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Archive | Crawford

Tuesday, March 27th, 2018

Confrontation Clause Error in Summary Opinion

Yesterday the Circuit engaged in a bit of harmless error in describing the relationship between the Confrontation Clause and the business records exception to the hearsay rule, Fed. R. Evid. 803(6). The mistake in United States v. Grecco, No. 16-3112 (2d Cir. 2008) (Jacobs, Wesley, Korman (EDNY)), available here, is worth flagging because it has the potential to create problems in future cases.

The appeal in Grecco raised the question of whether the admission of an autopsy report violated the Confrontation Clause because the report was “testimonial” in nature. The panel held that any error in admitting the report was harmless, and thus declined to address this question. The panel repeatedly framed the question, however, as “whether the autopsy report was testimonial in nature, or a business record that is therefore not subject to Confrontation Clause requirements.” Sum. op. at 3.

This framing misstates the law. At one …

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Saturday, April 10th, 2010

The Heavy Burdens

United States v. Burden, No. 03-1727-cr (2d Cir. March 31, 2010) (Hall, Livingston, Gibson, CJJ)

From 1997 to 2001, Kelvin Burden, ran a crack cocaine ring in Norwalk, Connecticut, with the help of several of his brothers, two of whom were named David, and a few of his friends. The gang’s activities grew increasingly violent. Throughout 1998 and 1999 there were fatal encounters with members of a rival gang, the Hill Crew; also, in 1999, Burden gang members shot at two of their own, killing one and leaving the other a paraplegic.

The defendants were convicted of racketeering, drug charges and multiple VCAR counts, and received sentences ranging from eighty-eight months to life.

Their principal arguments on appeal were that the evidence was insufficient to establish that the Burden gang was an “enterprise” and that its activities constituted a “pattern.” The circuit affirmed.

First, the defendants asserted that the evidence …

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Categories: Crawford, enterprise, pattern, racketeering, RICO, Uncategorized

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Saturday, December 6th, 2008

Hire Today, Gone Tomorrow

United States v. Lee, No. 05-1684-cr (2d Cir. December 3, 2008) (Straub, Hall, CJJ, Haight, DJ)

Here, a divided panel found that a Crawford error required a new trial for two defendants convicted in a murder-for-hire conspiracy, although the evidence was legally sufficient.

Background

Defendant Williams was the head of a crack-cocaine ring operating in the Bronx. Defendant Lee was one of his dealers. The target of the conspiracy was Kawaine Ellis, who stabbed Lee in the chest in June of 2001. In November of 2001, Williams rented three cars at Newark Airport. Lee was pulled over while driving one of them, and was carrying a gun, which he told the police he had for “protection.” Around that same time, Williams spoke to another member of his crew, Jason Lawton, and told him to return a gun to Williams because Lee had “just got bit,” meaning that he had been …

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Sunday, October 19th, 2008

Expert Tease

United States v. Mejia, No. 05-2856-cr (2d Cir. October 6, 2008) (Jacobs, Parker, Hall, CJJ)

Here, the improper admission of “officer expert” testimony resulted in a new trial.

Background

The defendants were convicted of participating in two drive-by shootings in connection with their membership in the MS-13 gang. One defendant was sentenced to sixty-three years’ imprisonment, the other to sixty.

A significant portion of the evidence against them, however, came from a New York State Police investigator who testified about the structure and organization of MS-13, as well as its “methods and activities, modes of communication and slang.” It turned out however, the officer’s sources for much of this information were suspect, including reports from other law enforcement officers, custodial statements from other gang members, internet research, and wiretaps that he listened to.

The Court’s Ruling

The court of appeals reversed, finding that much of the officer’s testimony was improper.…

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Saturday, September 6th, 2008

The Three Racketeers

United States v. Riggi, No. 06-1280-cr (2d Cir. September 4, 2008) (Jacobs, Calabresi, Sack, CJJ)

Defendants Vitabile, Abramo and Schifilliti were all long-time members of the Decavalcante crime family. Vitabile was consignliere for thirty-five years, Abramo had been a captain since the late 1980’s and Schifilliti had held that same title since 1991. They were also part of the family’s administration. After a three-week trial, a jury convicted them of racketeering and racketeering conspiracy – comprising ten predicate acts – and five substantive counts. Included in the mix were several murder conspiracies, extortion, loansharking and securities fraud.

At trial, to bolster the testimony of its cooperating witnesses and augment some otherwise underwhelming recordings, the government introduced into evidence the plea allocutions of eight non-testifying co-defendants. On appeal, the circuit agreed that this violated Crawford and that the violation amounted to plain error. It vacated the convictions and remanded for a …

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Saturday, April 12th, 2008

For Your Consideration

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 …

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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 …

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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 …

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

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