Yesterday, in a headline-making white collar case, United States v. Litvak, No. 17-1464 (2d Cir. 2018) (Winter, Chin, Korman (EDNY)), the Circuit reversed an insider trading conviction on Rule 401 and 403 grounds. In very general terms, the Circuit ruled that the district court erroneously admitted testimony of a witness’s subjective belief as to a bond trader defendant’s fiduciary responsibilities with respect to a trade, even though the belief was unreasonable and thus irrelevant to whether the defendant made a material misstatement. Time permitting, we will blog about the case in the coming weeks. In the meantime, the opinion is available here.…
Rodriguez was convicted by a jury of charges of racketeering conspiracy and conspiracy to distribute narcotics. He argued on appeal that the district court erred by disallowing certain cross-examination of a key prosecution witness, and that the district court committed various procedural errors at sentencing. The Court affirmed.
Before trial, the government moved to preclude the defense from cross-examining a key government witness at trial about certain sexual offenses he had committed. Defense counsel argued that the evidence bore upon the witness’s credibility but the district court excluded it under Fed. R. Evid. 403.
The Circuit held that the district court had properly balanced the relevant factors under Rule 403 and had noted that the witness disclosed his sexual misconduct to the government, which undermined the defense’s argument that his sexual …
United States v. Scott, No. 10-3978-cr (2d Cir. April 6, 2012) (Pooler, Parker, CJJ)
In 2009, two NYPD detectives arrested defendant Scott after witnessing him engage in what they said was a hand-to-hand drug sale. At trial, the district court permitted the detectives to testify, over objection, that they had seen Scott several times before, and had spoken to him several times, for as long as twenty minutes. The circuit, finding that this evidence violated both Rule 404(b) and Rule 403, vacated the judgment and remanded the case for a new trial.
The circuit first concluded that the evidence was indeed Rule 404(b) evidence, and not something else. Rule 404(b) covers other “acts,” not other “bad acts,” and here, the detectives’ description of their prior contacts with Scott clearly would bear adversely on the jury’s assessment of his character. The court distinguished this case from those where the evidence was …
United States v. Mercado, No. 08-1017-cr (2d Cir. July 17, 2009) (Calabresi, Wesley, CJJ, Droney, DJ)
In this split decision, the court upheld the admission of Rule 404(b) evidence – prior firearms sales – on the issue of intent in a drug conspiracy trial. The majority did not delve too deeply into the facts; instead, it rather formulaically noted that the prior transactions showed how the relationship of trust between the defendant and his co-conspirator developed, and rebutted the defendant’s argument that his actions were the innocent acts of a friend. The court also found no error in the district court’s Rule 403 balancing.
Judge Droney dissented, giving a much more complete picture of the facts of the case. The charged conduct involved the defendant, Townsend, and his friends, Jones – a cooperating witness – and Winfree. On the day he was arrested, Townsend drove them on some errands, one …
United States v. Massino, No. 07-1618-cr (2d Cir. October 10, 2008) (Hall, Livingston, CJJ, McMahon, DJ) (per curiam)
Patrick DeFilippo was convicted of racketeering and other offenses in connection with his involvement with the Bonnano crime family, and the district court sentenced him to forty years’ imprisonment. He challenged two evidentiary rulings, albeit without success.
1. Mobsters are Always “Guilty as Charged”
During a recorded conversation between a Bonnano cooperating witness and DeFilippo’s co-defendant, the cooperator remarked that the feds usually charged mobsters with “nine thousand six hundred and eight-four other charges.” At trial, the government asked the cooperator why he had said this and he replied “to win their confidence.” Not satisfied with this answer, however, the prosecutor went back to the subject twice more, asking him whether he knew of anyone involved in organized crime who had ever “been charged with a crime that they were not guilty …
United States v. Al-Moyad, No. 05-4186-cr (2d Cir. October 2, 2008) (McLaughlin, Parker, Wesley, CJJ)
Defendants Al-Moayad and Zayed were convicted in front of Judge Johnson of conspiring to provide material support to Hamas and Al-Qaeda, designated terrorist organizations. Al-Moayad was also convicted of related substantive offenses. He was sentenced to seventy-five years in prison, while Zayed was sentenced to forty-five years.
The defendants asserted that they were entrapped. Their trial, however, was marred by a string of spectacularly unfair evidentiary rulings that gravely undermined their defense. The court of appeal remanded the case for a new trial before a different judge.
This case arose through the efforts of a confidential informant named Al-Anssi. In November of 2001, Al-Anssi approached the government and offered to furnish – for money – information regarding terrorism. Among ththe possible targets he mentioned was Al-Moayad, whom Al-Anssi described as the imam of a …
Categories: cumulative impact, hearsay, prior consistent statements, Rule 403, Uncategorized