United States v. Cummings, No. 15-2035 (2d Cir. 2017)
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Defendant Cummings was convicted of drug and firearms charges related to causing the death of a person. The Second Circuit held that the district court erred by admitting hearsay evidence of a death threat he allegedly made against a government witness, and such error was not harmless. In this case, the hearsay was especially toxic because it created a grave risk that the jury would use it as evidence of Cummings's murderous propensity. The court explained that risk was heightened by the lack of a limiting instruction, the similarity between the death threat and the underlying charges, the government's argument on summation suggesting that the threat was substantive proof of Cummings's guilt, and his inability to cross‐examine the third‐party declarant who heard his alleged threat. Accordingly, the court vacated Cummings's convictions and remanded for a new trial. The court also granted Defendant Nwanko's counsel's Anders motion to withdraw as counsel and issued an order simultaneously with this opinion.
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15-2035-cr (L) United States v. Cummings 27 15 2035 cr (L) United States v. Cummings UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________ August Term, 2016 (Argued: December 14, 2016 Decided: June 6, 2017) Docket Nos. 15 2035 cr (L), 16 322 (Con) ____________________ UNITED STATES OF AMERICA, Appellee, v. ARMANI CUMMINGS, AKA A1, CHRISTOPHER NWANKO, AKA Big Boi, Defendants Appellants.1 ____________________ Before: JACOBS, POOLER, and HALL, Circuit Judges. Appeal from a judgment of conviction of the United States District Court 28 for the Southern District of New York (Marrero, J.) following a jury verdict 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 The clerk of court is respectfully instructed to amend the caption as above. 1 convicting Defendant Appellant Armani Cummings of one count of conspiracy 2 to distribute 280 grams or more of cocaine base in violation of 21 U.S.C. 3 §§ 841(b)(1)(A) and 846; one count of using and carrying a firearm during and in 4 relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c); two counts 5 of killing a person during and in relation to a conspiracy to distribute 280 grams 6 or more of cocaine base in violation of 21 U.S.C. § 848(e)(1)(A); two counts of 7 brandishing and discharging a firearm during and in relation to a crime of 8 violence in violation of 18 U.S.C. § 924(c); and two counts of causing the death of 9 a person through the use of a firearm during and in relation to the crack cocaine 10 conspiracy in violation of 18 U.S.C. § 924(j). Following Cummings’s conviction, 11 the district court sentenced Cummings principally to 75 years’ imprisonment. 12 Cummings argues, among other things, that the district court erred by 13 admitting hearsay evidence of a death threat he allegedly made against a 14 government witness. We agree and hold that such error was not harmless. The 15 hearsay was especially toxic because it created a grave risk that the jury would 16 use it as evidence of Cummings’s murderous propensity. That risk was 17 heightened by the lack of a limiting instruction, the similarity between the death 2 1 threat and the underlying charges, the government’s argument on summation 2 suggesting that the threat was substantive proof of Cummings’s guilt, and 3 Cummings’s inability to cross examine the third party declarant who heard his 4 alleged threat. We therefore vacate Cummings’s convictions and remand for a 5 new trial. 6 On January 25, 2016, the United States District Court for the Southern 7 District of New York (Marrero, J.) entered judgment against Defendant 8 Appellant Christopher Nwanko, convicting him, following a guilty plea, of one 9 count of participation in a conspiracy to distribute 280 grams or more of cocaine 10 base. On appeal, this Court appointed Nwanko new counsel pursuant to the 11 Criminal Justice Act, 18 U.S.C. § 3006A. Nwanko’s counsel later filed a motion 12 seeking permission to withdraw as counsel pursuant to Anders v. California, 386 13 U.S. 738 (1967). We grant the Anders motion and issue an order simultaneously 14 with this Opinion. 15 Vacated and remanded as to Cummings; Anders motion granted as to 16 Nwanko. 17 ____________________ 3 MARSHALL ARON MINTZ, Mintz & Oppenheim LLP, New York, NY, for Defendant Appellant Armani Cummings. MALVINA NATHANSON, New York, NY, for Defendant Appellant Christopher Nwanko. 1 2 3 4 5 6 7 MICHAEL GERBER, Assistant United States Attorney (Hadassa Waxman, Margaret Garnett, Assistant United States Attorneys, on the brief), for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, NY, for Appellee. 8 9 10 11 12 13 14 POOLER, Circuit Judge: 15 BACKGROUND 16 Defendant Appellant Armani Cummings appeals from a judgment of 17 conviction of the United States District Court for the Southern District of New 18 York (Marrero, J.) following a jury verdict. Cummings was convicted of one 19 count of conspiracy to distribute 280 grams or more of cocaine base in violation 20 of 21 U.S.C. §§ 841(b)(1)(A) and 846; one count of using and carrying a firearm 21 during and in relation to a drug trafficking crime in violation of 18 U.S.C. 22 § 924(c); two counts of killing a person during and in relation to a conspiracy to 23 distribute 280 grams or more of cocaine base in violation of 21 U.S.C. 24 § 848(e)(1)(A); two counts of brandishing and discharging a firearm during and 4 1 in relation to a crime of violence in violation of 18 U.S.C. § 924(c); and two counts 2 of causing the death of a person through the use of a firearm during and in 3 relation to the crack cocaine conspiracy in violation of 18 U.S.C. § 924(j). 4 Following Cummings’s conviction, the district court sentenced Cummings 5 principally to 75 years’ imprisonment. 6 Cummings argues, among other things, that the district court erred by 7 admitting hearsay evidence of a death threat he allegedly made against a 8 government witness. We agree and hold that such error was not harmless. The 9 hearsay was especially toxic because it created a grave risk that the jury would 10 use it as evidence of Cummings’s murderous propensity. That risk was 11 heightened by the lack of a limiting instruction, the similarity between the death 12 threat and the underlying charges, the government’s argument on summation 13 suggesting that the threat was substantive proof of Cummings’s guilt, and 14 Cummings’s inability to cross examine the third party declarant who heard his 15 alleged threat. We therefore vacate Cummings’s convictions and remand for a 16 new trial. 5 On January 25, 2016, the United States District Court for the Southern 1 2 District of New York (Marrero, J.) entered judgment against Defendant 3 Appellant Christopher Nwanko, convicting him, following a guilty plea, of one 4 count of participation in a conspiracy to distribute 280 grams or more of cocaine 5 base. On appeal, this Court appointed Nwanko new counsel pursuant to the 6 Criminal Justice Act, 18 U.S.C. § 3006A. Nwanko’s counsel later filed a motion 7 seeking permission to withdraw as counsel pursuant to Anders v. California, 386 8 U.S. 738 (1967). We grant the Anders motion and issue an order simultaneously 9 with this Opinion. 10 11 I. The Underlying Conduct The evidence presented at trial showed that, from 2006 to 2012, Cummings 12 was a leader of a drug trafficking organization that sold crack cocaine in the 13 Bronx. In that role, Cummings provided crack to street level dealers, collected 14 proceeds from their sales, and sold crack directly to end users on the street. 15 Cummings and other members of his organization carried firearms in order to 16 secure their drugs, proceeds, and territory. 6 1 2 selling crack. Although a rival drug trafficking organization dominated the 3 Carter’s drug trade, Cummings and his organization competed for greater access 4 to its spoils. In short order, that competition bred violence. 5 By 2009, a building known as the Carter became a lucrative location for In particular, violence erupted between Cummings and Laquan Jones, a 6 former member of Cummings’s organization who, after a falling out, joined the 7 rival organization and sold crack in the Carter. After several incidents between 8 the feuding organizations—including one when Cummings chased Jones with a 9 firearm, and another when Jones shot at Cummings while Cummings’s mother 10 11 was present—the competition over the Carter’s drug trade turned deadly. On January 14, 2010, Cummings shot and killed Jones. In retaliation, 12 members of the rival organization shot and killed Travis Geathers, Cummings’s 13 close friend and a member of Cummings’s organization. According to a member 14 of the rival organization, Geathers’s death was “a body for a body, nothing 15 personal.” Tr. at 477. Nevertheless, the violence persisted. On June 9, 2010, 16 Cummings shot and killed Carl Copeland, a member of the rival organization 17 who was allegedly tied to Geathers’s murder. 7 1 II. Indictments and Arraignment 2 On January 12, 2012, Cummings and thirty four co defendants were 3 indicted for knowingly conspiring to violate federal narcotics laws and for 4 related federal firearms violations. On November 7, 2014, a superseding indictment was filed which charged 5 6 Cummings with the following: one count of conspiracy to distribute 280 grams or 7 more of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846; one count 8 of using and carrying a firearm during and in relation to a drug trafficking crime 9 in violation of 18 U.S.C. § 924(c); two counts of killing a person during and in 10 relation to a conspiracy to distribute 280 grams or more of cocaine base in 11 violation of 21 U.S.C. § 848(e)(1)(A); two counts of brandishing and discharging a 12 firearm during and in relation to a crime of violence in violation of 18 U.S.C. 13 § 924(c); and two counts of causing the death of a person through the use of a 14 firearm during and in relation to the crack cocaine conspiracy in violation of 15 18 U.S.C. § 924(j). Cummings pled not guilty to all of the counts charged. 16 17 III. Motions in Limine 8 On October 27, 2014, prior to Cummings’s trial, the government filed a 1 2 motion in limine regarding the admissibility of certain testimony from a 3 cooperating witness, Jim Volcy. Volcy was a former crack dealer in the Bronx 4 who claimed to have observed Cummings’s participation in the Copeland 5 shooting. Volcy also claimed to have heard Cummings threaten him while they 6 were housed in the same prison. In its motion, the government stated that it “intends to offer evidence that, 7 8 while in jail, Cummings . . . threatened [a] cooperating witness[] . . . because of 9 [his] cooperation.” App’x at 55. In particular, the government proffered that 10 “[Volcy] will testify that Cummings said that he would kill [Volcy] if he could 11 because of [Volcy’s] cooperation.” App’x at 55. The government’s motion in 12 limine included no further factual information about this alleged death threat 13 evidence as it pertained to Cummings. 14 The government argued that Volcy’s death threat testimony was 15 admissible under Federal Rule of Evidence 404(b)2 as evidence demonstrating Federal Rule of Evidence 404(b) states that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on 9 2 1 Cummings’s consciousness of guilt, and that the probative value of that evidence 2 outweighed any unfair prejudice under Federal Rule of Evidence 403.3 Although 3 the government acknowledged that the prejudice of this death threat testimony 4 was “potentially significant,” the government argued that any such prejudicial 5 effect would be mitigated because the testimony involved only a verbal threat 6 and did not involve conduct more sensational than the crimes charged. App’x at 7 56. The government added that any prejudicial effect associated with the death 8 threat testimony “will be further eliminated by a limiting instruction.” App’x at 9 56. 10 On November 3, 2014, Cummings’s defense counsel opposed the 11 government’s motion in limine, arguing that the death threat testimony should 12 be excluded under Rule 403, as the probative value of that evidence was far 13 outweighed by the risk of unfair prejudice to Cummings. Defense counsel 14 argued further that “if the Court permits such [death threat] evidence, Mr. a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). 3 Federal Rule of Evidence 403 states that the district court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. 10 1 Cummings request[s] a limiting instruction, both at the time the testimony is 2 admitted at trial and again during the Court’s instructions to the jury at the end 3 of trial.” App’x at 65. 4 Several days later, the district court granted the government’s motion and 5 ruled that Volcy could testify about Cummings’s alleged death threat. See United 6 States v. Cummings, 60 F. Supp. 3d 434, 440 (S.D.N.Y. 2014). Specifically, the 7 district court held: 8 21 A defendant’s threats toward a witness are admissible under Rule 404(b) as evidence of consciousness of guilt. . . . [T]he potential for unfair prejudice by presenting the threats at issue here is mitigated by the severity of the crimes alleged in the indictment. Certainly an allegation of a verbal death threat is no more inflammatory than an accusation of ‘two premeditated, assassination style murders.’ The potential for prejudice could be further mitigated by a limiting instruction advising the jury that these threats are admissible only to show consciousness of guilt. The Court therefore grants the [g]overnment’s motion with regard to evidence that Cummings . . . threatened [a] cooperating witness[], subject to an appropriate limiting instruction. Id. (emphasis added) (internal citations omitted). The district court further stated 22 that the government’s motion was granted “subject to a limiting instruction 23 directing the jury to consider the threats only to show consciousness of guilt.” Id. 24 at 441. 9 10 11 12 13 14 15 16 17 18 19 20 11 1 2 proposed jury instructions relating to the admission of “similar acts” evidence. 3 Proposed Jury Instructions on Behalf of Defendant Armani Cummings at 33, 4 United States v. Cummings, No. 12 cr 00031, (S.D.N.Y. Oct. 17, 2014), ECF No. 5 927 [hereinafter “Proposed Jury Instructions”]. In particular, defense counsel 6 asked the district court to instruct the jury as follows: The government has offered evidence tending to show that on different occasions the defendant engaged in criminal conduct which is not charged in this case. . . . [Y]ou may not consider this evidence as a substitute for proof that the defendant has committed the crime charged. Nor may you consider this evidence as proof that the defendant has a criminal propensity or bad character. The evidence of the uncharged act was admitted for a much more limited purpose, and you may consider it only for that limited purpose. 7 8 9 10 11 12 13 14 15 16 17 Id. In its proposed instructions, the government omitted this request. 18 19 Cummings’s defense counsel subsequently included a request in its IV. Trial 20 At trial, the government introduced testimony from a number of 21 witnesses, including several former members of Cummings’s drug trafficking 22 organization, several former members of the rival drug trafficking organization, 12 1 and one of Cummings’s former prison inmates. These witnesses testified that 2 they observed Cummings sell crack, commit violence against members of the 3 rival drug trafficking organization, and confess to murdering Jones and 4 Copeland. The government also introduced 911 calls, as well as crime scene, 5 ballistic, and medical evidence. 6 Volcy testified at trial. His testimony about Cummings’s alleged death 7 threat, however, deviated from the government’s proffer in its motion in limine. 8 Specifically, when presented at trial, Volcy’s testimony posed potential hearsay 9 issues that the government had not presented in its motion in limine. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 After stating that he and Cummings were housed together at the Metropolitan Detention Center in Brooklyn (“MDC”), Volcy testified as follows: AUSA: VOLCY: AUSA: VOLCY: AUSA: DEFENSE: THE COURT: VOLCY: AUSA: DEFENSE: THE COURT: AUSA: Now, at the MDC, did you see [Cummings]? Yes. Did he say anything to you? Not directly. Did he say anything to you indirectly? Objection. Overruled. He said stuff to people around me. But you were present? Objection. Leading. Overruled. What did he say? 13 1 VOLCY: 2 3 AUSA: 4 5 6 VOLCY: He just called me rat bastard and just called me names things like that. After he called you names, what if anything did he say to you or do to you? He didn’t do anything to me. He couldn’t reach me, but you know, he made threats, things like that. What were the threats that he made? He would shoot me in the face. 9 AUSA: VOLCY: Tr. 933 34 (emphasis added). Although he made a pre trial request for a limiting 10 instruction upon admission of such death threat testimony, Cummings’s defense 11 counsel did not renew the request. The district court did not provide a limiting 12 instruction at that time. It may be that the hearsay problem took the government 13 itself by surprise. But it is nevertheless the case that neither the defendant nor the 14 court was alerted to the problem in advance. 7 8 15 At the end of trial, during the charge conference, the government 16 commented on a proposed jury instruction about evidence admitted under 17 Rule 404(b). In particular, the government said, “I think, ultimately, in this case, I 18 don’t think that the government offered any 404(b) evidence. If I am wrong, the 19 defense will correct me.” Tr. 1728. Cummings’s defense counsel responded that 20 only a gun stipulation “might fall under this instruction.” Tr. 1729. The 14 1 government disagreed, and therefore asked that the Rule 404(b) instruction be 2 removed. The next day, the government clarified its prior statement that there was 3 4 no Rule 404(b) evidence offered in this case. The government stated: 5 13 Yesterday during the charge conference, there was a question that came about whether there was any I think it was 404(b) evidence. And I wanted to correct that in one regard. . . . There was evidence that was offered with regard to consciousness of guilt; that is, certain threats that were made. And that’s not a direct evidence, that’s only consciousness of guilt evidence. I don’t know if defense counsel wants an instruction with regard to that evidence or not, but I just wanted to flag that for the Court. Tr. 1782 83. Cummings’s defense counsel did not respond. On the other hand, 14 the defense had already proposed a charge (set out supra at 12) that would 15 alleviate the risk of propensity prejudice, and counsel might well have elected to 16 avoid a more specific charge that would emphasize a vivid threat to kill a 17 witness by gruesome means. 18 19 court did not include the instruction regarding evidence admitted pursuant to 20 Rule 404(b). Cummings’s defense counsel did not raise an objection during the 6 7 8 9 10 11 12 In delivering its jury instructions at the close of trial, however, the district 15 1 charge conference or after the charge relating to the absence of a Rule 404(b) 2 instruction. 3 Finally, in its summation, the government repeated Volcy’s death threat 4 testimony. The government stated, near the conclusion of its summation, “[n]ow, 5 the importance of the cooperator testimony was not lost on Cummings[.] . . . You 6 heard evidence that Cummings called . . . Jim Volcy, a ‘rat bastard’ and 7 threatened to shoot [him] in the face for cooperating.” Tr. 2161. After referring to 8 this threat, the government added: 9 You know why Cummings . . . made th[at] threat[]. You know why Cummings . . . did not want [Volcy] to testify. Cummings . . . knew that the testimony would be very, very damaging to [hi]m at trial. And that testimony, ladies and gentlemen, was in fact completely devastating proof of [Cummings’s] crimes, proof that was corroborated again and again by the other witnesses and the other evidence in the case. Tr. at 2162 (emphasis added). 10 11 12 13 14 15 16 17 18 19 20 21 On December 11, 2014, after a three week trial, the jury convicted Cummings on all eight counts. On January 16, 2015, Cummings filed a letter motion requesting a new trial pursuant to Federal Rule of Criminal Procedure 33 and renewed his prior 16 1 motions for a judgment of acquittal pursuant to Federal Rule of Criminal 2 Procedure 29. Fed. R. Crim. P. 29, 33. 3 The district court denied those motions. On June 19, 2015, the district court sentenced Cummings to 75 years’ 4 5 imprisonment. Cummings timely filed his appeal. DISCUSSION 6 7 8 I. Standard of Review This Court reviews evidentiary rulings for abuse of discretion. United 9 States v. Natal, 849 F.3d 530, 534 (2d Cir. 2017). “A district court has abused its 10 discretion if it based its ruling on an erroneous view of the law or on a clearly 11 erroneous assessment of the evidence or rendered a decision that cannot be 12 located within the range of permissible decisions.” Id. 13 Even if a district court abuses its discretion by making an erroneous 14 evidentiary ruling, that error is ordinarily subject to harmless error analysis. 15 United States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009). “An erroneous ruling on 16 the admissibility of evidence is harmless if the appellate court can conclude with 17 fair assurance that the evidence did not substantially influence the jury.” Id. 17 1 Where, however, “the appellant fails to preserve an evidentiary challenge by 2 lodging a timely objection, we review for plain error.” United States v. Certified 3 Envtl. Servs., Inc., 753 F.3d 72, 96 (2d Cir. 2014). 4 II. Did Cummings Forfeit His Claim of Error? 5 Cummings argues that Volcy’s death threat testimony constitutes 6 inadmissible hearsay and the district court erred by admitting such testimony. 7 As a threshold matter, the government contends that Cummings forfeited this 8 argument because he raised it for the first time on appeal. We disagree with the 9 government. 10 Under Federal Rule of Evidence 103, a party must make a timely and 11 specific objection to an evidentiary ruling in order to preserve a claim for appeal. 12 Fed. R. Evid. 103. In particular, Rule 103 states that “[a] party may claim error in 13 a ruling to admit or exclude evidence only if the error affects a substantial right 14 of the party and . . . if the ruling admits evidence, a party, on the record: 15 (A) timely objects . . . and (B) states the specific ground, unless it was apparent from 16 the context.” Fed. R. Evid. 103(a)(1) (emphasis added); see Robinson v. Shapiro, 646 17 F.2d 734, 742 (2d Cir. 1981) (“The purpose of requiring a timely objection is to 18 1 identify the disputed issue and give the trial judge a chance to correct errors 2 which might otherwise necessitate a new trial.”). 3 Here, defense counsel timely objected to the relevant portion of Volcy’s 4 testimony. When the government asked Volcy whether Cummings said 5 anything to him while they were at MDC, Volcy responded “not directly.” Tr. 6 934. When the government asked a follow up question to clarify, “Did he say 7 anything to you indirectly?”, defense counsel objected. Tr. 934. The district court 8 overruled the objection. 9 It is apparent from the context that defense counsel objected to the hearsay 10 nature of Volcy’s testimony, or at least the possibility that Volcy was testifying 11 without personal knowledge of Cummings’s threat. See Fed. R. Evid. 602 (stating 12 that a lay witness “may testify to a matter only if evidence is introduced 13 sufficient to support a finding that the witness has personal knowledge of the 14 matter”); United States v. Garcia, 291 F.3d 127, 140 (2d Cir. 2002). Given the 15 context, defense counsel’s timely objection was sufficient to identify the hearsay 16 issue and give the district court the opportunity to correct any error that would 17 result from admitting such testimony. 19 1 Therefore, we hold that Cummings preserved his objection to the 2 admission of Volcy’s hearsay testimony. Accordingly, as discussed above, we 3 review Cummings’s preserved evidentiary challenge to determine whether the 4 court abused its discretion by admitting hearsay evidence, and if so, whether that 5 error was harmless. See Mercado, 573 F.3d at 141. 6 III. 7 Admissibility of Hearsay Evidence Cummings argues that Volcy’s death threat testimony involved 8 inadmissible hearsay and that the district court’s failure to exclude such 9 testimony was erroneous. We agree. 10 Hearsay is a statement that “(1) the declarant does not make while 11 testifying at the current trial or hearing; and (2) a party offers in evidence to 12 prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). 13 “Hearsay is admissible only if it falls within an enumerated exception.” United 14 States v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013); see Fed R. Evid. 802. 15 Cummings and the government dispute whether Volcy heard Cummings 16 make the alleged death threat. According to Cummings, Volcy’s testimony 17 clearly indicates that Volcy did not hear Cummings’s threat. See Appellant’s Br. 20 1 at 28 (“[T]he entire exchange in question is prefaced by the admission that 2 Cummings never said anything to Volcy, and Volcy never stated he was present 3 when the ‘threats’ were made.”). If Volcy did not hear Cummings make this 4 threat, then Volcy must have heard about it from a third party. This proposition 5 raises hearsay concerns. 6 According to the government, Volcy personally heard Cummings make 7 the death threat and therefore Volcy could testify based on his first hand 8 knowledge. Specifically, the government claims that, in its appropriate context, 9 Volcy’s statement that Cummings “said stuff to people around me,” Tr. 934, is 10 “clearly understood to mean that Cummings made the statements to people in 11 Volcy’s presence.” Appellee’s Br. at 24 (emphasis added). Because the government 12 asserts that Cummings’s death threat was not offered for its truth—that 13 Cummings actually would shoot Volcy in the face—but as evidence of 14 Cummings’s consciousness of guilt, the government concludes that Volcy’s 15 testimony does not raise hearsay concerns. 16 17 When reviewing evidentiary challenges in criminal cases, we view the evidence in the light most favorable to the government. See United States v. 21 1 Curley, 639 F.3d 50, 54 n.1 (2d Cir. 2011). Nevertheless, we only draw inferences 2 that are supported by the evidence in the record. 3 Here, we cannot draw the government’s preferred inference—that Volcy 4 heard the death threat directly from Cummings—because it is not supported by 5 the evidence in the record. 6 The plain language of Volcy’s testimony belies the government’s 7 argument. When asked point blank whether Cummings said anything to him, 8 Volcy said, “[n]ot directly.” Tr. 934. When asked whether Cummings said 9 anything to him indirectly, Volcy said that “[h]e said stuff to people around me.” 10 Tr. 934. The question is whether Volcy was present when the statement was 11 made, and Volcy’s statement that Cummings “couldn’t reach [me]” suggests that 12 Volcy and Cummings did not share a physical space, reducing the likelihood that 13 Volcy heard Cummings make the death threat. Moreover, the government 14 continued its testimony without allowing Volcy to answer the question, “But 15 were you present?,”once the court overruled defense counsel’s objection to the 16 question as leading. Tr. 934. Lastly, Volcy’s choice of language—a statement 17 made “to people around me” rather than “directly”—bespeaks second hand 22 1 communication. Taken together, the only inference supported by the evidence in 2 the record is that Volcy did not hear the death threat directly from Cummings. 3 Rather, the evidence supports an inference that Volcy heard about Cummings’s 4 threat from a third party declarant. 5 6 7 As a result, Volcy’s trial testimony presented a potential double hearsay problem, or hearsay within hearsay. Under Federal Rule of Evidence 805, “[h]earsay within hearsay is not 8 excluded by the rule against hearsay if each part of the combined statements 9 conforms with an exception to the rule.” Fed. R. Evid. 805. 10 Because Volcy did not hear Cummings’s threat directly, Volcy’s testimony 11 involves two out of court statements, either or both of which poses hearsay 12 concerns. The first statement is made by Cummings to a third party declarant: “I 13 am going to shoot Volcy in the face.” The second statement is made by that 14 unknown third party declarant to Volcy: “I heard Cummings say ‘I am going to 15 shoot Volcy in the face.’” We review each statement to determine whether it is 16 admissible, either because it is not hearsay or because it is hearsay subject to an 17 enumerated exception, or whether it is inadmissible hearsay. 23 1 With respect to the first statement—made by Cummings to a third party 2 declarant, “I am going to shoot Volcy in the face”—it could be admitted as not 3 hearsay on either of the following two possible bases. First, under Rule 801(c), a 4 statement is not hearsay unless it is offered to prove the truth of the matter 5 asserted in the statement. Fed. R. Evid. 801(c). The first statement would have 6 been admissible if offered not for the truth of the matter asserted—that 7 Cummings actually would shoot Volcy in the face—but rather as evidence of 8 Cummings’s consciousness of guilt. Second, under Rule 801(d), a statement is not 9 hearsay if it is “offered against an opposing party and . . . was made by the party 10 in an individual . . . capacity.” Fed. R. Evid. 801(d)(2)(A); see also Green v. City of 11 N. Y., 465 F.3d 65, 77 (2d Cir. 2006). Thus, the district court could have also 12 admitted Cummings’s death threat as an opposing party’s statement under Rule 13 801(d)(2) if the government sought to introduce the threat against Cummings, 14 the opposing party in the prosecution, and if the third party declarant that heard 15 Cummings make the threat testified under oath. 16 17 Here, however, even though the first statement on its own could be admissible because it was not hearsay, we have to address the admissibility of 24 1 the second statement. In this case, the government did not call the third party 2 declarant to testify. As a result, the district court could only admit the death 3 threat relayed in the first statement if the second statement in this double hearsay 4 problem were admissible, either because it was not hearsay or because it was 5 hearsay subject to an exception. 6 We hold, however, that the second statement—the third party declarant’s 7 statement to Volcy that, “I heard Cummings say ‘I am going to shoot Volcy in the 8 face’”—was hearsay not subject to an exception. This statement is only probative 9 if admitted for the truth of the matter asserted, i.e., that the third party declarant 10 actually heard Cummings make this threat. If it was not admitted for its truth, 11 then it would not be probative of Cummings’s consciousness of guilt. Because 12 this second statement is offered for its truth and does not satisfy any of the 13 enumerated hearsay exceptions, the second statement is inadmissible hearsay. 14 Accordingly, because the second statement is inadmissible hearsay not 15 subject to an exception, Rule 805’s requirement that “each part of the combined 16 statement” be admissible is not met. The district court therefore abused its 25 1 discretion in admitting Volcy’s hearsay testimony regarding Cummings’s death 2 threat. 3 IV. 4 Harmless Error Analysis Having established that Cummings preserved his claim of error and that 5 the district court abused its discretion in admitting hearsay testimony, we review 6 that erroneous evidentiary ruling under a harmless error standard. See Fed. R. 7 Crim. P. 52(a). 8 9 “An erroneous ruling on the admissibility of evidence is harmless if the appellate court can conclude with fair assurance that the evidence did not 10 substantially influence the jury.” Mercado, 573 F.3d at 141. In order 11 17 [t]o say that the erroneously admitted testimony did not substantially influence the jury[,] we are not required to conclude that it could not have had any effect whatsoever; the error is harmless if we can conclude that that testimony was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. United States v. Rea, 958 F.2d 1206, 1220 (2d Cir. 1992) (internal quotation marks 18 omitted). “The principal factors for such an inquiry are the importance of the 19 witness’s wrongly admitted testimony and the overall strength of the 12 13 14 15 16 26 1 prosecution’s case.” United States v. Dukagjini, 326 F.3d 45, 62 (2d Cir. 2003) 2 (internal quotation marks omitted). 3 Cummings does not allege that the government presented insufficient 4 evidence to support his conviction. Nor do we dispute the significant amount of 5 evidence presented over the course of Cummings’s three week trial. The jury 6 heard considerable evidence regarding Cummings’s guilt of the charged crimes, 7 including eyewitness testimony and confessions regarding the Jones and 8 Copeland murders. 9 The test of whether an error is harmless, however, is not whether, 10 “disregarding the erroneously introduced evidence, there was other evidence 11 which was independently sufficient to establish [Cummings’s] guilt.” United 12 States v. Check, 582 F.2d 668, 684 (2d Cir. 1978) (internal quotation marks 13 omitted). Rather, we must evaluate the “manner in which, in the total setting of 14 the case, the error influenced the jury.” Id. (internal quotation marks omitted). 15 Then, “[o]nly if our conviction is sure that the error did not influence the jury or 16 had but very slight effect,” will we affirm Cummings’s conviction. Id. (internal 17 quotation marks omitted). Because of the severely prejudicial nature of Volcy’s 27 1 death threat testimony, the distinct possibility that the jury would use such 2 testimony as impermissible propensity evidence in the absence of a limiting 3 instruction, and the serious risk that such evidence “‘lure[d] the [jury] into 4 declaring guilt on a ground different from proof specific to the offense charged,’” 5 United States v. Massino, 546 F.3d 123, 132 (2d Cir. 2008) (quoting Old Chief v. 6 United States, 519 U.S. 172, 180 (1997)), we are unable to conclude that the 7 admission of such testimony was unimportant in relation to the other evidence 8 considered by the jury. Therefore, we hold that—to the extent that we are not 9 sure that the improper admission of Volcy’s hearsay death threat testimony did 10 not influence the jury or that it had very slight effect—the error was not 11 harmless. 12 Although we neither affirm nor disturb the district court’s balancing 13 analysis pursuant to Rule 403, we draw upon similar considerations—probative 14 value, danger of unfair prejudice—in determining the importance of Volcy’s 15 wrongly admitted, death threat testimony and whether it substantially 16 influenced the jury. See Fed. R. Evid. 403. 28 1 “It is hard to deem harmless the erroneous admission of death threat 2 evidence” because death threat evidence may be “toxic.” United States v. Morgan, 3 786 F.3d 227, 234 (2d Cir. 2015). “As our past decisions indicate, the potential 4 prejudice for death threats may be great.” United States v. Qamar, 671 F.2d 732, 5 736 (2d Cir. 1982). “Ordinarily, unrelated death[] threat testimony is kept from a 6 jury because its potential for causing unfair prejudice outweighs its probative 7 value with respect to a defendant’s guilt.” United States v. Panebianco, 543 F.2d 8 447, 455 (2d Cir. 1976). 9 10 11 In this case, the admission of Volcy’s death threat evidence was toxic for several reasons. First, the admission of Volcy’s death threat testimony created an undue 12 risk that the jury construed the threat as evidence of Cummings’s murderous 13 propensity. Propensity evidence, like other evidence that poses a risk of causing 14 unfair prejudice, 15 16 17 18 19 20 tends to distract the jury from the issues in the case and permits the trier of fact to reward the good man and to punish the bad man because of their respective characters[,] despite what the evidence in the case shows actually happened. The effect in such a case might be to arouse the jury’s passions to a point where they would act irrationally in reaching a verdict. 29 1 United States v. Robinson, 560 F.2d 507, 514 (2d Cir. 1977) (internal quotation 2 marks and citation omitted). 3 Here, there was an undue “likelihood that the jury would substitute the 4 death threat evidence for consideration of the elements of the charged crimes.” 5 Morgan, 786 F.3d at 233. The similarity of the threat evidence to the charged 6 crimes may have misled the jury and substantially heightened the potential of 7 the threat evidence to influence the jury. Cummings was on trial for, among 8 other crimes, the shooting and killing of both Jones and Copeland. The similarity 9 between Volcy’s death threat testimony and the crimes charged risked 10 suggesting to the jury that it should convict Cummings of the prior murders 11 because he was willing to murder for expedience. Therefore, the death threat 12 evidence had a substantial “capacity . . . to lure the [jury] into declaring guilt on a 13 ground different from proof specific to the offense charged.” Massino, 546 F.3d at 14 132. Its erroneous admission raises serious doubts that such evidence was 15 unimportant to the jury in light of the other evidence presented. 16 17 Second, the district court did not provide a limiting instruction to the jury about the limited permissible purpose of Volcy’s death threat testimony. In the 30 1 absence of a limiting instruction, there was an undue risk that the jury 2 considered the death threat evidence as evidence of Cummings’s murderous 3 propensity rather than as evidence of Cummings’s consciousness of guilt. 4 “Where evidence is admissible for one purpose but is inadmissible for 5 another, the trial judge should, when requested, instruct the jury as to the limited 6 purpose for which the evidence may be considered.” United States v. Washington, 7 592 F.2d 680, 681 (2d Cir. 1979); see Fed. R. Evid. 105. “[L]imiting instructions are 8 an accepted part of our present trial system.” United States v. Ebner, 782 F.2d 1120, 9 1126 (2d Cir. 1986) (internal quotation marks omitted). Limiting instructions 10 serve an important purpose of reducing the danger that a jury, after hearing 11 about a defendant’s other crimes or bad acts, “will impermissibly infer that he is 12 a bad man likely to have committed the crime for which he is being tried.” United 13 States v. Benedetto, 571 F.2d 1246, 1249 (2d Cir. 1978). 14 As a general matter, a defendant must request such a limiting instruction; 15 if he does not, he waives any objection to the admissibility of the disputed 16 evidence, see United States v. Smith, 283 F.2d 760, 764 (2d Cir. 1960), and the 17 district court will typically not be found in error by failing to provide an 31 1 unrequested instruction, see Benedetto, 571 F.2d at 1250 n.9 (finding no plain error 2 in the district court’s failure to provide a limiting instruction where no such 3 charge was requested by the defendant). 4 Although we do not ascribe plain error to the district court for not 5 providing a limiting instruction here where Cummings’s defense counsel failed 6 to renew any request for an instruction at the charge conference, see United States 7 v. Tracy, 12 F.3d 1186, 1195 (2d Cir. 1993), the absence of such an instruction 8 nevertheless looms large in considering the potential unfair prejudice Cummings 9 suffered as a result of the erroneous admission of Volcy’s death threat testimony 10 and the importance of the error to Cummings’s trial. For example, in several of 11 our prior cases holding that the admission of death threat testimony was 12 harmless, we pointed to the district court’s effective use of limiting instructions 13 to reduce the potential prejudice from the threat evidence. See, e.g., Qamar, 671 14 F.2d at 737 (explaining that the district court “limited the potential prejudice” of 15 death threat testimony “by admonishing the jury” about its few permitted uses); 16 United States v. DeLillo, 620 F.2d 939, 946 (2d Cir. 1980) (“[T]he prejudice is likely 32 1 to be small because the jury will be instructed not to consider the threat on the 2 question of the defendant’s overall guilt”). 3 Recognizing that Volcy’s death threat testimony had the potential to cause 4 severe prejudice to Cummings, both parties and the district court acknowledged 5 the value of a limiting instruction in relation to the admission of such evidence. 6 See App’x at 56 (government’s motion in limine) (noting that the prejudice from 7 death threat testimony was “potentially significant” but stating that such 8 prejudice “will be further eliminated by a limiting instruction”); App’x at 65 9 (Cummings’s opposition to motion in limine) (requesting a limiting instruction if 10 the court decided to admit Volcy’s death threat testimony); Cummings, 60 F. 11 Supp. 3d at 440 (discussing, in granting the motion in limine, the power of a 12 limiting instruction to reduce the prejudicial effect of Volcy’s testimony and 13 stating that such testimony would be admitted “subject to an appropriate 14 limiting instruction”); Proposed Jury Instructions at 33 (requesting an instruction 15 on the permissible use of Rule 404(b) evidence and including an admonishment 16 that the jury may not “consider this [other act] evidence as proof that 17 [Cummings] has a criminal propensity or bad character”). Because the death 33 1 threat testimony, nevertheless, was admitted without a limiting instruction, the 2 jury may have considered it for any purpose—including an impermissible 3 purpose, such as evidence of Cummings’s murderous propensity. 4 Third, the government’s description of Volcy’s death threat testimony in 5 its summation went beyond the alleged purpose for its admission (to prove 6 Cummings’s consciousness of guilt). In its summation, “the government argued 7 to the jury that the death threats were evidence of [Cummings’s] guilt.” Morgan, 8 786 F.3d at 235. Specifically, the government stated that such death threat 9 testimony “was in fact completely devastating proof of [Cummings’s] crimes.” 10 Tr. 2162. The government’s statements in summation exacerbated the injurious 11 effect of Volcy’s death threat testimony by inviting the jury to consider such 12 testimony for impermissible purposes. In light of this improper description of 13 Volcy’s death threat testimony to the jury, “[e]ven if it would otherwise have 14 been proper for the government to argue in its summation that the death threats 15 evinced consciousness of guilt, we cannot conclude that the government placed no 16 undue emphasis on the threats.” Morgan, 786 F.3d at 235 (internal quotation 17 marks omitted). 34 1 Finally, the hearsay nature of Volcy’s death threat testimony unfairly 2 prejudiced Cummings and may have affected the jury’s understanding of this 3 testimony. “The hearsay rule is generally said to exclude out of court statements 4 offered for the truth of the matter asserted because there are four classes of risk 5 peculiar to this kind of evidence: those of (1) insincerity, (2) faulty perception, (3) 6 faulty memory[,] and (4) faulty narration, each of which decreases the reliability 7 of the inference from the statement made to the conclusion for which it is 8 offered.” Schering Corp. v. Pfizer Inc., 189 F.3d 218, 232 (2d Cir. 1999). The rule 9 “ordinarily prohibits the admission of out of court statements by declarants on 10 the theory that cross examination can help test for these four classes of error, 11 thus allowing the [jury] to weigh the evidence properly and to discount any that 12 is too unreliable.” Id. 13 In this case, Volcy’s death threat testimony presented all of those dangers. 14 For example, did the unknown third party declarant have an incentive to 15 fabricate Cummings’s alleged death threat (insincerity)? Did that third party 16 declarant actually hear Cummings, as opposed to someone else, make this threat 17 (faulty perception)? Even if the third party declarant heard Cummings make a 35 1 threat, was it actually directed to Volcy as opposed to another inmate (faulty 2 memory)? Did the third party declarant relay the proper message from 3 Cummings’s alleged threat (faulty narration)? 4 Typically, hearsay dangers may be mitigated by cross examination. See 5 United States v. Reyes, 18 F.3d 65, 69 (2d Cir. 1994) (“The principal vice of hearsay 6 evidence is that it offers the opponent no opportunity to cross examine the 7 declarant on the statement that establishes the declared fact.”). But because the 8 government neither identified the unknown third party declarant nor called that 9 person to testify, Cummings was unable to cross examine that person and 10 challenge the veracity of the death threat evidence. Cummings was therefore 11 denied the opportunity to undermine the trustworthiness of the third party 12 declarant and to minimize the injurious effect of the death threat evidence. 13 Because of the toxic nature of death threat testimony, “we have carefully 14 limited [its] use to situations where there was a clear need for the prosecution to 15 use such evidence.” Check, 582 F.2d at 685. Here, there was no such need. Volcy’s 16 death threat testimony “bore no relation to the offenses for which [Cummings] 17 was being tried.” Morgan, 786 F.3d at 232, nor was it “inextricably intertwined 36 1 with the evidence regarding the charged offense,” United States v. Quinones, 511 2 F.3d 289, 309 (2d Cir. 2007). It was not evidence of Cummings’s participation in 3 the narcotics conspiracy, murders, or firearms violations. See Tracy, 12 F.3d at 4 1195 (finding no abuse of discretion in admitting death threat testimony where 5 the testimony showed that defendant “was a member of the conspiracy and 6 played a role that gave him . . . familiarity with [its] operation”). Nor was such 7 testimony offered as evidence regarding a witness’s credibility. See Qamar, 671 8 F.2d at 736 (finding no abuse of discretion in the admission of threat evidence 9 when such evidence was useful to explain a witness’s demeanor, whose 10 credibility “was central to the jury’s determination of guilt or innocence”); 11 Panebianco, 543 F.2d at 455. Because Volcy’s death threat testimony was 12 unconnected to the charged crimes, it is dubious that there was a “clear need” for 13 Volcy’s death threat testimony and that it “serve[d] an important purpose.” See 14 Morgan, 786 F.3d at 229. 15 16 Moreover, the government presented other, far more damning, evidence of Cummings’s consciousness of guilt: his confessions. In light of the extensive 37 1 testimony regarding these confessions, Volcy’s death threat testimony was little 2 more than gratuitous. 3 In opposition to Cummings’s claim, the government argues that Volcy’s 4 death threat testimony was not unfairly prejudicial because Cummings’s verbal 5 threat “paled in comparison to the crimes which Cummings was charged, 6 including two premeditated, assassination style murders.” Appellee’s Br. at 23. 7 While we acknowledge that the prejudicial effect of evidence is mitigated where 8 the evidence is no “more sensational or disturbing than the crimes with which 9 [the defendant] [i]s charged,” United States v. Roldan Zapata, 916 F.2d 795, 804 (2d 10 Cir. 1990), we are not persuaded that this rule trumps the other sources of unfair 11 prejudice present in the instant case that made Volcy’s death threat toxic. 12 Additionally, the government claims that Volcy’s death threat testimony 13 was not prejudicial and was therefore harmless because such testimony “was 14 several lines in a trial transcript that is approximately 2,000 pages.” Appellee’s 15 Br. at 25. We are not persuaded. 16 17 Unquestionably, when determining whether the erroneous admission of evidence was harmless, we consider the centrality of that evidence at trial and 38 1 the number and frequency of references to the wrongly admitted evidence. See 2 e.g., Morgan, 786 F.3d at 234 (“Here, the death threat evidence was the 3 government’s most dramatic evidence at trial, a circumstance that weighs in 4 favor of ruling that the error affected Morgan’s substantial rights.” (internal 5 quotation marks and brackets omitted)); United States v. McDermott, 277 F.3d 240, 6 243 (2d Cir. 2002) (holding that references to disputed evidence was harmless in 7 light of the limited number of references and the substantial evidence against the 8 defendant). But these considerations are not dispositive in this case. Although 9 the references to Volcy’s death threat testimony were few and the testimony was 10 not a central piece of evidence in the case, Volcy’s death threat testimony still 11 carried significant risk of substantially influencing the jury because it had the 12 tendency to “distract the jury from the issues in the case,” Morgan, 786 F.3d at 13 233, and to “permit[] the trier of fact to . . . punish the bad man because of [his] [] 14 character[],” Robinson, 560 F.2d at 514. We have acknowledged the toxic effects of 15 improperly admitting death threat testimony, see, e.g., Morgan, 786 F.3d at 234; 16 Qamar, 671 F.2d at 736 37; Panebianco, 543 F.2d at 455; Check, 582 F.2d at 685 86, 17 and we are not persuaded that it was unimportant to the jury despite by the 39 1 limited number of references to Volcy’s death threat testimony and the volume 2 of other evidence in this case. 3 It is not the province of this Court to “speculate upon probable 4 reconviction and decide according to how the speculation comes out.” Kotteakos 5 v. United States, 328 U.S. 750, 763 (1946). United States v. Tussa, 816 F.2d 58, 67 (2d 6 Cir. 1987) (“Even if an appellate court is without doubt that a defendant is guilty, 7 there must be a reversal if the error is sufficiently serious.”). “But this does not 8 mean that the appellate court can escape altogether taking account of the 9 outcome.” Kotteakos, 328 U.S. at 764. Rather, we must “take account of what the 10 error meant to [the jury], not singled out and standing alone, but in relation to all 11 else that happened.” Id. 12 Accordingly, after an examination of the record, we are unable to conclude 13 with fair assurance that the evidence did not substantially influence the jury. 14 Therefore, we hold that, in light of the facts of this case, the erroneous admission 15 of the death threat evidence was not harmless. 40 CONCLUSION 1 2 Despite the seriousness of the crimes charged against Cummings, in light 3 of the erroneous admission of hearsay death threat testimony, and the 4 harmfulness of that error, we vacate Cummings’s conviction and remand for a 5 new trial. 41
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