     08-1017-cr
     USA v. Mercado (Townsend)




 1                               UNITED STATES COURT OF APPEALS
 2
 3                                     FOR THE SECOND CIRCUIT
 4
 5
 6
 7                                             August Term, 2008
 8
 9   (Argued:       March 17, 2009                                                  Decided: July 17, 2009)
10
11                                           Docket No. 08-1017-cr
12
13
14
15                                         United States of America,
16
17                                                  Appellee,
18
19                                                    – v. –
20
21                                      Isaiah Mercado, Darryl Winfree,
22
23                                                Defendants,
24
25                                            Damion Townsend,
26
27                                           Defendant-Appellant.1
28
29
30
31   Before: CALABRESI and WESLEY, Circuit Judges, and DRONEY, District Judge.2
32
33           Defendant Damion Townsend appeals from his conviction entered by the United States
34   District Court for the Southern District of New York (Keenan, J.). The judgment of the District
35   Court is affirmed.
36
37


     1
         We direct the Clerk of the Court to amend the official caption as noted.
     2
      The Honorable Christopher F. Droney, United States District Court for the District of
     Connecticut, sitting by designation.

                                                       -1-
 1                                           AMANDA KRAMER, Assistant United States Attorney
 2                                           (Michael A. Levy, on the brief), for Lev L. Dassin, Acting
 3                                           United States Attorney for the Southern District of New
 4                                           York, New York, N.Y., for Appellee.
 5
 6                                           ELIZABETH E. MACEDONIO, Bayside, N.Y., for
 7                                           Defendant-Appellant.
 89
10
11
12    CALABRESI, Circuit Judge:

13           Defendant Damion Townsend (“Defendant”) appeals from his conviction for conspiracy

14    to distribute, and possess with intent to distribute, fifty grams or more of cocaine base (“crack”),

15    and an unspecified amount of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A), 841(b)(1)(C),

16    and 846, entered by the United States District Court for the Southern District of New York

17    (Keenan, J.). We assume the parties’ familiarity with the facts, procedural history, and scope of

18    the issues presented on appeal.

19

20    I.     Sufficiency of the Evidence

21           Defendant argues that there was insufficient evidence to support his conviction.

22    Specifically, Defendant contends that the Government’s key witness was not credible, that there

23    is no evidence that Defendant planned the drug transaction, and that there is insufficient evidence

24    that Defendant was a knowing participant in any illegal conduct and rather that he was just an

25    innocent man driving his friends around.

26           A.      Standard of Review

27           A defendant challenging the sufficiency of the evidence underlying a criminal conviction

28    bears a “heavy burden,” because this Court “must review the evidence in the light most favorable


                                                       -2-
 1   to the government, drawing all reasonable inferences in its favor.” United States v. Gaskin, 364

 2   F.3d 438, 459 (2d Cir. 2004). “Reversal is warranted only if no rational factfinder could have

 3   found the crimes charged proved beyond a reasonable doubt.” Id. at 459-60. “In other words, a

 4   court may grant a judgment of acquittal only if the evidence that the defendant committed the

 5   crime alleged was nonexistent or . . . meager.” United States v. Jackson, 335 F.3d 170, 180 (2d

 6   Cir. 2003) (internal quotation marks omitted) (omission in original).

 7           B.      Discussion

 8           In light of this highly deferential standard of review and the evidence proffered against

 9   Defendant, this ground of appeal is meritless. The record includes evidence that Defendant had a

10   relationship with an alleged co-conspirator, Ismaiyl Jones, discussed a drug sale with co-

11   conspirators, drove his co-conspirators around as they planned a drug sale and picked up drugs,

12   went with Jones to pick up cocaine, and helped to turn the cocaine into crack.

13           Defendant argues that the case against him all depends on Jones being a credible witness

14   and contends that Jones was not credible. To be sure, a great deal of the Government’s case

15   relies upon Jones’ testimony, and because Jones was a paid informant and cooperator, one might

16   reasonably question his credibility. But that does not warrant an acquittal on appeal. For one

17   thing, much of Jones’s testimony was corroborated by eyewitness accounts from law

18   enforcement officers, transmissions heard by a DEA agent, physical evidence, and recordings.

19   Moreover, it is not for us to evaluate the credibility of a witness, a task better left to the jury. See

20   United States v. Thompson, 528 F.3d 110, 119 (2d Cir. 2008) (per curiam). The jury that saw

21   Jones testify voted unanimously to convict, and we must accordingly draw all inferences,

22   including inferences as to credibility, in favor of conviction.


                                                       -3-
 1          Defendant also makes two slightly more specific and related points, that there is no

 2   evidence that Defendant planned the drug transaction, and that there is insufficient evidence that

 3   Defendant was a knowing participant in any illegal conduct and rather was just an innocent man

 4   driving around his friends. Neither of these arguments, however, have any merit. It is necessary

 5   that there be evidence that Defendant “knew of the existence of the scheme alleged . . . and

 6   knowingly joined and participated in it.” United States v. Rodriguez, 392 F.3d 539, 545 (2d Cir.

 7   2004) (internal quotation marks omitted). It is, however, in no way necessary that Defendant

 8   have planned the encounter. And there is ample evidence that Defendant’s non-planning role

 9   was a knowing role. Defendant discussed drug prices, details of a drug transaction, and helped

10   convert cocaine to crack. Defendant contends that this is not enough to support a finding of

11   knowledge on his part. But given our precedents, that argument is unavailing. See, e.g., United

12   States v. Nusraty, 867 F.2d 759, 764 (2d Cir. 1989) (listing factors that distinguish innocent

13   conduct from knowing participation in a conspiracy).

14

15   II.    Admission of Prior Bad Acts Evidence

16          Defendant further argues that the District Court erred by admitting evidence of prior

17   firearms sales, in violation of Rule 404(b) and Rule 403.

18          A.      Standard of Review

19          We review evidentiary rulings for abuse of discretion. United States v. Lombardozzi, 491

20   F.3d 61, 78-79 (2d Cir. 2007) (Rule 404(b) determination); United States v. Salameh, 152 F.3d

21   88, 110 (2d Cir. 1998) (per curiam) (Rule 403 determination). “To find such abuse, we must

22   conclude that the trial judge’s evidentiary rulings were arbitrary and irrational.” United States v.


                                                      -4-
 1   Paulino, 445 F.3d 211, 217 (2d Cir. 2006) (internal quotation marks omitted). Furthermore,

 2   evidentiary rulings are subject to harmless error analysis. Fed. R. Crim. P. 52(a); United States v.

 3   Jackson, 301 F.3d 59, 64 (2d Cir. 2002). “An erroneous ruling on the admissibility of evidence

 4   is harmless if the appellate court can conclude with fair assurance that the evidence did not

 5   substantially influence the jury.” Jackson, 301 F.3d at 65 (quoting United States v. Rea, 958 F.2d

 6   1206, 1220 (2d Cir. 1992)).

 7          B.      Discussion

 8          The Federal Rules of Evidence prohibit admission of “[e]vidence of other crimes,

 9   wrongs, or acts . . . to prove the character of a person in order to show action in conformity

10   therewith.” Fed. R. Evid. 404(b). The Rules, however, do permit such evidence “for other

11   purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

12   absence of mistake or accident.” Id. To determine whether a district court properly admitted

13   other act evidence, we consider whether “(1) the prior acts evidence was offered for a proper

14   purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act

15   evidence substantially outweighed the danger of its unfair prejudice; and (4) the court

16   administered an appropriate limiting instruction.” United States v. Brand, 467 F.3d 179, 196 (2d

17   Cir. 2006) (internal quotation marks omitted). In so doing, we take an “inclusionary approach.”

18   United States v. Lasanta, 978 F.2d 1300, 1307 (2d Cir. 1992).

19          The District Court did not abuse its discretion by admitting the prior bad acts evidence.

20   That evidence now at issue was relevant and highly probative as to knowledge and intent, both of

21   which were disputed. It showed the development of the relationship between Defendant and

22   Jones, “provid[ing] background for the events alleged in the indictment” and “enabl[ing] the jury


                                                     -5-
 1   to understand the complete story of the crimes charged, or how the illegal relationship between

 2   coconspirators developed.” United States v. Reifler, 446 F.3d 65, 91-92 (2d Cir. 2006) (internal

 3   quotation marks and citations omitted) (alterations omitted). That is especially true in a case,

 4   such as the one now before us, where the prior dealings between two conspirators show “the

 5   basis for the trust between” the co-conspirators. United States v. Brennan, 798 F.2d 581, 590 (2d

 6   Cir. 1986). It is also especially applicable in this case where, as Defendant strenuously argues,

 7   some of the observed conduct might be nothing more than innocent acts of a friend, and not a

 8   knowing participation in a conspiracy. Driving two friends around town might, for example,

 9   seem innocuous. See Nusraty, 867 F.2d at 764. Prior gun sales, however, at least suggest that

10   Defendant was not an innocent pawn taken by surprise by the drug transaction. The evidence

11   was also accompanied by a careful and thorough instruction limiting the evidence to relevant

12   Rule 404 grounds. That instruction was delivered on several occasions during testimony as well

13   as in clear jury instructions on the issue. In light of the purpose and value of the evidence, and of

14   the limiting instructions, we find no abuse of discretion in deeming the evidence admissible

15   under Rule 404.

16          Defendant further argues that even if this evidence was properly admitted under Rule 404,

17   it should have been excluded under Rule 403. Under Rule 403, “evidence may be excluded if its

18   probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

19   issues, or misleading the jury.” Fed. R. Evid. 403. As discussed above, the prior gun crimes

20   were probative insofar as they established the history of the conspiracy, trust between the parties,

21   intent, and knowledge. Indeed, they were especially probative insofar as one of the three charged

22   counts involved possession of a firearm. The nature of Jones and Defendant’s friendship was


                                                      -6-
 1   very much at issue at trial, and now on appeal, insofar as Defendant argued, and continues to

 2   argue, that they were mere friends and Defendant’s assistance in any criminal activity was done

 3   without his knowledge.

 4          To be sure, the admission of any evidence not directly related to the charged conduct has

 5   the potential to be prejudicial. But it does not appear that prejudice here was likely to be great.

 6   Gun transactions are not especially worse or shocking than the transactions charged. And the

 7   District court gave several careful instructions to the jury regarding what inferences it could draw

 8   from the admitted evidence. See, e.g., Paulino, 445 F.3d at 223; United States v. Snype, 441 F.3d

 9   119, 129-30 (2d Cir. 2006) (noting that “the law recognizes a strong presumption that juries

10   follow limiting instructions”).

11          The District Court had first hand exposure to the witnesses, jury, and other evidence,

12   giving it a “superior position to evaluate the likely impact of the evidence.” Li v. Canarozzi, 142

13   F.3d 83, 88 (2d Cir. 1998). There is no good reason for us to second guess that determination in

14   this case. Moreover, in the case before us, Defendant’s arguments to the contrary

15   notwithstanding, the evidence was very strong. We conclude, therefore, that even assuming the

16   District Court erred, any such error was harmless.

17

18   III.   Conclusion

19          We have reviewed all of Defendant-Appellant’s claims and find them meritless.

20   Accordingly, the judgment of the District Court is AFFIRMED.

21

22


                                                      -7-
 1   Droney, J., dissenting from Part II:

 2          Mindful of the considerable deference accorded to a trial court’s evidentiary rulings,

 3   mindful as well of this Court’s “inclusionary” approach to evidence under Fed. R. Evid. 404(b),

 4   and mindful of the standard for reversal, I respectfully dissent from Part II of the opinion. The

 5   trial court did not properly apply the standard for relevancy under Rule 404(b), and erred in

 6   performing Fed. R. Evid. 403's balancing of the probative nature of the firearms evidence versus

 7   its prejudicial effect. Moreover, the trial court’s cautionary instructions and charge were not

 8   clear to the jury. This was a close case, and in my view, these evidentiary rulings were not

 9   harmless error. I would reverse the judgment and remand for a new trial.

10   I.     The Charges Against Townsend and the Rule 404(b) Evidence

11          Townsend was tried for three offenses: conspiracy to distribute at least 50 grams of

12   cocaine base and an unspecified amount of cocaine, possession with intent to distribute cocaine

13   base, and possession of a firearm during and in furtherance of a drug transaction. Those charges

14   arose from his activities on July 13, 2005. On that day, Townsend drove his close friend Ismaiyl

15   Jones around the Co-op City area of the Bronx. Townsend was unaware at that time that Jones

16   had been cooperating with the Bureau of Alcohol, Tobacco, Firearms and Explosives and New

17   York City police since early 2005. Another person in Townsend’s car that day was Darryl

18   Winfree. Winfree had previously arranged the purchase of powder cocaine by Jones from an

19   individual known as “Scrap.” After driving Jones around Co-op City for a number of errands,

20   Townsend drove Jones and Winfree to meet Scrap, and Jones purchased the cocaine. Jones then

21   tried to convince Townsend to drive to Townsend’s apartment to “cook” the powder cocaine into

22   cocaine base. Ultimately, Jones and Townsend went to Townsend’s apartment and processed the


                                                     -8-
 1   cocaine powder into cocaine base. Townsend received no payment or drugs from Jones or

 2   Winfree for driving them around or for the use of his apartment. The two drug charges against

 3   Townsend related to the powder cocaine purchase by Jones from Scrap and the processing of the

 4   powder into cocaine base. The firearms charge alleged that Townsend had a pistol in a hidden

 5   compartment in his car on July 13.1 The principal issue at Townsend’s trial was whether he was

 6   simply present for the drug dealings involving Jones, Winfree and Scrap, or whether he joined in

 7   the drug conspiracy. Townsend was acquitted of possession with intent to sell the cocaine base

 8   and the firearms charge. The jury found him guilty of the drug conspiracy.

 9          The Fed.R.Evid. 404(b) evidence at Townsend’s trial was the following: in April 2005,

10   Townsend had been asked by Jones – who was cooperating with the same federal and local law

11   enforcement officers as on July 13 – to arrange for Jones to purchase a handgun. Townsend set

12   up a meeting between Jones and Isaiah Mercado, and Jones bought a handgun from Mercado. In

13   June 2005 – also while Jones was cooperating with law enforcement – Townsend sold a handgun

14   to Jones. At trial, the Court permitted Jones and law enforcement officers to testify about both

15   firearm transactions and also admitted both handguns as full exhibits.

16   II.    Evaluation of Relevance Under Rule 404(b)

17          Although the Second Circuit’s “inclusionary” approach affords broad latitude to the trial

18   court regarding the admission of prior act evidence under Rule 404(b), this approach “does not

19   obviate the need to identify the fact or issue to which the evidence is relevant.” United States v.

20   Figueroa, 618 F.2d 934, 940 n.2 (2d Cir. 1980). There must be a clear connection between the



     1
 1              Jones was wearing a concealed radio transmitter on July 13, and was surveilled by
 2   federal and local law enforcement during that day’s activities.

                                                     -9-
 1   prior act evidence and a disputed issue at trial. Without such connection, Rule 404's general

 2   prohibition against offering character evidence to show propensity to commit crimes would be

 3   violated. For example, this Court has held that when prior act evidence is offered to prove a

 4   defendant’s intent or knowledge, it must be similar to the charged offense. United States v.

 5   LaFlam, 369 F.3d 153, 156 n.1 (2d Cir. 2004) (per curiam); see also United States v. Brand, 467

 6   F.3d 179, 197 (2d Cir. 2006) (government must show “similarity or some connection” of prior

 7   act evidence to charged crime, in order to establish that the prior act is relevant to a disputed

 8   element, such as intent); United States v. Gordon, 987 F.2d 902, 908 (2d Cir. 1993) (probative

 9   value of other-act evidence depends largely on whether or not there is a “close parallel” between

10   the crime charged and the acts shown). “Rule 404(b) does not authorize the admission of any

11   and every sort of other-act evidence,” Gordon, 987 F.2d at 908; the other act must be

12   “sufficiently similar to the conduct at issue to permit the jury reasonably to draw from that act the

13   knowledge inference advocated by the proponent of the evidence.” Id. (citing United States v.

14   Peterson, 808 F.2d 969, 974 (2d Cir. 1987)).

15          One purpose for which prior act evidence has been permitted is to provide “background

16   information” to a charged conspiracy, to explain how a criminal relationship developed. United

17   States v. Pipola, 83 F.3d 556, 565 (2d Cir. 1996). Prior act evidence has also been permitted to

18   help the jury understand the basis for the relationship of mutual trust between co-conspirators.

19   See, e.g., United States v. Rosa, 11 F.3d 315 (2d Cir. 1993). In order for prior act evidence to be

20   admissible under these theories, however, some particular aspect of the background or the

21   relationship of mutual trust must be in issue and the proffered evidence must be particularly




                                                      -10-
 1   relevant to that issue.2

 2           None of these characteristics of admission of evidence as background or to show the basis

 3   of the relationship of trust between co-conspirators was present in this case. The charged

 4   conspiracy involving Townsend, Jones, and Winfree had no similarity to the prior gun sales

 5   involving Townsend and Jones. The gun sales did not involve Scrap or Winfree, and

 6   Townsend’s role in those sales was not offered to support a theory regarding his role in the drug

 7   conspiracy: in the gun transactions, he was a broker or a seller, while in the drug transactions, he

 8   was merely a driver, and (according to the government), in doing this driving and in allowing

 9   Jones to process the cocaine in his apartment, Townsend intended to join in the illegal agreement

10   between Winfree and Scrap to sell cocaine to Jones. More of a connection between the Rule

11   404(b) evidence and the crimes under consideration is required. For example, in Rosa the

12   cooperating witness Melendez was the former leader of a drug trafficking group known as the

13   “Organization,” and he testified at trial that years before the charged drug and gun conspiracy, he

14   and the defendant had stolen cars and engaged in narcotics transactions together. 11 F.3d at 315.

15   The evidence was admitted under Rule 404(b) to explain why Melendez trusted Rosa and

16   subsequently appointed him a “lieutenant” in the Organization, since Rosa’s leadership role was



     2
 1            The Second Circuit has held that a determination of admissibility is often most
 2   appropriately made at the conclusion of the defendant’s case, and should be aimed at a
 3   specifically identified issue. Figueroa, 618 F.2d at 939. This allows the district court to
 4   determine whether the issue is actually in dispute, and to assess the probative worth of the prior
 5   act evidence against its prejudicial effect in light of the other evidence actually presented at trial.
 6   Id. The District Court recognized this approach and decided in its in limine ruling on the Rule
 7   404(b) evidence that the Court would wait to determine whether the evidence should be admitted
 8   on the issue of intent, but would permit the Government to introduce the evidence in its case in
 9   chief as “background” evidence. United States v. Townsend, No. S1 06 Cr. 34 (JFK), slip op. at
10   12-15 (S.D.N.Y. Apr. 30, 2007) (opinion and order on motions in limine).

                                                      -11-
 1   a particular aspect of the conspiracy that was directly in issue in the case. Id. Similarly, in

 2   Pipola, the defendant’s role as a leader and planner who worked through other co-conspirators

 3   was specifically at issue since he was not physically present at the scenes of the charged

 4   robberies. 83 F.3d at 559-61. Prior armed robberies, a burglary, and other acts involving Pipola

 5   and the other co-conspirators admitted under Rule 404(b) helped show his role as the true leader

 6   of the charged conspiracy and explain his absence from the crime locations. See id. In Brand,

 7   the “similarity or some connection” requirement was satisfied by child pornography materials

 8   found on the hard drive of a computer belonging to a defendant charged with attempting to

 9   engage in illicit sexual conduct with a minor because a “direct connection exists between child

10   pornography and pedophilia . . . an ‘abnormal sexual attraction to children,’” and whether the

11   defendant intended to have sex with the minor was at issue. 467 F.3d at 197-98. In Townsend’s

12   case, the prior gun sales did not bear any relationship to the drug transaction that formed the basis

13   for the charged conspiracy. There was no allegation that the gun sales were in any way a prelude

14   or introduction to Townsend’s role in the subsequent drug transaction, nor that Townsend forged

15   any new or different connection to Jones, Winfree or Scrap by engaging in the gun sales. Nor

16   was the criminal activity involved in the prior acts related in subject matter to that involved in the

17   charged conspiracy.

18          The prior gun transactions were also not particularly relevant to the development of

19   mutual trust between Jones and Townsend. That strong relationship and friendship was

20   undisputed, and was detailed by ample evidence at trial, including Jones’s testimony that he and

21   Townsend had known each other since childhood; that Jones had lived in Townsend’s apartment;

22   that they saw each other virtually every day during the spring and summer of 2005; that Jones


                                                      -12-
 1   was the godfather of Townsend’s daughter; and that they had grown up together in Co-op City.

 2   The relationship of trust was not disputed by Townsend at trial – Townsend only disputed his

 3   intent to enter into the drug conspiracy with Winfree and Scrap during July of 2005. It is perhaps

 4   enlightening, both as to the lack of connection between the prior gun transactions and the drug

 5   conduct of July 13 and as to the strength of the government’s proof, that Townsend was

 6   originally charged with the April and June gun transactions in the same indictment that charged

 7   him with the July 2005 drug conspiracy and related counts. The Government had these two gun

 8   counts dismissed before trial, but introduced them as the 404(b) evidence.3

 9   III.   Rule 403 Balancing Test

10          The district court also failed to correctly apply Rule 403's balancing of the probative

11   value of the prior act evidence against its highly prejudicial nature. First, the district court

12   indicated that the evidence might be unfairly “prejudicial” only by being “more inflammatory

13   than the conduct charged in the Indictment.” United States v. Townsend, No. S1 06 Cr. 34

14   (JFK), slip op. at 15 (S.D.N.Y. April 30, 2007). The district court was correct in concluding that

15   evidence which is more inflammatory than the conduct charged in the indictment would likely be

16   unfairly prejudicial. However, the inflammatory effect of evidence is only one way in which it

17   may cause unfair prejudice to a defendant. Evidence may also be unfairly prejudicial when, even

18   though relevant to a fact in issue, it also tends so strongly to show the defendant’s propensity to

19   commit crimes that this tendency outweighs any probative value that the evidence might have.



     3
 1            Although Townsend was also charged with possession of a gun during the events of July
 2   13, the district court did not consider the potential relevance, vel non, of the prior gun sale
 3   evidence to this charge, nor did the district court instruct the jury that the prior acts should be
 4   considered for any purpose relating to the gun charge.

                                                      -13-
 1   See, e.g., Old Chief v. United States, 519 U.S. 172, 180 (1997) (“The term ‘unfair prejudice,’ as

 2   to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the

 3   factfinder into declaring guilt on a ground different from proof specific to the offense charged. . .

 4   . ‘Unfair prejudice’ . . . means an undue tendency to suggest decision on an improper basis,

 5   commonly, though not necessarily, an emotional one.”) (emphasis added); Figueroa, 618 F.2d at

 6   943 (“Evidence is prejudicial only when it tends to have some adverse effect upon a defendant

 7   beyond tending to prove the fact or issue that justified its admission into evidence. The

 8   prejudicial effect may be created by the tendency of the evidence to prove some adverse fact not

 9   properly in issue or unfairly to excite emotions against the defendant.” (internal citations omitted,

10   emphasis added)); 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:13 (3d

11   ed. 2008) (describing unfair prejudice as either emotion-based or based on misuse of evidence).

12          When relevant evidence has a prejudicial effect, “Rule 403 requires the trial court to

13   make a conscientious assessment of whether the probative value of the evidence on a disputed

14   issue in the case is substantially outweighed by the prejudicial tendency of the evidence to have

15   some other adverse effect upon the defendant.” Figueroa, 618 F.2d at 943. The district court’s

16   analysis of the potential for unfair prejudice to Townsend from the admission of the prior gun

17   sale evidence was limited to concluding, prior to trial, that (1) the evidence of Townsend’s

18   dealings in firearms was not rendered prejudicial because it was “no more inflammatory than the

19   conduct charged in the Indictment,” and (2) the recent shootings at Virginia Tech4 did not render



     4
 1           On April 16, 2007, a gunman at Virginia Polytechnic Institute and State University in
 2   Blacksburg, Virginia killed 32 and wounded several others before killing himself.
 3   Commonwealth of Virginia, Report of the Virginia Tech Review Panel (2007),
 4   http://www.governor.virginia.gov/TempContent/techPanelReport.cfm.

                                                     -14-
 1   the evidence of Townsend’s dealings in firearms especially inflammatory. The district court also

 2   failed to consider (or to reconsider at trial) the other evidence actually offered at trial on the

 3   disputed issues in determining the probative value of the prior gun sales, such as Jones’s

 4   extensive testimony about his relationship with Townsend. See Old Chief, 519 U.S. at 182-83,

 5   183 n.7 (a district court should consider the actual available substitutes for the proffered prior act

 6   evidence when conducting the Rule 403 balancing, but the abuse of discretion standard on appeal

 7   of a Rule 403 decision is not satisfied by a mere showing of some alternative means of proof that

 8   the prosecution in its broad discretion chose not to rely upon); cf. Figueroa, 618 F.2d at 939

 9   (determination of admissibility of prior act evidence should often be made at the conclusion of

10   the defendant’s case). Moreover, the district court admitted not only the testimony regarding

11   those gun sales but also the guns themselves.5 The admission of two handguns into evidence

12   likely contributed to the substantial prejudicial effect of the testimony regarding the gun sales.

13   The impact of the handguns as full exhibits far exceeded their very low probative value,

14   especially since the law enforcement officers who received and retained the guns Jones

15   purchased corroborated Jones’s testimony about the gun transactions.

16           Finally, it seems germane to the Rule 403 inquiry that the two firearm transactions were

17   initiated by the same government agents that instigated the drug transaction of July 13, and



     5
 1            The district court admitted the guns because it concluded that they were “inextricably
 2   intertwined with the events charged.” See Trial Transcript at 71; cf. United States v. Gonzalez,
 3   110 F.3d 936, 942 (2d Cir. 1997) (“[E]vidence of uncharged criminal activity is not considered
 4   ‘other crimes’ evidence under Fed.R.Evid. 404(b) if it ‘arose out of the same transaction or series
 5   of transactions as the charged offense, or if it is necessary to complete the story of the crime [on]
 6   trial.’”). The guns were intertwined – but not with any element of the charged conspiracy;
 7   instead, they were intertwined with the uncharged prior act evidence, which was not intertwined
 8   with the charged offenses at all.

                                                       -15-
 1   utilized the same cooperating witness, Jones. As previously stated, the Government had

 2   recruited Jones in early 2005 to try to buy guns and drugs in Co-op City. The two gun

 3   transactions involving Townsend were initiated by Jones, who had much to gain from this

 4   cooperation. It would seem that other acts (1) involving Townsend, (2) involving the sale of

 5   drugs rather than of guns, and (3) not instigated by the Government would have had more

 6   relevance to Townsend’s intent to join in Jones’s efforts to acquire cocaine in July 2005. In any

 7   event, it is very unusual to have Rule 404(b) evidence which was part of the same investigation

 8   as the charged offense, was originally included in the first indictment of the defendant, and then

 9   was removed by the Government through a superseding indictment, to be offered instead as

10   “background” evidence supporting the remaining conspiracy count.

11   IV.    Limiting Instructions and Jury Charge

12          Even if the district court had properly admitted the prior gun sales and the guns, and even

13   if the Rule 403 analysis had been properly conducted, the limiting instructions and jury charge

14   were inadequate. First, the instructions were partially incorrect as to the proper scope of the

15   jury’s consideration of the prior act evidence. As discussed above, Townsend’s “knowledge” of

16   the Winfree/Jones deal was never in issue during the trial, yet knowledge is one of the issues

17   about which the trial court twice instructed the jury: once at the beginning of Jones’s testimony

18   about the gun sales, and once before the admission of the guns into evidence. See Trial

19   Transcript at 143-144, 400-01 (stating that “You can consider this evidence only as background

20   to prove and to show that the defendant was acting knowingly and intentionally if he committed




                                                     -16-
 1   the crimes with which he’s charged . . . .”) (emphasis added).6 There was no dispute that

 2   Townsend was present for and knew of the agreement between Jones and Winfree and the drug

 3   purchase. The only issue was whether Townsend agreed to join their conspiracy.

 4          Moreover, in delivering the first limiting instruction (before Jones’s testimony), the

 5   district court cited the charged events as occurring during the wrong time period: “You can

 6   consider this evidence only as background to prove and to show that the defendant was acting

 7   knowingly and intentionally if he committed the crimes with which he’s charged in June.” Trial

 8   Transcript at 143-44 (emphasis added). In fact, the period of the conspiracy charged was in July

 9   2005; the prior gun sales occurred in April and June 2005. Although normally such an oversight

10   might have little importance, in this case it adds confusion as to which acts or agreements (i.e.

11   the gun sale in June, or the drug sale in July) could form the basis for a finding of guilty as to the

12   conspiracy charge. The lack of objection by defense counsel does not solve the problem of jury

13   confusion created by the erroneous instruction.


     6
 1            The limiting instruction given prior to Jones’s testimony was as follows:
 2
 3       Let me explain something to the jury. The government is offering this evidence about these
 4       alleged events relating to firearms. Mr. Townsend is not charged with that criminal activity.
 5       You can consider this evidence only as background to prove and to show that the defendant
 6       was acting knowingly and intentionally if he committed the crimes with which he’s charged
 7       in June. These events involving the guns cannot be used to say well, if he had something to
 8       do with those guns, he must be guilty of the crimes charged in July.
 9
10       This is similar act evidence that is admitted only to show background and the relationship
11       between Mr. Townsend and Mr. Jones. It’s not admitted as proof directly of guilt in any
12       way. And it’s not admissible and it’s not there to show that the defendant is a bad fellow or
13       that he has a bad character.
14
15   Trial Transcript at 143-44. The limiting instruction was in all material aspects repeated prior to
16   the introduction of the guns themselves. Trial Transcript at 400-01.


                                                      -17-
1           The district court also instructed the jury prior to deliberations that the evidence could be

2    considered as the basis for “an inference that in doing the acts charged in the Indictment the

3    defendant acted knowingly” and “as evidence of the background for the alleged conspiracy, if

4    you find a conspiracy to exist, and as evidence that may explain the relationship between Jones

5    and the defendant.” Trial Transcript at 651-52 (jury charge).7 While this instruction might have

6    been appropriate if the “background” evidence had been properly admitted or knowledge was an

7    issue, a correct jury instruction as to one of the proper purposes of prior act evidence cannot cure



     7
 1            The relevant portion of the charge reads as follows:
 2
 3       The Government has offered evidence tending to show that on different occasions the
 4       defendant engaged in other conduct that may be similar in certain respects to that charged in
 5       the Indictment. Specifically, the government has introduced evidence relating to two firearm
 6       transactions between Ismaiyl Jones and the defendant prior to the events alleged in the
 7       Indictment.
 8
 9       In that connection, let me remind you that the defendant is not on trial here for committing
10       the acts not charged in the Indictment. Accordingly, you may not consider this evidence of
11       these other acts as a substitute for proof that the defendant committed the crimes charged in
12       the Indictment. Nor may you consider this evidence as proof that the defendant has a
13       criminal personality or bad character. The evidence of the other acts was admitted for a
14       much more limited purpose and you may consider it only for that limited purpose.
15
16       If you determine that the defendant commit[ted] the crimes charged in the Indictment and the
17       other acts as well, then you may, but you need not, draw an inference that in doing the acts
18       charged in the Indictment the defendant acted knowingly and intentionally and not because
19       of some mistake, accident or other reasons that are innocent. You may also consider the
20       evidence about other acts, if you accept it, as evidence of the background for the alleged
21       conspiracy, if you find a conspiracy to exist, and as evidence that may explain the
22       relationship between Jones and the defendant.
23
24       Evidence of other similar acts may not be considered by you for any other purpose.
25       Specifically, you may not use this evidence to conclude that because the defendant
26       committed the other acts, he must also have committed the acts charged in the Indictment.
27
28   Trial Transcript at 651-52.

                                                     -18-
 1   the district court’s error in admitting as “background” (or to show knowledge) unfairly

 2   prejudicial prior act evidence that was not relevant to any issue in dispute.

 3          The jury must be instructed with precision as to the issues for which they may consider

 4   Rule 404(b) evidence. The district court’s erroneous limiting instructions and jury charge likely

 5   confused the jury and failed to reliably ensure that evidence ostensibly admitted for a limited

 6   purpose under Rule 404(b) would be considered for that purpose alone.

 7   V.     Harmless Error

 8          The “harmless error” standard was articulated by the United States Supreme Court in

 9   Kotteakos v. United States as follows:

10          If, when all is said and done, the conviction is sure that the error did not influence the
11          jury, or had but very slight effect, the verdict and the judgment should stand, except
12          perhaps where the departure is from a constitutional norm or a specific command of
13          Congress .... But if one cannot say, with fair assurance, after pondering all that
14          happened without stripping the erroneous action from the whole, that the judgment
15          was not substantially swayed by the error, it is impossible to conclude that substantial
16          rights were not affected. The inquiry cannot be merely whether there was enough to
17          support the result, apart from the phase affected by the error. It is rather, even so,
18          whether the error itself had substantial influence. If so, or if one is left in grave doubt,
19          the conviction cannot stand.
20
21   328 U.S. 750, 764-65 (1946) (footnote omitted).

22          The government’s case against Townsend was weak, even considering the partially

23   recorded conversations which were considered by the jury, because considerable doubt existed as

24   to the only issue in dispute: Townsend’s intent. The prior gun sales, as well as the drug sale

25   forming the basis of the charged conspiracy, were all instigated and arranged at the behest of the

26   government, through Jones – none was instigated by Townsend. In fact, the evidence did not

27   even suggest that Townsend ever attempted to acquire drugs or to profit from the drug sale. The



                                                       -19-
 1   trial testimony showed just the opposite: Townsend simply drove his friend Jones, who did not

 2   own a car, on various errands, just as had been their practice in the past, ultimately collecting no

 3   compensation for his actions. Although several law enforcement witnesses testified to

 4   corroborate the government’s account of the events of the July 2005 drug sale, only Jones’s

 5   testimony and the incomplete tape recordings of their conversations had any bearing on the only

 6   issue truly in dispute: Townsend’s intent to join the drug conspiracy. Jones’s lengthy testimony

 7   was, accordingly, exceedingly important.

 8          Yet Jones also was hardly a credible witness. He had an extensive criminal history which

 9   included stealing drugs and committing larcenies since he was fourteen years old. He had been

10   convicted in 2002 of first degree robbery, second degree assault and second degree larceny; after

11   serving a state prison sentence for those crimes, he violated his conditions of probation and fled

12   to avoid serving additional time for that violation. He then obtained a false identification card

13   and began selling crack cocaine. He transported heroin from New York to Ohio, and he cashed

14   counterfeit checks. Jones only began cooperating with the government after he was again

15   arrested in January, 2005 in Connecticut in connection with the 2002 probation violation and

16   faced a lengthy prison term. Even after he began his cooperation in 2005, Jones violated the

17   terms of his cooperation agreement with the government and was again arrested.

18          After deadlock, the jury acquitted Townsend on the two substantive counts, and returned

19   a guilty verdict only on the conspiracy count. In light of the Government’s reliance on Jones’s

20   testimony to establish Townsend’s intent, the improperly admitted prior act evidence

21   undoubtedly substantially influenced the jury’s deliberations.

22


                                                     -20-
