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DANIELS v. LOIZZO

December 17, 1997

WILLIAM DANIELS, Plaintiff, against P.O. LEONARD LOIZZO, M.V.P.D., P.O. DANIEL FISHER, M.V.P.D., and THE MOUNT VERNON POLICE DEPARTMENT, Defendants.

Mary Johnson Lowe, United States District Judge.


The opinion of the court was delivered by: LOWE

MARY JOHNSON LOWE, U.S.D.J.

 Before the Court is the motion in limine of Plaintiff William Daniels ("Plaintiff"), pursuant to Federal Rules of Evidence 403, 404, 608, and 609 to exclude his prior criminal history at trial. For the reasons stated below, Plaintiff's motion is granted in part and denied in part.

 BACKGROUND

 On July 6, 1987, defendant police officers Leonard Loizzo and Daniel Fisher ("Officer Defendants") arrested Plaintiff, charging him with criminal possession of a weapon, reckless endangerment, and assault. Plaintiff was later acquitted by a jury of these charges.

 In this civil rights action, Plaintiff alleges that, on the date of his arrest, the Officer Defendants used excessive force against him in violation of 42 U.S.C. ยง 1983 when they brutally attacked him and verbally abused him with racial epithets. Plaintiff further alleges that he suffered permanent physical injuries and mental anguish as a result of the Officer Defendants' conduct. He seeks damages for the alleged deprivation of his civil rights and for related state claims brought under the pendent jurisdiction of this Court. Defendants vigorously deny that any improper conduct occurred on their part.

 Plaintiff's criminal record reveals that he has been convicted of the following offenses: (1) unauthorized use of a vehicle and possession of stolen property, in 1980, both Class A misdemeanors, (2) assault, criminal use of a firearm, and unlawful possession of a weapon, in 1981, for which he was paroled in 1985 ("1981 Conviction"), (3) disorderly conduct in 1986 and 1987, *fn1" (4) assault on a police officer, resisting arrest, and escape in the third degree, *fn2" in 1988, based on events that occurred on July 1, 1987 ("1988 Conviction"), (5) attempted assault on a police officer, in 1992, for which he was recently paroled ("1992 Conviction"), *fn3" and (6) conspiracy to possess and distribute cocaine, in 1994, for which he will begin serving a life sentence on January 7, 1998 ("1994 Conviction"). Plaintiff has faced additional arrests, but either was not convicted or had his convictions overturned.

 Plaintiff asks the Court to preclude Defendants from offering or eliciting on cross-examination any evidence about his criminal history. Defendants oppose this motion to the extent that it seeks to exclude Plaintiff's 1981, 1988, 1992, and 1994 Convictions. Defendants concede the inadmissibility of evidence about Plaintiff's arrests that did not result in convictions.

 DISCUSSION

 I. Admissibility of Prior Convictions Under Rule 404(b)

 Plaintiff contends that his prior criminal acts may not be admitted to show bad character under Federal Rule of Evidence 404(b) ("Rule 404(b)"). In response, Defendants insist that evidence of Plaintiff's escape, on July 1, 1987, from "the apprehension of Mount Vernon police detectives [who were] attempting to arrest Plaintiff on an outstanding parole warrant" should be admissible to prove Plaintiff's motive to resist arrest on July 6, 1987. Defs.' Mem. of Law at 11. Defendants maintain that, to further establish motive for Plaintiff's conduct, the Court should also permit Defendants to introduce evidence of: (1) the details of the July 1, 1987 escape, including Plaintiff's assault on Mount Vernon detectives, and (2) the 1988 Conviction for assault, resisting arrest, and escape that resulted from the July 1, 1987 incident. Id.

 Generally, evidence of "other crimes, wrongs, or acts" is not admissible under Rule 404(b) to prove character or criminal propensity. United States v. Gordon, 987 F.2d 902, 908 (2d Cir. 1993). Such evidence may be admissible for other purposes, including "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b). The Second Circuit's "inclusionary approach" allows the admission of such evidence "for any relevant purpose" other than to show a defendant's criminal propensity. Pagnucco v. Pan American World Airways, Inc., 37 F.3d 804, 823 (2d Cir. 1994). The potentially broad reach of this "inclusionary" approach, however, is limited by the consideration of the prejudicial nature of the evidence under Rule 403. *fn4" Berkovich v. Hicks, 922 F.2d 1018, 1022 (2d Cir. 1991). In addition, Rule 404(b) evidence, once admitted, must be accompanied by a limiting instruction. See Huddleston v. United States, 485 U.S. 681, 691-92, 99 L. Ed. 2d 771, 108 S. Ct. 1496 (1988) (holding that trial court must instruct jury that evidence can only be considered for limited purpose); see also United States v. Gilan, 967 F.2d 776, 780 (2d Cir. 1992).

 In an excessive force case similar to ours, Dean v. Watson, 1995 U.S. Dist. LEXIS 17333, No. 93 Civ. 1846, 1995 WL 692020, at *1-*2 (N.D. Ill. Nov. 16, 1995), the plaintiff alleged that the defendant police officer shot him without justification on April 8, 1992 (the "Incident"). Before trial, the plaintiff moved in limine under Rule 404(b) to exclude evidence of two outstanding bond forfeiture warrants for his arrest at the time of the Incident. Id. The defendant opposed the motion, arguing that the outstanding warrants "g[ave the plaintiff] a strong motivation to avoid capture." Id. at *2. The court held the evidence of the bond warrants admissible for the purpose of demonstrating the plaintiff's motive to resist arrest. Id. at *3. The court, however, refused to permit the introduction of evidence about the nature of the charges underlying the warrants, finding the likelihood of prejudice substantially outweighed its probative value under Rule 403. Id.

 As in Dean, evidence of the outstanding parole warrant is admissible to demonstrate Plaintiff's motive to resist arrest on July 6, 1987. *fn5" However, the July 1, 1987 incident, along with the details of the escape, and the resulting 1988 Conviction are inadmissible because they do not demonstrate motive to resist arrest. Instead, the proffer of such evidence amounts to nothing more than a veiled attempt to do what Rule 404(b) prohibits -- introduce bad acts evidence to show a propensity to commit such acts. See Berkovich, 922 F.2d at 1022. Accordingly, the Court will permit the introduction of evidence about the ...


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