United States v. White

• Decision Date: 28 September 2012
• Docket Number: Docket No. 11–772–cr.
• Parties: UNITED STATES of America, Appellee, v. Lance WHITE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

692 F.3d 235

UNITED STATES of America, Appellee,

v.Lance WHITE, Defendant–Appellant.

Docket No. 11–772–cr.

United States Court of Appeals,Second Circuit.

Argued: Feb. 17, 2012.

Decided: Aug. 30, 2012.

Amended: Sept. 28, 2012.

David A. Lewis, Federal Defenders of New York, New York, N.Y., for Defendant–Appellant.

Ali Kazemi, Assistant United States Attorney (Emily Berger, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.

Before: JACOBS, Chief Judge, CALABRESI and POOLER, Circuit Judges.

Chief Judge JACOBS dissents in a separate opinion.

CALABRESI, Circuit Judge:

Defendant–Appellant Lance White was convicted, after a jury trial, of being a felon in possession of a firearm. He was sentenced to 235 months' imprisonment and five years' supervised release. The testimony at trial established that White was traveling in a minivan with four women on the day of his arrest. During a stop and frisk, one firearm was allegedly recovered from White's pocket and two firearms were recovered from the purse of one of the other occupants of the vehicle. The defense's strategy at trial was to seek to demonstrate that the first of these firearms was found in the vehicle and not on White's person.

At trial, the district court excluded two crucial pieces of evidence. First, the court excluded evidence that the four women traveling in the same minivan as White were initially charged with possession of the gun allegedly found on White's person. The court, relying on case law established outside our circuit, concluded that the Government's charging decisions are never proper subjects for cross-examination or argument. We disagree and reject such a categorical bar on the admissibility of charging decisions. We hold that district courts may not presumptively exclude evidence of the Government's charging decisions without an inquiry into its relevance and probative value to the respective case. Here, we conclude that the evidence was not only relevant to White's defense, but also highly probative as to the credibility of testimony provided by the officers involved.

The court also excluded evidence of a prior judicial finding that discredited the testimony of a Government witness. When it did this, the court did not have the benefit of our decision in United States v. Cedeño, 644 F.3d 79, 82–83, (2d Cir.), cert. denied,––– U.S. ––––, 132 S.Ct. 325, 181 L.Ed.2d 201 (2011), which set out seven non-exhaustive factors for courts to consider in determining the probity and relevance of a prior incident in which a court has criticized a witness's testimony as unworthy of belief. In the instant case, these factors weigh in favor of admissibility. We disagree with the district court's conclusion that the prior adverse credibility finding was not probative of the witness's veracity. Evidence that might lead a jury to conclude that the officer was willing to lie in a similar case in order to secure a criminal conviction is both relevant and probative. This is particularly so because, in the case before us, White's defense centered on proving that the same detective and other officers lied about finding a weapon on his person.

Finally, neither of these errors was harmless. The excluded evidence spoke directly to a critical element of the Government's case and its exclusion prevented White from presenting a complete defense. Accordingly, the judgment of conviction of the district court is VACATED and the case is REMANDED for proceedings consistent with this opinion.

I. BACKGROUND

On August 6, 2008, acting on information provided by a confidential informant, a joint task force of the Federal Bureau of Investigation (“FBI”) and the New York City Police Department (“NYPD”) stopped a maroon minivan in Queens, New York. The minivan was occupied by Lance White and four women. A search of the vehicle resulted in the recovery of three firearms, one of which was allegedly found in White's right front pocket. White was indicted for possession of a firearm by a person previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).

A. Pretrial Motions1. Other Occupants

Prior to trial, the Government moved to bar evidence relating to the arrests, charging decisions, and subsequent case histories of the four women arrested with White. At the time of White's arrest, law enforcement officials recovered three firearms—one allegedly from White's pocket, and two from a purse belonging to one of the other occupants of the vehicle, Shatisha Jennings. All five individuals were arrested and charged on the same day in state court with possession of all three firearms. The State District Attorney's Office later dismissed all charges against three women and White (who had been charged federally). As of December 1, 2009, just Jennings, the owner of the purse, remained charged by the state. She was charged with possession only of the two firearms recovered from her purse.

Moving to exclude the evidence, the Government argued that the case histories of the four women were irrelevant since there is a presumption under New York law that any passenger in a vehicle is “in possession” of any weapon found there. It argued, therefore, that admitting evidence about the arrests and pending charges would raise confusing and complex issues, including an explanation of constructive possession under New York law. The Government also contended that the evidence would invite speculation by the jury about the status of the other individuals' cases. Defense counsel, in response, pressed the relevance of the evidence, asserting that the arrests and charging decisions increased the likelihood that the firearm allegedly found on White's person was instead possessed by the other occupants or physically in the vehicle generally. The defense also noted that New York Penal Law § 265.15(3) contains an exception to the constructive possession provision that applies to firearms found on the person of one of the occupants of a vehicle. In view of this exception, defense counsel argued that if the firearm had actually been recovered from White's pocket, charging the other occupants with possession of that same weapon would have been improper under New York law.

The district court granted the Government's motion, concluding that the Government's charging decisions were irrelevant to the question of whether White possessed a firearm. United States v. White, No. 08–CR–0682 (NGG), 2009 U.S. Dist. LEXIS 113147, at *5 (E.D.N.Y. Dec. 4, 2009). Further, the court found that even if the charging decisions were relevant or could be considered, “the probative value of such evidence [was] substantially outweighed by the danger of confusing or misleading [the] jury,” as it would “invite a trial within a trial on the intricacies of the New York State Penal Code and the cases of other individuals.” Id. at *5–6.

Following the district court's ruling, White filed a “Motion for Clarification,” seeking to introduce a “Request for Laboratory Examination Report” relating to the charges against Jennings (the purse owning occupant). On the report, in a box labeled “Briefly Describe Case,” the following was stated: “AT T/P/O DEFT WAS FOUND TO BE IN POSSESSION OF 3 LOADED FIREARMS.” Defense counsel argued that this statement was a “factual observation” by at least one of the officers that Jennings physically possessed all three firearms recovered from the minivan, including the firearm allegedly recovered from White's pocket.

In opposition, the Government presented a document with respect to White, which contained the identical language: “AT T/P/O DEFT WAS FOUND TO BE IN POSSESSION OF 3 LOADED FIREARMS.” The Government also presented printouts of “Complaint Report” forms for all five individuals arrested on August 6, 2008. The form for each of these individuals stated in a text box labeled “Details” that “AT T/P/O DEFT WAS FOUND IN POSSESSION OF THREE LOADED FIREARMS.” ¹

The court held that the similarity in the phrasing on all the forms indicated that the statements were charging decisions as opposed to factual observations by the officers, and noted that “[i]n this context, possession [was] a legal term of art rather than a factual observation.” App. 23.² On that basis, the court denied White's motion. App. 23.

2. Impeachment Evidence

The Government also moved to preclude cross-examination of a Government witness, Detective Paul Herrmann, regarding testimony Herrmann had given before District Judge Frederick Block in an unrelated case, United States v. Goines, 604 F.Supp.2d 533 (E.D.N.Y.2009). In Goines, a case charging the defendant with illegal possession of a weapon, Herrmann testified at a suppression hearing about a street encounter with the defendant that led to the seizure of a firearm. In granting the defendant's motion to suppress the gun and ammunition seized in that case, Judge Block found that certain aspects of Herrmann's testimony were not worthy of belief.³ In the present case, the Government, as part of its motion to limit cross-examination, argued that though Judge Block had discredited some portions of Herrmann's testimony, he had also found some of that testimony credible. Defense counsel, in response, argued that the prior adverse credibility finding was admissible on cross-examination under Federal Rule of Civil Procedure 608(b), which permits inquiry into specific instances of the conduct of a witness that are probative of truthfulness or untruthfulness.

The district court granted the Government's motion, precluding cross-examination by the defense about the Goines case. Applying the factors enumerated in United States v. Cruz, 894 F.2d 41 (2d Cir.1990), the court concluded that Judge Block had made no finding of Herrmann's “general veracity” and the case was “entirely unrelated” to White's. White, 2009 U.S. Dist. LEXIS 113147, at *9. In addition, because of the “complex...