17‐3741‐cr
United States v. Williams
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2018
(Argued: November 29, 2018 Decided: July 9, 2019)
No. 17‐3741‐cr
––––––––––––––––––––––––––––––––––––
UNITED STATES OF AMERICA,
Appellee,
‐v.‐
ANDY WILLIAMS,
Defendant‐Appellant.
––––––––––––––––––––––––––––––––––––
Before: KEARSE, LIVINGSTON, and CARNEY, Circuit Judges.
Defendant‐Appellant Andy Williams appeals from a judgment entered in
the United States District Court for the Eastern District of New York (DeArcy Hall,
J.) convicting him of being a felon in possession of a firearm. On appeal, Williams
argues that (1) the gun found in his car should have been suppressed at trial,
because it was discovered during a second warrantless search of the car that was
conducted only after detectives overheard Williams make a phone call that
aroused their suspicions that they may have missed something of value in the car
during their initial inventory search; (2) his post‐arrest statements denying
ownership of the gun should have been admitted at the same time as his oral and
1
written confessions; and (3) evidence as to his gang affiliation and willingness to
assist police in finding guns and drugs should have been excluded under Fed. R.
Evid. 403 and 404(b). We conclude that (1) both searches of Williams’s car were
valid inventory searches; (2) contrary to Williams’s argument, the district court
did not abuse its discretion in declining to admit his post‐arrest statements
denying ownership of the gun; and (3) Williams’s arguments as to the
inadmissibility of the evidence of his gang affiliation and willingness to assist the
police either (a) fail because the evidence was properly admitted pursuant to Rule
404(b) and was not unfairly prejudicial or (b) are waived.
Accordingly, the judgment of the district court is AFFIRMED.
FOR APPELLEE: TANYA HAJJAR, Assistant United States
Attorney (Jo Ann M. Navickas, Assistant
United States Attorney, on the brief), for
Richard P. Donoghue, United States
Attorney for the Eastern District of New
York, Brooklyn, New York.
FOR DEFENDANT‐APPELLANT: DARRELL FIELDS, Federal Defenders of New
York, Inc., Appeals Bureau, New York, New
York.
DEBRA ANN LIVINGSTON, Circuit Judge:
Defendant‐Appellant Andy Williams (“Williams”) appeals from a judgment
of the United States District Court for the Eastern District of New York (DeArcy
Hall, J.), entered November 14, 2017, following a jury trial, convicting him of being
a felon in possession of a firearm. On appeal, Williams argues that (1) the loaded
firearm found in the center console of the rental car that he was driving on the day
of his arrest should have been suppressed at trial because it was discovered during
2
an improper second inventory search of the vehicle; (2) his exculpatory post‐arrest
statements denying knowledge or ownership of the firearm should have been
admitted when his oral and written statements confessing ownership were
introduced; and (3) evidence as to his gang affiliation and willingness to assist
police in finding guns and drugs should have been excluded under Fed. R. Evid.
403 and 404(b).
We conclude that (1) police did not violate the Fourth Amendment by
returning to search Williams’s car again after detectives overheard Williams make
a phone call that aroused their suspicion that they may have missed something of
value in the car during their initial inventory search; (2) contrary to Williams’s
claim, neither the doctrine of completeness nor the Fifth Amendment mandated
the admission of his post‐arrest statements denying ownership or knowledge of
the gun; and (3) Williams’s arguments as to the inadmissibility of the evidence of
his gang affiliation and willingness to assist the police either (a) fail because the
evidence was properly admitted pursuant to Rule 404(b) and was not unfairly
prejudicial or (b) are waived. Accordingly, we affirm the judgment of the district
court.
3
BACKGROUND
I. Factual Background1
On the clear morning of August 27, 2015, three plainclothes detectives from
the New York City Police Department’s (“NYPD”) Brooklyn South Gang Squad
sat in an unmarked car on Utica Avenue in Brooklyn. Inside a nearby funeral
home, mourners were gathered for funeral services. The deceased had been in a
gang, so Detective Dominick Latorre (“Detective Latorre”) and his colleagues were
keeping an eye on the surrounding area in case rival gangs showed up looking to
cause trouble. At around 10 A.M., the detectives spotted a white Nissan sedan
traveling at a high rate of speed. The driver was recklessly weaving between traffic
lanes so as to cut others off, and was heading in the direction of the funeral home.
The detectives gave chase, caught up to the Nissan, and signaled to the driver,
Williams, to pull over. Williams pulled to the side of the road.
Detective Latorre approached the driver’s side of the car and asked
Williams, who was alone in the sedan, for his license and registration. Williams
provided his license and a rental agreement for the Nissan. Detective Latorre
1 The factual background presented here is derived principally from the trial transcript
and otherwise reflects information in the district court record.
4
immediately observed that the car had been rented to someone else, Jennisha
Hosam (“Hosam”), and that Williams was not listed in the agreement as an
authorized driver. Williams claimed the Nissan was his “girl’s car.” GA‐55.2 The
detectives then arrested Williams for unauthorized use of the rental car as well as
for speeding and driving recklessly. He was placed in the back of the detectives’
car and transported to the nearest precinct by Detective Latorre and one of his
colleagues, Detective Joseph Fichter (“Detective Fichter”). The third detective,
Detective Michael Christiano, followed in Williams’s car and parked it out front.
At the precinct, Williams was put in a holding cell while the detectives
began to process the arrest. Detective Fichter commenced an “inventory search”
of Williams’s car while Detective Latorre observed. According to Detective
Latorre, an inventory search is mandatory in arrest processing: “[I]ts importance
is to make sure that things are returned to the proper owner and that the wrong
things or dangerous things are not returned to anyone.” GA‐38–39. The car’s
interior, glove box, and trunk were all searched, yielding several items, including:
(1) a roll of duct tape, in the glove box; (2) a pair of black gloves, from the driver’s
2 “A” refers to the Appendix for Defendant‐Appellant Andy Williams; “SPA”
refers to the Special Appendix for Defendant‐Appellant Andy Williams; “GA” refers to
the Government Appendix.
5
side door; and (3) a black mask made of hard plastic, which Detective Fichter
discovered in the trunk of the car, wedged inside the enclosed area containing the
spare tire. Detective Fichter also recovered postmarked envelopes from the Nissan
dated August 21, 2015, and addressed to Williams. After finding these items,
Detectives Latorre and Fichter went back inside the precinct to continue
processing Williams’s arrest.
As Detective Latorre was fingerprinting Williams, Williams asked what was
going to happen to the rental car. Detective Latorre informed him that the car was
probably going to be towed back to the rental agency. Seemingly alarmed by this
prospect, Williams said “I’m entitled to a phone call. I want to make one.” SPA‐6.
Detective Latorre handed Williams a phone. Williams proceeded to call someone
(he said it was his girlfriend) and, standing about two or three feet away from
Detective Latorre, told this person that he or she needed to “come get this car right
now” because the police were “looking to tow it.” GA‐41–42; SPA‐6–7. Williams
spoke at a high pitch and fast pace that Detective Latorre took to indicate that
Williams’s “stress level was elevated . . . he sounded definitely more stressed.”
GA‐42.
6
Detective Latorre thought Williams’s agitation was curious. He and
Detective Fichter decided to go back and search the car again to make sure that
“there was [not] something more important in the vehicle that we didn’t see yet.”
GA‐42–43; SPA‐7. As Detective Fichter put it, “I felt I missed something.” GA‐97.
On the way to the car, in what turned out to be a fortunate encounter, they ran into
Detective Ashley Breton (“Detective Breton”), who volunteered to help as “an
extra pair of eyes.” GA‐42; SPA‐8. After just one to two minutes of searching the
interior of the car, including the front area, arm rests, and front and rear seats,
Detective Breton popped open the car’s center console, which Detective Fichter
had not previously examined. There, Detective Breton discovered a loaded gun.
According to Detective Breton, though the console in the Nissan is not designed
to open, it can be opened easily with no need for special tools or force by
unsnapping three plastic pieces “that connect to the left side paneling” and that
can be easily snapped back into place to close the console. A‐110; GA‐11. Indeed,
Detective Breton testified that he usually checks inside car consoles during
inventory searches, because he has located contraband there “more than once.” A‐
111.
7
After the firearm was discovered, Williams was rearrested and taken to a
private room to be interviewed. There, Detectives Latorre and Fichter read him his
Miranda rights, using a standard form. Williams agreed to waive his rights and
signed the form, affirming his willingness to answer questions. Williams thereafter
orally acknowledged that the firearm belonged to him and, at the detectives’
request, he wrote out a statement memorializing this confession. The signed
statement reads in full: “I had the gun. I had no intenten of hurting any1 Im sorry.”
A‐162; GA‐48–49. During the same interview, Williams told the detectives that he
is a member of the Crips gang, that he is also known as “Spillz,” and that he
associates with people in both the Crips and Folk Nation gangs. Williams further
indicated that he was “willing to work,” and could “get firearms and narcotics.”3
GA‐104–05, 118.
Hosam, who rented the white Nissan sedan, testified at Williams’s trial. A
student at Borough of Manhattan Community College, Hosam gave Williams a lift
one day when she saw him in the Brooklyn neighborhood where her son goes to
day care. (She had known Williams for about a year at that time, she ran into him
3 At trial, in addition to testimony regarding Williams’s post‐arrest statements
acknowledging his gang membership, the government introduced images from
Williams’s public Facebook page. These images depict Williams and others making hand
signs identified by Detective Fichter as associated with the Crips or Folk Nation gangs.
8
periodically, and she was not his girlfriend.) Hosam was then driving a red Nissan
Ultima that she had rented for the weekend. Upon learning that Hosam was
driving a rental car, Williams asked if she would be willing to rent a car for him,
as he did not have a credit card. Hosam first extended the rental of the red Nissan,
giving Williams its use. Williams paid Hosam for the rental in cash, which
“worked in [her] favor too pretty much,” as she “could use the car as well without
paying for it.” GA‐74, 80. When the red Nissan Ultima was shortly thereafter
involved in a minor accident, Hosam exchanged it for a light‐colored vehicle,
which she also provided to Williams. The only occasion on which she drove this
second car, which she did not recall well, was “[t]he day that we exchanged it,”
and after providing the car to Williams, she saw him only twice between July and
late August 2015. GA‐76, 141. She left no personal items in the second car, and
specifically left neither gloves nor a mask in the vehicle. She also did not leave a
firearm in the car and had never owned one.
II. Procedural History
Williams was indicted by a grand jury in the Eastern District of New York
in October 2015, less than two months after his arrest, and was charged with being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Williams
9
pled not guilty. He moved to suppress the firearm, arguing that police had
violated the Fourth Amendment when, after conducting the first inventory search,
they returned to the car following his phone call and located the concealed and
loaded weapon. The magistrate judge held an evidentiary hearing at which
Detectives Latorre and Breton testified. The magistrate judge then issued a Report
and Recommendation recommending that Williams’s suppression motion be
denied. The district court adopted the Report and Recommendation and denied
the motion.
The first of what would ultimately be three jury trials commenced on
October 24, 2016, and ended in a mistrial two days later because the jury could not
reach a unanimous verdict. The second trial commenced on December 12, and
again ended in a mistrial. The third trial commenced on May 23, 2017, and a week
later the jury convicted Williams of being a felon in possession of a firearm. After
Williams’s conviction, Judge DeArcy Hall sentenced him to 56 months’
imprisonment to be followed by three years’ supervised release. Williams timely
appealed.
10
DISCUSSION
Williams makes three arguments on appeal. First, he argues that the second
search of his car was not a valid inventory search pursuant to the Fourth
Amendment and that the loaded gun, accordingly, should have been suppressed.
Second, he argues that the district court erred by precluding him from introducing
his post‐arrest statements in which, before admitting to ownership of the weapon,
he denied any knowledge of it. Finally, Williams argues that the district court
erred by allowing the government to introduce his post‐arrest statements
regarding his gang affiliation, as well as the images from his Facebook page,
because this evidence was inadmissible propensity evidence and unfairly
prejudicial. We address each argument in turn.
I. The Car Searches
Williams first argues that the district court erred in denying his motion to
suppress the gun seized during the second search of his car on the theory that this
second search violated the Fourth Amendment. In Williams’s view, only the
detectives’ initial search of the car was a valid inventory search. He contends that
the second search—conducted after Detective Latorre overheard Williams make a
phone call during which Williams nervously insisted to the other person on the
11
line that he or she needed to “come get this car right now”—was a “purposeful
investigatory search” and not an inventory search permissible among “the
category of ‘caretaking activities’ that police departments [must] perform.”
Appellant Br. 34. When reviewing a district court’s decision on a suppression
motion, we review the district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Stewart, 551 F.3d 187, 190 (2d Cir. 2009). For
the following reasons, we conclude that Williams’s Fourth Amendment claim is
unavailing.
* * *
The Supreme Court has long recognized that when police “take a vehicle
into custody, they may search the vehicle and make an inventory of its contents
without need for a search warrant and without regard to whether there is probable
cause to suspect that the vehicle contains contraband or evidence of criminal
conduct.” United States v. Lopez, 547 F.3d 364, 369 (2d Cir. 2008) (citing Illinois v.
Lafayette, 462 U.S. 640, 643 (1983)). These “inventory searches” are excepted from
the probable cause and warrant requirements “because they are conducted by the
government as part of a community caretaking function” that police must perform
separate and apart from their responsibility to detect crime. Colorado v. Bertine, 479
12
U.S. 367, 381 (1987) (internal quotation marks omitted); Lopez, 547 F.3d at 369. We
have described the objectives of inventory searches as “(1) to protect the owner’s
property while it is in police custody; (2) to protect the police against spurious
claims of lost or stolen property; and (3) to protect the police from potential
danger.” Lopez, 547 F.3d at 369. “The service of these objectives is wholly
independent of whether the contents of the car figure in any way in a criminal
investigation or prosecution.” Id. at 369–70.
Because of the “danger to privacy interests” posed by allowing police
officers to conduct warrantless searches, see id. at 370, the Supreme Court has
required that inventory searches be performed using “standardized criteria or
established routine,” Florida v. Wells, 495 U.S. 1, 4 (1990); see South Dakota v.
Opperman, 428 U.S. 364, 372 (1976) (“[I]nventories pursuant to standard police
procedures are reasonable.”); see also 3 LaFave, Search and Seizure: A Treatise on
the Fourth Amendment 644 (4th ed. 2004) (“What is needed in the inventory
context, then, as is true of many other types of inspections or regulatory searches,
is not probable cause but rather a regularized set of procedures, which adequately
guards against arbitrariness.”). A police department’s standardized procedures
may be established at trial by written rules and regulations or by testimony
13
regarding the department’s standard practices. See United States v. Thompson, 29
F.3d 62, 65–66 (2d Cir. 1994).
We first conclude, as the district court did, that both searches of Williams’s
car were conducted in accordance with the NYPD’s standardized procedures for
inventory searches as described in the Department’s Patrol Guide and in Detective
Breton’s testimony at the suppression hearing. The Patrol Guide provides that
“[w]henever [an automobile] comes into the custody of [the NYPD],” officers
should “[s]earch the interior of the vehicle thoroughly,” including “any area that
may contain valuables.” A‐39 (emphasis added). The Patrol Guide also authorizes
officers to “[f]orce open [the] trunk, glove compartment, etc.,” so long as it can “be
done with minimal damage.” A‐39. Detective Breton testified at the suppression
hearing, based on his “hundreds” of inventory searches, that searching behind the
paneling of a car’s center console is a “common” practice. GA‐8; A‐110–11.
There is no dispute that the first search followed NYPD procedures. As to
the second, although his briefing to this Court did not challenge the manner in
which this search was performed, at oral argument Williams made much of the
fact that during the second search, Detective Breton had to “force open” the
console of Williams’s car by removing the console’s paneling in order to reveal the
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gun. See Recording of Oral Argument, United States v. Williams, No. 17‐3741 (2d
Cir. Nov. 29, 2018), at 5:00–7:20, 22:20–23:00. However, the Patrol Guide
specifically says that officers can force open the “trunk, glove compartment, etc.,”
if only minimal damage will be done, and Detective Breton testified that it was
common for police to search center consoles during inventory searches. A‐39
(emphasis added); see A‐110–11. Detective Breton also testified that he did not
have to use any sort of “special tool” to remove the paneling; nor did it take much
force; nor was any damage done to the car, as the paneling could be “snap[ped]
right back into place.” GA‐11–12; A‐110. The district court did not err in
determining that removing the paneling to check inside the car’s center console
was consistent with the NYPD’s standard procedures.
Williams principally argues as to the second inventory search that it was
impermissible for the detectives to conduct the second search at all, pointing out,
at the start, that the Patrol Guide is silent as to the validity of multiple inventory
searches. However, we have stated that “we do not think . . . every detail of search
procedure must be governed by a standardized policy.” Lopez, 547 F.3d at 371
(emphasis added). For example, there need not be a standardized policy as to “the
order in which different parts of [a] car are searched, or whether officers
15
performing the search need to report the results on a standardized form.” Id. A
police department’s procedures must simply be adequate to “safeguard the
interests protected by the Fourth Amendment,” see id., so that officers are not
allowed “so much latitude” as to whether, when, and how to search that inventory
searches, in practice, become a “‘a purposeful and general means of discovering
evidence of crime.’” Wells, 495 U.S. at 4 (quoting Bertine, 479 U.S. at 376). Here, the
second inventory search did not run afoul of this principle, even if not specifically
provided for in the Patrol Guide.
As for Williams’s broader Fourth Amendment argument, the Supreme
Court has repeatedly said that “the ultimate touchstone of the Fourth Amendment
is ‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398, 403 (2006); see Riley v.
California, 573 U.S. 373, 381 (2014) (same); see also Maryland v. King, 569 U.S. 435,
447 (2013) (noting that the “’ultimate measure of the constitutionality of a
governmental search is “reasonableness”’”) (quoting Vernonia School Dist. 47J v.
Acton, 515 U.S. 646, 652 (1995)). In the circumstances here, it was eminently
reasonable for the detectives to conclude, as they did, that Williams’s own
behavior suggested a need to go back and check their work in connection with the
inventory search that they had just performed. Williams’s phone call caused the
16
detectives to surmise, as Detective Latorre stated during the suppression hearing,
that “there was something of value inside the car that [they weren’t] yet aware of,”
so that “a second search of the vehicle was probably necessary” in order to
complete the inventory. A‐59. The fact that some piece of property may have been
missed during the initial search did not make it less important to secure that
property, to protect the police from claims of theft, or to ensure that the property
be safeguarded if dangerous. Indeed, the need to ascertain that the inventory was
complete and that all items in the car had been located was particularly acute in
this case, given that police were likely to return the car to the rental agency, and
“elemental reasons of safety” required that any dangerous instrument in the
vehicle, such as the loaded weapon that they recovered, be located so as not to
“fall into untrained or perhaps malicious hands.” See Cady v. Dombrowski, 413 U.S.
433, 443 (1973) (noting police have a community caretaking imperative to ensure
that impounded automobiles do not contain revolvers or other dangerous items).
Williams contends that the search of the Nissan by Detective Breton was not
a valid inventory search, even if consistent with standard police practices, because
the officers’ purpose in looking over the car for a second time was supposedly not
to conduct an inventory, but “to validate [their] suspicion and uncover evidence
17
of a crime.” Appellant Br. 34–35. We do not believe that the suppression hearing
record supports this conclusion. But even if the record did clearly reflect that the
officers were motivated, at least in part, by the expectation that evidence would be
discovered in the car, Williams’s Fourth Amendment argument would still be
without merit.
In general, “[a]n action is ‘reasonable’ under the Fourth Amendment,
regardless of the individual officer’s state of mind, ‘as long as the circumstances,
viewed objectively, justify [the] action.’” Brigham City, 547 U.S. at 404 (quoting Scott
v. United States, 436 U.S. 128, 138 (2006)); accord Laidley v. City and Cty. of Denver,
477 F. App’x 522, 524 (10th Cir. 2012) (Gorsuch, J.) (“[Plaintiff’s] failure to argue
that the towing of his car was not objectively justified under the community
caretaking doctrine (whatever any officer’s actual motivations happened to be)
unavoidably spells the end to his Fourth Amendment claim.”). As we recognized
in United States v. Lopez, “[w]hen officers, following standardized inventory
procedures, seize, impound, and search a car in circumstances that suggest a
probability of discovering criminal evidence, the officers will inevitably be
motivated in part by criminal investigative objectives. Such motivation, however,
cannot reasonably disqualify an inventory search that is performed under
18
standardized procedures for legitimate custodial purposes.” 547 F.3d at 372.
We recognize that the Supreme Court, in Colorado v. Bertine, affirmed that
inventory searches are reasonable for Fourth Amendment purposes when
“administered in good faith,” “according to standard criteria and on the basis of
something other than suspicion of evidence of criminal activity.” 479 U.S. 367, 374–75
(1987) (emphasis added). Moreover, the Court in dicta has suggested that the
inventory search doctrine may be a rare example in which an officer’s improper
motive can invalidate “objectively justifiable behavior under the Fourth
Amendment.” Kentucky v. King, 563 U.S. 452, 464 (2011) (quoting Whren v. United
States, 517 U.S. 806, 812 (1996)). But the Supreme Court has also cautioned that the
relevant “purpose” at issue in assessing programmatic searches and seizures
conducted without individualized suspicion, such as the inventory search at issue
here, is not the officer’s subjective purpose in searching, but the purpose of the
administrative program itself. Brigham City, 547 U.S. at 405; see also City of Indianapolis
v. Edmond, 531 U.S. 32, 48 (2000) (“[W]e caution that the purpose inquiry in this
context is to be conducted only at the programmatic level . . . .”). Chief Justice
Roberts, writing for a unanimous Court in Brigham City and citing Wells, the
Court’s most recent inventory search case, observed that the Fourth Amendment
19
inquiry in the context of programmatic searches and seizures has “nothing to do
with discerning what is in the mind of the individual officer conducting the
search,” but is instead directed at “ensuring that the purpose behind the program
is not ‘ultimately indistinguishable from the general interest in crime control.’”
Brigham City, 547 U.S. at 405 (quoting Edmond, 531 U.S. at 44); see also Wells, 495
U.S. at 4 (noting that “[t]he policy or practice governing inventory searches should
be designed to produce an inventory”).
We need not parse these lines of Supreme Court authority further and assess
whether an officer’s motive might prove relevant to the validity of an inventory
search in circumstances not presented here. Suffice it to say that as for the Fourth
Amendment inquiry in this case, the present matter is on all fours with this Court’s
decision in Lopez, where we concluded that “if a search of an impounded car for
inventory purposes is conducted under standardized procedures,” as this one
was, “that search falls under the inventory exception to the warrant requirement
of the Fourth Amendment, notwithstanding a police expectation that the search
will reveal criminal evidence.” Lopez, 547 F.3d at 372; accord United States v.
McKinnon, 681 F.3d 203, 209–10 (5th Cir. 2012).4 “If good faith is a prerequisite of
4 District courts in our Circuit have correctly interpreted Lopez to mean that an
officer’s subjective motivations in performing an inventory search generally will not
20
an inventory search,” we said there, “the expectation and motivation to find
criminal evidence” do not, without more, “constitute bad faith.” Id.
Here, as to programmatic purpose, nothing in the record suggests that the
NYPD inventory‐search program at issue was but “a ruse for a general rummaging
in order to discover incriminating evidence.” Wells, 495 U.S. at 4. The Patrol Guide
states that the program’s purpose is to “protect property, ensure against
unwarranted claims of theft, and protect uniformed members of the service and
others against dangerous instrumentalities.” A‐39. The NYPD detectives here
testified that inventory searches are conducted to serve this purpose. See GA‐6
(Detective Breton testifying that inventory searches allow police to “take in any
property that would need to get vouchered”); GA‐40 (Detective Latorre testifying
that the importance of inventory searches is “to make sure that things are returned
to the proper owner and that the wrong things or dangerous things are not
returned to anyone”); GA‐92 (Detective Fichter testifying that inventory searches
invalidate an otherwise‐reasonable search. See, e.g., United States v. Wallace, 2016 WL
4367961, at *10 (S.D.N.Y. Aug. 11, 2016) (“The subjective investigatory motivation of an
officer does not normally defeat the legality of an otherwise proper inventory search.”);
Bryant v. Village of Greenwood Lake, 2013 WL 5952610, at *4 (S.D.N.Y. Nov. 6, 2013), aff’d
sub nom, Bryant v. Dasilva, 582 F. App’x 56 (2d Cir. 2014) (“An otherwise‐reasonable
inventory search will not be rendered unreasonable merely because an officer is
motivated in part by investigatory purposes or by the expectation that the search will
yield evidence.”).
21
are conducted “to make sure that all property is removed from inside the car”).
As to the detectives’ subjective motivations for search, we agree with the
Lopez panel that “the Supreme Court has not required an absence of expectation of
finding criminal evidence as a prerequisite to a lawful inventory search.” 547 F.3d
at 372. Williams’s conduct in the wake of the first inventory search alerted the
detectives that their initial search may have been faulty, and that items requiring
inventory might still remain in the car. In these circumstances, even assuming
arguendo that the detectives also expected that they might find evidence of a crime
during their second search, this fact alone did not obviate the need for that second
inventory search. Nor did it render the second search unreasonable under the
Fourth Amendment. The second search, like the first, was a reasonable inventory
procedure, and Williams’s suppression motion was properly denied.
II. The Evidentiary Rulings
Williams next argues that his conviction must be reversed because the
district court erred: (1) in declining to require the government to introduce his
exculpatory post‐arrest statements at the time it introduced his inculpatory
statements; and (2) in admitting post‐arrest statements and other evidence of his
affiliation with the Crips. We review the district court’s evidentiary rulings “under
22
a deferential abuse of discretion standard, and we will disturb an evidentiary
ruling only where the decision to admit or exclude evidence was ‘manifestly
erroneous.’” United States v. McGinn, 787 F.3d 116, 127 (2d Cir. 2015) (quoting
United States v. Samet, 466 F.3d 251, 254 (2d Cir. 2006)). This standard has not been
met in the circumstances here.
A. The Exculpatory Post‐Arrest Statements
When Williams was interviewed after his concealed weapon was
discovered in the center console of the Nissan, he denied ownership of the car,
telling the detectives, in substance, that “the car wasn’t his,” but “was his
girlfriend’s” or “belonged to the girl.” A‐255, 259. When the detectives informed
him that they had found a gun in the car, he at first denied knowing anything
about the weapon, and claimed that he was merely trying to return the car. The
detectives then asked who the gun belonged to, and if Williams was “trying to tell
us something like it belongs to your girlfriend?” A‐255. Williams at that point
admitted that the gun belonged to him and he wrote and signed a statement saying
“I had the gun.” See GA‐47–48. Before trial, the government moved to bar Williams
from introducing that portion of his post‐arrest statement in which he asserted, in
effect, that he didn’t know anything about the weapon and was merely trying to
23
return the car. The district court granted the motion. On appeal, Williams argues
that this was reversible error because the district court’s ruling violated both the
doctrine of completeness and the Fifth Amendment. For the following reasons, we
conclude that the district court did not abuse its discretion and that Williams’s
argument to the contrary is without merit.
* * *
At common law, the doctrine of completeness arose to permit a party
against whom a part of a writing or utterance has been introduced to “in his turn
complement it by putting in the remainder, in order to secure for the tribunal a
complete understanding of the total tenor and effect” of the whole. 7 Wigmore on
Evidence § 2113, at 653 (Chadbourn rev. ed. 1978). Fed. R. Evid. 106, which
partially codifies this common law completeness doctrine, provides as follows:
If a party introduces all or part of a writing or recorded statement, an
adverse party may require the introduction, at that time, of any other
part—or any other writing or recorded statement—that in fairness
ought to be considered at the same time.
Fed. R. Evid. 106. The purpose of the rule is to correct, contemporaneously, the
“misleading impression created by taking matters out of context,” Fed. R. Evid.
106 advisory committee note (1972 Proposed Rules), and the rule “requir[es]
generally that adversaries be allowed to prevent omissions that render matters in
24
evidence misleading,” Baker v. Goldman Sachs & Co., 669 F.3d 105, 111 (2d Cir. 2012);
see United States v. Castro, 813 F.2d 571, 575–76 (2d Cir. 1987) (noting that adverse
party can demand that an omitted portion “be placed in evidence if necessary to
explain the admitted portion, to place the admitted portion in context, to avoid
misleading the jury, or to ensure fair and impartial understanding of the admitted
portion”); accord United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982). The
completeness doctrine, however, has never “’require[d] the admission of portions
of a statement that are neither explanatory of nor relevant to the admitted
passages.’” United States v. Gupta, 747 F.3d 111, 139 (2d Cir. 2014) (quoting United
States v. Johnson, 507 F.3d 793, 796 (2d Cir. 2007) (internal quotation marks
omitted)); see 7 Wigmore on Evidence § 2113, at 656 (noting that because “sole
purpose” in eliciting remainder “is to obtain a correct understanding of the effect
of the part first put in,” irrelevant material not explanatory of the rest is not
required to be admitted). And ultimately, it is for the district court, in its discretion,
to determine if the rule applies. See id.
Rule 106 does not cover oral statements—as the advisory committee note
states, “[f]or practical reasons, [Rule 106] is limited to writings and recorded
statements and does not apply to conversations.” Fed. R. Evid. 106 advisory
25
committee note (1972 Proposed Rules). However, the common law rule of
completeness is substantially broader than Rule 106, covering “not only writings
taken out of context, but also . . . the truncated use of acts, declarations, and
conversations.” 21A Kenneth W. Graham, Jr., Federal Practice and Procedure § 5072
(2d ed. 2015) (emphasis added). And as the Supreme Court made clear in Beech
Aircraft Corp. v. Rainey, the common law doctrine persists in the wake of Rule 106’s
adoption. See 488 U.S. 153, 171–72 (1988); 21A Graham, supra, § 5073 n.1 (stating
that Beech Aircraft “held that adoption of Rule 106 did not repeal the common law
completeness doctrine; hence, that doctrine can be invoked for completeness
where Rule 106 does not apply”).
This Court has expressly recognized as to oral statements that Fed. R. Evid.
611(a) both “empowers and obligates” district courts to require “a party offering
testimony as to an utterance to present fairly the ‘substance or effect’ and context
of that statement,” just as the common law doctrine requires. See Castro, 813 F.2d
at 576. 5 As a result, in this Circuit, the completeness principle applies to oral
statements through Rule 611(a), so that “whether we operate under Rule 106’s
5Rule 611(a) allows district courts to “exercise reasonable control over the mode
and order of examining witnesses and presenting evidence so as to . . . make those
procedures effective for determining the truth.” Fed. R. Evid. 611(a) (emphasis added).
26
embodiment of the rule of completeness, or under the more general provision of
Rule 611(a), we remain guided by the overarching principle that it is the trial
court’s responsibility to exercise common sense and a sense of fairness” so as to
require completion, whether contemporaneous or on cross‐examination, in
instances in which testimony regarding oral statements is elicited in fragments that
misrepresent “’the tenor of the utterance as a whole.’” Id. (quoting 7 Wigmore on
Evidence § 2099, at 618); see also id. (quoting 1 J. Weinstein & M. Berger, Weinsteinʹs
Evidence ¶ 106[01], at 106–4 (1986 ed.) for the proposition that “compared to Rule
106, Rule 611(a) ‘provides equivalent control over testimonial proof’” (emphasis
added)).6
6 The great majority of our sister circuits to have addressed the issue have agreed.
See United States v. Verdugo, 617 F.3d 565, 579 (1st Cir. 2010) (noting that “the district court
retained substantial discretion under Fed. R. Evid. 611(a) to apply the rule of
completeness to oral statements”); United States v. Lopez‐Medina, 596 F.3d 716, 734 (10th
Cir. 2010) (“We have held the rule of completeness embodied in Rule 106 is substantially
applicable to oral testimony[] as well by virtue of Fed. R. Evid. 611(a) . . . .” (internal
quotation marks omitted)); United States v. Holden, 557 F.3d 698, 705 (6th Cir. 2009) (“The
common law version of the rule was codified for written statements in Fed. R. Evid. 106,
and has since been extended to oral statements through interpretation of Fed. R. Evid.
611(a).”); United States v. Range, 94 F.3d 614, 620–21 (11th Cir. 1996) (“Fed. R. Evid. 611(a)
has been read to impose the same [Rule 106] fairness standard upon conversations.”
(citation omitted)); United States v. Haddad, 10 F.3d 1252, 1258 (7th Cir. 1993) (“[T]he
Seventh Circuit has applied a Rule 106 analysis with respect to oral statements and
testimonial proof.”).
27
Williams argues that the district court erred in preventing him from eliciting
testimony at trial from Detectives Latorre and Fichter that he first denied
knowledge or ownership of the firearm found in the center console of the Nissan
before admitting, as both Detectives Latorre and Fichter testified, that the gun was
his. In both its brief and in oral argument, the government has suggested, to the
contrary, that Williams’s statements were hearsay when proffered by him, and so
inadmissible “unless they fell under some exception to the hearsay rules.” Gov.
Br. 30. The government also argues that the district court did not abuse its
discretion in concluding that Williams’s initial claim to know nothing about the
gun neither explains his later admissions nor dispels a misleading impression as
to them, so that completion was not required. We reject the government’s first
argument, but are persuaded by its second.
With respect to the government’s suggestion that evidence proffered under
the rule of completeness may be excluded whenever not independently admissible
due to the hearsay rule, this is simply not correct. True, a party cannot circumvent
the hearsay rule simply by invoking the doctrine of completeness so as to render
otherwise inadmissible evidence admissible for its truth. As Wigmore recognized,
completing evidence “merely aids in the construction of the utterance as a whole,
28
and is not itself testimony.” 7 Wigmore on Evidence § 2113, at 659. But when the
omitted portion of a statement is properly introduced to correct a misleading
impression by putting into context that portion already admitted, it is for this very
reason admissible for a valid, nonhearsay purpose: to explain and place in context
the evidence that has already been introduced. As we have said before, “even
though a statement may be hearsay,” it nevertheless “must be placed in evidence
if necessary to explain the admitted portion [of this statement], to place the
admitted portion in context, to avoid misleading the jury, or to ensure the fair and
impartial understanding of the admitted portion.” Johnson, 507 F.3d at 796; see also
United States v. Coplan, 703 F.3d 46, 85 (2d Cir. 2012) (noting that evidence proffered
pursuant to Rule 106 is not properly excluded because it is hearsay but must be
assessed under “the Rule 106 standard”). Indeed, the doctrine “can adequately
fulfill its function only by permitting the admission of some otherwise
inadmissible evidence when the court finds in fairness that the proffered evidence
should be considered contemporaneously.” United States v. Sutton, 801 F.2d 1346,
1368 (D.C. Cir. 1986).
The government’s first argument is thus unavailing. We are persuaded,
however, by its second: that although it was within the district court’s discretion
29
to permit Williams to elicit his initial false exculpatory statements, Williams has
failed to show that the district court abused its discretion in deciding to exclude
them. To require completion under the doctrine of completeness, Williams had to
demonstrate that admission of his initial statements denying ownership of the gun
was “necessary to explain” his later statements that the gun was his, “to place
[these statements] in context, to avoid misleading the jury, or to ensure fair and
impartial understanding” of these later statements. Castro, 813 F.2d at 576.
Williams did not make such a showing. It is not uncommon for a suspect, upon
interrogation by police, to first claim in a self‐serving manner that he did not
commit a crime, only thereafter to confess that he did. But the rule of completeness
does not require the admission of self‐serving exculpatory statements in all
circumstances, see United States v. Jackson, 180 F.3d 55, 73 (2d Cir. 1999), and the
mere fact that a suspect denies guilt before admitting it, does not—without more—
mandate the admission of his self‐serving denial. As the district court here aptly
pointed out, Williams’s confession was “simply a reversal of his original position.”
A‐244–45.
Williams argues that the juries at his first two trials heard the exculpatory
portions of his post‐arrest statements and that the deadlock of these juries
30
demonstrates the importance of this evidence and the error in excluding it at his
third trial. We disagree. The standard of review here is abuse of discretion. See
Jackson, 180 F.3d at 73 (noting that district court’s application of rule of
completeness doctrine “is reviewed only for abuse of discretion”); accord Castro,
813 F.2d at 576 (observing that reviewing courts “must limit [themselves] to
inquiring whether the district judge’s actions amounted to an abuse of discretion”
in assessing rule of completeness determinations). And regardless whether
Williams’s exculpatory statements were admitted in earlier proceedings, we can
discern no abuse of discretion in the district court’s conclusion that Williams’s
statements that he didn’t know anything about the gun, but was just bringing the
car back to his “girl,” did not “explain” his subsequent confession, and were thus
not necessary to correct a misleading impression arising from the admission of his
inculpatory statements alone. We note, too, that Williams’s third trial was the first
occasion on which the government called Hosam, who explained how Williams
came to be driving the car she had rented and who disclaimed any knowledge of
the loaded weapon in that car. It is thus highly speculative, at best, to contend that
the conviction here resulted from exclusion of exculpatory portions of Williams’s
post‐arrest statements, when a more pertinent difference between the third trial
31
and its predecessors was the introduction of direct testimony to the effect that the
weapon in the car was in no way associated with the person who had rented the
vehicle.7
The analysis here is also sufficient to explain why Williams’s Fifth
Amendment claim is meritless. Williams cites a footnote from this Court’s decision
in Marin, which states that “when the government offers in evidence a defendant’s
confession and in confessing the defendant has also made exculpatory statements
that the government seeks to omit, the defendant’s Fifth Amendment rights may
be implicated.” Marin, 669 F.2d at 85 n.6. But even assuming arguendo that the Fifth
Amendment is implicated in such circumstances, Marin itself makes clear that this
is only when the statement offered by the government is misleading by virtue of
the portion it omits. See id. (“In such circumstances . . . the Fifth Amendment right
to remain silent is violated when the omission paints a distorted picture . . . which
the defendant is powerless to remedy without taking the stand.” (internal
7 Indeed, even if we were to conclude that the district court had erred in excluding
Williams’s self‐serving denials, we would also conclude in light, inter alia, of Hosam’s
testimony, that reversal is not required because any such error did not affect Williams’s
substantial rights. Fed. R. Crim. P. 52(a); cf. Sutton, 801 F.2d at 1370–71 (noting that
although defendant should have been permitted to introduce excluded portions of his
recorded conversations, such error did not require reversal where “substantial rights”
were unaffected and error “did not substantially influence” the verdict).
32
quotation marks and brackets omitted)). As already noted, the district court did
not err in concluding that Williams’s confession was not misleading and that the
omitted exculpatory portions of his post‐arrest statements did not explain that
confession, which was “simply a reversal of his original position.” A‐244. Thus,
Williams’s Fifth Amendment claim is also without merit.
B. The “Gang” Evidence
1. Williams’s Post‐Arrest Statements
Williams next argues that the district court erred in admitting his statements
to police, made after he confessed to possessing the gun, that he was a member of
the Crips gang and was “willing to work” with police to “get firearms and
narcotics.” GA‐105. Before trial, the government moved in limine to admit (1)
evidence that Williams had previously used the center console of a Nissan to hide
fraudulent credit cards; and (2) these post‐arrest statements.8 The district court
granted the motion in part, permitting the post‐arrest statements to be admitted
but not the evidence about Williams’s prior use of the center console. On appeal,
Williams argues that the statements constituted impermissible propensity
8 Williams thus had ample pretrial notice that the government intended to offer
this evidence at trial. See Fed. R. Evid. 404(b).
33
evidence pursuant to Fed. R. Evid. 404(b) and were unfairly prejudicial under Fed.
R. Evid. 403. Appellant Br. 42. For the following reasons, we again disagree.
Rule 404(b) states that “[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b).
In other words, “Rule 404(b) bars the admission of defendant’s uncharged crimes
to prove propensity to commit the crime charged.” United States v. Concepcion, 983
F.2d 369, 392 (2d Cir. 1992). At the same time, pursuant to this Circuit’s
“inclusionary approach” to such evidence, other‐crimes evidence is admissible if
offered “for any purpose other than to show a defendant’s criminal propensity.”
United States v. Mejia, 545 F.3d 179, 206 (2d Cir. 2008) (emphasis added). And our
review of the district court’s admission of such evidence is limited: “We
review . . . for abuse of discretion, and the district court’s ruling stands unless it
was arbitrary and irrational.” Id.
Here, Williams’s admission of gang membership and offer to assist police in
finding drugs and weapons was admitted not to show that he had a propensity to
act in a particular way, but to meet the defense argument that Williams’s “so‐
called” confession was not a confession at all, Trial Tr. 225, because “we don’t
34
know from the face” of the written confession “what that means when he says, I
had the gun.” Trial Tr. 228–29. More specifically, the defense argued at trial that
Williams did not confess, and that his handwritten statement, “I had the gun,” was
not an admission to knowing possession of the weapon, but simply an
acknowledgment by Williams that he was driving the car in which the gun was
found:
Let’s focus on this business about “I had the gun,” okay? What
does that mean? Does that mean I knew the gun was in the console
that day? No.
I was driving the car. They say they found the gun in the car. I
guess I had the car. . . .
Trial Tr. 226 (defense summation). Williams’s statements to police shortly after
executing his handwritten confession rebutted this argument by suggesting,
instead, that Williams first admitted to knowing possession of the loaded firearm
and then, contemporaneously with this admission, sought to curry favor with
police by telling them that he was in a position to cooperate in other cases. Cf.
United States v. Inserra, 34 F.3d 83, 89 (2d Cir. 1994) (noting that other‐crimes
evidence may be admitted “to provide the jury with the complete story of the
crimes charged by demonstrating the context of certain events relevant to the
charged offense”).
District courts have significant discretion in determining whether other‐
35
crimes evidence is admissible for a proper purpose. See United States v. Mercado,
573 F.3d 138, 141–42 (2d Cir. 2009). Here, Williams’s post‐arrest offer to assist
police tended to clarify that his written statement “I had the gun” was not an
admission to haplessly driving a car with a gun in it when he spoke to police, as
his counsel contended in summation, but was instead an acknowledgement that
Williams knowingly possessed the weapon in the Nissan, as he admitted to police
orally before offering to assist them in making other cases.9 Cf. United States v.
Quinones, 511 F.3d 289, 309 (2d Cir. 2007) (admitting evidence of uncharged
criminal conduct in order to clarify another statement that otherwise “ma[d]e no
sense”). Williams’s statement that he was in a gang and in a position to assist police
in locating drugs and guns was also independently probative as to Williams’s
intent to possess the loaded weapon found in the Nissan that day, and as to his
opportunity to obtain a weapon. Intent and opportunity are proper purposes
under Rule 404(b), and courts routinely admit evidence of gang membership in
circumstances like these where the evidence is relevant for a proper purpose. See,
e.g., United States v. Gordon, 496 F. App’x 579, 582–83 (6th Cir. 2012) (admitting
9 Notably, Williams’s oral admissions, as described by Detectives Latorre and
Fichter at trial, had none of the ambiguity of his written confession. See, e.g., GA‐47 (“It
was mine, I wasn’t going to hurt anybody with it, I’m sorry.”).
36
evidence of gang membership as relevant to motive and opportunity to possess a
gun); United States v. Santiago, 46 F.3d 885, 889–90 (9th Cir. 1995) (admitting
evidence of gang membership as “relevant to the issue of motive”); United States
v. Mills, 704 F.2d 1553, 1559–60 (11th Cir. 1983) (same); see also United States v.
Jobson, 102 F.3d 214, 221 (6th Cir. 1996) (“We hold . . . that defendant’s gang
membership would be admissible to establish his opportunity to commit the crime
[of gun possession].”).
Williams’s claim that the challenged statements were unfairly prejudicial
under Rule 403 is also unavailing. Rule 403 provides that evidence may be
excluded “if its probative value is substantially outweighed by a danger . . . of
unfair prejudice, confusing the issues, [or] misleading the jury.” Fed. R. Evid. 403.
As outlined above, the statements were probative for non‐propensity purposes.
And the district court mitigated any potential prejudice by issuing a limiting
instruction restricting the jury’s use of the gang‐affiliation evidence to proper Rule
404(b) grounds, telling the jury “not [to] consider it for any other reason
whatsoever.” GA‐127; cf. Mercado, 573 F.3d at 141–42 (declining to conclude that
district court abused its discretion in admitting other‐crimes evidence that was
“relevant and highly probative as to knowledge and intent” and was
37
“accompanied by a careful and thorough instruction limiting the evidence to
relevant Rule 404 grounds”). The district court’s “first hand exposure to the
witnesses, jury, and other evidence” at Williams’s trial put it in a “superior
position to evaluate the likely impact” of the challenged statements on the jury.
See Mercado, 573 F.3d at 142 (quoting Li v. Canarozzi, 142 F.3d 83, 88 (2d Cir. 1988)).
The court decided that the statements were not unfairly prejudicial and we decline
to second‐guess that decision.
2. The Facebook Images
Williams argues, finally, that the district court erred in admitting images
from his Facebook page. The images depict Williams making hand signs—signs
that Detective Fichter testified were gang signs, based on the detective’s “training
and experience as a gang squad detective.” GA‐109. Williams contends, as he did
with his post‐arrest statements, that these images constitute impermissible
propensity evidence. The government argues in response that Williams waived
this argument by intentionally declining to raise it during trial. We agree with the
government.
To preserve an evidentiary claim on appeal, a party must “timely object[]”
and “state[] the specific ground, unless it [is] apparent from context.” Fed. R. Evid.
38
103(a). This Court “ordinarily applies Rule[] 103(a) strictly,” and where a party
“made no objection that clearly stated the specific ground now asserted on
appeal,” a claim of error is “unavailing.” United States v. Hutcher, 622 F.2d 1083,
1087 (2d Cir. 1980) (quoting United States v. Rubin, 609 F.2d 51, 62–63 (2d Cir.
1979)). Here, when the government moved to admit the Facebook images,
Williams made a “general objection.” GA‐107. The following colloquy was then
held at side bar:
THE COURT: All right. As I understand, your only standing objection
that you’ve made to this was based on the delay that the government
exhibited in seeking the search for it. Is there another basis . . . ?
Because you said my general objection.
MR. PADDEN: I meant my previous objection, my previous motion.
THE COURT: So you don’t have a relevance objection or anything like
that. It was simply the objection that was lodged in your papers?
MR. PADDEN: Yes.
THE COURT: Only that?
MR. PADDEN: Yes.
THE COURT: All right. Then [if] that’s the only objection, then the
objection is overruled.
39
GA‐107. This exchange demonstrates that Williams did not make an objection
clearly stating the impermissible‐propensity‐evidence grounds now asserted on
appeal. The objection was thus not preserved at trial.
Where an objection has not been preserved, this Court has “discretion to
correct errors that were forfeited because not timely raised in the district court, but
no such discretion applies when there has been true waiver.” United States v. Spruill,
808 F.3d 585, 596 (2d Cir. 2015) (citing Fed. R. Crim. P. 52(b); and United States v.
Olano, 507 U.S. 725, 731–34 (1993)). The distinction between forfeiture and waiver
is therefore crucial, because “forfeiture does not preclude appellate consideration
of a claim in the presence of plain error, whereas waiver necessarily ‘extinguishes’
the claim altogether.” United States v. Yu‐Leung, 51 F.3d 1116, 1121 (2d Cir. 1995)
(citing Olano, 507 U.S. at 733). A claim is forfeited “when a defendant, in most
instances due to mistake or oversight, fails to assert an objection.” Spruill, 808 F.3d
at 596. A claim is waived, on the other hand, when a defendant makes an
“intentional decision not to assert a right” or, put another way, “act[s]
intentionally in pursuing, or not pursuing, a particular course of action.” Id. at 597.
And our caselaw makes clear that an identifiable tactical benefit is not a
40
“prerequisite to identifying waiver where the totality of circumstances otherwise
demonstrate the requisite intentional action.” Id. at 599.
The totality of the circumstances here convincingly shows that Williams
acted intentionally in declining to object on any grounds other than the
government’s alleged undue delay. The district court specifically asked Williams
not once, but twice, if he had any other objections—whether based on “relevance”
or “anything like that.” GA‐107. Williams confirmed both times that he had no
other objections. Cf. Spruill, 808 F.3d at 599 (finding true waiver where defendant’s
counsel did not “fall asleep at the wheel” but instead “actively engaged in the
matter and agreed to every action taken by the district court”). This is enough to
resolve the issue. The argument that the Facebook images constituted
impermissible propensity evidence is waived.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
41