Sunday, January 25th, 2009

Hart’s Desire

United States v. Draper, No. 07-2301-cr (2d Cir. January 20, 2009)(Newman, Calabresi, Sotomayor, CJJ)

Defendants Hart and Draper were members of LRP, a drug gang that operated in Brooklyn. In July of 2001, LRP members robbed and murdered a rival. One of the LRP members involved in the killing, Clinton Davy, was picked up and questioned by New York City police officers. Over the next several months, Davy implicated another LRP member, Cory Marcano, ultimately giving information that led to Marcano’s arrest. After Marcano’s arrest, Davy was assaulted on three separate occasions for being a “snitch.”

Relevant to this appeal is the third such beating, which occurred on August 8, 2003. Hart, Draper and other LRP members entered Davy’s apartment and beat him with “a clothing iron, electrical cords, and bleach.” They discussed shooting him too, but the police arrived before they had the chance. Two days later, on April 10, Davy, who had been meeting only with local police and prosecutors, met with federal agents and prosecutors for the first time.

After a jury trial, Hart and Draper were convicted, inter alia, of retaliating against a witness, in violation of 18 U.S.C. § 1513(b)(2) and (f). On appeal, the court held both that the district court improperly charged the jury and that the evidence was insufficient on those counts.

The statute makes it an offense to harm someone, or threaten to do so, “with intent to retaliate” against him for giving information about the commission of a federal offense to a “law enforcement officer.” A “law enforcement officer” is defined specifically as one employed by the federal government. Thus, where the witness initially had contact with state authorities, “the government must provide sufficient evidence that the witness’s contact with law enforcement officials extended beyond her initial contact with the local police, and involved federal officers.”

Here, the jury charge did not require the government to prove that “at least one of the law enforcement officials” that Davy contacted before being beaten was an “officer or employee of the Federal Government.” This was error. In addition, the undisputed facts were that Davy did not have contacts with federal agents prior to his attack. He testified that his first contact with the feds was two days after the attack.

The court accordingly reversed the convictions on the retaliation counts and ordered their dismissal.


This case is noteworthy for a surprising reason: the defendants did not raise this issue themselves, either in the district court or on appeal. They did not object to the incorrect jury instruction, and their sufficiency argument on appeal was that there was insufficient evidence that they had retaliatory intent. Here, the circuit itself flagged the issue and ordered post-argument briefing on it. Thus, this reversal overcame both the plain error rule and the rule that “ordinarily” arguments not raised on appeal are “deemed abandoned.” The court invoked its “discretion to overlook such failure if a manifest injustice would otherwise result.”

Another tidbit: There is some dispute as to whether the sufficiency of the evidence is to be measured against the charge as given. Under this opinion, it is not.

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