Petition for Writ of Certiorari — DeMartino v. United States

. Bupteme Court, U.%

92.922 _ FILED

= DEC - 9 1993

IN THE OFFICE OF THE CLERK

Supreme Court of the United States

Octoser TerRM, 1993

VINCENT DeMARTINO,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Jupp Burstein, P.C.

Attorneys for Petitioner

950 Third Avenue

New York, New York 10022

(212) 826-1200

On the Petition:

Jupp BursTEINn, Esq. *

Marc FErRnNIicu, Esq.

*Counsel of Record

Question Presented

Whether this Court should overrule United States v.

Gilliam, 994 F.2d 97 (2d Cir.), cert. denied, _ U.S. _, 114

S.Ct. 335 (1993), which prohibits a felon in possession of

a firearm defendant (18 U.S.C. § 922(g)(1)) from keeping

the fact of his prior conviction from the jury, and thereby

exposes the defendant to a tremendous risk of unfair

prejudice?

List of Parties

Petitioner was indicted and tried individually.

il

Table of Contents

Qubetion Pressed 2550425 64 ak eee

Lott GF PAVUOE kos one

OOpMOR DOM oe 63 es cee eee

MEMOE 3. Shc See 2

Constititional and Statutory Provisions .......... 2

Statement OF the Came 2 .ckc diese eee 2

Statement Of Fart 6. ik ss ck eee es 7

Reason for Granting The Writ ................ 1]

COCNRION oa as. on kc 1 eee 27

Appendix A -- Opinion of the United States

Court af AgpOME 2 .6345ca eee ee la

Appendix B -- Constitutional and Statutory

PIOVIMOMS 2. <5 ssndan ks tat eeee oe 6a

Table of Authorities

Cases:

Government of the Virgin Islands v. Toto,

$29 F.2d 278 (3d Cir. 1976) ..--- seer errr

Krulewitch v. United States, 336 U.S. 440,

GO SO. 716 (1989) 2. nee cccccesrsrsesereees

Michelson v. United States, 335 U.S. 469,

MI FES EIGOED cones cnc scnceeesecocssess

Nash v. United States, 54 F.2d 1006

(2d Cir.) cert. denied, 285 U.S. 556,

se ot, a aaa

United States v. Barfield, S27 F.2d 858

(Sth Cir. 1976) .....--sceecrrccsserssrereet®

United States v. Barker, | F.3d 957 (9th Cir.

HOUBY cc ccc cccc ccc secs ces cccccencces Ds

United States v. Birdsong, 982 F.2d 481

(11th Cir.), cert. denied, _ US. _,

113 S.Ct. 2984 (1993) ...-- eee erre esr erree® 5,

United States v. Brinklow, 560 F.2d 1003

(10th Cir. 1977), cert. denied, 434 U.S.

1047, 98 S.Ct. 893 (1978) ..---- eee errr 4,

United States v. Carter, 482 F.2d 738

RM RE, BOTS) ov vec ccs e sce sssceess 3. 20,

United States v. Collamore, 868 F.2d 24

ie Er. WOOD)... eee e nce esse ete’ i

20

20

1]

16

16

oe.

_—-—

iv

United States v. Cook, 538 F.2d 1000

Sia ee NE cas a aaa ee ew ieee a 11

United States v. DeSantis, 802 F.Supp.

Ce Es ES ok oe eee eee eer es ae Ke 7

United States v. Deutsch, 987 F.2d 878,

ee ey os ay ais a oe kk ok ee 22

United States v. Figueroa, 618 F.2d 934

Cn SNE a ea ne we ho ek 8 a 6, 16, 17, 20

United States v. Gill, 490 F.2d 233

(7th Cir. 1973), cert. denied, 417 U.S.

Se es Pee CRON rs 6 ae or ee Ske ee 4, 12, 24

United States v. Gilliam, 994 F.2d 97

(2d Cir.), cert. denied, _ U.S. _,

Ses Se I 6 5/6 a ak Sc ae ae ee es i, 3, 5-7,

11-13, 16, 18-22, 24-26

United States v. Jackson, 824 F.2d 21

(D.C. Cir. 1987), cert. denied, 484 U.S.

Deady See es FE EOD bas cu wecee bax 2, 6, 16, 18

United States v. James, 555 F.2d 992

Se Gs SEO ca eee eecee Rieke ee eee wen 11

United States v. James, 987 F.2d 648

Ce I oe er ey a ee 22

United States v. Orena, 811 F.Supp.

819 (E.D.N.Y. 1992) ...... 5-8, 11, 12, 17, 19, 22-24, 26

United States v. Phillips, 401 F.2d

Pe SE as aaa ka eeu kcsndeeea eee 11

Vv

United States v. Romero, 603 F.2d 640

2. 2 Ab... Seren are yaa rare 6, 11, 17

United States v. Spletzer, 535 F.2d 950

a ab wee ar ee a ee 6, 19, 24

United States v. Torres, 610 F.Supp. 1089

ute Oe Pere rere ree rr rrr rere re 5, 15

United States v. Williams, 612 F.2d 735

(3d Cir. 1979), cert. denied, 445 U.S. 934,

og ee SG Peery rere oo er ee 5, 15

Statutes and Rules:

RULES... eee l

18 U.S.C. § 922(g)(1) ....... i, 1-3, 7, 12, 13, 18, 24-26

BOSC 406 >. eee

Le Tae F<; Laan ep an peep PRP RGN I Gc a) ille 2

BULL CE: ... ee 2

RUSLIGNS...3 ee 2

Ped i OOO oon oe 2, 12, 17-19, 24

Fad 0 Gib QOD... c 65 ie se 2, 12

Sek, HOAUN nook nn cecicsisiairte ee 2

Cr Cee, Pe Yo a cae wiad eee eee 2

No:

IN THE

Supreme Court Of The United States

October Term, 1993

VINCENT DEMARTINO,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner Vincent DeMartino respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Second Circuit,

entered on October 13, 1993, affirming his conviction for

one count of being a convicted felon in possession of a

firearm (18 U.S.C. § 922(g)(1)).

Opinion Below

The unreported opinion of the Court of Appeals is

reprinted in Appendix A at pages la through Sa.

Jurisdiction

The judgment of the Court of Appeals for the

Second Circuit was entered on October 13, 1993. This

petition for a writ of certiorari timely followed within 90

days of that date. This Court has jurisdiction under 28

U.S.C. § 1254(1).

Constititional and Statutory Provisions

Pursuant to Rule 14.1(f) of this Court, the

provisions involved in this petition are set out verbatim in

Appendix B at 6a to 7a. The citations to those provisions

are:

U.S. CONST. AMEND. V

18 U.S.C. § 922(g)(1)

FED. R. EVID. 403, 404(b)

Jurisdiction in the Original Court

The District Court For the Eastern District of New

York (Korman, J.) had jurisdiction under 18 U.S.C. § 3231.

Statement of the Case

This petition raises one of the most perplexing and

troubling problems in criminal law today: the collision

between "[t]he inherently prejudicial nature" of a prior

felony conviction, United States v. Jackson, 824 F.2d 21, 25

(D.C. Cir. 1987) (Ruth Bader Ginsburg, J.), cert. denied,

484 U.S. 1013, 108 S.Ct. 715 (1988), and 18 U.S.C. §

922(g)(1), which, according to a recent Second Circuit

3

decision, now requires that the jury be told of the

defendant’s prior conviction. United States v. Gilliam,

supra. In this petition, we demonstrate that the Second

Circuit’s holding guarantees a "well-nigh inescapable"

inference of criminal propensity, United States v. Carter,

482 F.2d 738, 740 (D.C. Cir. 1973), and poses an

unacceptable threat to the presumption of innocence.

Accordingly, and because it is wrongly decided, Gilliam

should be overruled. In turn, this mandates reversal of

petitioner’s conviction.

In this remarkable case, the government and

petitioner stipulated prior to trial that petitioner had been

convicted of the one prior felony required by 18 U.S.C. §

922(g)(1). Thereafter, the trial judge, exercising his sound

discretion, found that, on the facts of this case, advising the

jury of this conviction would only add "another piece of ...

improper ... prejudicial evidence ... for them_to infer he

must be guilty because he was previously convicted of a

felony." (A: 36)' Accordingly, the judge ruled that the

jury (i) would not be told of the prior conviction; (ii)

would not be instructed on the prior conviction element of

the offense; and (iii) would not have the prior conviction

portion of the indictment read to it.

Instead, the court, previewing its proposed jury

charge, explained to the jury before opening statements

that

This case is here on an indictment

that charges that on or about the 16th day of

December, 1991, in the Eastern District of

New York, the defendant Vincent

De Martino knowingly and willfully possessed

' Numbers preceded by the letter "A:" refer to pages

of the joint appendix submitted to the Court of Appeals.

4

a firearm under circumstances’ which

Congress has chosen to criminalize.

As I told you during the process of

jury selection, it’s not disputed in this case

that those circumstances are present here.

And, so, the only issue you have to resolve

is the issue of whether the defendant, in fact,

possessed the firearm as alleged in the

indictment.

(A: 107)

In the court’s view, informed by its first-hand

knowledge of the evidence, this alternative minimized the

risk of the jurors assuming "that this is some sort of an

innocent possession.” (A: 34) At the same time, it

preserved, to the fullest degree possible, DeMartino’s right

to a trial free from unfair inferences of guilt. With the

prosecution’s interest thus protected, the court felt that no

legitimate purpose would be served by nonsensically

"read[ing] this portion of the indictment to the jury, and

then tell[ing] them they don’t have to worry about it

because it’s already been stipulated to." (A: 29) See

United States v. Gill, 490 F.2d 233, 238 (7th Cir. 1973), cert.

denied, 417 U.S. 968, 94 S.Ct. 3171 (1974) (defining

commerce element of Hobbs Act for jury would be "a

meaningless instruction" where defendant stipulated to that

element).

Subsequently, though, the Court of Appeals, in a

ruling of first impression for that Court, issued, without

explanation, a conditional writ of mandamus.

Notwithstanding the stipulation, the writ essentially

required Judge Korman to instruct the jury on all of the

elements of the offense, including the prior conviction

requirement. See also United States v. Brinklow, 560 F.2d

5

1003 (10th Cir. 1977), cert. denied, 434 U.S. 1047, 98 S.Ct.

893 (1978) (rejecting jury instruction that omitted prior

conviction element where defendant stipulated to that

element); United States v. Williams, 612 F.2d 735 (3d Cir.

1979), cert. denied, 445 U.S. 934, 100 S.Ct. 1328 (1980)

(fact of prior conviction could not be kept from jury

notwithstanding defendant’s stipulation); United States v.

Torres, 610 F.Supp. 1089, 1092 (D.C.N.Y. 1985) (refusing

to keep jury from "ever learning that such convictions exist

or that a conviction is an element of the offenses charged;"

court instructed instead that "an element of the offenses ...

is the presence of a prior felony conviction and that

defendant stipulates to that element") (footnote omitted).

Cf. United States v. Collamore, 868 F.2d 24 (1st Cir. 1989),

rehg denied (no bifurcation of possession and prior

conviction aspects of felon in possession case); United

States v. Birdsong, 982 F.2d 481 (11th Cir.), cert. denied,

_ US. _, 113 S.Ct. 2984 (1993) (same); United States v.

Barker, 1 F.3d 957 (9th Cir. 1993) (same).

In declining to "charge the jury voluntarily on the

elements of the offense" (A: 189), Judge Korman complied

with the mandate to the extent of instructing the jury about

both the prior conviction requirement and DeMartino’s

Stipulation.

Thereafter, Judge Jack B. Weinstein declined to

follow the Court of Appeals’ holding in United States v.

Orena, 811 F.Supp. 819, 820 (E.D.N.Y. 1992) (government

not “entitled to inform the jury ... that defendant is a

convicted felon even though defendant concedes that this

element need not be proved"). Then, prior to its

affirmance of DeMartino’s conviction, the Second Circuit

rejected Orena in deciding Gilliam. As detailed infra,

Gilliam essentially creates a per se rule that, even when the

defendant concedes his prior felon status, the jury must

always be instructed on all the elements of the offense,

and must always be told of the defendant’s concession.

6

On DeMartino’s direct appeal, we argued that his

conviction should be reversed because, among other

reasons, Gilliam was wrongly decided. However, the Court

of Appeals refused to reconsider Gilliam absent, inter alia,

a directive from a “higher authority." (Appendix A at Sa)

As we show below, Gilliam misunderstands and

seriously underestimates the fact that defendants are

prejudiced by a prior conviction even if it is an element of

the charged offense. See, e.g., United States v. Orena, supra,

811 F.Supp. at 822; United States v. Jackson, supra, 824

F.2d at 25; United States v. Daniels, 770 F.2d 1111, 1116,

1118 (D.C. Cir. 1985); United States v. Romero, 603 F.2d

640, 641 (7th Cir. 1979); United States v. Figueroa, 618 F.2d

934, 943 (2d Cir. 1980).

In addition, Gilliam rests upon the misguided

precept that a jury must have "full knowledge of the crime"

in order "to make a totally informed judgment." 994 F.2d

at 101, 102. As we proceed to show, this notion flies in the

face of the Federal Rules of Evidence, the very purpose of

which is to restrict the jury’s "knowledge of the crime" by

excluding prejudicial information such as hearsay.

Moreover, in making an unwarranted per se ruling,

the Gilliam court arrogated unto itself the sound discretion

of the trial court. Jpso facto, trial judges are in the best

position to determine whether there is genuine

"prosecutorial need" for the jury to know of the prior

conviction, United States v. Spletzer, 535 F.2d 950, 956 (Sth

Cir. 1976), or whether, as Judge Korman felt here, the

government is merely trying to "rub it in." (A: 192) See

United States v. Orena, supra, 811 F.Supp. at 827 ("Turning

as it does on subtleties of fact and the nuances of

courtroom atmospherics, prejudice is a matter for the

sensitive exercise of a district judge’s discretion").

"Unfortunately, a side consequence of the [felon in

possession of a weapon] law has been to provide federal

prosecutors with a powerful tool for circumventing the

7

traditional rule against introduction of other crimes

evidence." United States v. Daniels, supra, 770 F.2d at 1118.

Viewed in this light, Gilliam plainly represents a significant

and dangerous expansion of the potential for misuse.and

unfair prejudice. In a multi-couuat trial, for example,

Gilliam allows the prosecutor to infect the entire trial with

otherwise inadmissible other crimes evidence, even though

the § 922(g)(1) charge is often the least significant in the

indictment. See United States v. Orena, supra, 811 F.Supp.

at 823 (citing United States v. DeSantis, 802 F.Supp. 794

(E.D.N.Y. 1992)). This being so, Gilliam should not be

allowed to stand, and DeMartino’s conviction should be

reversed.

Statement of Facts

One would need to search long and hard for a case

with facts as simple as those here. Given the above

mentioned stipulation, DeMartino’s status as a felon was

not in dispute. Rather, the only issue was whether he had

actually possessed a gun, or whether the police had

"planted" it on him.

Patrick Maggiore, a New York City Detective, was

the government’s principal witness. Maggiore testified

that, on December 16, 1991, he and Detective Joseph

Simone had been assigned to follow DeMartino. (A: 133)

After temporarily abating their surveillance, the officers

relocated DeMartino’s car later that morning. (A: 135) A

few hours after that, Detective Maggiore observed

DeMartino backing through an intersection in Brooklyn.

(A: 136) Thereafter, DeMartino parked directly in front

of the officers’ car, which, in turn, was double parked next

to a 1977 gray Cadillac. (/d.)

At this time, the officers saw Gabe Scianna and

Michael Spataro attempting to open the Cadillac’s lock

8

with a coat hanger. (/d.) Then, according to Detective

Maggiore,

I backed my car up. And he

[DeMartino} proceeded to back his car up

and park directly behind the ’77 Cadillac. I

then pulled my car between the ’77 Cadillac

and Mr. DeMartino’s car. I exited the car.

I had the shield in my hand, approached Mr.

DeMartino and asked him to turn around

and put his hand on the roof of the car,

which he did.

I walked over to him and asked him,

Vinny, do you have anything on you? And

he said, yes, I have a gun in my waistband,

which I pulled out and notified my partner

that I recovered a gun.

(A: 137)

This was the heart of the government’s case. In

addition, however, the following significant additional

proof was adduced:

a. F.B.I. Agent Lindley De Vecchio was

permitted to give expert testimony that, on

December 16, 1991, "there was a conflict

within a certain criminal gang," that there

were two rival factions, and that "people

from one faction were shooting at people

from the other faction and vice versa." (A:

126)”

2

Agent De Vecchio was referring, in a sanitized

form, to the "Colombo Family" war discussed in United

States v. Orena, 986 F.2d 628, 629 (2d Cir. 1993).

b. De Vecchio also testified that Scianna and

Spataro "were associated in the same faction

within that criminal gang." (A: 127)

However, absolutely no proof was adduced

that DeMartino was part of the "gang."

Rather, all that the government could

proffer was DeMartino’s address book (A:

143), which contained Spataro’s and

Scianna’s names. (See A: 297)

c. Over defense objection (A: 96-97), the

government was permitted to introduce two

guns seized from Scianna and Spataro, as

well as a ski mask taken from the ’77

Cadillac. (A: 143-44)?

In response to this proof, the defense contended

that the officers had "planted" the gun on DeMartino. In

support of this claim, counsel proffered the following

arguments:

a. The police officers were following

DeMartino, and had the opportunity to plant

the gun.

b. When he testified in the grand jury,

Detective Maggiore did not claim that

DeMartino had admitted to possessing a

gun. (A: 168)

é. Although there was car traffic and "people

[were] walking up and down the street" (A:

. Maggiore testified that the Cadillac belonged to

Spataro’s wife. (A: 143-44)

10

148) at the arrest location, the officers made

no effort to secure civilian witnesses. (A:

156)

d. There was no effort to obtain fingerprint

evidence. (A: 160)

é. There was no effort to ascertain to whom

the gun was registered, even though it had a

registration number. (A: 155)

f. It was inherently unlikely that DeMartino,

while carrying a gun during a supposed gang

war, would have backed through an

intersection and exposed himself to a police

stop.

Finally, the cross-examination of Detective Joseph

Simone revealed that he had previously supplied a false

affidavit’ stating that he had personally observed

DeMartino in possession of the gun. (A: 266) The defense

contended that this act of perjury demonstrated the

officers’ willingness falsely to accuse De Martino.

In sum, then, this short trial, spanning just some 300

pages of transcript (much of it colloquy), yielded a very

close case on the issue of possession. In order to convict

* Simone had provided the affidavit in connection

with the initial New York State arraignment of De Martino.

(A: 264) Subsequently, DeMartino was prosecuted

federally.

5

Simone claimed that "I didn’t realize I [had] sworn

falsely." (A: 266) However, the proof also revealed that he

had reviewed the sworn statement both at the time he

signed it and prior to trial. (A: 268-70)

1]

petitioner, the jury had to believe the officers’

uncorroborated testimony. Yet, there were ample grounds

for the jury to conclude that these officers were unworthy

of belief. This being so, the error we discuss below cannot

be dismissed as harmless.

REASON FOR GRANTING THE WRIT

This Court Should Overrule United States v. Gilliam

A. INTRODUCTION

It is well-established that other crimes evidence

presents a special risk of prejudice to criminal defendants.

In fact, many courts have recognized that "[e]vidence of a

prior crime is always ... prejudicial to a defendant. It

diverts the attention of the jury from the question of the

defendant’s responsibility for the crime charged to the

improper issue of his bad character." United States v.

Daniels, supra, 770 F.2d at 1116 [((quoting United States v.

James, 555 F.2d 992, 1000 (D.C. Cir. 1977)) (quoting United

States v. Phillips, 401 F.2d 301, 305 (7th Cir. 1968))].

Other crimes evidence is frowned upon because it

is human nature to infer from it that the defendant is a

"bad man," United States v. Romero, supra, 603 F.2d at 641

(quoting United States v. Barfield, 527 F.2d 858, 861 (Sth

Cir. 1976)), with "a propensity toward criminal acts,"

United States v. Orena, supra, 811 F.Supp. at 822. As one

court said, "[t]o tell a jury to ignore the defendant’s

convictions in determining whether he or she committed

the offense being tried is to ask human beings to act with

a measure of dispassion and exactitude well beyond mortal

capacities." United States v. Daniels, supra, 770 F.2d at

1118.

However, such inferences of "guilt by reputation,"

United States v. Cook, 538 F.2d 1000, 1004 (D.C. Cir.

12

1976), offend our "fundamental sense that no one should

be convicted of a crime based on his or her previous

misdeeds," United States v. Daniels, supra, 770 F.2d at 1116

(citing Michelson v. United States, 335 U.S. 469, 475-76, 69

S.Ct. 213, 218-19 (1948) (other citations omitted)).

Consequently, the law has erected formidable barriers to

the admission of other crimes evidence. See, e.g., Fed. R.

Evid. 403, 404(b) (evidence of other crimes "not admissible

to prove the character of a person in order to show that he

acted in conformity therewith").

In this PETITION, we demonstrate that the Second

Circuit’s decision in United States v. Gilliam, supra,

represents a radical departure from these principles. In

essence, Gilliam allows other crimes evidence to come

crashing through the barriers whenever the prosecutor

chooses to tack a § 922(g)(1) charge onto the indictment

-- even when the defendant concedes he is a convicted felon.

In such circumstances, as Judge Korman recognized at the

trial of this case, "read[ing] this portion of the indictment

to the jury, and then tell[ing] them they don’t have to

worry about it because it’s already been stipulated to" (A:

29), is "a meaningless instruction." United States v. Gill,

supra, 490 F.2d at 238. Moreover, it leads inexorably to

the inference that the defendant "must be guilty because

he was previously convicted of a felony" (A: 36) -- the very

inference which the laws "carefully constructed

protections," United States v. Orena, supra, 811 F.Supp. at

827, are designed to prevent. Rarely has there been a

more misguided result.

B. THE G/JLLIAM DECISION

The facts in Gilliam are virtually identical to those

in this case. There, as here, the defendant and the

government stipulated "that the weapon in question had

travelled in interstate commerce, and that Gilliam had

13

previously been convicted of a felony punishable by

imprisonment for more than one year." 994 F.2d at 98.

Thereafter, and also as in this case, Gilliam proposed, and

the government rejected, a stipulation to concede the prior

conviction element "and thereby keep the fact of his prior

conviction from the jury." /d. Unlike Judge Korman here,

however, Gilliam’s trial judge refused to require the

government to accept the second stipulation.® Jd.

On appeal, the Second Circuit rejected Gilliam’s

argument that the trial court should have accepted his

proposed stipulation. In so ruling, the Court first stated

that “[w]here the prior conviction is essential to proving

the crime, it is by definition not prejudicial." 994 F.2d at

100. Accord, United States v. Barker, supra, 1 F.3d at 959,

n.3 ("A prior conviction is not prejudicial when it is an

element of the charged crime").

Then, backing off this sweeping assertion, the Court

acknowledged that

It is true, though, that the fact of a

prior conviction may have an additional and

adverse impact upon the § 922(g)(1)

defendant, if the jury is unduly influenced by

the prior conviction. But where the district

court issues a proper curative instruction, we

must presume that a conscientious jury will

only use the proof of the prior conviction to

satisfy the element of the crime.

° Tellingly, neither DeMartino’s nor Gilliam’s

prosecutors objected to keeping the interstate commerce

requirement from the jury. In DeMartino’s case, this led

Judge Korman to question the prosecutors’ motives for

vehemently insisting that the jury be told of the prior

conviction. (A: 44)

aaa ii

14

Id. (citations omitted)

Next follows the heart of the Court’s opinion:

Gilliam nevertheless argues that there

is no harm done if he concedes the prior

conviction element and proceeds to trial

merely on the possession issue. He points

out that in such a situation, an ounce of

prevention is worth a pound of cure: there

would be no need for a curative instruction,

because the potential for prejudice would be

prevented. But there is harm done by his

proposal, harm to the judicial process and

the role of the jury in determining the guilt

or innocence of the crime as charged.

Gilliam’s proposal violates the very

foundation of the jury system. It removes

from the jury’s consideration an element of

the crime, leaving the jury in a position only

to make findings of fact on a particular

element without knowing the true import of

those findings. Again, Gilliam is not

charged with mere possession of a weapon,

but with possession by a convicted felon.

The jury speaks for the community in

condemning such behavior, and it cannot

condemn such behavior if it is unaware of

the nature of the crime charged.

Gilliam misunderstands the role of

the jury in a criminal trial. Our constitution

guarantees the accused the right of a trial by

a jury of his peers, primarily in order to

ensure that the accused is judged by

prevailing community mores.... As

representatives of the people, the jurors can

15

rebuke the accused for violation of

community standards, morals, or principles....

The jury is the oracle of the citizenry in

weighing the culpability of the accused, and

should it find him guilty it condemns him

with ihe full legal and moral authority of the

society. The public listens with rapt

attention to the jury’s pronouncement of

guilt or innocence, for in that singular

moment the convictions and conscience of

the entire community are expressed.

it is unnecessary to engage in an

extensive dialogue on jury nullification or to

summarize the Founding Fathers’ belief in

the right of the jury to say “no...." Without

full knowledge of the nature of the crime,

the jury cannot speak for the people or exert

their authority. If an element of the crime

is conceded and stripped away from the

jury’s consideration, the jurors become no

more than factfinders. The jury must know

why it is convicting or acquitting the

defendant, because that is simply how our

judicial system is designed to work.

994 F.2d at 101 (citations omitted).

Finally, the Court, quoting United States v.

Collamore, supra, 868 F.2d at 28, worried that "when a jury

is neither read the statute setting forth the crime nor told

of all the elements of the crime, it may, justifiably,

question whether what the accused did was a crime." 994

F.2d at 102. Accord, United States v. Williams, supra;

United States v. Torres, supra; United States v. Barker, supra;

16

United States v. Birdsong, supra; United States v. Brinklow,

supra.

In essence, then, the Court’s opinion resolves into

three propositions. First, the Court contends that proof of

an element of the offense is inherently non-prejudicial,

and, in any event, any ancillary prejudice can be cured by

a limiting instruction. Second, the Court claims that the

jury must "make a totally informed judgment," 994 F.2d at

102, in order to carry out its function as "oracle of the

citizenry," /d. at 101. Finally, third, the Court fears that, if

the jury is not totally informed, it may wrongly acquit the

defendant. As we proceed to demonstrate, each of these

arguments is seriously flawed.

oe GILLIAM IS WRONGLY DECIDED

In the first instance, the Gilliam Court

misunderstands and grossly underestimates the special risk

of prejudice posed by other crimes evidence. Indeed, the

Court’s position contravenes the overwhelming weight of

authority holding that such evidence is “inherently

prejudicial." United States v. Jackson, supra, 824 F.2d at 25

(Ruth Bader Ginsburg, J.). See supra at 1, 11 and

authorities cited. In fact, Gilliam jettisons the Second

Circuit’s own definition of prejudice. In United States v.

Figueroa, supra, Judge Jon O. Newman, now Chief Judge

of the Second Circuit, explained that evidence is

prejudicial

when it tends to have some adverse effect

upon a defendant beyond tending to prove the

fact or issue that justified its admission into

evidence.... The 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

—————————

17

defendant. A prior conviction is material to

a defendant’s intent (when intent is in issue),

but it is also prejudicial to the extent that it

also tends to prove a defendant’s propensity to

commit crimes. When material evidence has

an additional prejudicial effect, 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 substantially

outweighed by the prejudicial tendency of

the evidence to have some other adverse

effect upon the defendant.

618 F.2d at 943 (emphasis supplied).

Hence, other crimes evidence does not lose its

prejudicial character merely because, as here, it may also

be "material" to proving an element of the crime. This is

so because, beyond establishing the statute’s prior

conviction requirement, such evidence also has an

additional "adverse effect." Specifically, the prior

conviction also improperly suggests that the defendant

must have possessed the firearm because he is a "bad

man," United States v. Romero, supra, with a "propensity to

commit crimes," United States v. Figueroa, supra.

Judge Weinstein confirmed that this is so in United

States v. Orena, supra:

The government’s proof of certain

elements of crimes sometimes will include

evidence, usually prior crimes or bad acts

committed by the defendant, with potentially

prejudicial impact. Such evidence, while

relevant to elements the government must

establish, poses the risk that the jury unfairly

18

will conclude that the defendant has a

propensity toward criminal acts.

811 F.Supp. at 822.

Similarly, then Circuit Judge and now Justice

Ginsburg, discussing the precursor statute to § 922(g)(1),

has discerned

A strong policy of avoiding the

introduction of this potentially prejudicial!

evidence in criminal trials ... in both

congressional reluctance to make a prior

criminal conviction an element of a criminal

offense and the manner in which recidivist

or "habitual offender" statutes are often

drafted to insure that this evidence is kept

from the jury’s view.

United States v. Jackson, supra, 824 F.2d at 25 (footnote

omitted).

Thus, the Gilliam Court is simply wrong when it

asserts that "where the prior conviction is an element of

the crime, it is by definition not prejudicial." Indeed,

Judge Walker, concurring in Gilliam, rebuked this position:

Because the stipulation with respect

to Gilliam’s felony conviction satisfied the

prior conviction element of the charged 18

U.S.C. § 922(g)(1) offense, the majority

States that "it [was] by definition not

prejudicial” within the meaning of

Fed.R.Evid. 403. Majority Opinion at 101.

I disagree. I think it is undeniable that the

Stipulation posed a risk of unfair prejudice

,_ ee

19

to defendant Gilliam... [O]therwise

admissible evidence always poses a risk of

unfair prejudice if it has "an undue tendency

to suggest decision on an improper basis,

commonly, though not necessarily, an

emotional one." Fed.R.Evid. 403, advisory

committe note; see United States v. Deutsch,

987 F.2d 878, 884 (2d Cir. 1993).

United States v. Gilliam, supra, 994 F.2d at 104 (Walker, J.,

concurring).

Hence, the real question in Gilliam, and in this

case, was not whether the stipulation was prejudicial, but

whether it should be admitted notwithstanding its

prejudicial character. This is a classic Rule 403 balancing

question, best reserved for the sound discretion of the trial

judge. See United States v. Orena, supra, 811 F.Supp. at

827 ("Turning as it does on subtleties of fact and the

nuances of courtroom atmospherics, prejudice is a matter

for the sensitive exercise of a district judge’s discretion").

In this case, Judge Korman carefully assessed the

quantum of the evidence, and concluded that there was no

genuine "prosecutorial need" for the jury to know about

the stipulation. United States v. Spletzer, supra, 535 F.2d at

956. On the other hand, he concluded that telling the jury

about the stipulation would only serve to "rub ... in" (A:

192), the wholly illicit inference that defendant "must be

guilty because he was previously convicted of a felony."

(A: 36) Ordinarily, such determinations, interwoven as

they are with "subtleties of fact and the nuances of

courtroom atmospherics,” United States v. Orena, supra, are

reviewed for an abuse of discretion. Yet, both here and in

Gilliam, the Second Circuit, from a cold appellate record,

substituted its own discretion for that of the trial judge.

This is a very disturbing precedent.

20

The Gilliam Court also claims that any ancillary

prejudice flowing to a defendant from the prior conviction

can be cured by a limiting instruction. 994 F.2d at 100.

We respectfully submit that this is pure fiction. It is

generally true that, "[w]hatever the criticism of such

instructions, they remain an accepted part of our present

trial system." United States v. Figueroa, supra, 618 F.2d at

943 (footnote omitted). However, the great bulk of courts

are not nearly so sanguine concerning the

efficacy of jury instructions in curing the

prejudiced caused by the introduction of

other crimes evidence.... In such cases, it

becomes particularly unrealistic to expect

effective execution of the "mental gymnastic"

required by limiting instructions, Nash v.

United States, 54 F.2d 1006, 1007 (2d Cir.)

(Learned Hand, J.), cert. denied, 285 U.S.

556, 52 S.Ct. 457 ... (1932), and "the naive

assumption that prejudicial effects can be

overcome by instructions to jury" becomes

more clearly than ever "unmitigated fiction,"

Krulewitch v. United States, 336 U.S. 440,

453, 69 S.Ct. 716, 723 ... (1949) (Jackson, J.,

concurring). As the Third Circuit has

observed, once evidence of prior crimes

reaches the jury, “it is most difficult, if not

impossible, to assume continued integrity of

the presumption of innocence. A drop of

ink cannot be removed from a glass of milk."

Government of the Virgin Islands v. Toto, 529

F.2d 278, 283 (3d Cir. 1976); accord; United

States v. Carter, [supra,] 482 F.2d [at] 740...

United States v. Daniels, supra, 770 F.2d at 1118.

21

As for Gilliam’s contention that the jury must have

"full knowledge of the nature of the crime," 994 F.2d at

101, it flies in the face of our entire trial system. In a very

real sense, the Rules of Evidence are structured to prevent

the jury from having "full knowledge of the nature of the

crime." It is for this reason, among others, that unreliable

and prejudicial information such as hearsay is deemed

inadmissible. Often, such information speaks more

eloquently about the true nature of the offense than the

admissible proof. Yet, despite the relevance of, e.g.,

hearsay, it is withheld from the jury’s consideration, inter

alia, because its potential for prejudice outweighs its truth-

promoting value. Indeed, in this very case, the jury was

not advised that the supposed "gang war" at issue involved

the alleged "Colombo Organized Crime Family." Supra at

n.2. While arguably relevant to the gun possession issue,

this "fact," it was feared, would indelibly color the jury’s

view of DeMartino. These same concerns apply to other

crimes evidence -- especially where the defendant concedes

his pnor conviction.

More fundamentally, though, the Gilliam holding

misconceives the proper role of the jury. Simply put, the

jury’s primary function is to find facts, and apply the law as

instructed by the trial judge. Contrary to the Court’s

assertion, its primary function is mot to serve as the arbiter

of community morality. This is so because “community

morality" is not as monolithic as the Court makes it out to

be. Rather, it is as diverse as each of our own ethical

codes. The law represents the closest possible

approximation of a moral consensus. By contrast, no

criminal defendant should be judged by someone else’s

moral idiosyncracies. This is precisely why jurors are

supposed to apply the governing law, regardless of whether

or not they like it.

Taken to its extreme, then, the Gilliam opinion is

an argument for jury nullification as the rule, rather than

22

the exception. Our legal system cannot function, and the

rule of law cannot be enforced, on this basis.

Moreover, Gilliam posits that "the jury must be

informed of all the elements of the crime charged,” 994

F.2d at 102, in order to "find the defendant guilty of the

offense at issue beyond a reasonable doubt," Jd. at 101.

Plainly, the right to proof of every element beyond a

reasonable doubt primarily protects the defendant, not the

government. 994 F.2d at 101-02. See, eg. Francis v.

Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970 (1985)

(Due Process Clause prohibits jury instructions that

"reliev[e] the State of its burden of persuasion beyond a

reasonable doubt of every essential element of a crime").

"A stipulation represents a defendant’s waiver of that

right." United States v. James, 987 F.2d 648, 655 (9th Cir.

1993) (Alarcon, J., dissenting) (quoting United States v.

Orena, supra, 811 F.Supp. at 824). Indeed, such a waiver

actually serves to lighten the government’s evidentiary

burden. Thus, in manipulating to the government’s benefit

the defendant’s right to put the government to its proof,

the Court has turned this right on its ear.

Finally, Gilliam, echoing United States v. Collamore,

supra, speculates that "when a jury is neither read the

Statue setting forth the crime nor told of all the elements

of the crime, it may, justifiably, question whether what the

accused did really was a crime." 994 F.2d at 102 (quoting

United States v. Collamore, supra, 868 F.2d at 28). This

concern is unfounded. In this case, for example, Judge

Korman found that the danger of the jury assuming "some

sort of innocent possession" (A: 34), could be alleviated by

charging the jury that 7

[t]his case is here on an indictment

that charges that on or about the 16th day of

December, 1991, in the Eastern District of

New York, the defendant Vincent

23

De Martino knowingly and willfully possessed

a firearm under circumstances which

Congress has chosen to criminalize.

As I told you during the process of

jury selection, it’s not disputed in this case

that those circumstances are present here.

And, so, the only issue you have to resolve

is the issue of whether the defendant, in fact,

possessed the firearm as alleged in the

indictment.

(A: 107)

Similarly, in United States v. Orena, supra, Judge

Weinstein held that

Adaptation of the court’s instructions

to the jury provides another means of

avoiding prejudice. When the defendant

stipulates that he is a convicted felon and so

requests, the court may instruct the jury that

the law deems possession of a firearm illegal

in certain circumstances and that the parties

have agreed that such circumstances exist.

The jury should be told, as always, of its

duty to apply the law as instructed, and that

it need not concern itself with why

possession was illegal in the case at hand.

+ © a

Potential unfairness to the

government due to the possibility of jury

nullification can be foreclosed. A proper

charge directs the jury that it is obligated to

apply the law, as explained to it by the court,

24

fairly and impartially to the facts as it finds

them. The government is entitled to no less

and no more.

811 F.Supp. at 823, 825.

As the Gilliam Court vigorously insists, jurors are

presumed to follow such instructions. 994 F.2d at 100 and

authorities cited. Hence, any contrary action by the jury

could only be attributable to jury nullification -- a

prerogative which the Gilliam Court passionately defends.

In addition to its logical failings, Gilliam fails to

consider the dangerous ramifications of its per se ruling.

First, as already noted, Gilliam reduces the "carefully

constructed protections" against other crimes evidence to

"a futile barricade." United States v. Orena, supra, 811

F.Supp. at 827. It does this by guaranteeing the admission

of otherwise inadmissible other crimes evidence, even

where the defendant concedes his prior conviction. Second,

Gilliam gives prosecutors an incentive to include a §

922(g)(1) charge in a multi-count indictment, if only to

insure that the other crimes evidence goes before the jury.

Third, in a multi-count trial, Gilliam "threatens to infect the

entirety of the jury’s determination" with unfair prejudice

stemming from the § 922(g)(1) count, usually the least

significant in the indictment. United States v. Orena, supra,

811 F.Supp. at 823. Fourth, and finally, Gilliam usurps the

trial court’s Rule 403 discretion to weigh the "prosecutorial

need," United States v. Spletzer, supra, 535 F.2d at 956, for

a "meaningless instruction," United States v. Gill, supra, 490

F.2d at 238, against that instruction’s§ "“well-nigh

inescapable" burden on the presumption of innocence,

United States v. Carter, supra, 482 F.2d at 740.

A decision which considers all of these

ramifications, and reaches the opposite conclusion, is

United States v. Orena, supra. There, on _ facts

25

indistinguishable from those in this case or in Gilliam,

Judge Weinstein held that the government was not

“entitled to inform the jury as an element of an offense

that defendant is a convicted felon even though defendant

concedes that this element need not be proved." 811

F.Supp. at 820. Before reviewing the traditional

protections against other crimes evidence, id. at 826, the

Court observed that

[a] stipulation alone may _ not

adequately address problems of prejudice.

In prosecutions involving statutes that

contain a status element, here a felony

conviction, 18 U.S.C. § 922(g)(1), a

defendant is placed in the difficult position

of not being able to avoid the risk of

prejudice through the device of a stipulation

as to an evidentiary fact. Such a stipulation

loses much of its value in avoiding potential

prejudice. Even complete concession of the

fact of the conviction does not keep from

the jury the fact that the defendant is a

convicted felon... A defendant’s careful

efforts to preserve his presumption of

innocence, including his decision not to

testify and subject himself to cross-

examination about his past, can be

circumvented by the simple mention in the

language of a statute of a prior conviction.

811 F.Supp. at 823.

With this premise in mind, the court went on to

hold:

q vs

26

These carefully constructed

protections would amount to a futile

barricade, a Maginot Line easily swept

around, were the jury to learn from the

court’s charge -- after having been

assiduously kept in the dark throughout the

presentation of the evidence -- that the

defendant is a convicted feion. For reasons

of both sound statutory interpretation and

constitutional policy, a defendant who is

willing to stipulate to the felony-conviction

element of the crime is, in circumstances

where prejudice far outweighs probative

value, entitled to an instruction that ensures

that the jury will not learn of his criminal

record.

811 F.Supp. at 827.’

For all of the foregoing reasons, we submit that

Orena, along with Judge Korman’s rulings at DeMartino’s

trial, offer the better approach to preserving the

presumption of innocence in a § 922(g)(1) case.

Accordingly, we ask this Court to overrule Gilliam, and

reverse DeMartino’s conviction.

’ The Gilliam Court found Orena unpersuasive

because it ostensibly "eliminates an element of a crime

legislated by Congress." 994 F.2d at 102. See United States

v. Williams, supra, 612 F.2d at 740. In actuality, though,

Orena does not eliminate any element of the crime, but

merely allows the defendant to concede it. In turn, this

lightens the government’s evidentiary burden. Hence,

Orena furthers, not frustrates, Congressional intent.

Conclusion

This petition for a writ of certiorari should be

granted.

On the Petition

Judd Burstein, Esq.

Marc Fernich, Esq.

Respectfully submitted,

JUDD BURSTEIN, P.C.

Attorneys for Petitioner

950 Third Avenue

New York, New York 10022

(212) 826-1200

Ae Sale ailkide as Pig EP

osx

i. ant

la

Appendix A

Opinion of the United States Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse in the City of New York, on the 13th day of

October, one thousand nine hundred and ninety-three.

PRESENT:

HON. LAWRENCE W. PIERCE,

HON. ROGER J. MINER,

HON. FRANK X. ALTIMARI,

Circuit Judges.

Docket No. 93-1320

UNITED STATES OF AMERICA,

Appellee,

V.

VINCENT DeMARTINO,

Defendant-A ppellant.

UPON CONSIDERATION of this appeal from a

judgment of the United States District Court for the

Eastern District of New York, it is hereby

2a

Appendix A

Opinion of the United States Court of Appeals

ORDERED, ADJUDGED, AND DECREED that

the judgment of said District Court be and it hereby is

affirmed.

Defendant-appellant Vincent DeMartino appeals

from judgment entered on April 27, 1993 in the United

States District Court for the Eastern District of New York

(Korman, J.), after a jury trial, convicting him of being an

ex-felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1).

DeMartino was under police surveillance because

of his suspected involvement in the internal war that began

in-1991 within the Colombo Family of La Cosa Nostra.

On December 16, 1991, Detectives Patrick Maggiore and

Joseph Simone were assigned to surveil DeMartino. They

observed DeMartino illegally back his car through an

intersection and double park next to a 1977 Cadillac where

Gabriel Scianna and Michael Spataro, known members of

the same faction of the Colombo crime family, were

standing. Maggiore observed that Scianna and Spataro

were attempting to break into the Cadillac with a wire

hanger.

Maggiore then arrested DeMartino for the traffic

violation and proceeded to search him. The search

revealed a loaded 9mm pistol in DeMartino’s waistband.

Scianna and Spataro were also searched and each was

found to be carrying a 9mm pistol. A ski mask was found

in the 1977 Cadillac.

DeMartino contends that the District Court erred

in admitting the weapons seized from Scianna and Spataro

3a

Appendix A

Opinion of the United States Court of Appeals

and the ski mask seized from the Cadillac because this

evidence (1) was not relevant and (2) any relevance it had

was "vastly outweighed" by the danger that the jury would

convict based on guilt by association.

Relevant evidence is evidence that has "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." Fed. R. Evid. 401. Relevant evidence may be

excluded "if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues,

or misleading the jury." Fed. R. Evid. 403. A district court

has broad discretion in making evidentiary rulings, see

Unitec States v. Schafrick, 871 F.2d 300, 305 (2d Cir.

1989), and this Court will not disturb an evidentiary ruling

“unless the judge acted arbitrarily or irrationally." United

States v, Blanco, 861 F.2d 773, 781 (2d Cir. 1988), cert,

denied, 489 U.S. 1019 (1989).

We find that the District Court acted within its

discretion in admitting the guns and ski mask. First of all,

the evidence was relevant. The jury had sufficient

evidence that DeMartino was associated with Scianna and

Spataro and could conclude that they were all armed and

engaged together in criminal activity. Particularly, the jury

could infer, based on the expert testimony regarding

Scianna’s and Spataro’s involvement in the war between

the Colombo family factions, that DeMartino was involved

in this war along with the other two.

The evidence of the guns was also relevant to rebut

DeMartino’s defense that the gun was planted on him.

4a

Appendix A

Opinion of the United States Court of Appeals

The fact that the guns seized from all three men were

similar 9mm pistols negates the likelihood that the gun was

planted on DeMartino. Put in perspective, DeMartino’s

defense becomes less plausible: the inference is either that

the agents coincidentally planted a similar gun on

DeMartino or planted similar guns on all three -- both

unlikely scenarios.

Finally, the probative value of this evidence was not

substantially outweighed by unfair prejudice so as to justify

its exclusion under Fed. R. Evid. 403. DeMartino’s

contention on this point is that the evidence could only be

used to infer guilt by association. The District Court

explicitly instructed the jury that mere association with

criminals did not establish the defendant’s guilt. The jury

is presumed to have followed these instructions. See

Zafiro v. United States, 113 S. Ct. 933, 939 (1993);

Richardson v. Marsh, 481 U.S. 200, 211 (1987). We

believe that the limiting instruction was sufficient to

eliminate any undue prejudice to DeMartino.

DeMartino next contends that the District Court

erred in refusing to admit the testimony of two bystanders

who witnessed the scene of DeMartino’s arrest and claim

they saw police officers assault an innocent bystander.

DeMartino offered the evidence to show a possible motive

that the arresting officers might have had to plant the gun

on him.

We find that the District Court did not abuse its

discretion in excluding this testimony based on its lack of

relevancy and on the likelihood that a "trial within a trial"

would result. Under Fed. R. Evid. 404(b), which governs

Sa

Appendix A

Opinion of the United States Court of Appeals

the admissibility of prior crimes, wrongs or acts, evidence

of this assault may be admissible if it were relevant to the

intent of the agents to plant the gun on DeMartino. Here,

the relevance of the testimony was marginal at best. As

the District Court noted, it would be a little more

reasonable to suspect that the police would plant a weapon

on the person they assaulted, but it simply does not follow

that the police would assault one person, then frame

another to cover themselves. Even if there was some

marginal relevancy, the District Court properly excluded

the evidence. Any relevancy was substantially outweighed

by the likelihood of "confusion of the issues, or misleading

the jury" and by "considerations of undue delay," Fed. R.

Evid. 403, created by the "trial within a trial" that would

have been required to resolve the assault issue. See

v. Aboum llem, 726 F.2d 906, 911-12

(2d Cir. 1984)

Finally, we decline DeMartino’s invitation to

overrule our recent decision in United States v. Gilliam,

994 F.2d 97 (2d Cir. 1993), petition for cert. filed, August

31, 1993, No. 93-5902, permitting the Government to

introduce evidence of a defendant’s felony conviction to

prove that he is an ex-felon under 18 U.S.C. § 922(g)(1).

This Court will not overrule a prior decision of a panel of

this Court absent a change in the law by higher authority

or by way of an in banc proceeding of this Court. United

States v. Moore, 949 F.2d 68, 71 (2d Cir. 1991), cert.

denied, 112 S. Ct. 1678 (1992).

6a

Appendix B

Constitutional and Statutory Provisions

U.S. CONST. AMEND. V states:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for

the same offence to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law;

nor shall private property be taken for public use,

without just compensation.

18 U.S.C. § 922(g)(1) states:

(g) It shall be urlawful for any person --

(1) who has been convicted in any court of,

a crime punishable by imprisonment for a

term exceeding one year;

to ship or transport in interstate or foreign

commerce, or possess in or affecting commerce, any

firearm or ammunition; or to receive any firearm or

ammunition which has been shipped or transported

in interstate or foreign commerce.

Ta

Appendix B

Constitutional and Statutory Provisions

FED. R. EVID. 403 states:

Although relevant, evidence may be excluded

if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless

presentation of cumulative evidence.

FED. R. EVID. 404(b) states:

(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

action 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, provided that upon request by the

accused, the prosecution in a criminal case shall

provide reasonable notice in advance of trial, or

during trial if the court excuses pretrial notice on

good cause shown, of the general nature of any

such evidence it intends to introduce at trial.