Sunday, May 15, 2011

Body of Evidence

United States v. Perisco, No. 08-5266-cr (2d Cir. May 3, 2011) (Jacobs, Kearase, Leval, CJJ)

Defendants Perisco and DeRoss, former high-ranking members of the Colombo crime family, were convicted of murder-in-aid-of racketeering and related offenses in connection with the murder of one William Cutolo, in connection with an intra-family power struggle. In this long opinion, which deals with several not-very-interesting evidentiary and sufficiency claims, the circuit affirms.

The opinion addresses only one noteworthy issue. At the time of the defendant's trial, Cutolo's body had not been located. And the theory of the government, based on other evidence, was that the body had been dumped at sea. Post-trial, the body was found buried on Long Island, which prompted the defendants to move for a new trial under Fed. R. Crim. P. 33.

The circuit affirmed the denial of that motion. It agreed with the district court that the discovery of the body was not "material" and was not "likely to result in an acquittal." While the discovery was "relevant," it did not impeach the credibility of any of the government's key witnesses, even if it did contradict the "theory advanced in summations as to how Cutolo's dead body had been concealed." Moreover, nothing about the discovery undercut the government's contention that the murder was brought about by Perisco and DeRoss.


Bad Cop, Bad Cop

United States v. Cedeno, No. 09-1857-cr (2d Cir. May 2, 2011) (Jacobs, Calabresi and Chin, CJJ)

In 1990, the Appellate Division specifically found that a New York City detective lied at a suppression hearing, by “patently tailor[ing]” his testimony to avoid suppression. Here, the circuit held that it was error for the district court to categorically preclude cross-examination of that same detective at trial about the adverse credibility finding.

The district court, relying on United States v. Cruz, 894 F.2d 41 (2d Cir. 1990), had held that the Appellate Division’s finding went to the detective's credibility in a specific hearing, not that he lacked veracity generally, and that, here, the subject matter of the testimony would be different because the detective would not be testifying about the constitutionality of a search.

The circuit faulted this inquiry as “too narrow,” because Cruz did not “purport to set out a rigid two-part test.” A too-rigid application of Cruz risks violating both Fed. R. Evid. 608(b), which gives district courts the discretion to permit cross-examination into “specific instances of conduct” if the conduct is “probative of” the witness’ character for truthfulness or untruthfulness,” and the Confrontation Clause.

The circuit also noted that, several years before Cruz, it had upheld a district court’s ruling that a witness could be cross-examined based on occasions where his testimony in other cases had been found to be unworthy of belief.

Thus, here, before ruling, the district court should have also considered, “for example,” whether the lie was under oath in a judicial proceedings, whether it was about a significant matter, the passage of time and whether there had been any intervening credibility determinations, the motive for the lie and whether there was a similar motive in the current case, whether the witness had an explanation for the lie, and whether that explanation was plausible.

That said, the court also concluded that the error was harmless and affirmed the conviction.


Friday, May 13, 2011

Summary Summary

Another crop of three:

In United States v. Reed, No. 09-2093-cr (2d Cir. May 5, 2011), the court vacated special conditions of supervised release requiring the defendant to participate in drug and alcohol treatment. He committed the offense of conviction while in prison, without access to drugs or alcohol, and there was no evidence that alcohol or drugs had any relation to its commission.

In United States v. Cedeno, No. 09-1857-cr (2d Cir. May 2, 2011), the district court erroneously charged the jury that, in prosecution under 18 U.S.C. § 924(c), "as a matter of law, a gun is a firearm." Not all guns are firearms "because, for instance, a BB gun is not a 'firearm.'" But, here, the error was harmless.

In United States v. Stroman, No. 10-0962-cr (2d Cir. April 26, 2011), the court considered whether a police officer conducted an "interrogation" of the defendant, for Miranda purposes, by telling him not to speak then showing him video surveillance footage. The court noted that this conduct "raises concerns that the police may be able to sidestep Miranda's safeguards" but did not conclusively rule on whether there was a Miranda violation, instead holding that any error in admitting the defendant's statements was harmless.

Beating Disorder

United States v. Wells, No. 10-1266-cr (2d Cir. April 28, 2011) (Kearse, Sack, Katzmann, CJJ)

The defendants here, Wells and Rhodes, both former prison guards, were convicted of covering up the beating of a prisoner at the Queen Private Correctional Facility (“QPCF”). The episode began when the prisoner commented on the appearance of a female guard in Wells’ presence. Wells beat the prisoner, and the beating was witnessed by Rhodes and three other guards. The QPCF immediately began an internal investigation, and the witnesses, at Wells’ urging, filed false reports. Later, Wells and Rhodes were interviewed by an agent of the Office of the Inspector General and lied to her about what happened.

After a jury trial, Wells was convicted of five offenses relating to obstruction of justice, witness tampering and the making of a false statement. Rhodes was convicted of obstruction of justice and making a false statement.

On appeal, they challenged their convictions for obstruction of justice under 18 U.S.C. § 1519, which requires proof of conduct “intended to obstruct the investigation or proper administration of a matter within the jurisdiction of a federal agency.” The circuit affirmed.

The defendants first claimed that the government failed to prove a sufficient “nexus” between their conduct and an official proceeding, as required under some obstruction statutes. But § 1519 makes clear that no such nexus need be proven. All the statute requires is proof of an “intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.”

The court also rejected the argument that the statute did not apply because the defendants were employed by the private company that operated the QPCF. The QPCF was under contract with the U.S. Marshals Service, an agency within the Department of Justice, to house federal prisoners. And the DOJ has jurisdiction and authority to investigate allegations against correction officers at both publicly and privately run prisons.

Finally, the court rejected the claim that there was no evidence that the defendants knew that their statements would be submitted to the DOJ. Knowledge of a pending federal investigation or proceeding is not an element of the offense.


Stalking Points

United States v. Curley, No. 09-3314-cr (2d Cir. April 25, 2011) (Jacobs, Wesley, Chin, CJJ)

In this circuit, it is a fairly rare occurrence for a conviction to be vacated based on a Rule 404(b) error. But here, James Curley, convicted of interstate stalking offenses, will get a second bite at the apple.


In 2006, Curley’s marriage to his wife, Linda, dissolved, and his behavior became increasingly bizarre. After serving her with divorce papers, he began following her, and recruiting family members to do so, as well. Linda obtained custody of their children and an order of protection. Curley did not take this all too seriously, however, since then secretly installed a GPS device on her car - a friend tracked her movements on the internet and forwarded the information back to Curley. Linda only found out about it when she had an automobile accident in New Jersey and a mechanic discovered the GPS device. This prompted Curley to drive from New York to the shop, where he lied about his identity and reasons for the visit.

In 2008, he was charged with two counts of interstate stalking and one count of interstate violation of a protective order. At trial, the district court admitted the following evidence under Rule 404(b): four incidents in which Curley was violent to Linda; (2) an incident some sixteen years earlier in which Curley’s brother, Michael, beat her and Curley told her not to report it to the police; an incident a few years later in which Michael was arrested for resisting arrest and, under pressure from Curley and Michael, Linda testified falsely at two subsequent trials; evidence relating to a 2008 traffic stop of Curley, in which he was allegedly driving a stolen rental car from which three rifles, ammunition, a bulletproof vest and ski mask, and a “last will and testament” were recovered.

As the trial unfolded, Linda testified about Curley’s prior violence and the incidents with Michael, including the forced perjury, but the district judge did not give a limiting instruction. Before the traffic stop evidence, however, the court instructed that the evidence was being offered for the “very specific purpose” of determining Curley’s “intent back at the time of the” offense. In its final charge, the court told the jury that the traffic stop evidence could be considered only on the issue of Curley’s intent, while the other evidence went only to Linda’s “reasonable fear.”

The jury convicted Curley, and he was sentenced to an above-Guideline term of sixty-three months’ imprisonment.

The Circuit’s Decision

The circuit analyzed the 404(b) evidence in three groups - Curley’s violence towards Linda; everything to do with Michael; and the traffic stop evidence. It found an abuse of discretion with respect to the latter two groups.

1. Curley’s Violence Towards Linda

First, the court found that the district court did not err in admitting Curley’s past abuse of Linda. Some of that abuse was so close in time to the charged conduct that it was “inextricably intertwined” with it, and hence “directly relevant” to Curley's intent and Linda's fear.

The abuse that occurred in earlier years was “also relevant and not unfairly prejudicial.” When a defendant is charged with domestic violence, a “history of domestic violence is relevant to show intent to harass or intimidate.” And the temporal remoteness did not preclude a finding of relevancy, since the acts collectively demonstrated a “pattern of activity that continued up to the time of the charged conduct.”

2. Linda’s Interactions with Michael

The district court erred, however, in permitting Linda to testify that Michael beat her and pressured her to lie about his resisting arrest case. This evidence was not sufficiently similar to the charged crimes to allow the jury to reasonably infer Linda’s fear, particularly since Curly was not charged with conspiring with his brother to harass or intimidate Linda. Moreover, Michael’s activities did not “parallel” Curley’s, since he was not involved in any of the charged conduct. This evidence accordingly had little probative value - one episode occurred sixteen years before the charged crimes and the other twelve - and posed a “high risk” that “evidence of Michael’s conduct would unfairly prejudice Curley.” It had no “real purpose other than to show that Michael - and not Curley - had a bad character” and thus improperly focus the jury on Curley’s “clan,” rather than on the allegations in the indictment.

Nor was the prejudice mitigated by the limiting instruction. The instruction was “not sufficient, given the low probative value of the evidence and the high risk of prejudicial effect.” The impact of the limiting instruction was also blunted by its poor timing; it came only at the end of the case - there was no contemporaneous instruction.

3. Curley’s 2008 Traffic Stop

The district court also erred in admitting evidence of the traffic stop. This evidence was admitted to show Curley’s intent and Linda’s fear, although the stop occurred some fourteen months after the charged conduct. While subsequent acts can be admitted under Rule 404(b), the temporal difference may impact the probative value of the evidence. Here, there was insufficient similarity between the traffic stop and the charged crimes. Indeed, there was no evidence that Curley’s activities on the day of the traffic stop were “related to or direced at” Linda at all. Relating the traffic stop to Linda required a “tenuous and unduly long chain of inferences without any further evidentiary guidance.” The risk of prejudice was also very high because the evidence was “significantly more sensational and disturbing than the charged crimes.” The circuit was particularly concerned about the “introduction of guns into the trial.” This was “especially troubling because it tended to show Curley was more violent and disturbed than he appeared from the other evidence.”

Here, as well, the court also found that the limiting instructions were not a cure. There was an “overwhelming probability that the jury” would be “unable to follow the court’s instructions” and the evidence was “devastating to the defense," since its primary effect was to show Curley’s “bad character” and “incite the jury.”

4. Harmless Error

The court also held that the erroneous admission of the Rule 404(b) evidence affected the outcome. “The record does not provide us with fair assurance that the erroneously admitted evidence ... did not substantially sway the jury.” The court’s reasoning is unsatisfyingly sparse, however - it simply repeats its prior holding that the 404(b) evidence was prejudicial, and notes that the government relied on it in summation.