Summary
In Belk, the witness allegedly observed a "large, black handgun" in the defendant's possession one month prior to his arrest and the gun seized by police officers during the defendant's arrest (and for which he was charged) was a.45 caliber Colt pistol (i.e. a large, black handgun).
Summary of this case from U.S. v. MidyettOpinion
No. 01 CR 180 (LTS).
March 4, 2002
MEMORANDUM OPINION AND ORDER
The Court has received further submissions from the parties concerning the Government's request to proffer testimony, as part of its principal case, that defendant Charles Belk was seen in possession of a handgun approximately one month before he was arrested on the felon-in-possession charge that is the subject of this case, and the Government's motion in limine to preclude defense counsel from cross-examining Lt. James O'Sullivan on the matter of a complaint currently pending against him before the Civilian Complaint Review Board ("CCRB"). The Court has weighed carefully all arguments presented in connection with these applications. For the reasons discussed herein, the Government will not be permitted to present the handgun possession testimony as part of its principal case. The Court reserves decision as to the admissibility of such evidence, for purposes other than to show propensity, on rebuttal, or for impeachment purposes. The Court has further determined, on the basis of the information thus far provided as to the nature and status of the CCRB complaint, that the CCRB complaint is not an appropriate subject for cross-examination of Lt. O'Sullivan.
Evidence of Defendant's Possession of a Handgun Prior to His Arrest
The Government seeks to proffer testimony of a witness who claims to have observed Mr. Belk, in mid-August 2000, in possession of a large, black handgun (the Government describes the firearm identified in the Indictment as a large black handgun). The Government argues that such testimony can appropriately be received as direct evidence that Mr. Belk was in possession of the firearm on or about the date charged in the Indictment. The Government argues, alternatively, that the testimony is admissible under Federal Rule of Evidence 404(b), which permits the admission of evidence of prior bad acts by a person if such evidence is offered for a reason other than to show action in conformity therewith, for the purpose of establishing Defendant's "intent" and "opportunity" to possess the weapon.
The Government contends that evidence of prior possession of a handgun with the same general characteristics (i.e., large and black) as that allegedly seized from Mr. Belk on the night of his arrest constitutes direct evidence of Mr. Belk's guilt of the crime charged in the Indictment because weapon possession by a felon is a "continuing crime" and the Government could not have charged Mr. Belk separately for continuous illegal possession of the same handgun. See Gov't's letter of Feb. 27, 2002, at 2, citing United States v. Towne, 879 F.2d 880, 886 (2d Cir. 1989). Be that as it may, the Indictment here charges a specific incident of possession, postdating the alleged earlier sighting by approximately one month. The Government has proffered nothing (other than the corresponding general description of the weapon) to show that the alleged earlier possession "`arose out of the same transaction or series of transactions as the charged offense, . . . is inextricably intertwined with the evidence regarding the charged offense, or . . . is necessary to complete the story of the crime on trial.'" United States v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (citation omitted) (evidence of uncharged criminal activity is not considered "other crimes" evidence under Rule 404(b) if it meets one of those criteria); cf. United States v. Newton, No. S101CR.635 (CSH), 2002 WL 230964, at *2 (S.D.N.Y. Feb. 14, 2002) (refusing to admit other crimes as non-404(b) evidence where "[t]he charged crimes are straightforward and may be fully understood without reference to [evidence of the uncharged criminal activity]," and distinguishing Carboni, in which "evidence that the defendant added fictional items to his company's inventory was considered inextricably intertwined with the charged crime of making false statements to secure advances on a line of credit for that company [and t]he uncharged activity of falsifying inventory was considered part and parcel of the defendant's effort to paint a rosy financial picture of the company and therefore maintain the credit line."). Here, the Government has brought a simple possession charge, founded on the contention that Mr. Belk had a specific weapon in his possession at the time he was arrested. The defense, as thus far outlined, is that Mr. Belk did not have the weapon on the night of the arrest and that the police fabricated the weapons charge by "planting" the pistol. The probative value of an assertion that he also had this weapon, or a similar one, on a different occasion a month or more beforehand, is slim to non-existent. Here, as in Newton, "[t]he charged crim[e is] straightforward and may be fully understood without reference to [evidence of the uncharged criminal activity]." See 2002 WL 230964, at *2.
Nor does United States v. Towne, 870 F.2d 880 (2d Cir. 1989), relied upon by the Government, provide sufficient support for admission of the prior possession testimony as direct evidence in this case. In Towne, the Government had presented evidence that the defendant possessed the specific type of weapon charged in the indictment; here, the Government offers evidence that Mr. Belk had a large, black handgun, not the specific weapon charged in the Indictment. Moreover, continuity of possession and/or identity appear to have been at issue in Towne: in that case the evidence "was admitted to show that it was Towne and not someone else who exercised continuous dominion and control over the pistol, in violation of 18 U.S.C. App. § 1202 (repealed 1986)." Towne, 870 F.2d at 886. There has been no suggestion that the question of continuous possession is present in this case nor is there any indication that the defense intends to argue that Mr. Belk was mistakenly identified as the person in possession of the weapon on the date charged.
The issue to be determined at the trial of this case is whether Mr. Belk was, on the night of his arrest, in possession of the .45 caliber Colt pistol the police claim to have seized at that time. In the absence of issues such as those identified in Towne, and without any proffer of evidence of continuous possession of the weapon identified in the Indictment over the month-long gap between the earlier sighting and the arrest, the probative value of the proffered testimony as to Defendant's guilt of the crime charged (possession of a specific weapon at the time of the arrest) is minimal. Moreover, the relevance of such evidence to the determination of whether Defendant possessed the weapon under the circumstances charged in the Indictment is far outweighed by the danger of unfair prejudice and jury confusion. The jury should not be invited to assume that, because Defendant was allegedly spotted with a black weapon weeks before the arrest, he is likely to have had that weapon with him on the night of his arrest.
The Government contends alternatively that, if the testimony is not admitted as direct evidence of Defendant's possession of the weapon at the time charged in the Indictment, it should be received as evidence of a prior bad act pursuant to Rule 404(b). District courts enjoy broad discretion in deciding whether to admit evidence of prior bad acts. See United States v. Bok, 156 F.3d 157, 165 (2d Cir. 1998). "[T]he Second Circuit follows an inclusionary approach, . . . admitting evidence `unless it is introduced for the sole purpose of showing the defendant's bad character, or unless it is overly prejudicial under [Rule 404(b)] or not relevant under [Rule 402]." United States v. Paredes, 176 F. Supp.2d 172, 176 (S.D.N.Y. 2001) (quoting United States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996)). Federal Rule of Evidence 404(b) prohibits the admission of evidence of other crimes, wrongs or acts to show the character of a person to prove action in conformity therewith, but provides that such evidence may be admissible "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . ." Fed.R.Evid. 404(b).
The Government contends that the testimony can properly be received under Rule 404(b) on the issue of Defendant's "intent" and "opportunity" to possess the weapon in question. It is not clear at this point, however, whether those issues will be raised in this case. It appears at this point that the defense may assert, simply, that Mr. Belk had no gun in his possession at the time of the arrest and that the police officers fabricated their account of the arrest and seizure. If the defense develops along these lines there may be no issue as to whether Mr. Belk was able to possess a gun at that time or intended to possess a gun actually found in his possession. Other defenses might, however, raise issues to which this testimony would be quite relevant.
The Court, accordingly, reserves decision as to admissibility of the testimony for Rule 404(b) and/or impeachment purposes until such time as the parameters of the defense are clear. See Paredes, 176 F. Supp.2d at 175 ("[C]ourts considering a motion in limine may reserve judgment until trial, so that the motion is placed in the appropriate factual context."). Indeed, it may be that any admission of the evidence will have to follow presentation of the defense case, if any. See United States v. Colon, 880 F.2d 650, 661 (2d Cir. 1989).
The CCRB Complaint
The Government has moved in limine to preclude the defense from questioning Lt. James O'Sullivan, whom the Government expects to call as a witness, on the issue of a complaint against him filed with the CCRB within the past month. The Government represents that the complainant asserts that Lt. O'Sullivan, after responding to a call reporting a disturbance an being told by the complainant that there was no such disturbance, pushed complainant and, then, falsely accused her of striking him. The defense asserts that this charge is probative of bias in that Lt. O'Sullivan's desire to curry favor with his employer and avoid an adverse resolution of the charges could motivate him to tailor his trial testimony. The defense also contends that, because the charge goes to Lt. O'Sullivan's credibility, the jury is entitled to know that a person has alleged that Lt. O'Sullivan fabricated evidence which led to an arrest and "then took further steps to ensure that his misconduct would not be sanctioned." Feb. 26, 2002 letter from defense counsel to Court, at 5.
The Court finds that the existence and underlying facts of the complaint, as thus far disclosed to the Court, are not sufficiently probative of potential bias to warrant cross-examination concerning the charge. The event underlying the CCRB charge postdates Mr. Belk's arrest; the charge was filed long after Mr. Belk was indicted and, indeed, well after Lt. O'Sullivan's testimony in the suppression hearing held in this case. There has been no suggestion that Lt. O'Sullivan's testimony at trial will differ in any material respect from his earlier accounts of the arrest. There is, therefore, no indication that such testimony at trial will have been tainted by a desire to affect the outcome of the CCRB proceedings.
The Court also rejects Defendant's argument that it is entitled to present to the jury evidence that Lt. O'Sullivan has been accused, by a person he arrested, of falsifying charges unrelated to the Defendant's arrest. Rule 608 of the Federal Rules of Evidence gives the Court discretion to permit cross-examination regarding specific instances of a witness's conduct for the purpose of attacking the witness's credibility, if such instances are "probative of truthfulness or untruthfulness." Fed.R.Evid. 608(b). Based on the information thus far provided, the Court cannot find that the CCRB complaint is sufficiently probative of Lt. O'Sullivan's credibility to warrant permission to cross-examine on the issue.
The CCRB charge is disputed, unproven and arises from an incident, dissimilar in all but its broadest outline from the instant case, postdating Mr. Belk's arrest. The information provided by the Government suggests, moreover, that the complaining witness had more than the usual motivation to falsify her CCRB complaint in that Lt. O'Sullivan is said to have taken "steps to have [the complainant] suspended" from her civilian New York City Police Department job after the arrest but before the CCRB complaint was filed. In their current procedural posture the charges are no more probative of Lt. O'Sullivan's credibility than any arrestee's assertion that the police have lied concerning the circumstances of an arrest. To provide the jury with information sufficient to weigh fairly the significance of the charge would delay the trial needlessly and distract the attention of the jury from the issues that are central to the criminal charge in this case. To permit cross-examination without an explanation of Lt. O'Sullivan's position as to the merits of the CCRB complaint would be to cast unfair aspersions on his credibility. Cf. Fed.R.Evid. 403. The probative value of the defense's proposed line of questioning is, therefore, outweighed substantially by concerns of jury confusion and unfair prejudice under Federal Rule of Evidence 403.
The Government's motion in limine is granted, without prejudice to the ability of Defendant to renew his request in the course of the trial for permission to cross-examine on this topic. Any such renewed request must be supported by a proffer of a good faith basis, not inconsistent with the foregoing determinations, for the position that such cross-examination would be probative of relevant issues and not unfairly prejudicial or confusing. The parties are, again, reminded of the Court's admonition that sidebars during jury trials are discouraged and counsel are expected to anticipate any problems that might require argument and to raise those issues with the Court in advance of the time that the jury will be hearing the evidence.
SO ORDERED.