Thursday, June 19th, 2014

Evidentiary Error and Government Misconduct Required New Trial

United States v. Certified Environmental Services, Inc., No. 11-4872(L)-cr (2d Cir. May 28, 2014) (Raggi, Carney, and Rakoff), available here

Defendants, consisting of an asbestos air monitoring company, five of its employees, and an employee of an asbestos abatement contractor, were convicted collectively of 15 counts of conspiracy, mail fraud, and false statements. The charges related to a scheme to violate various state and federal environmental regulations and to certify falsely that proper air monitoring had been conducted.
The appealing defendants argued that (1) the district court improperly excluded evidence that they acted in the good-faith belief that they were complying with applicable state regulations; and (2) the prosecutors engaged in misconduct.
The Circuit agreed, holding that the district court erred by excluding the proffered evidence of good faith, and that, as the government conceded on appeal, the prosecutors committed multiple instances of misconduct throughout the trial. The misconduct included: (1) improper bolstering of government witnesses based on their cooperation agreements; (2) improper vouching in summation; (3) improper extra-record references in rebuttal summation; and (4) improper appeals in rebuttal summation to the consequences the jury’s verdict would have. 
The Court also found the prejudice resulting from the district court’s erroneous evidentiary ruling and the prosecutors’ misconduct sufficient to violate the defendants’ right to fair trial. The panel noted that “evidentiary errors and prosecutorial misconduct infected every stage of the trial,” that the improprieties were “not insubstantial,” and that the curative measures taken by the district court were not sufficient to eliminate the prejudice. The Court also stated that, though the government’s case was “quite strong,” it was “not overwhelming.” Accordingly, the Court vacated the convictions and ordered a new trial.
Finally, on a sentencing appeal by the government with respect to two non-appealing defendants, the Court held that the district court miscalculated the amount of  restitution and committed procedural errors in determining the applicable guidelines range. Resentencing was therefore required for these two defendants.
Commentary: This is one of those rare situations where the Circuit reverses based (in part) on prosecutorial misconduct. Judge Rakoff’s opinion for the Court contains great language regarding the rules against bolstering, the bounds of permissible summation, and the importance of the defendants’ evidence of good faith.     
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