Appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York (Buchwald, J.) convicting defendant William Scott a/k/a William Boone of one count of distributing, and possessing with the intent to distribute, a controlled substance, in violation of 21 U.S.C. § 841(b)(1)(C).
The opinion of the court was delivered by: Pooler, Circuit Judge:
(Argued: November 8, 2011
Before: POOLER, B.D. PARKER, Circuit Judges.*fn1
We hold that the admission under Federal Rules of Evidence 404(b) and 403 of trial testimony by two police detectives that they knew appellant and had spoken with him on several occasions was an abuse of discretion. We further hold that such error was not harmless. Accordingly, we vacate appellant's conviction and remand for a new trial.
This appeal arises from appellant William Scott's judgment of conviction entered on September 28, 2010, in the Southern District of New York (Buchwald, J.). Scott was convicted after a jury trial of one count of distributing, and possessing with the intent to distribute, a controlled substance, in violation of 21 U.S.C. § 841(b)(1)(C). At his trial, the prosecution introduced, over defense objection, testimony from two police detectives that they were familiar with Scott and had spoken to him on numerous occasions prior to his arrest in the instant case. Scott argues that admission of this testimony under Federal Rules of Evidence 404(b) and 403 was an abuse of discretion and that the error in admitting it was not harmless. We agree. Scott conceded that he was present at the scene and did not argue that police witnessed someone else engage in a drug transaction. Instead, he argued that the detectives observed him engage in innocent conduct. The challenged recognition testimony served no purpose other than to invite jury speculation about Scott's propensity to attract police contact and monitoring. We therefore vacate Scott's conviction and remand for a new trial.*fn2
Scott was arrested on July 28, 2009, in the Bronx after two detectives, Mark Moran and Robert Geary, observed him engaged in what they believed to be a hand-to-hand drug sale. Testimony at trial indicated that the detectives stopped at an intersection in a "high narcotics prone location" after observing Scott, whom they recognized from prior interactions, standing with a group of other individuals on the corner. Moran testified that he witnessed Scott take something from an unidentified woman. Geary testified that this object appeared to be currency. Moran then saw Scott retrieve something out of "a hole in the tree," which he fumbled with and then put back. Both detectives testified that Scott then returned to the woman, who appeared to take something from him; Geary testified that Scott then exchanged currency with another individual. The detectives made all of these observations through the tinted windows of their vehicle, using the rear and side view mirrors. Both detectives testified that Scott looked as though he was going to run after he noticed them, but stopped and went towards them after Moran called to him. Scott was then arrested. At that point, Moran searched the tree, where he found eighteen plastic bags containing crack cocaine hidden inside a cigar wrapper. No drugs were recovered from Scott or from the woman, though detectives testified that when they approached her, she put her hand to her mouth as if to swallow something.*fn3 Prior to trial, the government informed defense counsel that it planned to ask the following questions during the direct examination of each of the two police witnesses: "About how many times had you seen [Scott] in the past? Had you spoken to him before? And when you had spoken to him before, what was about the longest conversation you had ever had with him?" The government indicated that one detective would say his longest conversation with Scott lasted five minutes, the other twenty. Defense counsel first objected to this line of questioning at a pretrial telephone conference. The district court overruled the objection because "the amount of time that the witnesses would state that they had spoken to Mr. Scott before would not lead someone to conclude that he had ever been arrested, and as we all know, that is something that, unless he takes the stand, we are not getting into his prior record." Defense counsel continued his objection before trial, arguing that the recognition testimony would encourage the jury to speculate about Scott's prior encounters with the police. He stated:
I don't think anyone in the jury box is going to think it was a friendly encounter. I don't think the jurors are going to believe that Mr. Scott was just saying hello and asking about the officers' family life. But, rather, it would be clear that the police engaging in these conversations were doing so in the course of investigative processes, and the jury is going to believe that this is an individual who is known to the police . . . . Again, it's not a matter of the jury just being led to believe that the officers were setting up in a location and watching to see what, if any, activity would be happening in this known drug location, but, rather, that they intentionally stopped because they saw an individual who has been known to them in the past, who they have had encounters with in the past, and therefore they chose to stop and observe him, which would only lead a jury to believe that there is a history of criminal activity on behalf of Mr. Scott, there is a propensity for him to commit crimes or a propensity for them to do something that would warrant police observation.
Defense counsel then suggested that the police testify that they stopped because they knew the area to be drug prone and that they "ha[d] seen [Scott] in the past, with[in] an unspecified period of time," without detailing the number and length of conversations they had had with him. The government argued that such testimony would be untruthful, because the police did in fact stop because they recognized Scott.
The court responded to these arguments by expressing its view that "there is just a limit to how much a defendant with a criminal record can insist that he ought to be portrayed as someone who-- I am trying to think of a good expression-- I think the expression is simonpure." Defense counsel continued to object, and the court said again, "it is to me inappropriate to pretend that [Scott] has never had any contact with the police before." Defense counsel and the court then had the following exchange:
Mr. Farber: I guess the question is: How is that properly before this jury that he has had prior police contact? If I raise the issue of identification, or lack of familiarity with his face, clearly, I am opening up the door. But if it's a matter of simply the officer--
The Court: Mr. Farber, we have been through this. The government has the burden of proof beyond a reasonable doubt. They are entitled to have their witnesses' identification supported by the fact that they have seen him before.
The district court indicated that it understood the detectives would testify that "they stopped because it is a known drug location," but that they would also be permitted to testify to the fact that they had recognized Scott.
The recognition testimony featured prominently throughout Scott's trial. During the opening statement, the government told the jury that it was "going to hear how two officers were on a routine patrol that day in the Bronx. They saw the defendant, a man they knew and had spoken to before" engage in a drug transaction. As expected, during direct examination, both detectives were questioned as to their prior knowledge of Scott. The relevant testimony of Detective Moran proceeded as follows:
Q: You said Mr. Scott. I want to take a step back. Had you seen Mr. Scott before? A: Yes, I have.
Q: About how many times had you seen Mr. Scott before you saw him on July 28? A: About ten times.
Q: Have you ever had a chance to talk with Mr. Scott?
Q: About how many times have you had a chance to talk with Mr. Scott? A: ...