23-6790 United States v. Garnes
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2023
(Argued: January 9, 2024 Decided: May 28, 2024)
Docket No. 23-6790
UNITED STATES OF AMERICA,
Appellant,
— v. —
QUADRI GARNES,
Defendant-Appellee.
B e f o r e:
LYNCH, NARDINI, and KAHN, Circuit Judges.
__________________
Defendant-Appellee Quadri Garnes was charged in the United States District Court for the Eastern District of New York with threatening to assault and murder employees of the United States Postal Service (“USPS”) and transmitting in interstate commerce communications containing one or more threats to injure the person of another, in violation of 18 U.S.C. §§ 115(a)(1)(B) and (b)(4) and 875(c). The charges arose from a phone call that Garnes made to the New York State Department of Labor (“DOL”). Prior to trial, Garnes moved to exclude five statements that he made during that call, which reference his criminal record. The district court (Morrison, J.) granted his motion and excluded the five statements under Rule 403 of the Federal Rules of Evidence. On appeal, the government argues that the district court exceeded its discretion in excluding the five statements. We agree. The district court incorrectly concluded that the five statements were of “limited” probative value that was outweighed by a danger of unfair prejudice. The statements at issue are in fact highly probative, as they are both a significant part of the threat that is the actus reus of the crime and substantially probative of the required mens rea, the defendant’s intent that his words be understood by the victims as a true threat. Accordingly, we REVERSE the district court’s order of exclusion, and REMAND the case for further proceedings.
ANTOINETTE N. RANGEL (David C. James, Alexander Mindlin, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellant.
COLLEEN P. CASSIDY, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellee.
GERARD E. LYNCH, Circuit Judge:
On September 29, 2022, Defendant-Appellee Quadri Garnes called the
New York State Department of Labor (“DOL”) to inquire about his eligibility for
unemployment benefits based on his brief employment with the United States
Postal Service (“USPS”). After being informed that he was ineligible for benefits, Garnes made statements over the phone to two DOL employees that the
government alleges constituted true threats to harm USPS officials and others.
The alleged threats incorporated five statements that referenced (and indeed
overstated) Garnes’s prior criminal record.
A grand jury in the Eastern District of New York indicted Garnes on two
counts in connection with the September 29, 2022 phone call: threatening to
assault and murder employees of the USPS, in violation of 18 U.S.C.
§ 115(a)(1)(B) and (b)(4) (Count One), and transmitting in interstate commerce
communications containing one or more threats to injure the person of another,
in violation of 18 U.S.C. § 875(c) (Count Two).
Prior to trial, Garnes moved to require the government to redact the
threatening conversation to exclude the five references that Garnes himself made
to his criminal history and prior incarceration, citing Rules 401, 402, and 403 of
the Federal Rules of Evidence. The government opposed the motion. On July 7,
2023, the district court (Nina R. Morrison, J.) granted Garnes’s motion and
excluded the five statements, concluding that the probative value of that
evidence is substantially outweighed by a danger of unfair prejudice, confusing
the issues, and misleading the jury. On appeal from that order, the government argues that the district court
exceeded its discretion in excluding the five statements, because (1) it
underestimated their probative value and misapplied Rule 404(b) of the Federal
Rules of Evidence and Second Circuit case law to its analysis of unfair prejudice;
(2) it did not properly consider the utility of a limiting instruction; and (3) it
wrongly relied on the existence of what it considered to be “strong” alternative
evidence.
For the reasons set forth below, we hold that, in a prosecution for making
threats, the district court exceeded its discretion in excluding portions of the
threats themselves under Rule 403 of the Federal Rules of Evidence, where those
statements, made by the defendant himself, are highly probative, and any unfair
prejudice can be substantially reduced by a limiting instruction. Accordingly, we
REVERSE the district court’s order of exclusion, and REMAND the case for
further proceedings.
BACKGROUND
I. Factual Background1
1 The following facts, which the government believes it will establish at trial, are taken from the government’s briefs and appended exhibits in support of its motions in limine and in opposition to Garnes’s motion in limine in the district court. Garnes worked as a mail carrier for the USPS from late March or early
April 2022 to late May 2022. Following his termination from that position, he
applied for unemployment benefits. His claim was denied because he had not
worked for the USPS long enough to be eligible for the benefits.
On September 29, 2022, Garnes telephoned the DOL to inquire about his
unemployment benefit claim. Over the course of a 45-minute phone
conversation, Garnes spoke with two DOL employees, who each advised him
that he did not qualify for unemployment benefits. In response, Garnes made a
series of statements expressing his frustration with that outcome.
Some of the statements indicated that Garnes would shoot individuals at
the USPS and DOL: “If I go back to the post office, I’m gonna shoot somebody.”
Gov’t App’x 81. “Oh, so I gotta go to the post office and shoot the post office up,
right?” Id. at 89. “Somebody might get shot today coming out of Department of
Labor.” Id. at 90. Other statements conveyed that Garnes’s reaction to the denial
of benefits would land him in jail or prison (“Y’all gonna make me go to jail,” id.
at 82) and that he was comfortable with that possibility (“I’m made, as long as
I’m in the New York City jail, I’m good,” id. at 88). Garnes also acknowledged
that he knew the conversation was being recorded: “And I’m putting it out there
on, cause I know this is recorded, because if I was to do something like that, at least when they start going through the records, they know why it was done.” Id.
at 88. Of particular relevance to this appeal, some of the statements indicated that
Garnes had a criminal history, for example: “Cause listen didn’t I just tell you I
got 18 and a half years in jail. It don’t bother me to be in jail.” Id.
The DOL reported the conversation to the New York State Police and the
United States Postal Inspection Service. Law enforcement searched for Garnes
and took steps to protect the employees of the DOL and USPS. The DOL also
informed its employees of the threats and took additional safety measures.
Garnes was arrested two weeks later.
II. Procedural History
In a superseding indictment dated June 16, 2023, Garnes was charged with
threatening to assault and murder officials whose killing would be a crime under
18 U.S.C. § 1114, in this instance, employees of the USPS, in violation of 18 U.S.C.
§ 115(a)(1)(B) and (b)(4) (Count One), and transmitting in interstate commerce
communications containing one or more threats to injure the person of another,
encompassing the DOL employees, in violation of 18 U.S.C. § 875(c) (Count Two).
On June 23, 2023, Garnes moved in limine to exclude evidence relating to
his prior criminal history, namely, the five statements that he made during the
phone call with the DOL that referenced his time in jail, his prior felony convictions, and the places of his past incarceration. The five statements that
Garnes sought to exclude are:
I got 18 and a half years in jail. I got 18 and a half years. No, listen, listen, I have eight.
[T]o make myself not stop from robbing a bank. They’re 18 and a half years in jail.
[L]ook, look, I got mad felonies. I got like nine, 10 felonies, right?
Cause listen didn’t I just tell you I got 18 and a half years in jail. It don’t bother me to be in jail.
And I told you I got 18 and [a] half years all together in jail, all together in prison. [N]ot Rikers Island, state prison, state prison, Clinton, A[t]tica, Elm[i]ra state prison. [M]aybe where your, where, where, where, where your place is in Albany.
Gov’t App’x 46–47, 81–89.2
Garnes contended that those statements did not constitute threats or
statements of intent, but rather, were, “at worst, poorly phrased attempts . . . to
characterize the absurdity of his predicament; one where it is preferable, from an
economic standpoint, to be incarcerated than to live as a free man.” Id. at 50.
2 Though Garnes listed the statements he sought to exclude in his motion, id. at 46–47, the statements are reproduced here from the full transcript, id. at 76–90, which both parties cite in their briefs. The language of the five statements varies slightly between the memorandum of law in support of the motion in limine and the transcript, but the differences are immaterial to the issues on appeal. Additionally, nonverbal communications such as “” have been deleted from the language reproduced in this opinion. Accordingly, Garnes argued that the five statements should be excluded under
Rule 402 of the Federal Rules of Evidence because they are “irrelevant to the
charged offense” and, even if they are minimally relevant, under Rule 403 of the
Federal Rules of Evidence because they are “highly prejudicial.” Id. at 47.
Garnes further argued that the statements are misleading because he had
“unintentionally misstate[d]” his criminal history “in a manner that suggests that
it is worse than it actually is,” and that this also increases the danger of unfair
prejudice. Id. at 48–49. Although Garnes told the DOL that he had spent 18 and a
half years incarcerated in various state facilities as a result of nine or ten felony
convictions, in reality, Garnes had been incarcerated for a total of only seven
years, in a single institution – Ulster Correctional Facility. The 18-and-a-half-year
figure referred to the span of time that Garnes had spent in and out of the
criminal justice system, and the reference to nine felonies reflected the number of
felonies Garnes had been charged with, though he was convicted of only three.
The government opposed Garnes’s motion to exclude, arguing that the five
statements are more probative than prejudicial, and are directly probative of the
charged offenses. In particular, the government argued that the statements are
highly relevant evidence to its required showing of mens rea, because in a true
threat prosecution, the government must prove that the defendant had some subjective understanding of the threatening nature of his statements. See
Counterman v. Colorado, 600 U.S. 66, 69 (2023). Therefore, the government asserted
that the statements should be admitted into evidence with the rest of the
recorded phone call.
After the final pretrial conference, the district court issued an electronic
docket order on July 7, 2023 that granted Garnes’s motion in limine to exclude the
five statements, concluding that their probative value is substantially outweighed
by a danger of unfair prejudice, confusing the issues, and misleading the jury
under Rule 403. The district court also stated that it would provide its reasons for
the ruling on the record prior to the beginning of jury selection.
Two days later, the government submitted a letter to the district court
arguing that, by excluding portions of the September 29, 2022 call, the July 7, 2023
order excluded portions of the charged conduct, which should be admitted
because that evidence is highly probative of both the actus reus and the mens rea
of the charged offenses. As theorized by the government, that evidence “would
allow a jury to assess the criminal conduct in its entirety” and to “reasonably
infer” that Garnes repeatedly referenced his criminal history to demonstrate to
his victims that his threats should be believed because he had committed crimes
in the past and was comfortable with the prospect of returning to jail, which goes to his knowledge and intent. Gov’t App’x 113. The government urged the district
court to issue a limiting instruction to address its concerns about undue
prejudice, rather than taking the “unprecedented step of excluding, in a trial for
threats, portions of the threats themselves.” Id. It proposed a limiting instruction
that would explain that the five statements should not be considered for their
truth or that Garnes’s account of his criminal history is inaccurate and should not
be relied upon for its truth.
The district court issued an oral ruling on July 10, 2023 and a
memorandum and order on July 12, 2023, adhering to its decision to exclude the
five statements and denying the government’s request for a limiting instruction.
The court concluded at the threshold that the statements are relevant evidence
under Rule 401, particularly as to the question of whether Garnes had the
requisite mens rea for his statements to constitute true threats under the two
statutes he is charged with violating.
Despite the relevance of these statements, the district court excluded them
under Rule 403. In conducting the balancing analysis required by that Rule, the
court concluded that the probative value of the statements is “limited.” United
States v. Garnes, No. 1:22-CR-00487 (NRM), 2023 WL 4489983, at *5 (E.D.N.Y. July
12, 2023). The court compared what it considered to be the available evidentiary alternatives, concluding that Garnes’s explicit statements about shooting and
killing people at the DOL and USPS are “much more probative” than Garnes’s
statements about his criminal history, and would be available to the government
at trial to prove the elements of the crimes charged. Id. at *6.
Weighed against that assertedly limited probative value, the court
concluded that the statements carry a high risk of unfair prejudice, confusing the
issues, and misleading the jury. The court stated that reference to a defendant’s
criminal record is always highly prejudicial, and the risk of unfair prejudice in
the present case is even higher because the statements at issue inflate Garnes’s
criminal record and suggest that he has served more time, in more state facilities,
for more felony convictions, than was actually the case. Further, the court
concluded that the proposed limiting instruction could not address its concerns
regarding the risk of unfair prejudice, confusing the issues, and misleading the
jury – it would only “raise more questions than it answers” for the jury. Id. at *7.
Accordingly, the court excluded the statements, on the basis that their “limited”
probative value is substantially outweighed by a danger of unfair prejudice,
confusing the issues, and misleading the jury. Id. at *5.
The court went on to recognize that there may be other true threat cases
where the government could succeed in admitting statements referencing prior crimes, such as:
where it does not also have the benefit of numerous statements evidencing the alleged threats that are separate and apart from references to a defendant’s prior criminal convictions; where the allegedly threatening statements are far less explicit or readily comprehended by a jury than those made here, thus requiring the statements to be contextualized by the defendant’s criminal history; or in which a [d]efendant’s references to his prior record are truly “inextricable” from the [g]overnment’s other proof.
Id. at *7. It concluded this was not such a case. This interlocutory appeal
followed.
DISCUSSION
On appeal, the government argues that, in a prosecution for making
threatening statements, the district court erred in excluding portions of the
threats themselves on the basis that the defendant’s own exaggerated references
to his criminal history were unfairly prejudicial under Rule 403 of the Federal
Rules of Evidence. We agree.
Rule 403 provides that a district court “may exclude relevant evidence if its
probative value is substantially outweighed by a danger of,” among other things,
“unfair prejudice, confusing the issues, [or] misleading the jury.” Fed. R. Evid.
403. In making a Rule 403 determination, “[a] court should consider the possible
effectiveness of a jury instruction and the availability of other means of proof.” United States v. Dupree, 706 F.3d 131, 138 (2d Cir. 2013), citing Fed. R. Evid. 403
advisory committee’s note; see also Fed. R. Evid. 403 advisory committee’s note
(“The availability of other means of proof may . . . be an appropriate factor.”).
We grant considerable deference to a district court’s determination to
exclude relevant evidence under this rule, recognizing that Rule 403 calls for “on-
the-spot balancing,” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384
(2008), which district courts are well-positioned to carry out due to their
proximity to the detailed circumstances of the case. Accordingly, we will reverse
a district court’s ruling on admissibility under Rule 403 as an abuse of discretion
only if its conclusion is “arbitrary or irrational.” United States v. Awadallah, 436
F.3d 125, 131 (2d Cir. 2006).
As explained below, we hold that the district court erred in excluding the
evidence. This case differs from the typical case in which the government seeks to
introduce independent evidence of a defendant’s criminal conviction(s), or
background conversations or events that allude to a defendant’s time in prison or
guilt. See, e.g., United States v. Jamil, 707 F.2d 638 (2d Cir. 1983) (reversing the
district court’s exclusion of a tape recording “made by a government informant
of a conversation with [the] defendant” that “suggest[ed] that law enforcement
officers were interested in the defendant” under Rule 403). By contrast, the statements at issue here were part of the actus reus of the crime. The statements
were injected into the case by Garnes himself, as part of the very same
conversations in which he made the threats. Their probative value was
particularly strong, because a reasonable jury could find that they were powerful
indications that Garnes’s statements about shooting USPS and DOL personnel
were, and were intended to be, true threats. The jury could find from those
statements that Garnes emphasized, and indeed exaggerated, his character as a
dangerous person in order to frighten those threatened by suggesting that he had
the capacity to carry out his threats, and that he would not be deterred from
carrying them out by the threat of punishment. Thus, the inference that Garnes
was a violent person was not an unfair inference that one party sought to create
in the minds of the jury about its adversary, but an impression that Garnes
himself could be found to have sought to create in the minds of the victims. The
court also overweighted the prejudicial effect of the statements by failing to
recognize the likelihood that the danger of unfair prejudice could be mitigated by
a limiting instruction.
I. Relevance
Because Rule 403 concerns the admissibility of relevant evidence, a district
court must first determine, before undertaking the balancing analysis required by Rule 403, whether the evidence at issue is “relevant,” as defined by Rule 401.
Relevance describes the relationship between “an item of evidence and a matter
properly provable in the case.” Fed. R. Evid. 401 advisory committee’s note.
Here, the district court agreed with the government that the five statements that
Garnes seeks to exclude are relevant evidence. Nevertheless, to inform the Rule
403 balancing analysis, it is worth elaborating why the evidence is relevant. We
begin by explaining the elements of the crimes for which Garnes was to be tried.
Garnes was charged with violating 18 U.S.C. §§ 115(a)(1)(B) and 875(c).
Section 115(a)(1)(B) makes it a federal crime to “threaten[] to assault . . . or
murder . . . an official whose killing would be a crime” under 18 U.S.C. § 1114;
such officials include USPS employees. The statute also includes an explicit mens
rea element: the perpetrator must have made the threats “with intent to impede,
intimidate, or interfere with such official . . . while engaged in the performance of
official duties, or with intent to retaliate against such official . . . on account of the
performance of official duties.” 18 U.S.C. § 115(a)(1)(B).
By contrast, § 875(c), which prohibits transmitting in interstate commerce a
communication containing any threat to injure another person, does not contain
an explicit mens rea element. Elonis v. United States, 575 U.S. 723, 734 (2015) (“The
most we can conclude from the language of Section 875(c) and its neighboring provisions is that Congress meant to proscribe a broad class of threats in Section
875(c), but did not identify what mental state, if any, a defendant must have to be
convicted.”). In Elonis, however, the Supreme Court determined that § 875(c)
“requires that the defendant be aware of the threatening nature of [his]
communication,” id. at 726, drawing on the “universal and persistent” principle
that “wrongdoing must be conscious to be criminal,” id. at 734, quoting Morissette
v. United States, 342 U.S. 246, 250, 252 (1952). Because it is not a criminal act to
transmit communications in interstate commerce, “the mental state requirement
must . . . apply to the fact that the communication contains a threat.” Id. at 737.
The Court therefore held that a defendant convicted under § 875(c) must have
some awareness of the risk that the communication will be viewed as a threat – a
negligence standard would not accord with the principle that criminal
defendants must be conscious of their wrongdoing to be convicted. See id. at
737–39. But the Court left open the question of the minimum mental state
required for criminal conviction under § 875(c). See id. at 741–42.
During the pendency of this case, the Supreme Court answered a related
but broader question by addressing the constitutionally required elements of all
criminal prohibitions of threatening statements. See Counterman, 600 U.S. 66. The
Court concluded that the need to protect the freedom of speech guaranteed by the First Amendment affects both the act and intent elements of threat crimes.
With respect to the prohibited act, the Supreme Court acknowledged that
“true threats” constitute a category of communication that falls outside of the
protective scope of the First Amendment. Id. at 74, citing Virginia v. Black, 538 U.S.
343, 359 (2003). Historically, it has been thought that proscribing true threats of
violence prevents “fear of violence and the disruption that fear engenders.” Black,
538 U.S. at 344. But the First Amendment protects even intemperate speech, and
words that take a threatening form may simply reflect heated rhetoric that, in
context, would not reasonably engender fear. Thus, to be consistent with the First
Amendment, a threat crime requires an objective element (the actus reus) – the
threatening words must constitute a true threat. See Counterman, 600 U.S. at 74
(“The ‘true’ in that term distinguishes what is at issue from jests, ‘hyperbole,’ or
other statements that when taken in context do not convey a real possibility that
violence will follow . . . .”). The existence of a true threat depends on what the
statement conveys to the person to whom it is directed, rather than on the mental
state of the speaker. Id. (citing Elonis, 575 U.S. at 733).
But the First Amendment also “demand[s] a subjective mental-state
requirement.” Id. at 75. Such a mens rea element may ultimately shield some true
threats from liability because “it makes prosecution of otherwise proscribable, and often dangerous, communications harder,” but is necessary to ensure that
protected speech will not be “chill[ed]” by fear of unwarranted prosecution. Id. at
78. The Court determined that the minimum mens rea element required by the
First Amendment in threat cases is recklessness. Id. at 78–79. “In the threats
context, [recklessness] means that a speaker is aware that others could regard his
statements as threatening and delivers them anyway.” Id. at 79 (internal
quotation marks omitted).
Accordingly, to succeed in prosecuting Garnes under the two statutes, the
government must show both that the statements he made would, objectively,
convey to the listener that the threatening language represented a genuine threat,
and that in making his statements, he “consciously disregarded a substantial risk
that his communications would be viewed as threatening violence” to the USPS
and DOL employees. Id. at 69.
Moreover, in the case of 18 U.S.C. § 115(a)(1)(B), the statute requires an
additional, even more demanding mental element – the intent to impede,
intimidate, interfere with, or retaliate against USPS officials.
These are meaningful requirements. Even where a defendant’s words are
literally threatening, it will remain open to a defendant to attempt to raise a
reasonable doubt in the minds of jurors about whether those statements would be taken as genuine threats by those “threatened,” and about whether the
speaker intended, or at least was conscious of the risk, that they would be so
taken.3 In assessing whether those elements have been proven beyond a
reasonable doubt, context matters. The literal, threatening words may take on
greater or lesser seriousness from the additional statements that surround them.
Accordingly, the five statements made by Garnes that repeatedly refer to,
and indeed overstate, his criminal history, at a minimum have a “tendency” to
make it more probable that the threatening language would convey to listeners
that they had something to fear, and that Garnes made those statements with an
awareness, and even with the intention, that he would create such fear. See Fed.
R. Evid. 401. A jury could find that Garnes’s statements about his history of
criminal acts, his past experiences in jail and prison, and his comfort with
returning to jail would convey to a reasonable listener a sense that Garnes was
willing and able to act on his violent words, and that he made those statements in
a conscious attempt to make his threats to shoot and kill employees of the DOL
and USPS more credible. The five statements therefore satisfy Rule 401’s
3 Indeed, that is a defense that Garnes himself has raised in the case. Even as to the challenged statements, Garnes argued that his words were merely “poorly phrased attempts . . . to characterize the absurdity of his predicament.” Gov’t App’x 50. relevancy test, which is a “low threshold, easily satisfied.” See United States v.
Gramins, 939 F.3d 429, 450 (2d Cir. 2019). In agreement with the district court as
to the relevance of the evidence, we turn to its Rule 403 analysis of probative
value and potential prejudicial effect.
II. Probative Value
“Evidence is said to have probative value if it tends to prove or actually
proves a proposition.” Jamil, 707 F.2d at 642, citing Black’s Law Dictionary 1082
(5th ed.1979). The government argues that the five statements at issue are highly
probative evidence of (1) Garnes’s subjective state of mind when he made all of
the allegedly threatening statements and (2) whether the communications are
true threats.
Turning first to whether the five statements at issue are probative of
Garnes’s subjective state of mind, the government claims that Garnes’s
statements about his purported criminal history demonstrate a fact distinct from
his statements expressing that he might shoot someone at the USPS or DOL –
specifically, that Garnes wanted the DOL employees on the phone with him to
“believe that he had the capacity and the disposition to harm them and was not
afraid of the consequences,” and consciously used an inflated version of his
criminal history as a rhetorical tool “specifically to engender fear on the other end of the telephone.” Appellant’s Br. 25–26.
The district court acknowledged that the five statements “may be
probative of [Garnes’s] state of mind,” but asserted that any probative value is
“limited.” Garnes, 2023 WL 4489983, at *5. In support of that conclusion, the
district court considered “whether an alternative piece of evidence [was available
that] may carry ‘substantially the same or greater probative value but a lower
degree of unfair prejudice.’” Id., quoting Old Chief v. United States, 519 U.S. 172,
182–83 (1997). It found that other statements – the admissibility of which are not
challenged – are “far more probative of the elements of the charged crimes,
including but not limited to [Garnes’s] mens rea,” than the challenged statements
are. Id. The court pointed to statements Garnes made about shooting people at
the DOL and USPS, such as “somebody might get shot today coming out of the
Department of Labor.” Id. at *6. Ultimately, it held that the probative value of the
five statements at issue was limited because the unchallenged statements
provided “ample facts” from which the government could argue that Garnes
intended for his threats to be taken seriously. Id.
The district court considerably misperceived the significance of the
challenged evidence. We think it clear that the probative value of the five
statements is substantial, and that the other alleged threats do not carry “substantially the same or greater probative value,” Old Chief, 519 U.S. at 183, as
the excluded evidence.
The district court is correct that in making a Rule 403 determination, a
court may consider other available means of proof or “evidentiary alternatives.”
Id. at 184; see also Fed. R. Evid. 403 advisory committee’s note. But the district
court impermissibly extended the ruling of Old Chief in determining that
substantially similar evidentiary alternatives are available in the present case; in
failing to recognize that the statements at issue are not just items of evidence that
can be replaced with other items of evidence, but rather may also be found to be
an integral part of the charged criminal conduct itself; and in basing its exclusion
of the evidence in part on its determination that the government had “ample
facts” to argue from and a generally strong case.
In Old Chief, the Supreme Court concluded, in a case where the defendant
was charged with being a felon in possession of a firearm, that the district court
abused its discretion when it rejected the defendant’s offer to stipulate to the fact
of a prior conviction and allowed the government to introduce a judgment record
or similar evidence that would disclose the specific felony of which the defendant
had been convicted. 519 U.S. at 191–92. Although the Court acknowledged that
the “prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story,” it concluded that this tenet has “virtually no application when
the point at issue is a defendant’s legal status,” id. at 190, and the relevance of the
evidence is “solely to prove the element of prior conviction,” id. at 174. The
Court could identify “no cognizable difference” in probative value between the
stipulation offered by the defendant and the judgment record for the prior
conviction. Id. at 191. Therefore, in the context of Rule 403, “the functions of the
competing evidence [we]re distinguishable only by the risk inherent in the one
[that the jury would be inflamed by the seriousness of the defendant’s prior
crime] and wholly absent from the other.” Id.
Here, the unchallenged statements relied on by the district court and the
challenged statements made by Garnes, insisting on and even exaggerating his
criminal history, are not “distinguishable only by the risk inherent in the one and
wholly absent from the other,” id., but are significantly different in the light they
shed on Garnes’s intent. For instance, in a statement the district court found
admissible, Garnes told the DOL employees: “Y’all gonna make me go to jail. I
swear to God, y’all gonna make me go to jail.” Gov’t App’x 82. A jury could
interpret that statement as showing that Garnes was consciously disregarding a
substantial risk that his words would be construed as threats, as he was trying to
make his victims think that he was serious because he understood that the consequences of his threatened actions would include incarceration. But the jury
could instead conclude that Garnes was unaware of the risk that this statement
would be interpreted as a threat, because he thought he was just venting his
frustration about the outcome of his unemployment claim and anyone would
understand that his statements were not true threats.
Compare this with one of the challenged statements, uttered almost
immediately after Garnes asked one of the DOL employees if the city “want[s
him] to kill five or six different people” because he can’t pay his rent: “Cause
listen didn’t I just tell you I got 18 and a half years in jail. It don’t bother me to be
in jail.” Id. at 88. From that statement, made soon after a statement about killing
people and before a prediction that he might show up on television for shooting
and killing people, a jury could conclude that Garnes was aware that his
communications would be perceived as threatening. Indeed, the jury might rely
on the statement to adopt the government’s theory that Garnes intentionally
exaggerated his criminal history to make sure that his threats were taken seriously.
For similar reasons, we conclude that the five statements that Garnes made
overstating his criminal history are highly probative of whether his threats to
shoot USPS and DOL personnel objectively constitute “true threats,” which the
government also has the burden of proving. See Black, 538 U.S. at 359 (defining a true threat as a “serious expression” of intent to harm another, as opposed to a
mere hyperbolic statement). It seems obvious to us that in assessing what facially
threatening words convey to the person to whom the words are directed, a threat
to shoot people will have a different, and more frightening, effect coming from
someone the threatened person believes – because the threatener insists on telling
him – to have spent nearly two decades in a series of notorious state
penitentiaries for committing multiple felonies, than the same words coming
from a random person. The district court’s order of exclusion would prevent
testimony from recipients of the threats about the effect that Garnes’s statements,
in their totality, had on them, and the reasons for that effect, because it explicitly
prohibited witnesses from mentioning the excluded statements.
Because the five statements constitute evidence bearing distinctively on
Garnes’s knowledge and intent when he made the alleged threats and the effect
of those alleged threats on the listeners, we conclude that they were substantially
probative and that the district court manifestly erred in discounting their
significance.4 Further, the district court exceeded its authority to weigh
4 Of course, we express no view on whether the jury should draw such an inference. Garnes remains free to argue to the jury, as he argued to the district court, that the entirety of his communication, including his exaggerated claims about his criminal exploits, were intended, and/or would have been understood by a reasonable listener, as merely a rant venting his frustration at the DOL’s evidentiary alternatives in stating that, even without the challenged statements,
the government had “ample facts” from which to establish Garnes’s mens rea,
because the references to Garnes’s purported criminal history conveyed
distinctive probative force not conveyed by the overt threats themselves. See Old
Chief, 519 U.S. at 186 (recognizing the “standard rule that the prosecution is
entitled to prove its case by evidence of its own choice”); cf. Awadallah, 436 F.3d at
132–33 (considering whether there were other witnesses the government could
elicit testimony from to prove an issue but noting that the government is “free to
select whichever witnesses it believes will most effectively advance its case”).
Accordingly, those statements should not have been excluded unless there was
significant risk of unfair prejudice. See Jamil, 707 F.2d at 644; see also United States
v. Dwyer, 539 F.2d 924, 928 (2d Cir. 1976) (“Since the probative value of the
evidence proffered was so great, it should not have been excluded in the absence
of a significant showing of unfair prejudice.”).
III. Danger of Unfair Prejudice
We therefore turn to the district court’s assessment of the danger of unfair
eligibility determination. But that is a question for the jury to resolve, and in this case the full statement, including his braggadocio about his purported criminal prowess and his comfort with the prospect of prison, is highly relevant to the jury’s assessment. prejudice. The advisory committee’s notes for Rule 403 define “unfair prejudice”
as an “undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.” Evidence of other crimes that a
defendant has committed, or “other-crime evidence,” can create unfair prejudice
in that it can lead a jury to convict a defendant “because of his participation in the
other crimes rather than because he is guilty beyond a reasonable doubt of the
crime alleged.” United States v. Manafzadeh, 592 F.2d 81, 86 (2d Cir. 1979). Indeed,
there is a specific Rule that expressly addresses such evidence: Rule 404(b) of the
Federal Rules of Evidence prohibits a court from admitting evidence of a
defendant’s other crimes or bad acts when it is proffered to show that a
defendant has bad character or the propensity to commit the charged crime. Fed.
R. Evid. 404(b)(1).
But even under that Rule, such evidence may be admitted for other
permissible purposes, such as proving intent or knowledge. Fed. R. Evid.
404(b)(2). As discussed above, “evidence must be relevant to an actual issue in
the case, and its probative value on that issue must not be outweighed by its
unfair prejudice to the defendant.” United States v. Mohel, 604 F.2d 748, 751 (2d
Cir. 1979) (collecting cases). We have also stated that “[t]he fact that the [other-
crime] evidence is in the form of statements by the defendant himself does not change the applicable analysis.” Id. at 751 n.6.
In determining that the jury could not be permitted to hear Garnes’s
statements about his criminal history, the district court reasoned that Second
Circuit case law dictates that prior crimes evidence is always highly prejudicial,
and here, the risk is even greater because the statements at issue reflect an
inaccurate and exaggerated version of Garnes’s criminal history.5 Here, however,
the evidence differs from most cases dealing with the prejudicial effect of
evidence of a defendant’s criminal record. The point of the evidence is not that
Garnes had a criminal record; it is that a jury could find that he used, and indeed
exaggerated, his criminal record to intimidate his listeners and enhance the
efficacy of his threats to shoot USPS and DOL personnel. The effect and intent of
Garnes’s statements would be the same even if Garnes in fact had no criminal
5 The district court cited United States v. Puco in support of this contention. 453 F.2d 539, 542 (2d Cir. 1971). However, in Puco, we considered whether a trial court abused its discretion in ruling that the defendant’s prior conviction could be used for impeachment purposes. See id. We stated that juries are often unable to “limit the influence of a defendant’s criminal record to the issue of credibility,” especially where the defendant’s prior conviction is similar to the offense for which the defendant is being tried. Id. (emphasis added). Here, the government does not offer the evidence for the purpose of impeaching Garnes, nor does the evidence reflect conduct similar to that charged in the present case. The evidence is offered to prove Garnes’s intent and knowledge, and because it is alleged to be part of the criminal conduct itself. record at all – the recipients of the statements would never know the difference.
The principal danger of evidence of prior crimes is the risk that the jury would
draw the unfair inference that the defendant had a propensity to commit crimes,
and therefore either was more likely to be guilty of the crime charged than
another person as to whom the actual evidence of guilt was equally strong, or
was worthy of punishment regardless of the strength of the evidence of the
charged crime. In this case, however, Garnes’s claims of a dangerous criminal
past are offered to support the inference that he intended to, and did, generate
fear in the objects of his threats.
For that reason, although we recognize that Garnes’s statements about his
prior crimes may create some potential for unfair prejudice, we conclude that the
five statements are part of the “res gestae, the narrative the government rightly
seeks to tell at the guilt phase of a trial.” United States v. Pepin, 514 F.3d 193, 201
(2d Cir. 2008) (internal quotation marks omitted). The fact that Garnes repeated
an exaggerated version of his criminal history to the DOL employees, in the
course of making statements about shooting and killing employees of the DOL
and USPS, may ultimately be a crucial factor for the jury in considering whether
Garnes had the requisite mental state to be convicted of the charged crimes. That
Garnes exaggerated his criminal history does not provide an adequate basis to exclude the substantially probative evidence when the evidence could support an
inference that he did so for the purpose of making his threats more credible.
The district court’s failure to appreciate that distinction caused it to
overstate the risk of unfair prejudice generated by the evidence and to
miscalculate the value of a limiting instruction. Unlike a case in which a jury is
instructed to consider evidence of criminal conduct in the past for its relevance to
intent, but not for other reasons, the government here does not seek to introduce
any evidence relating to Garnes’s actual criminal history. Moreover, a limiting
instruction could tell the jury not only that it should not assume that Garnes was
speaking the truth about his criminal record, but also that there is no evidence
before the jury as to what, if any, criminal history he has; that the jury should not
speculate on that matter; that the evidence is offered only for whatever inference
the jury might draw from the fact that he claimed to have the history he
described; and that in fact his claims about his criminal record were inaccurate.
Similarly, the government could be instructed not to suggest to the jury that
Garnes had a criminal record, and to confine its use of the evidence to arguing
that, even if everything he said on the subject was false, the jury should consider
his claims as evidence that he was trying to instill fear, and that his claim of a
serious criminal past would reasonably have had that effect on the object of his threats.
For those reasons, we reject the district court’s conclusion that an
instruction to the jury that Garnes’s account of his past was “inaccurate and
should not be relied upon in any way for its veracity” would lead the jury to speculate
about Garnes’s true criminal history and the nature of his prior convictions, thus
creating an undue risk of confusing the issues, misleading the jury, and causing
unfair prejudice to Garnes. Garnes, 2023 WL 4489983, at *6–7 (emphasis in
original). As noted above, the district court could avoid any such problem by
simply instructing the jury not to speculate on this point, and to consider the
statements only for specified purposes. See United States v. Reichberg, 5 F.4th 233,
244 (2d Cir. 2021) (“[W]e presume that juries follow limiting instructions . . . .”)
(internal quotation marks omitted).
CONCLUSION
We are persuaded that, in a prosecution for alleged true threats, the district
court exceeded its discretion by excluding portions of the alleged threats
themselves on the basis that those statements were of limited probative value
that was outweighed by a substantial risk of prejudice that a jury instruction
could not cure. We conclude not only that the district court incorrectly balanced
the probative value and danger of unfair prejudice, but also that it incorrectly determined that other portions of the alleged threatening statements were
adequate evidentiary alternatives for the five statements at issue without
considering whether Garnes may have been using his criminal history as a tool to
communicate the seriousness of the other alleged threats, and that a limiting
instruction could not cure any prejudice.
The question of the precise wording of the appropriate limiting instruction
is not presented by this appeal and should be decided by the district court on
remand after hearing the parties’ views. We conclude only that the district court
has ample latitude to craft an instruction that would be effective in minimizing
any risk that the jury would disregard the evidence and be inflamed to convict
Garnes based on the belief that his (purported) past conduct showed him to be a
dangerous felon.
For the reasons set forth above, we REVERSE the district court’s exclusion
of the five challenged statements, and REMAND the case for further proceedings.