In a rare interlocutory appeal in United States v. Garnes, 102 F.4th 628, the Second Circuit (Lynch, Nardini, and Kahn) reversed the district court’s decision excluding statements made by the defendant regarding his criminal history from evidence and remanded the matter for further consideration.  The Second Circuit’s decision should be understood as specific to cases in which the evidence of a defendant’s criminal history is relevant to the intent and acts at issue in a “true threats” prosecution.  However, some of the Court’s reasoning could impact the admission of similar evidence in broader contexts.

Background

In the Spring of 2022, Defendant-Appellee Quadri Garnes worked for the United States Postal Service (the “USPS”) for between one and two months.  Following the conclusion of that employment, Garnes filed for unemployment benefits.  His application was denied for ineligibility, as the USPS employment had not lasted long enough.

On September 29, 2022, Garnes called the New York Department of Labor (“DOL”) regarding his denied application.  Over the course of a 45-minute phone call with two DOL employees, Garnes “express[ed] his frustration” with the denial of his application.  His comments included a number of threats to “shoot individuals at the USPS and DOL” (including “Oh, so I gotta go to the post office and shoot the post office up” and “Somebody might get shot today coming out of Department of Labor”).  Several other statements indicated “Garnes’s reaction to the denial of benefits would land him in jail or prison” (such as “Y’all gonna make me go to jail”).  Finally, as relevant to the appeal, Garnes made five statements regarding his past convictions and incarceration:

I got 18 and a half years in jail.  I got 18 and a half years.  No, listen, listen, I have eight.

[T]o make myself not stop from robbing a bank.  They’re 18 and a half years in jail.

[L]ook, look, I got mad felonies.  I got like nine, 10 felonies, right?

Cause listen didn’t I just tell you I got 18 and a half years in jail.  It don’t bother me to be in jail.

And I told you I got 18 and [a] half years all together in jail, all together in prison.  [N]ot Rikers Island, state prison, state prison, Clinton, A[t]tica, Elm[i]ra state prison.  [M]aybe where your, where, where, where, where your place is in Albany.

On June 16, 2023, Garnes was charged in a superseding indictment with 18 U.S.C. § 115(a)(1)(B) and (b)(4), threatening to assault and murder specified officials (including employees of the USPS), and 18 U.S.C. § 875(c), transmitting in interstate commerce communications containing one or more threats to injure the person of another (for the threats against DOL employees).

On June 23, 2023, Garnes moved in limine to exclude the five statements he made regarding his past convictions and incarceration.  Over the government’s opposition, the district court granted Garnes’s motion in a docket order on July 7, 2023, confirmed in an oral ruling issued on July 10, 2023, and a written memorandum and order on July 12, 2023.  As explained in the written memorandum and order, the district court concluded that the statements were relevant under Federal Rule of Evidence 401, but held they were inadmissible under the balancing test of Rule 403.  The probative value of the five challenged statements was “limited” in light of the “ample” other available evidence, including Garnes’s explicit threats regarding shooting and killing DOL and USPS employees.  The district court then concluded that the statements—like any reference to a defendant’s criminal record—carried a high risk of unfair prejudice, confusing the issues, and misleading the jury.  In addition, Garnes’s statements inflated his criminal record, exacerbating the prejudice.  Accordingly, the district court excluded the statements.

The government’s interlocutory appeal from the motion in limine followed, arguing that the district court had abused its discretion in excluding the evidence.

The Opinion

On May 28, 2024, the Second Circuit reversed the district court’s decision.  Before discussing the balancing test under Rule 403, the Court revisited the district court’s relevance determination, concluding that the challenged statements were relevant to both the actus reus and mens rea for both charged statutes.  As the Supreme Court has held, the First Amendment requires that threat crimes include both an objective act and a subjective state of mind.  Counterman v. Colorado, 600 U.S. 66, 74 (2023).  The objective test looks to whether the statement constituted a “true” threat, meaning a reasonable person would view its “objective content” as threatening, or in other words, “serious expressions conveying that a speaker means to commit an act of unlawful violence.”  Id. at 72, 74.  The subjective test asks whether the speaker was at least reckless regarding “the threatening nature of his statements.”  102 F.4th at 633.  As Garnes’s statements “refer[ring] to, and indeed overstat[ing], his criminal history” could evidence both whether the listener believed it was a “true” threat and Garnes’s intent to communicate such a threat, the statements were relevant.  Id. at 637.

The Court acknowledged that relevant evidence could nonetheless be excluded pursuant to Rule 403, if the probative value of such evidence were outweighed by the unfair prejudice, and therefore turned to the balancing test.  The Court started by reviewing the probative value of the evidence by expanding on its discussion regarding the statements’ relevance.  The Court held that the statements were “highly probative” of both Garnes’s intent to threaten DOL and USPS employees, and of whether he made objective “true” threats.  Id. at 639-40.  In particular, the Court observed it was “obvious” that “a threat to shoot people will have a different, and more frightening, effect coming from someone the threatened person believes – because the threatener insists on telling him – to have spent nearly two decades in a series of notorious state penitentiaries for committing multiple felonies, than the same words coming from a random person.”  Id. at 640.

The Court further disagreed with the district court’s conclusion that the statements held limited probative value because of the presence of “ample” alternative evidence by which the Government could prove its case.  Relying on Old Chief v. United States, 519 U.S. 172, 181 (1997), the Court held that it is not the general probative force of the alternative evidence which is relevant, but rather whether the challenged evidence “conveyed distinctive probative force not conveyed” by the other statements.  102 F.4th at 640.  Because the references to Garnes’s criminal history could have a distinct effect on the listener from the unchallenged statements, they were “not distinguishable only by the risk inherent in the one and wholly absent from the other,” id. at 639 (quoting Old Chief, 519 U.S. at 191), and there was therefore no other equally persuasive alternate evidence.

Regarding unfair prejudice, the Court concluded that while “Garnes’s statements about his prior crimes may create some potential for unfair prejudice,” the risk was not significant enough to outweigh the probative value.  Id. at 641 (emphasis in original).  The Court explained that “[t]he point of the evidence is not that Garnes had a criminal record; it is that a jury could find that he used, and indeed exaggerated, his criminal record” to more effectively communicate his threats.  Id. (emphasis in original).  It further rejected that the exaggerations of Garnes’s criminal record exacerbated the prejudice, noting that “[t]he effect and intent of Garnes’s statements would be the same even if Garnes in fact had no criminal record at all – the recipients of the statements would never know the difference.”  Id.  “That Garnes exaggerated his criminal history does not provide an adequate basis to exclude the substantially probative evidence when the evidence could support an inference that he did so for the purpose of making his threats more credible.”  Id. at 642.

Considering the relative probative value and prejudice, the Court held that “an instruction to the jury that Garnes's account of his past was ‘inaccurate and should not be relied upon in any way for its veracity,’” as suggested by the Government, would be sufficient to prevent any unfair prejudice.  Id. (emphasis in original).  The Court therefore reversed the district court’s decision and remanded the case to determine the “precise wording” of the limiting instruction.  Id.

Discussion

The Court’s opinion in Garnes is likely to be a fairly limited holding, as the “true threats” charges gave rise to unique circumstances for evidence of prior bad acts and criminal history.  First, as “true threats of violence” are one of the “historically unprotected categories of communications” under the First Amendment, they are one of the few contexts in which a defendant’s own statements will constitute the charged act.  As the Court noted, it was significant that excluding portions of the charged statement “would prevent testimony from recipients of the threats about the effect that Garnes's statements, in their totality, had on them.”  Id. at 640.  The Court was reluctant to exclude some of the commentary surrounding the threats in a case where the charges were true threats of violence.

Second, the typical context for “bad acts” evidence arises where a party seeks to offer the evidence for the purpose of suggesting “an inference that the person acted on the occasion in question consistently with his character.”  F.R.E. 404, Notes of Advisory Committee on Proposed Rules.  Here, it was Garnes who introduced the issue of his prior criminal history (including the exaggerations), not the Government; while the Court did not address this issue directly, this opening of the door likely weighed in favor of reversal.  As the Court did note, the Government also sought to introduce these statements only to illustrate Garnes’s intent to communicate a threat, not for the truth of the assertions about criminal history.  While the district court was also required to evaluate the motion under Rule 403, this purpose would be permissible under Rule 404(b), which is specific to evidence of “other crimes.”  Id. at 641.  The Court further emphasized this proper purpose in providing guidance for the appropriate limiting instruction that would minimize risk of “inflame[ing] [the jury] to convict Garnes based on the belief that his (purported) past conduct showed him to be a dangerous felon.”  Id. at 642.

Nonetheless, several portions of the Court’s Rule 403 balancing test raise questions if given broader applicability beyond the limited context presented in Garnes.  Regarding the probative value analysis, the Court rejected the district court’s conclusion that the prosecution had “a generally strong case.”  Id. at 639.  Because of the “distinctive” probative value presented by Garnes’s discussion of his criminal history, it was of no moment that the district court believed statements such as “I gotta go to the post office and shoot the post office up” powerfully supported Garnes’s intent or the objective impact on listeners.  Whether alternative, less prejudicial evidence of “the same point” is available can turn on how a court defines “the same point,” 1 McCormick on Evid. § 185 (8th Ed.).  Garnes defined that concept narrowly.  It might be appropriate in other cases, however, for the district judge to employ a broader analysis, depending on the evidentiary context.

Next, the Court’s analysis of undue prejudice primarily reemphasized the probative value of the statements, noting that Garnes’s exaggeration of his criminal history “may ultimately be a crucial factor for the jury in considering whether Garnes had the requisite mental state.”  Id.  Why else talk about your serious criminal history if not to put fear into the heart of the listener?  While the significant probative value may have nonetheless outweighed it, one hopes that district court judges do not rely on this decision to minimize the possible undue prejudice of prior conviction evidence in future cases.

As the Court acknowledged, that “[e]vidence of other crimes … can lead a jury to convict a defendant because of his participation in the other crimes rather than because he is guilty beyond a reasonable doubt of the crime alleged,” or to “draw the unfair inference that the defendant had a propensity to commit crimes.”  Id. at 640-41 (quoting United States v. Manafzadeh, 592 F.2d 81, 86 (2d Cir. 1979)).  This is precisely why the district court excluded the evidence.  But it noted that the evidence in Garnes “differ[ed] from most cases dealing with the prejudicial effect of” other crimes evidence, because “[t]he effect and intent of Garnes’s statements would be the same even if Garnes had no criminal record at all.”  Id. at 641.  The Court did not, however, explain why the prejudice from a jury incorrectly inferring that a “defendant had a propensity to commit crimes” was lesser than prejudice where a jury received an accurate impression of a defendant’s criminal history.  After all, if the prior conviction should not be disclosed to the jury, then even an inaccurate description of the conviction should be prejudicial.

Ultimately, the Court accounted for the risk of undue prejudice—whether or not such prejudice was more limited than present in other cases addressing “other crimes” evidence—by requiring a limiting instruction.  While such limiting instructions are available in the typical context where evidence of a defendant’s prior crimes is introduced, the instruction in Garnes could also inform the jury that Garnes’s statements were inaccurate.  Id. at 634.  It can be hoped that this will help relieve the prejudice, particularly given that the government’s theory of admissibility is that Garnes intentionally exaggerated his criminal history to make his threats more effective.

Finally, we note that interlocutory appeals about the admission of evidence are uncommon.  For one thing, if the district court’s decision had been made in the favor of the government, it would only be reviewable after conviction and sentence.  The government is allowed to take such an interlocutory appeal only because an error in the favor of the defense will not lead to a new trial, which will be barred by double jeopardy.  Title 18, United States Code, Section 3731 permits such an appeal where the government is challenging “a decision or order of a district court suppressing or excluding evidence,” so long as the appeal is “not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information.”  In addition, to take such an appeal, the United States Attorney must certify to the district court “that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.”  Despite this provision, government appeals such as this one are uncommon.