Archive | harmless error

Saturday, October 6th, 2007

Et Tu, Brute – NOT!

United States v. Brutus, Docket No. 06-2710-cr (2d Cir. October 2, 2007) (Jacobs, Walker, Calabresi, CJJ)

Waline Brutus testified at her drug importation trial. During the charge, Judge Glasser instructed the jury, in relevant part, that she had a “deep personal interest in the outcome of the case” that “creates a motive to testify falsely.”

Following in the footsteps of its recent decision in United States v. Gaines, 457 F.3d 238 (2d Cir. 2006), the court held that this instruction was error. This case is significant because there had been a tension between Gaines and United States v. Tolkow, 532 F.2d 853 (2d Cir. 1976), which upheld very similar language. Here, the court very neatly cuts through the confusion and overrules Tolkow, creating a “prophylactic rule” that any “instruction that the defendant’s interest in the outcome of the case creates a motive to testify falsely impermissibly undermines the presumption of …


Posted By
Categories: charge, defendant’s credibility, harmless error, presumption of innocence, 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