New York Federal Criminal Practice Blog

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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). 

Contributor Robert Culp writes:

Common sense would seem to dictate that a dissent by a district judge sitting by designation is a rare occurrence.  Indeed, a rough calculation in the Second Circuit found some 2500 cases decided in the last five years with a district judge sitting by designation with only 14 dissents by those judges.  And only three of those dissents were in criminal cases.  (Apologies if the research methodology missed some.)

In United States v. Mercado, 2009 WL 2096234 (2d Cir. 2009. (July 17, 2009), Judge Droney, a district judge in the District of Connecticut and formerly the U.S. Attorney in that district, dissented from a panel affirmance on an issue of whether the district court should have admitted “other act” evidence under Rule 404(b) of the Federal Rules of Criminal Procedure and concluded the error was sufficient to warrant a new trial.  This is the kind of issue where appellate judges inevitably state the importance of deference to district judges, so the prospect of a district judge sitting by designation disagreeing with two appellate colleagues on such an issue makes for interesting reading indeed.

Majority Opinion

The case is presented unusually in that the dissent is where the background and overall case description is found while the majority opinion is limited to conclusions and analysis.  After rejecting an evidentiary sufficiency claim as to which there was no disagreement, the majority opinion turned to the Rule 404(b) issue.  Noting applicability of the “abuse of discretion” standard, the majority turns abruptly to its conclusion that the other act evidence was admissible because it went to “knowledge and intent” and furnished background to the charges and prior dealings between the alleged conspirators.  Noting that the defense in part was that defendant did not know he was participating in any drug transaction, the Court concluded that “prior gun sales” can “suggest that defendant was not an innocent pawn taken by surprise by the drug transaction.”  The Court went on to conclude that the probative value of the evidence outweighed any prejudice, and that the prior gun transactions were “not especially worse or shocking than the transactions charged.”  The Court also noted that the district court gave limiting instructions to the jury.

Judge Droney’s Dissent

Judge Droney wrote that while he was mindful of the “considerable deference accorded a trial court’s evidentiary rulings” and the abuse of discretion standard, he felt obligated to dissent.  He then turned to what is absent in the majority opinion – the background of the Rule 404(b) proffer in the context of the case.  Defendant Townsend was charged with participating in narcotics trafficking by driving principals to various locations for errands, including one where a drug transaction ensued, and by having a gun in the car at one point.  The main defense in the case was that defendant in driving others on various errands was merely present and did not knowingly join any drug conspiracy, and in fact he was not paid for his role.  (In fact, just such a defense persuaded EDNY Judge Sifton to grant a judgment of acquittal recently in Heras.)  The Rule 404(b) evidence was that defendant had previously arranged for sale of a handgun to one of the principals, Jones – who at all relevant times for purposes of the crimes charged and the Rule 404(b) evidence was cooperating with law enforcement.

Judge Droney, detailing and distinguishing Circuit precedent, argued that the Rule 404(b) act of arranging for a gun purchase did not bear any similarity to the charge of driving others to a drug transaction allegedly with intent to join a drug conspiracy.  Nor, argued Judge Droney, did it bear on the relationship between Townsend and Jones since it was undisputed that they had been friends since childhood.  Judge Droney also concluded that the prejudice outweighed any probative value – that the district court concluded little more than the Rule 404(b) evidence was “no worse” than the crimes charged, and that the proffer was not at all necessary to establish any relationship between Townsend and Jones.  It also concerned Judge Droney that the Rule 404(b) evidence itself grew out of the importuning of a government cooperating witness.  Judge Droney also concluded that the limiting instructions by the district court were erroneous, describing the evidence as being relevant to an aspect of knowledge that was actually undisputed and mischaracterizing the relevant time period.  Judge Droney concluded finally that the error was not harmless, calling the government’s case as to defendant’s knowing participation weak and based essentially on the word of a cooperator Jones whose credibility had been seriously undermined at trial.


The Rule 404(b) issues in the case alone make it a worthwhile read.  A critic might find that the majority’s conclusion that the gun evidence suggested that Townsend was not an “innocent pawn” itself suggests the very character inference that Rule 404(b) is supposed to exclude – that because defendant committed a previous “bad” act involving Jones, he more likely did so as to the charged offense as well – and that the lack of similarity between the Rule 404(b) act and the charged offense disrupts any nexus to knowledge or intent.  Nor, arguably, is it so easy to understand why the evidence was necessary to explain a relationship between undisputed lifelong friends, particularly where that relationship was skewed by Jones becoming a cooperating witness at the time of the events in question.  But beyond Rule 404(b), the case makes for good theater because a district judge, presumably well aware of the deference accorded to trial evidentiary rulings, disagreed with his appellate colleagues about whether such deference was due here.  Whether Judge Droney was more drawing his own conclusion than deferring to the trial court, or whether he was undertaking a pointed explication of why deference was not appropriate is the crux of the debate in this case.

Lawyers: Elizabeth E. Macedonio (Defendant); AUSAs Amanda Kramer and Michael Levy

One of the ills highlighted in the Supreme Court's recent money laundering decisions in Santos and Cuellar is the tacking on of money laundering charges to a variety of crimes in order to induce guilty pleas.  The entanglement of substantive criminal charges with money laundering charges is illustrated in United States v. Roberts, 2009 WL 1833389 (E.D.N.Y. June 29, 2009), where the defendant, an airline employee, was charged with participation in a drug importation conspiracy and also with two money laundering counts, arising out of his role in surreptitously loading and unloading baggage off and on planes traveling between the U.S. and Jamaica.

Money Laundering

The evidence of Roberts' alleged participation in money laundering consisted essentially of his secret loading of a black plastic bag onto a Jamaica-bound flight which would be retrieved at the other end by another individual who would use it "to pay for the drugs or buy more drugs."  Granting the defendant's motion for a judgment of acquittal on the money laundering counts, Judge Irizarry held that this evidence demonstrated "only an intent to conceal the transportation, not an intent to transport money in order to conceal it."  As in Cuellar, the evidence suggests that “the secretive aspects of the transportation were employed to facilitate the transportation, ... but not necessarily that secrecy was the purpose of the transportation.”  The government had "failed to introduce any evidence that the reason that the drug smugglers move money to Jamaica is to conceal or disguise any of the attributes of the funds listed in Section 1956(a)(2)(B)(i)."

Money Judgment

Roberts fared less well on his request for a jury determination on the criminal forfeiture money judgment sought by the government under 21 U.S.C. § 853 in connection with the narcotics trafficking charges he faced.  In United States v. Roberts, 2009 WL 1911690 (E.D.N.Y. June 30, 2009), the court found that on the issue of forfeiture, a jury may decide only whether there is a nexus between the specific property sought to be forfeitured and the charged offense.  It had no role where the government only sought - as here - a forfeiture money judgment. "If the government does not seek specific property, but rather a personal money judgment, the court itself determines the amount of money that the defendant will be ordered to pay. . . The defendant is not entitled to have the jury decide the amount of the forfeiture.”  Interestingly, the government had not taken a position on this issue, but noted that district courts have differed on the issue.

Guest Contributor Brian Larkin, Esq. writes:

Faced with the government’s overwhelming resources, decades of investigation material, and procedural advantages, the Federal Rules of Evidence can be a defendant’s last resort.  Usually, the defense strategy is to move to preclude, but in the RICO trial of mob hitman Charles Carneglia, the defense moved to introduce the kind of evidence that is usually excluded without argument – police reports, witness statements, and information about neighborhood rumors.  Citing the disparity of resources between prosecution and defense, EDNY Judge Weinstein granted the defense requests, adopting an approach that under other circumstances would chill the bones of most defense lawyers: “‘When in doubt, admit,’ relying on the jury . . . a highly intelligent, well-educated group of widely diverse backgrounds . . . to assess the evidence properly.”  As Judge Weinstein explains: “[c]onstitutional and evidentiary rules necessarily provide criminal defendants with greater protection – and leeway – in mounting a defense.”

Double Hearsay

Given the “tremendous resources and scores of government agents over several generations” devoted to the case, the sophisticated evidence gathering, and the “seduction of a large coterie of undercover and cooperating former gang members,” the government’s “heavy burden of proof and the presumption of innocence did not fully offset the prosecutor’s whip hand at trial,” Judge Weinstein’s decision noted in a series of rulings on hearsay evidence made in the recent trial of convicted mobster Charles Carneglia.  United States v. Carneglia, No. 08-CR-76 2009 WL 683719 (E.D.N.Y. March 11, 2009).  Carneglia’s trial of six weeks produced a record of 5,000 pages, 62 witness and hundreds of exhibits.

Among the issues decided in Judge Weinstein’s opinion was the admissibility of witness statements in police reports relating to the 1976 murder of Albert Gelb.  Gelb, a court officer, was shot in his car days before he was to testify against Carneglia in a gun possession prosecution.  The government charged Carneglia with this shooting.  The defense sought to admit statements from a police report made by eye witness Charles Ball, now deceased, who told police that a man about 5’ 9” – taller than the defendant – was the shooter.

Although, generally, police reports may not be admitted when offered by the government, the court points out that they may be introduced by the defendant under several hearsay exceptions provided in Rule 803, including the exceptions for business records and past recollection recorded.  The other hurdle for the defense was the admission of the actual statements contained in such a report, and specifically the description of the shooter.  Concluding that these statements were admissible variously as excited utterances, present-sense impressions and generally reliable, Judge Weinstein noted that “Ball described watching from his window while an individual fired several shots into Gelb's car.  The content indicates that the events he witnessed were startling. The Ball interview recorded in defense exhibit A-1 took place approximately one hour after the shooting of Gelb.”  The judge also applied the balancing test under Rule 403 and found the evidence admissible.

Notably, while Carneglia was convicted of charges relating to four murders, the jury ended deadlocked on the charge relating to the killing of Gelb.

Neighborhood Gossip

The same decision also documents an in limine ruling permitting the defendant to question a police detective about a “rumor” that existed at the time of another of the charged murders.  While this rumor indicated that a party other than the defendant had committed the murder of Michael Cotillo, the statement did not fit into any traditional hearsay exception.  Relying however on Rule 102 – the rules of evidence should be construed “to the end that the truth may be ascertained and proceedings justly determined,” Judge Weinstein ruled that he would permit questioning about these rumors.  Again, he highlighted the disparity between the resources and situations of the defense and the government, and further noted that the right to confront and cross-examine witnesses is a right of the defendant, not the government.

One Problem With Your Objection: You Killed the Witness

The right to confront a witness may be primarily a right of the defendant, but not when the defendant can be shown to have caused the witness to be absent.  In another evidentiary ruling relating to the same trial – and adding some neat symmetry to the ruling about Charles Ball’s observations – the court applied a little-used rule of evidence that permits the introduction of a dead man’s declarations against the person who killed him:  “The law allows the victim to rise from the grave, confronting his murderer in court with incorporeal testimony, preventing the criminal from frustrating justice through his wrongdoing.”  United States v. Carneglia,  No. 08-CR-76 2009 WL 595906 (E.D.N.Y. March 5, 2009).

At issue was the government’s offer of statements made by Gelb to two friends, as well as testimony in a state court preliminary hearing relating to a confrontation between Gelb and Carneglia.  Looking to Rule 804(b), the court quoted the statute’s hearsay exception for statements of a victim at the perpetrator’s trial: “Statements of an unavailable declarant are not excluded as hearsay when offered against a party who ‘has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.’  Fed.R.Evid. 804(b)(6).  This exception applies both to out-of-court statements and to in-court testimony,” the court held.


This case is an important acknowledgment of the enormous gulf between the government’s investigative resources and and those of the defense.  This disparity could be addressed by more liberal discovery rules in criminal cases, as discussed here previously.  It can also be addressed, as Judge Weinstein does in Carneglia, by easing the stringency of the rules of evidence in the context of defense applications.  It’s not a two-way street, however, as Judge Weinstein underlines repeatedly throughout the decision.  The jury may be trusted to give the defendant’s proffered evidence the credit it is due, but a new rule of evidence applicable to both sides that says “when in doubt, admit and trust to the jury’s good sense” would tip unevenly-balanced scales even further in the government’s favor.  While courts strive to provide both sides with a fair trial, it isn’t lost on anyone that the game belongs to the government.  

Lawyers: Curtis Farber, Kelley J. Sharkey  (defendant); AUSAs Amy Cohn, Cristina Posa, Daniel Brownell, Joey Lipton, Marisa Seifan, Mitra Hormozi, Roger Burlingame, Evan Norris.

A set of facts that read like a treatment for a Sopranos script is the backdrop for a notable decision from the Second Circuit on the propriety of summation arguments made by both sides in a criminal trial.  Mistaken suspicions that a mobster was cooperating, a botched hit sending him into the bosom of the government, another botched hit on his one family member that did not go into Witsec . . .  In United States v. Spinelli, 99-1344-cr(L), 2008 WL 5413083 (2d Cir. December 31, 2008), the Court affirmed the defendant’s convictions for murder conspiracy and racketeering, despite the prosecutor’s improper personal vouching for the truthfulness of her witnesses.  The Court expressly rejected the government’s argument that a prosecutor may engage in personal vouching if the defense suggests the government’s witnesses had lied, and then goes on to embrace wholeheartedly the defense’s right to attack the credibility of cooperating witnesses.  

Improper Summation Arguments

During her rebuttal summation, the AUSA said to the jury that not one of the cooperating witnesses “had ever lied under oath or perjured themselves” or “falsely implicated anybody in a crime.”  The Court held it was improper for a government prosecutor to make such an assertion to the jury.  “By making these statements, the prosecutor put her own credibility at issue and implied the existence of extraneous proof which would support her assertion about the witnesses’ credibility.”  While she is entitled “to argue forcefully and vigorously to the jury in support of her witness’s credibility,” these arguments “must be based on evidence in the record . . . But the prosecutor is not entitled to tell the jurors that they may rely on her own assurances of the witness’s truthfulness.”

The Court rejected the government’s argument “that a prosecutor may vouch personally for the honesty of government witnesses when the defense has the effrontery to argue to the jury that government witnesses have lied.”  In a paragraph that is a terrific defense of the defense’s right to impeach and impugn cooperating witnesses, the Court held:   

It is not misconduct for a defense attorney to argue on the basis of inferences drawn from the evidence (or the witness's demeanor) that a witness for the government has lied. When an accomplice in a criminal venture makes a cooperation agreement with the government and testifies against his prior criminal confederate, there is no impropriety in the defense attorney arguing to the jury that the cooperating witness has falsely accused the defendant in order to get a better deal for himself. Such arguments are made in virtually every case in which an accomplice testifies for the government under a cooperation agreement.

In a footnote not joined by his colleagues, Judge Laval, who authored the decision, adds that rebuttal summations can be “dangerously emotional” moments for a prosecutor who “may understandably react emotionally” to a defense attorney’s attacks on the government witnesses, and thereby risk a mistrial.  He recommends that all prosecutors review their rebuttal arguments with an experienced prosecutor “who has not been involved in the trial and will therefore give unemotional counsel” (ouch! – and it’s unfortunate that the politically correct “she” is used in this footnote).  

In any event, the Court found the improper arguments were not prejudicial error where “the evidence of Spinelli’s guilt was powerful and well-corroborated.”

Hearing on Perjury Issue

In the same decision, the Court indicated that the district court should have held an evidentiary hearing on the defense’s motion for a new trial based on the claim that the government suborned perjury at trial.  The district court had denied the motion without a hearing based on the prosecutors’ sworn affidavits.  “Because the defendant had no opportunity to challenge the prosecutors' statements, we cannot affirm on the basis of that finding.”  The Court did, however, affirm on the grounds that even if the testimony had been perjurious, it was not material enough to have altered the verdict.

Lawyers: Ephraim Savitt (defendant); AUSA Jo Ann Navickas (who was not the trial AUSA)

Scientific testimony has an inexorable way of assuming central importance at a trial.  In the world of CSI, as this blog has noted in the past, see here, jurors crave the objective certainty that scientific evidence promises.  But as Judge Rakoff sums up the conundrum in United States v. Glynn, 2008 WL 4293317 (S.D.N.Y. September 22, 2008), while juries are supposed to evaluate an expert’s testimony and decide what weight to give it, they “are necessarily handicapped in doing so by their own lack of expertise.”  In other words, the blind cannot lead the blind.  It falls on the trial judge to ensure the jury isn’t bamboozled by unreliable expert testimony.  And admirably stepping up to his gatekeeper plate, Judge Rakoff held in Glynn, following a Daubert hearing, that the government’s ballistics expert could not testify that ballistics is a science, nor could he testify that he reached his conclusions with any degree of certainty.  Rather, he could simply “give an opinion that it was at least ‘more likely than not’ that the bullet and casings came from the guns in question.”


Quite simply, ballistics analysis may have the pretensions of science, but it does not have “sufficient rigor to be received as science,” Judge Rakoff concludes, examining some recent district court cases from Massachusetts and California, as well as academic literature on the subject. 

Firearm analysis “rests on the twin assumptions that the surface contours of every gun are unique and that, every time that gun is fired, some of those unique markings, along with markings caused by the act of firing itself, are transferred to the shell casing and bullet, leaving distinctive patterns on each of them.”  Even in an era of mass production of firearms, “the gun manufacturing process never operates identically in any given case, and therefore causes differences between any two guns that, while tiny, may still be detected by use of such techniques as the comparison microscope.”  Of course, such comparisons are necessarily subjective, and the reliability of ballistics analysis is further compromised by the absence of “defining standards to a degree that exceeds most other kinds of forensic expertise” like, for example, fingerprint analysis.  In addition, “real-life conditions rarely allow for perfect comparisons” – bullets and/or shell casings recovered from the crime scene may be damaged; a gun barrel may itself change slightly with each firing; casings may be affected by an irregular firing or materials they hit against; and the instruments used to compare the samples have their own distorting effects.

Nevertheless, Judge Rakoff concludes that ballistics analysis “has garnered sufficient empirical support as to warrant its admissibility.”  After all, evidence need not meet an “exalted level of certainty” to be admissible; it must simply “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” (quoting Fed.R.Civ.P. 401).  Hence his decision to permit the ballistics examiner to testify in the case, with the limitation that his conclusions may only be couched in the “more likely than not” language, and thus not “overstat[e] the capacity of the methodology to ascertain matches.”


This decision is important not just for cases involving ballistics, but any case involving expert testimony, particularly where that expert evidence may relate to a disputed fact and may take on crucial significance at the trial.  It shouldn’t be forgotten that for decades, ballistics testimony was accepted without question in federal courts.  Glynn is a reminder that under the Supreme Court’s decision in Daubert, all areas of forensic “science” should be subject to careful scrutiny and re-evaluation, especially in light of developing scholarship that may cast doubt on their reliability. 

And the next step is to develop arguments for trial and appellate courts challenging the admission of “expert” testimony that something is “more likely than not” to be true.  One could argue, for example, that the minimal probity of such evidence cannot outweigh the prejudice that the jury may assign it undue importance, or that it risks lowering the government’s burden of proof.

Lawyers: Davide Ruhnke and Michael Young (for the defendant) and AUSA Jessica Masella.

The government’s obligation to disclose Brady material encompasses not only oral, unrecorded statements of a cooperating witness that are favorable to the accused, as held in Rodriguez, previously discussed here, but also exculpatory statements communicated to the government by the witness’s lawyer, the Second Circuit held in United States v. Triumph Capital Group, Inc., 2008 WL 4349318 (2d Cir. September 25, 2008).

Brady Material Includes Notes of Witness’s Attorney’s Proffer

In Triumph, the defendant had been convicted after trial of racketeering, bribery, fraud and obstruction of justice, arising out a scheme to bribe the Deputy Treasurer of the State of Connecticut.  The bribee was the key cooperating witness at trial, but after the trial, he cooperated with the defense, and, no doubt to the dismay of the prosecutors, provided copies of notes he had made that had been communicated to the government in an attorney proffer as part of his initial plea negotiations.  These notes differed from his trial testimony in key respects.  While the government never had custody of the witness’s actual notes, it did have in its possession the notes an agent took of the attorney proffer.  It withheld these from the defense, however, until the defense made its motion for a new trial arguing suppression of exculpatory evidence.  The district court denied the motion, finding that the notes were not materially different from the witness’s trial testimony.

The Second Circuit disagreed.  In a decision authored by EDNY Judge Gleeson sitting by designation, the Court carefully analyzed the differences between the notes and the trial testimony, demonstrating that the notes “provided scant if any support for the inference that [the defendant] possessed the requisite intent to bribe or defraud.”  Finding the withholding of the agent’s notes of the attorney proffer “inexplicable,” the Court concluded that “the government deprived [the defendant] of exculpatory evidence going to the core of its bribery case against him,” as well as impeachment material that had a “real enough possibility to undermine confidence in the verdict.”  Accordingly, the Court reversed the racketeering, bribery and fraud convictions.

Destruction of Documents Likely to Be Subpoenaed by Grand Jury is Obstruction

Also of note in this decision is the Court’s analysis of the evidence supporting the obstruction of justice conviction.  The defendant had deleted certain documents from his laptop when he became aware that a grand jury investigation had commenced, albeit documents that were, at the time, not the subject of an outstanding subpoena.  On appeal, the defendant argued that there was insufficient evidence to prove that he knew the documents would later be, or were likely later to be, requested by the grand jury, analogizing himself to the defendant in United States v. Aguilar, 515 U.S. 593 (1995), whose obstruction conviction was reversed because he could not be expected to have known that the false statements he made to an F.B.I. agent would be communicated to a grand jury. 

This time, the Second Circuit disagreed with the defendant.  There was a “crucial distinction” between Aguilar and this case: statements made to investigating agents may not necessarily be communicated to a grand jury, but grand jury subpoenas for documents are necessarily broad and sweeping.  Here, the Court concluded that “the inference that the grand jury would issue a subpoena for [the deleted documents] was quite strong, perhaps inescapable.”  Moreover, there was evidence of the defendant’s “awareness of the comprehensive nature” of subpoenas typically issued in grand jury investigations, that his company’s lawyers anticipated future subpoenas, and that the defendant had received advice from a former prosecutor that the grand jury would be likely to inspect the data on his laptop.  The obstruction conviction was therefore affirmed, although the Court remanded for resentencing, in the event the convictions on the reversed counts had influenced the length of time imposed on that count of conviction.

See Archives for all posts since September 2007.