Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
17-1741- cr
United States Court of Appeals
for the
Second Circuit
Appellee,
– v. –
Defendant-Appellant.
___________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
TABLE OF CONTENTS
Page
JURISDICTIONAL STATEMENT ............................................................ 1
5. Sentence ............................................................................................. 16
A. Standard of Review............................................................................ 19
C. Discussion .......................................................................................... 24
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TABLE OF AUTHORITIES
Page(s)
Cases:
Faretta v. California,
422 U.S. 806 (1975) ................................................................................. 3n.2
Huddleston v. United States,
485 U.S. 681 (1988) ....................................................................... 21, 22, 25, 32
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Statutes:
18 U.S.C. § 922(d)(1)................................................................................... 1, 15
18 U.S.C. § 922(g)(1)................................................................................... 1
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JURISDICTIONAL STATEMENT
entered on May 31, 2017, in the United States District Court for the Southern
District of New York (Woods, J.). A122.1 The district court had jurisdiction under
Baez, a convicted felon, was arrested on October 14, 2015, for possessing an
charged, in a single-count indictment in the United States District Court for the
Southern District of New York, with possessing a firearm after having been
States v. Baez, No. 15-CR-755 (S.D.N.Y. Oct. 29, 2015), ECF No. 5. A
superseding indictment was filed on June 1, 2016, adding the charge of selling the
1
Citations beginning with "A" refer to the Appendix page.
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June 1, 2016), ECF No. 51. Baez was convicted by a jury of both counts on July
14, 2016. A1189-90. On May 31, 2017, Judge Gregory H. Woods entered a
A1254-60.
statements to Moral indicating, inter alia, (1) that he bought guns in Mississippi
and sold them elsewhere, (2) that he knew someone who could convert semi-
the Pagans motorcycle gang, (3) that he had access to a variety of gun silencers
conducting an armed robbery of a drug dealer using fake badges and impersonating
police officers, (5) that he was seeking a supplier for drugs to sell to the Bloods
gang in Toms River, New Jersey, and (6) on October 5, 2016, that he was ready
and willing to commit a robbery with Moral and supply a robbery crew. Gov't's
Mot. in Limine, United States v. Baez, No. 15-CR-755 (S.D.N.Y. June 27, 2016),
ECF No. 72. The government also sought to introduce the sale of a .38 Smith and
Wesson revolver to Moral that took place before Baez sold him the TEC-9. Id.
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Limine, United States v. Baez, No. 15-CR-755 (S.D.N.Y. July 4, 2016), ECF No.
82; A536.
possess weapons. Gov't's Reply Mot. in Limine 3-4, United States v. Baez, No. 15-
CR-755 (S.D.N.Y. July 7, 2016), ECF No. 86. One was a 1989 conviction in New
Jersey for unlawful possession of a shotgun, and another was a 2002 conviction in
New Jersey for a Daisy pellet handgun. Id. Baez objected to the admission of both
convictions but did not object to a third—a 2011 New Jersey conviction for
2
By letter motion dated June 14, 2016, Baez moved for new counsel or, in the
alternative, to proceed pro se. Letter Mot., June 14, 2016, United States v. Baez,
No. 15-CR-755 (S.D.N.Y. June 14, 2016), ECF No. 59. The court held a hearing
on the motion on June 17 and 20, 2016. Noting that the court had twice before
replaced appointed counsel at Baez's request, A176-77, and that the trial date
would not be moved, A178, the court denied Baez's application as to new counsel,
A181. Baez then waived his right to counsel after a hearing conducted pursuant
Faretta v. California, 422 U.S. 806 (1975), and the undersigned was appointed as
standby counsel. A195-A229. On July 11, 2016, the first day of trial, Baez invoked
his right to counsel, and the undersigned reassumed Baez's representation. A574-
76.
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The district court held a final pretrial conference on July 7, 2016. With
respect to the September 2, 2015, sale of the .38 to Moral, the court ruled that the
evidence was predisposition evidence under Rule 404(b) of the Federal Rules of
Evidence. A531-32. The court suggested that it would have ruled differently absent
As to the September 16th statements, the court admitted them reasoning that
the evidence was "intertwined with the sale of the TEC-9, which was allegedly
modified prior to the sale to the SOI," and thus not "other acts" evidence. A533. In
the alternative, the court ruled that the evidence was relevant under Rule 404(b)
"particularly given the fact that the statement that is . . . attributed to Mr. Baez[]
The court admitted the evidence regarding Baez's willingness and readiness
to commit armed robberies with Moral under Rule 404(b). A536, A538, A541-42.
The court reasoned that the statements were relevant as "evidence of predisposition
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and, in this instance, to ensure that [Moral] had appropriate weapons for future
robberies and the like." A537. The court noted that it would have evaluated the
the prejudicial effect of the evidence, the court recognized that it was prejudicial
but not unfairly prejudicial, particularly in light of the government's duty to prove
predisposition. A538; see also A542 ("I believe it is not unfairly prejudicial. I
recognize, in balancing that, that the statements here include a robbery, which is a
different type of incident than simply selling guns. I understand that they involved
armed robbery.").
Toms River under Rule 404(b), reasoning that they were "probative of his
predisposition to engage in illegal conduct." A539. The court stated that the
criminal activity of a similar moral variety [to possessing and selling a gun to a
Finally, the court admitted all three of the prior convictions for weapons
possession. With respect to the 1989 shotgun conviction, the court admitted it as
Rule 404(b) evidence of predisposition. A550-51. While noting that the offense
was "quite dated," the court stated that there was no "hard-and-fast rule" regarding
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the admissibility of a remote conviction. Id. The court also allowed the 2002
conviction for the pellet gun, reasoning that it showed Baez's "predisposition to
illegally have weapons." A550. Baez did not contest the admission of the 2011
3. Evidence at Trial
featured two main fact witnesses: Moral and Drug Enforcement Administration
("DEA") Special Agent Todd Riley. Moral testified that he met Baez in Middlesex
County (New Jersey) Jail where both were in custody in August 2015. A624-25.
Moral said that he first spoke with Baez, whom he knew only as "Noble," around a
domino table and that they spoke about "[b]asic jail stuff, drug deals, murders,
weapons." A628. During this conversation, Moral claimed that he told Baez that he
had been in federal custody "for about five years" and that he had been "arrested
with a weapon" and "caught with some money." A629; see also A630 ("I just said
that I was just caught with a weapon and I was going to make a drug deal, and I got
Moral, who was known to Baez only as "Patience," testified that he and Baez
spoke about conducting firearm and drug transactions together once they left
Middlesex County Jail. A631. Moral claimed that Baez initiated the topic of
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firearm sales. Moral characterized the initial conversation during which that
A. Weapons.
A631. Moral claimed that, before Baez brought the subject up, Moral had never
asked him for help in procuring firearms. A634. The specific weapons that,
according to Moral, Baez could provide were .40 calibers, assault rifles, machine
guns, and a TEC-9. A631-32. Moral testified that Baez told him that he had
recovered the weapons from an abandoned house that he was hired to demolish and
clean. A632-33.
After both Baez and Moral were released from Middlesex County jail, Moral
contacted Agent Riley and reported his conversations with Baez. A635-36. Moral
provided Agent Riley with Baez's cellphone number, and, from that, Agent Riley
On August 29, 2015, Agent Riley had Moral make a call to Baez that was
recorded by the DEA. A794-95, A797. In that call, Baez told Moral that he had just
received "some new toys," by which he meant firearms. A799. The next day, the
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two spoke again by phone, and Baez told Moral that he had "like four more."
A800.
Agent Riley then had Moral attempt to schedule an in-person meeting with
Baez to buy a firearm from him. Id. On September 2, 2015, Baez met with Moral
and another DEA informant posing as Moral's friend known only as "Eddie" at
Baez's home in Jackson, New Jersey. A800-02. At that meeting, Baez sold Moral a
Smith and Wesson .38 revolver. A802. The DEA recorded the meeting, and the
recording was played at the trial with frequent pauses for Moral to explain what he
Baez and Moral met again on September 16, this time at a restaurant in
upper Manhattan. A674; see also A830-41. At that meeting, which was also
recorded and heard by the jury, Baez told Moral that he was going to Mississippi to
buy assault rifles, A674-75, but that the only firearm that he was willing to sell was
the TEC-9, A676. The two had discussed making modifications to the gun—
making it automatic and fitting it with a silencer—and the work was to be done by
a friend of Baez's. A676. According to Baez, the modifications were still being
worked on, and the gun was not ready yet. Id. Baez and Moral also discussed
committing robberies and procuring large amounts of cocaine for sale. A676-77.
that the TEC-9 was ready, and the two of them arranged another meeting to
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complete the sale. A831-35. Baez, Moral and Eddie met again on the night of
A849. Moral and Baez spoke in further detail about robbing a stash house. A693.
Moral stated that a successful robbery of the stash house would require a
significant number of accomplices. A693. Baez indicated that he knew people who
After a few minutes of conversation inside the restaurant, the men left the
restaurant and walked to the rear of Baez's vehicle, which was parked nearby.
A854. Baez opened the hatchback of the vehicle, retrieved the TEC-9, and handed
it to Moral. A689-90. Moral handed Baez $1,600 in cash. A691. The October 5
meeting was audio and video recorded and the recordings were admitted in
evidence.
After Baez had left, Moral and Eddie handed the TEC-9 to Agent Riley.
A691-92; A860. The promised modifications had not been made to the TEC-9.
A774 (testimony of Special Agent Howard Ross Stern, Bureau of Alcohol Tobacco
Freehold, New Jersey. A868. Simultaneously, between ten and fifteen DEA agents,
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New Jersey. Id. The agents found firearms, airsoft guns and accessories for both.
A868-85.
That night, DEA agents brought Baez to the DEA's Manhattan office, and
Agent Riley questioned him. A887-88. The questioning was videotaped, and the
selling the .38 revolver and the TEC-9 to Moral. Baez told Agent Riley that, three
months or more before the interview, he had obtained the .38 revolver and the
TEC-9 that he sold to Moral. A890-91. Baez said that he bought the revolver from
C. Evidence as to Entrapment
Before testifying at the instant trial, Moral had previously cooperated with
the United States Attorney's Office of the Southern District of New York, which
Guidelines. A625-26. Moral asserted that, after his federal sentence, he was
Q. At the time that you arrived in Middlesex County were you still
expecting to receive any further benefit pursuant to your cooperation
agreement?
A. No.
Q. What kind of work, if any, did you still intend to do for the
government at that point?
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A626. Moral went on to explain that, at the time of trial, he was a paid informant
for the DEA, reporting whatever crime he learned of to the DEA in the expectation
that he would be paid for the information. A627. He was paid $6,000 for his efforts
Moral testified about his lengthy criminal history, with the most damaging
admissions coming under cross-examination. For several years, Moral and a crew
that he had assembled committed armed robberies of truck drivers, stealing their
entire cargo. A712-14. Sometimes the value would be in the hundreds of thousands
or millions of dollars. A714. Moral and his crew would separately impersonate
police officers. A679, A735-37. Moral even bought a police car with working
sirens and lights to commit literal highway robberies. Id. Moral testified that he
broke into a police impound lot to retrieve incriminating evidence from a trap in a
seized car. A737-39. And he testified that he committed many of his crimes while
killing a man and then, at his trial, lying under oath. A709-10. At Baez's
sentencing, the court below characterized Moral "a truly despicable character."
A1245.
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about firearms in Middlesex County Jail were corroborated by Moral and Baez's
that the only evidence of the content of those conversations, during which,
according to Moral, Baez broached the subject of selling guns to Moral was
that Moral was not working for the DEA when he was in Middlesex County Jail.
But, through cross-examination, the defense called that notion into question.
Agent Riley testified that he had attended many of Moral's proffer sessions
with the government dating back to 2013 and that he had attended Moral's federal
federal prosecutor told the sentencing judge that Moral would not recidivate
Agent Riley and Moral did indeed stay in frequent contact after Moral's
sentence. Id. Moral started working for the DEA, supervised by Agent Riley,
starting in 2014. Id. And Moral made five or six cases for Agent Riley. A911.
Agent Riley indicated that, when Moral entered Middlesex County Jail, the two
men did not have a formal understanding that Moral would cease working for the
DEA until he was released, at which time his work would resume. A938. However,
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Agent Riley disagreed with Moral's characterization that he was "freelancing" for
the DEA while he was in the Middlesex County Jail at the time he met Baez
because his communication was "a lot more limited" and not "as frequent" as when
firearms convictions that were the subject of the its motions in limine: (1) the
August 1989 possession of a shotgun, A899, (2) the December 2002 conviction for
D. Baez's Testimony
Baez testified as the defense's only witness. Baez explained that county jails
was impossible to know, just by an inmate's presence in the county jail, whether he
had been sentenced or was in pretrial detention. Id. In August 2015, Baez himself
had been arrested for driving with a suspended license, a non-felony offense, and
sentenced to twenty days in the county jail. Id. With respect to Moral's status as a
convicted felon, Baez testified: "I never mentioned my background to him. I never
told him that I was in prison before. He never told me that he was in prison
before." A969.
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Baez gave his account of how he met Moral at the Middlesex County Jail.
Baez testified that Moral approached him, and the two discussed Baez's business.
A966. Talk turned to Baez's cleaning of abandoned homes, and Baez described the
variety of personal property that people left behind: "cars, motorcycles, sofas, beds,
brand-new things, used things, antiques." Id. Baez testified that Moral then asked
him whether he comes across any firearms. Id. Baez responded: "[Y]es, I did find a
TEC-9 in a home. And that home was pretty packed with a lot of airsoft toys,
occasions. A968. And Baez described how Moral persisted until his will was
overborne and he agreed to sell Moral firearms once they both were released.
A969-72. Baez also testified about the sale of the firearms and the discussions
surrounding them largely in accordance with the surveillance recordings and with
The court instructed the jury on the permitted uses of other acts evidence,
stating:
The evidence of other acts apart from the prior conviction referenced
in Government Exhibit 1004 was admitted solely for the purpose of
establishing the defendant's predisposition or lack of predisposition to
commit the offenses charged in the indictment. . . .
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However, while you should evaluate the evidence of other acts in your
determination of the defendant's predisposition or lack thereof you
may not use this evidence to conclude that because the defendant
committed these other acts or crimes he must also have committed the
acts charged in the indictment.
A1173-74
The court instructed the jury on the offense of selling a firearm to a felon
court stated:
The third element of the crime charged in Count Two requires that the
government prove beyond a reasonable doubt that when the defendant
sold the firearm in question to the buyer, the defendant either knew or
had reasonable cause to believe that the buyer was a convicted felon.
The court instructed the jury on the two elements of entrapment: inducement
follows:
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defendant was ready and willing to commit the crime before he was
first approached by the confidential source, Patience.
The government may prove this in any of three ways: First, by
showing that the defendant was already engaged in an existing course
of criminal conduct similar to the charged crime; second, by showing
that the defendant had already formed a design to commit the charged
crime; or, third, by showing that the defendant was ready and willing
to commit the charged crime, as demonstrated by his prompt response
to the opportunity presented by the confidential source, [Patience].
A1165-66.
5. Sentence
At sentencing, the district court calculated the guidelines range as follows.
First, the court found that the base offense level was fourteen because at the time
enhancement because the offense involved more than three but fewer than eight
firearms. Id.; see USSG § 2K2.1(b)(1)(B). The court rejected the government's
contentions that the offense involved eight or more firearms, A1200-01, and that
Baez committed the crimes of conviction in connection with another felony offense
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The district court found that Baez obstructed justice by "providing false
testimony at trial and otherwise." A1201-02. The court found that Baez had falsely
testified regarding his ignorance of Moral's criminal past and regarding his own
The court specifically did not credit Baez's testimony that he did not know
that Moral was a convicted felon until after his arrest, A1203, that he believed that
Moral was a business investor, id., and that he met with Moral at the Dinosaur
respect to the timing of Baez's possession of the firearms at issue, the court
disbelieved Baez's testimony that he obtained the TEC-9, the .38 revolver and the
With respect to the entrapment defense, the court did not credit Baez's testimony
that Moral had initiated the topic of selling him guns in conversation. A1205.3
The court found the total offense level to be twenty-two, id., and that Baez
3
The court also found that Baez lied in a bail hearing when he told the court that
he had never had a felony conviction for a serious drug offense or sold a drug in
his life. A1205.
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objected, A1251-52. The court overruled Baez's objection. A1252. This appeal
followed.
SUMMARY OF ARGUMENT
The district court erroneously allowed evidence of "other acts" that was
inadmissible under Rule 404(b) and Rule 403 of the Federal Rules of Evidence.
armed robberies of heavily fortified stash houses–evidence that had no place in this
straightforward firearms possession and sale case. Second, the court received
government's paid informant. And, third, the court admitted three prior convictions
for weapons possession, one of which was twenty-seven years' old and the other of
which was for possession of a pellet gun. The court's errors resulted from its failure
either (1) to assess the evidence's similarity to the conduct charged, (2) to properly
conscientiously evaluate the Rule 403 factors, or (4) to do some combination of the
above requirements.
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It cannot be presumed that the jurors' judgment was not swayed by these
errors. The government actually handed the revolver to the jury. As to the armed-
sheet more than the case required. Thus, there is a serious risk that, because of the
court's errors, the jury was invited to declare Baez guilty based on considerations
ARGUMENT
This Court reviews evidentiary rulings for abuse of discretion. United States
v. Natal, 849 F.3d 530, 534 (2d Cir. 2017). "A district court has abused its
United States, 328 U.S. 750, 776 (1946). Such a ruling "is harmless if the appellate
court can conclude with fair assurance that the evidence did not substantially
influence the jury." United States v. Mercado, 573 F.3d 138 (2d Cir. 2009). In
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reviewing for harmless error, this Court "principally consider[s]: (1) the overall
strength of the prosecution's case; (2) the prosecutor's conduct with respect to the
[evidence]; and (4) whether such evidence was cumulative of other properly
admitted evidence." United States v. McCallum, 584 F.3d 471, 478 (2d Cir. 2009)
(internal quotation marks omitted) (quoting United States v. Kaplan, 490 F.3d 110,
B. Legal Standards
crime, wrong, or other act] may be admissible for another purpose, such as proving
district court properly admitted evidence under Rule 404(b), this Court considers
whether: "(1) the prior acts evidence was offered for a proper purpose; (2) the
evidence was relevant to a disputed issue; (3) the probative value of the prior act
evidence substantially outweighed the danger of its unfair prejudice; and (4) the
291 F.3d 127, 136 (2d Cir. 2002) (internal quotation marks omitted) (quoting
United States v. Pitre, 960 F.2d 1112, 1118 (2d Cir. 1992)) (describing the factors
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for assessing the admissibility of Rule 404(b) evidence that was set forth in
As to the "proper purpose" step of the above inquiry, this Court takes an
"inclusionary approach" to Rule 404(b). United States v. Carboni, 204 F.3d 39, 44
(2d Cir. 2000). But even when evidence is offered for a proper purpose, it may
nevertheless be inadmissible "if the other act or acts are not sufficiently similar to
the conduct at issue." United States v. Gordon, 987 F.2d 902, 909 (2d Cir. 1993)
(internal quotation marks omitted) (quoting United States v. Ajjehi, 869 F.2d 670,
674 (2d. Cir. 1989)); see id. ("It is an abuse of discretion for the trial court to
admit other-act evidence 'if the other act or acts are not sufficiently similar to the
conduct at issue."').
United States v. Figueroa, 618 F.2d 934, 939 (2d Cir. 1980). In order for an issue
not to be in dispute, a defendant "must express a decision not to dispute that issue
with sufficient clarity." Id. at 942. However, such an expression does not have to
come in the form of a formal stipulation. Id. "In some circumstances the very
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nature of a defense put forward by the defendant may itself remove an issue from a
case." United States v. Tarricone, 996 F.2d 1414, 1421 (2d Cir. 1993); see also
United States v. Colon, 880 F.2d 650, 657 (2d Cir. 1989) ("Our cases have . . .
recognized a distinction between defense theories that claim that the defendant did
not do the charged act at all, and those that claim that the defendant did the act
innocently or mistakenly, with only the latter truly raising a disputed issue of
intent."); United States v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988) (internal
citations omitted) ("[I]ntent is not placed in issue by a defense that the defendant
did not do the charged act at all. When a defendant unequivocally relies on such a
defense, evidence of other acts is not admissible for the purpose of proving
intent.").
Even when the government offers Rule 404(b) evidence for a proper purpose
Moreover, evidence of other acts should not be admitted unless the district
court has "carefully conducted" the Rule 403 balancing set forth as the third factor
of the Huddleston test. McCallum, 584 F.3d at 476. When there is a risk of
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prejudice, "Rule 403 requires the trial court to make a conscientious assessment of
whether the probative value of the evidence on a disputed issue in the case is
other adverse effect upon the defendant." Figueroa, 618 F.2d at 943.
Rule 403 provides: "The court may exclude relevant evidence if its probative
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
prejudicial effect may be created by the tendency of the evidence to prove some
adverse fact not properly in issue or unfairly to excite emotions against the
defendant." Figueroa, 618 F.2d at 943; see also Old Chief v. United States, 519
U.S. 172, 180 (1997) (describing "unfair prejudice" as "an undue tendency to
they are "more sensational or disturbing than the crimes with which [the defendant]
was charged." United States v. Curley, 639 F. 3d 50, 62 (2d Cir. 2011) (citing
United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990)). Other means of
proving the issue to which the prejudicial evidence relates also matters to a court's
Rule 403 assessment. Thus, in addition to balancing the probative value against the
prejudicial effect of a piece of evidence, a court must also "plac[e] the result of that
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C. Discussion
1. Baez's Statements as to Armed Robberies
commit armed robberies with Moral. The court reasoned that, under Rule 404(b),
the evidence was relevant to show Baez's predisposition "to engage in criminal
activity with [Moral] in particular, and, in this instance, to ensure that [Moral] had
criminal conduct similar to the crime for which the defendant is charged, (2) an
already formed design on the part of the accused to commit the crime for which he
Brand, 467 F.3d 179, 191 (2d Cir. 2006) (quoting United States v. Brunshtein, 344
F.3d 91, 101-02 (2d Cir. 2003)). Here, the district court indicated that the existence
of the predisposition element drastically altered its assessment of the Rule 404(b)
factors. Id. But the court did not explain exactly how it did so.
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The court gave no indication that it had considered the Huddleston factors as
this circuit's authority clearly commands. See Gordon, 987 F.2d at 909; Garcia,
291 F.3d at 137. Notably, it did not find that planning an armed robbery was
admissibility under Rule 404(b) and predisposition. Rather, the court stated only
that robbery was "a different type of incident than simply selling guns," A542,
The court also did not conduct the conscientious assessment required by
Rule 403 of whether the probative value of the evidence substantially outweighed
its prejudicial tendency. On that subject, the court indicated merely that the
evidence was prejudicial, but not unfairly prejudicial, in light of the government's
duty to prove predisposition. A538; see also A542. The court below thus gave little
more explanation than the district court in McCallum, which, in allowing two prior
purposes factors of the Rule 404(b) inquiry and assessed prejudice only briefly and
in passing. 584 F.3d at 476-77. In that case, this Court found the admission of the
The admission of the armed robbery statements in this case were only
the variety of criminal conduct for which the government could show
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a known convicted felon was at issue, not committing armed robberies.4 The
a gun is not remotely similar to an armed robbery of drug dealers, one of the most
The jury learned little about Baez's predisposition for selling firearms. In exchange,
the jury was led to conclude that Baez was a dangerous armed robber, an
A1114, A1127. There is a real possibility that the jury convicted Baez based, in
part, on his apparent willingness and readiness to commit the most hazardous of
armed robberies and, thus, believed that it was ridding the streets of a brazen
disturbing than" the gun crimes with which Baez was charged.
4
Elsewhere the district court indicated that it took an expansive view of
permissible predisposition evidence. When assessing the admissibility of Baez's
statements regarding drug sales to the Bloods gang in Toms River, the district
court stated that they were "probative of his predisposition to engage in illegal
conduct," A539-40, not to engage in the charged crimes.
-26-
Case 17-1741, Document 28, 10/19/2017, 2152180, Page33 of 49
Thus, the armed-robbery evidence fail three of the four Huddleston factors
2, 2015, sale of the .38 revolver to Moral. Moral and Baez met when they were
According to Baez, that is when Moral induced him to sell firearms. Baez's post-
defendant's state of mind before the government prompted him to commit a crime.
Brand, 467 F.3d at 192 (quoting Jacobson v. United States, 503 U.S. 540, 549 n.2
after Brand's initial contact with government agents is misplaced. This evidence
Relying on Brand, the district court found evidence of the sale admissible
the defendant's response was far more prompt than Baez's assent in this case. In a
5
The admission of the armed robbery statements was also erroneous because those
discussions took place after Baez's initial contact with Moral. It was thus irrelevant
as to Baez's pre-inducement state of mind. Brand, 467 F.3d at 192.
-27-
Case 17-1741, Document 28, 10/19/2017, 2152180, Page34 of 49
telephone conversation between Brand and a woman who was posing as a thirteen-
year-old girl, the woman told Brand that she wanted learn "sex stuff and
the sexual acts that he could engage in with" the imaginary thirteen-year-old. Id.
Accordingly, this Court observed that Brand had "jumped at the opportunity"
presented by the inducement and that the woman's single mention of "sex stuff"
released a torrent of graphic and detailed descriptions of sexual acts. Id. at 194-95.
Brand is thus inapt. Baez and Moral were housed together for several days.
According to Baez, his will was overborne after Moral attempted several times to
persuade him to sell Moral a gun. Several days after Moral and Baez were released
from jail, on August 29, 2015, Baez indicated to Moral that he had new firearms
for sale. Accordingly, evidence of Baez's sale of the .38 revolver was not indicative
3. Prior Convictions
The district court erroneously allowed the government to introduce two of
Baez's prior convictions for weapons possession: the August 1989 shotgun
McCallum:
6
A third weapon possession conviction—in 2011, for a handgun—was introduced
without objection.
-28-
Case 17-1741, Document 28, 10/19/2017, 2152180, Page35 of 49
1989 conviction for possession of a shotgun was far too remote to have any
probative value. See Figueroa, 618 F.2d at 942 (holding that it was an abuse of
discretion for the district court to admit into evidence at a drug trial the defendant's
drug conviction that was at least ten years old); United States v. Broussard, 80 F.3d
1025, 1040 (5th Cir. 1996) ("[T]he remoteness of the extrinsic acts evidence may
weaken its probative value . . . ."). Instead, it merely invited the jury to view Baez
Accordingly, it should have been excluded under Rule 404(b) and Rule 403.
Baez's 2002 conviction for possession of a Daisy airsoft pellet gun is totally
irrelevant to any matter in dispute. Assuming, arguendo, that the conviction had
possession of a pellet gun has to the sale of a real, deadly firearm. Past conduct as
an inference that his purpose included offenses of the sort charged; although it is
not necessary that the past conduct be precisely the same as that for which the
-29-
Case 17-1741, Document 28, 10/19/2017, 2152180, Page36 of 49
defendant is being prosecuted." Brand, 467 F.3d at 200 (internal quotation marks
omitted) (quoting United States v. Harvey, 991 F.2d 981, 994 (2d Cir. 1993)).
prejudicial impact. As this Court has stressed many times, prior convictions are
particularly prone to give the mistaken impression to jurors that that "if a defendant
guilty of the [same] offense for which he is on trial." McCallum, 584 F.3d at 476.
4. Harmless Error
The district court's erroneous evidentiary rulings were not harmless. Because
Baez established well before trial that he was advancing an entrapment defense as
to both counts, he necessarily conceded his possession and sale of the TEC-9 to
Moral. Thus, the only issues in dispute at trial were (1) inducement, (2) Baez's
predisposition to possess the TEC-9 and to sell it to a convicted felon, and (3)
was not particularly strong. This Court observed in United States v. Cummings:
-30-
Case 17-1741, Document 28, 10/19/2017, 2152180, Page37 of 49
United States v. Cummings, 858 F.3d 763, 774 (2d Cir. 2017). Nevertheless, other
principally of (1) Moral's uncorroborated testimony that Baez had initiated the
discussion about firearms sales and (2) the 2011 conviction for possession of a
handgun. Moral was effectively impeached regarding his lengthy and despicable
criminal history and his past false testimony. And the 2011 conviction speaks to
As to the second and third prongs of the harmless error analysis—how the
the total setting of the case, the error[s] influenced the jury." Id. The government
weapons possession three times in the past. A1106, A1136. With respect to the
prior gun sale to Moral, the government referenced the sale of the .38 often and
The armed robbery discussions were a major theme at trial. The government
questioned Moral at length on direct and redirect about Baez's statements, A669-
summation, A1087, A1092, A1097-98, A1101, A1110, A1114, A1127. Thus, there
-31-
Case 17-1741, Document 28, 10/19/2017, 2152180, Page38 of 49
is a "serious risk that such evidence lured the jury into declaring guilt on a ground
different from proof specific to the offense charged." Cummings, 858 F.3d at 775.
Even if this Court does not find that any individual erroneous ruling
warrants a new trial, the verdict was swayed by the cumulative effect of the errors.
Much of the other-acts evidence was admitted to prove issues that were not in
dispute. The only issues in dispute at trial were (1) inducement, (2) Baez's
predisposition to possess the TEC-9 and to sell it to a convicted felon, and (3)
Baez's knowledge, actual or imputed, that Moral was a convicted felon. Some of
the prior acts fail the "proper purpose" factor of the Huddleston test in that that
they were "not sufficiently similar to the conduct at issue." Gordon, 987 F.2d at
909. The court also did not engage in a sufficiently conscientious assessment of the
some of the evidentiary errors on their own are not harmless, it certainly cannot be
said that their cumulative effect did not influence the jury.
-32-
Case 17-1741, Document 28, 10/19/2017, 2152180, Page39 of 49
CONCLUSION
should be reversed and the charges dismissed, or that the convictions should be
vacated and a new trial ordered, or remanded for appropriate hearings. In the
alternative, this Court should issue an order such other and further relief as this
Respectfully submitted,
s/Ezra Spilke
EZRA SPILKE, ESQ.
Attorney for Defendant-Appellant
Atdilon Baez
315 Flatbush Avenue, No. 512
Brooklyn, New York 11217
(646) 762-9713
-33-
Case 17-1741, Document 28, 10/19/2017, 2152180, Page40 of 49
CERTIFICATE OF COMPLIANCE
the foregoing brief contains 7,793 words according to the word count function of
the MS Word application and is, thus, in compliance with the type-volume
Procedure. The typeface – 14-point, Times New Roman – complies with Rule
Respectfully submitted,
s/Ezra Spilke
EZRA SPILKE, ESQ.
Attorney for Defendant-Appellant
ATDILON BAEZ
315 Flatbush Avenue, No. 512
Brooklyn, New York 11217
(646) 762-9713
-34-
Case 17-1741, Document 28, 10/19/2017, 2152180, Page41 of 49
SPECIAL APPENDIX
Case 17-1741, Document 28, 10/19/2017, 2152180, Page42 of 49
1: Document 137 1 7
AO 2458 (Rev. I 1/16) Judgment in a Criminal Case
Sheet 1
The defendant is sentenced as provided in pages 2 through __L.___~. -·. of this judgment. The sentence is imposed pursuant to
the Sentencing Reform Act of 1984.
D The defendant has been found not guilty on count(s)
D Count(s) D is Dare dismissed on the motion of the United States.
It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence,
or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution,
the defendant must notify the court and United States attorney of material changes in economic circumstances.
h r,.;:nr ~IUJV
I
VU.LIV ._,.Lil' .I
II
DOCUMENT
ELECTRONICALLY FILED
Gregory H. vyoods .. -~~9..:
DOC#:~~~~-r---.~ Name and Title of Judge ----
1: Document 137 2 7
AO 245B (Rev. l 1/16) Judgment in Criminal Case
Sheet 2 ··~·Imprisonment
Judgment - Page 2 of 7
DEFENDANT: ATDILON BAEZ
CASE NUMBER: 1: 15-cr-755-GHW-1
IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total
term of:
Ill The defendant is remanded to the custody of the United States Marshal.
D The defendant shall surrender to the United States Marshal for this district:
D at D a.m. D p.m. on
0 The defendant shall surrender fbr service of sentence at the institution designated by the Bureau of Prisons:
D before 2 p.m. on
D as notified by the United States Marshal.
RETURN
1 have executed this judgment as follows:
Defendant delivered on to
By~·~·----·-------------- ..~~--·--
DEPUTY UNITED STATES MARSHAL
Case 17-1741, Document 28, 10/19/2017, 2152180, Page45 of 49
SPA-3
1: Document 137 3 7
AO 245B (Rev. l 1116) Judgment in a Criminal Case
Sheet 3 - Supervised Re lease
MANDATORY CONDITIONS
I. You must not commit another federal, state or local crime.
2. You must not unlawfully possess a controlled substance.
3. You must refrain from any unlawfol use ofa controlled substance. You must submit to one drug test within 15 days of release from
imprisonment and at least two periodic drug tests thereafter, as determined by the court.
~ The above drug testing condition is suspended, due to the imposition of a special condition requiring drug treatment
and testing.
4. li1" You must cooperate in the collection of DNA as directed by the probation officer. (check ifapplicable)
5. D You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as
directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you
reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
6. D You must participate in an approved program for domestic violence. (check if applicable)
You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached
page.
Case 17-1741, Document 28, 10/19/2017, 2152180, Page46 of 49
SPA-4
1: Document 137 4 7
AO 245B (Rev. 111!6) Judgment in a Criminal Case
Sheet 3A -· Supervised Release
I. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your
release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time
frame.
2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and
when you must report to the probation officer, and you must report to the probation officer as instructed.
3. You must not knowingly leave the federal judicial district where you arc authorized to reside without first getting permission from the
court or the probation officer.
4. You must answer truthfully the questions asked by your probation officer.
5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living
arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying
the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72
hours of becoming aware of a change or expected change.
6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to
take any items prohibited by the conditions of your supervision that he or she observes in plain view.
7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from
doing so. If you do not have full-time employment you must tty to find full-time employment, unless the probation officer excuses
you from doing so. If you plan to change where you work or anything about your work (such as your position or your job
responsibilities), you must notify the probation officer at least I 0 days before the change. If notifying the probation officer at least I 0
days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of
becoming aware of a change or expected change.
8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been
convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the
probation officer.
9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
I 0. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon {i.e., anything that was
designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or lasers).
l l. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without
first getting the permission of the court.
12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may
require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the
person and confirm that you have notified the person about the risk.
13. You must follow the instructions of the probation officer related to the conditions of supervision.
The defendant shall submit his person, residence, place of business, vehicle, and any property or electronic devices under
his control to a search on the basis that the probation officer has reasonable suspicion that contraband or evidence of a
violation of the conditions of the defendant's supervised release may be found. The search must be conducted at a
reasonable time and in a reasonable manner. Failure to submit to a search may be a grounds for revocation. The
defendant shall inform any other residents that the premises may be subject to search pursuant to this condition.
The defendant shall be restricted to his residence every day from 8 p.m. to 7 a.m., or as othervvise directed by the
probation officer. The curfew shall be enforced by location monitoring. The defendant shall be monitored by location
monitoring technology as directed by the probation officer, which shall include, without limitation, GPS monitoring or
equivalent location monitoring technology directed by the probation officer. The defendant shall abide by all technology
requirements. The defendant shall pay all or part of the costs of participation in the location monitoring program as
directed by the Court and the probation officer.
Case 17-1741, Document 28, 10/19/2017, 2152180, Page48 of 49
SPA-6
1: Document 137 6 7
AO 2458 (Rev. 11/16) Judgment in a Criminal Case
Sheet 5 - Criminal Monetary Penalties
Judgment - Page 6 of 7
DEFENDANT: ATDILON BAEZ
CASE NUMBER: 1:15-cr-755-GHW-1
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.
D The determination of restitution is deferred until An Amended Judgment in a Criminal Case (AO 245C) will be entered
after such determination.
D The defendant must make restitution (including community restitution) to the following payees in the amount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in
the priority or~ier or perc~ntage payment column below. However, pursuant to 18 U.S.C. § 3664(1), all nonfederal victims must be paid
before the Umted States is paid.
TOTALS $ 0.00
$ --·-··-----·------·-------- - ----------~:-~Q__
D The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in fuii before the
fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(1). All of the payment options on Sheet 6 may be subject
to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
D The court determined that the defendant does not have the ability to pay interest and it is ordered that:
SCHEDULE OF PAYMENTS
Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties is due as follows:
C D Payment in equal -----··------·-·--···- (e.g., weekly, 111011/h~v. quarterly) installments of $ ____ over a period of
(e.g., months or year.1), to commence ...... (e.g., 30 or 60 day.1) after the date of this judgment; or
E D Payment during the term of supervised release will commence within -· ..................... (e.g .. 30 or 60 dayJ) after release from
imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or
Unless the court has expressly ordered otherwise, ifthisjudgment imposes imprisonment, payment ofcriminal monetaiy penalties is due during
the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate
Financial Responsibility Program, are made to the clerk of the court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
Defendant and Co-Defendant Names and Case Numbers (including defendant numbe1), Total Amount, Joint and Several Amount,
and corresponding payee, if appropriate.
D The defendant shall forfeit the defendant's interest in the following prope1ty to the United States:
Payments shall be applied in the following order: (1) assessment, (2) restitution pdncipal, (3) restitution interest, (4) fine principal, (5) fine
interest, (6) community restitution, (7) JVTA assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs.