Archive | Confrontation Clause

Thursday, September 22nd, 2016

net-meme

In today’s United States v. Harris, the Second Circuit (Newman, Calabresi, Raggi) decided two things with respect to supervised release.

First, “18 U.S.C. § 3583(e) does not preclude revocation of supervised release on the basis of conduct that earlier prompted a modification of supervision conditions.”  Here, the district court first modified Harris’s terms of supervision — based on his being arrested for allegedly selling drugs — and later revoked supervision when that suspected violation was confirmed by two police officers credibly testifying to witnessing the drug sale.

Second, Federal Rule of Criminal Procedure 32.1(b)(2)(c) does not preclude revocation of supervised release on the basis of hearsay if (1) there is good reason to proffer hearsay and (2) the hearsay is sufficiently reliable.  Here, a witness who claimed Harris punched her “professed fear of retaliation” if she testified against him, which the Court deemed good reason to excuse her …


Posted By
Categories: Confrontation Clause, supervised release

Continue Reading
Sunday, March 20th, 2011

Meet The Press

United States v. Treacy, No. 09-3939-cr (2d Cir. March 9, 2011) (McLaughlin, Hall, CJJ, Restani, JCIT)

James J. Treacy, former COO and President of the parent company of Monster.com, was convicted of securities fraud and related offenses based on a scheme in which he backdated stock options. On appeal, the circuit held that the district court violated Treacy’s confrontation rights by restricting his cross-examination of a Wall Street Journal reporter who had written an article about the backdating of options at Monster that seemingly contained false exculpatory statements made by Treacy, but that the error was harmless. The court also found that the district court improperly calculated the forfeiture amount with respect to one of the options grants.

The Confrontation Issue

At trial, the government introduced into evidence a WSJ article that opined that the odds were one in nine million that a pattern of options grants as favorable or …


Posted By
Categories: Confrontation Clause, forfeiture, Uncategorized

Continue Reading
Saturday, June 20th, 2009

Gray’s Anatomy

United States v. Jass, No. 06-4899-cr (2d Cir. June 16, 2009) (Walker, Cabranes, Raggi, CJJ)

Marian Jass was jointly tried with her much older boyfriend, Kenneth Leight, on charges that they sexually exploited Leight’s daughter and one of her friends. Leight, but not Jass, was also charged with several child pornography counts, based on materials found in his home. The evidence of sexual exploitation consisted mainly of the testimony of the two girls. The government also relied on an agent’s testimony that Leight gave a detailed oral, unsigned and unacknowledged, confession about the episode involving the daughter’s friend. The statement, which incriminated Jass and referred to her seven times, was admitted over her objection after being redacted to substitute the phrase “another person” for each reference to her name. Leight did not testify and could not be cross-examined about the statement attributed to him. The court instructed the jury that …


Posted By
Categories: bruton, Confrontation Clause, sex offenses, Uncategorized

Continue Reading
Thursday, November 20th, 2008

Confrontational

United States v. Figueroa, No. 06-1595-cr (2d Cir. November 18, 2008) (Kearse, Sack, Hall, CJJ)

In an interesting companion to Brinson v. Walker [blogged below under the title “Confrontation Claws”], the court treated a highly similar issue, this time under both the Confrontation Clause and the federal rules of evidence.

At Edwin Figueroa’s gun possession trial, he wanted to cross-examine a government witness about the fact that the witness had swastikas tattooed on his body. Since Figueroa was a member of a minority group, he argued that the tattoos would show that the witness was biased. Citing Rule 608, the district court precluded the questioning as inadmissible evidence of “bad character.”

On appeal, the circuit disagreed, holding that precluding the cross-examination violated the Confrontation Clause. “Inasmuch as the tattoos suggested that [the witness] harbored animus against racial or ethnic minority groups and their members, they were relevant to and probative …


Posted By
Categories: bias, Confrontation Clause, Uncategorized

Continue Reading
Friday, November 14th, 2008

Confrontation Claws

Brinson v. Walker, No. 06-0618-cr (2d Cir. November 13, 2008) (Kearse, Leval, Sack, CJJ)

In this state prisoner’s habeas corpus case, the circuit affirmed the grant of the writ because the state court’s refusal to permit the defense to cross-examine a supposed robbery victim about his racial bias violated the confrontation clause.

Brinson, the petitioner, testified at trial that this was not a robbery, but rather a small – ten-dollar – marijuana sale that had gone bad. He had hoped to raise a defense that the witness’ robbery accusation was false, and was motivated by a racial hatred of African-Americans. Defense counsel had a compelling offer of proof: first, he indicated that the witness had refused to serve African-Americans when he worked as a waiter, and that he was prepared to call the victim’s supervisor if the witness denied it. In addition, an acquaintance of the witness was prepared to …


Posted By
Categories: bias, Confrontation Clause, Uncategorized

Continue Reading
Wednesday, October 24th, 2007

BYE-BYE, BRUTON?

United States v. Williams, No. 05-6036-cr (2d Cir. October 23, 2007) (Newman, Walker, Straub, CJJ).

In this curious but very troubling case, the court seems to have concluded, sub silentio, that Crawford trumps Bruton.

Brothers Bobby and Michael Williams were tried for a drug-related triple homicide. Neither brother testified. At trial, over objection, the court permitted two civilian witnesses to testify that, after the shootings, Bobby made statements to them admitting his involvement in the shootings. Some of those statements implicated Michael. On appeal, Michael argued that the admission of Bobby’s statements violated the Confrontation Clause and Fed.R.Evid. 804(b)(3).

Obviously, Michael’s Confrontation Clause claim raises Bruton issues; indeed, this is the classic Bruton situation – the out-of-court statement of one defendant is used against a co-defendant. But here, the court never even got to Bruton. It held that Bobby’s out of court remarks were not “testimonial” under Crawford, and thus …


Posted By
Categories: bruton, co-defendant, Confrontation Clause, Crawford, Uncategorized

Continue Reading
Friday, September 28th, 2007

Crawford’s Eleven

United States v. Becker, Docket No. 06-1274-cr (2d Cir. September 13, 2007) (Calabresi, Parker, Wesley, CJJ)

At Becker’s stock fraud trial, the government introduced into evidence the plea allocutions of eleven (yes, eleven) of his co-defendants, supposedly for the “limited purpose” of establishing that the conspiracy charged in the indictment existed. The Circuit concluded that this was a Confrontation Clause violation under Crawford and, for the first time, found that such a violation was not harmless.

The court rejected the government’s claim that the district court’s limiting instructions cured the error, finding that the sheer number of allocutions and their repetitive nature suggested that the conspiracy was widespread, “making it plausible for the jury to assume that Becker was a participant simply by association with” the other conspirators, despite the instructions. In addition, the content of the allocutions was “far reaching and detailed” and significantly undermined Becker’s defense that his …


Posted By
Categories: 2255, Confrontation Clause, Crawford, harmless error, law of the case, plea allocution, Sixth Amendment, Teague, Uncategorized

Continue Reading