United States v. Curley

09-3314-cr
United States v. Curley

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term 2010
(Argued: January 13, 2011 Decided: April 25, 2011)

Docket No. 09-3314-cr

UNITED STATES OF AMERICA,
Appellee,

v.

JAMES CURLEY, ALSO KNOWN AS JIM HARRIS,
Defendant-Appellant.

Before:
JACOBS, Chief Judge, and
WESLEY and CHIN, Circuit Judges.
Appeal from a judgment of the United States

District Court for the Southern District of New York

(Stephen C. Robinson, J.) convicting defendant-appellant of
interstate stalking and interstate violation of a protective
order. Pursuant to Rule 404(b) of the Federal Rules of

Evidence, the district court admitted evidence of prior and
subsequent "bad acts" of defendant-appellant and prior "bad
acts" of his brother. We hold that the district court

abused its discretion, and we vacate the conviction and
remand for a new trial.
 VACATED and REMANDED.
KATHRYN MOORE MARTIN, Assistant United
States Attorney (Daniel L. Stein,
Assistant United States Attorney, on
the brief), for Preet Bharara,
United States Attorney for the
Southern District of New York, New
York, New York, for Appellee.
ERIC H. JASO (Jeffrey A. Shooman, on the
brief), Stone & Magnanini LLP, Short
Hills, New Jersey, for Defendant-
Appellant.
CHIN, Circuit Judge:

In this case, defendant-appellant James Curley
("Curley") was convicted of stalking and harassing his wife

Linda in the summer and fall of 2006 in violation of 18

U.S.C. §§ 2261A and 2262(a)(1). At trial, the district
court admitted evidence that: (1) Curley had abused Linda

over the course of many years, (2) his brother had abused

Linda some sixteen years earlier, and (3) Curley was the

subject of a subsequent traffic stop during which his last

will and testament, rifles, ammunition, a bulletproof vest,
and a ski mask were found in his rental car. For the

following reasons, we hold that the district court abused
its discretion when it admitted evidence of the brother's
actions and the traffic stop. Accordingly, we vacate the

conviction and remand for a new trial.

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 STATEMENT OF THE CASE
A. The Facts1

By 2006, Curley's twelve-year marriage to Linda
had deteriorated. Curley's behavior had become erratic and,

in May 2006, he demanded a divorce. Three times in the
following month, he threatened to kill her. First, during

an argument, Curley threatened to kill her and "leave [her]
body in a pool of blood." Second, while they were in the
car with their two children, he again threatened to kill her

and promised he would not go to jail if he did. Third,

after returning from a walk, Curley told Linda: "I found a

place today where I could kill you and nobody would hear you

scream."
In July 2006, Curley served Linda with divorce

papers accusing her of infidelity. Linda then filed for

divorce herself and sought an order of protection and
custody of the children. From July to August 2006, Linda
regularly noticed Curley's truck following her and once saw

his sister following her. She grew so frightened that she

called the police and told them: "I really, really think
he's gonna kill me . . . . Either him or his brother,
somebody's gonna kill me." In August 2006, the Rockland

1
In an evidentiary challenge, "[w]e view the evidence in
the light most favorable to the government." United States v.
Vitale, 459 F.3d 190, 191 (2d Cir. 2006).

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County Family Court granted Linda custody of the children
and issued an order prohibiting Curley from, inter alia,

assaulting, stalking, harassing, or intimidating her.
Thereafter, Linda no longer saw him following her, but

Curley began to track her through a G.P.S. device he placed
on her vehicle. Curley's friend tracked the device's
movements through an Internet website and forwarded the

information to Curley. From August to October 2006, someone
accessed the G.P.S. tracking website over 200 times.

In October 2006, Linda was involved in a car

accident in New Jersey, and when she took her car to a
nearby repair shop, a mechanic discovered the G.P.S. device.

On October 9, 2006, Curley drove from New York to the repair

shop in New Jersey. While speaking with the owner, Curley
lied about his identity, giving varying reasons for his

visit. After the owner wrote down the vehicle

identification number of Curley's vehicle, Curley tried to

alter the owner's notation. The owner reported the incident
to the police and turned the G.P.S. device over to them.
B. Proceedings Below

The government indicted Curley on May 8, 2008. It
filed a superseding indictment on October 22, 2008, charging

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Curley with two counts of interstate stalking 2 and one count
of interstate violation of a protection order. 18 U.S.C. §§

2261A, 2262(a)(1).
By letter dated January 12, 2009, the government

requested rulings in limine on the admissibility of certain
evidence it intended to present at trial. The government

sought to introduce testimony about the following incidents
of Curley's physical abuse of Linda:
! in August 2006, Curley grabbed Linda while she

was holding their infant son and would not let her go;
! in 2005, he pushed Linda into a wall while she

was pregnant;

! in either 2001 or 2002, he pushed Linda into a

door while she was pregnant; and
! in 1991, he shoved her and banged her head

against the floor.

The government also sought permission to elicit
Linda's testimony that Curley's brother, Michael, beat her

2
Specifically, count one charged Curley with using an
Internet website "to engage in a course of conduct that caused
substantial emotional distress to [Linda] and placed [her] in
reasonable fear of . . . death . . . and serious bodily injury,"
while possessing the intent to kill, injure, harass, or place
Linda under surveillance with the intent to kill, injure, harass,
intimidate, or cause substantial emotional distress. See 18
U.S.C. § 2261A. Count two charged Curley with traveling from New
York to New Jersey with the same intent and causing the victim
substantial emotional distress. See id.

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in 1990 and that Curley later instructed her not to report
the incident to the police.

Finally, the government sought to introduce

evidence of Curley's traffic stop in January 2008. Police
officers stopped Curley because he was driving a rental car

that had been reported stolen. Curley fled on foot and was
arrested. The police recovered three black powder rifles
(one of which was loaded), ammunition, a bulletproof vest,

and a ski mask from the car.
By order dated January 29, 2009, the district

court admitted the four incidents of Curley's own violent

acts against Linda. The court ruled that the evidence was
either "inextricably intertwined with the charged conduct"

or "relevant to the issue of intent" under Rules 404(b) and

403 of the Federal Rules of Evidence. The court barred the

evidence of Michael's abuse of Linda and the traffic stop.
By letter dated February 25, 2009, the government

sought to introduce new evidence regarding Linda's
relationship with Michael and asked the court to reconsider
its previous ruling. The government had learned that police

had arrested Michael in 1994 for resisting arrest and
assaulting an officer. Under pressure from Curley and

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Michael, Linda testified falsely at Michael's criminal trial
and in Michael's subsequent civil action against the police.

At a pretrial conference on March 5, 2009, the
district court reconsidered its earlier ruling and decided

"it[] [was] fair for [Linda] to say part of the reason that
[she] was in fear was that [she] knew that the defendant
would be assisted by his family members" because the

government had to establish Linda's reasonable fear. The
court indicated it was "more troubled" when there was only a

single incident with Michael, but the several incidents,

including evidence that Curley's sister followed Linda in
2006, formed a basis for Linda's fear that "this Curley clan

. . . will come after her." The court reasoned that Linda's

"course of dealing" with Curley and Michael "could place a
person in fear, reasonable fear of death or serious bodily

injury." Thus, the court admitted the testimony of both

incidents involving Michael pursuant to Rule 404(b). 3
At the same conference, the government revealed a
handwritten "Last Will and Testament" recently found in

Curley's rental car after the 2008 traffic stop and
requested that the court reconsider admitting that evidence.
The will indicated Curley's desire to leave all his

3
The court explained that incidents involving Michael
were being considered under Rule 404(b); but the surrounding
colloquy suggests they were admitted as intrinsic to the charged
offense.

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belongings to his children and asked his sister "to take
care" of them. At the time of the arrest, Linda had sole

custody of the two children. The government argued that the

jury could infer from the will that Curley expected Linda to
die before him. Because the will was handwritten, the

government argued that Curley expected his own death

imminently. Therefore, the government argued, the will,
rifles, ammunition, and bulletproof vest showed that Curley
was planning to murder Linda and then commit suicide.

At a pretrial hearing on March 9, 2009, the court
admitted the traffic stop evidence pursuant to Rule 404(b).

The court explained that it had previously denied admission

under Rule 403 because the evidence's prejudicial effect
substantially outweighed its probative value. According to

the district court, however, the newly discovered evidence

"add[ed] significantly to the probative value" of the

traffic stop and helped prove Curley's intent to commit the
2006 crimes.

Trial commenced on March 9, 2009. Linda testified

about Curley's prior violent acts, the incidents involving
Michael, and the forced perjury. The trial judge did not
immediately issue an instruction about this evidence's

limited purpose. Two police officers testified about the
January 2008 traffic stop and the search that uncovered the

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rifles, ammunition, bulletproof vest, and ski mask. The
government also showed a video of the traffic stop, which

showed Curley fleeing on foot from the police. Finally, an
employee of the rental car company testified about

discovering the will. Before the traffic stop evidence was
presented, the trial judge instructed the jury that the
evidence was offered "for th[e] very specific purpose [of

determining] what was [Curley's] intent back at the time of
the acts charged in the Indictment." In its charge to the

jury after summations, the judge reminded the jury that it

could only rely on the traffic stop evidence to infer
Curley's intent in 2006. The court then instructed the jury

for the first time that it could rely on evidence that

Curley and his brother abused Linda only to infer Linda's
reasonable fear.

On March 19, 2009, the jury convicted Curley on

all counts. The jury made specific findings that Curley

committed interstate stalking under counts one and two with

the intent to harass Linda and to place her under
surveillance with the intent to harass, intimidate, and

cause substantial emotional distress. Although the jury did
not find that Curley had the intent to kill or injure Linda,
it did find that his course of conduct caused Linda

substantial emotional distress and placed her in reasonable

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fear of death or serious bodily injury. On July 29, 2010,
after calculating a Guidelines range of forty-one to fifty-

one months, the district court sentenced Curley to
concurrent sixty-month terms of imprisonment, followed by

concurrent three-year terms of supervised release.
This appeal followed.
DISCUSSION

A. Applicable Law

Rule 404(b) of the Federal Rules of Evidence

governs the admissibility of evidence of prior or subsequent

"bad acts" -- evidence of "crimes, wrongs, or acts" other
than those charged in the indictment. Fed. R. Evid. 404(b).

The rule prohibits the admission of such evidence if it

"prove[s] the character of a person" to show his propensity
to commit the charged act, but permits its admission for

other purposes. Id. This Circuit follows the

"inclusionary" approach, which admits all "other act"

evidence that does not serve the sole purpose of showing the
defendant's bad character and that is neither overly
prejudicial under Rule 403 nor irrelevant under Rule 402.

United States v. Pascarella, 84 F.3d 61, 69 (2d Cir. 1996).
Even under this approach, however, district courts should
not presume that such evidence is relevant or admissible.

United States v. Halper, 590 F.2d 422, 432 (2d Cir. 1978).

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 A district court's evidentiary rulings are subject
to review for abuse of discretion. United States v.

Mercado, 573 F.3d 138, 141 (2d Cir. 2009). When reviewing
evidence admitted pursuant to Rule 404(b), we consider

whether: "(1) the prior crimes evidence was 'offered for a
proper purpose'; (2) the evidence was relevant to a disputed
issue; (3) the probative value of the evidence was

substantially outweighed by its potential for unfair
prejudice pursuant to Rule 403; and (4) the court

administered an appropriate limiting instruction." United

States v. McCallum, 584 F.3d 471, 475 (2d Cir. 2009) (citing
Huddleston v. United States, 485 U.S. 681, 691-92 (1988)).

"Other act" evidence serves a proper purpose so

long as it is not offered to show the defendant's propensity
to commit the offense. See Fed. R. Evid. 404(b); United

States v. Pitre, 960 F.2d 1112, 1118-19 (2d Cir. 1992).

Rule 404(b) provides that such evidence may properly show

"motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident," Fed. R. Evid.
404(b), but this list is not exhaustive, United States v.

Williams, 577 F.2d 188, 192 (2d Cir. 1978); see also United
States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986);
United States v. Johnson, 634 F.2d 735, 737 (4th Cir. 1980).

The district court may admit evidence that serves any "non-

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propensity purpose," including state of mind. United States
v. Edwards, 342 F.3d 168, 176, 180 (2d Cir. 2003); see also

United States v. Teague, 93 F.3d 81, 84 (2d Cir. 1996).
To satisfy the relevance inquiry, the evidence

must be "sufficiently similar to the conduct at issue to
permit the jury reasonably to draw from that act the [state
of mind] inference advocated by the proponent of the

evidence." United States v. Peterson, 808 F.2d 969, 974 (2d
Cir. 1987). The district court must consider all the

evidence presented to the jury and determine whether a

reasonable jury could find the advocated inference.
Huddleston, 485 U.S. at 690; United States v. Ramirez, 894

F.2d 565, 569 (2d Cir. 1990). The court abuses its

discretion if the evidence is "not sufficiently similar" to
the charged conduct or if "the chain of inferences necessary

to connect [the] evidence with the ultimate fact to be

proved [is] unduly long." Peterson, 808 F.2d at 974

(internal quotation marks omitted).
If the evidence is relevant, the district court
must determine if its potential for unfair prejudice

substantially outweighs its probative value. See Fed. R.
Evid. 403. The evidence's probative value "depends largely
on whether or not there is a close parallel between the

crime charged and the acts shown." United States v. Gordon,

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987 F.2d 902, 908 (2d Cir. 1993) (internal quotation marks
omitted). Evidence is unfairly prejudicial when "it tends

to have some adverse effect upon a defendant beyond tending
to prove the fact or issue that justified its admission into

evidence." United States v. Massino, 546 F.3d 123, 132 (2d
Cir. 2008) (internal quotation marks omitted)). If the
other acts tend to prove a fact not in issue or "to excite

emotions against the defendant," they create a prejudicial
effect. United States v. Figueroa, 618 F.2d 934, 943 (2d

Cir. 1980). The district court abuses its discretion when

it admits "other act" evidence with a high possibility of
jury misuse but with only slightly more probative value than

other evidence on the same issue. See McCallum, 584 F.3d at

477.
In our review, we will also consider whether the

district court issued an appropriate limiting instruction.

Although the law presumes that juries follow limiting

instructions, United States v. Snype, 441 F.3d 119, 129 (2d
Cir. 2006), these instructions only minimize the evidence's
prejudicial effect, Figueroa, 618 F.2d at 943. A limiting

instruction "does not invariably eliminate the risk of
prejudice notwithstanding the instruction." Id.
If error did occur in the trial below, we will not

vacate the conviction if the error was harmless and "d[id]

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not affect substantial rights." Fed. R. Crim. P. 52(a).
The erroneously admitted evidence is harmless if it "was

unimportant in relation to everything else the jury
considered on the issue in question." Cameron v. City of

New York, 598 F.3d 50, 61 (2d Cir. 2010) (quoting United
States v. Germosen, 139 F.3d 120, 127 (2d Cir. 1998)).
Several factors bear on this inquiry: "'whether the

testimony bore on an issue that is plainly critical to the
jury's decision, whether that testimony was material to the

establishment of the critical fact or whether it was instead

corroborated and cumulative, and whether the wrongly
admitted evidence was emphasized in arguments to the jury.'"

Id. (quoting Wray v. Johnson, 202 F.3d 515, 526 (2d Cir.

2000)). "[T]he most critical factor," however, is "the
strength of the government’s case." McCallum, 584 F.3d at

478. Unless there is "fair assurance" that "the judgment

was not substantially swayed by the error, it is impossible

to conclude that substantial rights were not affected."
Kotteakos v. United States, 328 U.S. 750, 765 (1946); see
United States v. Rea, 958 F.2d 1206, 1220 (2d Cir. 1992).
B. Application

We consider the admissibility of three sets of
evidence: first, Curley's prior abuse of Linda; second,

Michael's interactions with Linda, including his abuse of

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Linda in 1990; and third, the traffic stop and the items
discovered in the car. The district court admitted all of

this evidence as probative of Curley's intent and/or Linda's
fear. Both states of mind were relevant to the charged

crimes, see 18 U.S.C. §§ 2261A(1), 2262(a)(1), and thus the
evidence served a proper purpose and was relevant to that
extent, see Teague, 93 F.3d at 84.4 Our review, therefore,
focuses on whether the probative value of the evidence was

substantially outweighed by the risk of unfair prejudice and
whether there was a sufficient limiting instruction.

McCallum, 584 F.3d at 475.
1. Curley's Abuse of Linda

The district court did not abuse its discretion in

admitting evidence of Curley's abuse of Linda.

4
Curley's intent was an element of both the stalking and
protective order counts. See 18 U.S.C. §§ 2261A(1), 2262(a)(1).
Linda's fear was an element only of the stalking count, but the
issue of Linda's fear was relevant to the protective order count
because the jury could convict Curley on the protective order
count if it found Curley had committed stalking under New York
law. See 18 U.S.C. § 2262. And, as the district court
instructed the jury, a person is guilty of stalking under New
York law where he "engages in a course of conduct directed at a
specific person, and knows or reasonably should know that such
conduct . . . is likely to cause reasonable fear of material harm
to the physical health, safety or property of such person
. . . ." N.Y. Penal Law § 120.45 (McKinney 2011) (emphasis
added). Thus, even though the victim's fear is not an express
element of the protective order count, evidence of the victim's
fear may be relevant to what the defendant knows or reasonably
should know as to the victim's likely fear for the underlying New
York crime of stalking.

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 First, Curley's abuse of Linda in August 2006 was
part of or inextricably intertwined with the charged

conduct. He grabbed Linda while she was holding their one-
year-old son during the same period that he was tracking her

with the G.P.S. device. This act was directly relevant to
his intent and her fear. See United States v. Carboni, 204
F.3d 39, 44 (2d Cir. 2000) (noting that uncharged acts are

not "other acts" subject to Rule 404(b) if they "arose out
of the same transaction or series of transactions as the

charged offense, if [they are] inextricably intertwined with

the evidence regarding the charged offense, or if [they are]
necessary to complete the story of the crime on trial");

accord United States v. Quinones, 511 F.3d 289, 309 (2d Cir.

2007) (quoting United States v. Concepcion, 983 F.2d 369,
392 (2d Cir. 1992)).

Second, the evidence of Curley's abuse of Linda in

the earlier years, i.e., 1991, 2001 or 2002, and 2005, was

also relevant and not unfairly prejudicial. Where the
charged conduct involves domestic abuse, a spouse's history
of domestic violence is relevant to show intent to harass or

intimidate his partner. See United States v. Von Foelkel,
136 F.3d 339, 340-41 (2d Cir. 1998) (per curiam) (ruling
that the district court did not abuse its discretion in

admitting evidence of prior domestic violence to prove

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intent to violate protection order). Specifically, the
government had to prove that Curley possessed the intent to

either kill, injure, harass or intimidate Linda and that she
had a reasonable fear of death or serious bodily injury.

See 18 U.S.C. §§ 2261A, 2262(a)(1).
The earlier acts demonstrated a pattern of
activity that was probative of Curley's intent and Linda's

reasonable fear. These were aggressive acts against Linda
that were similar in nature and severity to the charged

conduct: Curley's threats to kill Linda and his actions in

stalking and tracking her.
The temporal remoteness of these acts does not

preclude their relevancy. The district court may exclude

older acts if they have become "too attenuated" to be
relevant or too remote to render the witness's memory

reliable, see United States v. Larson, 112 F.3d 600, 605 (2d

Cir. 1997), but that was not the case here. Although the

incidents pre-dated the charged conduct by as much as
fifteen years, collectively they demonstrate a pattern of
activity that continued up to the time of the charged

conduct. See Howard Opera House Assocs. v. Urban
Outfitters, Inc., 322 F.3d 125, 128-29 (2d Cir. 2003)
(affirming entry of prior violations to show "pattern of

behavior" and intent).

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 Furthermore, the district court did not abuse its
discretion in concluding that the probative value of this

evidence outweighed any unfair prejudice. Because Curley's
prior acts paralleled the charged conduct, insofar as they

involved violent treatment of his wife, they had greater
probative value. See Gordon, 987 F.2d at 908. Moreover,
the other acts were not unfairly prejudicial as they were no

"more sensational or disturbing than the crimes with which
[Curley] was charged." United States v. Roldan-Zapata, 916

F.2d 795, 804 (2d Cir. 1990). Finally, the district court's

charge to the jury, which included an appropriate
instruction on this evidence's limited purpose, mitigated

any lingering risk of prejudice.

Accordingly, we hold that the district court did
not abuse its discretion in admitting evidence of Curley's

prior bad acts.
2. Michael's Interactions with Linda

We conclude that the district court abused its
discretion when it allowed Linda to testify that Michael
beat her in 1990 and that Curley later pressured her to lie

in court about Michael's assault of a police officer in
1994. This evidence was not sufficiently similar to the
charged crimes to allow the jury to reasonably infer Linda's

fear. See Peterson, 808 F.2d at 974. Curley was charged

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with traveling across state lines with the intent to harass
or intimidate Linda, and with using a computer for the same

illegal purpose. There was no allegation that Curley
conspired with his brother or his family to commit these

crimes.
Furthermore, Michael's activities did not parallel
any of the underlying conduct. No evidence was presented

that Michael or any other family member accompanied Curley
to the New Jersey repair shop or otherwise participated in

the charged conduct. The government argued that the perjury

scheme was similar to Curley's threat to kill Linda and
escape punishment because both showed that criminal

punishment did not deter Curley. True, when Curley

threatened Linda in 2006, his plan to avoid prison was to
"put the house up, [and] get a good attorney." But there is

little similarity between this threat and the earlier

alleged perjury scheme involving Michael.

The district court relied on the fact that Linda
once saw Curley's sister following her in 2006 to justify
admitting the evidence involving his brother because

collectively it showed that "this Curley clan" would "come
after [Linda]." Yet, Linda only testified that she saw
Curley's sister driving behind her once and that, after she

took a detour, only Curley was following her. There was no

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connection between his sister's single act in 2006 and his
brother's activities twelve years earlier. See Larson, 112

F.3d at 605. The government offered no evidence to suggest
that Curley conspired with Michael against Linda at any time

between 1994 and 2006 or that Michael was anywhere in the
picture in 2006. Thus, the probative value of the evidence
of Michael's actions toward Linda in 1990 and 1994 was slim.

See Gordon, 987 F.2d at 908.
At the same time, there was a high risk that the

evidence of Michael's conduct would unfairly prejudice

Curley. The activities were not closely parallel, and the
evidence served no real purpose other than to show that

Michael -- not Curley -- had a bad character. See Massino,

546 F.3d at 132-33. There was a risk that the jury indeed
would speculate that the "Curley clan" was coming after

Linda, rather than focusing on the allegations in the

indictment.

Although the district court issued an instruction
regarding the evidence's limited purpose in its charge to
the jury, "limiting instructions cannot be regarded as a

guaranty against prejudice." Figueroa, 618 F.2d at 946. We
conclude that the instruction here was not sufficient, given
the low probative value of the evidence and the high risk of

prejudicial effect. See id. at 943. Moreover, the

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instruction did not come until well after the evidence was
presented and after summations. See United States v. Royer,

549 F.3d 886, 901 (2d Cir. 2008) (reasoning that "timely

cautionary instructions . . . reduced the potential for
prejudice" arising from inflammatory testimony); Pitre, 960

F.2d at 1120 (affirming admission of evidence under Rule 403
where "the district judge gave proper limiting instructions
. . . both during the trial and in his charge to the jury

following summations"). Because this evidence had a greater
risk of prejudice than the testimony of Curley's abuse of

Linda, a single instruction in the jury charge was not

sufficient.
Accordingly, we hold that the district court erred

in admitting the evidence relating to Michael.
3. The Traffic Stop

Likewise, we conclude that the district court
abused its discretion when it admitted evidence that police

stopped Curley while he was driving a reportedly stolen
rental car in January 2008 and found three black powder
rifles, ammunition, a bulletproof vest, a ski mask, and a

last will and testament in the vehicle. The government
offered this evidence to show Curley's intent and Linda's
fear in October of 2006 -- some fourteen months earlier.

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 Subsequent acts are admissible under Rule 404(b),
see United States v. Germosen, 139 F.3d 120, 128 (2d Cir.

1998), but the temporal difference between the charged
conduct and the subsequent acts may impact whether the

evidence is probative, see United States v. Rutkoske, 506
F.3d 170, 177 & n.3 (2d Cir. 2007). This Circuit has upheld
the admission of subsequent act evidence to prove a state of

mind only when it so closely paralleled the charged conduct
that it was probative regardless of the temporal difference.

See, e.g., id. at 174, 178 (upholding admission of

conversations regarding one securities fraud scheme to show
knowledge of another securities fraud scheme four years

earlier "[i]n light of the similarity between the [two]

schemes"); Germosen, 139 F.3d at 124-25, 128 (upholding
admission of subsequent fraud scheme, originally charged as

part of same conspiracy, to show intent to defraud); Ismail

v. Cohen, 899 F.2d 183, 185, 188-89 (2d Cir. 1990)

(upholding admission of police officer's attack on another
civilian, two months after same officer's alleged attack on
plaintiff, to show pattern and intent); United States v.

Ramirez, 894 F.2d 565, 567, 569 (2d Cir. 1990) (upholding
admission of subsequent attempted cocaine sale to show
knowing participation in cocaine trade during earlier

transaction); United States v. Viruet, 539 F.2d 295, 296-97

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(2d Cir. 1976) (per curiam) (upholding evidence of
participation in transactions with stolen goods to show

intent to participate in earlier stolen goods conspiracy).
We conclude that the subsequent traffic stop lacks

the necessary parallel to the charged acts. The government
argues that the traffic stop is sufficiently connected to
the charged conduct because they involved the same

assailant, victim, and purpose. See United States v.
Hinton, 31 F.3d 817, 822-23 (9th Cir. 1994). Yet, there was

insufficient evidence indicating Curley's activities that

day were related to or directed at Linda, and no evidence
that Curley engaged in any threatening activity toward Linda

in the fourteen months before the traffic stop. The jury

could only speculate that Curley was targeting Linda in
January 2008.

To relate the traffic stop evidence to the charged

conduct, the jury had to construct a tenuous and unduly long

chain of inferences without any further evidentiary
guidance. The jury would have had to infer that: Curley
wrote the will because he expected to die; he provided in

the will for a guardian for his children because he expected
Linda to die as well; he was going to use the rifles to kill
Linda first; he was then going to commit suicide, perhaps

"suicide-by-cop"; and, finally, he had the same intent to

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kill Linda fourteen months earlier. We conclude that this
chain is too attenuated to link the two events together.

See Peterson, 808 F.2d at 974, 976. 5
The government and the district court relied

primarily on the will's request that Curley's sister "take
care" of his children to support the inference that Curley

anticipated Linda's death. Yet, the record contained
insufficient evidence to permit the jury to reasonably infer
that Curley expected Linda to be dead when he wrote the

will. It was certainly possible that Curley only preferred

that Linda not have custody, since he contested custody in

the divorce proceeding. It was also possible he never

thought of Linda when he wrote the will, and that he was
simply expressing the wish that his sister "take care" of

his children. Without further evidentiary guidance, the

jury had no reason to determine that Curley planned for
Linda to die before him.
Furthermore, the will was undated, and the record

provides no indication of when it was written. Although the

government notes that Curley necessarily wrote the will
after his son's birth in 2005 (because the will references

5
As the district court observed when it initially ruled
this evidence inadmissible: "We can't say something that happens
a year and a half, a year and three months later is what put her
in fear of his acts a year and a half before."

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him), this inference provides little assistance. Curley
could have written the will the day of the incident in 2008.

He also could have written it in 2006 after he filed for
divorce and before Linda was awarded custody. Or he could

have written the will at a time wholly irrelevant to this
case. The jury could only speculate on this point.
Similarly, it is far from clear that the rifles,

bulletproof vest, and ski mask showed that Curley intended
to kill Linda or himself. The three rifles were black

powder single-shot rifles, more in the nature of antiques

than real weapons. The combination of these muskets,

ammunition, a bulletproof vest, and a ski mask in a rented
car certainly show that Curley was behaving bizarrely, and

that he might well have been planning a violent criminal act

of some kind; but it is a stretch to conclude from this

evidence that fifteen months earlier Curley intended to kill
Linda.

Finally, the January 2008 events bore little
similarity to Curley's prior conduct. Although Curley
repeatedly threatened to kill Linda in 2006, he never

threatened to use a firearm or to kill himself in the
process. Likewise, none of the evidence of Curley's
longstanding physical abuse of Linda involved firearms.

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With such a weak correlation to the charged conduct, the
traffic stop evidence lacked probative value.

Whatever probative value the evidence may have
had, its highly prejudicial effect rendered it inadmissible.

The traffic stop evidence was certain to arouse the jury's
emotions against Curley because it was significantly more
sensational and disturbing than the charged crimes. See

Roldan-Zapata, 916 F.2d at 804. The introduction of guns
into the trial was especially troubling because it tended to

show Curley was more violent and disturbed than he appeared

from the other evidence. The events in 2008 were not so
closely parallel to the charged conduct that they became

probative of his intent in 2006. See Gordon, 987 F.2d at

908. Therefore, their potential for prejudice substantially
outweighed their probative value.

The limiting instructions did not suffice to

protect the defendant from the risk of unfair prejudice.

The presumption that juries follow limiting instructions "is
dropped where there is an overwhelming probability that the
jury will be unable to follow the court's instructions and

the evidence is devastating to the defense." United States
v. Williams, 585 F.3d 703, 709 (2d Cir. 2009). The traffic
stop evidence had little probative value regarding Curley's

intent in 2006 and its primary effect was to show Curley's

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bad character and incite the jury. The jury would have had
great difficulty isolating the evidence's minor probative

value from its inflammatory nature. The only proper
approach was to exclude the evidence entirely. Because the

district court failed to do so, it abused its discretion.
4. Harmless Error

The record does not provide us with fair assurance

that the erroneously admitted evidence -- the combination of
the evidence of the traffic stop and Michael's actions --

did not substantially sway the jury. The evidence did not

merely corroborate the evidence of Curley's verbal threats
and acts of aggression, but instead it introduced the notion

of guns into the case and was perhaps the government's most

dramatic evidence that Curley might have actually intended
to carry out his threats. Moreover, the government

highlighted the evidence during summations. See Cameron,

598 F.3d at 61. These factors weigh in favor of ruling that

the errors affected Curley's substantial rights.
We cannot say with fair assurance that the highly
prejudicial evidence on this point did not factor into the

jury's decision. Kotteakos, 328 U.S. at 765. We conclude
that the errors were not harmless and the conviction
therefore must be vacated.

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 CONCLUSION

Because we conclude that the district court abused

its discretion and that error affected substantial rights,
we VACATE the conviction and REMAND for a new trial. 6 The
mandate shall issue forthwith.

6
In his appeal, Curley also challenged the
reasonableness of his sentence. Because we vacate the
conviction, we need not reach this issue.

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