Archive | harmless error

Thursday, August 22nd, 2019

Second Circuit Grants Habeas Relief in State Murder Case Based on Right to Present a Complete Defense

In Scrimo v. Lee, No. 17-3434 (2d Cir. Aug. 20, 2019), the Second Circuit ordered the grant of a writ of habeas corpus, undoing the defendant’s 2002 second-degree murder conviction.

Defendant Paul Scrimo was convicted of second-degree murder following trial in New York state court and sentenced to 25 years to life. Briefly, the defendant was charged with strangling a woman in her apartment early in the morning, after drinking with her and a man named John Kane at various bars. The chief evidence against the defendant was the testimony of John Kane. Kane admitted that he was with the victim and the defendant on the night of the murder, and in the victim’s apartment during the crime. Kane claimed that he saw the defendant strangle the victim after she insulted him.

There was little to corroborate Kane’s account of the murder and, in fact, other evidence pointed to …

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Categories: cumulative impact, evidence, harmless error, right to present a defense; Rule 403, state

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Tuesday, May 15th, 2018

Judge Woods Grants New Trial Due to Jencks Act Violation

The Supreme Court issued a number of significant opinions yesterday, but it is worth highlighting an important district court decision that might otherwise escape notice. This month, Southern District Judge Gregory Woods issued an opinion and order granting a new trial based on the government’s inadvertent failure to provide Jencks Act material—specifically the notes of proffer sessions with a key cooperating witness. Judge Woods’s opinion in United States v. Russell, No. 16-cr-396 (May 4, 2018), DE 618, is available here.

Mr. Russell was the sole person who went to trial among twenty-one defendants who were indicted in a cocaine distribution conspiracy. The government’s principal witness at the trial, Kenneth Ashe, testified pursuant to a cooperation agreement. After a short trial, involving only five witnesses and two days of testimony, Mr. Russell was convicted of conspiracy to sell crack cocaine and a 924(c) charge. Mr. Ashe’s testimony was …

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Categories: 3500 Material, harmless error

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Tuesday, September 26th, 2017

Second Circuit Reverses Skelos Convictions

In a relatively lengthy summary order, the Second Circuit reversed Dean and Adam Skelos’s convictions in light of the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016). The order is available here.

Dean Skelos and his son were convicted under the Hobbs Act and the honest services and federal bribery statutes. Each of their charged offenses included the performance of an “official act” as an element. The district court’s jury instructions provided that an “official act” does “not need to be specifically described in any law, rule, or job description, but may also include acts customarily performed by a public official with a particular position.” Sum. Order at 3. Consistent with this definition, a government witness testified that the “official duties” of a state senator included “assist[ing] individuals or companies in getting meetings with state agencies.” Id. at 11. Subsequent to trial, the …

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Categories: bribery, harmless error, Hobbs Act, honest services fraud

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Wednesday, June 7th, 2017

“Toxic” Hearsay Warrants New Trial

In an opinion yesterday, the Second Circuit (Jacobs, Pooler, Hall) ordered a retrial of Armani Cummings based on the admission of non-harmless hearsay.

Cummings was charged with killing two people in the course of committing drug crimes.  A government witness testified, in essence: “Someone told me Cummings threatened to kill me.”  The Court explained that this was not an admissible statement by Cummings (the party opponent) but, rather, was double hearsay from a third party “someone” and thus inadmissible.

The error of admitting the statement, the Court further held, was not harmless: “The hearsay was especially toxic because it created a grave risk that the jury would use it as evidence of Cummings’s murderous propensity” and thus convict him for being a “bad man” rather than for committing the two alleged murders.

Of particular note, the Court ordered a retrial even though (1) the jury heard evidence that Cummings …

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Categories: harmless error, hearsay

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Categories: harmless error, hearsay

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Thursday, December 15th, 2016

Good News and Bad News for a Defendant Sentenced under a Rule 11(c)(1)(C) Plea Agreement Who Subsequently Moved for a Sentence Reduction under 18 U.S.C. §3582(c)(2)

In United States v. Jamahl Leonard, No. 15-2232-cr (Dec. 14,  2016) (Circuit Judges: Raggi, Chin, Droney), the Circuit, in a published opinion, vacates a district court’s ruling that the defendant is ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and remands for further proceedings. But it also holds that the defendant cannot receive a sentence reduction to the extent he was seeking.

At the initial sentencing, the district court determined that the Guidelines range was 121 to 151 months. But the court sentenced Leonard under a plea agreement pursuant to  Fed.R.Crim.P.11(c)(1)(C) using an agreed-upon range of 97 to 121 months. Under Rule 11(c)(1)(C), the parties agree to a particular sentencing range (Fed.R.Crim.P.11(c)(1)(C)), but if the sentencing court rejects the agreement, it must “give the defendant an opportunity to withdraw the plea.” Fed.R.Crim.P.11(c)(5)(B).  Applying the range of the 11(c)(1)(C) agreement, the district court imposed a sentence of 114 …

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Categories: 3582(c)(2), harmless error

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Sunday, October 14th, 2012

Bad Sport

United States v. Mason, No. 11-544 (2d Cir. September 4, 2012, (Walker, Pooler, Livingston, CJJ)

In this part of the country, the “lawful sporting purposes” provision of U.S.S.G. § 2K2.1(b)(2) and Application Note 6 – a downward adjustment that the defendant bears the burden of proving – is rarely invoked. Indeed, this decision is only the Circuit’s second look at it.  Here, the court concludes that the district court misapplied the provision, but that the error was harmless.

Rodney Mason, resident of Vermont, pled guilty to being a felon in possession. He had four firearms and, in connection with his sentencing hearing, introduced some evidence that, at least for three of them, he kept the guns for hunting purposes. The district court nevertheless refused to apply the enhancement, finding that Mason had not shown that he actually used the guns for hunting.  This was error because the focus of …

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Categories: harmless error, lawful sporting purposes, Uncategorized

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Sunday, August 14th, 2011

What’s In A “Same”?

United States v. Feldman, No. 10-2275-CR (2d Cir. August 1, 2011) (McLaughlin, Pooler, Sack, CJJ)

Defendant Feldman sought appellate review of four sentencing enhancements. The government argued that the court should not review them because the district court had indicated that it would impose “the same sentence” even without some of the errors. The circuit rejected this argument, reviewed the claims, found no error, and affirmed.


The facts of the case are particularly unpleasant. Feldman was a psychiatrist who, in the 1990’s, operated mental health facilities in Florida. These facilities proved to be Medicare/Medicaid fraud mills and, just as Feldman was negotiating a plea agreement, he fled to the Philippines.

There, he set up an even more egregious scheme. Through a website called, he fraudulently offered kidney and liver transplants in the Philippines. Desperate patients and their families wired him tens of thousands of dollars and traveled to …

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Categories: harmless error, Uncategorized

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Saturday, August 14th, 2010

A Bad Call

United States v. Gomez, No. 08-3829-cr (2d Cir. August 4, 2010) (Leval, Pooler, Parker, CJJ)

Here, the improper admission of indirect hearsay resulted in a new trial.


Fred Rivas and a confederate sold 5,000 Ecstacy pills to a confidential informant. They were arrested, and Rivas agreed to cooperate. A New York City detective, Michael Ryan, was permitted to testify about the nature of Rivas’ cooperation; specifically, Ryan testified that he asked Rivas to “call the person who had given him that 5,000 pills,” and that Ryan then dialed Gomez’ number from Rivas’ phone and recorded their conversation. The district court denied Gomez’ hearsay objection to this testimony, and the government ended up using it in summation to directly implicate Gomez as the supplier.

The Circuit’s Decision

The court found that Ryan’s testimony constituted prejudicial hearsay, and rejected with unusually strong language the government’s claim that it admitted the testimony …

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Categories: harmless error, hearsay, Uncategorized

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Wednesday, July 7th, 2010

A Study In Contradictions

United States v. Ramirez, No. 07-2912-cr (Calabresi, Cabranes, Parker, CJJ) (2d Cir. June 29, 2010)

In this case, the circuit found that the district court erred in applying the “impeachment by contradiction” doctrine. But since the error was harmless, it affirmed.


At his drug conspiracy trial, defendant Jose Luis Rodriguez testified that he was not knowingly involved in the drug trafficking of which he was accused. He claimed that he was merely the driver for Jose Adames, the group’s ringleader, and never saw or knew of any cocaine on their trips. Rodriguez testified that he served as Adames’ chauffeur until late 2004, when he received a warning that Adames was involved with drugs, at which time he stopped driving for him.

To rebut this, the government called a police officer who testified that he saw Rodriguez handle cocaine during an unrelated traffic stop after the charged conspiracy had ended. …

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Categories: harmless error, impeachment, rebuttal, Rule 608, Uncategorized

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Monday, May 31st, 2010

Something Barrow-ed

United States v. Oluwanisola, No. 08-4442-cr (2d Cir. May 21, 2010)(Leval, Pooler, Parker, CJJ)

Taking a case to trial after the client has proffered is a difficult thing to do. Most proffer agreements have a clause permitting the government to introduce the defendant’s proffer statements to rebut evidence offered or elicited, or factual assertions made by, the defense. In United States v. Barrow, 400 F.3d 109 (2d Cir. 2005), the court held that such rebuttal clauses apply to all factual assertions, including those made in counsel’s arguments and cross-examination, but are not triggered by arguments that challenge the sufficiency of the evidence. Here, having found that the district court misapplied Barrow at Oluwanisola’s heroin trafficking trial, the court vacated the judgment and remanded the case for a new trial.

The appellate court identified several problems with the district judge’s approach. First, the judge ruled that arguing that specific elements of …

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Categories: harmless error, proffer agreements, right to counsel, 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.


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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Categories: Crawford, harmless error, sufficiency, Uncategorized

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