Federal Evidence Review

Second Circuit concludes the prejudicial use of the defendant’s nickname (“Murder”) required vacating one murder conviction and related charges, but affirming conviction of a separate murder conviction and related charges based on overwhelming evidence of guilt, in United States v. Farmer, 583 F.3d 131 (2d Cir. Oct. 8, 2009) (No. 07-2729-CR)

It is not uncommon for nicknames to be used in a charging document and at trial to identify a particular defendant. At what point does the use of a nickname become unfairly prejudicial or violate Due Process? The Second Circuit recently confronted this issue. Of course, the nickname in the case involving violent crimes raised prejudice concerns at the outset.

In the case, defendant Farmer was charged under the Violent Crimes in Aid of Racketeering statute with committing murder, attempted murder and conspiracy to assault with a dangerous weapon, and related firearm charges. The violent offenses arose out of his involvement and membership in a gang. Before trial, the defendant moved to exclude any reference to his nickname, “Murder,” which was used in the indictment to identify him, contending that identity was not at issue. The trial court denied the motion, concluding that the nickname could be used by witnesses who knew the defendant by his nickname. The defendant was referred to by his nickname throughout the trial including during the opening statement and closing arguments. As the opinion summarized the case:

“For example, in the fourth sentence of her opening statement, the first prosecutor stated that ‘Laval Farmer, known to everyone by his gangster name as Murder, murdered ninth grader Jose White in cold blood.’ Moments later, describing the night that White was killed, she explained that ‘[i]n gang life, if members of another gang mess up members of your gang, the rule is that you retaliate. So, Murder decided that it was time to take out a Crip . . . . Murder was on the warpath.’ Referring to Farmer’s shooting of Patterson, the prosecutor argued that ‘as you might imagine from what happened eight or nine months before, it wasn’t Murder’s way to let things go.’

“In her summation, the second prosecutor asked the jury, ‘Now, when opening statements began in this case three weeks ago, you must have been saying to yourself: who would do such a thing? Who would execute a 14-year-old boy simply because he was wearing blue? Well, allow me to reintroduce you to the defendant. That would be Mr. Murder. He would do something like this.’ In the climax of the summation, the prosecutor commented that Farmer ‘really tried to prove himself a real gangster, to come up in the gang. You know, maybe live up to his name of Murder.’

“Finally, in her rebuttal to Farmer’s closing argument, the first prosecutor used the nickname ‘Murder’ nearly thirty times. She referred to ‘Murder . . . on the warpath’ the day he shot Patterson, and argued that ‘[i]n a word, . . . what happened in Pennsylvania was about revenge and power and being a tough gangster. It [was] about Murder living up to his name and his reputation as a Blood.’ The prosecutor closed the government’s case by admonishing the jury to ‘put the responsibility for these crimes where it belongs; and that is with defendant Laval Farmer, the Blood known as Murder.’”

Farmer, 583 F.3d at 144.

The opinion canvassed the case law in the Second Circuit and other circuits on the use of a defendant’s nickname:

• United States v. Mitchell, 328 F.3d 77, 83-84 (2d Cir. 2003) (references to the defendant’s nickname “Phox,” while “arguably inappropriate,” “were not prejudicial in view of the fact that they were brief and isolated and in light of the substantial evidence of guilt adduced by the government”)
• United States v. Burton, 525 F.2d 17, 19 (2d Cir. 1975) (affirming occasional reference to the defendant’s nickname “Big Time,” used on recorded telephone conversations; “In view of the fact that testimony as to the defendant’s nickname was relevant to the government’s case and therefore properly before the jury, the prosecutor’s occasional reference to the defendant by his nickname during the presentation of the government’s case, while certainly not to be encouraged, was not prejudicial and does not require the grant of a new trial.”)
• United States v. Aloi, 511 F.2d 585, 602 (2d Cir. 1975) (while critical of the use of nicknames of the defendants and witnesses (such as “Charlie Lamb Chops,” “Big Vinny,” “Philly Rags,” and “Checko Brown”), prejudice was not presumed where both the government and defense used the nicknames and the “epithets occasionally interspersed” throughout an eight-week trial were insufficient to “materially divert[] the attention of the jury”)

The following cases had considered the use of nicknames or aliases of the defendant in other circuits:

• United States v. Candelaria-Silva, 166 F.3d 19, 33 (1st Cir. 1999) (no error in including in indictment or admitting testimony of nickname “Macho Gatillo” (“Trigger Man”) where nickname was critical to establishing authorship of letter)
• United States v. Delpit, 94 F.3d 1134, 1146 (8th Cir. 1996) (permitting use of nickname “Monster” where it was not used to “suggest [defendant’s] bad character or unsavory proclivities” and where it could not be avoided in wiretaps)
• United States v. Black, 88 F.3d 678, 681 (8th Cir. 1996) (holding that reference to defendant as “the Jamaican” did not warrant reversal where name was not used in prejudicial manner and confidential informant only knew defendant by that name)
• United States v. Dean, 59 F.3d 1479, 1492 (5th Cir. 1995) (holding that the nickname “Crazy K” was “not necessarily suggestive of a criminal disposition”)
• United States v. Smith, 918 F.2d 16 1501, 1511, 1513 (11th Cir. 1990) (affirming conviction where nickname “Boss Man” was introduced as evidence defendant held a supervisory or managerial role in the enterprise whose members called him “Boss Man”)
• United States v. Hattaway, 740 F.2d 1419, 1425 (7th Cir. 1984) (using gang nicknames was permissible where gang members used nicknames in witness’s presence and “forbidding [the witness] from using the[] names would have placed an undue burden on her testimony”)
• United States v. Williams, 739 F.2d 297, 299, 300 (7th Cir. 1984) (noting the government “may introduce evidence of a defendant’s alias or nickname if this evidence aids in the identification of the defendant or in some other way directly relates to the proof of the acts charged in the indictment”; vacating mail-fraud conviction based on police detective testimony that he knew the defendant as “Fast Eddie” since “the detective’s testimony about the defendant’s nickname was completely unrelated to any of the other proof against the defendant,” and “[t]he prosecution’s only possible purpose in eliciting the testimony was to create an impression in the minds of the jurors that the defendant was known by the police to be an unsavory character or even a criminal”)
• United States v. Jorge-Salon, 734 F.2d 789, 791-92 (11th Cir. 1984) (noting that “[t]he alias . . . ‘The Egg,’ is similar to the alias ‘Red’ in Taylor which [that] court observed, ‘is no more than a nickname’”) (quoting United States v. Taylor, 554 F.2d 200, 203 (5th Cir. 1977))
• United States v. Clark, 541 F.2d 1016, 1018 (4th Cir. 1976) (per curiam) (holding that where an alias, “though proven, holds no relationship to the acts charged, a motion to strike [the alias from the indictment] may be renewed, the alias stricken and an appropriate instruction given the jury”)

From these cases, the Second Circuit noted that the use of nicknames was not barred automatically:

“[T]he suggestiveness of the nickname has not required exclusion, especially when it helped to identify the defendant, connect him to the crime, or prove other relevant matter, or when coherent presentation of the evidence entailed passing reference to it. In determining admissibility, however, the courts also considered whether the nickname’s probative value was substantially outweighed by its capacity for unfair prejudice. See Fed. R. Evid. 403; Dean, 59 F.3d at 1491. And even when admission of the nickname was found proper, the courts went on to consider the frequency, context, and character of the use that the prosecution made of it.”

Farmer, 583 F.3d at 146.

As to the case at bar, the Second Circuit held that the nickname could have been used to a limited extent by those witnesses who knew the defendant by the name. The trial court could have, and did not, take steps to mitigate the use of the nickname, including the use of curative instructions. However, since “identity was not an issue at trial,” other references to “the nickname had no connection ‘to the proof of the acts alleged.’” Farmer, 583 F.3d at 146 n.6 (quoting Mitchell, 328 F.3d at 84). The frequency of the nickname was excessive and suggested criminal disposition under FRE 404(a) (“[e]vidence of a person’s character or a trait of character . . . for the purpose of proving action in conformity therewith on a particular occasion”). The circuit concluded the government’s “tactical misuse of the nickname, no fewer than thirty times during the rebuttal summation in a presentation that occupies only sixteen transcript pages, amounted to a flagrant abuse.” Farmer, 583 F.3d at 147. The circuit summarized the process for considering the use of nicknames at trial:

“When a defendant charged with a crime of violence is identified before a jury by a nickname that bespeaks guilt, violence, or depravity, the potential for prejudice is obvious. Before receiving such evidence over a defendant’s objection, a trial court should consider seriously whether the probative value is substantially outweighed by any danger of unfair prejudice, Fed. R. Evid. 403, and whether introduction of the nickname is truly needed to identify the defendant, connect him with the crime, or prove some other matter of significance. Even so, a potentially prejudicial nickname should not be used in a manner beyond the scope of its proper admission that invites unfair prejudice. Federal Rule of Evidence 404(a) provides (with exceptions not applicable here) that ‘[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.’ It is the ethical obligation of the prosecutor, and the legal obligation of the court, to ensure that this rule is observed.

Farmer, 583 F.3d at 135.

In assessing the error on the jury convictions, the circuit considered the prejudice and weight of the evidence on each charge. One murder conviction was not impacted by the error given overwhelming evidence; consequently, the error was harmless. Another required vacating the murder conviction, as the error was not harmless. As the circuit noted:

“In sum, Farmer is entitled to a new trial for the Patterson shooting because of the government’s misuse of Farmer’s nickname, the district court’s failure to forestall or mitigate the prejudice, and the arguable strength of Farmer’s defenses to the charged offense. Farmer is not entitled to a new trial for the White murder or conspiracy to assault because there was no substantial prejudice given the certainty of conviction.”

Farmer, 583 F.3d at 148.

The Farmer case notes that nicknames may be used to “identify the defendant, connect him to the crime, or prove other relevant matter” and steps are taken to mitigate any undue prejudice. However, as demonstrated by the facts of the trial, the excessive use of nicknames may result in reversal on appeal.