Recently in the Evidence category:
The NYSACDL has published the second edition of its excellent revitalized Atticus. It's well worth checking out - Donna Newman gives a fascinating fly-on-the-wall account of the Russian spy case, and Donald Thompson has a moving essay on a wrongful conviction. I have also contributed a piece highlighting some recent Second Circuit cases, including three cases not previously mentioned in this blog: United States v. Julius (suppression); United States v. Sabhnani (liability for omissions, and also interesting on the issue of venue transfer and psychological evaluations of government witnesses); and United States v. Oluwanisola (proffer statements).
As Judge Gleeson pointed out recently in United States v. Mahaffy, 2010 WL 2925952 (E.D.N.Y. July 21, 2010), if a defendant’s interest in a fair trial is not reason enough, “one would think that the government’s selfish interest in the integrity and durability of the convictions it obtains would induce it to . . . err on the side of over-disclosure.” But when it comes to pretrial disclosure, prosecutors often act less like advocates for justice and more like adversaries in a chess game. It is an approach that is oddly counterproductive – leading to delayed dispositions and even appellate reversal.
In Mahaffy, the six defendants who went to trial in the case and were found guilty by the jury moved for a dismissal of the indictment, or, in the alternative, for a new trial, on the ground that the government failed to disclose the transcripts of 12 depositions taken by the Securities and Exchange Commission (“SEC”), which the defendants claim violated the government's disclosure obligations. Judge Gleeson denied the motion, finding that the depositions themselves did not contain sufficient favorable or exculpatory information as to have had a material effect on the verdict. He ends his decision, however, with this admonition to the government:
Of course, leaving this issue to the prosecutor’s sound judgment and good faith is like leaving the fox in charge of the henhouse, as the Second Circuit observed in Rodriguez. That’s why, to the extent possible, defense lawyers should try to identify and request specific Brady material in pretrial motion practice and request in camera review by the court if the government concedes the existence of the material but refuses to turn it over (as happened in Nogbou).
In Mahaffy, the six defendants who went to trial in the case and were found guilty by the jury moved for a dismissal of the indictment, or, in the alternative, for a new trial, on the ground that the government failed to disclose the transcripts of 12 depositions taken by the Securities and Exchange Commission (“SEC”), which the defendants claim violated the government's disclosure obligations. Judge Gleeson denied the motion, finding that the depositions themselves did not contain sufficient favorable or exculpatory information as to have had a material effect on the verdict. He ends his decision, however, with this admonition to the government:
(emphasis added).Notwithstanding the foregoing, I remain mystified by the government's failure to disclose the testimony of these various witnesses. I see no legitimate interest served by an approach that has the parties and the Court sifting through the transcripts of testimony taken by the SEC after the trial has already occurred-especially when the testimony was taken as part of the investigation that resulted in this very case. Nor do I see a justification for the decision by the government's trial team (which did not include any members of the team that handled the original trial) not to reconsider the disclosure decisions made by their predecessors. The disclosure obligations imposed by the federal rules, federal statutes and the Constitution are too important, and too easily complied with, to justify such an approach. Even if the prosecutors are not sufficiently motivated, as they should be, by the defendants' interest in a fair trial, one would think the government's selfish interest in the integrity and durability of the convictions it obtains would induce it to consider its disclosure obligations on an ongoing basis, and to err on the side of over-disclosure unless well-grounded concerns about particular witnesses or other investigations counsel otherwise. My only concern in denying the pending motion is that it might have the effect of diminishing that selfish incentive. The government has assured me otherwise, and that changes have been made in the United States Attorney's office to ensure that similar failures do not occur in the future. Time will tell in that regard, but I note here that those procedures ought to include a requirement that the prosecutors in the case make contemporaneous records of their actions and decisions regarding disclosure in a manner that makes them accessible later on. . . .Whatever else the United States Attorney does in response to the disclosure guidance recently provided by then-Deputy Attorney General David W. Ogden, it should make sure that it can provide a complete accounting of its actions in future cases.
Of course, leaving this issue to the prosecutor’s sound judgment and good faith is like leaving the fox in charge of the henhouse, as the Second Circuit observed in Rodriguez. That’s why, to the extent possible, defense lawyers should try to identify and request specific Brady material in pretrial motion practice and request in camera review by the court if the government concedes the existence of the material but refuses to turn it over (as happened in Nogbou).
Prejudicial hearsay is hardly ever introduced simply for its mere “context,” and the Second Circuit called out the government on a particularly egregious example of that in United States v. Gomez, No. 08-3829-cr (2d Cir., August 4, 2010).
The defendant was charged with ecstasy distribution. At his trial, the government elicited key testimony from a Detective Ryan, who had arrested Gomez’ co-conspirator Rivas, that Rivas had identified Gomez as his supplier. The communication was by inference: Ryan testified that he directed Rivas to call his supplier and Rivas called Gomez. Rivas did not testify. The government had argued that “the evidence was admissible for the proper, non-hearsay purpose of showing context, in that it explained how Ryan came to place a call to Gomez.” Gomez countered that the government had elicited from Detective Ryan inadmissible prejudicial hearsay testimony, which communicated to the jury that Rivas identified Gomez as his supplier.
The Circuit agreed, and did not find the error harmless, in part because the error also implicated the Confrontation Clause “the very concerns [of which] … are part and parcel of our harmless error analysis.”
The government continued insistence at the appellate level that the evidence was elicited for a contextual rather than prejudicial purpose so “puzzled and dismayed” the Court, that it added in a footnote:
(quoting Berger v. United States, 295 U.S. 78, 88 (1935)).
The defendant was charged with ecstasy distribution. At his trial, the government elicited key testimony from a Detective Ryan, who had arrested Gomez’ co-conspirator Rivas, that Rivas had identified Gomez as his supplier. The communication was by inference: Ryan testified that he directed Rivas to call his supplier and Rivas called Gomez. Rivas did not testify. The government had argued that “the evidence was admissible for the proper, non-hearsay purpose of showing context, in that it explained how Ryan came to place a call to Gomez.” Gomez countered that the government had elicited from Detective Ryan inadmissible prejudicial hearsay testimony, which communicated to the jury that Rivas identified Gomez as his supplier.
The Circuit agreed, and did not find the error harmless, in part because the error also implicated the Confrontation Clause “the very concerns [of which] … are part and parcel of our harmless error analysis.”
The government continued insistence at the appellate level that the evidence was elicited for a contextual rather than prejudicial purpose so “puzzled and dismayed” the Court, that it added in a footnote:
[It bears repeating that:] The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he
may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
(quoting Berger v. United States, 295 U.S. 78, 88 (1935)).
United States v. Torres, 2010 WL 1790220 (2d Cir .May 5, 2010), is one of those rare cases in which the Court has reversed the defendant’s drug conspiracy conviction on the grounds of insufficient evidence. While there was evidence that Torres knew or should have suspected that he was participating in something illicit – “especially the facts that Torres undertook to receive heavy and bulky packages on the street, which were addressed to him at a building with which he had no apparent connection” – the record was lacking “any evidence that Torres knew the Packages contained narcotics.”
Lawyers: Edward Zas (Federal Defenders, Inc.); AUSAs Nicholas L. McQuaid, Michael D. Maimin
There was, for example, no cooperating witness testifying at trial. There was no evidence of any drug records implicating him. The cocaine was well concealed and not visible. There was no proof of any narcotics-related conversation to which Torres was a party . . . [T]he government presented no evidence as to the nature of Torres's associations with the persons who shipped the cocaine or with the persons who expected to distribute it. There was no evidence of a sizeable payment to Torres that might reflect an expectation related to the million-dollar street value of the cocaine . . . Nor was there evidence that Torres was placed in a position of trust . . . Torres was never in a position to be alone with the Packages until the driver of the minivan fled the mall upon spotting the police surveillance. This record does not lend itself to an inference that Torres was so trusted that he must have known that he was dealing with narcotics.
Lawyers: Edward Zas (Federal Defenders, Inc.); AUSAs Nicholas L. McQuaid, Michael D. Maimin
Guest contributor Marshall Mintz writes:
Fraud based on the “deprivation of honest services” is a controversial charge likely to elicit some notable rulings from the Supreme Court this term, as noted here. In particular, the cases of Jeffrey Skilling and Conrad Black may produce decisions that reign in the reach of honest services fraud in the context of private businesses, two varieties of which have been identified by the Second Circuit in United States v. Rybicki: cases involving bribes or kickbacks, and cases involving self-dealing. Bribery/kickback cases need no introduction. Self-dealing cases, on the other hand, usually involve the defendant causing his employer to do business with a corporation or enterprise in which the defendant has a secret, undisclosed interest. In Rybicki, the Second Circuit adds that "[i]n the self-dealing context, though not in the bribery context, the defendant's behavior must [.] cause, or at least be capable of causing, some detriment – perhaps some economic or pecuniary detriment – to the employer.”
This distinction is at issue in United States v. Demizo, 2009 WL 2163099 (EDNY July 20, 2009), where the defendant was convicted after trial of securities fraud and making false statements. Because EDNY Judge Gleeson concluded, however, that there was no factual predicate to treat the case as a self-dealing one, he declined to defendant’s requested jury charge on the issue of detriment. The case also includes an interesting discussion on the issue of permitting the defendant to introduce at trial a statement the government made in a brief under the "admission of a party opponent” rule.
Refusal to Charge:
Relying on the Second Circuit’s decision in United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003), the court rejected the argument that the jury should have been instructed that the fraud involved self-dealing as opposed to kickbacks, and the government was therefore required to prove a possible detriment to the employers.
Assuming the validity of the legal argument, the court deemed any such instruction inappropriate because the defense “failed to identify any evidence in the record that could permit the jury to find that this was a self-dealing case.” As the Second Circuit has suggested, self-dealing involves a situation where the defendant causes the employer to do business with a corporation or other enterprise in which the defendant has a “secret interest.” That term has not been defined, but the relevant cases all involve defendants who had undisclosed ownership interests in those entities and Demizio “did not argue that the record showed he had such a cognizable interest in the firms to which he steered his employer’s business.”
The court also rejected the defense’s argument that the case involved self-dealing because the government alleged a conflict of interest because, “every fraud case, including the kickback scheme at issue in Rybicki, involve a conflict of interest in that every individual has a personal interest in pocketing a kickback while every employer has an interest in hiring people who eschew such conduct.”
Refusal to Admit a Statement from a Government Brief
The defense also argued that it should have been permitted to introduce into evidence a government pre-trial brief submitted in opposition to a request for a bill of particulars, reasoning that statements made by an attorney concerning a matter within his employment may be admissible against the represented party.
The court explained that while the Second Circuit has previously considered the admissibility of statements made in a bill of particulars and opening statements made by defense counsel at a previous trial and found that, while not inadmissible per se, policy concerns weigh against allowing such statements to be admitted as admissions by a party-opponent. Against that backdrop, Judge Gleeson reasoned that because the brief was a legal memoranda and not a formal pleading, it was merely an assertion about the charges in the indictment – which is a charge of the grand jury – and could not properly be deemed a statement by the government .
Finally, rejecting the claim that the brief was evidence that the government had changed its theory during the trial, the court found the assertion irrelevant “to any factual issue submitted to the jury” and, in any event, the probative value was substantially outweighed by the risk of confusion.
Attorneys: David Spears, Charlita Mays (Spears & Imes LLP) (defendant); AUSA’s Winston Chan, Kelly T. Currie, Winston Paes
Fraud based on the “deprivation of honest services” is a controversial charge likely to elicit some notable rulings from the Supreme Court this term, as noted here. In particular, the cases of Jeffrey Skilling and Conrad Black may produce decisions that reign in the reach of honest services fraud in the context of private businesses, two varieties of which have been identified by the Second Circuit in United States v. Rybicki: cases involving bribes or kickbacks, and cases involving self-dealing. Bribery/kickback cases need no introduction. Self-dealing cases, on the other hand, usually involve the defendant causing his employer to do business with a corporation or enterprise in which the defendant has a secret, undisclosed interest. In Rybicki, the Second Circuit adds that "[i]n the self-dealing context, though not in the bribery context, the defendant's behavior must [.] cause, or at least be capable of causing, some detriment – perhaps some economic or pecuniary detriment – to the employer.”
This distinction is at issue in United States v. Demizo, 2009 WL 2163099 (EDNY July 20, 2009), where the defendant was convicted after trial of securities fraud and making false statements. Because EDNY Judge Gleeson concluded, however, that there was no factual predicate to treat the case as a self-dealing one, he declined to defendant’s requested jury charge on the issue of detriment. The case also includes an interesting discussion on the issue of permitting the defendant to introduce at trial a statement the government made in a brief under the "admission of a party opponent” rule.
Refusal to Charge:
Relying on the Second Circuit’s decision in United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003), the court rejected the argument that the jury should have been instructed that the fraud involved self-dealing as opposed to kickbacks, and the government was therefore required to prove a possible detriment to the employers.
Assuming the validity of the legal argument, the court deemed any such instruction inappropriate because the defense “failed to identify any evidence in the record that could permit the jury to find that this was a self-dealing case.” As the Second Circuit has suggested, self-dealing involves a situation where the defendant causes the employer to do business with a corporation or other enterprise in which the defendant has a “secret interest.” That term has not been defined, but the relevant cases all involve defendants who had undisclosed ownership interests in those entities and Demizio “did not argue that the record showed he had such a cognizable interest in the firms to which he steered his employer’s business.”
The court also rejected the defense’s argument that the case involved self-dealing because the government alleged a conflict of interest because, “every fraud case, including the kickback scheme at issue in Rybicki, involve a conflict of interest in that every individual has a personal interest in pocketing a kickback while every employer has an interest in hiring people who eschew such conduct.”
Refusal to Admit a Statement from a Government Brief
The defense also argued that it should have been permitted to introduce into evidence a government pre-trial brief submitted in opposition to a request for a bill of particulars, reasoning that statements made by an attorney concerning a matter within his employment may be admissible against the represented party.
The court explained that while the Second Circuit has previously considered the admissibility of statements made in a bill of particulars and opening statements made by defense counsel at a previous trial and found that, while not inadmissible per se, policy concerns weigh against allowing such statements to be admitted as admissions by a party-opponent. Against that backdrop, Judge Gleeson reasoned that because the brief was a legal memoranda and not a formal pleading, it was merely an assertion about the charges in the indictment – which is a charge of the grand jury – and could not properly be deemed a statement by the government .
Finally, rejecting the claim that the brief was evidence that the government had changed its theory during the trial, the court found the assertion irrelevant “to any factual issue submitted to the jury” and, in any event, the probative value was substantially outweighed by the risk of confusion.
Attorneys: David Spears, Charlita Mays (Spears & Imes LLP) (defendant); AUSA’s Winston Chan, Kelly T. Currie, Winston Paes
Evidence - even suggestions - of uncharged conduct at trial can be devastating, especially in a circumstantial case, as the Second Circuit acknowledged recently in two cases. In one, United States v. Farmer, 2009 WL 3200690 (2d Cir. October 8, 2009), the Court vacated a defendant’s attempted murder conviction where gratuitous references to his nickname “murder” “short-circuited the jury’s fact-finding” regarding a plausible defense. In the other, United States v. Williams, 2009 WL 3429594 (2d Cir. October 27, 2009), the Court vacated a conviction for gun possession where the trial judge had admitted evidence that the defendant had access to an apartment that was discovered a day after his arrest to contain, among other savory items, loaded firearms, ammunition, drugs, and bullet-proof vests. Rejecting the government’s claim that this was essential “background evidence” (it didn’t fill any “gaps in the government’s case” or add “missing pieces of the story”), the Court also rejected the argument that the evidence was relevant under Fed.R.Evid. 404(b) to prove the defendant’s “opportunity and motive” to possess a gun. Even if this was the case - and the government didn’t use it for this purpose at trial - much of the evidence “went far beyond what was necessary for this purpose.” In lines that could be applied to many motions by the government to admit the defendant’s other alleged bad acts, the Court explained:
Lawyers (Farmer): Jeremy Epstein, Seth Kean, Grace Lee, Rebecca Boon (Shearman & Sterling LLP) (defendant); AUSAs Ilene Jaroslaw, Peter Norling
Lawyers (Williams): Donald Yanella (defendant); AUSAs Justin Lerer, Jo Ann Navickas
Its admission ignored a “common sense precaution which should clearly be taken ... to limit the prosecutor’s presentation to such facts ... as are reasonably necessary to prove the point for which the evidence is admitted, and to exclude unsavory details which go beyond what is necessary to make the point.” David W. Louisell & Christopher B. Mueller, Federal Evidence § 140, at 209 (rev. ed.1985); see also United States v. Bradwell, 388 F.2d 619, 622 (2d Cir.1968) (discussing the undue prejudice that can result when the “minute peg of relevancy [is] entirely obscured by the dirty linen hung upon it” (citation omitted)).
Lawyers (Farmer): Jeremy Epstein, Seth Kean, Grace Lee, Rebecca Boon (Shearman & Sterling LLP) (defendant); AUSAs Ilene Jaroslaw, Peter Norling
Lawyers (Williams): Donald Yanella (defendant); AUSAs Justin Lerer, Jo Ann Navickas
Sometimes, the defense, or successful appellate argument, may lie in something as elementary as the proper reading of the charging statute. In United States v. Shim, 2009 WL 3127210 (2d Cir. October 1, 2009), for example, the defendant was charged with “knowingly transport(ing) any individual in interstate . . . commerce . . . with intent that such individual engage in prostitution...” The Court reversed her conviction, holding that the district court erred in failing to instruct the jury that to be guilty of the offense, Shim had to know, not only that she was transporting the women, but that the women were transported in interstate commerce.
Quoting the Supreme Court’s decision in Flores-Figueroa v. United States, 129 S.Ct. 1886 (2009), the Court explained “[i]n ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.”
Yes, I didn’t follow that either on first reading. My translation: the word “knowingly” modifies all the elements of a criminal statute. Except when it doesn’t – take note of Justice Alito’s Potter Stewart caveat in Flores-Figueroa, that there may situations where the context of the statute dictates a different result. But let’s leave prosecutors make that argument.
Lawyers: Susan Wolfe, Hoffman & Pollok, LLP (defendant); AUSAs Elie Honig and Andrew Fish
Quoting the Supreme Court’s decision in Flores-Figueroa v. United States, 129 S.Ct. 1886 (2009), the Court explained “[i]n ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.”
Yes, I didn’t follow that either on first reading. My translation: the word “knowingly” modifies all the elements of a criminal statute. Except when it doesn’t – take note of Justice Alito’s Potter Stewart caveat in Flores-Figueroa, that there may situations where the context of the statute dictates a different result. But let’s leave prosecutors make that argument.
Lawyers: Susan Wolfe, Hoffman & Pollok, LLP (defendant); AUSAs Elie Honig and Andrew Fish
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