Evidentiary Errors Found Harmless, and Acquitted Conduct Properly Used in Role Enhancement

United States v. Alaa Al-Sadawi, Docket No. 03-1784-cr (2d Cir. Dec. 23, 2005) (Walker, Cardamone, Parker): Yet another pyrrhic victory for the defense: The Court rules that the district court committed two evidentiary errors (one involving Crawford and the introduction of a co-defendant’s plea allocution at the defendant’s trial, and the other involving the use of flight as evidence of consciousness of guilt), but finds both harmless in light of the “overwhelming” evidence of the defendant’s guilt. What else is new?

Nothing earth shattering in the opinion. But the decision contains a good, thorough discussion of when the Government can and cannot use evidence regarding the defendant’s attempt to leave the jurisdiction as evidence of guilt. See Op. at 7-9. In sum, the probative value of the defendant’s behavior “as circumstantial evidence of guilt depends upon . . . four inferences . . . : (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt tguilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to the actual guilt of the crime charged.” Op. at 8 (quoting United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977). And a trial court should allow the Government to use such evidence (and also to ask the jury to infer the defendant’s guilt from such evidence) only where “each link in the chain of inferences leading to that conclusion is sturdily supported.” Op. at 8.

The Court also upheld a 2-level role enhancement based on the defendant’s supervision / recruitment of a co-defendant (his father) who was acquitted at the same trial. While the enhancement can be triggered only if the defendant supervised / recruited a “participant” — i.e., another criminally culpable party — that participant need not be convicted. And the Court held that despite the father’s acquittal, there was sufficient evidence to find that he was a knowing participant in the criminal venture. Op. at 13. The Court’s sanction of this practice should hardly come as a surprise, given its decision earlier this month sanctioning the use of acquitted conduct to elevate the defendant’s offense level.