Checking References

United States v.Deandrade, No. 08-4815-cr (2d Cir. March 12, 201(Jacobs, Hall, CJJ, Murtha, DJ)

At Deandrade’s trial, two cooperating witnesses mentioned that he was incarcerated during his trial. The district court denied his mistrial motions, and on appeal, the circuit affirmed.

Deandrade argued that those references improperly impaired the presumption of innocence under Estelle v. Williams, 425 U.S. 501 (1976). The circuit disagreed, noting that in situations like this, several other courts have held that under Estelle “brief and fleeting references are generally allowed, but extended comment is impermissible.” The circuit agreed, holding that “a brief and fleeting comment on the defendant’s incarceration during trial, without more, does not impair the presumption of innocence to such an extent that a mistrial is required.”

There was accordingly no error here. The remarks were isolated, “apparently unintentional on the part of the prosecution,” incidental to legitimate questioning and the government did not refer to them again.

Deandrade also raised an interesting sentencing issue. He argued that his prior juvenile delinquency adjudication could not serve as a “prior conviction” to enhance his mandatory minimum under 21 U.S.C. §§ 841(b) & 851. The court did not decide the issue,however, since Deandrade’s sentence was higher than the mandatory minimum and it was clear from the record that the prior conviction did not affect the sentence in any way. But in a footnote, the court noted, “without comment” that the Third Circuit has held that a prior delinquency adjudication is not a "conviction" under these statutes.

TRUTH EXTRACTION

United States v. Glover, No. 05-5047-cr (2d Cir. January 4, 2008) (Pooler, Raggi, CJJ, McMahon, DJ)

At this firearms trial, the judge charged the jury, over objection, that “the crucial, hard-core question” to answer was, “Where do you find the truth?” He also instructed: “The only triumph in any case, whether it be civil or criminal, is whether or not the truth [has] triumphed.” One defendant was acquitted; the other was not and appealed.

The circuit affirmed. It agreed that these instructions, in isolation, would be error because they do not ensure that the jury will have a correct understanding of the presumption of innocence or the government’s burden of proof. In addition, the court strongly discouraged their use in the future: “[T]o the extent that a trial court thinks it appropriate in a criminal case to identify for the jury a single ‘crucial, hard-core question,’ that question should be framed by reference not to a general search for truth but to the reasonable doubt standard . . . .”

Here, however, the error was harmless. The court’s review of the entire jury charge found “no reasonable likelihood” that the jury would think it could return a guilty verdict on anything less than proof beyond a reasonable doubt. The charge as a whole referenced the reasonable doubt standard “at least twenty-seven times.” It also correctly instructed that the presumption of innocence lasted “throughout the trial and even into jury deliberations.”

The court was unmoved by the fact that the erroneous language came at the conclusion of the charge. The jury had a full copy of the charge at its disposal during deliberations, and there was a later, supplemental charge that correctly defined the jury’s task.

Comment: One hopes that this case will put an end to off-the-wall instructions on the bedrock due process issues relating to the burden of proof and the presumption of innocence. What is interesting about the decision is that the court missed the most obvious indication that the error was harmless - despite the “search for truth” charge, the jury acquitted one of the defendants.

Et Tu, Brute - NOT!

United States v. Brutus, Docket No. 06-2710-cr (2d Cir. October 2, 2007) (Jacobs, Walker, Calabresi, CJJ)

Waline Brutus testified at her drug importation trial. During the charge, Judge Glasser instructed the jury, in relevant part, that she had a “deep personal interest in the outcome of the case” that “creates a motive to testify falsely.”

Following in the footsteps of its recent decision in United States v. Gaines, 457 F.3d 238 (2d Cir. 2006), the court held that this instruction was error. This case is significant because there had been a tension between Gaines and United States v. Tolkow, 532 F.2d 853 (2d Cir. 1976), which upheld very similar language. Here, the court very neatly cuts through the confusion and overrules Tolkow, creating a “prophylactic rule” that any “instruction that the defendant’s interest in the outcome of the case creates a motive to testify falsely impermissibly undermines the presumption of innocence” and is error. When the defendant testifies, the district court should simply tell the jury to evaluate her credibility in the same way it judges the testimony of any other witness.

Unlike the defendant in Gaines, however, Brutus did not win her case. The government, which bore the burden of establishing harmlessness beyond a reasonable doubt - the standard for a preserved constitutional error - did so. The circuit viewed this as “not a close case” and characterized Brutus’ trial testimony as “manifestly incredible.” In fact, Judge Glasser called it “the most incredible perjury I’ve ever heard in any case I’ve ever tried in this court.”

Too bad. Brutus, who has two small children, received a ten-year sentence, and will be a guest of the American taxpayers for at least eight and one half years before being deported back to Haiti. Perhaps if she had won her appeal something shorter could have been negotiated for her.