08-0322-cr USA v. W right (McCallum )
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
__________________
December Term, 2008
(Argued: December 2, 2008 Decided: October 19, 2009 )
Docket No. 08-0322-cr __________________
UNITED STATES OF AMERICA , Appellee, — v .—
JOHN MCCALLUM JR., ALSO KNOWN AS JOHN JOHN , ALSO KNOWN AS C.O. BLACK,
Defendant-Appellant,
DARRYL WRIGHT , ALSO KNOWN AS “D”, Defendant. _________________ Before:
JACOBS ,
Chief Judge,
MCLAUGHLIN and B.D. PARKER,
Circuit Judges.
1 Appeal from a judgment of conviction on charges involving various narcotics offenses. See 21
U.S.C. §§ 846, 812, 841(a)(1), (b)(1)(A), (b)(1)(C). We conclude that the District Court erred in
admitting the defendant’s two prior convictions, but that this error was harmless. AFFIRMED.
Nola B. Heller, Assistant United States Attorney (Jonathan S. Kolodner, Assistant United States Attorney, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y., for Appellee.
Joseph A. Vita, Law Office of Joseph A. Vita, Esq., Port Chester, N.Y., for Appellant. __________________
BARRINGTON D. PARKER, Circuit Judge:
Defendant-Appellant John McCallum Jr. appeals from a judgment of conviction in the
United States District Court for the Southern District of New York (Robinson, J.). McCallum
was convicted of various narcotics offenses involving crack cocaine and was sentenced
principally to 240 months’ incarceration. We write to address McCallum’s primary contention,
which is that the District Court abused its discretion in admitting as similar acts evidence two of
his prior narcotics convictions. We conclude that the admission of this evidence, while an abuse
of discretion, was harmless error. In a related but separately filed summary order, we dispose of
McCallum’s other claims of trial error.
BACKGROUND
At trial, the government proved that McCallum and his co-conspirators operated a
substantial crack cocaine distribution business in and around Spring Valley, New York. The
2 conspiracy and substantive offenses charged in the indictment involved narcotics activities that
occurred between approximately September of 2004 and May of 2005, and that culminated in
four controlled buys of narcotics in April and May of 2005. After the final controlled buy, police
officers executed a search warrant at McCallum’s residence and recovered substantial quantities
of drugs.
At trial, the government proved McCallum’s involvement in the conspiracy through the
testimony of co-conspirator and cooperating witness Darryl Wright, who was McCallum’s
partner and resided in the same apartment as McCallum. The government also offered the
testimony of Lenell Brookins, a roommate of McCallum and Wright, and the testimony of police
officers who had observed McCallum engaging in narcotics transactions and had searched the
apartment where the narcotics were seized. The government’s other evidence included audio
recordings in which a confidential informant, David DeFreese, purchased crack cocaine from
Wright and McCallum, and phone records indicating narcotics transactions.
Prior to trial, the government informed the court that it intended to introduce evidence of
McCallum’s two prior narcotics felony convictions for possession and attempted sale of cocaine.
Although the government had at hand the drugs that had been seized, the testimony of
McCallum’s partner about their extensive drug-dealing, and a plethora of other evidence of prior
narcotics activities, the government nevertheless argued that evidence of the 2003 convictions
was critical to prove that McCallum knew that the substances he sold were narcotics and that he
intended to sell them. The government also asserted that it wished to introduce the periods of
incarceration McCallum had served on the two convictions because, without them, “much of the
3 charged conspiracy will be difficult for the jury to understand.” The court agreed, without
significant discussion, to receive the convictions but not evidence of the periods of incarceration.
The record sheds little light on why the court believed the convictions were admissible.
During voir dire, potential jurors were asked whether they would be able to follow
instructions requiring them to consider the convictions only for the limited purpose of evaluating
the defendant’s knowledge and intent, and whether, after learning of the convictions, they would
be able to maintain their presumption of the defendant’s innocence. Over the defense’s
objections, the District Court received evidence of the convictions in the form of a stipulation
during the government’s case in chief.1 During the court’s final charge, the jury was given a
limiting instruction with respect to the convictions.2 At the conclusion of the trial, McCallum
1 The stipulation stated: On April 9, 2003, John McCallum, Jr., the defendant, was convicted after pleading guilty to criminal possession in the third degree of a controlled substance, namely, cocaine, which is a Class B felony. This crime was committed on March 14, 2002. On April 9, 2003, John McCallum, Jr., was convicted after pleading guilty to attempted criminal sale in the second degree of a controlled substance, namely, cocaine, which is a Class C felony. This crime was committed on December 3, 2002.
2 The portion of the jury charge relating to the prior convictions evidence was as follows: [A] stipulation was read that indicated that the defendant had been convicted in 2003 of two different offenses relating to his possession and sale of cocaine. . . . The Government offered this evidence to demonstrate the defendant’s intent and knowledge, and to establish the absence of mistake or accident with regard to the offenses charged in the instant indictment. You may not consider this evidence as a substitute for proof that the defendant committed any of the crimes charged in the indictment. Nor may you consider this proof as evidence that the defendant has a criminal personality or a bad character. This evidence about the defendant’s prior convictions was admitted for a much more limited purpose and you may only consider it for that limited purpose. Specifically, if you determine that the defendant committed any of the acts charged in the indictment, then you may, but you need not, draw an inference, from the
4 was convicted of three of the four counts in the indictment, including conspiracy and two
substantive narcotics offenses. This appeal followed.
DISCUSSION
We review a district court’s admission of evidence of prior crimes for abuse of discretion.
See United States v. Lombardozzi, 491 F.3d 61, 78-79 (2d Cir. 2007). Abuse of discretion occurs
when the court acts in “an arbitrary and irrational manner.” Id. A district court’s decision to
admit evidence is subject to harmless error analysis. Fed. R. Crim. P. 52(a); United States v.
Madori, 419 F.3d 159, 168 (2d Cir. 2005). The main harmless error inquiry is whether the
contested testimony was unimportant in relation to everything else the jury considered on the
issue in question, as revealed in the record. See United States v. Garcia, 413 F.3d 201, 217 (2d
Cir. 2005) (holding that erroneous admission of evidence was harmless where it “had no
substantial and injurious effect or influence on the jury verdict” (internal quotation marks
omitted)).
Evidence of prior convictions may be admissible under Federal Rule of Evidence 404(b)
to show “intent, . . . knowledge, identity, or absence of mistake or accident,” but not to show
character or propensity. Fed. R. Evid. 404(b). Where prior convictions are concerned, the line
between intent or knowledge and character or propensity is often a fine one, requiring the
evidence of the defendant’s prior convictions, that the defendant acted knowingly and intentionally with respect to the specific charge as charged in the indictment, and not because of some mistake, accident, or innocent other reason. The evidence of the defendant’s prior convictions may be considered by you only for the purpose that I have just explained to you.
5 thoughtful, focused attention of the district court. The most important reason why this attention
is required is that the introduction of prior convictions, unless carefully handled, will undermine
the presumption of innocence.
When reviewing the admission of evidence pursuant to Rule 404(b), we consider
whether (1) the prior crimes evidence was “offered for a proper purpose;” (2) the evidence was
relevant to a disputed issue; (3) the probative value of the evidence was substantially outweighed
by its potential for unfair prejudice pursuant to Rule 403; and (4) the court administered an
appropriate limiting instruction. Huddleston v. United States, 485 U.S. 681, 691-92 (1988). Our
Circuit takes an inclusionary approach to the admission of prior crimes evidence, under which
such evidence “is admissible for any purpose other than to show the defendant’s criminal
propensity.” United States v. Paulino, 445 F.3d 211, 221 (2d Cir. 2006) (citing United States v.
Pitre, 960 F.2d 1112, 1118-19 (2d Cir. 1992)). Yet this inclusionary approach does not invite the
government “to offer, carte blanche, any prior act of the defendant in the same category of
crime.” United States v. Garcia, 291 F.3d 127, 137 (2d Cir. 2002); see also id. at 138 (holding
that prior conviction for selling cocaine should not have been admitted to prove intent and
knowledge of the charged sale of cocaine, because “the government offered and the court
admitted the prior conviction as relevant for a very specific purpose—to show that [defendant]
knew that [a] taped phone conversation was about a coded drug transaction—but made no
attempt to link the transaction on that basis”).
Where such evidence is offered for the purpose of establishing the defendant’s knowledge
or intent, we require that the government “identify a similarity or connection between the two
6 acts that makes the prior act relevant to establishing knowledge of the current act.” Id. at 137;
see also id. at 138 (holding that admission of prior conviction was abuse of discretion because
“the government did not establish that [the] prior drug conviction was meaningfully probative of
[the defendant’s] knowledge” with respect to the charged narcotics conspiracy; “[t]he only
similarity between the two drug transactions . . . [was] that both involved cocaine”; and “[t]he
government did not offer evidence of any other similarity or connection between the two
transactions”); United States v. Brand, 467 F.3d 179, 197 (2d Cir. 2006) (government must show
“similarity or some connection” of prior act evidence to charged crime in order to establish that
the prior act is relevant to a disputed element, such as intent (internal quotation marks omitted));
United States v. LaFlam, 369 F.3d 153, 156 n.1 (2d Cir. 2004) (per curiam) (same).
Although the record is not entirely clear, the government offered McCallum’s prior
convictions ostensibly to establish McCallum’s intent to deal drugs and his knowledge of drug
dealing. In any event, as the government correctly contends, McCallum did not concede those
issues. In a pretrial memorandum addressing the point, counsel stated: “As McCallum’s counsel
I cannot say at this point unequivocally whether or not knowledge and or intent will be disputed
issues in this case.” Because McCallum’s counsel did not make a statement to the court of
sufficient clarity to indicate that intent and knowledge would not be disputed, those issues
remained sufficiently in dispute for the similar acts evidence to be relevant and hence admissible.
See United States v. Colon, 880 F.2d 650, 659 (2d Cir. 1989). Under these circumstances, the
evidence was admissible during the government’s case in chief. See United States v. Inserra, 34
F.3d 83, 89-90 (2d Cir. 1994); United States v. Zackson, 12 F.3d 1178, 1182-83 (2d Cir. 1993).
7 Once the first two prongs of Huddleston are satisfied, the court is then required to
consider the third prong and decide whether the probative value of the prior crimes is
substantially outweighed by the danger of unfair prejudice. In Old Chief v. United States, 519
U.S.172 (1997), the Supreme Court defined “unfair prejudice” as “an undue tendency to suggest
decision on an improper basis,” id. at 180 (internal quotation marks omitted), and invoked as an
example a jury’s “generalizing a defendant’s earlier bad act into bad character and taking that as
raising the odds that he did the later bad act now charged (or, worse, as calling for preventive
conviction even if he should happen to be innocent momentarily),” id. at 180-81. In this regard,
evidence of prior convictions merits particularly searching, conscientious scrutiny. Such
evidence easily lends itself to generalized reasoning about a defendant’s criminal propensity and
thereby undermines the presumption of innocence. Despite the most careful instructions from
the court, the risk is present that jurors are likely to believe that if a defendant previously was
convicted of drug offenses, there is a high probability that he is guilty of the drug offense for
which he is on trial. See 1A Wigmore, Evidence § 58.2 (Tillers rev. 1983) (stating that, where
prior crimes evidence is adduced, “[t]he natural and inevitable tendency of the tribunal . . . is to
give excessive weight to the vicious record of crime thus exhibited and either to allow it to bear
too strongly on the present charge or to take the proof of it as justifying a condemnation,
irrespective of the accused’s guilt of the present charge”). Moreover, prior convictions are far
more likely to be received as potent evidence of propensity than other prior bad acts routinely
offered under Rule 404(b) because they bear the imprimatur of the judicial system and indicia of
official reliability. See 1 Mueller & Kirkpatrick, Federal Evidence § 4:30 (3d ed. 2007) (“In the
8 common situation in which a prior crime is proved by means of a conviction, this very fact brings
home to a jury that another jury considered the defendant guilty and blameworthy, which in that
sense magnifies the underlying deed.”).
Consequently, as we have repeatedly held, prior convictions should not be admitted
unless the court has carefully conducted the Rule 403 balancing test required by Huddleston.
See, e.g., United States v. Salameh, 152 F.3d 88, 110 (2d Cir. 1998) (per curiam) (“To avoid
acting arbitrarily, the district court must make a ‘conscientious assessment’ of whether unfair
prejudice substantially outweighs probative value.” (quoting United States v. Birney, 686 F.2d
102, 106 (2d Cir. 1982))); United States v. Williams, 596 F.2d 44, 51 (2d Cir. 1979) (“District
judges must carefully scrutinize both the basis for the claimed relevance of [prior crimes]
evidence and the balance between its probative value and prejudicial effect. The key to a fair
trial in such cases is careful determination by the trial judge of both issues, particularly the
latter.” (emphases added)).
There is no indication in the record that the District Court engaged at all in the Rule 403
inquiry, let alone the required conscientious one. In ruling on the government’s pre-trial Rule
404(b) motion, the court stated:
I will allow the government to admit information of Mr. McCallum’s two felony drug convictions in 2003. Again, it is relevant under 404(b) showing intent, knowledge and motive. It is relevant under 609 if we were to look at it as a cross-examination issue. But I’m ruling that the government will be able to offer that information in their case in chief.
The court’s sole reference to prejudice occurred after it had decided to admit the convictions, and
even then, the court expressed concern only over the prejudicial impact of proof of McCallum’s
periods of incarceration. At that point, defense counsel renewed its objection to the admission of
9 the evidence and stated, “I would certainly ask that your Honor not permit any proof of the
sentence received [for the 2003 convictions]. . . . I believe that factor may be a prejudicial one.”
To this, the court replied, “You know what? I’m going to agree with that,” and the government
agreed to redact the proof of incarceration from the stipulation.
Because the court gave no explanation for its conclusion that the prior convictions
evidence should be admitted, we are significantly constrained in our review of the court’s
application of the unfair prejudice prong of Huddleston. Without the benefit of its reasoning we
are in no position to assume that the court appreciated the seriousness of the risk that introducing
the convictions would undermine the fairness of the trial. McCallum’s two prior convictions for
the same type of conduct for which he was on trial appears to us to be classic, and powerful,
evidence of propensity.
The convictions were offered for the ostensible purpose of proving knowledge and intent.
Even though these issues were not conceded, we are unable to discern from the record why the
District Court thought the issues were seriously in dispute or why the prior convictions were
appropriate proof. See 2 Weinstein, Federal Evidence § 403.02 (Joseph M. McLaughlin, Ed.,
Matthew Bender & Co. 2009) (stating that a trial judge applying the Rule 403 balancing test to
certain evidence “must reject any method that treats each item of evidence ‘as an island,’” and
must instead “evaluate all the pieces of evidence going to the same point,” thereby “compari[ng]
. . . evidentiary alternatives”). The government had available for presentation to the jury
extensive testimony from McCallum’s co-conspirator about the operation of the charged
conspiracy and their drug dealings spanning many months. The government also had available
10 drugs that had been seized as well as the results of audio and visual surveillance. Given all of
this evidence, we are at a loss to understand how the court or the government could believe that
the prior convictions were necessary to prove McCallum’s intent and knowledge and that they
passed muster under Rule 403. See id. § 404.21 (“[T]he availability of other, less prejudicial,
evidence on the same point ordinarily reduces the probative value of a given item of extrinsic
evidence. . . . If the incremental value is slight, and the possibility of prejudice through misuse by
the jury great, the court should exclude the evidence under Rule 403.”). Our review of the record
thus leads us to conclude that the District Court received the convictions as propensity evidence
in sheep’s clothing and did so with insufficient regard for the unfair prejudice that surely would
result from their admission. See United States v. Bell, 516 F.3d 432, 447 (6th Cir. 2008). We
therefore conclude that the court abused its discretion in admitting the convictions.
We next must determine whether this error was harmless. As we stated in United States
v. Al-Moayad, “[a] district court’s erroneous admission of evidence is harmless if the appellate
court can conclude with fair assurance that the evidence did not substantially influence the jury.”
545 F.3d 139, 164 (2d Cir. 2008) (internal quotation marks omitted). In reviewing for harmless
error, “we principally consider: (1) the overall strength of the prosecution’s case; (2) the
prosecutor’s conduct with respect to the improperly admitted evidence; (3) the importance of the
wrongly admitted [evidence]; and (4) whether such evidence was cumulative of other properly
admitted evidence.” United States v. Kaplan, 490 F.3d 110, 123 (2d Cir. 2007) (internal
quotation marks omitted). We have repeatedly held that the strength of the government’s case is
the most critical factor in assessing whether error was harmless. See, e.g., United States v.
11 Lombardozzi, 491 F.3d 61, 76 (2d Cir. 2007).
The government’s case against McCallum was indisputably strong. Both Wright and
Brookins provided detailed testimony about McCallum’s role in, and knowledge of, the charged
conspiracy. The police officers’ eyewitness testimony and the audio recordings confirming
McCallum’s presence at the controlled buys also were compelling evidence of guilt. Finally, the
government introduced physical evidence including substantial quantities of narcotics seized
from the apartment and found inside McCallum’s boot. This evidence certainly would allow a
reasonable juror to conclude that McCallum had dealt drugs. We also note that the government
did not draw undue attention to the prior convictions, omitting as it did any discussion of the
convictions in its summation or rebuttal. In light of these considerations, and the fact that the
prior convictions were cumulative of other admissible evidence bearing on McCallum’s
knowledge and intent, we conclude that the District Court’s admission of the convictions was
harmless error.
In a different case, in which prior convictions were admitted but the government’s other
evidence was not overwhelming, or where the other harmless error factors tilted more strongly in
the defendant’s favor, or where the government’s summation emphasized the prior convictions, a
different result could well be indicated. It bears repeating that prior convictions present a
singular risk of serious prejudice and that their introduction can jeopardize the fairness of a trial.
Typically, their potency in this regard does not depend on testimony or argument by the
prosecutors; standing alone, prior convictions are capable of undermining the presumption of
innocence and distracting the jury from the business of determining guilt or innocence based on
12 proof of the charges in the indictment. If the decision is made to admit such evidence, the court
must provide appropriate limiting instructions and must explain its decision sufficiently to permit
appellate review.
CONCLUSION
The judgment of the District Court is affirmed.