U.S. v. Bermudez

• Decision Date: 17 June 2008
• Docket Number: Docket No. 06-5119-CR.
• Citation: 529 F.3d 158
• Parties: UNITED STATES of America, Appellee, v. Richie BERMUDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

529 F.3d 158

UNITED STATES of America, Appellee, v. Richie BERMUDEZ, Defendant-Appellant.

Docket No. 06-5119-CR.

United States Court of Appeals, Second Circuit.

Argued: March 10, 2008.

Decided: June 17, 2008.

Roger Bennet Adler, New York City, for Defendant-Appellant.

Lisa R. Zornberg, Assistant United States Attorney, of counsel, (Jonathan S. Kolodner, Assistant United States Attorney, of counsel, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York City, for Appellee.

Before: WALKER, CALABRESI, Circuit Judges, and UNDERHILL, District Judge.^*

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, Eiseman, 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 Bermudez 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 Eiseman 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 Bermudez. 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. Bermudez 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...