     06-5119-cr
     USA v. Bermudez

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3
 4                            August Term 2007
 5     (Argued: March 10, 2008               Decided: June 17, 2008)
 6                         Docket No. 06-5119-cr
 7   -----------------------------------------------------x
 8   UNITED STATES OF AMERICA,
 9
10               Appellee,
11
12                           -- v. --
13
14   RICHIE BERMUDEZ,
15
16               Defendant-Appellant.
17
18   -----------------------------------------------------x
19
20   B e f o r e :     WALKER, CALABRESI, Circuit Judges, and UNDERHILL,
21                     District Judge.*

22         Appeal by Defendant Richie Bermudez from a judgment of

23   conviction, entered in the United States District Court for the

24   Southern District of New York (Gerard E. Lynch, Judge), for being

25   a felon in possession of a firearm, in violation of 18 U.S.C. §

26   922(g)(1).    We conclude that the district court did not err in

27   admitting police testimony as to drug-related statements made by

28   defendant; that the “blind strike” method of jury selection is

29   both constitutional and consistent with Federal Rule of Criminal

30   Procedure 24(b); and that comments made during the government’s

31   closing arguments were not unfairly prejudicial.



     *
1         The Honorable Stefan R. Underhill, United States District
2    Judge for the District of Connecticut, sitting by designation.

                                        -1-
1         AFFIRMED.

2         Judge UNDERHILL dissents, in part, in a separate opinion.

 3                                           ROGER BENNET ADLER, New York,
 4                                           N.Y., for Defendant-Appellant.
 5
 6                                           LISA R. ZORNBERG, Assistant
 7                                           United States Attorney, of
 8                                           counsel, (Jonathan S.
 9                                           Kolodner, Assistant United
10                                           States Attorney, of counsel,
11                                           on the brief), for Michael J.
12                                           Garcia, United States Attorney
13                                           for the Southern District of
14                                           New York, New York, N.Y., for
15                                           Appellee.

16   JOHN M. WALKER, JR., Circuit Judge:

17        Defendant-Appellant Richie Bermudez appeals from his

18   conviction on one count of possession of a firearm after having

19   previously been convicted of a felony, in violation of 18 U.S.C.

20   § 922(g)(1).     He argues that a new trial is warranted on the

21   grounds that the district court (Gerard E. Lynch, Judge)

22   improperly admitted police testimony as to drug-related

23   statements purportedly made by Bermudez; the district court’s

24   usage of the “blind strike” method of jury selection violated

25   Federal Rule of Criminal Procedure 24(b) as well as Bermudez’s

26   constitutional rights; and two comments made by the government

27   during summation were unfairly prejudicial.      We reject all three

28   of defendant’s arguments and affirm the judgment of conviction.

29                                 BACKGROUND

30        In light of the jury’s decision to convict Bermudez, we view


                                       -2-
1    the facts of the case in the light most favorable to the

2    government.    See Kosmynka v. Polaris Indus., Inc., 462 F.3d 74,

3    77 (2d Cir. 2006); see also Arlio v. Lively, 474 F.3d 46, 51 (2d

4    Cir. 2007).    On June 26, 2004, New York City police officers –

5    including Sergeant Von Kessel, and Officers Guerrero, Eiseman,

6    Johnson, and Collura – conducted undercover surveillance near

7    several nightclubs in the Bronx, an area that had a history of

8    illegal drug activity and violence.    During the surveillance

9    operation, Officer Eiseman noticed Bermudez walking from club to

10   club and speaking with various people on the street.    Suspecting

11   that Bermudez might be involved in street-level narcotic sales,

12   Officer Eiseman continued to watch Bermudez.    As Bermudez

13   approached the area where Officer Eiseman’s unmarked car was

14   parked, Officer Eiseman overheard Bermudez tell another man that

15   he had “fresh bricks back at his apartment,” which Officer

16   Eiseman understood to refer to kilograms of cocaine, and that

17   Bermudez could get 500 grams at ten o’clock the next morning.

18        By radio, Officer Eiseman and his partner, Officer Collura,

19   informed the team of the drug-related conversation that they had

20   overheard, prompting the other officers to focus their attention

21   on Bermudez.   From a second car, Sergeant Von Kessel and Officer

22   Guerrero then watched Bermudez and another man, Carlos Delgado,

23   walk toward a Toyota Camry parked in a well-lit area nearby.

24   Both officers saw Bermudez open the trunk, pull out a gun, and


                                      -3-
1    hand it to Delgado, who placed the gun in the waistband of his

2    pants.   Sergeant Von Kessel radioed the team to report this

3    sequence of events, provided a description of the two men, and

4    told the team to move in and arrest them.

5         The officers converged on the scene and stopped Bermudez and

6    Delgado.   When Officer Johnson arrived, he promptly approached

7    Delgado based on Sergeant Von Kessel’s description, frisked him,

8    and retrieved the gun.   The police also found $2600 in Delgado’s

9    pants.   Bermudez and Delgado were then arrested and each was

10   subsequently charged with one count of possession of a firearm

11   after having been convicted of a felony, in violation of 18

12   U.S.C. § 922(g)(1).   Delgado pled guilty and did not appeal from

13   his conviction or his sentence of seventy months’ imprisonment.

14        Bermudez’s first trial began in September 2005 and ended

15   when the jury deadlocked.   At his April 2006 retrial, the

16   foregoing evidence was presented to the jury.    The defense called

17   Delgado as their only witness, but he invoked his Fifth Amendment

18   privilege and declined to testify.    In lieu of Delgado’s trial

19   testimony, the district court allowed his testimony from an

20   earlier unsuccessful suppression hearing to be read to the jury.

21   At that hearing, Delgado admitted to possessing a gun but,

22   consistent with his claim of an absence of probable cause,

23   disputed the police officers’ entire account of how it came into

24   his possession.   According to Delgado, it was not Bermudez, but a


                                     -4-
1    man Delgado had just met who gave him the gun inside one of the

2    nightclubs.   Delgado also denied walking with Bermudez to the

3    parked Toyota Camry and claimed instead that the police stopped

4    and searched him without probable cause as he was exiting a

5    nightclub.    As for the $2600 found on his person at the arrest,

6    Delgado testified that it was “shopping money” for children’s

7    clothes.   He claimed that he had come to New York from

8    Massachusetts because clothes were cheaper in New York.

9         The jury returned a guilty verdict against Bermudez on May

10   2, 2006, and, after denying his motion for a new trial, the

11   district court gave Bermudez the same sentence of seventy months’

12   imprisonment that it had given Delgado.   Bermudez now appeals the

13   judgment of conviction.

14                                DISCUSSION

15        Bermudez raises three issues on appeal.   He argues that the

16   district court erred in admitting testimony about the drug-

17   related statements that he purportedly made, because they were

18   more prejudicial than probative; that the district court’s use of

19   the “blind strike” method of jury selection is unconstitutional

20   and inconsistent with Federal Rule of Criminal Procedure 24(b);

21   and that the government’s statements during closing arguments

22   unfairly prejudiced him.

23   I.   The Admissibility of Bermudez’s Drug-Related Statements

24        Under Federal Rule of Evidence 403, relevant evidence “may


                                      -5-
1    be excluded if its probative value is substantially outweighed by

2    the danger of unfair prejudice.”    Fed. R. Evid. 403.   District

3    courts have broad discretion to balance probative value against

4    possible prejudice, United States v. LaFlam, 369 F.3d 153, 155

5    (2d Cir. 2004), and we will not disturb that balancing “unless

6    there is a clear showing of abuse of discretion or that the

7    decision was arbitrary or irrational,” United States v. Ansaldi,

8    372 F.3d 118, 131 (2d Cir. 2004).

9         Bermudez argues that the district court erred in admitting

10   Officer Eiseman’s testimony that he overheard Bermudez make

11   statements suggestive of narcotics trafficking, namely that he

12   had “fresh bricks,” a common form of cocaine, in his apartment,

13   and that he could get 500 grams the following morning.     Bermudez

14   claims that the testimony at best was marginally relevant and

15   that it was unnecessary for Officer Eiseman to testify as to what

16   specifically had prompted him to call the surveillance team to

17   focus their attention on Bermudez.    Weighing against this

18   marginal probative value, Bermudez asserts, was the high risk

19   that the jury would view him as a drug dealer and be more

20   inclined to convict him on the gun charge based on this

21   irrelevant fact.   Bermudez further argues that the district court

22   abused its discretion in admitting the testimony on direct

23   examination, and that the proper course would have been to admit

24   the statements only after the defense had “opened the door” to


                                     -6-
1    the issue of credibility on cross-examination.

2         The district court, however, found the probative value of

3    the drug-related statements to be “significant” because the

4    primary issue at trial would be “whether the officers saw what

5    they say they saw with respect to the gun.”   Critical to the

6    credibility of the officers’ account was the reason why they

7    chose to watch Bermudez so closely.   The experienced district

8    judge further determined that the risk of prejudice from brief

9    references to drug-dealing was relatively low in this case: “I

10   don’t believe that references to drug dealing are somehow

11   shocking or more prejudicial in comparison to the gun charge in

12   the case.”

13        To minimize any potential prejudicial effect, the district

14   judge issued two limiting instructions – once after Officer

15   Guerrero testified that she received a radio communication

16   regarding the drug conversation overheard by Officer Eiseman and

17   his partner, and again after Officer Eiseman testified as to the

18   conversation itself.   The district judge instructed the jury that

19   this testimony was only relevant “in evaluating the evidence to

20   try to judge the credibility of what the officers are telling

21   you,” as it explained why the officers were watching Bermudez,

22   and that it was “entirely irrelevant” as to whether Bermudez did

23   or did not possess a gun on this particular occasion.   See Tr.

24   108-10 (“I just want to make doubly, triply, emphatically clear


                                     -7-
1    to you that it’s not your responsibility to decide whether Mr.

2    Bermudez is involved in anything with respect to narcotics.

3    That’s not the charge.”).1

4         Under these circumstances, we conclude that the district

5    court’s decision to admit the testimony was not an abuse of

6    discretion.    It was apparent from the beginning of the retrial

7    that the authenticity of the officers’ account would be

8    contested.    At his prior suppression hearing, Delgado, the

9    defense’s only witness – and indeed, “the only potential

10   exculpatory witness,” as the district court noted – disputed

11   every aspect of what the officers claimed to have seen, including

12   their claim that he received the gun from Bermudez out of the

13   trunk of a Camry.    The district court decided to admit this

14   testimony, over the government’s objection, in advance of

15   Bermudez’s first trial in September 2005.    The defense therefore

16   knew that Delgado’s testimony would be admitted when it told the

17   jury during opening statements in the second trial that

18   credibility – specifically, whether the police had fabricated a

19   story to justify Bermudez’s arrest – was at the heart of the

20   case.

21        Given the properly anticipated centrality of the officers’


     1
1         These instructions belie the dissent’s assertion that
2    “[n]one of the limiting instructions given in this case told the
3    jury that they could not consider whether Bermudez was a drug
4    dealer when deciding whether he was guilty of the gun charge.”
5    Dissent at 13.

                                      -8-
1    credibility to the outcome of the case, the district court was

2    not required to wait for Bermudez to launch a direct credibility

3    attack on cross-examination before admitting the officers’

4    testimony as to Bermudez’s drug-related comments.   Cf.

5    Supplemental App. at 50, 52 (permitting the government to elicit

6    the drug-related testimony at Bermudez’s initial September 2005

7    trial, and noting that “the whole issue is whether these officers

8    are to be believed anyway, . . . the defense will presumably be

9    saying all these guys aren’t telling the truth,” and “the

10   officers’ credibility is central”).   We further note that at the

11   second trial, Bermudez did not request the district court to

12   defer the drug-related testimony until the defense had opened the

13   door; rather, he moved to preclude the testimony altogether.

14        To convince the jury that the officers’ story was credible,

15   it was important for the government to establish, as a foundation

16   for the actions taken by the surveillance team that night, why

17   the officers’ attention was focused on Bermudez as opposed to any

18   number of other individuals in the high crime area.   Without a

19   reasonable explanation for singling out Bermudez, the officers’

20   testimony as to everything that followed could have been suspect.

21   Thus, providing this explanation to the jury was highly

22   probative, as the district court found, and contributed

23   importantly to the completeness of the officers’ account.    See

24   United States v. Thai, 29 F.3d 785, 813 (2d Cir. 1994) (holding


                                    -9-
1    that, where the defense theory was that government informants

2    were lying, testimony that corroborated the informants’ account

3    was properly admitted under Rule 403).

4         Moreover, any danger of unfair prejudice was minimized by

5    the district court’s two detailed limiting instructions, issued

6    immediately after Officers Guerrero and Eiseman testified to the

7    drug-related statements.   Any argument that these instructions

8    were insufficient to eradicate the statements’ prejudicial effect

9    fails because “[a]bsent evidence to the contrary, we must presume

10   that juries understand and abide by a district court’s limiting

11   instructions.”   United States v. Downing, 297 F.3d 52, 59 (2d

12   Cir. 2002); see also Zafiro v. United States, 506 U.S. 534, 540-

13   41 (1993) (“[E]ven if there were some risk of prejudice, here it

14   is of the type that can be cured with proper instructions, and

15   juries are presumed to follow their instructions.” (internal

16   quotation marks and citation omitted)).    Under the circumstances

17   here, the jury could reasonably be expected to comply with the

18   limiting instructions; thus, the “instructions sufficed to cure

19   any possibility of prejudice.”    Zafiro, 506 U.S. at 541; cf.

20   United States v. LaFlam, 369 F.3d 153, 157 (2d Cir. 2004)

21   (holding, in an armed robbery case, that the district court did

22   not abuse its discretion in admitting evidence of the defendant’s

23   uncharged drug use because the district court properly balanced

24   probative value against prejudice and “also gave a limiting


                                      -10-
1    instruction to the jury that reduced any potential prejudice that

2    introduction of the uncharged other act evidence might have

3    caused”).

4    II.   The “Blind Strike” Method of Jury Selection

5          Bermudez next challenges the district court’s employment of

6    the “blind strike” method of jury selection.   Under this method,

7    both parties simultaneously, rather than alternately, exercise

8    their peremptory challenges and thus do not know which jurors the

9    other has struck.   He claims that this method violated Federal

10   Rule of Criminal Procedure 24(b) and his constitutional rights to

11   due process and effective assistance of counsel.    In particular,

12   Bermudez argues that because both he and the government struck

13   the same juror, he was effectively “deprived . . . of the full

14   and knowledgeable use of his allotted challenges.”   Appellant’s

15   Br. at 18.

16         The Supreme Court’s express approval of the blind strike

17   method in Pointer v. United States, 151 U.S. 396 (1894),

18   forecloses Bermudez’s argument.   In Pointer, the Court addressed

19   whether a defendant is “entitled of right to have the government

20   make its peremptory challenges first, that he might be informed,

21   before making his challenges, what names had been stricken from

22   the list by the prosecutor.”   Id. at 409.   The Court held that no

23   such right existed, and that a defendant is “only entitled of

24   right to strike [a certain number of names] from the list of


                                    -11-
1    impartial jurymen furnished him by the court.”   Id. at 412.

2         In a non-capital felony case, Federal Rule of Criminal

3    Procedure 24(b) sets the number of peremptory challenges to which

4    a defendant is entitled at ten and the government at six; it does

5    not prescribe any method for the exercise of those challenges.

6    See Fed. R. Crim. P. 24(b); United States v. Blouin, 666 F.2d

7    796, 798 (2d Cir. 1981).   Rather, “trial courts retain a broad

8    discretion to determine the way peremptory challenges will be

9    exercised.”   United States v. Thompson, 76 F.3d 442, 451 (2d Cir.

10   1996) (internal quotation marks and citation omitted).

11        Under Pointer and Rule 24(b), Bermudez had a right only to

12   reject ten jurors from the full list, and this right was fully

13   accorded to him by the method that Judge Lynch selected:

14        Being required to make all of his peremptory challenges at
15        one time, [defendant] was entitled to have a full list of
16        jurors . . . . Such a list was furnished to him, and he was
17        at liberty to strike from it the whole number allowed by
18        [Rule 24(b)], with knowledge that the first 12 on the list,
19        not challenged by either side, would constitute the jury . .
20        . .
21
22             It is true that, under the [blind strike] method
23        pursued in this case, it might occur that the defendant
24        would strike from the list the same persons stricken off by
25        the government; but that circumstance does not change the
26        fact that the accused was at liberty to exclude from the
27        jury all, to the number [ten], who, for any reason, or
28        without reason, were objectionable to him. No injury was
29        done if the government united with him in excluding
30        particular persons from the jury.

31   Pointer, 151 U.S. at 411-12.   Thus, no constitutional deprivation

32   or violation of Rule 24(b) occurred when Bermudez struck the same


                                    -12-
1    juror as the government.

2         We further note that all five circuits that have considered

3    similar challenges to the blind strike method have upheld it as

4    constitutional and consistent with Rule 24(b).   See United States

5    v. Warren, 25 F.3d 890, 894 (9th Cir. 1994) (“Even when the

6    government and a defendant challenge the same juror, the blind

7    strike method does not impair a defendant’s full use of his or

8    her peremptory challenges.   Rule 24(b) does not specify that a

9    defendant’s challenges may not overlap the government’s.”

10   (citations omitted)); United States v. Norquay, 987 F.2d 475, 478

11   (8th Cir. 1993), abrogated in part on other grounds by United

12   States v. Thomas, 20 F.3d 817, 823 (8th Cir. 1994); United States

13   v. Mosely, 810 F.2d 93, 96-97 (6th Cir. 1987); United States v.

14   Roe, 670 F.2d 956, 961 (11th Cir. 1982); United States v. Sarris,

15   632 F.2d 1341, 1343 (5th Cir. 1980).   We join our sister circuits

16   in upholding the use of the blind strike method of exercising

17   peremptory challenges.

18   III. The Government’s Closing Arguments

19        Bermudez’s final contention is that he was unfairly

20   prejudiced by two statements made during the government’s closing

21   arguments.   The first was a comment casting doubt on Delgado’s

22   claim that he traveled to New York to purchase discount

23   children’s clothing because “life experience tells you the cost

24   of the trip from Massachusetts to New York was more than any


                                    -13-
1    discount on clothing he was going to find here.”   The second was

2    the government’s rebuttal to the argument that it was hiding

3    something by not calling as a witness Officer Eiseman’s partner,

4    Officer Collura, who also allegedly overheard Bermudez’s drug-

5    related statements.   The government stated, “What would Officer

6    Collura have told you, that he overheard the same thing?”

7         “[R]eversal on the basis of improper prosecutorial

8    statements during summation is warranted only when the

9    statements, viewed against the entire argument before the jury,

10   deprived the defendant of a fair trial.”   United States v.

11   Myerson, 18 F.3d 153, 163 (2d Cir. 1994) (internal quotation

12   marks and citation omitted).   In this case, Bermudez was not

13   substantially prejudiced by the government’s summation because

14   the district court promptly issued a curative instruction after

15   each comment to ensure that the jury did not draw any improper

16   inferences.   See United States v. Thomas, 377 F.3d 232, 244-45

17   (2d Cir. 2004) (holding that the prosecutor’s statements were not

18   misconduct causing substantial prejudice where the district judge

19   provided an immediate curative instruction).   Accordingly,

20   Bermudez’s challenge to the prosecution’s summation arguments

21   fails.

22                               CONCLUSION

23        For the foregoing reasons, the judgment of conviction is

24   AFFIRMED.


                                    -14-
1    UNDERHILL, District Judge, concurring in part and dissenting in

2    part:

3         I join parts II and III of the majority opinion, but

4    respectfully dissent from the affirmance of the District Court’s

5    evidentiary ruling.    The pre-trial decision to admit Bermudez’s

6    overheard admission that he had a significant quantity of drugs

7    for sale — which the majority affirms on the ground that the

8    admission was permissible to bolster the credibility of police

9    officers expected to testify at trial – violated clearly

10   established precedent of this Court that bolstering evidence can

11   be admitted only after credibility has been attacked.       In

12   addition, the result of the District Court’s Rule 403 balancing

13   fell outside the range of reasonable outcomes and therefore

14   amounts to an abuse of discretion.       Because Bermudez suffered

15   substantial prejudice as a result of the erroneous evidentiary

16   ruling, I would vacate the judgment and remand the case for a new

17   trial.

18        I.     Bolstering Evidence

19        The error in admitting Bermudez’s statements about illicit

20   drugs as bolstering evidence becomes clear by focusing on the

21   timing and substance of the challenged evidentiary ruling.1 Apr.


     1
1             The entirety of the District Court’s ruling follows:
2
3         In the first place, I deny the defendant’s motion in limine
4    to exclude testimony regarding statements allegedly made by Mr.
5    Bermudez regarding drugs. As I ruled in the previous trial, the

                                       -15-
1    27 Tr. at 3-4.2   The ruling was not made during trial in response

2    to an actual attack on any witness’s credibility or following the

3    admission into evidence of Carlos Delgado’s transcribed

4    testimony.   Rather, the ruling was made when deciding a motion in

5    limine in advance of any testimony in Bermudez’s second trial,

6    indeed, before the jury was selected.   At the time Bermudez’s

7    motion in limine was decided, the District Court had not admitted

8    Delgado’s statement.   The District Court did not then even know

9    whether Delgado’s testimony would be offered by the defendant,

10   Apr. 27 Tr. at 4 (District Court: “I imagine Mr. Delgado’s

11   testimony is likely to be offered by the defense.”); indeed, the

12   District Court still did not know if Delgado’s testimony would be



 1   probative value of these statements seems to me significant. The
 2   whole issue is whether the officers saw what they say they saw
 3   with respect to the gun that is charged.
 4        The officers will be describing various movements of Mr.
 5   Bermudez, particularly as I imagine Mr. Delgado’s testimony is
 6   likely to be offered by the defense, those movements will be
 7   contested. It would be highly peculiar, it seems to me, for a
 8   jury to try to address whether the officers saw what they said
 9   they saw without some understanding of why the officers would be
10   watching Mr. Bermudez. So I think there is significant probative
11   value to putting before the jury why the officers’ attention was
12   focused on Mr. Bermudez.
13        The prejudice, on the other hand, does not seem to me to be
14   significant. I don’t believe that references to drug dealing are
15   somehow shocking or more prejudicial in comparison to the gun
16   charge in the case. And whatever prejudice there is can and will
17   be further minimized by a limiting instruction which will be
18   given. Apr. 27 Tr. at 3-4.
     2
1           The four-day trial took place on April 27 and 28 and May 1
2    and 2 of 2006. Citations to the trial transcript will indicate
3    the day of trial and transcript page.

                                    -16-
1    offered as the government neared the end of its case in chief.

2    May 1 Tr. at 214 (“Now, if on the other hand you’re not going to

3    offer Delgado’s testimony . . . .”).   Therefore, the decision to

4    admit the bolstering evidence was made before the District Court

5    could have known whether and how Bermudez would choose to attack

6    the police officers’ credibility.3

7         Significantly, despite the majority’s heavy reliance on the

8    need to admit the evidence to bolster the credibility of police

9    officers expected to testify at trial, the District Court never

10   mentioned credibility in its ruling on the motion in limine; the

11   first mention of credibility was in a limiting instruction.

12   Instead, when admitting the evidence, the District Court merely

13   anticipated that the prosecution and defense would offer two

14   conflicting versions of the events leading to Bermudez’s arrest,

15   Apr. 27 Tr. at 4 (Bermudez’s “movements will be contested”), and

16   believed that the officers’ motivation for watching Bermudez was

17   important, id. (“there is significant probative value to . . .

18   why the officers’ attention was focused on Mr. Bermudez”).

19   Simply offering an alternative version of events (or here, merely



     3
1           The majority attempts to support the admission in the
2    second trial with descriptions of what occurred during the first
3    trial, an effort that I believe is inappropriate. See Sojak v.
4    Hudson Waterways Corp., 590 F.2d 53, 55 (2d Cir. 1978) (per
5    curiam) (“Because we cannot anticipate whether the question of
6    admissibility will arise in the same manner on the retrial, we
7    will not attempt to indicate in advance what the trial court’s
8    ruling should be.”).

                                   -17-
1    anticipating that the defense will do so) does not amount to a

2    defense attack on the credibility of government witnesses,4 and

3    certainly does not justify the admission of bolstering evidence

4    during the government’s direct examination.    If it did, the

5    government would be permitted to offer evidence to bolster the

6    credibility of its witnesses during their direct testimony in any

7    case in which the defendant intends to put on evidence.

8         No one suggests that Bermudez’s admitted drug dealing was

9    relevant to any of the substantive issues in this felon-in-

10   possession gun case.   The only relevance cited by the District

11   Court was to provide the jury with “some understanding of why the

12   officers would be watching Mr. Bermudez.”     Id.   According to the

13   majority, the officers’ motivation is “[c]ritical to the

14   credibility of the officers’ account.”   Majority at 7.     Evidence

15   of Bermudez’s drug dealing, in other words, bolsters the

16   officers’ credibility.   The majority now holds, without citation,

17   that the District Court could allow the government to bolster its

18   witnesses before an attack on their credibility in light of “the

19   properly anticipated centrality of the officers’ credibility.”

20   Majority at 8.

21        Never before has this Court held that anticipation is



     4
1           This Court has recognized that even cross-examining a
2    witness’s direct testimony does not necessarily amount to an
3    attack on credibility. United States v. Fernandez, 829 F.2d 363,
4    366 (2d Cir. 1987) (per curiam).

                                    -18-
1    sufficient to render bolstering evidence admissible.   By so

2    holding, the majority significantly departs from this Court’s

3    many decisions that evidence to bolster a witness’s credibility

4    is not admissible unless and until the witness’s veracity is

5    attacked.   E.g., United States v. Quinones, 511 F.3d 289, 312-13

6    (2d Cir. 2007); United States v. Porges, 80 Fed. Appx. 130, 132

7    (2d Cir. 2003) (summary order); United States v. Gaind, 31 F.3d

8    73, 78 (2d Cir. 1994); United States v. Pierre, 781 F.2d 329, 332

9    n.1 (2d Cir. 1986); United States v. Borello, 766 F.2d 46, 56 (2d

10   Cir. 1985); United States v. Jones, 763 F.2d 518, 522 (2d Cir.

11   1985); United States v. Edwards, 631 F.2d 1049, 1051 (2d Cir.

12   1980); United States v. Arroyo-Angulo, 580 F.2d 1137, 1146 (2d

13   Cir. 1978); see also 1 McCormick on Evidence § 33 at 147 (Kenneth

14   S. Broun ed., 6th ed. 2006) (hereinafter “McCormick”) (“[A]s a

15   general proposition, bolstering evidence is inadmissible.   As of

16   the time of the direct examination, it is uncertain whether the

17   cross-examiner will attack the witness’s credibility; the counsel

18   might later waive cross-examination [or conduct limited cross-

19   examination]. . . .   For that reason, the witness’s proponent

20   must ordinarily hold information favorable to the witness’s

21   credibility in reserve for rehabilitation”); id. at § 47.      I see

22   no reason to break with this Court’s clearly established

23   precedent on the permissible use of bolstering evidence.

24        In this case, the government painted Bermudez as a drug


                                    -19-
1    dealer in its opening statement and elicited evidence of

2    Bermudez’s “fresh bricks” conversation through its direct

3    examination of government witnesses Guerrero, Eiseman, and Von

4    Kessel before Bermudez cross-examined them.   Thus, the bolstering

5    evidence was not admissible when presented.   Moreover, even if

6    the District Court had properly precluded bolstering evidence

7    until redirect (or until the government’s rebuttal case, after

8    Bermudez presented Delgado’s testimony), the drug dealing

9    conversation still should not have been admitted unless Bermudez

10   attacked the officers’ credibility on the ground that they had no

11   motivation to watch his actions – the only conceivable basis of

12   admissibility.

13        Not every attack on credibility would justify admission of

14   evidence of Bermudez’s drug dealing; impeachment with prior

15   inconsistent testimony is an obvious example of an attack on

16   credibility that would not open the door to the bolstering

17   evidence admitted in this case.   In determining whether the door

18   has been opened to rehabilitative evidence, “[t]he general test

19   of admissibility is whether [the bolstering evidence] is

20   logically relevant to explain the impeaching fact.   The

21   rehabilitating facts must meet the impeachment with relative

22   directness.   The wall, attacked at one point, may not be

23   fortified at another, distinct point.”   McCormick, § 47 at 221

24   (emphasis added).   The testimony that Bermudez had drugs to sell


                                    -20-
1    was not “logically relevant to explain the impeaching fact”

2    unless and until the impeachment challenged the officers’

3    motivation to watch him – a line of impeachment never undertaken

4    by Bermudez.

5         Delgado’s testimony, which consisted of a transcript

6    available to the District Court in advance of its ruling, merely

7    contradicted, in a general sense, Eiseman’s testimony that

8    Bermudez handed a gun to Delgado.      Nothing in Delgado’s

9    testimony, however, called into question the officers’ motivation

10   for surveilling Bermudez, so the fact that an officer may have

11   overheard Bermudez offer drugs for sale was not relevant to

12   rehabilitate the officers’ credibility.      Unless and until the

13   defense attacked the officers’ motivation for watching Bermudez,

14   their motivation was entirely irrelevant.

15        Although the standard of review is abuse of discretion, this

16   Court has repeatedly held that a discretionary decision that is

17   legally erroneous “necessarily” amounts to an abuse of

18   discretion.    E.g., Aqua Stoli Shipping Ltd. v. Gardner Smith Pty

19   Ltd., 460 F.3d 434, 439 (2d Cir. 2006).      There is clearly

20   established precedent from this Court that credibility can be

21   bolstered only after it is attacked and only with evidence

22   addressing the basis of the attack.      Because the ruling on the

23   motion in limine conflicts with that authority, I conclude that

24   the District Court committed legal error and therefore abused its


                                     -21-
1    discretion by admitting Bermudez’s statements about drugs to

2    bolster the credibility of government witnesses before their

3    credibility had been attacked.

4         II.   The Rule 403 Balancing

5         Rule 403 of the Federal Rules of Evidence provides that

6    “[a]lthough relevant, evidence may be excluded if its probative

7    value is substantially outweighed by the danger of unfair

8    prejudice.”   A trial judge’s rulings with respect to Rule 403 are

9    entitled to considerable deference and will ordinarily not be

10   overturned absent an abuse of discretion.       Costantino v. Herzog,

11   203 F.3d 164, 173 (2d Cir. 2000).       The “improper admission of

12   evidence is grounds for reversal only where it affects ‘a

13   substantial right’ of one of the parties.” Id. at 174 (quoting

14   Fed. R. Evid. 103(a)).

15        This case meets that high standard.       The drug evidence had

16   no probative value to any substantive issue in this gun case, yet

17   its admission subjected Bermudez to tremendous prejudice: (1)

18   that the jury would no longer decide whether the defendant on

19   trial had possessed a gun, but rather whether the drug dealer on

20   trial had possessed a gun, and (2) that Bermudez would be

21   required to defend against drug distribution charges never

22   brought against him.

23        The majority states that the officers’ motivation for

24   watching Bermudez was “critical to the[ir] credibility.”


                                      -22-
1    Majority at 7.   Yet it is unclear, at best, how an explanation of

2    the officers’ motivation for watching Bermudez is relevant to

3    whether the Eiseman “saw what he said he saw” that night.      In my

4    view, the officers’ motivation for watching Bermudez was entirely

5    irrelevant, unless and until Bermudez attacked their credibility

6    on the ground that they were not motivated to watch him.      If a

7    police officer testified that he was at the scene and saw what he

8    saw, without explaining why he watched, no jury would pause to

9    wonder why he watched – that’s his job.

10        Even if motivation became an issue on cross-examination –

11   which it did not –    there was a plethora of possibilities

12   available to the District Court short of admitting the exact

13   conversation wholesale.    See Old Chief v. United States, 519 U.S.

14   172, 184 (1997) (“[W]hat counts as the Rule 403 ‘probative value’

15   of an item of evidence, as distinct from its Rule 401

16   ‘relevance,’ may be calculated by comparing evidentiary

17   alternatives. . . .    [W]hen a court considers ‘whether to exclude

18   on grounds of unfair prejudice,’ the ‘availability of other means

19   of proof may . . . be an appropriate factor.’”) (quoting Advisory

20   Committee’s Notes on Fed. R. Evid. 403).    For example, the

21   District Court could have allowed the officers to testify why

22   they were conducting surveillance in that area,5 or that Eiseman


     5
1          Officers Guerrero and Eiseman and Lieutenant Von Kessel
2    each testified that they were assigned to conduct surveillance at
3    the intersection because the area had a history of illegal drug

                                     -23-
1    grew suspicious of Bermudez because of the way he was acting,6 or

2    even that he took an interest in Bermudez because he overheard

3    Bermudez discuss what Eiseman perceived to be some unspecified

4    illegal activity.   The ready existence of multiple viable and

5    substantially less prejudicial means of proof further diminishes

6    any probative value the drug dealing comments may have had.

7         The pre-trial ruling that the “fresh bricks” conversation

8    would be admitted caused Bermudez immediate and acute prejudice.

9    Before the jury heard the first word of testimony, the government

10   had labeled Bermudez a big-time drug dealer in its opening

11   statement:   “[T]he officers who were watching the intersection

12   that night, were very familiar with that intersection.     They’ve

13   been there many, many times responding to reports of drug dealing

14   . . . .   And then two of the officers who were sitting in the car

15   on Westchester Avenue overheard this man, Richie Bermudez, having

16   a conversation about a drug deal.     They overheard him talking

17   like he was a big-time drug dealer.”      Apr. 27 Tr. at 26-27.    The

18   government then proceeded to elicit testimony about Bermudez’s

19   drug dealing throughout its case in chief.     E.g., id. at 50



1    activity and violence associated with the nightclubs located on
2    the corners of the intersection. Apr. 27 Tr. at 43-44, May 1 Tr.
3    at 131, 180.
     6
1          Eiseman testified that he focused on Bermudez initially
2    because Bermudez was “walking around from club to club, not going
3    inside anywhere,” which was “a little suspicious.” May 1 Tr. at
4    138-39.

                                    -24-
1    (testimony of Officer Guerrero: recounting police radio

2    transmission that, “I can’t believe this guy just tried to make a

3    drug transaction, a drug deal, right in front of us”), Apr. 28

4    Tr. at 111 (Officer Guerrero did not see Bermudez possess drugs),

5    id. at 112 (query about whether drug dealers use stash houses),

6    id. at 113-15 (query whether officers could have obtained search

7    warrant based on Bermudez’s statements about drugs), May 1 Tr. at

8    140 (testimony of Officer Eiseman:       “I heard . . . Mr. Bermudez,

9    tell the male Hispanic in the white shirt that he had fresh

10   bricks back at his apartment.”), id. at 141-42 (Question: “When

11   you overheard Mr. Bermudez talking about fresh bricks what did

12   you understand that to mean?”     Eiseman: “Kilograms of cocaine.”;

13   “The male Hispanic in the white T-shirt stated that he needed 500

14   grams.”), id. at 186 (testimony of Lieutenant Von Kessel:

15   Bermudez was “telling the guy that he was with that he is a big

16   time guy, that he doesn’t deal with the little stuff.      He only

17   deals with the big stuff.”).    The testimony elicited by the

18   government cannot fairly be described as “brief references to

19   drug dealing.”   Majority at 7.    From the very beginning of the

20   trial, indeed from the government’s opening, Bermudez had to

21   defend against two charges:    illegal gun possession and drug

22   distribution.

23        “The term ‘unfair prejudice,’ as to a criminal defendant,

24   speaks to the capacity of some concededly relevant evidence to


                                       -25-
1    lure the factfinder into declaring guilt on a ground different

2    from proof specific to the offense charged.     So, the Committee

3    Notes to Rule 403 explain, ‘[u]nfair prejudice’ within its

4    context means an undue tendency to suggest decision on an

5    improper basis, commonly, though not necessarily, an emotional

6    one.”   Old Chief, 519 U.S. at 180 (internal citations and

7    quotations omitted).   The risk in admitting prejudicial evidence

8    is that “a jury will convict for crimes other than those charged

9    – or that, uncertain of guilt, it will convict anyway because a

10   bad person deserves punishment.”     Id. at 181 (internal quotation

11   and citation omitted).   As such, prejudicial evidence invites

12   “preventive conviction even if [the defendant] should happen to

13   be innocent momentarily.”   Id.

14        Here, when conducting the required balancing under Rule 403,

15   the District Court did not consider the most significant danger

16   of prejudice from admission of the drug dealing admission –       that

17   the jury would decide Bermudez’s guilt on the gun charge based

18   upon his admitted drug dealing.     As a result, the Rule 403

19   balancing performed was inadequate.

20        It is precisely because Bermudez was charged with gun

21   possession that the substantively irrelevant evidence of drug

22   dealing poses a particularly significant risk of prejudice.       It

23   is axiomatic that drug dealing and guns go hand in hand.        United

24   States v. Hernandez, 85 Fed. Appx. 269, 271 (2d Cir. 2004)


                                       -26-
1    (summary order) (“guns are frequently tools of the drug trade”)

2    (citing United States v. Flaharty, 295 F.3d 182, 200 (2d Cir.

3    2002)).   Thus, there is a very substantial danger that a jury

4    would misuse the drug dealing evidence to explain why Bermudez

5    possessed the gun, a purpose for which it was not offered, as

6    opposed to explaining why the officers were watching Bermudez,

7    its intended purpose.

8         The District Court’s limiting instructions were necessary,

9    but insufficient to overcome the prejudice to Bermudez.   As noted

10   in the commentary to Federal Rule of Evidence 105:

11         If the prejudicial effect of evidence substantially
12         outweighs its probative value, despite a limiting
13         instruction, then the nonoffering party can argue
14         that the evidence should be completely excluded
15         because any limiting instruction would be
16         inadequate. Rules 403 and 105 are interrelated,
17         because a Judge in determining the prejudice to be
18         suffered from proffered evidence must necessarily
19         take into account whether this prejudice can be
20         sufficiently ameliorated by a limiting instruction.
21         The more effective the instruction in controlling
22         prejudice, the less prejudice is taken into account
23         in the Rule 403 balancing process. As the Advisory
24         Committee Note to Rule 403 observes, the prejudice
25         to be considered under that Rule is the prejudice
26         that is left after a limiting instruction has been
27         given.

28   Stephen A. Saltzburg, Daniel J. Capra, and Michael M. Martin,

29   Commentary to Federal Rule of Evidence 105, U.S.C.S. Court Rules:

30   Federal Rules of Evidence (Rules 101 - 700) at 93 (2007).

31        None of the limiting instructions given in this case told

32   the jury that they could not consider whether Bermudez was a drug


                                    -27-
1    dealer when deciding whether he was guilty of the gun charge.

2    The first instruction given by the District Court was the

3    strongest, but it was untimely – given the day after the

4    testimony it addressed7 – and it was focused on the “narcotics

5    conversation”: “Even if you were to believe that he did engage in

6    such a narcotics conversation, you can’t use that as any evidence

7    that he likely had a gun.”   Apr. 28 Tr. at 108-10.   The second

8    instruction informed the jury that the evidence of other crimes

9    “is not relevant” and “anything else he may have done on any

10   other occasion or not done isn’t really to the point.”    May 1 Tr.

11   at 141.   No limiting instruction was given following Von Kessel’s

12   testimony that Bermudez was overhead explaining that he was a

13   “big time” drug dealer.   Id. at 186.   Each limiting instruction

14   should have expressly prohibited the jury from considering

15   whether Bermudez was a drug dealer when deciding the gun case.

16        Even if the limiting instructions had been perfect and

17   perfectly timely, they would have been insufficient in this case.

18   Although this Court generally presumes that juries follow

19   limiting instructions, that presumption “evaporates where there

20   is an overwhelming probability that the jury will be unable to



     7
1           Not including the government’s opening statement, the
2    first mention of Bermudez’s drug dealing came during the direct
3    testimony of Officer Guerrero on April 27. Apr. 27 Tr. at 50.
4    The first limiting instruction was given at the end of the
5    defense cross-examination of Guerrero the following day. Apr. 28
6    Tr. at 108-10.

                                    -28-
1    follow the court’s instructions and the evidence is devastating

2    to the defense.”   United States v. Jones, 16 F.3d 487, 493 (2d

3    Cir. 1994).   See also United States v. Becker, 502 F.3d 122, 130-

4    31 (2d Cir. 2007) (“[W]e have found it inappropriate to presume

5    that a district court’s limiting instructions were obeyed when

6    such instructions required jurors to perform ‘mental

7    acrobatics.’”); United States v. Colombo, 909 F.2d 711, 715 (2d

8    Cir. 1990) (finding overwhelming probability that, despite

9    limiting instructions, the jury was unable to dispassionately

10   consider evidence of rape and sodomy admitted as “background” in

11   a trial for RICO conspiracy and narcotics violations).   We ask

12   too much of a jury first to hear that Bermudez was selling

13   kilogram quantities of cocaine, and then to expect them to ignore

14   that fact when deciding whether he possessed a gun.

15        “A district court ‘abuses’ or ‘exceeds’ the discretion

16   accorded to it when . . . its decision – though not necessarily

17   the product of a legal error or a clearly erroneous factual

18   finding – cannot be located within the range of permissible

19   decisions.”   Zervos v. Verizon New York, Inc., 252 F.3d 163, 169

20   (2d Cir. 2001) (footnote omitted).    I believe the result of the

21   Rule 403 balancing in this case was outside the range of

22   permissible decisions and thus amounts to an abuse of discretion.

23        III. Conclusion

24        The District Court abused its discretion when it admitted


                                    -29-
1    the drug-related conversation, because the probative value, if

2    any, of that evidence was substantially outweighed by its

3    overwhelmingly prejudicial effect.   Moreover, even if the

4    evidence were otherwise admissible under Rule 403 to rehabilitate

5    police officers’ credibility, the District Court erred when it

6    denied Bermudez’s motion in limine with prejudice before trial,

7    because evidence to bolster credibility is not admissible until a

8    witness’s credibility has been attacked.   Accordingly, I

9    respectfully dissent from Part I of the majority decision and

10   would reverse the judgment and remand for retrial.




                                   -30-
