New York Federal Criminal Practice Blog
July 21, 2009

Second Circuit Affirms Admission of “Other Act” Evidence; District Judge Dissents

Contributor Robert Culp writes:

Common sense would seem to dictate that a dissent by a district judge sitting by designation is a rare occurrence.  Indeed, a rough calculation in the Second Circuit found some 2500 cases decided in the last five years with a district judge sitting by designation with only 14 dissents by those judges.  And only three of those dissents were in criminal cases.  (Apologies if the research methodology missed some.)

In United States v. Mercado, 2009 WL 2096234 (2d Cir. 2009. (July 17, 2009), Judge Droney, a district judge in the District of Connecticut and formerly the U.S. Attorney in that district, dissented from a panel affirmance on an issue of whether the district court should have admitted “other act” evidence under Rule 404(b) of the Federal Rules of Criminal Procedure and concluded the error was sufficient to warrant a new trial.  This is the kind of issue where appellate judges inevitably state the importance of deference to district judges, so the prospect of a district judge sitting by designation disagreeing with two appellate colleagues on such an issue makes for interesting reading indeed.

Majority Opinion

The case is presented unusually in that the dissent is where the background and overall case description is found while the majority opinion is limited to conclusions and analysis.  After rejecting an evidentiary sufficiency claim as to which there was no disagreement, the majority opinion turned to the Rule 404(b) issue.  Noting applicability of the “abuse of discretion” standard, the majority turns abruptly to its conclusion that the other act evidence was admissible because it went to “knowledge and intent” and furnished background to the charges and prior dealings between the alleged conspirators.  Noting that the defense in part was that defendant did not know he was participating in any drug transaction, the Court concluded that “prior gun sales” can “suggest that defendant was not an innocent pawn taken by surprise by the drug transaction.”  The Court went on to conclude that the probative value of the evidence outweighed any prejudice, and that the prior gun transactions were “not especially worse or shocking than the transactions charged.”  The Court also noted that the district court gave limiting instructions to the jury.

Judge Droney’s Dissent

Judge Droney wrote that while he was mindful of the “considerable deference accorded a trial court’s evidentiary rulings” and the abuse of discretion standard, he felt obligated to dissent.  He then turned to what is absent in the majority opinion – the background of the Rule 404(b) proffer in the context of the case.  Defendant Townsend was charged with participating in narcotics trafficking by driving principals to various locations for errands, including one where a drug transaction ensued, and by having a gun in the car at one point.  The main defense in the case was that defendant in driving others on various errands was merely present and did not knowingly join any drug conspiracy, and in fact he was not paid for his role.  (In fact, just such a defense persuaded EDNY Judge Sifton to grant a judgment of acquittal recently in Heras.)  The Rule 404(b) evidence was that defendant had previously arranged for sale of a handgun to one of the principals, Jones – who at all relevant times for purposes of the crimes charged and the Rule 404(b) evidence was cooperating with law enforcement.

Judge Droney, detailing and distinguishing Circuit precedent, argued that the Rule 404(b) act of arranging for a gun purchase did not bear any similarity to the charge of driving others to a drug transaction allegedly with intent to join a drug conspiracy.  Nor, argued Judge Droney, did it bear on the relationship between Townsend and Jones since it was undisputed that they had been friends since childhood.  Judge Droney also concluded that the prejudice outweighed any probative value – that the district court concluded little more than the Rule 404(b) evidence was “no worse” than the crimes charged, and that the proffer was not at all necessary to establish any relationship between Townsend and Jones.  It also concerned Judge Droney that the Rule 404(b) evidence itself grew out of the importuning of a government cooperating witness.  Judge Droney also concluded that the limiting instructions by the district court were erroneous, describing the evidence as being relevant to an aspect of knowledge that was actually undisputed and mischaracterizing the relevant time period.  Judge Droney concluded finally that the error was not harmless, calling the government’s case as to defendant’s knowing participation weak and based essentially on the word of a cooperator Jones whose credibility had been seriously undermined at trial.


The Rule 404(b) issues in the case alone make it a worthwhile read.  A critic might find that the majority’s conclusion that the gun evidence suggested that Townsend was not an “innocent pawn” itself suggests the very character inference that Rule 404(b) is supposed to exclude – that because defendant committed a previous “bad” act involving Jones, he more likely did so as to the charged offense as well – and that the lack of similarity between the Rule 404(b) act and the charged offense disrupts any nexus to knowledge or intent.  Nor, arguably, is it so easy to understand why the evidence was necessary to explain a relationship between undisputed lifelong friends, particularly where that relationship was skewed by Jones becoming a cooperating witness at the time of the events in question.  But beyond Rule 404(b), the case makes for good theater because a district judge, presumably well aware of the deference accorded to trial evidentiary rulings, disagreed with his appellate colleagues about whether such deference was due here.  Whether Judge Droney was more drawing his own conclusion than deferring to the trial court, or whether he was undertaking a pointed explication of why deference was not appropriate is the crux of the debate in this case.

Lawyers: Elizabeth E. Macedonio (Defendant); AUSAs Amanda Kramer and Michael Levy

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