## Facts

- New York City police conducted undercover surveillance near Bronx nightclubs associated with drug activity and violence.
- An officer observed Richie Bermudez moving among clubs and speaking with people on the street, leading police to suspect narcotics activity.
- The officer testified he overheard Bermudez say he had “fresh bricks” at his apartment and could obtain “500 grams” the next morning; the officer understood these as references to cocaine quantities.
- Officers approached Bermudez; he fled and struggled with police during pursuit.
- Police recovered a firearm during the encounter.
- Bermudez had a prior felony conviction and was charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- A jury in the Southern District of New York convicted Bermudez.

## Issues

1. Whether admitting police testimony about Bermudez’s alleged drug-related statements was an abuse of discretion under Federal Rule of Evidence 403 (and improperly functioned as propensity evidence in a firearm-possession trial).
2. Whether the district court’s “blind strike” method for exercising peremptory challenges violated Federal Rule of Criminal Procedure 24(b) or constitutional jury-selection rights.
3. Whether two prosecutorial remarks during summation constituted prejudicial misconduct requiring a new trial.

## Decision

- The Second Circuit affirmed the conviction.
- The court held the drug-statement testimony was properly admitted to provide background and explain police conduct; its probative value was not substantially outweighed by unfair prejudice.
- The court held the blind-strike peremptory procedure did not violate Rule 24(b) and fell within the district court’s discretion to manage voir dire; Bermudez showed no prejudice to jury impartiality.
- The court held the challenged summation remarks did not cause substantial prejudice; any potential harm was mitigated by jury instructions and the record did not support reversal.
- A judge dissented in part, objecting to the admission of the drug-related statements as unduly prejudicial in the felon-in-possession prosecution.

## Legal Principles

- Evidence that completes the narrative of events and explains police actions may be admitted even if it incidentally reveals uncharged criminal conduct, provided Rule 403’s unfair-prejudice balance is satisfied.
- Rule 403 permits exclusion only when unfair prejudice substantially outweighs probative value; trial courts have substantial discretion in making that determination.
- Federal Rule of Criminal Procedure 24(b) governs the number of peremptory challenges but does not mandate a specific method (such as sequential rather than simultaneous exercise); district courts have broad discretion over voir dire procedures.
- Prosecutorial-misconduct claims require a showing of substantial prejudice affecting the fairness of the trial; curative instructions and the strength of the evidence are central to the prejudice analysis.

## Conclusion

The Second Circuit upheld Bermudez’s § 922(g)(1) conviction, concluding that the challenged drug-related testimony was admissible to explain the police encounter, the blind-strike method of peremptory challenges was permissible under Rule 24(b) and the Constitution, and the prosecutor’s summation remarks did not substantially prejudice the defense.


United States v. Bermudez, 529 F.3d 158 (2d Cir. 2008)