New York Federal Criminal Practice Blog
November 6, 2009

Second Circuit Reverses Two Cases Because of Improper Admission of Propensity Evidence

Evidence - even suggestions - of uncharged conduct at trial can be devastating, especially in a circumstantial case, as the Second Circuit acknowledged recently in two cases.  In one, United States v. Farmer, 2009 WL 3200690 (2d Cir. October 8, 2009), the Court vacated a defendant’s attempted murder conviction where gratuitous references to his nickname “murder” “short-circuited the jury’s fact-finding” regarding a plausible defense.  In the other, United States v. Williams, 2009 WL 3429594 (2d Cir. October 27, 2009), the Court vacated a conviction for gun possession where the trial judge had admitted evidence that the defendant had access to an apartment that was discovered a day after his arrest to contain, among other savory items, loaded firearms, ammunition, drugs, and bullet-proof vests.  Rejecting the government’s claim that this was essential “background evidence” (it didn’t fill any “gaps in the government’s case” or add “missing pieces of the story”), the Court also rejected the argument that the evidence was relevant under Fed.R.Evid. 404(b) to prove the defendant’s “opportunity and motive” to possess a gun.  Even if this was the case - and the government didn’t use it for this purpose at trial - much of the evidence “went far beyond what was necessary for this purpose.” In lines that could be applied to many motions by the government to admit the defendant’s other alleged bad acts, the Court explained:

Its admission ignored a “common sense precaution which should clearly be taken ... to limit the prosecutor’s presentation to such facts ... as are reasonably necessary to prove the point for which the evidence is admitted, and to exclude unsavory details which go beyond what is necessary to make the point.”  David W. Louisell & Christopher B. Mueller, Federal Evidence § 140, at 209 (rev. ed.1985); see also United States v. Bradwell, 388 F.2d 619, 622 (2d Cir.1968) (discussing the undue prejudice that can result when the “minute peg of relevancy [is] entirely obscured by the dirty linen hung upon it” (citation omitted)).

Lawyers (Farmer): Jeremy Epstein, Seth Kean, Grace Lee, Rebecca Boon (Shearman & Sterling LLP) (defendant); AUSAs Ilene Jaroslaw, Peter Norling
Lawyers (Williams): Donald Yanella (defendant); AUSAs Justin Lerer, Jo Ann Navickas

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