United States v. Cummings
858 F.3d 763, 2017 WL 2431984, 103 Fed. R. Serv. 820 (2017)
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Rule of Law:
The erroneous admission of highly prejudicial double hearsay evidence, such as a death threat, constitutes reversible error when it is not accompanied by a limiting instruction and the prosecution emphasizes it as substantive proof of guilt, creating a substantial risk that the jury used it as impermissible propensity evidence.
Facts:
- From 2006 to 2012, Armani Cummings was a leader of a drug trafficking organization that sold crack cocaine in the Bronx.
- Cummings's organization competed violently with a rival group for control over a lucrative drug-selling location known as 'the Carter'.
- Laquan Jones, a former member of Cummings's group, joined the rival organization, escalating the conflict.
- On January 14, 2010, Cummings shot and killed Laquan Jones.
- In retaliation for Jones's death, members of the rival organization shot and killed Travis Geathers, a close friend and member of Cummings's organization.
- On June 9, 2010, Cummings shot and killed Carl Copeland, a member of the rival organization who was allegedly involved in Geathers's murder.
- While incarcerated awaiting trial, Cummings was housed in the same facility as a cooperating witness, Jim Volcy.
- According to Volcy, Cummings threatened to 'shoot [him] in the face,' but Volcy admitted he did not hear this directly from Cummings, but rather 'indirectly' from 'people around me.'
Procedural Posture:
- Armani Cummings was charged in a superseding indictment in the U.S. District Court for the Southern District of New York with drug conspiracy, murder, and firearms offenses.
- Prior to trial, the government filed a motion in limine to admit testimony from witness Jim Volcy about an alleged death threat.
- The district court granted the motion, ruling the evidence admissible to show consciousness of guilt, 'subject to an appropriate limiting instruction.'
- At trial, Volcy testified about the threat, which was revealed to be double hearsay. The defense's objection was overruled by the court.
- The district court failed to provide a limiting instruction regarding the threat testimony either at the time of admission or in the final jury charge.
- A jury in the trial court convicted Cummings on all eight counts.
- The district court denied Cummings’s post-trial motions for a new trial and sentenced him to 75 years’ imprisonment.
- Cummings (Appellant) appealed his conviction to the U.S. Court of Appeals for the Second Circuit, challenging the admission of the death threat testimony.
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Issue:
Does a trial court commit reversible error by admitting double hearsay testimony of a defendant's death threat when the evidence is highly prejudicial, lacks a limiting instruction, and creates a substantial risk of being used by the jury as propensity evidence?
Opinions:
Majority - Pooler, Circuit Judge
Yes, the trial court committed reversible error. The admission of the death threat testimony was an abuse of discretion because it constituted inadmissible double hearsay, and the error was not harmless. Volcy's testimony involved two out-of-court statements: 1) Cummings's alleged threat to a third party, and 2) the third party's statement relaying that threat to Volcy. While the first statement might be admissible as a party-opponent's statement, the second statement was inadmissible hearsay offered for the truth of the matter asserted—that the third party actually heard the threat—and no hearsay exception applied. The error in admitting this testimony was not harmless because the death threat evidence was 'toxic' and highly prejudicial. Its similarity to the charged murder crimes created a grave risk that the jury would use it as impermissible propensity evidence. This risk was magnified by the district court's failure to provide a limiting instruction and the prosecutor's summation, which improperly characterized the threat as 'devastating proof of [Cummings’s] crimes' rather than merely as evidence of consciousness of guilt.
Analysis:
This decision emphasizes the highly prejudicial and 'toxic' nature of death threat evidence and reinforces the procedural safeguards required for its admission. The court's detailed harmless error analysis illustrates how an evidentiary error can be compounded by the lack of a limiting instruction and improper prosecutorial argument, ultimately tainting a conviction. The case serves as a strong precedent on the application of the double hearsay rule (FRE 805) and demonstrates that even in a case with substantial evidence of guilt, fundamental trial errors that risk luring a jury into a conviction based on character or propensity will lead to reversal.
