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United States v. McCallum

October 19, 2009



Appeal from a judgment of conviction on charges involving various narcotics offenses. See 21 U.S.C. §§ 846, 812, 841(a)(1), (b)(1)(A), (b)(1)(C). We conclude that the District Court erred in admitting the defendant's two prior convictions, but that this error was harmless.


The opinion of the court was delivered by: Barrington D. Parker, Circuit Judge

Argued: December 2, 2008

Before: JACOBS, Chief Judge, MCLAUGHLIN and B.D. PARKER, Circuit Judges.

Defendant-Appellant John McCallum Jr. appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Robinson, J.). McCallum was convicted of various narcotics offenses involving crack cocaine and was sentenced principally to 240 months' incarceration. We write to address McCallum's primary contention, which is that the District Court abused its discretion in admitting as similar acts evidence two of his prior narcotics convictions. We conclude that the admission of this evidence, while an abuse of discretion, was harmless error.In a related but separately filed summary order, we dispose of McCallum's other claims of trial error.


At trial, the government proved that McCallum and his co-conspirators operated a substantial crack cocaine distribution business in and around Spring Valley, New York. The conspiracy and substantive offenses charged in the indictment involved narcotics activities that occurred between approximately September of 2004 and May of 2005, and that culminated in four controlled buys of narcotics in April and May of 2005. After the final controlled buy, police officers executed a search warrant at McCallum's residence and recovered substantial quantities of drugs.

At trial, the government proved McCallum's involvement in the conspiracy through the testimony of co-conspirator and cooperating witness Darryl Wright, who was McCallum's partner and resided in the same apartment as McCallum. The government also offered the testimony of Lenell Brookins, a roommate of McCallum and Wright, and the testimony of police officers who had observed McCallum engaging in narcotics transactions and had searched the apartment where the narcotics were seized. The government's other evidence included audio recordings in which a confidential informant, David DeFreese, purchased crack cocaine from Wright and McCallum, and phone records indicating narcotics transactions.

Prior to trial, the government informed the court that it intended to introduce evidence of McCallum's two prior narcotics felony convictionsfor possession and attempted sale of cocaine. Although the government had at hand the drugs that had been seized, the testimony of McCallum's partner about their extensive drug-dealing, and a plethora of other evidence of prior narcotics activities, the government nevertheless argued that evidence of the 2003 convictions was critical to prove that McCallum knew that the substances he sold were narcotics and that he intended to sell them. The government also asserted that it wished to introduce the periods of incarceration McCallum had served on the two convictions because, without them, "much of the charged conspiracy will be difficult for the jury to understand." The court agreed, without significant discussion, to receive the convictions but not evidence of the periods of incarceration. The record sheds little light on why the court believed the convictions were admissible.

During voir dire, potential jurors were asked whether they would be able to follow instructions requiring them to consider the convictions only for the limited purpose of evaluating the defendant's knowledge and intent, and whether, after learning of the convictions, they would be able to maintain their presumption of the defendant's innocence. Over the defense's objections, the District Court received evidence of the convictions in the form of a stipulation during the government's case in chief. During the court's final charge,*fn1 the jury was given a limiting instruction with respect to the convictions.*fn2 At the conclusion of the trial, McCallum was convicted of three of the four counts in the indictment, including conspiracy and two substantive narcotics offenses. This appeal followed.


We review a district court's admission of evidence of prior crimes for abuse of discretion. See United States v. Lombardozzi, 491 F.3d 61, 78-79 (2d Cir. 2007). Abuse of discretion occurs when the court acts in "an arbitrary and irrational manner." Id. A district court's decision to admit evidence is subject to harmless error analysis. Fed. R. Crim. P. 52(a); United States v. Madori, 419 F.3d 159, 168 (2d Cir. 2005). The main harmless error inquiry is whether the contested testimony was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. See United States v. Garcia, 413 F.3d 201, 217 (2d Cir. 2005) (holding that erroneous admission of evidence was harmless where it "had no substantial and injurious effect or influence on the jury verdict" (internal quotation marks omitted)).

Evidence of prior convictions may be admissible under Federal Rule of Evidence 404(b) to show "intent, . . . knowledge, identity, or absence of mistake or accident," but not to show character or propensity. Fed. R. Evid. 404(b). Where prior convictions are concerned, the line between intent or knowledge and character or propensity is often a fine one, requiring the thoughtful, focused attention of the district court. The most important reason why this attention is ...

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