Argued January 26, 2015.
Steven Ray Morgan appeals from the judgment of the United States District Court for the Northern District of New York (McAvoy, J.), convicting him, after a jury trial, of drug-related offenses including possession of a firearm in furtherance of a drug-trafficking crime, and for being a felon in possession of a firearm. On appeal, Morgan argues: the district court abused its discretion by admitting highly prejudicial evidence of his alleged threats to kill the government's informant; the court committed plain error by conducting off-the-record proceedings on important issues before and during the trial, thereby failing to preserve the record; and his counsel rendered ineffective assistance. We conclude that the district court abused its discretion in admitting the death threat evidence, and that the error was not harmless. Accordingly, we need not reach Morgan's other arguments. The judgment of conviction is vacated and the case is remanded for retrial.
JANE SIMKIN SMITH, Millbrook, New York, for Appellant.
PAUL D. SILVER, United States Attorney's Office for the Northern District of New York, for Richard S. Hartunian, United States Attorney for the Northern District of New York, for Appellee.
Before: JACOBS, CALABRESI and WESLEY, Circuit Judges.
DENNIS JACOBS, Circuit Judge:
It is long settled that the admissibility of death threats made by a defendant is evaluated in accordance with the ordinary principles of Federal Rule of Evidence 403. See United States v. DeLillo, 620 F.2d 939, 944, 946 (2d Cir. 1980). At the same time, the potential for unfair prejudice is so great that Rule 403's balancing test permits admission of death threat evidence only if there is clear need for the evidence and it serves an important purpose. See United States v. Qamar, 671 F.2d 732, 736 (2d Cir. 1982); see also United States v. Check, 582 F.2d 668, 685 (2d Cir. 1978).
While we " accord great deference to the district court's assessment of the relevancy and unfair prejudice of proffered evidence," United States v. Quinones, 511 F.3d 289, 310 (2d Cir. 2007) (internal quotation marks omitted), the district court must " conscientiously balance the proffered evidence's probative value with the risk for prejudice," United States v. Pepin, 514 F.3d 193, 205 (2d Cir. 2008) (internal quotation marks omitted). Here we conclude that: the district court failed to make the careful assessment required for death threat evidence; admission of this evidence was an abuse of discretion; and the error cannot be viewed as harmless. See United States v. Borello, 766 F.2d 46, 59 & n.22 (2d Cir. 1985).
Accordingly, we vacate the judgment of conviction and remand for a new trial.
To link Morgan to the gun and drugs that formed the basis for his prosecution, the prosecution relied in major part on the testimony of Keysha Williams, Morgan's former girlfriend.
In the course of her direct, Williams testified that Morgan sent her letters from prison seeking her assistance in the murder of the government's informant. According to Williams, Morgan wrote (in substance) that " the only way he was gonna see the light of day again was if the informant was killed," Trial Tr. at 311:23-24,
United States v. Morgan, No. 08-cr-208 (N.D.N.Y. 2009) (hereinafter " Trial Tr." ), and that Morgan " wanted [her] to take [the informant] to New York City" where " [o]ne of his boys was gonna hook him up," which she took to mean, " [k]ill him." Id. at 318:24, 319:1, 4.
Defense counsel interposed timely and strenuous objections:
Judge, I have been objecting[ to] . . . this line of inquiry regarding my client allegedly telling this witness to take steps to have the informant killed. . . . I think
that it is so prejudicial that I think that my client's chances of now having a fair adjudication by this jury have been destroyed because I think that this evidence is so damning in the context of this case that I respectfully submit it should not have been allowed. . . . This is not evidence that was ...