Defendant-Appellant, Laval Farmer, appeals from a June 22, 2007 judgment of conviction entered in the United States District Court for the Eastern District of New York (Platt, J.). Farmer was convicted by a jury of murder, attempted murder, and conspiracy to assault with a dangerous weapon, in violation of the Violent Crimes in Aid of Racketeering statute, 18 U.S.C. § 1959(a), and of related firearms offenses under 18 U.S.C. § 924(c). We reject Farmer's argument that there was insufficient evidence to sustain the convictions, but we conclude that he was denied due process by the prosecutors' gratuitous exploitation of his prejudicial nickname, "Murder." As a result, Farmer is entitled to a new trial for the attempted murder of Jacquel Patterson, and the related firearms offenses. We affirm Farmer's convictions for conspiracy to assault with a dangerous weapon and the murder of Jose White, because the strength of the evidence precludes finding substantial prejudice. Affirmed in part, vacated in part, and remanded.
The opinion of the court was delivered by: Dennis Jacobs, Chief Judge
Before: JACOBS, Chief Judge, WALKER and LEVAL, Circuit Judges.
Laval Farmer was convicted by a jury in the United States District Court for the Eastern District of New York (Platt, J.) of murdering Jose Angel White and attempting to murder Jacquel Patterson "for the purpose of . . . maintaining or increasing [Farmer's] position" within the Bloods street gang, 18 U.S.C. § 1959(a), as well as conspiring to assault with a dangerous weapon and discharging firearms during the murder and the attempted murder. At trial, the government elicited testimony that Farmer's friends and fellow Bloods knew him by the nickname "Murder," an appellation that Farmer had acquired years before and that had little, if any, relevance to any contested issue.
Farmer's nickname, which would be problematical and suggestive in any case involving violent crime, posed a heightened risk of prejudice because the crimes charged included murder and attempted murder. Farmer objected to the use of his nickname in the indictment, and he offered to concede identification to avoid its use at trial. But the government declined Farmer's offer, and the district court admitted the name. Thereafter, the prosecution used the nickname promptly, repeatedly, and in ways calculated to intensify the prejudice.
When a defendant charged with a crime of violence is identified before a jury by a nickname that bespeaks guilt, violence, or depravity, the potential for prejudice is obvious. Before receiving such evidence over a defendant's objection, a trial court should consider seriously whether the probative value is substantially outweighed by any danger of unfair prejudice, Fed. R. Evid. 403, and whether introduction of the nickname is truly needed to identify the defendant, connect him with the crime, or prove some other matter of significance. Even so, a potentially prejudicial nickname should not be used in a manner beyond the scope of its proper admission that invites unfair prejudice. Federal Rule of Evidence 404(a) provides (with exceptions not applicable here) that "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion." It is the ethical obligation of the prosecutor, and the legal obligation of the court, to ensure that this rule is observed.
In this case, the prosecutors, in their addresses to the jury, invited prejudice by repeatedly emphasizing Farmer's nickname in a manner designed to suggest that he was known by his associates as a murderer and that he acted in accordance with that propensity in carrying out the acts charged in the indictment. This abuse of Farmer's nickname entitles Farmer to a new trial for the attempted murder of Patterson and the related firearms offenses. However, we affirm Farmer's convictions for murdering Jose White, discharging a firearm during that offense, and conspiring to assault, because the evidence so overwhelmingly established his guilt respecting those offenses as to nullify any prejudice resulting from the inappropriate argument to the jury.
Farmer also argues that his killing of White, a child on a bicycle wearing the wrong color clothing, was so obviously a mistake that no other intent can be reasonably ascribed to the act, and that his attempted killing of Patterson, another Blood, was so obviously motivated by personal animus that this act likewise cannot reasonably be attributed to an intent to increase Farmer's status as a Blood--an element of the offense. We conclude that the government introduced sufficient evidence that the murder and attempted murder were committed "for the purpose of . . . maintaining or increasing [Farmer's] position in" the Bloods. 18 U.S.C. § 1959(a). This was shown by the Bloods' governance and code, the conversations and conduct of Farmer and other Bloods at and around the time of the crimes, and Farmer's self-promoting boasts.
Finally, we conclude that Farmer is not entitled to relief on the ground that White's relatives wore T-shirts in the courtroom displaying White's photograph. Accordingly, the judgment of the district court is affirmed in part, vacated in part, and remanded.
Farmer was convicted for the murder of fourteen-year-old Jose Angel White in Roosevelt, New York on September 23, 2001, and the attempted murder of Jacquel Patterson in Wilkes-Barre, Pennsylvania on July 15, 2002. The indictment charged that these acts came within the scope of § 1959(a) because Farmer committed them "for the purpose of . . . maintaining or increasing" his status in the Bloods street gang, which was a racketeering enterprise. 18 U.S.C. § 1959(a).
Farmer was a member of the Velt Gangsta Lanes ("VGL") of Roosevelt, New York, on Long Island, a subgroup of the larger Bloods gang. The VGL was associated with other Bloods subgroups on Long Island.
Aspiring members of the Bloods were required to commit acts of violence to be eligible for membership. Members were initiated by being "blessed in" (vouched for by existing members) or "jumped in" (beaten by five Bloods for 55 seconds).
Bloods operated under a code of loyalty that required members to take on their associates' problems as their own. Disagreements and grievances were resolved through violence, including stabbing or shooting. The leadership of the VGL promoted "gang banging," or beating people up, to "represent the neighborhood."
A member "gain[ed] status" within the gang by "put[ting] in work," which entailed committing acts of violence, including attacking rival gangs. Status was denoted by titles, which ranged upward from "baby gangsta" to "original gangsta," or "OG."
During 2000 and 2001, VGL members met regularly at Centennial Park and in an abandoned house on Hanson Place, both in Roosevelt, New York. Gang members wore specific colors, had gang tattoos, and flashed signs to fellow Bloods.
2. Murder of Jose Angel White
On the evening of Saturday, September 22, 2001, VGL members who gathered at Centennial Park learned that two VGL members (Roach and Shoke) had been hit by a car and beaten with baseball bats by members of the rival Crips gang. The VGL members discussed retaliation and dispersed looking for revenge.
Later that evening, Farmer attended a party in Glen Cove, New York with fellow Blood Kashawn Jackson. There, Farmer spoke with Jackson and Gregory Key, another Blood, about the attack on Roach and Shoke. Farmer said that "he knew who did it," and the three agreed to "[t]ake a ride out to Roosevelt, see the guy who did it." Jackson arranged for Melissa Petrizzo, the girlfriend of a Blood, to pick them up in front of a housing project in Glen Cove. Before getting into Petrizzo's car, Farmer asked Key if he "had a burner" (a gun); Key assured him that he did.
Once in Roosevelt, the group stopped near a convenience store where Farmer thought the offending Crips might be, but Farmer and Key did not find them inside. As the two walked back to the car, Farmer asked Key whether he could carry the gun. Key responded, "yeah, but if you use it, you have to pay for it." Farmer took the gun from Key.*fn1
Back in the car, Key asked Farmer where a certain Crip lived. Farmer said he knew, but expected only the Crip's mother to be home. Key suggested that they shoot up the house anyway, because he wanted to increase respect for the Bloods and because he needed to repair his status within the gang after having undergone drug rehabilitation in Virginia.
Petrizzo objected and kept driving, until Farmer saw two boys on bicycles, one of them dressed "in all blue" (i.e., color-coded as a Crip). Farmer pointed and said, "there they go right there"; directed Petrizzo to pull over and turn off the lights; and then got out of the car, took a few steps, and fired three shots at the two boys from a distance of approximately five feet. Farmer got back into the car, dropped the gun at Key's feet, and told Petrizzo to drive back to Glen Cove.
As Petrizzo drove away, an ambulance passed going in the other direction. Farmer excitedly proclaimed, "I got those crabs" (Bloods slang for Crips). Petrizzo dubiously observed that the victim looked like a little boy, but Farmer responded, "[t]hat wasn't a little boy. I knew who it was."
Later that afternoon, Farmer visited Petrizzo and her Blood boyfriend, boasted that "I got a body," and confirmed to Petrizzo that the victim had died. Farmer eventually discovered that he had killed Jose White, a popular fourteen-year-old boy who was not a Crip. After the shooting, Farmer "felt like his name may come up, so he had to get out of town."
3. Farmer's Move from New York and Attempted Murder of Jacquel Patterson
In December 2001, three months after the White shooting, Farmer moved to Wilkes-Barre, Pennsylvania, where he associated with fellow Bloods Damion Russell and Jacquel Patterson. Russell was a high-ranking "OG" member of the Bloods who had enhanced his status living in California and assumed leadership of the VGL when he returned to New York. Russell imposed discipline within VGL ranks and imported west-coast traditions.
Farmer told Russell that he had been driving around with Key, Jackson, and Petrizzo looking for "any Crip he could see," and boasted that he had avenged the attack on the Bloods by shooting "a Crips." Russell suggested that Farmer go back to Glen Cove to make sure the gun was destroyed, which Farmer did in December 2001.
In Wilkes-Barre, Farmer and his girlfriend Stacey moved in with Russell, then moved out a few weeks later to live with one of Russell's friends, Khasan Dancy, who had a larger house. Jacquel Patterson and his girlfriend were also living in the house when Farmer moved in. Farmer, Patterson, and Dancy sold crack together.
Farmer's relationship with Patterson developed into hostility. Russell testified that Farmer viewed Patterson as "soft" and "weak." One day, when Dancy and Patterson got into a bar fight with men from Philadelphia, Farmer stabbed one of the Philadelphia men to help out, and became angry when Dancy and Patterson did not back him up or show appreciation. Worse, Patterson expressed the view that the VGL was an illegitimate and inferior Bloods set, to which Farmer and Russell took offense.
In July 2002, Farmer and Patterson bought narcotics from a man named Udi, whom Farmer greeted with the Bloods salute. When Udi brushed off the salute and mocked the VGL set, Farmer objected, Udi drew a gun, and Farmer was forced to stand down. Patterson gloated at Farmer's humiliation. Furious, Farmer visited Patterson's house, punched cabinets, argued, and discharged his gun. After leaving Patterson's house, Farmer called Russell, demanded that he identify himself as a member of the VGL, and told him "that he was sick of [Patterson], that he can't take it no more, and that he was about to give it to [him]."
Farmer and Russell agreed to teach Patterson a lesson and again visited Patterson's house. While Russell waited in the front doorway of the home, Farmer and Patterson walked to Patterson's bedroom. After they entered the bedroom, Patterson's girlfriend, Esther Ross, heard the rapid firing of seven to eight gunshots. During the fussilade, Ross heard Patterson apologize repeatedly and plead for his life. After Patterson stopped pleading, Ross heard two more shots. Patterson suffered gunshot wounds to his body, legs, arms, and face, but survived.
After the shooting, Farmer recounted to Russell that he followed Patterson into the room; that Patterson moved toward the bed, urging Farmer to "hold on"; that Farmer started shooting, while Patterson apologized repeatedly; that when Farmer stopped firing, he found a 9 millimeter pistol under the mattress that Patterson had been approaching; and that Farmer retrieved the pistol and used it to shoot Patterson in the face. Russell gave Farmer money and arranged for him to flee to New York.
4. Farmer's Arrest and Post-Arrest Statements
Farmer was arrested the day he arrived back in Nassau County, July 16, 2002. When the police moved in to arrest Farmer, he fled by car, was pulled over, and fled on foot into a house, where he was arrested. During the arrest, a second group of officers found a 9 millimeter pistol in the car. Farmer told the Nassau County police that he had just arrived from Virginia, where he had been living with his girlfriend Stacey*fn2 and doing construction work for the past three or four months, that he did not shoot anybody in Pennsylvania, that he had no role in the White murder, and that he did not know whose pistol was in the car.
On October 31, 2002, Farmer pleaded guilty in state court to possession of the 9 millimeter found in his car at the time of his arrest, which was identified as one of the weapons used in the Patterson shooting.
B. The Indictment and Trial
Farmer was charged in a superseding indictment with: conspiracy to assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(6) (Count One); murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Count Two); use of a firearm in connection with murder in aid of racketeering, in violation of 18 U.S.C. § 924(c) (Count Three); attempted murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Count Four); and use of ...