Meet The Press

United States v. Treacy, No. 09-3939-cr (2d Cir. March 9, 2011) (McLaughlin, Hall, CJJ, Restani, JCIT)

James J. Treacy, former COO and President of the parent company of Monster.com, was convicted of securities fraud and related offenses based on a scheme in which he backdated stock options. On appeal, the circuit held that the district court violated Treacy’s confrontation rights by restricting his cross-examination of a Wall Street Journal reporter who had written an article about the backdating of options at Monster that seemingly contained false exculpatory statements made by Treacy, but that the error was harmless. The court also found that the district court improperly calculated the forfeiture amount with respect to one of the options grants.

The Confrontation Issue

At trial, the government introduced into evidence a WSJ article that opined that the odds were one in nine million that a pattern of options grants as favorable or more favorable than those Treacy received would have occurred if dates were selected randomly. The article also contained extensive quotes from Treacy himself, in which he denied any wrongdoing, and the government called the reporter to the stand to verify the accuracy of the statements he attributed to Treacy.

The reporter tried to quash the subpoena, citing the journalist’s privilege. The district would not quash, but tightly limited both the direct and the cross-examination. As for the direct, the questioning was to be limited only to the reporter’s work on the particular article; he would only be asked to verify that Treacy made statements to him that he subsequently reported, and to identify the specific things that they said to each other in the interview. As for the cross, since Treacy argued only that the statements were taken out of context, and not that he did not make them or that they were otherwise misreported, his questioning of the reporter was limited to going over the questions that the reporter asked of him “immediately before those that elicited the responses quoted in the story.”

In the event, when the reporter testified, the court sustained the reporter’s attorneys objections to questions asked by Treacy that went beyond the court’s ruling - such as why he interviewed Treacy, and questions about a post-interview that the reporter sent to Monster’s public relations consultant - holding that Treacy could not make an “open ended attack” on the reporter’s credibility. The court, however, did allow Treacy to introduce the email itself.

The circuit began its discussion with the journalist’s privilege, noting that “at least in the civil context” a “journalist possesses a qualified privilege protecting him or her from the compelled disclosure of even nonconfidential materials.” Here, there was no claim that the reporter was trying to protect a source or other confidential materials. To the contrary, he was trying to protect materials that the source wanted disclosed. In this situation, the nature of the press interest protected by the privilege is narrower, and the privilege is more easily overcome. In civil cases where this is the issue, the privilege yields if a litigant can establish that the materials are of likely relevance to a significant issue in the case and are not “reasonably obtainable from other sources.”

The court rejected the argument - made by Dow Jones, as an amicus - that there should be a higher standard for overcoming the journalist’s privilege in criminal cases. Without delving into the competing constitutional concerns, the court simply noted that Dow Jones had not provided “any convincing reason why” the test should be different in criminal cases where only nonconfidential materials are sought. Thus, “in instances where a reporter is not protecting a confidential source or confidential materials, the showing required to overcome the journalist’s privilege is the same in a criminal case as it is in a civil case.” This is true “whether the party seeking to overcome the privilege is the prosecution or the defense.”

The district court correctly applied these principles in limiting the direct examination of the reporter. Treacy’s statements to the reporter appeared to be false exculpatories, and were thus “likely relevant.” And, since Treacy could not be compelled to testify, the reporter was the only source of the information. The district court’s limitations protected the journalist’s privilege by tailoring the questions to the showing of relevance and necessity.

But the limitations on the cross-examination, by contrast, went too far. Even taking into account the district court’s broad discretion in setting the parameters of cross-examination, curtailing cross-examination that “keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony” is an abuse of discretion. Accordingly, here, it was an abuse of discretion to forbid cross-examination of the reporter beyond the ways that the ordinary rules regarding scope of direct and relevancy would restrict the examination of any other witness. Since the privilege issue was the same on cross as it was on direct, the district court should not have treated the reporter’s “interest as a competing interest to be balanced against Treacy’s Confrontation Clause rights.”

Thus, Treacy should have been permitted to “challenge [the] reporter’s credibility about the specific content of his direct testimony.” In addition, while the district court had the discretion to prevent a “general attack on credibility,” in application the restriction here went too far. The purpose of the reporter’s direct testimony was to confirm the accuracy of the statements attributed to Treacy in the article. Thus, Treacy should have been able to test the reporter’s memory with respect to the writing of the article. If the district court truly believed that “Treacy could not fully exercise his Confrontation Clause rights” due to the reporter’s “assertion of the privilege, it ought to have” either quashed the subpoena or stricken the reporter’s direct testimony.

A confrontation error does not require reversal if the government establishes that the error was “harmless beyond a reasonable doubt,” after assuming that the “damaging potential of the cross-examination were fully realized.” That standard was met here, even though the government in summation repeatedly emphasize Treacy’s statements to the reporter as evidence of his mendacity. Here, “the other evidence in the prosecution’s case was vastly more significant to demonstrating Treacy’s actual actions.” The court noted that Treacy was able to introduce the reporter’s post-interview email and that this allowed him to argue, even if with less force, that the statements attributed to him in the article were taken out of context. Second, in this circuit, false exculpatory statements are considered to be weak circumstantial evidence of guilt. Finally, other evidence in the case convincingly established Treacy’s guilt, and the court was “confident that the jury would not have been persuaded otherwise by an ambiguous newspaper article.”

The Forfeiture Issue

The circuit did agree, however, that the district court erred in for calculating the forfeiture amount as to one of the options grants because the court used an incorrect measurement date. According to Treacy, if a different date were used it would result in a smaller forfeiture. The court thus vacated this portion of the forfeiture and remanded for recalculation.

Gray's Anatomy

United States v. Jass, No. 06-4899-cr (2d Cir. June 16, 2009) (Walker, Cabranes, Raggi, CJJ)

Marian Jass was jointly tried with her much older boyfriend, Kenneth Leight, on charges that they sexually exploited Leight's daughter and one of her friends. Leight, but not Jass, was also charged with several child pornography counts, based on materials found in his home. The evidence of sexual exploitation consisted mainly of the testimony of the two girls. The government also relied on an agent's testimony that Leight gave a detailed oral, unsigned and unacknowledged, confession about the episode involving the daughter's friend. The statement, which incriminated Jass and referred to her seven times, was admitted over her objection after being redacted to substitute the phrase "another person" for each reference to her name. Leight did not testify and could not be cross-examined about the statement attributed to him. The court instructed the jury that it could not consider the statement against Jass. Jass was convicted along with Mr. Leight and was sentenced to 65 years imprisonment.

The opinion concerns the admissibility of the redacted statement and a sentencing guideline issue. The Court rejected in a summary order other evidentiary and sentencing arguments.

The Redacted Statement

The defendants’ activities came to light soon after the New Jersey trip, and both were arrested. Post-arrest, Leight gave a detailed statement about the New Jersey trip that implicated both him and Jass. At the defendants’ joint trial, Leight’s confession was admitted, but was redacted of its references to Jass, who was either referred to as “another person” or “the other person.” The district court also gave instructions limiting the jury’s use of the statement to Leight and prohibiting its use against Jass.

On appeal, Jass argued that the admission of Leight’s confession violated her confrontation right under Bruton because the use of neutral pronouns or phrases such as “another person” was inadequate under Gray v. Maryland, 523 U.S. 185 (1998), which held that replacing a defendant’s name with an obvious blank or a “deleted” reference was insufficient to avoid Bruton error. Jass claimed that the redaction here was insufficient because it still obviously implicated her, and that the circuit’s pre-Gray case law - which permitted the substitution of neutral words for a defendant’s name - had been abrogated by Gray.

The circuit disagreed. It first noted that it had already held, in a 2001 case, that this was not so and that there was no basis for reconsidering that case.

Nor did it matter that in Jass’ case the redacted confession implicated only one person other than the declarant and only the declarant and one other person were on trial. While Leight’s redacted confession alluded only to a single, presumably female, confederate, this circumstance is not analogous to Gray because the “another person” redaction effectively concealed from the jury the fact that Leight had referred directly to another person at all, let alone that the person he identified was Jass.

According to the circuit, this is the core element of the Bruton/Gray line of cases: a concern that juries not learn that a declarant defendant has “specifically identified a co-defendant as an accomplice in the charged crime,” because such “specific testimony” is “more vivid than inferential incrimination” and is thus “more difficult to thrust out of mind.” But the Bruton rule is “narrow,” confined to those situations where there will be an “overwhelming probability” that the jury cannot ignore one defendant’s specific implication of another. Where the redaction adequately conceals from the jury the specific identification of a co-defendant, there is no reason to fear that a jury will be unable to follow the court’s instruction that it should consider a confession only against its maker. The Confrontation Clause does not require that a “confession be redacted so as to permit no incriminating inference against the non-declarant defendant.”

Here, accordingly, the redaction was adequate. First, it did not indicate to the jury that Leight’s original statement contained actual names. The way the agent described the confession - e.g., “Mr. Leight told me that he and another person had taken [Victim 2] to ... New Jersey” - in no way suggested that Leight had given the agent the actual name of his accomplice.

Nor did the redacted confession “immediately” inculpate Jass. Here, the inference that the jury would have had to make to connect Jass to the redacted statement was sufficiently attenuated, because the jury would have had to refer to other trial evidence to make the link. Viewing the statement in isolation, it would not have been immediately apparent that the references to “another person” must have meant Jass, even though some of the redactions made it fairly clear that the “other person” was a woman. A “simple gender reference ... lacks the specificity necessary to permit a jury to draw an immediate inference that the defendant is the person identified in the confession.” This is true even though Jass was the only other person on trial with Leight. All a juror could infer from this was that the prosecution believed that Jass was the other person that Leight mentioned in his confession but who, as far as the jury knew, he did not identify further. Accordingly, there was no Confrontation Clause violation here.

The court concluded with a brief review of the evidence of Jass’ guilt apart from Leight’s statement, and found that that the testimony of the girls rendered any confrontation error harmless, although this review did not expressly discuss the corroborating effect of Leight's statement.

The Sentencing Issue

Before the New Jersey trip, Leight used a computer, with Jass’ knowledge, to “groom” the daughter’s friend by showing her images of adults having sex with children so as to persuade her that such acts were normal. The district court subjected both defendants to the two-level enhancement under guideline section 2G2.1(b)(3)(B)(ii), which prescribes a two-level enhancement for the use of a computer to “solicit participation with a minor in sexually explicit conduct.” Jass argued that this enhancement did not apply, since it was the minor’s own participation - and not a third party's - that had been solicited.

The circuit agreed. It would make no sense to say that there should be a two-level increase because Leight used a computer to “solicit [Victim 2's] participation with [Victim 2] in sexually explicit conduct.” It is more natural to read this section as addressing a situation in which one person solicits another person to engage in sexual activities with a minor; otherwise the phrase “participation with” is rendered effectively meaningless. Accordingly, here, it was error to enhance Jass’ sentence under this provision.

But the error was harmless. The district court gave Jass a below-Guideline sentence of 65-years’ imprisonment - Leight got 115 years - and specifically indicated that it would have imposed the same sentence without the enhancement.

Confrontational

United States v. Figueroa, No. 06-1595-cr (2d Cir. November 18, 2008) (Kearse, Sack, Hall, CJJ)

In an interesting companion to Brinson v. Walker [blogged below under the title "Confrontation Claws"], the court treated a highly similar issue, this time under both the Confrontation Clause and the federal rules of evidence.

At Edwin Figueroa’s gun possession trial, he wanted to cross-examine a government witness about the fact that the witness had swastikas tattooed on his body. Since Figueroa was a member of a minority group, he argued that the tattoos would show that the witness was biased. Citing Rule 608, the district court precluded the questioning as inadmissible evidence of “bad character.”

On appeal, the circuit disagreed, holding that precluding the cross-examination violated the Confrontation Clause. “Inasmuch as the tattoos suggested that [the witness] harbored animus against racial or ethnic minority groups and their members, they were relevant to and probative of [his] credibility, bias, and motive to lie when testifying against Figueroa.” On the facts here, however, the error was harmless, since the witness was one of several who tied Figueroa to the gun.

Of particular interest in this opinion is the court’s discussion of the relevant rules of evidence. The court held that the district court erred “as a matter of law” in precluding the evidence under Rule 608. Impeachment for bias is admissible under Rule 402 even if the impeachment materials are not independently admissible under Rule 608 as “concerning” the witness’ “character for truthfulness or untruthfulness.” The opinion also noted that, since the district court did not exclude the testimony under Rule 403, there was no basis for reviewing its ruling on Rule 403 grounds. However, the court suggested that “[b]ased on the proverbial cold record before us, the reasons the court excluded the relevant tattoo evidence seem relatively modest compared to the Rule 403 factors favoring admissibility,” although it ultimately “express[ed] no opinion” as to whether excluding the evidence under Rule 403 would have been within the trial court’s discretion.

Confrontation Claws

Brinson v. Walker, No. 06-0618-cr (2d Cir. November 13, 2008) (Kearse, Leval, Sack, CJJ)

In this state prisoner’s habeas corpus case, the circuit affirmed the grant of the writ because the state court’s refusal to permit the defense to cross-examine a supposed robbery victim about his racial bias violated the confrontation clause.

Brinson, the petitioner, testified at trial that this was not a robbery, but rather a small - ten-dollar - marijuana sale that had gone bad. He had hoped to raise a defense that the witness’ robbery accusation was false, and was motivated by a racial hatred of African-Americans. Defense counsel had a compelling offer of proof: first, he indicated that the witness had refused to serve African-Americans when he worked as a waiter, and that he was prepared to call the victim’s supervisor if the witness denied it. In addition, an acquaintance of the witness was prepared to testify that the victim had “used a demeaning racial epithet in her presence.” Nevertheless, the state trial court refused to let the defense pursue this, holding that it was irrelevant because those particular events occurred after the robbery. The Appellate Division affirmed on a different ground - that the evidence would demonstrate only “general ill will of the complainant and not his specific hostility toward defendant.”

A federal magistrate granted Brinson’s habeas petition, and the circuit affirmed. “[A]t least where the racial bias sought to be exposed is of sufficient intensity that it is reasonably likely to result in the falsification of the witness’s testimony against the accused, a preclusion of cross-examination on the ground that racial bias is general and not specifically directed against the defendant is an unreasonable application of Supreme Court decisional law.” This does not necessarily mean that a trial judge must permit cross-examination on “even the mildest forms of a witness’s bias relating to a class to which the defendant belongs.” But here, the offer of proof established an “extreme form” of bias in the witness, one of “such intensity [that it] might distort his testimony against an object of his bias on account of it.” It was not “within a trial court’s reasonable discretion to preclude this cross-examination.”

Moreover, the confrontation violation was not harmless. The witness’ testimony was critical to the prosecution’s case, because he was the sole witness to the alleged robbery, and there was no other evidence to corroborate his accusation. Moreover, Brinson had no money on him when he was found by the police a short time after the alleged robbery, which “raise[d] some doubt about the accusation.” In addition, the cross-examination that the trial court did permit did not cure the error because all that the court permitted was a single question about whether the witness had used a racial epithet, and the victim denied it. Finally, overall, the prosecution’s case was “far from overwhelming” and the cross-examination that was prohibited was “of a nature that was likely to affect the result.”

BYE-BYE, BRUTON?

United States v. Williams, No. 05-6036-cr (2d Cir. October 23, 2007) (Newman, Walker, Straub, CJJ).

In this curious but very troubling case, the court seems to have concluded, sub silentio, that Crawford trumps Bruton.

Brothers Bobby and Michael Williams were tried for a drug-related triple homicide. Neither brother testified. At trial, over objection, the court permitted two civilian witnesses to testify that, after the shootings, Bobby made statements to them admitting his involvement in the shootings. Some of those statements implicated Michael. On appeal, Michael argued that the admission of Bobby’s statements violated the Confrontation Clause and Fed.R.Evid. 804(b)(3).

Obviously, Michael’s Confrontation Clause claim raises Bruton issues; indeed, this is the classic Bruton situation - the out-of-court statement of one defendant is used against a co-defendant. But here, the court never even got to Bruton. It held that Bobby’s out of court remarks were not “testimonial” under Crawford, and thus “our Confrontation Clause inquiry is at an end.” In other words, the court denied the Bruton claim without even mentioning Bruton.

This case, if it stands, would limit Bruton to cases where the co-defendant’s out-of-court statement was taken by the police, or is otherwise “testimonial” for some reason. The court might well be right - although only the Supremes will tell us for sure. But one would have hoped that if the court really wanted to take on such a radical and new issue (as of this writing, no other Circuit has so held), it would come out and say so directly, rather than leaving the entire bar to guess. Let’s that hope the Williams brothers file cert petitions.

Another troubling aspect of this case is the court’s treatment of the “declaration against interest” issue. Michael would seem to have a strong claim that those portions of Bobby’s statements that implicated Michael were not sufficiently against Bobby’s interest to render them trustworthy. It was surely against Bobby’s interest to admit his own role in the murders, and, at least arguably, it was against his interest to admit that he acted with another person. But identifying that other person was not against Bobby’s interest at all; at best, it would seem to have been neutral to his interests. But the court did not see it that way. It held that since Bobby was not “attempting to minimize his own culpability, shift blame onto Michael, or curry favor with the authorities” his statements that mentioned Michael were “sufficiently self-inculpatory.”

Finally, this case has a fairly good discussion of the court’s current views on Daubert, in the context of ballistics.

Crawford's Eleven

United States v. Becker, Docket No. 06-1274-cr (2d Cir. September 13, 2007) (Calabresi, Parker, Wesley, CJJ)

At Becker’s stock fraud trial, the government introduced into evidence the plea allocutions of eleven (yes, eleven) of his co-defendants, supposedly for the “limited purpose” of establishing that the conspiracy charged in the indictment existed. The Circuit concluded that this was a Confrontation Clause violation under Crawford and, for the first time, found that such a violation was not harmless.

The court rejected the government’s claim that the district court’s limiting instructions cured the error, finding that the sheer number of allocutions and their repetitive nature suggested that the conspiracy was widespread, “making it plausible for the jury to assume that Becker was a participant simply by association with” the other conspirators, despite the instructions. In addition, the content of the allocutions was “far reaching and detailed” and significantly undermined Becker’s defense that his actions were driven by credulity and inexperience, rather than greed. The court also faulted the limiting instructions themselves, noting that they might have left jurors open to assuming that the allocutions could be considered on the issue of Becker’s intent.

Finally, the court concluded that the other evidence of Becker’s intent and membership in the conspiracy was “far from overwhelming.” Significantly, the court made clear that its finding that evidence as to these issues was legally sufficient did render an error affecting them harmless. This is an important distinction to which the Circuit has not always adhered.

Becker’s case is all the more remarkable in that arose in the context of a 2255 petition, and not a direct appeal, which means that he successfully overcame several procedural hurdles: the law of the case doctrine, since the court had, on his pre-Crawford direct appeal, rejected the Confrontation Clause claim, and a Teague problem. Fortunately for Becker, his case was not yet final (by a mere ten days) when Crawford was decided.

One note: Becker has already served his entire prison sentence and most of his term of supervised release. Let’s hope that the government does the right thing and drops the case entirely.