United States v. Hardwick, No. 04-1369-cr (2d Cir. April 11, 2008) (Winter, Walker, Sotomayor, CJJ)
Glen Hardwick was convicted after a jury trial of conspiracy to commit and aiding/abetting murder-for-hire in violation of 18 U.S.C. § 1958. Virtually all of the evidence of the “consideration” element of the offense came from the plea allocution of Hardwick’s brother, which was admitted into evidence over objection, although not a Confrontation Clause objection. The appellate court held that this Sixth Amendment violation was plain error, but that there was legally sufficient evidence on this element. It accordingly did not reverse the conviction; it vacated and remanded for a new trial.
Facts: Most of the action here involved Glenn Hardwick’s brother, Stacey, who had an ongoing drug and gun trafficking relationship with an undercover police officer. At one point, Stacey contacted the UC and asked him to kill someone who had pulled a gun on Glen. The UC of, course, agreed, and there followed a lot of back-and-forth about the terms of the deal. The UC, who had said that he used a gun only once when he did a hit, then would discard it, asked Stacey to supply the gun for this murder. He also asked for a second gun as “payment.” Stacey balked at this; he only wanted to give the UC one gun, although Stacey offered to sell him a second.
Eventually, the UC met with Stacey and Glen, but the brothers had brought only one gun – the one the UC was supposed to use for the job. Shortly after handing the gun over to the UC, the brothers were arrested.
Stacey pled guilty, and in his allocution admitted that there was consideration for the contemplated murder: “The payment for the intended murder was a .32 caliber pistol.” The government admitted this allocution into evidence at trial – which took place before Crawford was decided – subject to a limiting instruction that told the jury that it was free use it as evidence of Stacey’s activities, but could not infer from it that Glen was a member of the conspiracy. In its summation, the government relied on the allocution as proof of the consideration element, and during deliberations the jury had it read back.
The Confrontation Violation: On appeal, the government conceded that the admission of the allocution was error. The circuit agreed and, after a confusing and inconclusive discussion (much of which is relegated to end notes, just to make it as painful as possible) of whether ordinary plain error review or “modified” plain error review should apply, held that it was plain error under either standard.
The error was “plain” because at the time of “appellate consideration” there was an obvious Crawford violation. In addition, the admission of the allocution affected Glen’s substantial rights “because it almost surely influenced the jury’s verdict.” The evidence on the consideration element was very close, and turned entirely on Stacey’s state of mind. But the district court’s limiting instruction expressly permitted the jury to use it for that purpose, and the circuit concluded that the jury must have, in light of the government’s use of it in summation, and the readback.
The Sufficiency of the Evidence: The court went on to hold that the evidence was legally sufficient on the consideration element, however. Giving a hit man a gun as payment for his work satisfies § 1958, and Stacey’s allocution clearly indicated that this was his plan. In another confusing and inconclusive discussion of an important issue, again much of which is – maddeningly – relegated to end notes, the court went on to hold that appellate sufficiency review includes the consideration of “improperly admitted evidence.” As for those Second Circuit cases that have excluded improperly admitted evidence from sufficiency review, they did so “sub silencio,” and hence are not “binding precedent.”
Comment: This should have been the end of the story, but it is not. What follows will blow your mind. Judge Winter, writing alone – “my colleagues do not join me in the discussion” – takes it upon himself to “inform the parties of [his] views on the sufficiency issue absent the plea allocution.” His elaborate and completely unconvincing justification for this extraordinary step is – you guessed it – consigned to an end note that it itself spans two pages of text. In the opinion itself, he covers nearly four pages explaining to the government how it should retry the case, mapping out “at least one scenario [that] might reasonably be found by a jury to be sufficient to meet Section 1958’s consideration requirement.”
No wonder the rest of the panel passed on this. This was a completely inappropriate thing to do. The case already has at least two prosecutors assigned to it. It does not need a third. It also seems extremely short-sighted, given the problems it is likely to cause down the road. Glen might well be retried and reconvicted, and will surely make a sufficiency argument on his second appeal. What on earth will that panel do with this part of the opinion when that happens?