Unattached

United States v. Worjloh, No. 06-3129-cr (2d Cir. October 8, 2008) (Parker, Raggi, Hall, CJJ) (per curiam)

Although not yet charged with a federal offense, Worjloh was questioned by federal agents while he had state drug charges pending. The state charges were ultimately dismissed, and a federal indictment was returned. On appeal, he argued that his statements to the federal agents were obtained in violation of his Sixth Amendment right to counsel.

The circuit disagreed. Because Worjloh was not subject to federal charges when the feds questioned him, “no Sixth Amendment right to counsel had attached as to the then uncharged federal conduct.” The Sixth Amendment rights related to the state offenses did not “serve to restrict the ongoing investigation into uncharged federal crimes where, as here, that investigation is not tied to the state’s conduct.” It might be different if the federal prosecutors had sought to admit evidence obtained by state authorities in violation of the Sixth Amendment, but here, “there is no suggestion that Worjloh’s case was simply handed off from one sovereign to another.”

Unlucky Strike

United States v. Matthews, No. 07-0699-cr (Wesley, Hall, Gibson, CJJ) (per curiam)

Matthews challenged his life sentence under the federal “three-strikes” statute, 18 U.S.C. § 3559(c), on several grounds. The circuit affirmed.

One “three-strikes” provision requires the defendant to establish that his prior convictions were not “serious violent felonies,” as defined by the statute. The court joined eight other circuits in upholding the constitutionality of this allocation. “Where no fundamental right is at issue, there is no doubt that the legislature may assign to defendants burdens of proof with regard to affirmative defenses.”

Matthews also argued that the burden itself - of producing clear and convincing evidence - violates due process. The court noted that four circuits had found that this standard did not violate due process, but did not resolve the issue here. Matthews could not show, even by a preponderance of the evidence, that his past convictions were not serious violent felonies.

Materia Girls

United States v. Ojeikere, No. 07-1970-cr (2d Cir. October 7, 2008) (Newman, Winter, Calabresi, CJJ)

Defendant Ojeikere was convicted of participating in an “advance fee” scheme the tricked its victims into sending money to the defendant and his confederates to release “large sums of money supposedly held in Nigeria.”

On appeal, he challenged the restitution order, which was nearly $700,000. He claimed that his “victims,” although they suffered losses, had hands too dirty to claim restitution, since they all participated in what they believed was a fraudulent scheme to obtain money from Nigeria. The court agreed with Ojeikere in principle only - restitution is not appropriate where the victims are, in effect, co-conspirators.

But restitution “may not be denied simply because the victim had greedy or dishonest motives.” It should only be denied where the victims’ intentions were in pari materia with those of the defendant. Because Ojeikere did not demonstrate that his victims lost ill-gotten gains “or that they were in pari materia with” his scheme, restitution was appropriate.

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.

Summary Summary

A few more summary orders of interest from earlier this month:

In United States v. Nunez-Gonzalez, No. 05-4064-cr (2d Cir. October 10, 2008), the court remanded for resentencing where a "review of the record leaves us uncertain as to whether the District Court fully considered the sizeable disparity between the sentences of" the defendant and his co-defendant.

In United States v. Mercardo, No. 07-3327-cr (2d Cir. October 7, 2008), the defendant in a drug case argued that he was prejudiced by testimony of an agent who explained that he investigated "violent crimes associated with narcotics use." The court "caution[ed]" the government about "unnecessarily eliciting testimony about agents' responsibilities not relevant to the charged crime," but found the error to be harmless. In addition, the court granted a Regalado remand, even though the defendant was sentenced as a career offender, since it was unclear whether the district court fully understood its departure authority.

Trial by Error

United States v. Al-Moyad, No. 05-4186-cr (2d Cir. October 2, 2008) (McLaughlin, Parker, Wesley, CJJ)

Defendants Al-Moayad and Zayed were convicted in front of Judge Johnson of conspiring to provide material support to Hamas and Al-Qaeda, designated terrorist organizations. Al-Moayad was also convicted of related substantive offenses. He was sentenced to seventy-five years in prison, while Zayed was sentenced to forty-five years.

The defendants asserted that they were entrapped. Their trial, however, was marred by a string of spectacularly unfair evidentiary rulings that gravely undermined their defense. The court of appeal remanded the case for a new trial before a different judge.

Background

This case arose through the efforts of a confidential informant named Al-Anssi. In November of 2001, Al-Anssi approached the government and offered to furnish - for money - information regarding terrorism. Among ththe possible targets he mentioned was Al-Moayad, whom Al-Anssi described as the imam of a mosque, but who also ran a bakery and a school. Al-Anssi claimed that Al-Moayad supported terrorist groups. Defendant Zayed was Al-Moyad’s assistant. Although Al-Anssi demanded millions of dollars for his work, in all he was paid only about $100,000, and, in 2004, he set himself on fire outside the White House to publicize his claim that he was entitled to more money.

The FBI sent Al-Anssi to Yemen several times in 2002; the plan was to have Al-Anssi introduce the defendants to another informant, “Saeed,” who was posing as a wealthy American who wanted to donate money to support terrorist activities. Also, in September of 2002, Al-Anssi attended and videotaped a wedding hosted by Al-Moayad. At the wedding, a representative of Hamas made a speech proclaiming that, thanks to Hamas, there would be a terrorist attack in Tel Aviv that same day. And, indeed, there was - a suicide bombing on a bus.

In 2003, Al-Anssi set up a sting operation in Germany. He introduced the two defendants to Saeed, and they discussed Saeed’s anticipated donation to their causes. The defendants were arrested after a final meeting in Germany.

The Trial Errors

1. Improper Testimony

At trial, the government called Gideon Black as its final witness. He was on the Tel Aviv bus that Hamas bombed, as mentioned in the wedding speech. The district court overruled the defendant’s motions to preclude Black’s testimony and to instead allow them to stipulate that they knew that Hamas was engaged in terrorist activities. The court also permitted the government to introduce, through Black, graphic photographs and a DVD depicting the event. Moreover, the court permitted Black to testify about the horrible aftermath of bombing, not just the bombing itself, also over objection.

On appeal, the court held that the district court’s Rule 403 balancing with respect to this evidence was so skewed as to be “arbitrary.” Worse still, the district court refused to give a meaningful limiting instruction. In fact, the evidence was largely irrelevant. The defendants were not charged with any offense in connection with the Tel Aviv bus bombing. Moreover, the evidence was not necessary to show that the defendants knew that Hamas was involved in violence, because the defendants never denied knowing this. Finally, even if it were proper to admit evidence that the bombing occurred, evidence of the bombing’s aftermath was even less probative at trial and far more prejudicial.

Judge Johnson permitted other improper testimony, as well. During the government’s rebuttal case, the judge had admitted into evidence a document that purported to be an application form for a terrorist training camp. The form had been partially filled out by someone named Abu Jihad, and listed defendant Al-Moayad as his sponsor. The judge then permitted the government to call someone named Goba - who had attended the training camp - as a witness. Although the government proffered that Goba would only testify only about the form itself, in it elicited testimony that went far beyond the scope of the proffer.

Goba testified about his experiences in the training camp, including visits to the camp from Osama Bin Laden, and described speeches that Bin Laden made. In addition, during Goba’s tesitmony the government introduced an Al Jazeera news video documenting that visit.

The court of appeals again found error. First, the court noted that Judge Johnson failed to undertake a conscientious Rule 403 balancing at all, perhaps because of the government’s misleading proffer about what Goba would say. But it was clearly error to admit Goba’s testimony, particularly the parts relating to Bin Laden. This was “highly inflammatory and irrelevant and should not have been permitted.” There was, after all, no evidentiary connection between Goba the defendants.

Having held that the testimony of both Black and Goba was error, the appellate court went on to hold that error was not harmless as to the issue of the defendants’ predisposition, which went to the heart of their entrapment defense. Here, while there was some evidence of predisposition, it was not overwhelming, and much of the government’s proof on that issue was inadmissible for other reasons. Moreover, the government’s conduct with respect to Black’s and Goba’s testimony magnified the prejudicial effect. For each witness, the government repeatedly elicited testimony that was well beyond the scope of its proffer.

2. Al-Anssi’s Notes

While in Yemen, Al-Anssi took notes of his meetings with Al-Moyad and Zayed. During its examination of Al-Anssi, the government introduced those notes as substantive evidence, without any limitation. This, too, was error.

First, the notes were not properly admitted as prior consistent statements, because they were made after Al-Anssi’s motive to fabricate - his expectation that he would be paid large amounts of money by the FBI - had already arisen. Nor was the evidence admissible to rehabilitate Al-Anssi’s credibility.

Finally, the notes were inadmissible to rebut any supposed false impression created during the defendants’ examinations of Al-Anssi. It is true that redirect examination can be used for this purpose, but “otherwise inadmissible evidence can be used to rebut a false impression only if the evidence is carefully limited.” Generally, in such situations, the district court must admit the evidence for a clearly defined, limited purpose, and not for its truth. Here, by contrast, Judge Johnson admitted the notes in their entirety, for their truth, and without any limitation.

The erroneous admission of Al-Anssi’s notes was not harmless, given its effect on the defendants’ entrapment defense. Several assertions in the improperly admitted notes that were critical to the government’s predisposition case were not duplicated anywhere else. The notes were also seriously prejudicial for other reasons. They were the only evidence that Al-Moayad had a relationship with Bin Laden after the 1980's, a critical point at trial, and also suggested Al-Moayad had given material support to Hamas.

3. Improper Admission Other Evidence

The court held that the admission of other evidence, without limitation, was error.

First, the form showing that Al-Moayad had sponsored an applicant to an Al-Qaeda training camp, discussed above, was inadmissible hearsay. The court of appeals rejected the government’s argument that the form was a co-conspirator’s declaration, since there was no evidence that Al-Moayad was in a conspiracy with the person who filled out the form.

Next, it was also error to admit the wedding speech, at least without limitation. The speech was not a co-conspirator statement, since there was no evidence that Al-Moayed was in a conspiracy with the speaker.

Third, the government admitted a will found in Croatia in which the testator indicated that he was willing to die as a martyr. This, the circuit held, was hearsay, but the government used it for its truth.

These three errors, together, contributed substantially to the unfairness of the trial.

4. Cumulative Impact

Finally, the court also agreed with the defendants that the collective impact of all of the district court’s errors rendered the trial fundamentally unfair.

Comment

This case has several noteworthy features. Most importantly, it clearly illustrates the importance of preserving evidentiary errors in the district court. Every error the court reversed on was objected to by the defense attorneys, and with great specificity. That was critical here, since it is highly unlikely that the court would have reversed here on plain error grounds.


Another noteworthy feature of this case is the unusually high degree of government misconduct, both at trial and on appeal. At trial, the government repeatedly took advantage of the fact that the judge was asleep at the wheel by introducing evidence that it must have have known was improper, and by repeatedly going beyond its own proffers as to the supposedly limited purpose of the evidence. On appeal, the misconduct took a different form. As least as they were described by the circuit itself, the government made numerous arguments on appeal that seem to have been wholly without basis in law or fact.

This case also introduces a new feature: the “concurrence by footnote.” Throughout the opinion, there are footnotes revealing that Judge Wesley took a position that differed from the views of the other two judges. But he did not write separately on those points, and did not quibble with the ultimate outcome.

Finally, it is noteworthy that the circuit sent this case back to a different judge with no analysis and with none of the usual qualifications that are intended to spare the district judge’s feelings.

Summary Summary

Submitted for your approval - another set of notable summary orders.

In United States v. Davidson, No. 06-4729-cr (2d Cir. October 3, 2008), the court ducked an interesting issue. Davidson was convicted of a drug offense and a related § 924(c) offense and the district judge fined him $300 on each count. However, 18 U.S.C. § 924(c) authorizes only imprisonment, the section oes not mention a fine. The circuit noted that the 924(c) fine was thus “arguably invalid.” But “rather than explore and adjudicate the issue,” it simply struck the fine on that count.

In United States v. Lutz, No. 07-5188-cr (2d Cir. October 3, 2008), the court held that the defendant was not entitled to a Regalado remand where the district judge clearly indicated that “Kimbrough” would not “make any difference to me at this point ... I don’t think it would have an impact at all.”

United States v. Malenge, No. 07-2823-cr (2d Cir. September 29, 2008), deals with a host of important issues relating to the criminal prosecution of aliens seeking asylum in the United States. Malenge fled political violence in the Democratic Republic of the Congo. Hoping to join her husband, also a refugee, in Connecticut. She boarded an Amtrak train in Montreal and was arrested by immigration authorities when she tried to enter the United States with false documents. Without waiting for Malenge’s asylum claim to proceed, the Northern District USAO charged her with various false-document offenses. She unsuccessfully moved to dismiss the indictment in the district court.

On appeal, Malenge argued that her prosecution violated the United Nations Convention Relating to the Status of Refugees, which the United States is bound to comply with through a related U.N. Protocol. The court disagreed because that Protocol does not provide any judicially enforceable rights.

Worried that the prosecution would affect her right to seek asylum, Malenge also raised a due process claim. But the court found no evidence that the prosecution violated her procedural rights in the asylum proceeding, and noted that there is no legal basis for the appellate court to prevent her prosecution in order to protect her asylum claim.

Finally, she asked the court to order the USAO to await an asylum determination before proceeding against her, or any other refugee who enters the United States using false documents. The court held that it could not grant the request but found that it had “significant merit." Deferring prosecution would, “assuming [Malenge] is correct that her burden for seeking asylum has increased, prevent a felony conviction from unnecessarily prejudicing [her] claim for asylum [and] allow the Department of Justice to exercise its prosecutorial discretion after a full evaluation of an asylum seeker’s credibility.”

The court expressed dissatisfaction with the NDNY’s “blanket policy of immediately prosecuting asylum seekers for their use of false documents,” calling it “troubling, to say the least.” Malenge could have entered the country legally with a credible asylum claim, thus her immediate prosecution “penalizes her for her ignorance in contradiction of our government’s police of providing safe haven to refugees,” and “appears to place” the NDNY USAO “at odds with the Executive Branch as a whole, which has committed [by treaty] ... to avoid such penalties.”

The court concluded by indicating its “agree[ment]” with Malenge that her prosecution “is fundamentally inconsistent with the policies and obligations of the federal government with regard to the treatment of refugees” and with the district court’s “observation that Malenge’s use of false documents should not create a basis for denying her asylum application.”

Although the court was not reviewing the asylum claim itself, it noted that it would likely find an abuse of discretion if that claim were denied based on Malenge’s use of false documents as a means of fleeing persecution.

Good Faith Efforts

United States v. Falso, No. 06-2721-cr (2d Cir. September 24, 2008) (Jacobs, Sotomayor, Livingston, CJJ)

This opinion, a three-way split, adds another confusing piece to the circuit’s oeuvre in reviewing search warrants in child pornography cases. Judges Sotomayor and Jacobs held that the warrant lacked probable cause; Judge Livingston held that it did not. Judges Sotomayor and Livingston held that the agents relied on the warrant in good faith; Judge Jacobs held that the good faith exception should not apply. In the end, Falso’s conviction and thirty-year sentence were affirmed.

Background

All of the evidence against Falso was recovered from a search of his home and a consensual interview that took place there. This led to a 242-count indictment that covered travel with the intent to engage in sexual contact with minors, production of child pornography, receiving child pornography via the internet, and transporting and possessing child pornography - 242 counts in all.

Probable Cause

The affidavit in support of the search warrant was unusually thin. Sworn out by an FBI agent, it contained mostly generalized information about the use of the internet to view and collect child pornography, and the characteristics of the collectors.

With respect to Falso, the affidavit explained that the FBI had learned of a website, www.cpfreedom.com, which contained approximately eleven images of child pornography. The site also advertised additional such materials at an internet address that was hidden until a visitor purchased a membership. With respect to Falso, all the affidavit alleged was that his email address was one of several listed on the site; this suggested that “it appeared” that Falso “either gained access to or attempted to gain access to” it.

The affidavit also revealed that eighteen years earlier, Falso had been arrested in New York for sexually abusing a seven-year-old girl. He pled guilty to a misdemeanor and was sentenced to probation.

The circuit majority concluded, unlike the district court, that this information did not establish probable cause. First, the affidavit did not allege that Falso was a member of the website. That fact, while not dispositive, is an “important consideration” in these cases because it “supports the ultimate inference ... that illegal activity is afoot.” Here, the only allegation was that Falso “appeared to” have accessed or tried to access the website, but there was no specific allegation that he accessed, downloaded or viewed child pornography. And while the site contained a few such images, there was no information about where or how the images could be accessed or whether they were downloadable.

Accordingly, “inconclusive statements” about whether Falso even accessed the site, coupled with the absence of details about the site itself “falls short of probable cause.”

Nor did any of the other allegations in the affidavit furnish it. Specifically, information about Falso’s eighteen-year-old conviction was not enough. The affidavit did not allege that all or most people who are attracted to minors collect child pornography. In addition, the age of the conviction rendered it stale, and the affidavit had no information to bridge the temporal gap. Finally, the past offense did not relate to child pornography. “That the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough.”

Accordingly, the court reversed the district court’s finding of probable cause.

Judge Livingston, in her dissent, noted that Falso’s email address appeared on the subject website, that it could not have appeared there simply by his visiting the site, and that the site used email to correspond with its members. To her, this was “probative evidence” that he not only visited the site, but that he either signed up to attempted to sign up for a membership. She also disagreed with the majority’s treatment of Falso’s prior conviction, both as to its probative meaning and its age.

Good Faith

The majority - a different one - also held that the good faith exception saved the day.

Falso first claimed that the affidavit misleadingly suggested something more than that his email appeared on the website. The court disagreed, because it was true that the investigation had revealed more than just this. It revealed not only that Falso’s address was on the website but that the site communicated with its members by email. Nor did the affidavit misleadingly suggest that Falso was a subscriber to the subject site. According to the majority, in context, it was clear that the affidavit’s use of the term “subscriber” referred to his Yahoo account, through which he maintained an email address.

The majority also held that the affidavit was not “so lacking in indicia of probable cause as to render reliance upon it unreasonable.” Whether the affidavit established probable cause is an issue “upon which reasonable minds [could] differ.” Thus, the error was “committed by the district court in issuing the warrant, not by the officers who executed it.”

Chief Judge Jacobs, in dissent, characterized the affidavit as “recklessly misleading (at best).” He focused first on the affidavit’s failure to allege a “substantial nexus” between Falso and the website. In his view, the agent tried to “create the impression that more was known than was known in fact” to fill this gap, by using the term “subscriber” in the affidavit to misleadingly make Falso look like a “subscriber” to the target website, and not just to Yahoo. In Judge Jacobs’ view this was an “artifice that carefully confuses a very important question of fact” and was not merely an instance of poor drafting. Since the agent who drafted the misleading affidavit was also the executing officer, the good faith exception should not apply.

Support Hose

United States v. Kerley, No. 08-1818-cr (2d Cir. September 25, 2008) (Jacobs, Pooler, CJJ, Restani, JCIT)

Clifford Kerley was convicted, after a jury trial, of two counts of willfully evading a child support obligation - one for each of his twin daughters - in violation of 18 U.S.C. § 228(a)(3). On appeal, he successfully argued that the indictment against him was multiplicitous, because it charged him in two counts, even though he had been subject to a single support order. He also prevailed on his argument that the “vulnerable victim” enhancement should not apply.

1. Multiplicity

An indictment is multiplicitous when it charges a single offense as an offense multiple times, in separate counts, when in law and fact, only one crime has been committed. Kerley’s argument that he only committed a single violation of § 228(a)(3) turned on whether the “unit of prosecution” for that offense is the support order or the child.

The circuit concluded that the statute was ambiguous. As worded, the unit of prosecution could be either. It therefore invoked the rule of lenity to interpret the statute in Kerley’s favor. Since he was subject to a single support order, albeit one that covered two children, the court dismissed the second count.

2. Vulnerable Victim

The court also agreed that vulnerable victim enhancement did not apply on the facts of Kerleys’ case. The government's primary claim was that their economic circumstances made them vulnerable. The court disagreed. Their poverty did not render them less capable of avoiding Kerleys’ nonpayment; in fact, state and local authorities were actively pursuing Kerley on their behalf.

More generally, Kerley did not select these victims because of their vulnerability. He chose to refuse to support them not because of “who they were” but simply because he did not care about them.

Mea Exculpa

United States v. Spadoni, No. 06-4970-cr (2d Cir. September 25, 2008) (Pooler, Hall, CJJ, Gleeson, DJ)

Here, the defendant successfully argued that the government’s suppression of exculpatory and impeachment material warranted a new trial.

Background

Spadoni was the general counsel for an investment firm, Triumph, that did business with the State of Connecticut. He was a friend of Paul Silvester, who was, for a time, Connecticut State Treasurer. One of Silvester’s duties was to make investment decisions for state pension funds.

In 1998, Silvester asked Spadoni for a campaign donation. By law it could not go to his own campaign, so instead Spadoni donated $100,000 to the state Republican Party. Silvester lost the election, but before he left office decided to invest $150 million in state pension funds with Triumph.

In connection with this investment, Silvester asked Spadoni to pay a one percent finders fee to two of his associates, even though they had not acted as finders. As their discussions on this arrangement progressed, Silvester decided to increase the investment from $150 million to $200 million, to increase the amount of the fee.

Silvester executed the investment contract with Triumph on November 12, 1998. At some point, Silvester’s associates entered into “consulting contracts” with Triumph that would pay each of them $1,000,000 over three years. These were sham contracts that required neither duties nor results.

In connection with these “consulting contracts,” Spadoni was convicted of bribery and mail fraud, as well as racketeering and racketeering conspiracy.

After trial, Spadoni’s attorney obtained from Silvester a set of notes that Silvester had handwritten for his own attorneys, to assist them in negotiating a plea. The notes had also been typewritten verbatim by the attorney’s office. Silvester’s attorney met with the government in an attorney proffer and gave the government the substance of Silvester’s notes. In addition, Silvester gave the same information to the government when he began cooperating. Silvester's notes detailed additional public corruption by Silvester, but also contained an account of his interaction with Spadoni over the “consulting contracts” that was at odds with his own trial testimony.

In response to Spadoni’s post-trial Brady motion, the government, for the first time, produced notes that an FBI agent had taken at the time of the attorney proffer.


The Appeal

On appeal, the circuit ordered a new trial on all counts relating to the “consulting contracts” based on the government’s Brady/Giglio violation. While the government never had Silvester’s own notes, it had the agent’s proffer notes, and did not turn them over until after trial. The circuit, unlike the district court, found those notes to be “materially inconsistent” with Silvester’s trial testimony.

Those notes supported an alternative version of the Silvester-Spadoni conversation about the consulting contracts that was “entirely at odds” with the government’s theory of the case. Indeed those notes indicated that, contrary Silvester’s trial testimony, when he and Spadoni first discussed the finder’s fee proposal, Spadoni had declined to make payments that would amount to a bribe. The notes thus would have been quite useful to Spadoni, who could have used them both to impeach Silvester and to support Spadoni’s own version of their conversation.

The notes were thus “directly relevant” to the intent element of the consulting contract bribery charges. And, apart from Silvester’s testimony, the evidence regarding Spadoni’s intent was “far from overwhelming.” The court concluded that “there is a reasonable probability that if the government had not inexplicably withheld ... the proffer notes, the jury would have harbored a reasonable doubt about Spadoni’s guilt.”

Benched

United States v. Carmenate, No. 07-2421 (2d Cir. September 24, 2008) (Cabranes, Pooler, Katzmann, CJJ) (per curiam)

Carmenate was charged with bank fraud. His counsel, fearing the consequences of having the jury hear from a witness that he believed was biased, asked for a bench trial. The government agreed, and, at the court’s request, counsel submitted a written jury waiver that bore counsel’s signature, but not the defendant’s. The judge allocuted the defendant extensively, then accepted the waiver. He convicted Carmenate and sentenced him to forty-one months’ imprisonment.

On appeal, the circuit held that the jury waiver was adequate, even if the procedure was less than perfect. Carmenate was present when his counsel asked for a bench trial and when the court asked for a written waiver. He was also present when the judge reviewed the written request and was sufficiently allocuted. While it is true that the judge did not “explain the scope and contours of the right to trial by jury and the consequences of a waiver,” those warnings are not mandatory and not dispositive of a defendant’s understanding. As it happens, Carmenate had recently been convicted by a federal jury in another district on similar charges.

Moreover, there was no evidence that Carmenate was “incapable of clearly and independently expressing his wishes,” which might have led the court to conclude that his attorney did not accurately convey the decision to give up a jury trial. Here, there was every reason to take Carmenate’s colloquy with the judge at face value.

Finally, while the appellate court agreed that Rule 23(a) appears to require the defendant to sign the waiver, the absence of such a signature “will not constitute reversible error” where, as here, the record otherwise shows that the waiver was knowing, voluntary and intelligent.

Jailhouse Rock

United States v. Cote, No. 07-1852 (2d. Cir. September 24, 2008) (Pooler, Sotomayor, CJJ, Restani, JCIT)

Paul Cote was a prison guard at the Westchester County jail. On October 10, 2000, during an altercation, Cote repeatedly punched and stomped on an inmate’s head while the inmate lay on the floor. The inmate never regained consciousness and died about fourteen months later, in December of 2001.

Background

Cote was originally tried in state court, before the inmate died; he was acquitted of first-degree assault, and convicted of a lesser offense, second-degree assault. Hewas sentenced to three months’ imprisonment.

Subsequently, Cote’s counsel learned of a federal civil rights investigation into the incident. The feds moved quite slowly and, nearly five years after the event, notified counsel that an indictment was forthcoming. Counsel wanted time to persuade the government not to pursue the case; on counsel’s advice, Cote executed an agreement tolling the statute of limitations for ninety days. The government, on its part, agreed not to seek a “death resulted” indictment, which would have carried a maximum period of imprisonment of life, or even the death penalty. As the negotiations wore on, they signed a second tolling agreement for another two months. Ultimately, however, counsel failed to dissuade the government. Cote was charged with with violating the inmate’s civil rights under color of law, in violation of 18 U.S.C. § 242.

The Trial

At trial, the government called several eyewitnesses: another prison guard and three inmates. There was also medical evidence describing the extensive trauma that the inmate suffered to his face and head. He received multiple blows, at least some of which required the application of significant force.

The defense called two competing medical experts, who opined that all of the inmate's injuries had been caused by a different guard, who had pushed the inmate onto the concrete floor before Cote arrived.

Post-Verdict Rulings

The jury convicted Cote, but the district court granted his post-verdict Rule 29 and Rule 33 motions.

For the Rule 29 motion, the bulk of the district court’s ruling rested on its view that the testimony implicating Cote was incredible. The court felt that the inmate witnesses had exaggerated their accounts out of vindictiveness, and that the testimony of the other guard was suspect, perhaps as an effort to deflect suspicion from himself. Finally, the court held that there was insufficient evidence that Cote acted with the requisite intent. It noted that the state court “got it right” by finding that Cote acted recklessly, not intentionally.

Alternatively, the district court granted a new trial under Rule 33, for the same reasons. It also sua sponte concluded that the jury had not been properly charged on intent, and that the tolling agreement was involuntary.

The Appeal

On this, the government’s appeal, the circuit reversed. As to the Rule 29 motion, the court agreed with the government that the evidence was sufficient. None of the inconsistencies in the witnesses’ accounts rendered the testimony incredible as a matter of law. Indeed, “the jury was entitled to reject the extreme of the testimony and conclude that the truth law somewhere in between.”

Moreover, under Rule 29, the court must “give full play to the right of the jury to determine credibility, and must draw all possible inferences in favor of the government.” Thus, the court was “not entitled to reject the bulk of the government’s evidence as not credible for purposes of granting” the Rule 29 motion.

The circuit also found that the district court erred in finding insufficient evidence of specific intent. Here, the nature of the force itself, Cote’s efforts to falsify an incident report and induce others to do so, and the words Cote used as he beat the inmate - a warning not to disrespect corrections officers - all entitled the jury to find that Cote acted with the requisite intent.

The circuit likewise reversed the new trial grant under Rule 33, finding that the court abused its discretion. Here, the discrepancies in the testimony were fairly minor, and did not warrant a new trial. Nor was the district court correct that the jury was improperly instructed on intent, or that the tolling agreement was coerced.

Conditional Love

United States v. MacMillen, No. 07-3377-cr (2d Cir. September 23, 2008) (Hall, Livinston, CJJ, McMahon, DJ)

MacMillen pled guilty to possessing child pornography, and the court sentenced him to seventy-eight months’ imprisonment and supervised release for life. On appeal, he complained about two of the conditions of his supervised release: a prohibition on his being anywhere “where children are likely to congregate,” and his probation officer’s ability to address “third-party risk issues” with MacMillen’s employers.

The circuit found no abuse of discretion. The court found the first condition was not overbroad, because it was expressly limited only to places where children are likely to congregate; there is simply nothing in the condition that indicates that MacMillen is forbidden from entering areas where children are unlikely to be. Nor is the condition improperly vague; it gives adequate notice of what conduct is prohibited.

MacMillen next complained that the third-party risk condition delegated judicial authority to the probation officer, but the court disagreed. As written, the condition expressly identifies the particular concern - access to computers in the workplace. Thus, this is the only situation where the employer should be informed of MacMillen’s child pornography conviction.

Commitment Issues

United States v. Magassouba, No. 06-2628-cr (2d Cir. September 19, 2008) (Parker, Raggi, Wesley, CJJ)

Defendant Magassouba has been in custody since at least August of 2003, when he was ordered detained on heroin trafficking charge that carried a ten-year mandatory minimum sentence. Between approximately January of 2004 and May of 2005 he was subject to various competency evaluations, all of which concluded that he was not competent to stand trial, but that he could be restored to competency through appropriate medication. Since Magassouba refused to take any medication, his evaluators recommended that he be medicated involuntarily.

Although the competency evaluations themselves ended in May of 2005, the district court’s final order in the matter, and subject of this appeal, was not entered until May of 2006. In that order, the court directed that Magassouba be re-hospitalized for continued treatment, and that he be forcibly mediated.

Magassouba raised a host of appellate challenges to his treatment by the BOP and the court.

1. Interlocutory Appeal

Magassouba first had to surmount the strict limitation on interlocutory appeals in criminal cases. Here, court had no trouble concluding that the appeal could be heard under the “collateral order doctrine.”

The circuit has long held that orders committing criminal defendants for competency proceedings are immediately appealable. Here, while Magassouba’s primary complaint was over the timeliness of the order, as opposed to its suitability, the collateral order doctrine still applies. The order at issue extended his period of commitment and directed his involuntary medication, and this brings it within the collateral order doctrine.

2. Timeliness

Magassouba’s main complaint was over the timeliness of the 2006 commitment order.

A few months after he was arrested, Magassouba was examined at the MDC by a private doctor, who pronounced him incompetent to stand trial due to a delusional disorder. In late 2004, after a hearing, the court ordered the BOP to hospitalize Magassouba under 18 U.S.C. § 4241(d)(1) at a suitable facility for treatment and evaluation. That section authorizes a commitment of up to four months, but the court committed him for only sixty days, then later extended it to four months, at the BOP’s request. Magassouba arrived at Butner in December of 2004, and the BOP issued its report in May of 2005.

This triggered more than a year of legal wrangling over the issue of involuntary medication. All parties agreed that it was advisable, but the court repeatedly asked for additional information and urged Magassouba to accept medication voluntarily. Finally, in June of 2006, the court entered an order pursuant to § 4241(d)(2)(A) ordering additional custodial treatment and involuntary medication.

On appeal, Magassouba claimed that this order was untimely because it was not entered within the four-month period authorized by the original commitment order under § 4241(d)(1). The circuit disagreed, holding that the four-month period of §4241(d)(1) is a limitation on the amount of time the BOP can hold a criminal defendant in custodial hospitalization for a competency or restoration determination. There is nothing in the statute that indicates that a district court lacks the jurisdiction to order additional hospitalization for treatment under § 4241(d)(2)(A) unless it acts within that four-month period.

3. Excess Hospitalization

Here, while it is true that the BOP hospitalized Magassouba for more than the statutory four-month period, it exceeded that limit by only a few weeks. On the circuit’s reading of the record, the custodial hospitalization did not commence until his December 22, 2004 arrival at Butner. The district court gave Butner until April 20, 2005, to complete the evaluation, but it was not finished until May 3, 2005, and Magassouba was returned to the MCC on May 12, 2005. Thus, the hospitalization overstay was only from April 20 to May 12.

Magassouba sought dismissal of the indictment over this, but the circuit found the BOP’s error in hospitalizing him for three extra weeks was harmless. He was, after all, otherwise detained, without objection, under the Bail Reform Act, and did not claim that he was subject to any greater restriction of his liberty at Butner than he would have experienced as a regular pretrial detainee. Moreover, and in any event, a dismissal remedy based on a violation of the statutory time periods is not authorized by the competency statutes.

4. Due Process Violation

Finally, Magassouba claimed that by May of 2006, when the district court entered the order continuing his treatment and authorizing involuntary medication, his continued confinement for the purpose of restoring competency was no longer reasonable, and hence violated due process.

The court agreed that the entire period of his confinement - from October of 2004, when he was first found incompetent, to the May 2006 order, a period of nineteen months - should be considered for due process purposes. The court also agreed that this was a “not insignificant” period of time. But nevertheless, it was not constitutionally unreasonable because much of that time was taken up with Magassouba’s refusal to accept treatment voluntarily, and with the district court’s subsequent need to address the sensitive due process concerns relating to involuntary medication.

In addition, for almost all of this time conscientious attention was being paid to Magassouba’s condition, either by the court of the BOP. In addition, up to May of 2006, his counsel never complained about the length of the confinement; rather, he actively supported it. And, finally, Magassouba did not claim any prejudice either with respect to his ability to gain competency or to defend the case at trial.

Krazy Khat

United States v. Hassan, No. 05-6949-cr (2d Cir. September 19, 2008) (Calabresi, Pooler, Sotomayor, CJJ)

Defendant Hassan was convicted of three conspiracy counts - (1) importation of a controlled substance (2) distribution of a controlled substance, and (3) money laundering - along with forty-one substantive money laundering counts, in connection with his importation of khat into the United States. On appeal, the circuit reversed the substantive money laundering counts due to insufficient evidence, and remanded the remaining counts for a new trial because of a seriously flawed jury instruction.

Background

Khat is the common name for the leaf of a plant that grows in East Africa and the Arabian Peninsula. When ingested, it produces a mild stimulant effect. Khat is subject to a unique and truly bizarre regulatory scheme. While khat itself is not a controlled substance, the stimulants sometimes present in the leaves are. When first harvested, khat often contains cathinone, which has been designated a schedule I substance. Within two to three days, cathinone decomposes, and becomes cathine, a schedule IV substance. Thus, khat containing cathinone is also a schedule I substance, khat containing cathine is a schedule IV substance, and khat containing neither is not a controlled substance at all.

Hassan was arrested in 2003 when he arrived at a building in Manhattan to pick up a package containing khat that had just been delivered there. He had on his person cash, receipts for money orders, and apparent drug records. Later, agents obtained copies of money orders that he purchased between 1998 and 2000 payable to his khat supplier in London.

He was convicted after a jury trial, and the court sentenced him to eighty-seven months’ imprisonment.

The Appeal

1. Due Process

In an issue of first impression, the circuit held, agreeing with two others, that the regulatory scheme for khat set out in the federal drug statutes (collectively, the “CSA”)is not unconstitutionally vague. Hassan claimed that a person of ordinary intelligence would not be able to determine that the importation of khat is unlawful or that khat might contain a controlled substance, since neither the CSA nor its attendant regulations mentions the word “khat” at all, even while mentioning other botanical sources. This is particularly troubling, according to Hassan, since khat is legal and socially accepted in large parts of the world and its effect is quite mild, similar to that of caffeine.

The court was sympathetic to Hassan’s argument, finding the CSA “troubling” with respect to khat. The court suggested that it would be “helpful” for Congress to include the word “khat” in the statute itself - since “cathinone” is such an obscure term.

Nevertheless, the court concluded due process does not require this because the CSA’s scienter requirement “saves” the statute “from constitutional trouble.” The requirement that the government prove that a person “knowingly or intentionally” import or distribute khat with cathinone or cathine is enough.

2. The Jury Charge

The government charged Hassan specifically with importing and distributing cathinone, not cathine, so that it could invoke the higher, schedule I penalties.

The district court charged the jury that it must find that Hassan “knew it was a controlled substance he was conspiring to bring into the United States,” but that it need not “find that the defendant knew or believed that it was a drug called cathinone, as long as the government proves that he knew and intended that some controlled substance would be imported in to the United States.” The court did not tell the jury that khat itself is not a controlled substance, and did not tell the jury that cathine is a different, less serious substance that could not serve as the basis for a conviction of the charged crimes.

The circuit agreed with Hassan that this charge was error, because it could have led the jury to convict based on the importation of some substance other than cathinone, such as khat itself - which is not even a controlled substance - or khat containing cathine, which Hassan was not charged with.

The error was particularly acute here, since the government’s witnesses frequently, and incorrectly, testified that khat itself is a controlled substance, while other witnesses testified about cathine’s presence in khat generally and in khat seized in connection with this particular case.

Accordingly, the court concluded that Hassan’s jury might well have convicted him on the erroneous belief that khat is a controlled substance or that he imported it with the intent to distribute cathine.

3. Sufficiency Issues

The court held that the evidence was “barely” sufficient on the khat counts themselves. There was no direct evidence that the khat seized on the day Hassan was arrested actually contained a controlled substance. But there was just enough circumstantial evidence to sustain the conspiracy counts: Hassan’s prior brushes with the law involving khat; his personal knowledge that it contained a stimulant, since he was from Somalia; and his efforts to distribute the khat quickly, before the stimulant effect dissipated.

But the court found that the evidence supporting the substantive money laundering counts - the money order receipts from 1998 to 2000 - was woefully insufficient. The government was required to show that those money orders represented funds that were actually the proceeds of cathinone sales.

It did not. The money order receipts were from between three and five years before Hassan’s arrest, and there was no evidence that he actually trafficked in cathinone during that earlier period. Even the presence of khat alone would not show this, since the cathinone dissipates so rapidly.

Savage Love

United States v. Savage, No. 06-4097-cr (2d Cir. September 18, 2008) (Pooler, Livingston, CJJ, Kaplan, DJ)

Lavon Savage pled guilty to possessing a gun. At issue was whether his offense level should be enhanced for a prior “controlled substance offense,” based on his conviction under Connecticut General Statute § 21a-277(b), which makes it a crime to, inter alia, sell a controlled substance. Connecticut defines the “sale” of a controlled substance as “any form of delivery, which includes barer, exchange or gift, or offer therefore.” This definition is broader than the guideline definition of “controlled substance offense,” which does not include offenses involving the mere offer of a controlled substance.

The circuit concluded that Savage should not have received the enhancement. It agreed that the Connecticut statute criminalizes conduct - an offer to furnish drugs - that falls outside the guideline definition of “controlled substance offense.” Moreover, under the limitations of the “categorical” approach to recidivism enhancement, the government failed to show that Savage’s conviction “necessarily” rested on a fact that would put it within the guideline definition.

First, Savage entered an Alford plea, and thus did not confirm the factual basis for the plea. Given this, the government could not “rely on any factual admissions during the plea colloquy to establish the predicate nature of Savage’s conviction.” Nor was there anything else in the colloquy that would narrow the charge. Although the colloquy indicated that Savage was pleading guilty to a “sale,” that did not suffice, since a sale includes an offer. And, while Savage himself mentioned that “someone else gave” the drugs to the undercover officer, this did not establish that Savage understood he was charged specifically with exchanging drugs for money. All Savage was doing was contesting the state’s version of the facts. His “offhand remarks” did not “define the nature of the conviction” or establish the specific theory of his culpability.

Finally, the government conceded that charging document, which simply indicated that Savage pled to “Sale of a Controlled Substance ... in violation of” the statute described above, did not narrow the charge to include only conduct that would fall within the guideline definition.

Enterprise Rent-A-Cop

United States v. Eppolito, No. 06-3280-cr (2d Cir. September 17, 2008) (Kearse, Sack, Hall, CJJ)

Louis Eppolito and Stephen Caracappa were NYPD detectives who, for many years, also worked for the Lucchese organized crime family - and occasionally other Mafia families - on the side. They were were convicted of RICO conspiracy and other offenses after a jury trial. Judge Weinstein granted the defendants’ post-verdict Rule 29 motion on the RICO conspiracy, finding that the prosecution was time-barred by the applicable statute of limitations. He also granted a conditional new trial on the remaining counts, in the event the dismissal of the RICO conspiracy was not overturned on appeal.

On the government’s appeal, the circuit reversed and remanded the case for sentencing.

Background

The trial evidence revealed that, in the early 1980's, while working for the NYPD, the defendants gave law enforcement information and other assistance to the Lucchese family. Sometimes the detectives passed on information that permitted family members to evade arrest; other information led to the murder of Lucchese enemies or informants. Often, the defendants themselves participated in the murders. The defendants were paid for their work, and were even, for a time, on retainer.

Eventually the officers retired from the NYPD, but continued to provide assistance to the family until 1996, when they moved to Las Vegas. There, they got out of the murder business, but, until 2005, continued to have contact with organized crime in other ways, including: borrowing drug money to build a house, soliciting mob money to fund a movie project, and supplying methamphetamine.

The District Court’s Ruling

In dismissing the RICO conspiracy count, the district court held that once the defendants retired and moved to Las Vegas the conspiracy that began in New York in the 1980's came to a “definite close.” The court distinguished the defendants’ Las Vegas-based activities as sporadic and unconnected to the original racketeering enterprise. They were, “at best,” acts that furthered a “new enterprise, unconnected to the original one and conducted through an entirely different type of activity.” Thus, in the court’s view, the government failed to prove that any activity connected to the charged RICO conspiracy occurred with the five-year statute of limitations.

The Circuit’s Ruling

The circuit reversed primarily because it disagreed with the district court’s characterization of the nature of the racketeering enterprise. “Our principal difficulty with the district court’s statute-of-limitations-based acquittal ... is that the court’s view of the enterprise, its purposes, its location, and its duration were more restricted than what was alleged in the Indictment and than what the jury could infer from the evidence at trial.”

Specifically, the court noted that the Indictment defined the enterprise and its participants very broadly, and that the defendants’ association in providing services to members of organized crime did not cease to exist, as a matter of law, before March 9, 2000, the limitations cutoff date. Here, there was “ample evidence” that would permit a jury to find otherwise.

In addition, the court noted that the goal of the enterprise, as charged, was quite general - “to generate money for its members and associates” - and was not, as the district court had found, limited to the defendants’ using law enforcement information and acting “under color of law.” The jury was not required to find that the enterprise alleged in the indictment was dependent on the defendants’ access to confidential law enforcement information or that it ended when they retired from the NYPD.

Finally, the court took issue with the district court’s conclusion that the defendants’ relocation to Las Vegas marked the end of the enterprise through which they sought to earn money by providing services to organized crime figures. Rather, the jury was entitled to find that the defendants’ activities in Las Vegas were a continuation of this same type of activity.

Summary Summary

So far, September has produced two summary orders of interest.

In United States v. Evans, No. 05-5753-cr (2d Cir. September 18, 2008), the court ordered a Regalado remand for one defendant, even though he was a career offender. His offense level was the same under the drug quantity table and the career offender rules, and the district judge made some comments that suggested that she did not fully understand her sentencing discretion. A second defendant got a Jacobsen remand so that the judge could clarify whether she sentenced him under the drug table or as a career offender.

In United States v. Spataro, No. 05-3407-cr (2d Cir. September 11, 2008), the court vacated the sentence on a 924(c) count. The guidelines provide that the guideline range is the mandatory minimum. Here, the court imposed a sentence fifty months longer than that but did not provide reasons.

Romeo and "Julie"

United States v. Joseph, No. 06-5911-cr (2d Cir. September 9, 2008) (Newman, Walker, Sotomayor, CJJ)

Dennis Joseph, through an internet chat room called “I Love Older Men,” met “Julie,” an FBI agent posing as a thirteen-year-old girl. He began exchanging messages with her describing sexual acts he wanted to perform with her, and over time, they made a plan to meet at a café in Manhattan. As the meeting date grew closer, Joseph balked, but “Julie” made him promise that he would really show up. He did, and was arrested. In a post-arrest statement, he indicated that he had no intention of having sex with “Julie.”

Joseph was charged with enticement, under 18 U.S.C. § 2422(b). At trial, he pursued a lack-of-intent defense. Both he and his wife described him as having a proclivity for muscular women, and asserted that he used the internet primarily for role-playing purposes. Indeed, Joseph explained to the jury that he first believed that “Julie” was a sexually experienced adult who was, like him, role-playing. As their interactions evolved, however, he began to worry that she might actually be thirteen. If so, he planned to tell her that he thought she had been an adult, and that he was too old to be involved with her.

A jury convicted him, and Judge Owen sentenced him to ninety-seven months’ imprisonment.

On appeal, Joseph challenged the jury charge as well as two evidentiary rulings. A divided panel tossed his conviction based on the charge, but also criticized the district court’s evidentiary rulings.

1. The Jury Charge

In its instruction on the “enticement” element of the statute, the court charged: “The government only need to show, beyond a reasonable doubt, that the defendant attempted to convince or influence the person he believed was a 13 year old girl to engage in a sexual act with him, or made the possibility of a sexual act with him more appealing.”

The court found that this last clause was reversible error. Most of the charge properly focused on the defendant’s intent to entice; that is, the attempt to get the girl to have sex with him. However, the “more appealing” language did “not reflect the requirement of an intent to entice.” According to the circuit, this language permitted the jury to convict “even if Joseph did not intend to entice ‘Julie’ into engaging in a sexual act with him.”

Where an instruction defining one of two alternative grounds is legally erroneous, the conviction should be reversed unless the reviewing court “can determine with absolute certainty that the jury based its verdict on the ground on which it was correctly instructed.” Here, the court could not. The government’s summation improperly shifted the jury’s attention from Joseph’s intent to “Julie”’s, and even invited the jury to convict solely on the “more appealing” alternative.

Judge Walker dissented. After a detailed examination of the trial transcript, he concluded that the error in the charge had not been preserved, and that it did not rise to the level of plain error. In a responsive a footnote, the majority suggested that it would have found plain error if it thought that the error was unpreserved.

2. Evidentiary Rulings

a. Defense Precluded

During his testimony, Joseph said that he had visited a website called “Muscleteens,” and used this to corroborate his claim that his primary sexual interest was in muscular women. He also said that the site mostly contained pictures of girls aged eighteen or older. In rebuttal, the government called an FBI agent who had joined that same site, and who located numerous photos of younger girls. The district court admitted those photos, but prevented the defense from establishing that there was no evidence that Joseph had ever looked at them, or even arguing the point in summation.

The circuit was not pleased. It observed that if those photos “become relevant at a retrial,” Joseph “must be accorded an opportunity to present evidence that he did not view them.”

b. Expert Testimony Precluded

A major theme in Joseph’s defense was that he used the internet primarily for fantasy and role-play. He proffered an expert witness who was going to explain the internet’s distinct fantasy culture, but the district judge precluded the testimony as irrelevant.

The circuit disagreed. It held that this testimony appeared to be “highly likely to assist the jury” in understanding the evidence, and urged the district court to “give a more thorough consideration of” the testimony if offered at a retrial.

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.