# Petition for Writ of Certiorari — DeMartino v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1074

## Text

. 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0905%3A1. Public record. Not legal advice.