U.S. v. Bailey — criminal — affirmance — McKee

The Third Circuit today held that a district court violated Rule 403 of the Federal Rules of Evidence when it admitted evidence of the defendants’ other bad acts, but that the error was harmless given the overwhelming evidence of their guilt. The defendants were convicted of heroin dealing; the erroneously admitted evidence included a surveillance video of a murder that was related to their drug trafficking. The court noted that it was disturbed by the prosecution’s tactic in using the murder video and “extremely troubled” by the district court’s admission of it, noting (cites omitted):

The extent of the district court’s [Rule 403] balancing regarding this piece of evidence was an off-handed and rather casual remark that the video of James being shot in the head at point blank range “wasn’t very graphic.” With that comment, the district court concluded that the video evidence would be admitted. For reasons known only to the court, the judge added that the admission of this evidence would give the defendants “an appeal issue.” The court was right.

Zing. And because the district court did not explain its 403 reasoning, the Third Circuit didn’t even apply the deferential abuse-of-discretion standard it normally would. But after the obligatory impotent Berger quote — which the opinion itself admitted “seems all too often to resemble the falling tree that no one hears” — the court found the error harmless and affirmed.

The opinion included this remarkable footnote:

Chief Judge McKee notes that he will begin naming attorneys who engage in such tactics in his opinions in order to deter such conduct. He hopes that this practice will stress that harmless error review is not an invitation to resort to unduly prejudicial tactics merely because the evidence is strong enough to obtain a conviction that will likely be immunized against reversal by the harmless error doctrine. He invites his colleagues to do the same.

Well, I’m not his colleague, but the docket lists as lead trial counsel for the prosecution Patrick C. Askin.

Joining McKee were Jordan and Roth. Arguing counsel were John Holiday, Gina Capuano, William Spade, and James Murphy for the four defendants and Norman Gross for the government.

Hargus v. Ferocious and Impetuous — maritime — reversal — Vanaskie

In the circuit’s most interestingly captioned case of the year to date, the Third Circuit today vacated a civil judgment for lack of maritime jurisdiction. And you don’t see this every day:

It bears noting that no entry of appearance was made on behalf of Hargus. Nor was a brief filed on his behalf and neither Hargus nor an attorney acting on his behalf participated in oral argument.

Vanaskie was joined by Fuentes and Restrepo. Arguing counsel was Matthew Duensing of the Virgin Islands for the appellants.