the first instance and the categorically ments are excluded from evi- course, subject appellate the usual re- However, pru- the district court dence. view for abuse of discretion. alternative, find, dently went on Moreover, the majority “probative charging ob- the value” of opinion as the serves, “substantially out- hearsay in this document would be problems abound case; by danger confusing the or yet, party weighed raised these since neither misleading 2009 U.S. jury.” [the] has not decid- appeal, issues the Court 254 113147,
Dist. Lexis at *6. That to of “length seems the of the chain” connecting [i] an unexceptionable charges me observation. the against filed the four women the police [ii] officers’ observations. majority rejects The on the charging Were the decisions recommended extraordinary ground that the district by police the who made the direct observa- “prior finding charging court’s deci- not, tions? If what was the communication proper subjects sions are not for cross- between arresting the officers and in- the examination obviated the need for such dividual who made the decisions? At a balancing and east doubt as to the balanc- minimum, question the of admissibility words, ing made. In other the Rule 403 ” should be remanded to the district court so inquiry Op. was tainted.... at 247. I issues, that it can inquire into these cannot agree ground an alternative may others that bear on balancing. the for an evidentiary ruling must be disre- (if Fourth, garded by legal seeming as “tainted” the error breadth of the ma- one) jority opinion ground may there is in another be expected cited for to do ruling. the harms in other eases. When there are documents, charging several and several majority goes on to do the balanc- defendants, jury dealing will be with a itself, ing it, job and does a bad variorum edition of indictment. several reasons. Charging may documents not have been First, majority does not explain why drafted with expectation they we should not remand to the distriсt court would be final or authoritative. And (by vacatur or under our proce- Jacobson of charging drafts may documents become dure) for it to do balancing, now that subject of motions Brady under v. enlightened we are all as to the law. See Maryland, 373 U.S. 83 S.Ct. 10 generally Jacobson, United v. States (1963), L.Ed.2d 215 Giglio v. United (2d Cir.1994). 19, 22 F.3d States, 405 U.S. 92 S.Ct.
Second, case, danger of con- (1972), L.Ed.2d 104 or 18 U.S.C. fusing misleading jury great: the This is a can of worms.
underlying principles of New York law are (as
complex; “possession” of a firearm is B. out) judge pointed district legal “a The second majori- issue decided term of art rather than a factual observa- ty opinion concerns the relevance pro- tion,” 23; App. documents bative value of findings unrelat- steeped hearsay; are explication ed in which the trial judge declined likely require would testimony by state to credit testimony by certain a police prosecutors. and federal officer. White wanted to use the earlier Third, the Rule inquiry findings involves police cross-examine the wit- facts not before this Court. “The length against ness him. The issue framed of the chain necessary of inferences to the majority is whether this was “[e]vi- connect the evidence with the ultimate fact dence that might lead a to conclude *19 proved necessarily to be lessens the proba- that willing the officer was to lie in a evidence, tive value of the may and there- similar in case to order secure á criminal fore render it susceptible more to exclu- conviction.” Op. at 239. The judge district unduly sion as confusing, prejudicial, or on precedent, relied then-current to rule Ravich, time-consuming....” 421 F.2d at that such evidence must be excluded be- 1204 n. 10. majority The takes no account cause prior finding the “was finding not a
255 parts veracity, may problems [a and the with of general “note[] [the officer’s] on go credi- entirely party’s] story [party’s] to the is unrelated to [prior] case White, con- bility” “mak[ing] without the ultimate Dist. Lexis one.” 2009 U.S. testimony the entirety clusion that the of majority opinion explains, the at *9. As credibility”). suffers from a lack of On became two of those considerations seven (non-exhaustive) remand, amplify judge listed the district could considerations Cedeño, light findings of those of review the case Cedeño. later-decided transcripts the in order to make a Goines obvious that if this So it would seem fine-grained findings, more set of and elicit difference, evidentiary makes a the ruling police explanation from the an for officer (either by is to proper disposition remand the inconsistencies noted the Goines procedure), vacatur or under our Jacobson (as majority opinion empha- the court the apply for the district court seven- sizes) is from absent the record. plus factors of Cedeño. Instead, majority (again) the conducts clear, As makes whether a wit- Cedeño evidentiary analysis, making own find- its willing ness to lie a similar case” is “was ings as to the factors conclud- Cedeño and component fact is- several they “weigh strongly in favor ing I in- case similar? am sues. Was the Op. admissibility.” majority at 250. The so, I think and so decide if clined to would “should, suggests more data come in not). (which I judge district am I were the factors,” the the on various trial court is veracity as to general finding Was there evidentiary to conduct the balancing free As the district court the case? n.8; Op. at 251 248 But it “anew.” n.6. found, not. the state- there was Were trial court—in the the first instance —that not credited made as ments that were findings make fac- should on Cedeño question That is a that should willing lies? evidentiary balancing. tors and conduct court, can to the district which be confided role is This Court’s to review the balanc- transcript case supplement the it.1 ing, not conduct from police with live officer. judge The court found that the short, district In now that we have clarified the (as parts Goines credited officer’s testi- majority opinion law undertakes to mony parts, do), and discredited other I remand court would district parts the discredited could have been defi- it. apply pas-
cient reason “a combination time, confusion, lack
sage of of first- [and] knowledge.” Dist.
hand U.S. *9-10; at also Zaman v.
Lexis see (2d Cir.2008)
Mukasey, 514 F.3d curiam)
(per (emphasizing that factfinder role, question performing testimony.” App. trial ma- 257. But the court’s his when jority simple "the court's fear that becomes a lot less one considers discounts district prosecution get admitting the that the would then to con- evidence would confuse redirect, majority might jury.” Op. opinion duct it fairness be at 251. sought” posits "simply opportunity to set out the facts that the defense to ask afforded the cross-examination, explanations police question single id.: Goines and elicit from Diaz, previously gave v. testi- witness. See United States 176 F.3d [the officer] "whether oath, (2d Cir.1999) (“The scope mony gun of redirect ... under another federal judge is a entrusted to a trial in that examination matter whether *20 discretion.”). judge’s aspects six broad case refused to credit different