17-1741-cr
United States v. Baez

                                 UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
30th day of January, two thousand nineteen.

PRESENT:           PETER W. HALL,
                   SUSAN L. CARNEY,
                   RICHARD J. SULLIVAN,
                               Circuit Judges.

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UNITED STATES OF AMERICA,

                                      Appellee,

                            v.                                                        No. 17-1741-cr

ATDILON BAEZ,

                                      Defendant-Appellant.

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FOR APPELLANT:                                            EZRA SPILKE, Law Offices of Ezra Spilke, PLLC,
                                                          Brooklyn, New York.

FOR APPELLEE:                                            SAMSON ENZER, Karl Metzner, Assistant United States
                                                         Attorneys, for Geoffrey S. Berman, United States
                                                         Attorney for the Southern District of New York, New
                                                         York, New York.



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   Appeal from a judgment of the United States District Court for the Southern District of

New York (Woods, J.).

   UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED.

   Defendant-Appellant Atdilon Baez was tried and convicted of knowingly possessing a

TEC-9 semi-automatic firearm after having been convicted of a felony, in violation of 18

U.S.C. § 922(g)(1), and knowingly selling the TEC-9 to a convicted felon, in violation of 18

U.S.C. § 922(d)(1). Baez was sentenced principally to 105 months of imprisonment.

   We assume the parties’ familiarity with the facts, record of prior proceedings, and

arguments on appeal, which we reference only as necessary to explain our decision to affirm.

   During pretrial proceedings, Baez indicated that he planned to raise at trial a defense of

entrapment. To rebut this defense, the Government sought to introduce evidence showing

Baez’s predisposition to commit the charged offenses. Pursuant to Rule 404(b) and Rule 403

of the Federal Rules of Evidence, the District Court admitted over Baez’s objection certain

evidence of Baez’s statements, conduct, and prior convictions for weapons possession as

proof of his predisposition to commit the charged offenses. Baez challenges these evidentiary

rulings under Rule 404(b) and Rule 403. For the reasons that follow, we are not persuaded by

Baez’s arguments.

   We review the District Court’s evidentiary rulings for abuse of discretion. United States v.

Awadallah, 436 F.3d 125, 131 (2d Cir. 2006) (Rule 403); United States v. Brand, 467 F.3d 179,

196 (2d Cir. 2006) (Rule 404(b)). “To find such abuse, we must conclude that the trial judge’s



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evidentiary rulings were arbitrary and irrational.” United States v. Paulino, 445 F.3d 211, 217 (2d

Cir. 2006) (internal quotation marks omitted).

   “If a defendant presents credible evidence of government inducement, then the prosecutor

must show predisposition beyond a reasonable doubt.” United States v. Bala, 236 F.3d 87, 94

(2d Cir. 2000). Rule 404(b) provides that evidence of crimes, wrongs, or other acts is

inadmissible “to prove a person’s character in order to show that on a particular occasion the

person acted in accordance with the character,” but is admissible for other purposes. Fed. R.

Evid. 404(b). Under the inclusionary approach adopted by this Circuit, such evidence is

admissible “for any purpose other than to show the defendant’s criminal propensity.” United

States v. McCallum, 584 F.3d 471, 475 (2d Cir. 2009). In an entrapment case, evidence offered

to show predisposition is admissible under Rule 404(b). United States v. Blankenship, 775 F.2d

735, 739 (2d Cir. 1985). A district court must also assess the admissibility of such evidence

under Rule 403, which permits a court to “exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403.

   First, Baez challenges the admission of his statements expressing a desire to join forces

with Victor Moral, a Government informant, to commit armed robberies and describing his

plan for doing so. He argues that armed robbery is not sufficiently similar to the charged

conduct to be probative evidence of predisposition and that these statements are more

prejudicial than probative. When a defendant’s past conduct is offered as predisposition

evidence, the past conduct “should be near enough in kind to support an inference that his

purpose included offenses of the sort charged” but need not “be precisely the same as that for

which the defendant is being prosecuted.” United States v. Harvey, 991 F.2d 981, 994 (2d Cir.

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1993) (internal quotation marks omitted). The District Court did not exceed the bounds of

its discretion when it determined that the armed robbery statements were probative evidence

of predisposition because they showed Baez’s “predisposition to engage in criminal activity

involving firearms, criminal activity with [Moral] in particular, and, in this instance, to ensure

that [Moral] had appropriate weapons for future robberies and the like.” App. 537. Nor did

the District Court abuse its discretion in ruling that the statements were not unfairly prejudicial

because, although armed robbery is arguably more sensational or disturbing than possessing

and selling firearms, the statements did not indicate that Baez committed armed robberies;

they showed merely that he contemplated doing so.

   Second, Baez argues that evidence of his sale of a .38 caliber revolver to Moral should have

been excluded because the sale took place after the government inducement and was a less

prompt response to government inducement than the post-inducement conduct that we held

to be admissible in United States v. Brand. See 467 F.3d at 190–95. To be sure, the Government

cannot rely on conduct that was induced by government agents to prove that a defendant was

predisposed to commit the charged crime. But the Government may introduce post-

inducement conduct to establish predisposition by demonstrating that the defendant

“promptly avail[ed] himself of a government-sponsored opportunity to commit a crime.” Id.

at 193–95. The key question with regard to “prompt availment” is not the precise amount of

time that passes between the government contact and the criminal conduct, but rather the

degree to which the defendant exhibits a ready willingness to engage in the criminal conduct

with as little delay as possible, indicating that the conduct was an independent choice and not

the product of persuasion or badgering by the government agent. See id. at 192–95; United

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States v. Salerno, 66 F.3d 544, 547 (2d Cir. 1995); United States v. Cromitie, 727 F.3d 194, 213–14

(2d Cir. 2013). Here, as the District Court noted, the sale of the revolver occurred the first

time Baez saw Moral outside of prison, and there was no evidence to suggest Moral badgered

Baez into making this sale. The District Court, therefore, did not abuse its discretion in

admitting evidence of this sale.

      Finally, Baez contends that the District Court should have excluded evidence of his 1989

conviction for possessing a shotgun as too old and his 2002 conviction for possessing a pellet

gun as too dissimilar to the firearm offenses charged in this case. The District Court, however,

conscientiously considered both of these objections and did not abuse its discretion in

admitting the convictions as highly probative. The temporal remoteness of prior bad acts,

though relevant to an assessment of their probative value, is not dispositive. See United States

v. Curley, 639 F.3d 50, 59 (2d Cir. 2011). Furthermore, prior acts are probative when they show

“a pattern of activity that continued up to the time of the charged conduct.” Id.; accord United

States v. Brunshtein, 344 F.3d 91, 101 (2d Cir. 2003) (predisposition may be shown by “an

existing course of criminal conduct similar to the crime for which” a defendant is charged).

Baez’s prior weapons possession convictions are probative because of their similarity to the

charged offense and because, taken together, Baez’s three prior convictions—in 1989, 2002,

and 20111—demonstrate “a pattern of activity that continued up to the time of the charged

conduct.” Curley, 639 F.3d at 59.

      In any event, we conclude that any purported error was harmless in light of the other

evidence presented at trial, including Baez’s videotaped confession in which he admitted that


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    Baez specifically stated he had no objection to the admission of the 2011 conviction.
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he had obtained the TEC-9 before ever having met Moral, as well as cell phone data

demonstrating that, absent any Government inducement, Baez visited websites offering

firearms for sale. Accordingly, we can “conclude with fair assurance that the [contested]

evidence did not substantially influence the jury.” United States v. McCallum, 584 F.3d 471, 478

(2d Cir. 2009) (internal quotation marks and citation omitted).

   We have considered all Baez’s remaining arguments and conclude that they are without

merit. Accordingly, we AFFIRM the judgment of the District Court.

                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk of Court




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