United States v. Bermudez

529 F.3d 158, 2008 U.S. App. LEXIS 12699, 2008 WL 2415713

• Court: Court of Appeals for the Second Circuit
• Decided: June 17, 2008
• Docket: Docket 06-5119-CR
• Status: Published

Opinions

Judge UNDERHILL dissents, in part, in a separate opinion.

JOHN M. WALKER, JR., Circuit Judge:

Defendant-Appellant Richie Bermudez appeals from his conviction on one count of possession of a firearm after having previously been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). He argues that a new trial is warranted on the grounds that the district court (Gerard E. Lynch, Judge) improperly admitted police testimony as to drug-related statements purportedly made by Bermudez; the district court’s usage of the “blind strike” method of jury selection violated Federal Rule of Criminal Procedure 24(b) as well as Bermudez’s constitutional rights; and two comments made by the government during summation were unfairly prejudicial. We reject all three of defendant’s arguments and affirm the judgment of conviction.

BACKGROUND

In light of the jury’s decision to convict Bermudez, we view the facts of the case in the light most favorable to the government. See Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 77 (2d Cir.2006); see also Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.2007). On June 26, 2004, New York City police officers — including Sergeant Von Kessel, and Officers Guerrero, Eise-man, Johnson, and Collura — conducted undercover surveillance near several nightclubs in the Bronx, an area that had a history of illegal drug activity and violence. During the surveillance operation, Officer Eiseman noticed Bermudez walking from club to club and speaking with various people on the street. Suspecting that Ber-mudez might be involved in street-level narcotic sales, Officer Eiseman continued to watch Bermudez. As Bermudez approached the area where Officer Eiseman’s unmarked car was parked, Officer Eise-man overheard Bermudez tell another man that he had “fresh bricks back at his apartment,” which Officer Eiseman understood to refer to kilograms of cocaine, and that Bermudez could get 500 grams at ten o’clock the next morning.

By radio, Officer Eiseman and his partner, Officer Collura, informed the team of the drug-related conversation that they had overheard, prompting the other officers to focus their attention 1 on Bermu-dez. From a second car, Sergeant Von Kessel and Officer Guerrero then watched Bermudez and another man, Carlos Delgado, walk toward a Toyota Camry parked in a well-lit area nearby. Both officers saw Bermudez open the trunk, pull out a gun, and hand it to Delgado, who placed the gun in the waistband of his pants. Sergeant Von Kessel radioed the team to report this sequence of events, provided a description of the two men, and told the team to move in and arrest them.

The officers converged on the scene and stopped Bermudez and Delgado. When Officer Johnson arrived, he promptly approached Delgado based on Sergeant Von Kessel’s description, frisked him, and retrieved the gun. The police also found $2600 in Delgado’s pants. Bermudez and Delgado were then arrested and each was subsequently charged with one count of possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Delgado pled guilty and did not appeal from his conviction or his sentence of seventy months’ imprisonment.

Bermudez’s first trial began in September 2005 and ended when the jury deadlocked. At his April 2006 retrial, the foregoing evidence was presented to the jury. The defense called Delgado as their only witness, but he invoked his Fifth Amendment privilege and declined to testify. In lieu of Delgado’s trial testimony, the district court allowed his testimony from an earlier unsuccessful suppression hearing to be read to the jury. At that hearing, Delgado admitted to possessing a gun but, consistent with his claim of an absence of probable cause, disputed the police officers’ entire account of how it came into his possession. According to Delgado, it was not Bermudez, but a man Delgado had just met who gave him the gun inside one of the nightclubs. Delgado also denied walking with Bermudez to the parked Toyota Camry and claimed instead that the police stopped and searched him without probable cause as he was exiting a nightclub. As for the $2600 found on his person at the arrest, Delgado testified that it was “shopping money” for children’s clothes. He claimed that he had come to New York from Massachusetts because clothes were cheaper in New York.

The jury returned a guilty verdict against Bermudez on May 2, 2006, and, after denying his motion for a new trial, the district court gave Bermudez the same sentence of seventy months’ imprisonment that it had given Delgado. Bermudez now appeals the judgment of conviction.

DISCUSSION

Bermudez raises three issues on appeal. He argues that the district court erred in admitting testimony about the drug-related statements that he purportedly made, because they were more prejudicial than probative; that the district court’s use of the “blind strike” method of jury selection is unconstitutional and inconsistent with Federal Rule of Criminal Procedure 24(b); and that the government’s statements during closing arguments unfairly prejudiced him.

I. The Admissibility of Bermudez’s Drug-Related Statements

Under Federal Rule of Evidence 403, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. District courts have broad discretion to balance probative value against possible prejudice, United States v. LaFlam, 369 F.3d 153, 155 (2d Cir.2004), and we will not disturb that balancing “unless there is a clear showing of abuse of discretion or that the decision was arbitrary or irrational,” United States v. Ansaldi, 372 F.3d 118, 131 (2d Cir.2004).

Bermudez argues that the district court erred in admitting Officer Eiseman’s testimony that he overheard Bermudez make statements suggestive of narcotics trafficking, namely that he had “fresh bricks,” a common form of cocaine, in his apartment, and that he could get 500 grams the following morning. Bermudez claims that the testimony at best was marginally relevant and that it was unnecessary for Officer Eiseman to testify as to what specifically had prompted him to call the surveillance team to focus their attention on Bermudez. Weighing against this marginal probative value, Bermudez asserts, was the high risk that the jury would view him as a drug dealer and be more inclined to convict him on the gun charge based on this irrelevant fact. Ber-mudez further argues that the district court abused its discretion in admitting the testimony on direct examination, and that the proper course would have been to admit the statements only after the defense had “opened the door” to the issue of credibility on cross-examination.

The district court, however, found the probative value of the drug-related statements to be “significant” because the primary issue at trial would be “whether the officers saw what they say they saw with respect to the gun.” Critical to the credibility of the officers’ account was the reason why they chose to watch Bermudez so closely. The experienced district judge further determined that the risk of prejudice from brief references to drug-dealing was relatively low in this case: “I don’t believe that references to drug dealing are somehow shocking or more prejudicial in comparison to the gun charge in the case.”

To minimize any potential prejudicial effect, the district judge issued two limiting instructions — once after Officer Guerrero testified that she received a radio communication regarding the drug conversation overheard by Officer Eiseman and his partner, and again after Officer Eiseman testified as to the conversation itself. The district judge instructed the jury that this testimony was only relevant “in evaluating the evidence to try to judge the credibility of what the officers are telling you,” as it explained why the officers were watching Bermudez, and that it was “entirely irrelevant” as to whether Bermudez did or did not possess a gun on this particular occasion. See Tr. 108-10 (“I just want to make doubly, triply, emphatically clear to you that it’s not your responsibility to decide whether Mr. Bermudez is involved in anything with respect to narcotics. That’s not the charge.”).¹

Under these circumstances, we conclude that the district court’s decision to admit the testimony was not an abuse of discretion. It was apparent from the beginning of the retrial that the authenticity of the officers’ account would be contested. At his prior suppression hearing, Delgado, the defense’s only witness — and indeed, “the only potential exculpatory witness,” as the district court noted — disputed every aspect of what the officers claimed to have seen, including their claim that he received the gun from Bermudez out of the trunk of a Camry. The district court decided to admit this testimony, over the government’s objection, in advance of Bermudez’s first trial in September 2005. The defense therefore knew that Delgado’s testimony would be admitted when it told the jury during opening statements in the second trial that credibility — specifically, whether the police had fabricated a story to justify Bermudez’s arrest — was at the heart of the case.

Given the properly anticipated centrality of the officers’ credibility to the outcome of the case, the district court was not required to wait for Bermudez to launch a direct credibility attack on cross-examination before admitting the officers’ testimony as to Bermudez’s drug-related comments. Cf. Supplemental App. at 50, 52 (permitting the government to elicit the drug-related testimony at Bermudez’s initial September 2005 trial, and noting that “the whole issue is whether these officers are to be believed anyway, ... the defense will presumably be saying all these guys aren’t telling the truth,” and “the officers’ credibility is central”). We further note that at the second trial, Bermudez did not request the district court to defer the drug-related testimony until the defense had opened the door; rather, he moved to preclude the testimony altogether.

To convince the jury that the officers’ story was credible, it was important for the government to establish, as a foundation for the actions taken by the surveillance team that night, why the officers’ attention was focused on Bermudez as opposed to any number of other individuals in the high crime area. Without a reasonable explanation for singling out Ber-mudez, the officers’ testimony as to everything that followed could have been suspect. 1 Thus, providing this explanation to the jury was highly probative, as the district court found, and contributed importantly to the completeness of the officers’ account. See United States v. Thai 29 F.3d 785, 813 (2d Cir.1994) (holding that, where the defense theory was that government informants were lying, testimony that corroborated the informants’ account was properly admitted under Rule 403).

Moreover, any danger of unfair prejudice was minimized by the district court’s two detailed limiting instructions, issued immediately after Officers Guerrero and Eiseman testified to the drug-related statements. Any argument that these instructions were insufficient to eradicate the statements’ prejudicial effect fails because “[ajbsent evidence to the contrary, we must presume that juries understand and abide by a district court’s limiting instructions.” United States v. Downing, 297 F.3d 52, 59 (2d Cir.2002); see also Zafiro v. United States, 506 U.S. 534, 540-41, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (“[E]ven if there were some risk of prejudice, here it is of the type that can be cured with proper instructions, and juries are presumed to follow their instructions.” (internal quotation marks and citation omitted)). Under the circumstances here, the jury could reasonably be expected to comply with the limiting instructions; thus, the “instructions sufficed to cure any possibility of prejudice.” Zafiro, 506 U.S. at 541, 113 S.Ct. 933; cf. United States v. LaFlam, 369 F.3d 153, 157 (2d Cir.2004) (holding, in an armed robbery case, that the district court did not abuse its discretion in admitting evidence of the defendant’s uncharged drug use because the district court properly balanced probative value against prejudice and “also gave a limiting instruction to the jury that reduced any potential prejudice that introduction of the uncharged other act evidence might have caused”).

II. The “Blind Strike” Method of Jury Selection

Bermudez next challenges the district court’s employment of the “blind strike” method of jury selection. Under this method, both parties simultaneously, rather than alternately, exercise their peremptory challenges and thus do not know which jurors the other has struck. He claims that this method violated Federal Rule of Criminal Procedure 24(b) and his constitutional rights to due process and effective assistance of counsel. In particular, Bermudez argues that because both he and the government struck the same juror, he was effectively “deprived ... of the full and knowledgeable use of his allotted challenges.” Appellant’s Br. at 18.

The Supreme Court’s express approval of the blind strike method in Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894), forecloses Bermudez’s argument. In Pointer, the Court addressed whether a defendant is “entitled of right to have the government make its peremptory challenges first, that he might be informed, 1 before making his challenges, what names had been stricken from the list by the prosecutor.” Id. at 409, 14 S.Ct. 410. The Court held that no such right existed, and that a defendant is “only entitled of right to strike [a certain number of names] from the list of impartial jurymen furnished him by the court.” Id. at 412, 14 S.Ct. 410.

In a non-capital felony case, Federal Rule of Criminal Procedure 24(b) sets the number of peremptory challenges to which a defendant is entitled at ten and the government at six; it does not prescribe any method for the exercise of those challenges. See Fed.R.Crim.P. 24(b); United States v. Blouin, 666 F.2d 796, 798 (2d Cir.1981). Rather, “trial courts retain a broad discretion to determine the way peremptory challenges will be exercised.” United States v. Thompson, 76 F.3d 442, 451 (2d Cir.1996) (internal quotation marks and citation omitted).

Under Pointer and Rule 24(b), Bermu-dez had a right only to reject ten jurors from the full list, and this right was fully accorded to him by the method that Judge Lynch selected:

Being required to make all of his peremptory challenges at one time, [defendant] was entitled to have a full list of jurors.... Such a list was furnished to him, and he was at liberty to strike from it the whole number allowed by [Rule 24(b) ], with knowledge that the first 12 on the list, not challenged by either side, would constitute the jury....

It is true that, under the [blind strike] method pursued in this case, it might occur that the defendant would strike from the list the same persons stricken off by the government; but that circumstance does not change the fact that the accused was at liberty to exclude from the jury all, to the number [ten], who, for any reason, or without reason, were objectionable to him. No injury was done if the government united with him in excluding particular persons from the jury.

Pointer, 151 U.S. at 411-12, 14 S.Ct. 410. Thus, no constitutional deprivation or violation of Rule 24(b) occurred when Bermu-dez struck the same juror as the government.

We further note that all five circuits that have considered similar challenges to the blind strike method have upheld it as constitutional and consistent with Rule 24(b). See United States v. Warren, 25 F.3d 890, 894 (9th Cir.1994) (“Even when the government and a defendant challenge the same juror, the blind strike method does not impair a defendant’s full use of his or her peremptory challenges. Rule 24(b) does not specify that a defendant’s challenges may not overlap the government’s.” (citations omitted)); United States v. Norquay, 987 F.2d 475, 478 (8th Cir.1993), abrogated in part on other grounds by United States v. Thomas, 20 F.3d 817, 823 (8th Cir.1994); United States v. Mosely, 810 F.2d 93, 96-97 (6th Cir.1987); United States v. Roe, 670 F.2d 956, 961 (11th Cir.1982); United States v. Sarris, 632 F.2d 1341, 1343 (5th Cir.1980). We join our sister circuits in upholding the use of the blind strike method of exercising peremptory challenges.

III. The Government’s Closing Arguments

Bermudez’s final contention is that he was unfairly prejudiced by two statements made during the government’s closing arguments. The first was a comment casting doubt on Delgado’s claim that he traveled to New York to purchase discount children’s clothing because “life experience tells you the cost of the trip from Massachusetts to New York was more than any discount on clothing he was going to find here.” The second was the government’s rebuttal to the argument that it was hiding something by not calling as a witness Officer Eiseman’s partner, Officer Collura, who also allegedly overheard Bermudez’s drug-related statements. The government stated, “What would Officer Collura have told you, that he overheard the same thing?”

“[Rjeversal on the basis of improper prosecutorial statements during summation is warranted only when the statements, viewed against the entire argument before the jury, deprived the defendant of a fair trial.” United States v. Myerson, 18 F.3d 153, 163 (2d Cir.1994) (internal quotation marks and citation omitted). In this case, Bermudez was not substantially prejudiced by the government’s summation because the district court promptly issued a curative instruction after each comment to ensure that the jury did not draw any improper inferences. See United States v. Thomas, 377 F.3d 232, 244-45 (2d Cir.2004) (holding that the prosecutor’s statements were not misconduct causing substantial prejudice where the district judge provided an immediate curative instruction). Accordingly, Bermudez’s challenge to the prosecution’s summation arguments fails.

CONCLUSION

For the foregoing reasons, the judgment of conviction is Affirmed.

1 . These instructions belie the dissent's assertion that "[n]one of the limiting instructions given in this case told the jury that they could not consider whether Bermudez was a drug dealer when deciding whether he was guilty of the gun charge.” Dissent at 170-71.