Decisions of Interest

Evidence of Other 'Bad Acts' Scuttles Stalking Conviction

Finding the defendant's defense was prejudiced when the trial court admitted evidence of his and his family's prior and subsequent bad acts, the U.S. Court of Appeals for the Second Circuit overturned the defendant's conviction for stalking his wife. U.S. v. Curley, 09-3314-cr, NYLJ 1202491422682, at *1 (2d Cir., Decided April 25, 2011) (Jacobs, Chief Judge, and Wesley and Chin, Circuit Judges).

The victim, the defendant's now ex-wife, sought a protective order after her husband accused her of infidelity and threatened three times to kill her. She said that she had seen him following her in his truck on several occasions, and once saw his sister following her. After the order of protection was issued, the victim saw no one else following her. However, the defendant, unbeknownst to the victim, had placed a G.P.S. tracking device on her car, with which he was able to track her movements through an Internet website. Three months after it was placed there, an auto mechanic discovered the device. He turned it over to the police.

The defendant was convicted in the U.S. District Court for the Southern District of New York of interstate stalking and interstate violation of a protective order. At trial, pursuant to Rule 404(b) of the Federal Rules of Evidence, the district court admitted evidence of prior and subsequent “bad acts” of the defendant and of his brother and sister. Specifically, evidence was admitted showing the defendant had abused his ex-wife over the course of many years, along with evidence that the defendant's brother had beaten the victim 16 years earlier and that his sister had followed her. Also admitted was evidence that during a traffic stop ' which occurred 14 months after the acts for which he was being prosecuted 'the defendant, who was driving a rental car that had been reported stolen, was found in possession of several vintage firearms, ammunition, a bulletproof vest, and a ski mask, as well as his last will and testament.

On appeal, the court noted that “other act” evidence serves a proper purpose and is admissible so long as it is not offered to show the defendant's propensity to commit the offense. See Fed. R. Evid. 404(b); U.S. v. Pitre, 960 F.2d 1112, 1118-19 (2d Cir. 1992). Rule 404(b) provides that such evidence may properly show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Such evidence may not properly be admitted, however, if its potential for unfair prejudice substantially outweighs its probative value. See Fed. R. Evid. 403. If the evidence of the “other acts” tends to prove a fact not in issue or to create in the fact finder feelings against the defendant, such as anger or disgust, it creates a prejudicial effect. See U.S. v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980). The district court abuses its discretion when it admits “other act” evidence with a high possibility of jury misuse, but with only slightly more probative value than other evidence on the same issue. See McCallum, 584 F.3d 471, 477 (2d Cir. 2009).

The appellate court found that evidence that the defendant physically abused his wife during the same period in which he was tracking her with the G.P.S. device was directly relevant to show his intent and to show that his wife's fear of him was reasonable. See U.S. v. Carboni, 204 F.3d 39, 44 (2d Cir. 2000) (noting that uncharged acts are not “other acts” subject to Rule 404(b) if they “arose out of the same transaction or series of transactions as the charged offense, if [they are] inextricably intertwined with the evidence regarding the charged offense, or if [they are] necessary to complete the story of the crime on trial”). Citing to the holding in U.S. v. Von Foelkel, 136 F.3d 339 (2d Cir. 1998), the Second Circuit also found that evidence that the defendant abused his wife in earlier years was relevant to show his intent to harass or intimidate her. Because these prior acts paralleled the charged conduct, the court said, they had great probative value. In accordance with U.S. v. Roldan-Zapata, 916 F.2d 795 (2d Cir. 1990), evidence of these acts was also not unfairly prejudicial because it was no more sensational or disturbing than the crimes with which the defendant was charged. In addition, the appellate court found the district court's charge to the jury, which included an appropriate instruction on this evidence's limited purpose, mitigated any lingering risk of prejudice.

Evidence of the defendant's brother's and sister's prior bad acts should not have been admitted, however, because it was not sufficiently similar to the charged crimes to allow the jury to reasonably infer the victim's fear that if the defendant did not harm her his family would. The defendant, the appellate court observed in this regard, “was charged with traveling across state lines with the intent to harass or intimidate [the victim], and with using a computer for the same illegal purpose. There was no allegation that [the defendant] conspired with his brother or his family to commit these crimes.” While the probative value of this evidence was therefore minimum, its potential to prejudice the defendant's defense was high, as it could make the jurors believe that the defendant's family would help him to frighten or harm the victim; no charge of this kind had been brought.

As for the evidence gathered at the traffic stop, the court found it lacked the necessary parallel to the charged acts. “The government argues that the traffic stop is sufficiently connected to the charged conduct because [it] involved the same assailant, victim, and purpose,” said the court, “[y]et, there was insufficient evidence indicating [the defendant's] activities that day were related to or directed at [the victim], and no evidence that [the defendant] engaged in any threatening activity toward [the victim] in the fourteen months before the traffic stop.” To make the connection between the traffic-stop evidence, the victim and the crimes charged, the jurors would have had to infer that the defendant intended to use the firearms to kill the victim, and that he wrote the will providing for a guardian for his children because he also thought he was going to die, either by suicide or by being assaulted by the police or others. And, most problematic for the government, the traffic stop evidence would have had to show that this alleged intent to kill the victim had also existed 15 months earlier, at the time the charged crimes took place. “The combination of [the firearms], ammunition, a bulletproof vest, and a ski mask in a rented car certainly show that [the defendant] was behaving bizarrely, and that he might well have been planning a violent criminal act of some kind,” stated the court. “[B]ut it is a stretch to conclude from this evidence that fifteen months earlier [the defendant] intended to kill [the victim],” giving the evidence limited probative value. Its potential prejudicial effect on the jurors, however, was great, said the court, “because it was significantly more sensational and disturbing than the charged crimes.” Thus, it was error for the district court to admit the evidence obtained at the traffic stop.

Concluding that the district court's errors were not harmless and could have affected the defendant's substantial rights, the Second Circuit vacated the conviction and remanded for a new trial.

Evidence of Other 'Bad Acts' Scuttles Stalking Conviction

Finding the defendant's defense was prejudiced when the trial court admitted evidence of his and his family's prior and subsequent bad acts, the U.S. Court of Appeals for the Second Circuit overturned the defendant's conviction for stalking his wife. U.S. v. Curley, 09-3314-cr, NYLJ 1202491422682, at *1 (2d Cir., Decided April 25, 2011) (Jacobs, Chief Judge, and Wesley and Chin, Circuit Judges).

The victim, the defendant's now ex-wife, sought a protective order after her husband accused her of infidelity and threatened three times to kill her. She said that she had seen him following her in his truck on several occasions, and once saw his sister following her. After the order of protection was issued, the victim saw no one else following her. However, the defendant, unbeknownst to the victim, had placed a G.P.S. tracking device on her car, with which he was able to track her movements through an Internet website. Three months after it was placed there, an auto mechanic discovered the device. He turned it over to the police.

The defendant was convicted in the U.S. District Court for the Southern District of New York of interstate stalking and interstate violation of a protective order. At trial, pursuant to Rule 404(b) of the Federal Rules of Evidence, the district court admitted evidence of prior and subsequent “bad acts” of the defendant and of his brother and sister. Specifically, evidence was admitted showing the defendant had abused his ex-wife over the course of many years, along with evidence that the defendant's brother had beaten the victim 16 years earlier and that his sister had followed her. Also admitted was evidence that during a traffic stop ' which occurred 14 months after the acts for which he was being prosecuted 'the defendant, who was driving a rental car that had been reported stolen, was found in possession of several vintage firearms, ammunition, a bulletproof vest, and a ski mask, as well as his last will and testament.

On appeal, the court noted that “other act” evidence serves a proper purpose and is admissible so long as it is not offered to show the defendant's propensity to commit the offense. See Fed. R. Evid. 404(b); U.S. v. Pitre , 960 F.2d 1112, 1118-19 (2d Cir. 1992). Rule 404(b) provides that such evidence may properly show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Such evidence may not properly be admitted, however, if its potential for unfair prejudice substantially outweighs its probative value. See Fed. R. Evid. 403. If the evidence of the “other acts” tends to prove a fact not in issue or to create in the fact finder feelings against the defendant, such as anger or disgust, it creates a prejudicial effect. See U.S. v. Figueroa , 618 F.2d 934, 943 (2d Cir. 1980). The district court abuses its discretion when it admits “other act” evidence with a high possibility of jury misuse, but with only slightly more probative value than other evidence on the same issue. See McCallum, 584 F.3d 471, 477 (2d Cir. 2009).

The appellate court found that evidence that the defendant physically abused his wife during the same period in which he was tracking her with the G.P.S. device was directly relevant to show his intent and to show that his wife's fear of him was reasonable. See U.S. v. Carboni , 204 F.3d 39, 44 (2d Cir. 2000) (noting that uncharged acts are not “other acts” subject to Rule 404(b) if they “arose out of the same transaction or series of transactions as the charged offense, if [they are] inextricably intertwined with the evidence regarding the charged offense, or if [they are] necessary to complete the story of the crime on trial”). Citing to the holding in U.S. v. Von Foelkel , 136 F.3d 339 (2d Cir. 1998), the Second Circuit also found that evidence that the defendant abused his wife in earlier years was relevant to show his intent to harass or intimidate her. Because these prior acts paralleled the charged conduct, the court said, they had great probative value. In accordance with U.S. v. Roldan-Zapata , 916 F.2d 795 (2d Cir. 1990), evidence of these acts was also not unfairly prejudicial because it was no more sensational or disturbing than the crimes with which the defendant was charged. In addition, the appellate court found the district court's charge to the jury, which included an appropriate instruction on this evidence's limited purpose, mitigated any lingering risk of prejudice.

Evidence of the defendant's brother's and sister's prior bad acts should not have been admitted, however, because it was not sufficiently similar to the charged crimes to allow the jury to reasonably infer the victim's fear that if the defendant did not harm her his family would. The defendant, the appellate court observed in this regard, “was charged with traveling across state lines with the intent to harass or intimidate [the victim], and with using a computer for the same illegal purpose. There was no allegation that [the defendant] conspired with his brother or his family to commit these crimes.” While the probative value of this evidence was therefore minimum, its potential to prejudice the defendant's defense was high, as it could make the jurors believe that the defendant's family would help him to frighten or harm the victim; no charge of this kind had been brought.

As for the evidence gathered at the traffic stop, the court found it lacked the necessary parallel to the charged acts. “The government argues that the traffic stop is sufficiently connected to the charged conduct because [it] involved the same assailant, victim, and purpose,” said the court, “[y]et, there was insufficient evidence indicating [the defendant's] activities that day were related to or directed at [the victim], and no evidence that [the defendant] engaged in any threatening activity toward [the victim] in the fourteen months before the traffic stop.” To make the connection between the traffic-stop evidence, the victim and the crimes charged, the jurors would have had to infer that the defendant intended to use the firearms to kill the victim, and that he wrote the will providing for a guardian for his children because he also thought he was going to die, either by suicide or by being assaulted by the police or others. And, most problematic for the government, the traffic stop evidence would have had to show that this alleged intent to kill the victim had also existed 15 months earlier, at the time the charged crimes took place. “The combination of [the firearms], ammunition, a bulletproof vest, and a ski mask in a rented car certainly show that [the defendant] was behaving bizarrely, and that he might well have been planning a violent criminal act of some kind,” stated the court. “[B]ut it is a stretch to conclude from this evidence that fifteen months earlier [the defendant] intended to kill [the victim],” giving the evidence limited probative value. Its potential prejudicial effect on the jurors, however, was great, said the court, “because it was significantly more sensational and disturbing than the charged crimes.” Thus, it was error for the district court to admit the evidence obtained at the traffic stop.

Concluding that the district court's errors were not harmless and could have affected the defendant's substantial rights, the Second Circuit vacated the conviction and remanded for a new trial.