United States v. Rodriguez et al., Docket No. 03-1639 (2d Cir. Oct. 3, 2005) (Calabresi, Pooler, Parker): How does that line go — “Oh what a tangled web we weave, when we first practice to deceive”? Here, the defendants’ “practice to deceive” — a rather inspired scheme to rip off a drug dealer (who turned out to be an actual, undercover DEA agent posing as a drug dealer) by pretending to be DEA agents themselves — led not only to a tangled web, but also to a federal indictment for conspiracy to commit a Hobbs Act robbery. The defense at trial was that although the defendants conspired to take drugs from the (fake) drug dealer by trickery (i.e., the ruse of being DEA agents “confiscating” the dealer’s drugs), they did not conspire to take the drugs by force (an essential element of the Hobbs Act robbery charge).
All 4 defendants were convicted at trial, and 3 complained on appeal that the trial court’s admission of a post-arrest statement by the 4th defendant — the sole piece of direct evidence indicating that the conspirators may have intended to use force, rather than mere trickery, to obtain their goal — violated their Confrontation Clause rights in light of Crawford. The Government conceded the Crawford error, but argued that the error was harmless. The Circuit disagreed, finding that the error was not harmless as to all 3, and ordering new trials for 2 (the other defendant did even better — the Court ruled that without considering the Crawford-barred hearsay, the evidence was insufficient to sustain the conviction, and thus dismissed the charge against this defendant).
The opinion is well written but breaks no new legal ground. Those interested in harmless error analysis as applied to a Crawford error in particular may find it useful. The opinion also cleanly illustrates the difference between harmless error analysis and sufficiency-of-the-evidence analysis, as it concludes with respect to 2 defendants that although the Crawford error was not harmless (thus warranting a new trial), the evidence apart from the improperly admitted hearsay statement was sufficient to sustain their convictions. In any event, it is always refreshing to see the Court actually impose a remedy for a Crawford violation.