The Heavy Burdens

United States v. Burden, No. 03-1727-cr (2d Cir. March 31, 2010) (Hall, Livingston, Gibson, CJJ)

From 1997 to 2001, Kelvin Burden, ran a crack cocaine ring in Norwalk, Connecticut, with the help of several of his brothers, two of whom were named David, and a few of his friends. The gang’s activities grew increasingly violent. Throughout 1998 and 1999 there were fatal encounters with members of a rival gang, the Hill Crew; also, in 1999, Burden gang members shot at two of their own, killing one and leaving the other a paraplegic.

The defendants were convicted of racketeering, drug charges and multiple VCAR counts, and received sentences ranging from eighty-eight months to life.

Their principal arguments on appeal were that the evidence was insufficient to establish that the Burden gang was an “enterprise” and that its activities constituted a “pattern.” The circuit affirmed.

First, the defendants asserted that the evidence showed only that the Burdens and their friends sold drugs, but not that the group had the structure required of an enterprise. While the circuit noted the “limitations of the evidence in this case,” it found that the evidence was sufficient. The Burden organization had “multiple members who joined in the shared purpose of selling drugs and promoting such sales.” They had a meeting place from which they could sell in secret, store guns and plan. And their activities were “orderly because there was a hierarchical structure in place.” Nor did it matter that there were “other styles of organization between the narcotics business and the violent acts.”

As for the pattern requirement, the statute requires “criminal acts that have the same or similar purposes, results, participants, victims or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events.” There must be at least two acts that are related and that amount to or pose a threat of continued criminal activity. “Horizontal” relatedness requires that the predicate acts be related to each other, but this can be indirect - a common relationship of each act to the enterprise is enough. “Vertical” relatedness means that each act is related to the enterprise. Both types of relatedness must be proven, but each is satisfied by “linking each predicate act to the enterprise.” The pattern element was satisfied here, even though the violent acts here were “the type of conduct that the defendants could have committed absent a connection to the enterprise.” The court agreed that the fact that the violent acts were discussed at the same location where the narcotics activity took place was not enough to establish vertical relatedness. But the violence between the Burdens and rival gang members had its genesis in a drug debt to a Burden member, and that was sufficient.

One defendant also raised an interesting Crawford issue, claiming that an informant’s statements on a wire were “testimonial” because the cooperator consented to be wired and knew that what he said could be used against others at a future criminal trial. The defendant relied on United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004), where the circuit wrote: “Crawford at least suggests that the determinative factor in whether a declarant bears testimony is the declarant’s awareness or expectation that his or her statements may later be used at trial.”

The court here noted that this language is dictum and was limited in a later case. Instead, the court held that a declarant’s awareness that his words may be used at a later trial is only “part of the equation,” and “it is the law of this circuit that it is not the sole touchstone.” Looking at the particulars of the statements here, the court found that they were not testimonial. Nothing that the informant said “was spoken for the purpose of accusing. Rather, his comments were made to elicit inculpating statements by others present.” Thus, the “declarant’s purpose in speaking matters,” and a statement “the purpose of which is 'non-accusatory' is not testimonial.”

All five defendants won Regalado remands, however, so that the district court could revisit their crack sentences.

Hire Today, Gone Tomorrow

United States v. Lee, No. 05-1684-cr (2d Cir. December 3, 2008) (Straub, Hall, CJJ, Haight, DJ)

Here, a divided panel found that a Crawford error required a new trial for two defendants convicted in a murder-for-hire conspiracy, although the evidence was legally sufficient.

Background

Defendant Williams was the head of a crack-cocaine ring operating in the Bronx. Defendant Lee was one of his dealers. The target of the conspiracy was Kawaine Ellis, who stabbed Lee in the chest in June of 2001. In November of 2001, Williams rented three cars at Newark Airport. Lee was pulled over while driving one of them, and was carrying a gun, which he told the police he had for “protection.” Around that same time, Williams spoke to another member of his crew, Jason Lawton, and told him to return a gun to Williams because Lee had “just got bit,” meaning that he had been stabbed or shot.

About two months later, Maurice Clarke was arrested on gun charges. He told a detective that he had been hired to kill Ellis; he was given a gun and was driven around by someone else who was looking for Ellis, whom they could not find, and was paid for his time. Clarke later said that he would invoke his Fifth Amendment rights if called to testify, so his statement was admitted into evidence through the detective as a statement against Clarke’s penal interest.

In March of 2002, one month after Clarke’s arrest, Orlando Gordon, one of Lee’s drug associates - he bought crack from and sold marijuana to Lee - was assaulted by “Mel,” a member of Lee’s crew. Gordon and Lee spoke about their respective assailants, Ellis and Mel, and discussed a “body for body” swap, under which Lee would deliver Mel to Gordon and Gordon would deliver Ellis to Lee. Gordon, a confidential informant, recorded a conversation with Lee about this plan and, during the conversation, Lee could be overheard placing a call to someone else asking for a “favor” to be “taken care of” - the shooting of Ellis. Lee and Gordon discussed this plan a bit more, but nothing came of it.

The Crawford Error

The court of appeals agreed that the admission of Clarke’s statement through the detective was a Confrontation Clause error under Crawford. Moreover, the error was preserved - although the trial was pre-Crawford, the defense expressly mentioned Confrontation Clause concerns when arguing against the admission of the statement. The court also concluded that the error was harmless.

Effect of the Error on Williams

The majority had little trouble concluding that the admission of Clarke’s statement “contributed to the verdict” against Williams. The only evidence against Williams, absent the hearsay, was that he rented a car and gave it and a gun to Lee, and that he later retrieved a gun from another member of the crew because Lee had “just been bit.” Only Clarke’s statement tended to suggest that Williams gave the car and gun to Lee to help Lee get back at Ellis. “Without the Clarke testimony there is absolutely no indication that the ... car and gun incidents involved a hired killer.” This was true even though Clarke’s statement did not explicitly mention Williams or Lee. A “reasonable juror” could have drawn precisely this inference, and the prosecutor encouraged the jury to do so. Since Williams was not implicated in Lee’s later discussions with Gordon about having Ellis shot, Clarke’s statement was “critical to Williams’ conviction.”

Effect of Error on Lee

The harmless error question was “closer” as to Lee because his conversation with Gordon made is clear that he was “orchestrating a plot to have Ellis shot.” Nevertheless, the majority vacated Lee’s conviction because there was very little evidence that the plan with Gordon included promising something of value to the shooter, an element of the offense of conviction. When Lee called the shooter during his conversation with Gordon, he spoke of shooting Ellis as “a favor for a favor.” This was not sufficient to establish the pecuniary value element.

While there was some other evidence that might have referred to the pecuniary value element - a mention that Lee was “spending more money” - the probative force of that evidence was weak, given that Lee was purchasing marijuana from Gordon at the time of their interactions. Moreover, the government repeatedly referred to Clarke as a “hired killer” who was “paid” to kill Ellis. Since Clarke’s statement “clearly” established the pecuniary value element and the other “money” reference was ambiguous, the government did not establish beyond a reasonable doubt that Clarke’s statement did not contribute to the verdict against Lee.

The Dissent’s View

Judge Straub disagreed. On his review of the record, Clarke’s statement did not contribute to the verdict against either defendant. He viewed the statement as “relatively unimportant to the” government’s case since, it did not “connect either defendant to a murder for hire conspiracy.” Rather, it “only established how far such a conspiracy, irrespective of its participants might have progressed.”

Sufficiency of the Evidence

On the other hand, the court held that the evidence against the defendants, including the Clarke statement, was sufficient. For this, the court turned to United States v. Hardwick, 523 F.3d 94, 101 (2d Cir. 2008), a highly similar case (blogged below under the title For Your Consideration), which held that sufficiency review should take into consideration improperly admitted evidence - a principal not without controversy. Here, a reasonable trier of fact could have found that Williams rented the car and gave the gun to Lee as part of plan for Lee to avenge his stabbing by Ellis. Clarke’s statement could reasonably be interpreted as relating to that plan, and thus that Williams and Lee were “involved in a conspiracy to pay Clarke to murder Ellis.”

Expert Tease

United States v. Mejia, No. 05-2856-cr (2d Cir. October 6, 2008) (Jacobs, Parker, Hall, CJJ)

Here, the improper admission of “officer expert” testimony resulted in a new trial.

Background

The defendants were convicted of participating in two drive-by shootings in connection with their membership in the MS-13 gang. One defendant was sentenced to sixty-three years’ imprisonment, the other to sixty.

A significant portion of the evidence against them, however, came from a New York State Police investigator who testified about the structure and organization of MS-13, as well as its “methods and activities, modes of communication and slang.” It turned out however, the officer’s sources for much of this information were suspect, including reports from other law enforcement officers, custodial statements from other gang members, internet research, and wiretaps that he listened to.

The Court’s Ruling

The court of appeals reversed, finding that much of the officer’s testimony was improper.

The court began with an interesting survey of the development of the so-called “officer expert,” in the 1980s, and of the court’s generally favorable response to this type of testimony. The court pointed out, however, that such testimony “must be limited to those issues where sociological knowledge is appropriate. An increasingly thinning line separates the legitimate use of an officer expert to translate esoteric terminology or to explicate an organization’s hierarchical structure from the illegitimate and impermissible substitution of expert opinion for factual evidence.” As an officer’s “purported expertise narrows from ‘organized crime’ to ‘this particular gang’ ... to the criminality of the defendant,” it becomes “a little too convenient” that the government “has found an individual who is expert on precisely those facts that the Government must prove to secure a guilty verdict - even more so when that expert happens to be one of the Government’s own investigators.”

Here, the agent strayed from his proper expert function in several ways. First, much of his testimony concerned material “well within the grasp of the average juror,” such as the fact that the task force had seized guns and ammunition from MS-13 members, and that MS-13 members had committed drug crimes and murders. The circuit noted that no expertise was required to understand any of those facts: lay testimony, arrest records, death certificates and “other competent evidence of these highly specific facts” was available and would readily have been understood by the jury. Similarly, the officer’s testimony about gang members’ travel patterns and the gang’s operations more generally, “went far beyond interpreting jargon or coded messages ... or explaining organizational hierarchy.” The court was particularly concerned about the officer’s testimony that MS-13 had committed “between eighteen and twenty-three murders since 2000.”

The court also condemned the officer’s improper use of hearsay. While an expert can rely on certain types of hearsay, he “may not, however, simply transmit that hearsay to the jury.” Here, the officer identified hearsay as the source of much of his information, and “at least some of his testimony involved merely repeating information he had read or heard.” Thus, he was not acting as an expert, “but instead as a case agent.” For similar reasons, the testimony violated Crawford by communicating the testimonial statements of cooperating witnesses and confidential informants directly to the jury in the guise of an expert opinion.

Finally, the court concluded that the error was not harmless. The testimony was relevant to several contested issues, including whether the gang (1) was an enterprise, (2) affected commerce, (3) engaged in narcotics trafficking, and (4) engaged in acts of violence. The court accordingly vacated the convictions and remanded the case to the district court for a new trial.

The Three Racketeers

United States v. Riggi, No. 06-1280-cr (2d Cir. September 4, 2008) (Jacobs, Calabresi, Sack, CJJ)

Defendants Vitabile, Abramo and Schifilliti were all long-time members of the Decavalcante crime family. Vitabile was consignliere for thirty-five years, Abramo had been a captain since the late 1980's and Schifilliti had held that same title since 1991. They were also part of the family’s administration. After a three-week trial, a jury convicted them of racketeering and racketeering conspiracy - comprising ten predicate acts - and five substantive counts. Included in the mix were several murder conspiracies, extortion, loansharking and securities fraud.

At trial, to bolster the testimony of its cooperating witnesses and augment some otherwise underwhelming recordings, the government introduced into evidence the plea allocutions of eight non-testifying co-defendants. On appeal, the circuit agreed that this violated Crawford and that the violation amounted to plain error. It vacated the convictions and remanded for a new trial.

The court spent little time on the first two prongs of plain error analysis: the district court made an error that was, at least in retrospect, plain. But the circuit also concluded that the error affected the defendants’ substantial rights because the plea allocutions “undoubtedly prejudiced the jury and influenced” the verdict.


1. The Impact of the Allocutions

First, the court held that “prejudice arose from the sheer number of plea allocutions admitted to prove the multiple conspiracies in this case.” The “repetitive nature” of the eight allocutions “suggested that the conspiracy was so widespread that it would be plausible for the jury to assume” that these defendants were participants too, “simply by their long and close association” with those who had pled.

Also, many of the conspiracies described by the allocutions “were overlapping such that evidence of one tended to support the existence of another.” Plea allocutions “confirming the existence of one of the linked conspiracies naturally reinforced the evidence of the others.” This created an “echo chamber of implied guilt” and magnified the prejudicial effect of the pleas.

Third, the detailed content of the allocutions “corresponded to elements of the crimes charged,” which bolstered the government’s proof in those areas. In some instances the allocutions “touched directly” on issues that were central to the defense. Other allocutions undermined specific defense arguments, and still others “contained detailed information that invited the jury to make improper assumptions regarding the defendants’ roles in the crimes.”

2. Error Not Cured by Limiting Instructions

Here, the district court gave the standard pre-Crawford limiting instruction that told the jury that it could consider the allocutions as proof that the particular conspiracy under consideration existed, but that it would have to look to other evidence to determine whether any defendant was a member. Here, however, the appellate court found conclusive evidence that the jury could not follow those instructions - the jury convicted the defendants on every substantive count supported by a plea allocution, but where no allocution was offered in support of a substantive account, the jury acquitted. Moreover, this same “general pattern” held for the RICO predicates. “The correlation between the verdicts and the plea allocutions strongly suggests that the jury was improperly influenced by the inadmissible evidence.”

3. The Government’s Evidence Was Otherwise Weak

Here, the court found that the government’s case was not overwhelming, and thus that it was likely that the allocutions substantially influenced the jury. The testimony of the cooperating witnesses “contained inconsistencies and contradictions” and the government, anticipating these, promised in its opening that their accounts would be corroborated by “other evidence,” including the eight allocutions.

The government also seemed to “betray[] anxiety” about its physical evidence, admitting in its opening that the taped conversations the jury would hear did not really implicate these defendants.

4. Use and Misuse of the Allocutions Pervaded the Government’s Summation

Perhaps most importantly, the court noted that the government repeatedly referred to the allocutions in its summation and rebuttal summations, and sometimes held them out as proof of something more than the mere existence of the conspiracies that they described.

For example, the government on numerous occasions told the jury that allocutions bolstered the cooperating witnesses’ testimony as to specific crimes.

Also, after the defendants argued that the allocutions proved only that the defendants who pled guilty were murders, the government rebutted by telling the jury that those allocutions showed that the cooperators were not “the only violent guys in the Decavalcante family.” In a similar vein, the government improperly used the allocutions to rebut defense arguments that the defendants’ conversations about murdering certain victims were not serious. The government rebutted that the defendants must have meant what they said because others involved in those same conversations pled guilty.

Finally, the government’s “last words” to the jury were “(again) to consider the plea allocutions as evidence of the crimes charged against the defendants, and not merely of evidence of the existence of the conspiracies.”

5. Sufficiency of the Evidence

Two defendants also argued that the evidence against them was insufficient as to certain discreet offenses. The court, following its usual - and probably wrong - rule that sufficiency review includes improperly admitted evidence, had little trouble finding legally sufficient evidence. That said, however, the court expressed “no opinion” as to whether there would be sufficient evidence without the improperly admitted allocutions.

For Your Consideration

United States v. Hardwick, No. 04-1369-cr (2d Cir. April 11, 2008) (Winter, Walker, Sotomayor, CJJ)

Glen Hardwick was convicted after a jury trial of conspiracy to commit and aiding/abetting murder-for-hire in violation of 18 U.S.C. § 1958. Virtually all of the evidence of the “consideration” element of the offense came from the plea allocution of Hardwick’s brother, which was admitted into evidence over objection, although not a Confrontation Clause objection. The appellate court held that this Sixth Amendment violation was plain error, but that there was legally sufficient evidence on this element. It accordingly did not reverse the conviction; it vacated and remanded for a new trial.

Facts: Most of the action here involved Glenn Hardwick’s brother, Stacey, who had an ongoing drug and gun trafficking relationship with an undercover police officer. At one point, Stacey contacted the UC and asked him to kill someone who had pulled a gun on Glen. The UC of, course, agreed, and there followed a lot of back-and-forth about the terms of the deal. The UC, who had said that he used a gun only once when he did a hit, then would discard it, asked Stacey to supply the gun for this murder. He also asked for a second gun as “payment.” Stacey balked at this; he only wanted to give the UC one gun, although Stacey offered to sell him a second.

Eventually, the UC met with Stacey and Glen, but the brothers had brought only one gun - the one the UC was supposed to use for the job. Shortly after handing the gun over to the UC, the brothers were arrested.

Stacey pled guilty, and in his allocution admitted that there was consideration for the contemplated murder: “The payment for the intended murder was a .32 caliber pistol.” The government admitted this allocution into evidence at trial - which took place before Crawford was decided - subject to a limiting instruction that told the jury that it was free use it as evidence of Stacey’s activities, but could not infer from it that Glen was a member of the conspiracy. In its summation, the government relied on the allocution as proof of the consideration element, and during deliberations the jury had it read back.

The Confrontation Violation: On appeal, the government conceded that the admission of the allocution was error. The circuit agreed and, after a confusing and inconclusive discussion (much of which is relegated to end notes, just to make it as painful as possible) of whether ordinary plain error review or “modified” plain error review should apply, held that it was plain error under either standard.

The error was “plain” because at the time of “appellate consideration” there was an obvious Crawford violation. In addition, the admission of the allocution affected Glen’s substantial rights “because it almost surely influenced the jury’s verdict.” The evidence on the consideration element was very close, and turned entirely on Stacey’s state of mind. But the district court’s limiting instruction expressly permitted the jury to use it for that purpose, and the circuit concluded that the jury must have, in light of the government’s use of it in summation, and the readback.

The Sufficiency of the Evidence: The court went on to hold that the evidence was legally sufficient on the consideration element, however. Giving a hit man a gun as payment for his work satisfies § 1958, and Stacey’s allocution clearly indicated that this was his plan. In another confusing and inconclusive discussion of an important issue, again much of which is - maddeningly - relegated to end notes, the court went on to hold that appellate sufficiency review includes the consideration of “improperly admitted evidence.” As for those Second Circuit cases that have excluded improperly admitted evidence from sufficiency review, they did so “sub silencio,” and hence are not “binding precedent.”

Comment: This should have been the end of the story, but it is not. What follows will blow your mind. Judge Winter, writing alone - “my colleagues do not join me in the discussion” - takes it upon himself to “inform the parties of [his] views on the sufficiency issue absent the plea allocution.” His elaborate and completely unconvincing justification for this extraordinary step is - you guessed it - consigned to an end note that it itself spans two pages of text. In the opinion itself, he covers nearly four pages explaining to the government how it should retry the case, mapping out “at least one scenario [that] might reasonably be found by a jury to be sufficient to meet Section 1958's consideration requirement.”

No wonder the rest of the panel passed on this. This was a completely inappropriate thing to do. The case already has at least two prosecutors assigned to it. It does not need a third. It also seems extremely short-sighted, given the problems it is likely to cause down the road. Glen might well be retried and reconvicted, and will surely make a sufficiency argument on his second appeal. What on earth will that panel do with this part of the opinion when that happens?

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.