Baez 2nd Circuit Brief

Case 17-1741, Document 28, 10/19/2017, 2152180, Page1 of 49
17-1741- cr
United States Court of Appeals
for the
Second Circuit

UNITED STATES OF AMERICA,
Appellee,
– v. –
ATDILON BAEZ, aka Noble,
Defendant-Appellant.
___________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF AND SPECIAL APPENDIX

FOR DEFENDANT-APPELLANT
LAW OFFICES OF EZRA SPILKE, PLLC

Attorneys for Defendant-Appellant
315 Flatbush Avenue, Suite 512
Brooklyn, New York 11217
(646) 762-9713
TABLE OF CONTENTS
Page
JURISDICTIONAL STATEMENT ............................................................ 1
ISSUE FOR REVIEW ................................................................................. 1
STATEMENT OF THE CASE AND FACTS ............................................ 1

1. Nature of the Case and Disposition Below........................................ 1
2. Pretrial Evidentiary Rulings .............................................................. 2
3. Evidence at Trial ................................................................................ 6

A. Evidence as to the Firearms Possession and Sales ................... 6
B. Evidence as to Baez’s Arrest and Post-Arrest Interview ......... 9
C. Evidence as to Entrapment ....................................................... 10

D. Baez’s Testimony ..................................................................... 13
4. Selected Jury Instructions and Verdict .............................................. 14
5. Sentence ............................................................................................. 16
SUMMARY OF ARGUMENT ................................................................... 18

ARGUMENT
The Court’s Admission of Other-Acts Evidence Was Erroneous and
not Harmless Error ................................................................................... 19
A. Standard of Review............................................................................ 19
B. Legal Standards ................................................................................. 20
C. Discussion .......................................................................................... 24
1. Baez’s Statements as to Armed Robberies ............................... 24

2. The Sale of the .38 Revolver .................................................... 27
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3. Prior Convictions ...................................................................... 28
4. Harmless Error .......................................................................... 30

CONCLUSION ............................................................................................ 33
CERTIFICATE OF COMPLIANCE ........................................................... 34
- ii -
TABLE OF AUTHORITIES
Page(s)
Cases:
Faretta v. California,
422 U.S. 806 (1975) ................................................................................. 3n.2
Huddleston v. United States,
485 U.S. 681 (1988) ....................................................................... 21, 22, 25, 32
Jacobson v. United States,

503 U.S. 540 (1992) ................................................................................. 27
Kotteakos v. United States,

328 U.S. 750 (1946) ................................................................................. 19
Old Chief v. United States,
519 U.S. 172 (1997) ................................................................................. 23, 24
United States v. Ajjehi,

869 F.2d 670 (2d. Cir. 1989) ................................................................... 21
United States v. Baez,

No. 15-CR-755 (S.D.N.Y. July 4, 2016) .................................................. 3

No. 15-CR-755 (S.D.N.Y. July 7, 2016) .................................................. 3
No. 15-CR-755 (S.D.N.Y. June 1, 2016) ................................................. 1-2

No. 15-CR-755 (S.D.N.Y. June 14, 2016) ............................................... 3n.2

No. 15-CR-755 (S.D.N.Y. June 27, 2016) ............................................... 2

No. 15-CR-755 (S.D.N.Y. Oct. 29, 2015) ................................................ 1
- iii -
United States v. Brand,

467 F.3d 179 (2d Cir. 2006) .................................................. 24, 27, 27n.5, 28, 30
United States v. Broussard,
80 F.3d 1025 (5th Cir. 1996) .................................................................... 29
United States v. Brunshtein,

344 F.3d 91 (2d Cir. 2003) ....................................................................... 24
United States v. Carboni,

204 F.3d 39 (2d Cir. 2000) ....................................................................... 21
United States v. Colon,

880 F.2d 650 (2d Cir. 1989) ..................................................................... 22
United States v. Cummings,

858 F.3d 763 (2d Cir. 2017) ................................................................... 30, 31, 32
United States v. Curley,
639 F.3d 50 (2d Cir. 2011) ....................................................................... 23
United States v. Figueroa,
618 F.2d 934 (2d Cir. 1980) ................................................................ 21, 23, 29
United States v. Garcia,

291 F.3d 127 (2d Cir. 2002) ................................................................. 20, 22, 25
United States v. Gordon,
987 F.2d 902 (2d Cir. 1993) ................................................................. 21, 25, 32
United States v. Harvey,
991 F.2d 981 (2d Cir. 1993) ..................................................................... 30
United States v. Kaplan,
490 F.3d 110 (2d Cir. 2007) ..................................................................... 20, 29
United States v. McCallum,

584 F.3d 471 (2d Cir. 2009) ...................................................... 20, 22, 28, 29, 30
United States v. Mercado,

573 F.3d 138 (2d Cir. 2009) ..................................................................... 19
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United States v. Natal,

849 F.3d 530 (2d Cir. 2017) ..................................................................... 19
United States v. Ortiz,
857 F.2d 900 (2d Cir. 1988) ..................................................................... 22
United States v. Pitre,

960 F.2d 1112 (2d Cir. 1992) ................................................................... 20
United States v. Roldan-Zapata,

916 F.2d 795 (2d Cir. 1990) ..................................................................... 23
United States v. Tarricone,

996 F.2d 1414 (2d Cir. 1993) ................................................................... 22
Statutes:
18 U.S.C. § 922(d)(1)................................................................................... 1, 15
18 U.S.C. § 922(g)(1)................................................................................... 1
18 U.S.C. § 3231 .......................................................................................... 1

28 U.S.C. § 1291 .......................................................................................... 1
Fed. R. Evid. 403 ........................................................................... 18, 22, 23, 25, 29

Fed. R. Evid. 404(b) ..................................................................................... passim
Fed. R. Evid. 404(b)(2) ................................................................................ 20
Federal Sentencing Guidelines § 5K1.1 ...................................................... 10

USSG § 2K2.1(a)(6)(A) ............................................................................... 16
USSG § 2K2.1(b)(1)(B) ............................................................................... 16
USSG § 2K2.1(b)(5) .................................................................................... 16

USSG § 2K2.1(b)(6)(B) ............................................................................... 16
USSG § 3C1.2 .............................................................................................. 17
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JURISDICTIONAL STATEMENT
Atdilon Baez filed a timely notice of appeal from a judgment of conviction
entered on May 31, 2017, in the United States District Court for the Southern
District of New York (Woods, J.). A122.1 The district court had jurisdiction under
18 U.S.C. § 3231. This Court has jurisdiction under 28 U.S.C. § 1291.
ISSUE FOR REVIEW
WHETHER THE DISTRICT COURT'S ADMISSION OF OTHER-ACTS

EVIDENCE WAS ERRONEOUS AND, IF SO, WHETHER IT WAS
HARMLESS ERROR.
STATEMENT OF THE CASE AND FACTS
1. Nature of the Case and Disposition Below
Baez, a convicted felon, was arrested on October 14, 2015, for possessing an
Intratec Luger, nine millimeter, semi-automatic pistol ("TEC-9"). A25. He was
charged, in a single-count indictment in the United States District Court for the
Southern District of New York, with possessing a firearm after having been
convicted of a felony in violation of 18 U.S.C. § 922(g)(1). Indictment, United
States v. Baez, No. 15-CR-755 (S.D.N.Y. Oct. 29, 2015), ECF No. 5. A
superseding indictment was filed on June 1, 2016, adding the charge of selling the
TEC-9 to Victor Moral, a convicted felon, in violation of 18 U.S.C. § 922(d)(1).
Superseding Indictment (S-1), United States v. Baez, No. 15-CR-755 (S.D.N.Y.
1
Citations beginning with "A" refer to the Appendix page.
-1-
June 1, 2016), ECF No. 51. Baez was convicted by a jury of both counts on July
14, 2016. A1189-90. On May 31, 2017, Judge Gregory H. Woods entered a
judgment of conviction sentencing Baez principally to 105 months' imprisonment.
A1254-60.
2. Pretrial Evidentiary Rulings
Before trial, the government moved in limine to introduce Baez's recorded
statements to Moral indicating, inter alia, (1) that he bought guns in Mississippi
and sold them elsewhere, (2) that he knew someone who could convert semi-
automatic firearms to fully automatic, a person who happened to be a member of
the Pagans motorcycle gang, (3) that he had access to a variety of gun silencers
(together, the "September 16th statements"), (4) that he was interested in
conducting an armed robbery of a drug dealer using fake badges and impersonating
police officers, (5) that he was seeking a supplier for drugs to sell to the Bloods
gang in Toms River, New Jersey, and (6) on October 5, 2016, that he was ready
and willing to commit a robbery with Moral and supply a robbery crew. Gov't's
Mot. in Limine, United States v. Baez, No. 15-CR-755 (S.D.N.Y. June 27, 2016),
ECF No. 72. The government also sought to introduce the sale of a .38 Smith and
Wesson revolver to Moral that took place before Baez sold him the TEC-9. Id.
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Baez, proceeding pro se at the time,2 objected to the government's motions in
limine on relevance and prejudice grounds. Def.'s Opposition to Gov't's Mot. in
Limine, United States v. Baez, No. 15-CR-755 (S.D.N.Y. July 4, 2016), ECF No.
82; A536.
To rebut Baez's entrapment defense, the government also sought to
introduce three prior weapons convictions as evidence of Baez's predisposition to
possess weapons. Gov't's Reply Mot. in Limine 3-4, United States v. Baez, No. 15-
CR-755 (S.D.N.Y. July 7, 2016), ECF No. 86. One was a 1989 conviction in New
Jersey for unlawful possession of a shotgun, and another was a 2002 conviction in
New Jersey for a Daisy pellet handgun. Id. Baez objected to the admission of both
convictions but did not object to a third—a 2011 New Jersey conviction for
possession of a handgun. A546-47.
2
By letter motion dated June 14, 2016, Baez moved for new counsel or, in the
alternative, to proceed pro se. Letter Mot., June 14, 2016, United States v. Baez,
No. 15-CR-755 (S.D.N.Y. June 14, 2016), ECF No. 59. The court held a hearing
on the motion on June 17 and 20, 2016. Noting that the court had twice before
replaced appointed counsel at Baez's request, A176-77, and that the trial date
would not be moved, A178, the court denied Baez's application as to new counsel,
A181. Baez then waived his right to counsel after a hearing conducted pursuant
Faretta v. California, 422 U.S. 806 (1975), and the undersigned was appointed as
standby counsel. A195-A229. On July 11, 2016, the first day of trial, Baez invoked
his right to counsel, and the undersigned reassumed Baez's representation. A574-
76.
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The district court held a final pretrial conference on July 7, 2016. With
respect to the September 2, 2015, sale of the .38 to Moral, the court ruled that the
evidence was predisposition evidence under Rule 404(b) of the Federal Rules of
Evidence. A531-32. The court suggested that it would have ruled differently absent
the entrapment defense. Id.
As to the September 16th statements, the court admitted them reasoning that
the evidence was "intertwined with the sale of the TEC-9, which was allegedly
modified prior to the sale to the SOI," and thus not "other acts" evidence. A533. In
the alternative, the court ruled that the evidence was relevant under Rule 404(b)
because it showed Baez's
knowledge of firearms, his access to firearms, his preparation and

planning, . . . a lack of mistake or accident in the conduct alleged in
the indictment. . . . It [also] provides explanations regarding how Mr.
Baez may have come to possess the TEC-9 and how it may have been
modified before Mr. Baez sold it to the SOI.
A533. The court also ruled that the evidence was not unduly prejudicial to Baez,
"particularly given the fact that the statement that is . . . attributed to Mr. Baez[]
clarifies information regarding Mr. Baez's knowledge regarding the process of
converting weapons into fully automatic weapons." A534.
The court admitted the evidence regarding Baez's willingness and readiness
to commit armed robberies with Moral under Rule 404(b). A536, A538, A541-42.
The court reasoned that the statements were relevant as "evidence of predisposition
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under Rule 404(b) . . . to engage in criminal activity with [Moral] in particular,
and, in this instance, to ensure that [Moral] had appropriate weapons for future
robberies and the like." A537. The court noted that it would have evaluated the
evidence differently in the absence of an entrapment defense. Id. With respect to
the prejudicial effect of the evidence, the court recognized that it was prejudicial
but not unfairly prejudicial, particularly in light of the government's duty to prove
predisposition. A538; see also A542 ("I believe it is not unfairly prejudicial. I
recognize, in balancing that, that the statements here include a robbery, which is a
different type of incident than simply selling guns. I understand that they involved
armed robbery.").
The court admitted Baez's statements as to selling drugs to the Bloods in
Toms River under Rule 404(b), reasoning that they were "probative of his
predisposition to engage in illegal conduct." A539. The court stated that the
evidence "supported the conclusion that [Baez] was predisposed to engage in
criminal activity of a similar moral variety [to possessing and selling a gun to a
convicted felon] without government inducement." A539-40.
Finally, the court admitted all three of the prior convictions for weapons
possession. With respect to the 1989 shotgun conviction, the court admitted it as
Rule 404(b) evidence of predisposition. A550-51. While noting that the offense
was "quite dated," the court stated that there was no "hard-and-fast rule" regarding
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the admissibility of a remote conviction. Id. The court also allowed the 2002
conviction for the pellet gun, reasoning that it showed Baez's "predisposition to
illegally have weapons." A550. Baez did not contest the admission of the 2011
conviction for handgun possession. A549.
3. Evidence at Trial
A. Evidence as to the Firearms Possession and Sales
Trial commenced on July 11, 2016. A573. The government's evidence
featured two main fact witnesses: Moral and Drug Enforcement Administration
("DEA") Special Agent Todd Riley. Moral testified that he met Baez in Middlesex
County (New Jersey) Jail where both were in custody in August 2015. A624-25.
Moral said that he first spoke with Baez, whom he knew only as "Noble," around a
domino table and that they spoke about "[b]asic jail stuff, drug deals, murders,
weapons." A628. During this conversation, Moral claimed that he told Baez that he
had been in federal custody "for about five years" and that he had been "arrested
with a weapon" and "caught with some money." A629; see also A630 ("I just said
that I was just caught with a weapon and I was going to make a drug deal, and I got
caught with the money.").
Moral, who was known to Baez only as "Patience," testified that he and Baez
spoke about conducting firearm and drug transactions together once they left
Middlesex County Jail. A631. Moral claimed that Baez initiated the topic of
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firearm sales. Moral characterized the initial conversation during which that
subject was broached as follows:
Q. Can you describe that initial conversation?

A. Pretty much, we were just talking and I explained to him I live in
New York. I'm out there, about to be going home, and then he told me
that if I need any toys that he had whatever I would need.
Q. What did you understand him to mean by toys?
A. Weapons.
A631. Moral claimed that, before Baez brought the subject up, Moral had never
asked him for help in procuring firearms. A634. The specific weapons that,
according to Moral, Baez could provide were .40 calibers, assault rifles, machine
guns, and a TEC-9. A631-32. Moral testified that Baez told him that he had
recovered the weapons from an abandoned house that he was hired to demolish and
clean. A632-33.
After both Baez and Moral were released from Middlesex County jail, Moral
contacted Agent Riley and reported his conversations with Baez. A635-36. Moral
provided Agent Riley with Baez's cellphone number, and, from that, Agent Riley
was able to glean enough information to begin his investigation. A786.
On August 29, 2015, Agent Riley had Moral make a call to Baez that was
recorded by the DEA. A794-95, A797. In that call, Baez told Moral that he had just
received "some new toys," by which he meant firearms. A799. The next day, the
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two spoke again by phone, and Baez told Moral that he had "like four more."
A800.
Agent Riley then had Moral attempt to schedule an in-person meeting with
Baez to buy a firearm from him. Id. On September 2, 2015, Baez met with Moral
and another DEA informant posing as Moral's friend known only as "Eddie" at
Baez's home in Jackson, New Jersey. A800-02. At that meeting, Baez sold Moral a
Smith and Wesson .38 revolver. A802. The DEA recorded the meeting, and the
recording was played at the trial with frequent pauses for Moral to explain what he
understood the conversation to be about. A655-68.
Baez and Moral met again on September 16, this time at a restaurant in
upper Manhattan. A674; see also A830-41. At that meeting, which was also
recorded and heard by the jury, Baez told Moral that he was going to Mississippi to
buy assault rifles, A674-75, but that the only firearm that he was willing to sell was
the TEC-9, A676. The two had discussed making modifications to the gun—
making it automatic and fitting it with a silencer—and the work was to be done by
a friend of Baez's. A676. According to Baez, the modifications were still being
worked on, and the gun was not ready yet. Id. Baez and Moral also discussed
committing robberies and procuring large amounts of cocaine for sale. A676-77.
On October 4, 2015, Baez sent Moral a series of text messages indicating
that the TEC-9 was ready, and the two of them arranged another meeting to
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complete the sale. A831-35. Baez, Moral and Eddie met again on the night of
October 5, this time at the Dinosaur Barbecue Restaurant in upper Manhattan.
A849. Moral and Baez spoke in further detail about robbing a stash house. A693.
Moral stated that a successful robbery of the stash house would require a
significant number of accomplices. A693. Baez indicated that he knew people who
could serve in that capacity. A693-94.
After a few minutes of conversation inside the restaurant, the men left the
restaurant and walked to the rear of Baez's vehicle, which was parked nearby.
A854. Baez opened the hatchback of the vehicle, retrieved the TEC-9, and handed
it to Moral. A689-90. Moral handed Baez $1,600 in cash. A691. The October 5
meeting was audio and video recorded and the recordings were admitted in
evidence.
After Baez had left, Moral and Eddie handed the TEC-9 to Agent Riley.
A691-92; A860. The promised modifications had not been made to the TEC-9.
A774 (testimony of Special Agent Howard Ross Stern, Bureau of Alcohol Tobacco
Firearms and Explosives, an expert in firearms).
B. Evidence as to Baez's Arrest and Post-Arrest Interview

On October 14, 2015, Baez was taken into custody outside his home in
Freehold, New Jersey. A868. Simultaneously, between ten and fifteen DEA agents,
including Agent Riley, conducted a warrant search of Baez's home in Jackson,
-9-
New Jersey. Id. The agents found firearms, airsoft guns and accessories for both.
A868-85.
That night, DEA agents brought Baez to the DEA's Manhattan office, and
Agent Riley questioned him. A887-88. The questioning was videotaped, and the
video was received in evidence. A888-89. During questioning, Baez admitted
selling the .38 revolver and the TEC-9 to Moral. Baez told Agent Riley that, three
months or more before the interview, he had obtained the .38 revolver and the
TEC-9 that he sold to Moral. A890-91. Baez said that he bought the revolver from
a man known to him as "Drama" in June 2015. A891.
C. Evidence as to Entrapment
Before testifying at the instant trial, Moral had previously cooperated with
the United States Attorney's Office of the Southern District of New York, which
moved for a sentencing departure under § 5K1.1 of the Federal Sentencing
Guidelines. A625-26. Moral asserted that, after his federal sentence, he was
"freelancing" for the DEA, stating:
Q. At the time that you arrived in Middlesex County were you still
expecting to receive any further benefit pursuant to your cooperation
agreement?
A. No.
Q. What kind of work, if any, did you still intend to do for the
government at that point?
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A. Pretty much I [would] just say free-lancing. If anything came to my

attention try to see if I was able to get ahold of someone and use it to
my advantage to try to see if I could get financial assistance for it.
A626. Moral went on to explain that, at the time of trial, he was a paid informant
for the DEA, reporting whatever crime he learned of to the DEA in the expectation
that he would be paid for the information. A627. He was paid $6,000 for his efforts
leading to Baez's arrest. A636.
Moral testified about his lengthy criminal history, with the most damaging
admissions coming under cross-examination. For several years, Moral and a crew
that he had assembled committed armed robberies of truck drivers, stealing their
entire cargo. A712-14. Sometimes the value would be in the hundreds of thousands
or millions of dollars. A714. Moral and his crew would separately impersonate
police officers. A679, A735-37. Moral even bought a police car with working
sirens and lights to commit literal highway robberies. Id. Moral testified that he
broke into a police impound lot to retrieve incriminating evidence from a trap in a
seized car. A737-39. And he testified that he committed many of his crimes while
cooperating with law enforcement. As to prior false testimony, Moral admitted to
killing a man and then, at his trial, lying under oath. A709-10. At Baez's
sentencing, the court below characterized Moral "a truly despicable character."
A1245.
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Agent Riley suggested that Moral's testimony regarding the discussions
about firearms in Middlesex County Jail were corroborated by Moral and Baez's
later recorded conversations. But, on cross-examination, Agent Riley conceded
that the only evidence of the content of those conversations, during which,
according to Moral, Baez broached the subject of selling guns to Moral was
Moral's uncorroborated testimony. A913-14.
The government also attempted to establish through Agent Riley's testimony
that Moral was not working for the DEA when he was in Middlesex County Jail.
But, through cross-examination, the defense called that notion into question.
Agent Riley testified that he had attended many of Moral's proffer sessions
with the government dating back to 2013 and that he had attended Moral's federal
sentencing hearing in September 2014. A904-07. At that sentencing hearing, the
federal prosecutor told the sentencing judge that Moral would not recidivate
because he would speak to Agent Riley on a daily basis. A907.
Agent Riley and Moral did indeed stay in frequent contact after Moral's
sentence. Id. Moral started working for the DEA, supervised by Agent Riley,
starting in 2014. Id. And Moral made five or six cases for Agent Riley. A911.
Agent Riley indicated that, when Moral entered Middlesex County Jail, the two
men did not have a formal understanding that Moral would cease working for the
DEA until he was released, at which time his work would resume. A938. However,
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Agent Riley disagreed with Moral's characterization that he was "freelancing" for
the DEA while he was in the Middlesex County Jail at the time he met Baez
because his communication was "a lot more limited" and not "as frequent" as when
Moral was out of jail. A929.
In order to prove predisposition, the government introduced the three
firearms convictions that were the subject of the its motions in limine: (1) the
August 1989 possession of a shotgun, A899, (2) the December 2002 conviction for
possession of a weapon by a prohibited person, A899-900, and (3) the February
2011 conviction for possession of a weapon by a prohibited person, A901.
D. Baez's Testimony
Baez testified as the defense's only witness. Baez explained that county jails
housed convicted misdemeanants and pretrial detainees together. A965. Thus, it
was impossible to know, just by an inmate's presence in the county jail, whether he
had been sentenced or was in pretrial detention. Id. In August 2015, Baez himself
had been arrested for driving with a suspended license, a non-felony offense, and
sentenced to twenty days in the county jail. Id. With respect to Moral's status as a
convicted felon, Baez testified: "I never mentioned my background to him. I never
told him that I was in prison before. He never told me that he was in prison
before." A969.
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Baez gave his account of how he met Moral at the Middlesex County Jail.
Baez testified that Moral approached him, and the two discussed Baez's business.
A966. Talk turned to Baez's cleaning of abandoned homes, and Baez described the
variety of personal property that people left behind: "cars, motorcycles, sofas, beds,
brand-new things, used things, antiques." Id. Baez testified that Moral then asked
him whether he comes across any firearms. Id. Baez responded: "[Y]es, I did find a
TEC-9 in a home. And that home was pretty packed with a lot of airsoft toys,
sights, lasers, silencers." A967.
According to Baez, the discussion about the TEC-9 continued on several
occasions. A968. And Baez described how Moral persisted until his will was
overborne and he agreed to sell Moral firearms once they both were released.
A969-72. Baez also testified about the sale of the firearms and the discussions
surrounding them largely in accordance with the surveillance recordings and with
his post-arrest statement. A972-76.
4. Selected Jury Instructions and Verdict
The court instructed the jury on the permitted uses of other acts evidence,
stating:
The evidence of other acts apart from the prior conviction referenced
in Government Exhibit 1004 was admitted solely for the purpose of
establishing the defendant's predisposition or lack of predisposition to
commit the offenses charged in the indictment. . . .
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However, while you should evaluate the evidence of other acts in your
determination of the defendant's predisposition or lack thereof you
may not use this evidence to conclude that because the defendant
committed these other acts or crimes he must also have committed the
acts charged in the indictment.
A1173-74
The court instructed the jury on the offense of selling a firearm to a felon
under 18 U.S.C. § 922(d)(1). As to the knowledge requirement of that crime, the
court stated:
The third element of the crime charged in Count Two requires that the
government prove beyond a reasonable doubt that when the defendant
sold the firearm in question to the buyer, the defendant either knew or
had reasonable cause to believe that the buyer was a convicted felon.
To have knowledge that a buyer is a convicted felon means to have

actual knowledge of that fact, actual knowledge that prior to the
firearm sale, the buyer had been convicted of a felony. In contrast, to
have reasonable cause to believe that a buyer is a convicted felon
means to have knowledge of facts which, although not amounting to
direct knowledge, would cause a reasonable person, knowing the
same things, to conclude that the buyer was in fact a convicted felon.
A1162-63.
The court instructed the jury on the two elements of entrapment: inducement
and lack of predisposition. As to predisposition, the court charged the jury as
follows:
If . . . you find that the government . . . initiate[d] the criminal acts

charged in the indictment, then you must decide whether the
government has proven beyond a reasonable doubt that the defendant
was already predisposed to commit the relevant crime. In other words,
has the government proven beyond a reasonable doubt that the
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defendant was ready and willing to commit the crime before he was
first approached by the confidential source, Patience.
The government may prove this in any of three ways: First, by
showing that the defendant was already engaged in an existing course
of criminal conduct similar to the charged crime; second, by showing
that the defendant had already formed a design to commit the charged
crime; or, third, by showing that the defendant was ready and willing
to commit the charged crime, as demonstrated by his prompt response
to the opportunity presented by the confidential source, [Patience].
Whether the defendant was predisposed to commit the relevant crime

is a factual question that you must decide, based on all of the
evidence. In deciding this question, you may consider the defendant's
prior conduct, including his criminal record, if any.
A1165-66.
5. Sentence
At sentencing, the district court calculated the guidelines range as follows.
First, the court found that the base offense level was fourteen because at the time
Baez committed the offenses he was a prohibited person under USSG
§ 2K2.1(a)(6)(A). A1200. Baez received a four-level enhancement under
§ 2K2.1(b)(5) for trafficking in firearms. Id. The court imposed a two-level
enhancement because the offense involved more than three but fewer than eight
firearms. Id.; see USSG § 2K2.1(b)(1)(B). The court rejected the government's
contentions that the offense involved eight or more firearms, A1200-01, and that
Baez committed the crimes of conviction in connection with another felony offense
under § 2K2.1(b)(6)(B), A1206.
-16-
The district court found that Baez obstructed justice by "providing false
testimony at trial and otherwise." A1201-02. The court found that Baez had falsely
testified regarding his ignorance of Moral's criminal past and regarding his own
predisposition to commit the crimes of conviction. A1202-03.
The court specifically did not credit Baez's testimony that he did not know
that Moral was a convicted felon until after his arrest, A1203, that he believed that
Moral was a business investor, id., and that he met with Moral at the Dinosaur
Barbecue in Harlem on October 5, 2015, merely to discuss business, A1204. With
respect to the timing of Baez's possession of the firearms at issue, the court
disbelieved Baez's testimony that he obtained the TEC-9, the .38 revolver and the
nine-millimeter after he was released from Middlesex County Jail. A1204-05.
With respect to the entrapment defense, the court did not credit Baez's testimony
that Moral had initiated the topic of selling him guns in conversation. A1205.3
Accordingly, the court applied a two-level enhancement for obstructing justice
under USSG § 3C1.2. A1206.
The court found the total offense level to be twenty-two, id., and that Baez
was in Criminal History Category VI, A1207, resulting in a guidelines range of 84
3
The court also found that Baez lied in a bail hearing when he told the court that
he had never had a felony conviction for a serious drug offense or sold a drug in
his life. A1205.
-17-
to 105 months' imprisonment, id. Baez was sentenced to 105 months'
imprisonment to be followed by three years' supervised release. A1247. The court
imposed curfew as a condition of supervised release, A1248-49, to which Baez
objected, A1251-52. The court overruled Baez's objection. A1252. This appeal
followed.
SUMMARY OF ARGUMENT
The district court erroneously allowed evidence of "other acts" that was
inadmissible under Rule 404(b) and Rule 403 of the Federal Rules of Evidence.
First, the court admitted evidence concerning Baez's willingness to participate in
armed robberies of heavily fortified stash houses–evidence that had no place in this
straightforward firearms possession and sale case. Second, the court received
evidence about a prior gun sale—of a revolver—between Baez and the
government's paid informant. And, third, the court admitted three prior convictions
for weapons possession, one of which was twenty-seven years' old and the other of
which was for possession of a pellet gun. The court's errors resulted from its failure
either (1) to assess the evidence's similarity to the conduct charged, (2) to properly
consider whether the evidence was relevant to a disputed issue, (3) to
conscientiously evaluate the Rule 403 factors, or (4) to do some combination of the
above requirements.
-18-
It cannot be presumed that the jurors' judgment was not swayed by these
errors. The government actually handed the revolver to the jury. As to the armed-
robbery evidence, the government made it Baez's leitfmotif, returning to it often
during its witnesses' testimony and dwelling on it at length. The weapons
possession convictions showed Baez to be a recidivist and lengthened Baez's rap
sheet more than the case required. Thus, there is a serious risk that, because of the
court's errors, the jury was invited to declare Baez guilty based on considerations
other than proof specific to the offenses charged.
ARGUMENT
The Court's Admission of Other-Acts Evidence Was Erroneous and not

Harmless Error
A. Standard of Review
This Court reviews evidentiary rulings for abuse of discretion. United States
v. Natal, 849 F.3d 530, 534 (2d Cir. 2017). "A district court has abused its
discretion if it based its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence or rendered a decision that cannot be located
within the range of permissible decisions." Id.
An erroneous evidentiary ruling is reviewed for harmless error. Kotteakos v.
United States, 328 U.S. 750, 776 (1946). Such a ruling "is harmless if the appellate
court can conclude with fair assurance that the evidence did not substantially
influence the jury." United States v. Mercado, 573 F.3d 138 (2d Cir. 2009). In
-19-
reviewing for harmless error, this Court "principally consider[s]: (1) the overall
strength of the prosecution's case; (2) the prosecutor's conduct with respect to the
improperly admitted evidence; (3) the importance of the wrongly admitted
[evidence]; and (4) whether such evidence was cumulative of other properly
admitted evidence." United States v. McCallum, 584 F.3d 471, 478 (2d Cir. 2009)
(internal quotation marks omitted) (quoting United States v. Kaplan, 490 F.3d 110,
123 (2d Cir. 2007)).
B. Legal Standards
Rule 404(b) of the Federal Rules of Evidence provides: "[Evidence of a
crime, wrong, or other act] may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident." Fed. R. Evid. 404(b)(2). In reviewing whether a
district court properly admitted evidence under Rule 404(b), this Court considers
whether: "(1) the prior acts evidence was offered for a proper purpose; (2) the
evidence was relevant to a disputed issue; (3) the probative value of the prior act
evidence substantially outweighed the danger of its unfair prejudice; and (4) the
court administered an appropriate limiting instruction." United States v. Garcia,
291 F.3d 127, 136 (2d Cir. 2002) (internal quotation marks omitted) (quoting
United States v. Pitre, 960 F.2d 1112, 1118 (2d Cir. 1992)) (describing the factors
-20-
for assessing the admissibility of Rule 404(b) evidence that was set forth in
Huddleston v. United States, 485 U.S. 681, 691-92 (1988)).
As to the "proper purpose" step of the above inquiry, this Court takes an
"inclusionary approach" to Rule 404(b). United States v. Carboni, 204 F.3d 39, 44
(2d Cir. 2000). But even when evidence is offered for a proper purpose, it may
nevertheless be inadmissible "if the other act or acts are not sufficiently similar to
the conduct at issue." United States v. Gordon, 987 F.2d 902, 909 (2d Cir. 1993)
(internal quotation marks omitted) (quoting United States v. Ajjehi, 869 F.2d 670,
674 (2d. Cir. 1989)); see id. ("It is an abuse of discretion for the trial court to
admit other-act evidence 'if the other act or acts are not sufficiently similar to the
conduct at issue."').
For evidence to be admissible under Rule 404(b) it must be relevant to a
disputed issue. This Court stated in United States v. Figueroa:
The procedure for determining admissibility depends on the grounds

on which the Government offers the evidence. If the evidence is
offered to prove that the defendant committed the act charged in the
indictment, for example, by proving identity or common scheme, the
evidence may be offered during the prosecution's case-in-chief, unless
the defendant's commission of the act is not a disputed issue.
United States v. Figueroa, 618 F.2d 934, 939 (2d Cir. 1980). In order for an issue
not to be in dispute, a defendant "must express a decision not to dispute that issue
with sufficient clarity." Id. at 942. However, such an expression does not have to
come in the form of a formal stipulation. Id. "In some circumstances the very
-21-
nature of a defense put forward by the defendant may itself remove an issue from a
case." United States v. Tarricone, 996 F.2d 1414, 1421 (2d Cir. 1993); see also
United States v. Colon, 880 F.2d 650, 657 (2d Cir. 1989) ("Our cases have . . .
recognized a distinction between defense theories that claim that the defendant did
not do the charged act at all, and those that claim that the defendant did the act
innocently or mistakenly, with only the latter truly raising a disputed issue of
intent."); United States v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988) (internal
citations omitted) ("[I]ntent is not placed in issue by a defense that the defendant
did not do the charged act at all. When a defendant unequivocally relies on such a
defense, evidence of other acts is not admissible for the purpose of proving
intent.").
Even when the government offers Rule 404(b) evidence for a proper purpose
and as to a disputed issue it
still must establish the relevance of the evidence to the issue in

dispute. The government may not invoke Rule 404(b) and proceed to
offer, carte blanche, any prior act of the defendant in the same
category of crime. The government must identify a similarity or
connection between the two acts that makes the prior act relevant to
establishing knowledge of the current act.
Garcia, 291 F.3d at 137.
Moreover, evidence of other acts should not be admitted unless the district
court has "carefully conducted" the Rule 403 balancing set forth as the third factor
of the Huddleston test. McCallum, 584 F.3d at 476. When there is a risk of
-22-
prejudice, "Rule 403 requires the trial court to make a conscientious assessment of
whether the probative value of the evidence on a disputed issue in the case is
substantially outweighed by the prejudicial tendency of the evidence to have some
other adverse effect upon the defendant." Figueroa, 618 F.2d at 943.
Rule 403 provides: "The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. "The
prejudicial effect may be created by the tendency of the evidence to prove some
adverse fact not properly in issue or unfairly to excite emotions against the
defendant." Figueroa, 618 F.2d at 943; see also Old Chief v. United States, 519
U.S. 172, 180 (1997) (describing "unfair prejudice" as "an undue tendency to
suggest decision on an improper basis"). Other acts may be unfairly prejudicial if
they are "more sensational or disturbing than the crimes with which [the defendant]
was charged." United States v. Curley, 639 F. 3d 50, 62 (2d Cir. 2011) (citing
United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990)). Other means of
proving the issue to which the prejudicial evidence relates also matters to a court's
Rule 403 assessment. Thus, in addition to balancing the probative value against the
prejudicial effect of a piece of evidence, a court must also "plac[e] the result of that
-23-
assessment alongside similar assessments of evidentiary alternatives." Old Chief,
519 U.S. at 184-85.
C. Discussion
1. Baez's Statements as to Armed Robberies
In this case, the court below erroneously allowed testimony about—and
recordings of—Baez's statements indicating that he was ready and willing to
commit armed robberies with Moral. The court reasoned that, under Rule 404(b),
the evidence was relevant to show Baez's predisposition "to engage in criminal
activity with [Moral] in particular, and, in this instance, to ensure that [Moral] had
appropriate weapons for future robberies and the like." A537.
"[P]redisposition may be shown by evidence of: '(1) an existing course of
criminal conduct similar to the crime for which the defendant is charged, (2) an
already formed design on the part of the accused to commit the crime for which he
is charged, or (3) a willingness to commit the crime for which he is charged as
evidenced by the accused's ready response to the inducement.'" United States v.
Brand, 467 F.3d 179, 191 (2d Cir. 2006) (quoting United States v. Brunshtein, 344
F.3d 91, 101-02 (2d Cir. 2003)). Here, the district court indicated that the existence
of the predisposition element drastically altered its assessment of the Rule 404(b)
factors. Id. But the court did not explain exactly how it did so.
-24-
The court gave no indication that it had considered the Huddleston factors as
this circuit's authority clearly commands. See Gordon, 987 F.2d at 909; Garcia,
291 F.3d at 137. Notably, it did not find that planning an armed robbery was
sufficiently similar to the charged conduct, an inquiry that is relevant to both
admissibility under Rule 404(b) and predisposition. Rather, the court stated only
that robbery was "a different type of incident than simply selling guns," A542,
conceding that the conduct was not similar.
The court also did not conduct the conscientious assessment required by
Rule 403 of whether the probative value of the evidence substantially outweighed
its prejudicial tendency. On that subject, the court indicated merely that the
evidence was prejudicial, but not unfairly prejudicial, in light of the government's
duty to prove predisposition. A538; see also A542. The court below thus gave little
more explanation than the district court in McCallum, which, in allowing two prior
felony convictions, focused almost exclusively on the relevance and proper
purposes factors of the Rule 404(b) inquiry and assessed prejudice only briefly and
in passing. 584 F.3d at 476-77. In that case, this Court found the admission of the
two convictions to be an abuse of discretion. Id. at 477.
The admission of the armed robbery statements in this case were only
tangentially relevant to a disputed issue. The district court impermissibly expanded
the variety of criminal conduct for which the government could show
-25-
predisposition. Baez's predisposition to possess the charged firearm and to sell it to
a known convicted felon was at issue, not committing armed robberies.4 The
statements had meagre probative value as to predisposition. Possessing and selling
a gun is not remotely similar to an armed robbery of drug dealers, one of the most
violent and dangerous felonies that one can commit.
The price of receiving this low-value piece of evidence was consequential.
The jury learned little about Baez's predisposition for selling firearms. In exchange,
the jury was led to conclude that Baez was a dangerous armed robber, an
impression that the government frequently propounded at trial. E.g., A669-70,
A677-79, A693-95, A747-48, A933-34, A1087, A1092, A1097-98, A1101, A1110,
A1114, A1127. There is a real possibility that the jury convicted Baez based, in
part, on his apparent willingness and readiness to commit the most hazardous of
armed robberies and, thus, believed that it was ridding the streets of a brazen
criminal. The armed-robbery evidence was patently "more sensational or
disturbing than" the gun crimes with which Baez was charged.
4
Elsewhere the district court indicated that it took an expansive view of
permissible predisposition evidence. When assessing the admissibility of Baez's
statements regarding drug sales to the Bloods gang in Toms River, the district
court stated that they were "probative of his predisposition to engage in illegal
conduct," A539-40, not to engage in the charged crimes.
-26-
Thus, the armed-robbery evidence fail three of the four Huddleston factors
and it was an abuse of discretion to receive it at trial.5
2. The Sale of the .38 Revolver

The district court erroneously received evidence regarding Baez's September
2, 2015, sale of the .38 revolver to Moral. Moral and Baez met when they were
incarcerated together in Middlesex County Jail at the end of August 2015.
According to Baez, that is when Moral induced him to sell firearms. Baez's post-
inducement state of mind was irrelevant. Predisposition by definition refers to a
defendant's state of mind before the government prompted him to commit a crime.
Brand, 467 F.3d at 192 (quoting Jacobson v. United States, 503 U.S. 540, 549 n.2
(1992)) ("[T]he government's reliance on certain evidence of acts that occurred
after Brand's initial contact with government agents is misplaced. This evidence
would not be probative of 'petitioner's state of mind prior to the commencement of
the Government's investigation.'").
Relying on Brand, the district court found evidence of the sale admissible
because it showed Baez's prompt response to the inducement. However, in Brand,
the defendant's response was far more prompt than Baez's assent in this case. In a
5
The admission of the armed robbery statements was also erroneous because those
discussions took place after Baez's initial contact with Moral. It was thus irrelevant
as to Baez's pre-inducement state of mind. Brand, 467 F.3d at 192.
-27-
telephone conversation between Brand and a woman who was posing as a thirteen-
year-old girl, the woman told Brand that she wanted learn "sex stuff and
everything." Brand, 467 F.3d at 185. Brand immediately "proceeded to enumerate
the sexual acts that he could engage in with" the imaginary thirteen-year-old. Id.
Accordingly, this Court observed that Brand had "jumped at the opportunity"
presented by the inducement and that the woman's single mention of "sex stuff"
released a torrent of graphic and detailed descriptions of sexual acts. Id. at 194-95.
Brand is thus inapt. Baez and Moral were housed together for several days.
According to Baez, his will was overborne after Moral attempted several times to
persuade him to sell Moral a gun. Several days after Moral and Baez were released
from jail, on August 29, 2015, Baez indicated to Moral that he had new firearms
for sale. Accordingly, evidence of Baez's sale of the .38 revolver was not indicative
of his prompt agreement with the government's inducement.
3. Prior Convictions
The district court erroneously allowed the government to introduce two of
Baez's prior convictions for weapons possession: the August 1989 shotgun
possession and a December 2002 weapons possession.6 As this Court observed in
McCallum:
6
A third weapon possession conviction—in 2011, for a handgun—was introduced
without objection.
-28-
[E]vidence of prior convictions merits particularly searching,

conscientious scrutiny. Such evidence easily lends itself to
generalized reasoning about a defendant's criminal propensity and
thereby undermines the presumption of innocence.
McCallum, 584 F.3d at 476.
Neither conviction survives this scrutiny. The evidence of Baez's August
1989 conviction for possession of a shotgun was far too remote to have any
probative value. See Figueroa, 618 F.2d at 942 (holding that it was an abuse of
discretion for the district court to admit into evidence at a drug trial the defendant's
drug conviction that was at least ten years old); United States v. Broussard, 80 F.3d
1025, 1040 (5th Cir. 1996) ("[T]he remoteness of the extrinsic acts evidence may
weaken its probative value . . . ."). Instead, it merely invited the jury to view Baez
as a long-time felon who should be convicted because he is a recidivist.
Accordingly, it should have been excluded under Rule 404(b) and Rule 403.
Baez's 2002 conviction for possession of a Daisy airsoft pellet gun is totally
irrelevant to any matter in dispute. Assuming, arguendo, that the conviction had
any probative value, it was meagre. It is difficult to grasp what relevance
possession of a pellet gun has to the sale of a real, deadly firearm. Past conduct as
evidence of a defendant's predisposition "should be near enough in kind to support
an inference that his purpose included offenses of the sort charged; although it is
not necessary that the past conduct be precisely the same as that for which the
-29-
defendant is being prosecuted." Brand, 467 F.3d at 200 (internal quotation marks
omitted) (quoting United States v. Harvey, 991 F.2d 981, 994 (2d Cir. 1993)).
The incremental value of the evidence was undoubtedly outweighed by its
prejudicial impact. As this Court has stressed many times, prior convictions are
particularly prone to give the mistaken impression to jurors that that "if a defendant
previously was convicted of [certain] offenses, there is a high probability that he is
guilty of the [same] offense for which he is on trial." McCallum, 584 F.3d at 476.
4. Harmless Error
The district court's erroneous evidentiary rulings were not harmless. Because
Baez established well before trial that he was advancing an entrapment defense as
to both counts, he necessarily conceded his possession and sale of the TEC-9 to
Moral. Thus, the only issues in dispute at trial were (1) inducement, (2) Baez's
predisposition to possess the TEC-9 and to sell it to a convicted felon, and (3)
Baez's knowledge, actual or imputed, that Moral was a convicted felon.
As to Baez's predisposition to sell a firearm to a felon, the government's case
was not particularly strong. This Court observed in United States v. Cummings:
The test of whether an error is harmless . . . is not whether,

disregarding the erroneously introduced evidence, there was other
evidence which was independently sufficient to establish [a
defendant's] guilt. Rather, we must evaluate the manner in which, in
the total setting of the case, the error influenced the jury.
-30-
United States v. Cummings, 858 F.3d 763, 774 (2d Cir. 2017). Nevertheless, other
than the erroneously admitted evidence, the predisposition evidence consisted
principally of (1) Moral's uncorroborated testimony that Baez had initiated the
discussion about firearms sales and (2) the 2011 conviction for possession of a
handgun. Moral was effectively impeached regarding his lengthy and despicable
criminal history and his past false testimony. And the 2011 conviction speaks to
Baez's predisposition to possess a gun, not to sell one to a convicted felon.
As to the second and third prongs of the harmless error analysis—how the
government used the improperly admitted evidence and the evidence's
importance—the government's placed outsized importance on the evidence and, "in
the total setting of the case, the error[s] influenced the jury." Id. The government
twice argued—in its summation and rebuttal summation—that Baez was
predisposed to commit the crimes charged because he had been convicted of
weapons possession three times in the past. A1106, A1136. With respect to the
prior gun sale to Moral, the government referenced the sale of the .38 often and
even handed the gun to the jury. A816.
The armed robbery discussions were a major theme at trial. The government
questioned Moral at length on direct and redirect about Baez's statements, A669-
70, A677-79, A693-95, A747-48, A933-34, and persistently returned to them in
summation, A1087, A1092, A1097-98, A1101, A1110, A1114, A1127. Thus, there
-31-
is a "serious risk that such evidence lured the jury into declaring guilt on a ground
different from proof specific to the offense charged." Cummings, 858 F.3d at 775.
Even if this Court does not find that any individual erroneous ruling
warrants a new trial, the verdict was swayed by the cumulative effect of the errors.
Much of the other-acts evidence was admitted to prove issues that were not in
dispute. The only issues in dispute at trial were (1) inducement, (2) Baez's
predisposition to possess the TEC-9 and to sell it to a convicted felon, and (3)
Baez's knowledge, actual or imputed, that Moral was a convicted felon. Some of
the prior acts fail the "proper purpose" factor of the Huddleston test in that that
they were "not sufficiently similar to the conduct at issue." Gordon, 987 F.2d at
909. The court also did not engage in a sufficiently conscientious assessment of the
evidence's prejudice with respect to much of the other-acts evidence. Although
some of the evidentiary errors on their own are not harmless, it certainly cannot be
said that their cumulative effect did not influence the jury.
-32-
CONCLUSION
For the foregoing reasons, it is respectfully submitted that Baez's convictions
should be reversed and the charges dismissed, or that the convictions should be
vacated and a new trial ordered, or remanded for appropriate hearings. In the
alternative, this Court should issue an order such other and further relief as this
Court deems just and proper.
Dated: Brooklyn, New York

October 19, 2017
Respectfully submitted,
s/Ezra Spilke
EZRA SPILKE, ESQ.
Attorney for Defendant-Appellant
Atdilon Baez
315 Flatbush Avenue, No. 512
(646) 762-9713
-33-
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure,
the foregoing brief contains 7,793 words according to the word count function of
the MS Word application and is, thus, in compliance with the type-volume
limitation set forth in Rule 32(a)(7)(B) of the Federal Rules of Appellate
Procedure. The typeface – 14-point, Times New Roman – complies with Rule
32(a)(5)(B) of the Federal Rules of Appellate Procedure.
Dated: Brooklyn, New York

October 19, 2017
Respectfully submitted,
s/Ezra Spilke
EZRA SPILKE, ESQ.
Attorney for Defendant-Appellant
ATDILON BAEZ
315 Flatbush Avenue, No. 512
(646) 762-9713
-34-
SPECIAL APPENDIX
Special Appendix Table of Contents

Page
Judgment of the United States District Court for the
Southern District of New York, Filed May 31, 2017,
Appealed From ........................................................................ SPA-1
SPA-1
1: Document 137 1 7
AO 2458 (Rev. I 1/16) Judgment in a Criminal Case
Sheet 1
UNITED STATES DISTRICT COURT

Southern District of New York
UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE

v.
ATDILON BAEZ Case Number: 1:15-cr-755-GHW-1
)
) USM Number: 92446-054
)
) Ezra Spilke, Esq.
) Defendant's Attorney
THE DEFENDANT:
D pleaded guilty to count(s)
D pleaded nolo contendere to count(s)
which was accepted by the court.
Ii'.] was found guilty on count(s) Counts 1 and 2 of S1 Indictment
after a plea of not guilty.
The defendant is adjudicated guilty of these offenses:
18 USC§ 922(d)(1) Selling Firearm to a Convicted Felon. October 2015 2
The defendant is sentenced as provided in pages 2 through __L.___~. -·. of this judgment. The sentence is imposed pursuant to
the Sentencing Reform Act of 1984.
D The defendant has been found not guilty on count(s)
D Count(s) D is Dare dismissed on the motion of the United States.
It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence,
or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution,
the defendant must notify the court and United States attorney of material changes in economic circumstances.
___M.~Y. JQ}__ZQJZ________________ ····----·-··· ·-

oatc oflmposilion of Judgment
h r,.;:nr ~IUJV
I
VU.LIV ._,.Lil' .I
II
DOCUMENT
ELECTRONICALLY FILED
Gregory H. vyoods .. -~~9..:
DOC#:~~~~-r---.~ Name and Title of Judge ----
DATE FILED: ,")-:,/3J I I 7

l.;\.
SPA-2
1: Document 137 2 7
AO 245B (Rev. l 1/16) Judgment in Criminal Case
Sheet 2 ··~·Imprisonment
Judgment - Page 2 of 7
DEFENDANT: ATDILON BAEZ
CASE NUMBER: 1: 15-cr-755-GHW-1
IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total
term of:
i 05 months on Count 1 and Count 2, to be served concurrently.
D The court makes the following recommendations to the Bureau of Prisons:
Ill The defendant is remanded to the custody of the United States Marshal.
D The defendant shall surrender to the United States Marshal for this district:
D at D a.m. D p.m. on
D as notified by the United States Marshal.
0 The defendant shall surrender fbr service of sentence at the institution designated by the Bureau of Prisons:
D before 2 p.m. on
D as notified by the United States Marshal.
D as notified by the Probation or Pretrial Services Office.
RETURN
1 have executed this judgment as follows:
Defendant delivered on to
a , with a certified copy of this judgment.
UNITED STATES MARSHAL
By~·~·----·-------------- ..~~--·--
DEPUTY UNITED STATES MARSHAL
SPA-3
1: Document 137 3 7
AO 245B (Rev. l 1116) Judgment in a Criminal Case
Sheet 3 - Supervised Re lease
Judgmcnt-----Page __ ) ______ of --~~-------

CASE NUMBER: 1:15-cr-755-GHW-1
SUPERVISED RELEASE
Upon release from imprisonment, you will be on supervised release for a term of:
3 years on Count 1 and Count 2, to run concurrently.
MANDATORY CONDITIONS
I. You must not commit another federal, state or local crime.
2. You must not unlawfully possess a controlled substance.
3. You must refrain from any unlawfol use ofa controlled substance. You must submit to one drug test within 15 days of release from
imprisonment and at least two periodic drug tests thereafter, as determined by the court.
~ The above drug testing condition is suspended, due to the imposition of a special condition requiring drug treatment
and testing.
4. li1" You must cooperate in the collection of DNA as directed by the probation officer. (check ifapplicable)
5. D You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as
directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you
reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
6. D You must participate in an approved program for domestic violence. (check if applicable)
You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached
page.
SPA-4
1: Document 137 4 7
AO 245B (Rev. 111!6) Judgment in a Criminal Case
Sheet 3A -· Supervised Release
Judgmcnt--Page _______ of - - - -.. ··-·--·--~

STANDARD CONDITIONS OF SUPERVISION

As paii of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed
because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation
officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.
I. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your
release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time
frame.
2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and
when you must report to the probation officer, and you must report to the probation officer as instructed.
3. You must not knowingly leave the federal judicial district where you arc authorized to reside without first getting permission from the
court or the probation officer.
4. You must answer truthfully the questions asked by your probation officer.
5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living
arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying
the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72
hours of becoming aware of a change or expected change.
6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to
take any items prohibited by the conditions of your supervision that he or she observes in plain view.
7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from
doing so. If you do not have full-time employment you must tty to find full-time employment, unless the probation officer excuses
you from doing so. If you plan to change where you work or anything about your work (such as your position or your job
responsibilities), you must notify the probation officer at least I 0 days before the change. If notifying the probation officer at least I 0
days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of
becoming aware of a change or expected change.
8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been
convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the
probation officer.
9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
I 0. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon {i.e., anything that was
designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or lasers).
l l. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without
first getting the permission of the court.
12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may
require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the
person and confirm that you have notified the person about the risk.
13. You must follow the instructions of the probation officer related to the conditions of supervision.
U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this
judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised
Release Conditions, available at: www.uscourts.gov.
Defendant's Signature Date

SPA-5
Case 1: Document 137 5 7

AO 245B(Rcv. 11116) Judgment in a
Sheet 30 ~ Supervised Release

SPECIAL CONDITIONS OF SUPERVISION

The defendant will participate in an outpatient treatment program approved by the United States Probation Office, which
program may include testing to determine whether the defendant has reverted to using drugs or alcohol. The defendant
shall contribute to the costs of services rendered based on the defendant's ability to pay and the availability of third-party
payments. The Court authorizes the release of available drug treatment evaluations and reports to the substance abuse
treatment provider.
The defendant shall submit his person, residence, place of business, vehicle, and any property or electronic devices under
his control to a search on the basis that the probation officer has reasonable suspicion that contraband or evidence of a
violation of the conditions of the defendant's supervised release may be found. The search must be conducted at a
reasonable time and in a reasonable manner. Failure to submit to a search may be a grounds for revocation. The
defendant shall inform any other residents that the premises may be subject to search pursuant to this condition.
The defendant shall be restricted to his residence every day from 8 p.m. to 7 a.m., or as othervvise directed by the
probation officer. The curfew shall be enforced by location monitoring. The defendant shall be monitored by location
monitoring technology as directed by the probation officer, which shall include, without limitation, GPS monitoring or
equivalent location monitoring technology directed by the probation officer. The defendant shall abide by all technology
requirements. The defendant shall pay all or part of the costs of participation in the location monitoring program as
directed by the Court and the probation officer.
SPA-6
1: Document 137 6 7
AO 2458 (Rev. 11/16) Judgment in a Criminal Case
Sheet 5 - Criminal Monetary Penalties
Judgment - Page 6 of 7
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.
Assessment ,JVT A Assessment* Fine Restitution

TOTALS $ 200.00 $ 0.00 $ 0.00 $ 0.00
D The determination of restitution is deferred until An Amended Judgment in a Criminal Case (AO 245C) will be entered
after such determination.
D The defendant must make restitution (including community restitution) to the following payees in the amount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in
the priority or~ier or perc~ntage payment column below. However, pursuant to 18 U.S.C. § 3664(1), all nonfederal victims must be paid
before the Umted States is paid.
TOTALS $ 0.00
$ --·-··-----·------·-------- - ----------~:-~Q__
D Restitution amount ordered pursuant to plea agreement $
D The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in fuii before the
fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(1). All of the payment options on Sheet 6 may be subject
to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
D The court determined that the defendant does not have the ability to pay interest and it is ordered that:
0 the interest requirement is waived for the D fine D restitution.

D the interest requirement for the D fine 0 restitution is modified as follows:
*Justice for Victims ofTrafficking Act of2015, Pub. L No. 114-22.

**Findings for the total amount of losses are required under Chapters I 09A, 110, l l OA, and l l 3A of Title 18 for offenses committed on or
after September 13, I 994, but before April 23, 1996.
SPA-7
Case 1: Document 137 7 7

AO 245B (Rev. I l /l 6} Judgment in a
Sheet 6 -- Schedule of Payments
Judgment - Page _Z._ of 7

SCHEDULE OF PAYMENTS
Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties is due as follows:
A D Lump sum payment of$ due immediately, balance due
O not later than ········- ________ , or

D in accordance with D C, D D, D E, or D F below; or
B D Payment to begin immediately (may be combined with DC, D D, or D F below); or
C D Payment in equal -----··------·-·--···- (e.g., weekly, 111011/h~v. quarterly) installments of $ ____ over a period of
(e.g., months or year.1), to commence ...... (e.g., 30 or 60 day.1) after the date of this judgment; or
D D Payment in equal (e.g., weeldy, monthly, quarterly) installments of $ -

over a period of
(e.g., months oryear.1), to commence ... ___._..___ (e.g., 30 or 60 dayJ) after release from imprisonment to a
term of supervision; or
E D Payment during the term of supervised release will commence within -· ..................... (e.g .. 30 or 60 dayJ) after release from
imprisonment. The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or
F fl) Special instructions regarding the payment of criminal monetary penalties:
The Special Assessment in the amount of $200.00 shall be paid immediately.
Unless the court has expressly ordered otherwise, ifthisjudgment imposes imprisonment, payment ofcriminal monetaiy penalties is due during
the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate
Financial Responsibility Program, are made to the clerk of the court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
D Joint and Several
Defendant and Co-Defendant Names and Case Numbers (including defendant numbe1), Total Amount, Joint and Several Amount,
and corresponding payee, if appropriate.
D The defendant shall pay the cost of prosecution.
D The defendant shall pay the following court cost(s):
D The defendant shall forfeit the defendant's interest in the following prope1ty to the United States:
Payments shall be applied in the following order: (1) assessment, (2) restitution pdncipal, (3) restitution interest, (4) fine principal, (5) fine
interest, (6) community restitution, (7) JVTA assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs.

Baez 2nd Circuit Brief

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Case 17-1741, Document 28, 10/19/2017, 2152180, Page1 of 49

UNITED STATES OF AMERICA,

ATDILON BAEZ, aka Noble,

BRIEF AND SPECIAL APPENDIX

LAW OFFICES OF EZRA SPILKE, PLLC

ISSUE FOR REVIEW ................................................................................. 1

STATEMENT OF THE CASE AND FACTS ............................................ 1

2. Pretrial Evidentiary Rulings .............................................................. 2

3. Evidence at Trial ................................................................................ 6

B. Evidence as to Baez’s Arrest and Post-Arrest Interview ......... 9

C. Evidence as to Entrapment ....................................................... 10

4. Selected Jury Instructions and Verdict .............................................. 14

SUMMARY OF ARGUMENT ................................................................... 18

B. Legal Standards ................................................................................. 20

1. Baez’s Statements as to Armed Robberies ............................... 24

3. Prior Convictions ...................................................................... 28

4. Harmless Error .......................................................................... 30

CERTIFICATE OF COMPLIANCE ........................................................... 34

Jacobson v. United States,

Kotteakos v. United States,

United States v. Ajjehi,

United States v. Baez,

United States v. Baez,

United States v. Baez,

United States v. Baez,

United States v. Baez,

United States v. Brand,

United States v. Brunshtein,

United States v. Carboni,

United States v. Colon,

United States v. Cummings,

United States v. Garcia,

United States v. McCallum,

United States v. Mercado,

United States v. Natal,

United States v. Pitre,

United States v. Roldan-Zapata,

United States v. Tarricone,

18 U.S.C. § 3231 .......................................................................................... 1

Fed. R. Evid. 403 ........................................................................... 18, 22, 23, 25, 29

Fed. R. Evid. 404(b)(2) ................................................................................ 20

Federal Sentencing Guidelines § 5K1.1 ...................................................... 10

USSG § 2K2.1(b)(1)(B) ............................................................................... 16

USSG § 2K2.1(b)(5) .................................................................................... 16

USSG § 3C1.2 .............................................................................................. 17

Atdilon Baez filed a timely notice of appeal from a judgment of conviction

18 U.S.C. § 3231. This Court has jurisdiction under 28 U.S.C. § 1291.

ISSUE FOR REVIEW

WHETHER THE DISTRICT COURT'S ADMISSION OF OTHER-ACTS

STATEMENT OF THE CASE AND FACTS

1. Nature of the Case and Disposition Below

Intratec Luger, nine millimeter, semi-automatic pistol ("TEC-9"). A25. He was

convicted of a felony in violation of 18 U.S.C. § 922(g)(1). Indictment, United

TEC-9 to Victor Moral, a convicted felon, in violation of 18 U.S.C. § 922(d)(1).

Superseding Indictment (S-1), United States v. Baez, No. 15-CR-755 (S.D.N.Y.

judgment of conviction sentencing Baez principally to 105 months' imprisonment.

2. Pretrial Evidentiary Rulings

Before trial, the government moved in limine to introduce Baez's recorded

automatic firearms to fully automatic, a person who happened to be a member of

(together, the "September 16th statements"), (4) that he was interested in

Baez, proceeding pro se at the time,2 objected to the government's motions in

limine on relevance and prejudice grounds. Def.'s Opposition to Gov't's Mot. in

To rebut Baez's entrapment defense, the government also sought to

introduce three prior weapons convictions as evidence of Baez's predisposition to