Federal Evidence Review

In organized crime trial, cooperating witness's testimony that a co-conspirator had threatened the murder of the wives and children of cooperating witnesses was admitted as (1) relevant under FRE 401 to whether the witness could “recall previous conversations without having been coached by the Government and (2) not unfairly prejudicial under FRE 403 even though it was “highly inflammatory” and alternative means could have been used to present similar evidence, in United States. v. Massino, 546 F.3d 123 (2d Cir. Oct. 10, 2008) (per curiam) (No. 07-1618-CR)

It is not often that an appellate court finds the trial court erred by admitting unfairly prejudicial evidence under FRE 403. Often, the boundaries between probative evidence that is naturally prejudicial to the defendant and that which is unfarily prejudicial is not clear. In a case in 2008, the Second Circuit demonstrated the deference a trial judge was entitled to in answering the "difficult question" of whether proffered rebuttal testimony crossed the line into the realm of unfair prejudice. The circuit noted its discomfort with the call made by the trial judge, noting that whether alternative means were available to prove the issue in dispute should be considered in weighing probative value with possibilities of unfair prejudice. The circuit concluded that the trial judge did not abuse his discretion in admitting the challenged evidence, even if the appellate judges might make a different call.

In the case, Defendants DeFilippo and Basciano were prosecuted for their racketeering, illegal gambling and collection on an extension of credit through extortionate means with the Bonanno Organized Crime Family. At trial, a cooperating witness (Tartaglione, a high-ranking family member of the organization) testified concerning 40 conversations with co-conspirators that he secretly recorded. Two of these recordings were played at trial. On direct examination, the cooperating witness recounted two recorded conversations and during cross-examination, the defense suggested the witness could not recall the two conversations and was coached by the government. During redirect examination, the prosecutor asked about a particular recorded conversation:

Government:

Do you remember a comment about the murdering the wives and children of cooperating witnesses?

Tartaglione:

Yes.

Government:

Can you explain to the jury what was said by Mr. Urso? [highest ranking member of the Bonanno Crime Family not imprisoned]

Tartaglione:

That anybody that’s cooperating that we should hack out their kids or the family, just so -- and throw them in the streets and make a lesson out of this.

Government:

Why would that make a lesson?

Tartaglione:

That if you became a cooperator, you would have second thoughts about being a cooperator. . . .

Massino, 546 F.3d at 131-32.

The defense objections that the questioning was irrelevant and unfairly prejudicial were overruled by the trial judge. Defendant DeFilippo was convicted by the jury and imprisoned. On appeal, he claimed the trial court erred in admitting the “killing kids” testimony.

The circuit affirmed the admission of the testimony as relevant. Specifically it was relevant “to Tartaglione’s ability to recall previous conversations without having been coached by the Government," an issue that the defense made relevant by its cross-examination of the witness. Massino, 546 F.3d at 132.

The circuit was more cautious regarding whether the child-killing testimony was unfairly prejudicial under FRE 403. The circuit found this the "more difficult question" posed by the defendant's case. The circuit was concerned by the inflammatory example of murdering cooperating witnesses and their children that the government used to rehabilitate the cooperating witness’s credibility and ability to remember certain events. The circuit noted a set of general principles to guide its evaluation of the question:

"We 'uphold Rule 403 rulings unless the district court has abused its discretion.' Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008). '[S]o long as the district court has conscientiously balanced the proffered evidence's probative value with the risk for prejudice, its conclusion will be disturbed only if it is arbitrary or irrational.' In light of the deferential nature of our review, 'appellate courts reviewing a district court's evaluation of evidence under Federal Rule of Evidence 403 "generally maximiz[e] its probative value and minimiz[e] its prejudicial effect." ’ ”.

Massino, 546 F.3d at 132 (citing United States v. Awadallah, 436 F.3d 125, 131 (2d Cir. 2006); United States v. LaFlam, 369 F.3d 153, 155 (2d Cir. 2004) (alterations in original) (quoting United States v. Downing, 297 F.3d 52, 59 (2d Cir.2002)))

"Although our review is deferential," noted the circuit, "it is informed by several guiding principles" including whether alternative means were available to have the same probative effect. Massino, 546 F.3d at 132 (citing Old Chief v. United States, 519 U.S. 172, 184-85 (1997) (“when Rule 403 confers discretion by providing that evidence ‘may’ be excluded, the discretionary judgment may be informed not only by assessing an evidentiary item’s twin tendencies, but by placing the result of that assessment alongside similar assessments of evidentiary alternatives”); United States v. Awadallah, 436 F.3d 125, 132 (2d Cir. 2006) (FRE 403 balance “informed by the availability of alternative means to present similar evidence”)))

Despite these concerns, the circuit was compelled to conclude that the trial court did not abuse its discretion in admitting the testimony:

We are troubled by the Government's decision to rehabilitate Tartaglione's credibility and demonstrate his ability to remember past events through the use of Urso's highly inflammatory statement. The Government asserts that because Tartaglione testified that neither defendant was present when the quoted speaker (Urso) made the offending statement, any prejudicial impact of Urso's statement was thus removed. We disagree. After eliciting Urso's statement from Tartaglione-and thereby demonstrating Tartaglione's ability to remember, which was the asserted reason for asking about the statement-the Government continued and asked Tartaglione about why the Family would seek to punish cooperating witnesses and about Urso's leadership position in the Family. This further questioning went far beyond establishing Tartaglione's ability to remember other recorded conversations. It proved that Urso was stating Family policy. We have little doubt that it was intended 'to have [this] adverse effect upon [DeFilippo],” an effect that went well beyond the purpose that “justified its admission into evidence.'

"Our concern is compounded by our confidence that the Government could have sought to rehabilitate Tartaglione's credibility with any one of a number of 'evidentiary alternatives' to Urso's highly prejudicial statements about killing the children of cooperating witnesses. Tartaglione had recorded 38 conversations. We have difficulty believing that none of those conversations included memorable yet neutral (or less inflammatory) statements about which Tartaglione could have testified. The abundance of the possible rehabilitating evidence, along with the extreme nature of the evidence the Government chose to use, strongly suggests that it was precisely the 'unfairly prejudicial' effect of Urso's statement that caused the Government to select it.

"We nevertheless find that the district court did not abuse its considerable discretion when it admitted Tartaglione's testimony about Urso's statement notwithstanding DeFilippo's Rule 403 challenge. Despite our misgivings about the Government's conduct in introducing the testimony it did through Tartaglione, the district court “conscientiously balanced the proffered evidence's probative value with the risk for prejudice” and its ruling was not 'arbitrary or irrational,' Accordingly, we defer to its judgment."

Massino, 546 F.3d at 133 (citations omitted).