UNITED STATES V. RESTREPO, NO. 12-2246-cr (2D CIR. NOV. 27, 2013) (LYNCH, CARNEY, AND DRONEY) (SUMMARY ORDER), AVAILABLE HERE
This detailed summary order affirmed defendant’s conviction after trial for a drug related conspiracy and denied seven separate claims of error. First, the Court disagreed with the defendant’s jury selection challenge, which alleged that the trial court erroneously instructed the jury on how to judge accomplice witness testimony. The trial court told jurors during jury selection that all testimony, even that of accomplice witnesses, must be accorded the same weight at trial. Though at odds with the correct standard for evaluating accomplice witness testimony, i.e., drawing the jury’s attention to the possible motivations of accomplice witnesses and instructing jurors to examine those motivations when determining credibility, the error did not prejudice the defendant. When discussing how to judge witness testimony, the trial court also explained that the trial judge would instruct jurors about the proper standard before deliberations, which it did in “thorough and correct instructions.” The jury selection also occurred two weeks before deliberations, which suggested jurors may not have recalled it during deliberations. In addition, defense counsel challenged the credibility of accomplice witnesses at trial and made the jury aware of the need to carefully scrutinize their testimony, as did the prosecutor.
Second, and because of this lack of prejudice, the Court rejected the defendant’s ineffective assistance of counsel claim due to his attorney’s failure to object to the erroneous instruction.
Third, the Court upheld the trial court’s multiple conspiracies instruction, which it gave in lieu of the defendant’s requested instruction. The trial court’s instruction stressed that jurors must find that the single conspiracy charged existed and that the defendant knowingly participated in that conspiracy. It also told jurors they must acquit if the conspiracy charged did not exist or if the defendant engaged in a separate, uncharged conspiracy. This wording satisfied the requirements for a multiple conspiracies instruction.
Fourth, the Court did not construe the prosecutor’s closing arguments as inappropriate vouching or a flagrant abuse affecting substantial rights requiring reversal, but cautioned their delivery. The prosecutor argued to jurors that “we” searched for a co-conspirator with character “above reproach,” but could not find one. The prosecutor then stated “I submit to you no such person exists.” The remarks did not suggest jurors should trust the government’s assessment of the witnesses’ credibility rather than their own or that the prosecutors possessed information not presented at trial. The remarks were a permissible response to defense counsel’s repeated attacks on the accomplice witnesses’ credibility with the prosecutor even acknowledging their credibility problems. The Court cautioned that the remarks cold have been interpreted as providing unsworn testimony without any evidentiary foundation about the government’s investigation. The Court held that the statements were presumably intended and likely taken as rhetoric on the government’s theme at trial and did not mislead the jury.
Fifth, the Court held that no Brady violation occurred based upon the government’s failure to produce four witnesses’ statements, which according to the defendant disproved his having trafficked with a particular cartel. The defendant failed to prove that one witness possessed such information. Further, no evidence demonstrated that the defendant’s lawyer was unaware of the potential testimony of the other three witnesses prior to trial or that the prosecutors attempted to conceal the existence of these witnesses or any of their statements. Finally, there was no indication that the defense would have called these witnesses given the trial strategy and, even if called, nothing indicated their testimony would have led to a different result.
Sixth, the Court held that no prosecutorial misconduct occurred before the grand jury due to the use of hearsay testimony because the prosecutor did not mislead the grand jurors. The prosecutor provided a detailed introductory statement about the nature of the witness’s testimony, that it would included hearsay, and that the witness did not personally witness things being discussed. The witness’s testimony made all this clear as well. The prosecutor further told the grand jury that it could request witnesses with first hand knowledge and could review complete transcripts of earlier witnesses’ testimony. Finally, the Court held it was likely that the defendant would have been indicted if solely non-hearsay evidence had been used.
Seventh, the Court rejected the defendant’s claim that his conviction violated the Rule of Specialty. The defendant had been extradited from Colombia pursuant to a Colombian Diplomatic Note, which authorized extradition on the condition that he not be tried using pre-December 17, 1997 conduct. Without addressing whether the defendant had standing to challenge any alleged violations of the note, the Court held that the jury did not rely on such conduct in rendering its verdict.