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United States v. White

December 4, 2009


The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.


In this felon-in-possession case, the Government has made two in limine evidentiary requests. The Government intends to introduce the testimony of three police officers regarding the stop and search of a minivan occupied by Defendant and four women. In its first request, the Government asks the court to preclude evidence regarding the arrests and charging of the other four individuals in the vehicle. (See Docket Entry # 45 ("USA Mem.").) In its second request, the Government asks the court to preclude the use of certain impeachment evidence during Defendant's cross-examination of the police officers.*fn1 In this Memorandum & Order, the court sets out its rulings on the Government's requests. For the reasons that follow, the Government's motions in limine are GRANTED.


The Government intends to present evidence that the arresting law enforcement officers asked Defendant to exit a minivan for a frisk and found a gun in his pocket. (See USA Mem. 2.) According to the Government, the officers then asked the four female occupants of the vehicle to exit, and found two additional firearms in a purse inside the minivan. (Id.) The Government contends that discovery of these firearms permitted arrest of all four women under New York Penal Code § 265.13(3).*fn2 (Id.) Under that provision, "[t]he presence in an automobile, other than a stolen one or a public omnibus, of any firearm... is presumptive evidence of its possession by all persons occupying such automobile at the time such weapon, instrument or appliance is found." N.Y. Penal Code § 265.15(3) (the "constructive possession" provision).

The Government seeks to preclude evidence relating to the arrests, charging decisions, and subsequent case histories of the women who were with Defendant in the minivan at the time of his arrest. (See USA Mem. 2.) It argues that introducing such evidence will raise confusing and complex issues before the jury -- it will involve detailed discussion of the constructive possession provision of the New York Penal Code, and will cause the jury to speculate about the status or relevance of the other individuals' cases. (Id. at 2-3.) The Government contends that these issues will distract the jury from the key issue in the case: whether Defendant was carrying a gun when he was stopped on the day in question. (Id. at 3.)

In response, Defendant argues that evidence regarding the arrests and charging decisions of the other individuals is more probative than prejudicial. (See Docket Entry # 50 ("Def. Mem.") 10-14.) He points out that New York Penal Code Section 265.15(3) contains a pertinent exception to the constructive possession provision: that the provision does not extend to a weapon found on the person of one of the occupants. (Def. Mem. 12 (citing N.Y. Penal Code § 265.15(3)).) He argues that this exception calls into question the police officer's assertions that they found a gun in White's pocket.

To reach this conclusion, White relies upon the fact that each of the four individuals was charged with possession of all three firearms -- the two in the purse, plus the gun allegedly in White's possession. (Id. at 12-13.) He argues that this charging decision suggests that all three guns were found in the vehicle, and that none were on his person. Had a gun been found on White's person, none of the other individuals in the vehicle could have been charged with possessing that particular gun, because of the exception contained in the New York Penal Code. Based on this theory, White asks to introduce evidence regarding the arrests and charging decisions for the other individuals apprehended in the minivan. (Id.)

The court will exclude the challenged evidence. "While a defendant is entitled to cross-examine government witnesses as to inconsistent statements, 'the government's charging decisions are not proper subjects for cross-examination and argument.'" United States v. Carneglia, No. 08-CR-0076 (JBW), 2009 WL 185725, at *1 (E.D.N.Y. Jan. 27, 2009) (quoting United States v. Re, 401 F.3d 828, 832 (7th Cir. 2005)). The particular charging choices of government agents may rely upon a variety of considerations, and those decisions regarding one individual do not necessarily speak to the separate issue of another individual's guilt or innocence. To the extent that Defendant seeks to introduce charging decisions regarding the other individuals in the minivan, that evidence is not relevant to the question of whether Defendant White possessed a firearm.

Alternatively, to the extent that Defendant's theory relies upon evidence that does not involve charging decisions -- or to the extent that charging decisions can be considered relevant to this case -- the probative value of such evidence is substantially outweighed by the danger of confusing or misleading jury. See Fed. R. Evid. 403. It will be extremely confusing to the jury to present the chain of complex reasoning by which Defendant intends to show that the charges against other individuals bear upon his possession of a gun. The focus of trial could easily turn toward a dispute over the charging decisions, arrests and cases of the four women in the minivan. The trial's focus could also be diverted toward a mini-trial concerning the arresting officers' knowledge of various provisions and exceptions in the New York Penal Code. Such a detour has the potential to be extremely confusing for the jurors and to distract them from their determination of the count charged in the indictment.

The court declines to invite a trial within a trial on the intricacies of the New York State Penal Code and the cases of other individuals. The key disputed fact at trial will be White's possession of a firearm. Defendant will have the opportunity to cross-examine the officers on their testimony about this topic. He is also free to present his version of events. On account of the danger of distracting the jury from the pertinent issues at trial, the Government's motion is GRANTED.


The Government seeks to preclude questioning regarding testimony that one of its witnesses, Detective Paul D. Hermann ("Detective Hermann"), gave before Judge Frederic Block during a suppression hearing in an unrelated case. In that case, Judge Block granted a defendant's motion to suppress a gun and ammunition seized from him by police officers. See United States v. Goines, 604 F. Supp. 2d 533 (E.D.N.Y. 2009). In deciding to suppress the evidence, Judge Block did not credit numerous aspects of Detective Hermann's testimony. The Government argues that these determinations are neither relevant nor sufficiently probative of truthfulness to outweigh the danger of unfair prejudice or confusion of the issues. It contends that in United States v. Cruz, 894 F.2d 41 (2d Cir.1990), the Second Circuit found prior credibility findings to be irrelevant.

Defendant counters that cross-examination about the instances in which Judge Block did not credit the statements of Detective Hermann is proper impeachment under Rule 608(b). Defendant argues that Judge Block made six adverse credibility determinations against Detective Hermann and that these findings are probative evidence of his character for truthfulness. Because Detective Hermann will be a key witness for the Government, Defendant argues, cross-examination about these specific instances of conduct is permissible under Rule 608. He contends that, even in light of Cruz, courts in this circuit have permitted such evidence to be presented to the jury.

Under Federal Rule of Evidence 608(b), a district court may permit cross-examination of a witness concerning that individual's character for truthfulness. In Cruz, the Second Circuit concluded that a transcript including the prior adverse credibility finding by a federal judge was not relevant to the credibility of that witness in a later proceeding. 894 F.2d at 43. The Second Circuit reasoned that the judge had not found a general lack of veracity on the part of the witness, nor was there a connection between the subject matter of the two cases. Id. Courts in the circuit have interpreted Cruz to mean that, in determining whether to admit a prior credibility determination, a district court has discretion to consider "whether or not the finding in question is a general conclusion about the witness's veracity and whether or not there is a connection between the ...

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