US V. Peng Da Lin CR-09-182-JL 4/21/10 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 09-cr-182-01-JL Opinion No.

Peng Da Lin

MEMORANDUM ORDER

This case involves the admissibility of "prior bad acts"

evidence under Federal Rule of Evidence 4 0 4 (b). The defendant,

Peng Da Lin, is charged with four counts of trafficking in

counterfeit goods in violation of

(a). The

United States moves in limine, seeking to admit an affidavit that

the defendant filed with the U.S. Department of Homeland

Security, Citizenship and Immigration Services (CIS) on August

21, 2007, in which he discussed a prior arrest for allegedly

selling brand-name goods without authorization in 2006. The

prosecution's motion is denied. The affidavit is inadmissible in

the case-in-chief because it is not specially probative of the

defendant's knowledge that the goods at issue in this case were

counterfeit, and whatever slight probative value it may have is

substantially outweighed by the danger of unfair prejudice.

I . Facts

The charges against the defendant arise out of his alleged

sale of handbags, purses, wallets, luggage, and other accessories

at the Grandview Flea Market in Derry, New Hampshire on four separate dates. The items allegedly bore counterfeit trademarks

that were identical with or substantially indistinguishable from

genuine trademarks that were in use and registered by several

companies with the United States Patent and Trademark Office.

The prosecution is seeking admission of an affidavit signed

by the defendant on August 21, 2007. The defendant submitted the

affidavit to the Department of Homeland Security as part of an

application for permanent resident status and to explain the

circumstances of a prior arrest in New York City. The affidavit

indicates that in January 2006, before his indictment in this

case, and before the conduct charged in the indictment, the

defendant was arrested while selling handbags on a New York City

street.1 The charges were eventually dismissed.

The defendant's affidavit states that he was selling the

handbags for a friend and that he "did not know that the handbags

that my friend asked me to sell on the street is handbags [sic]

using the brand name that was not allowed [sic] ." He further

stated that "[t]he police officers told me that it is illegal to

sell the handbags by using the brand name of the others without

authorization. Since I just helped the [friend] to sell handbag

[sic], I have no idea these hand bags are name brand merchandises

[sic]." Finally, the defendant stated that he "learned a lesson

1Although defense counsel raised this issue at oral argument, the defendant's authorship or execution of the affidavit is not open to serious guestion.

2 from this incident and . . . will not make the same mistakes

again."2

II . Applicable legal standard

On issues of admissibility, "the party offering the evidence

has the burden of convincing the court that it is relevant to a

conseguential fact in issue other than propensity, and that Rule

403 does not reguire exclusion." 2 Jack B. Weinstein & Margaret

A. Berger, Weinstein's Federal Evidence § 404.23[5][b] at 404-140

21he affidavit, in its entirety, states: My name is Peng Da Lin, submitting this Affidavit to support my Permanent Resident Status application that is pending in your office. I have received a notice from your office reguesting me to submit a statement to explain of my arrest on January 24, 2006. I have attached a certified disposition from the Court to show that the case is dismissed. I was helping my friend, who is the owner of a gift store to sell handbag outside the gift store in New York City. I did not know that the handbags that my friend asked me to sell on the street is handbags [sic] using the brand name that was not allowed. Since I used to work in the garment factory and I did not know that these hand bags are using the brand name without authorizations [sic]. I was arrested on the street when I helped my friend to sell the handbags on January 24, 2006. The police officers told me that it is illegal to sell the handbags using the brand name of the others without authorization. Since I just helped the [friend] to sell handbag [sic], I have no idea these hand bags are name brand merchandises. The judge heard my case and decided to adjourn my case on July 26, 2006. My case was dismissed on January 25, 2007. I learned a lesson from this incident and I will not make the same mistakes again. Thank you for your consideration of my application. Affidavit of Peng Da Lin at 1.

3 (2d ed. 1997). Rule 404(b) of the Federal Rules of Evidence

provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Fed. R. Evid. 404(b). Rule 403 provides: "Although relevant,

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice." Fed. R. Evid.

403.

Under Rule 404 (b), "evidence of prior bad acts is not

admissible to show the actor's bad character or propensity to

commit crime." United States v. Hicks,

(1st

Cir. 2009) (citing United States v. Arias-Montoya,

(1st Cir. 1992)). "While logically relevant, 'propensity' or

'bad character' evidence is deemed to carry an unacceptable risk

that the jury will convict the defendant for crimes other than

those charged." Arias-Montoya,

. Such evidence,

however, "may be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident." Fed. R. Evid.

404 (b) .

4 Ill. Analysis

The prosecution seeks admission of the affidavit under Rule

404(b), arguing that it demonstrates the defendant's knowledge

that the goods bore counterfeit trademarks, which is an element

of the offense, and that the defendant's charged conduct was not

the result of an accident or mistake.

The court of appeals uses a two-part test to evaluate the

admissibility of evidence of prior bad acts. See United States

v. DeCicco,

(1st Cir. 2006). First, the court

"must determine whether the evidence in guestion has any 'special

relevance' exclusive of defendant's character or propensity."

Second, even if some "special relevance" is found,

the court must determine whether the evidence should be excluded under Federal Rule of Evidence 403, which allows courts to exclude relevant evidence 'if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.'

Hicks,

(guoting Fed. R. Evid. 403).

To start with, the most reasonable reading of the

defendant's affidavit, and the way his statement is most readily

understood, is as a claim that prior to his New York arrest, he

did not know it was illegal to sell handbags "using the brand

name of others without authorization," but after the officers

informed him of that fact, he understood that selling such bags

was illegal. Knowledge of illegality, however, is not an element

of the instant offense. See United States v. Hiltz,

5 Appx. 11 , 19 (1st Cir. 2001); see also United States v. Baker,

(5th Cir. 1986) ("Both the language of the

statute and the legislative history lead to the inescapable

conclusion that [the defendant] need not have known his conduct

was a crime."). To the extent that the evidence is offered for

that purpose (and the prosecution maintains that it is not) , it

is inadmissible.

The prosecution argues that the affidavit is "specially

probative of [the defendant's] intentional trafficking in goods

that he knew bore counterfeit marks"--in other words, to prove

his "knowledge" of the goods' counterfeit nature, which is the

reguisite culpable mental state under the counterfeit goods

trafficking statute,

(a).3 The guestion, then.

3T o be found guilty of trafficking in counterfeit goods under

(a), the defendant must possess knowledge that the goods he intentionally trafficked bore "counterfeit mark[s]." The term "counterfeit mark" has a precise definition under the statute: (e) For the purposes of this section- (1) the term "counterfeit mark" means- (A) a spurious mark- (i) that is used in connection with trafficking in any goods, services, labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature; (ii) that is identical with, or substantially indistinguishable from, a mark registered on the principal register in the United States Patent and Trademark Office and in use, whether or not the defendant knew such mark was so registered; (ill) that is applied to or used in connection with the goods or services for which the mark is registered with the United States Patent and Trademark Office, or is applied to or consists of a label, patch, sticker.

6 is whether and how the defendant's knowledge that some handbags

previously trafficked in New York City were counterfeit is

probative of his knowledge of the counterfeit nature of the

handbags and other goods at issue in this case. It is not.

The affidavit indicates nothing about the bags, trademarks, or

conduct involved in the New York incident that is probative of

this issue.

Some information regarding the purported counterfeit goods

or trademarks involved in the New York incident might make the

evidence more probative of the defendant's culpable knowledge in

this case. Such evidence might be a common or related supplier

or supply location, a common manufacturer of either the goods or

the false marks, common contractor(s ) hired to affix the false

marks to the goods, or even the repeated involvement of the

"friend" for whom the defendant stated he was selling the goods

in New York City.

Even more probative would be evidence of the similarity

between the counterfeit marks involved in the New York arrest and

wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag, documentation, or packaging of any type or nature that is designed, marketed, or otherwise intended to be used on or in connection with the goods or services for which the mark is registered in the United States Patent and Trademark Office; and (iv) the use of which is likely to cause confusion, to cause mistake, or to deceive

(e) (1) (A) (i-iv) (2006).

7 the allegedly offending marks in this case. After all,

demonstrable evidence of knowledge that the New York marks were

counterfeit, or even "spurious" (see

(e)(1)(A))

could create a permissible inference that the defendant possessed

such knowledge as to the seized New Hampshire goods, but only if

the marks in guestion were the same or substantially similar.

Without such evidence of commonality or substantial similarity

between the goods or marks themselves in the two cases, the

defendant's purported knowledge of the counterfeit nature of the

New York City bags--whether acguired from the arresting officers

or his own unlawful conduct--does not make it more likely that he

possessed such culpable knowledge as to the bags seized in New

Hampshire. Although it seems unlikely that the defendant would

lack the reguisite knowledge after his first, apparently similar

run-in with the authorities in New York--hence the Arias-Montoya

court's recognition that propensity evidence can be "logically

relevant,"

--the Rule 404(b) framework does not

permit that inferential leap on the limited evidence proffered by

the prosecution here.

Further, the affidavit does not even establish that the

defendant illegally trafficked counterfeit goods in New York. It

is merely the defendant's explanation to the Department of

Homeland Security about a prior event in New York City, the

details of which are unclear. All that the affidavit shows is

that the defendant was arrested for selling handbags that he was later told by police were illegal to sell, and that his case was

heard and dismissed by a court. The prosecution has not provided

any additional details of the defendant's prior arrest or about

the elements of proof required for a guilty finding under the New

York statute. Therefore, the court has insufficient evidence to

determine whether the prior conduct was "sufficiently similar" to

that alleged in the pending charges to "allow a juror to draw a

reasonable inference probative of knowledge and intent." United

States v. Landrau-Lopez,

(1st Cir. 2006).

Whatever small measure of probative value, if any, can be

gleaned from the affidavit is "substantially outweighed by the

danger of unfair prejudice." Hicks,

(quoting

Fed. R. Evid. 403); see also United States v. Sebaggala,

(1st Cir. 2001). Evidence creates a danger of unfair

prejudice where it invites the jury to base its decision on

improper considerations, such as criminal propensity, and where

"the proponent of the evidence could prove the fact by other,

non-prejudicial evidence." United States v. Varoudakis,

(1st Cir. 2000) (quoting 22 Charles Alan Wright &

Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence

§ 5214, at 269 (1978)).

Here, there is a substantial risk that the jury, if shown

the affidavit, would improperly infer the defendant's guilt based

not on its probative value, but on the assumption that his arrest

for somewhat similar conduct indicates a propensity to traffic in counterfeit goods. There is also a risk that the jury would

incorrectly confuse the defendant's knowledge that his alleged

New York conduct violated New York state law with knowledge that

his alleged New Hampshire conduct violated federal law. Again,

knowledge of illegality is not an element of the crime of

trafficking in counterfeit goods under

(a).

The prosecution has other, less prejudicial ways of proving

the knowledge element in this case. For example, the evidence

against the defendant includes two recorded conversations that he

had with undercover agents shopping at his table at the Grandview

Flea Market, as well as various tools and brand-name tags that

were recovered from him at the time of arrest. This court

therefore concludes that even if the affidavit were probative of

knowledge (which, on this record, it is not), the danger of

unfair prejudice outweighs its probative value. The affidavit is

therefore excluded from evidence.

To be sure, this is a pretrial ruling based on proffered

evidence. It is possible that strategic or tactical measures by

the defense (e.g., affirmative representations about the

defendant's lack of knowledge as opposed to more passive

arguments that the prosecution cannot prove knowledge, a

dubiously relevant appeal to the jury's sympathy with an

ignorance-of-law argument that the defendant did not know that

counterfeit trafficking was illegal, or an affirmatively advanced

argument that the defendant's conduct was the result of accident

10 or mistake) might make the New York events more relevant or

admissible. But on this record, applying the "specially

probative" standard, see Hicks,

, the court cannot

find this evidence admissible under Rule 4 0 4 (b).

IV. Conclusion

For the foregoing reasons, the United States' motion in

limine4 is DENIED.

SO ORDERED.

Dated: April 21, 2010

cc: Mark E. Howard, Esq. Mark S. Zuckerman, Esq.

4Document no. 24.

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