Petition — Lopez v. United States

Supreme Court, U. S,

FILED

AUG 28 1978

ee et JR., CLERK

In THE

Supreme Court of the United States

OcroserR Term, 1978

No. 718-331

VICTOR JAMES LOPEZ,

Petitioner,

—against—

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Irvine ANOLIK

Attorney for Petitioner

225 Broadway

New York, New York 10007

(212) 732-3050

TABLE OF CONTENTS

Page

Petition for a Writ of Certiorari

to the United States Court of

Appeals for the Second Circuit. .. 1

Opinion Belew . .« «+ + 3 6 6 ae OS ee UE

SURAGEAGEIOR. « « ¢ © 6 6 e146) 0 & «28

Questions Presented ........+. 2

Constitutional and Statutory Pro-

vwapiones Involwed . « «+ 6 6° «.s-#. 4

The Factual Background ........ 3

Tee. Bales Tmweiveag «. « «.<- 0 6 «Mohs “9

Point I. The Courts below erred in

holding that it was proper for the

government to introduce other crimes,

wrongs or acts of the petitioner,

in its direct case, despite the

fact that no issue concerning them

had been raised and no necessity

for such introduction was establi-

es « 6+ ss 6 6 06 6 &@ © ees b.-Se

Point II. The petitioner incorporates

by reference the other points

ii

advanced in his brief to the Court

below.

Sern 2 a ss 5. «+ © « © ¢ # ©

Judgment . . * e ° ° . * ° . . * °

TABLE OF CASES

Bedsole v. State, 274 Ala. 603, 150 So.

ea 2 en a a a oe a

Michelson v. United States, 335 U.S.

San Gree re Ceeeere« « + & 2 oe & @ 8

Spencer v. Texas, 385 U.S. 554, 560-61

( [eweee 4 8 ie we ee! ee ee ew Ss

State v. McCorvey, 262 Minn. 361, 114

MW. 26 703 (1962) « « 2 w-0 + 6

U.S. v. Baldarrama, 566 S. 2d 560

te ee oe gs ge ees ee: ee

U.S. v. Bledsoe, 531 F. 2d 888

fee Gens BIO) es «6 « 6 6 ee es

U.S. v. Boyd, 5th Cir. 1971, 446 F. 2d

Bets Carer aele «8% 2 <6 a we 2

U.S. v. Clemons, 503 F. 2d 496 (1974).

U.S. v. Cohen, 489 F. 2d 945 (2nd Cir.)

(1973) 7 e e . - © ° ” eo 7 o . 7 .

U.S. v. Curtis, 520 F. 2d 1300

(lst Cir. 1975) . + ° . e 7 °. . + a.

U.S. v. Dansker, 537 F. 2d 40 (3rd Cir.

1976) ~ 7 ° ° . . 7 . 7 ° .

U.S. v. Goodwin, 5th Cir. 1974, 492 F. 2d

BSUeseeees. 64 6 6 + Hie iw & ew 8

a7

27

10

1i

14

10

14

21

26

15

18

14

iii

U.S. v. Harris, 331 F. 2d 185

(4th Cir. 1964) 2. «2 © 6 we we we

U.S. v. Jackson, 405 F. Supp. 938

eR > er 1975). a ~ . o 7 . . + ° 7

U.S. v. Johnson, 5th Cir. 1972, 453 F. 2d

2193, 1398 = 3 & ose Ste 3 ete «

U.S. v. Lawrance, 5th Cir. 1973, 480 F. 2d

Ge, Geaceen Bs 6 4 6 te et oe ee Ce

U.S. v. Miller, 500 PF. 24 751 (Sth Cir.,

1974), rev'd. on other grounds,

2a Wide COO se 8 4 8 8 ee ee

U.S. v. Woods, 484 F. 2d 127 (4th Cir.,

1973) . 7 7 . > ° e . 7 * os ° . 7 ” °

OTHER AUTHORITIES

Advisory's Committee's Note to Rule

404(b), 56 F.R.D. 183, 221 (1972)

Comment, Other Crimes Evidence at Trial:

Of Balancing and Other Matter,

70 Yale Le J. 763, 765-646 (396i) -. «

H. R. Rep. No. 650, 93d Cong. lst Sess.

(1973) reprinted in (1974) U.S.

Code Cong. & Ad. News 7075. .....

C. McCormick, Evidence §190 at 453

[an sk ees « 6 6 ee oR Oe ew

Model Code of Evidence Rule 31ll (1942). .

S. Rep. No. 1277 93d Cong. 2d Sess. 8

(1974) U.S. Code Cong. & Ad. News

7051, 7054. * - on _ 7 e a . . ° * ° =

Slough & Knightly, Other Vices, Other

Crimes,4l Iowa L. Rev. 325 (1956) ..

Stone, The Rule of Exclusion of Similar

Fact Evidence: America, 51 Harv.

L. Rev. 988 (1938) a e - o * 7 es 7 2 *

18

14

14

12

14

10

11

13

15

11

In the

SUPREME COURT OF THE UNITED STATES

iv.

October Term 1978

Page

J No.

J. Wigmore, Evidence §306

(JeG BG. 1960) 2. se 5 ee we 8 we ee ee ae ee rT ere errr ey ery ee eee

VICTOR JAMES LOPEZ,

C. Wright, Federal Practice and Proce- Pa

Gume, Criminal $410. . « << «ss 13 Petitioner,

- against-

18 U.S.C. §§922(b)(5) and 371. .... io UNITED STATES OF AMERICA,

Vitth suet. 2°. 4 se 4 & & we 3 Respondent

Federal Rules of Evidence 102 .... eae SBTUNTMNUOMITINIIT) acta ince anol ih acto emada team an ceniencedenladmbaentatel

Federal Rules of Evidence 401 .... 7 PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

Federal Rules of Evidence 402 .... 7 FOR THE SECOND CIRCUIT

Federal Rules of Evidence 403 .... ere ee eee

Federal Rules of Evidence 404(b) ... 5 STATEMENT

Petitioner, VICTOR JAMES LOPEZ, respect-

fully prays that this Court grant a writ of

certiorari to the United States Court of

Appeals for the Second Circuit to review that

Court's order of the 22nd of June, 1978,

affirming the judgment of the United States

District Court for the Eastern District of

New York, which convicted him of violating

18 U.S.C. §§922(b) (5) and 371 [Counts One

and Four of the indictment], selling fire-

3

arms through a licensed dealer, but failing committed by the Petitioner could be intro-

to record the name, age and residence of the duced on the Government's direct case before

purchaser, and conspiracy to do so, after any evidence was offered by the defense?

trial before Bramwell, D.J., and a jury. 2. Whether Section 404(b) of the Federal

Petitioner was acquitted of Counts Two Rules of Evidence is constitutional as applied

and Three of the indictment, also charging herein?

him with sales of firearms, in violation 3. Whether Petitioner received a fair

of the aforementioned Section. trial in conformity with the Fifth Amendment

OPINION BELOW of the United States Constitution?

No opinion was rendered by the United CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

States Court of Appeals for the Second Cir- :

The Fifth Amendment of the United States

cuit. . ; : ,

Constitution is involved herein, as are

JURISDICTION

Rules 404(b), 403, 402, 401, 102, and 609

The jurisdiction of this Court is in-

of the Federal Rules of Evidence, and 18

voked under 28 U.S.C. §1254(1). The Court

U.S.C. §§922(b) (5) and 371.

of Appeals for the Second Circuit affirmed

THE FACTUAL BACKGROUND

the jugement of conviction on the 22nd day

At the trial the Government was per-

of June, 1978. (Docket #78-1123)

mitted to adduce evidence from one William

QUESTIONS PRESENTED

Davis, a Service Operations Manager of the

1. Whether the Courts below erred in

Navy Exchange at Mitchell Field, that he

their interpretations of Section 404(b) of ;

was a neighbor of Petitioner LOPEZ and

the Federal Rules of Evidence, in holding

that in August of 1976, during a conver-

that evidence of uncharged crimes allegedly j

sation between LOPEZ and Davis, the former

shoed him two small handguns, which he said

were "off paper".

Davis was permitted to explain that this

constituted existence of a crime since "off

paper" meant that the gun was not registered

to the person who possessed it. LOPEZ did

have a license, but not for the guns in

question (TT 42-44; 52-54)*.

Davis, therefore, was permitted to testify

with regard to: alleged prior similar crim-

inal or wrongful acts, namely that the

Petitioner possessed two "off paper" un-

registered handguns at a time prior to the

commencement of the alleged conspiracy

(44, 52, 53). He was able to testify fur-

ther that Petitioner had these guns so they

would be hard to trace in the event LOPEZ

should ever be mugged and therefore should

have to use them.

It should be noted that Davis also was

permitted to testify extensively, over

objection, with regard to federal reporting

*Numerals in parenthesis refer to »age numbers

of the Trial Transcipt, unless otherwise

specified.

requirements for guns, as well as local re-

quirements.

Davis was also permitted to say that the

day prior to Davis' purchase of guns from

one Quagliano, Petitioner had told him of

the existence of a friend who acquired large

quantities of "off paper" guns and that

LOPEZ was wondering whether Davis would be

interested therein (56-58).

It should be noted that Petitioner, in

the Courts below, had raised not only the

contention with respect to Rule 404(b) Fed.

R. Evid., but also that there was no reason

to admit this evidence on the direct case

of the prosecution; that it was error to

allow expert testimony concerning the

federal and local gun licensing requirements;

and that improper hearsay testimony was

used against him.

THE RULES INVOLVED

Rule 404 of the Federal Rules of Evidence

entitled "Character Evidence Not Admissible

To Prove Conduct; Exceptions; Other Crimes"

provides in part....

Rule

Rule

"(b) Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs or

acts is not admissible to prove the

character of a person in order to

show that he acted in conformity

therewith. It may, however, be

admissible for other purposes, such

as proof of motive, opportunity,

intent, preparation, plan, knowledge,

identity, or absence of mistake or

accident." Fed. Rules Evid. Rule

404, 28 U.S.C.A.

609, Fed. R. Evid., provides:

"Rule 609. Impeachment by Evidence

of Conviction of Crime

"(a) General rule. For the purpose

of attacking the credibility of a

witness, evidence that he has been

convicted of a crime shall be ad-

mitted if elicited from him or

established by public record

during cross-examination but only

if the crime (1) was punishable by

death or imprisonment in excess of

one year under the law under which

he was convicted, and the court

determines that the probative value

of admitting this evidence out-

weighs its prejudicial effect to

the defendant, or (2) involved dis-

honesty or false statement, re-

gardless or the punishment."

102, Fed. R. Evid., provides:

"Rule 102. Purpose and Construc-

tion. These rules shall be con-

strued to secure fairness in ad-

ministration, elimination of un-

justifiable expense and delay, and

promotion of growth and develop-

ment of the law of evidence to the

end that the truth may be ascer-

tained and proceedings justly

determined." .

Rules 403, 402 and 401, Fed. R. Evid.,

provide as follows:

"Rule 403. Exclusion of Relevant

Evidence on Grounds of Prejudice,

Confusion, or Waste of Time.

Although relevant evidence may be

excluded if its probative value is

substantially outweighed by the

danger of unfair prejudice, con-

fusion of the issues, or misleading

the jury, or by considerations of

undue delay, waste of time, or

needless presentation of cumula-

tive evidence.”

"Rule 402. All relevant evidence

is admissible, except as otherwise

provided by the Constitution of the

United States, by Act of Congress,

by these rules, or by other rules

prescribed by the Supreme Court

pursuant to statutory authority.

Evidence which is not relevant is

not admissible."

"Rule 401. Definition of "Relevant

Evidence"

"Relevant evidence" means evidence |

having any tendency to make the

existence of any fact that is of

consequence to the determination

of the action more probable or less

probable than it would be without

the evidence."

POINT I

THE COURTS BELOW ERRED IN HOLDING THAT

IT WAS PROPER FOR THE GOVERNMENT TO

INTRODUCE OTHER CRIMES, WRONGS OR ACTS

OF THE PETITIONER, IN ITS DIRECT CASE,

DESPITE THE FACT THAT NO ISSUE CONCERNING

THEM HAD BEEN RAISED AND NO NECESSITY

FOR SUCH INTRODUCTION WAS ESTABLISHED.

Section404(b) of the Federal Rules of Evi-

dence categorically forbids introduction of

"evidence of other crimes, wrongs, or acts

- »« « to prove the character of a person...

Under certain limited circumstances, the

Rule indicates that it is conceivably proper

that such proof may be introduced to estab-

lish "motive, opportunity, intent, prepara-

tion, plan, knowledge, identity, or absence

of mistake or accident."

In the case at bar, the Government intro-

duced such evidence on its direct case with-

out any demonstration that such evidence was

essential or proper under the circumstances

of this case,

Rule 404(b) of the Federal Rules of Evi-

dence is a particularized exception to the

general rule of 402 that all relevant evi-

dence is admissible.

It must also be borne in mind that the

first portion of Rule 404(b) is simply a codi-

fication of the traditional common-law position

that a person is to be triedonly for the crime

of which he is accused and not on the basis

of "bad character". (See United States v.

Harris, 3831 FPF. 2d 185 (4th Cir. 1964); Bedsole

v. State, 274 Ala. 603, 150 So. 2d 696 (1963);

State v. MeCorvey, 262 Minn. 361, 114 NW.W. 2d

703 (1962). For a full discussion of the

history and development of the common law

rule on the admissibility of evidence of

other crimes, see Stone, The Rule of Ex-

clusion of Similar Fact Evidence: America,

51 Harv. L. Rev. 988 (1938) [hereinafter

cited as Stone] and Slough & Knightly,

Other Vices, Other Crimes, 41 Iowa L. Rev.

325 (1956). Stough & Knightly is cited in

the Advisory Committee's Note to Rule»

404 (b). 56 F.R.D. 1838, 221 °(1972).)'

This position has developed strictly for

policy reasons. Although a defendant's

previous acts may have some probative value

in determining his guilt or innocence, the

10

fear is that introduction of such evidence

will so prejudice the jury against the

accused that a fair verdict will not be

possible. Yhe jury may convict a man be~-

cause he is "bad" and deserves to be

punished* or they may give too much weight

to the evidence and assume that because

the defendant committed a crime once, he

has committed one again.**

There may be circumstances where the

probative value does outweigh the possible

prejudice. The second sentence of Rule 404

(b) addresses itself to these situations:

*The Eighth Circuit, relying on the rule,

recently reversed the conviction of the

defendant in United States v. Bledsoe,

531 F. 2d 888 (8th Cir. 1976), because the

trial court had admitted evidence which

"told the jury in effect that the defendant

was a bad man." Id at 891. The court held

that evidence of most of the defendant's

criminal record and evidence that he smoked,

drank and was born out of wedlock had no

- bearing on whether he committed the crime

charged.

** Comment, Other Crimes Evidence at Trial:

Of Balancing and Other Matter, 70 Yale L.d.

763, 763-64 (1961). See also Michelson v.

United States, 335 U.S. 469, 475-76 (1948).

11

"It may, however, be admissible for other

purposes, such as proof of motive, oppor-

tunity, intent, preparation, plan, knowledge,

identity or absence of mistake or accident."

This list of exceptions to the general rule

against admission of previous acts follows

the views of Wigmore and other.*

Two distinct approaches to the list of

exceptions have developed - the inclusionary

and exclusionary approaches - and recent

interpretations of Rule 404(b) reflect them

both. As a result, the goals of uniformity

and greater certainty desired by the drafters

of the Federal Rules of Evidence are frus-

trated. **

*2 J. Wigmore, Evidence §306 (3d ed. 1940);

Spencer v. Texas, 385 U.S. 554, 560-61 (1967).

44 S. Rep. Wo. 1277, 93d Cong. 2d Sess. 8

(1974) U.S. Code Cong. & Ad. Newe 7051, 7054

stated:

"(T]he [Senate Judiciary Committee" is of the

view that there is a real need for a compre-

hensive code of evidence intended to govern

the admissibility of proof in all trials be-

fore the Federal courts ‘because of the lack

of univormity and clarity in the present law

of evidence on the Federal level....Rules

would provide uniformity, accessibility, in-

telligibility ania basis for reform and

growth.” See also H.R.Rep. Wo. 650, 93d Cong.

Ist Sess. (1973) reprinted in (1974) U.5. —

Code Cong. & Ad News 7075 [hereinafter cited

as House Report].

—_ ee a ee a _——

12

Professor Julius Stone distinguishes the

two approaches by the questions the judge

asks in determining admissibility. With the

inclusionary rule, the question is "[I]s this

evidence relevant otherwise than merely through

propensity?"*** Using the exclusionary rule

the judge asks, “Does this evidence fall with-

in any exception to the rule of exclusion?"****

We maintain that based upon the first part

of Rule 404(b) and the traditional common-law

rule that evidence of other crimes, wrongs and

acts should be excluded unless there is some

strong possibility that it falls within the

second clause's exceptions.

It should be noted further that in United

States v. Miller, 500 F. 2d 751, (Sth Cir. 1974),

rev'd. on other grounds, 425 U.S. 435, the

Court of Appeals recognized that the introduc-

tion of evidence of prior offenses violated

the "universal rule. - « that evidence of the

commission of a wholly separate and independent

***Stone, supra, at 1005

HHAAKT,

13

crime is not admissible as a part of the case

against the defendant.” (United States v.

Miller, supra, 500 F. 2d at 761; 2 €. Wright,

Federal Practice and Procedure, Criminal §

410, at 123).

While the Court in Miller recognized that

there was certain exceptions, nevertheless

the Court held that the “universal” rule has

been adhered to with great constancy. Thus,

the opinion states (id. at 761, 761):

"That analysis, however, fails to

take into account the constancy with

which this Court has adhered to the

view that the “universal rule” against

admitting evidence of other crimes is

. a just and wise rule, and that the

exceptions to that principle, each

of which has been carved out to serve

a limited prosecutorial and judicial

purpose, should not be permitted to

swallow the rule.* Pursuant to that

(As Dean McCormick warned, [i]f the judges,

trial and appellate, content themselves with

merely determining whether the particular

evidence of other crimes does or does not fit

in one of the approved classes, they may lose

sight of the underlying policy of protecting

the accused against unfair prejudice. The

policy may evaporate through the interstices

of the classification. C. McCormick, Evidence

§ 190, at 453 (2d ed. 1954).

14

view we have adopted a balancing

approach, most recently articulated

in United States v. Goodwin, 5 Cir.

1974, 492 F. 2d 1141, 1150.

Assuming, of course, that the evidence

of other crimes is clear and con-

vincing, we must balance the actual

need for that evidence in view of

the contested issues and the other

evidence available to the prosecu-

tion, and the strength of the evi-

dence in proving the issue, against

the danger that the jury will be in-

flamed by the evidence to decide that

because the accused was the perpe-

trator of the other crimes, he pro-

bably committed the crime for which

he is on trial as well. See also,

United States v. Lawrance, 5 Cir.

1973, 480 F. 2d 688,691-692 n. 6;

United States v. Johnson, & Cir. 1972,

453 FP. 2d 1195, 1199; United States

v. Boyd, 5 Cir. 1971, 446 F. 2d 1267,

1270-1271. The trial record re-

veals that virtually no consideration

was given to any of the crucial

elements in the balancing process -

the government's actual need for the

evidence, the probative value of the

evidence, or the potential prejudice

to the accused.”

See also, United States v. Baldarrama, 566

FP. 2d 560. (1978).

Proof of corpus delicti is not one of the

accepted purposes for use of evidence of other

crimes under the exclusionary approach. Yet,

under unusual circumstances a Court might

permit this. (United States v. Woods, 484

FP. 2d 127 (4th Cir. 1973).

15

We must bear in mind that like any other

relevant evidence, before "other crimes" under

Rule 404(b) can be admitted, the probative

value of the other crimes information still

must be weighed by the criteria of Rule 403,

which excludes unfair or confusing evidence.

Rule 403 is aimed explicitly at avoiding pre-

judice to the defendant. Thus, if the evi-

dence is being admitted only to demonstrate

propensity to commit the crime charged, then

it is clearly unfair.

In United States v. Curtis, 520 F. 2d 1300

(lst Cir. 1975), the Court held that the Trial

Judge should "assess both the probative value

of the proferred evidence . . . Fed. Rule

Evid. 404(b) and the danger of unfair pre-

judice to the defendants, Fed. Rule Evid. 403."

The difference in emphasis and approach is

illustrated by two earlier attempts at codifi-

cation of a rule for treating evidence of other

crimes. Model Code of Evidence Rute 311 (1942) |

(emphasis supplied) stated:

16

"fE]vidence that a person committed

a crime or a civil wrong on a speci-

fied occasion is inadmissible, as

tending to prove that he committed

a crime or civil wrong on another

occasion, tf, but only 7f, the evi-

dence is relevant solely as tending

to prove his disposition to commit

such a crime or civil wrong or to

commit crimes or civil wrongs gen-

erally.”

This rule emphasizes that evidence of other

crimes should be excluded when that evidence

is probative only of character.

In contract, Uniform Rules of Evidence 55

(1953) stated:

"(E]vidence that a person committed

a crime or civil wrong on a specified

occasion, is inadmissible to prove his

disposition to commit crime or civil

wrong...on another specified occasion,

but...such evidence is admissible

when relevant to prove some other

material fact including absence of

mistake or accident, motive, oppor-

tunity, intent, preparation, plan,

knowledge or identity."

This rule, by highlighting the one imper-

aleeibie purpose for introducing evidence of

other crimes and following it with the tra-

ditional list of proper purpose, has the

effect of testing the evidence to see if it

falls within the list rather than checking

to see if it is being used only to show a

EG ARE LE EE RE ee

17

criminal propensity. While the drafters of

Rule 55 may have intended "that the speci-

fications are only exemplary and not ex-

clusive" (comment to Rule 55), Slough &

Knightly, in comparing Rule 55 with Model

Code Rule 311, concluded that the uniform

rule hews more closely to the majority rule

favoring exclusion. Slough & Knightly,

supra, at 327 n. 7. Given a common law

precedent, the list of purposes for ad-

missibility are more likely to be viewed as

rigid exceptions rather than as suggested

elements to be used in the judge's analysis.

Rule 403 provides:

"Although relevant, evidence may be

excluded if its probative value is

substantially outweighed by the

danger of unfair prejudice, con-

fusion of the issues, or misleading

the jury, or by considerations of

undue delay, waste of time, or need-

less presentation of cumulative

evidence." —

520 F. 24 1300 (lst Cir. 1975)

Id at 1303. In Curtis the defendant

had been convicted of possession of a firearm

under the definition of a destructive device

in the National Firearms Act. The court

18

vacated the conviction, but remanded for re-

trial because the government had not been per-

mitted to show that the dynamite was a

destructive device under the Act.

In the case at bar, however, at the point

in time where evidence of other crimes was per-

mitted as against LOPEZ on the prosecution's

direct case, there was no nned or reason to

bring in these other acts or crimes, unlike

Curtis.

In both United States v. Jackson, 405 F.

Supp. 938, (E.D.W.Y., 1975), and United States

v. Dansker, 537 F. 2d 40, (3d Cir. 1976), the

Courts were careful to limit the impact of pre-

judicial evidence by excluding the introduction

of the commission of another crime.

We must bear in mind also that we are not

dealing here witha situation of attempted

impeachment of a witness on the stand by proof

of prior convictions, which is governed by

Rule 609 of the Federal Rules of Evidence. The

legislative history, however, of Rule 609 is

instructive since it does deal with the in-

19

troduction of other crimes. See United States

v. Jackson, supra, at 941, 942 wnerein Judge

Weinstein explained:

"In its present form, Rule 609 (a)

codifies a trend of federal cases

epitomized by Luck v. United States,

121 U.S. App. D.C. 151, 348 F. 2d

763 (1965), which recognized the

trial courts' obligation to exercise

discretion in excluding evidence of

convictions. See, e.g., United

States v. Johnson, 412 F. 2d 753, 756

(lst Cir. 1969), cert. denied, 397

U.S. 944, 90 S. Ct. 959, 25 L. Ed.

2d 124 (1970); United States v.

Palumbo, 401 F. 2d 270, 273 (2d Cir.

1968), cert. dented, 394 U.S. 947,

89 S. Ct. 1281, 22 L. Bd. 3d 480

(1969); Wounick v. Hysmith, 423 F.

2d 873, 875 (3d Cir. 1970); United

States v. Hidreth, 387 F. 2d 328,

329, (4th Cir. 1967); United States

v. Gloria, 494 F. 2d 477, 481 (5th

Cir. 1974); United States v. DtiVareo,

484 F. 2d 670, 677 (7th Cir.), cert.

denied, 415 U.S. 916, 94 S. Ct. 1412,

39 L. Ed. 2d 470 (1973); Seare v.

United States, 490 F. 2d. 150, 154

(8th Cir. 1974); United States v.

Villegas, 487 FP. 2d 882, 883 (9th

Ctr. 1973); Butler v. United States,

408 F. 2d 1103 (10th Cir. 1969). The

Luck doctrine also served as the

prototype for the early compromise

proposals of the House. See Hearings

Before the Spectalt Subcommittee on

Reform of Federal Criminal Laws of

the Committee on the Judiciary, House

of Representatives, 93rd Cong., 1st

Sess., on Proposed Rules of Evidence,

Serial No. 2, pp. 29+30, 231-232 (1973).

20

Application of the Rule.

It is apparent that, in its compromise

form, the Rule necessarily embodies

both the policy of encouraging defen-

dants:. to testify by protecting them

against unfair prejudice and the

policy of protecting the government's

case against unfair misrepresentation

of an accused's non-criminality. It

is incumbent upon the courts, in

administering Rule 609(a), to recon-

cile these competing goals to the

extent possible.

In order fully to effectuate the

policy of encouraging defendants to

testify, trial courts should rule on

the admissibility of prior crimes to

impeach as soon as possible after the

issue has been raised."

We also ask this Court to recognize that

at the time the evidence in the case at bar

was introduced, that is of other crimes, there

had been no testimony by the defendant, nor

any indication that the jury would be hood-

winked in any manner. The purpose and con-

struction of the Federal Rules of Evidence are

set forth in Rule 102, which requires that they

be administered and construed "to secure fair-

ness".

Rule 401, of course, also requires that

the evidence be "relevant".

21

As Judge Weinstein indicated in the Jackson

case, supra, when "the risk of inaccurate fact-

finding by the jury will be increased more by

the reception than by the exclusion" of evidence

of other crimes, the evidence should be ex-

cluded (United States v. Jackson, supra, at

945).

We ask the Court to take cognizance of the

fact that the collateral evidence of other

crimes and acts introduced by Davis against

LOPEZ was unjustified at the time and was

collateral to the main issues in the case.

The defendant had not testified, nor had he

offered evidence up to that point. This

denied him a. fair trial (5th Amendment).

In United Statés v. Clemons, 503 F. 2d

496 (1974) decided by the Court of Appeals

for the Eighth Circuit, a prosecution for

possession of heroin and conspiracy, evidence

which appeared to show and was offered to

show the commission of another similar

offense at a time subsequent to that for

which Clemons was charged in the case then

22

before the Court and unconnected with such case,

was received at the trial for the purpose of

showing the defendant's state of mind or intent

or knowledge and to show possible absence of

mistake or accident.

Addressing the question of admissibility

of such evidence, after noting tl:e general

rule excluding it by reason of its pre-

judicial impact the Court went on to discuss

the various exceptions thereto and stated

"...where there is a genuine issue as to

identity, motive, intent, preconceived plan,

entrapme@mt or absence of mistake or accident

evidence of other crimes may be admissible..."

Thereafter,with highly persuasive reason-

ing, the Court went on to set forth a series

of threshold conditions stating, "Before any

such evidence is admitted however it must be

shown that (1) an issue upon which other crime

evidence may be received is raised; ,(2) that

the proffered evidence is relevant to that

issue; (3) that the evidence is clear and

convincing; and (4) that the probative worth

outweighs the probable prejudicial impact."

23

Accordingly the last test wherein prejudicial

impact is weighed against probative worth

ought not to have been reached prior to a con-

sideration of the preceding factors.

However, in the case at bar, in the course

of deciding a defense motion (196-203) follow-

ing the testimony of Mr. Davis addressing it-

self among other things to the question of

admissibility of evidence of other collateral

crimes or acts under the circumstances wherein

such was received which could be construed

by the jury as criminal, the Court stated at

page 202:

",...-Now, as toyour other situation

as to the other crimes.

Now, under Rule 404(b), other crimes,

wrongs or acts or evidence of other

crimes, wrongs or acts is not ad-

missible to prove the character of a

person in order to show that he acted

in conformity therewith. It may,

however, be admissible for other pur-

poses such as proof of motive, oppor-

tunity, intent, preparation, plan,

knowledge, identity, or absence of

mistake or accident. And the Court

took it and received that testimony

in that fashion, and weighed the

possible prejudice. And after

having weighed the possible prejudice,

it was the Court's opinion that it

24

would be acceptable during the course

of this trial.

So your motion for a mistrial is

denied. ...."

Again in the course of a subsequent renewal

of the defense motion for a mistrial at the

conclusion of the Government's direct case by

reason of the admission of the testimony to

which the earlier motion referred the Court

again indicated that it had admitted the evi-

dence pursuant to Rule 404 (b) "....and

weighed the possible prejudice in connection

with this particular case and felt that that

was properly admissible in connection with the

trial of this case...." (402-409) and

accordingly denied the motion.

Clearly then, the evidence having been

offered for a purpose set forth in Rule 404

(b) the Court finding such to be the purpose

applied the sole test of prejudice weighed

against probative worth and resolved the issue

in its discretion against appellant.

But although the reasoning in Clemons supra

was not based upon constitutional considera-

25

tions, it is nevertheless fundamental that the

first three tests there enumerated to be con-

sidered and determined to have been met by the

prosecution prior to the fourth involving the

weighing of factors and the exercise of dis-

cretion, constitute the very threshold that

must be attained before constitutionality can

be ascribed to the admission of the evidence

for the purposes therein stated and of course

for the purposes for which such evidence was

offered in the case at bar. The absence of

the conditions precedent set forth in Clemons,

supra, from the provisions of Rule 404(b) supra

cannot alter the constitutional necessity for

their application prior to receipt of such

evidence.

In Clemons, supra, the rule was further

stated to be "Whether an issue has been raised

for purposes of receiving evidence of other

crimes depends upon both the elements of the

offense charged and the nature of the defense

presented.” Both factors are to be considered

and in doing so the Court stated that it being

26

"incumbent upon the Government to show that

the appellant possessed heroin knowingly and

wilfully with intent to distribute" and that

"the defense is cross-examination tried to

suggest that Clemons' part was due to in-

advertence and mistake", it further said "We

will assume therefore that knowledge and in-

tent, issues on which other crime evidence may

be admitted, were properly at issue," rever-

sing the judgment of the District Court and

remanding the case for a new trial for the

reasons that the “other crime evidence" ad-

mitted was not clear and convincing as re-

quired by step 3 of the tests stated therein

to be necessarily applied and that Clemons

was prejudiced by its introduction.

See United States v. Cohen, 489 F. 2d 9465

(2d Cir., 19738).

In pretrial, issues which were raised,

such as entrapment and the like, did not

justify the introduction of this evidence at

trial since Rule 12 of the Federal Rules of

Criminal Procedure permit the raising of such

27

issues in advance of trial.

Under the circumstances, the Court applied

the rule (404(b)) in an unconstitutional manner

and also deprived the Petitioner of a fair trial

POINT II

THE PETITIONER INCORPORATES BY

REFERENCE THE OTHER POINTS AD-

VANCED IN HIS BRIEF TO THE COURT

BELOW.

CONCLUSION

The petition for certiorari should

be granted.

Respectfully submitted,

IRVING ANOLIK

Attorney for Petitioner

28

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the Un*.ted States

Court of Appeals for the Second Circuit, held

at the United States Courthouse in the City

of New York, on the twenty-second day of

June one thousand nine hundred and seventy

eight.

Present: HON. J. EDWARD LUMBARD

HON. WALTER R. MANSFIELD

Circuit Judges

HON. JAMES S. HOLDEN

District Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

78-1123

VICTOR JAMES LOPEZ,

Defendant-Appellant

Appeal from the United States District

Court for the Eastern District of New York.

This cause came on to be heard on the

transcript of record from the United States

District Court for the Eastern District of

New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that

the Judgment of said District Court be and

it hereby is affirmed in accordance with the

Court's oral opinion in open court.

A.DANIEL FUSARO,

Clerk

by ARTHUR HELLER

Deputy Clerk

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