United States v. Riggi, No. 06-1280-cr (2d Cir. September 4, 2008) (Jacobs, Calabresi, Sack, CJJ)
Defendants Vitabile, Abramo and Schifilliti were all long-time members of the Decavalcante crime family. Vitabile was consignliere for thirty-five years, Abramo had been a captain since the late 1980’s and Schifilliti had held that same title since 1991. They were also part of the family’s administration. After a three-week trial, a jury convicted them of racketeering and racketeering conspiracy – comprising ten predicate acts – and five substantive counts. Included in the mix were several murder conspiracies, extortion, loansharking and securities fraud.
At trial, to bolster the testimony of its cooperating witnesses and augment some otherwise underwhelming recordings, the government introduced into evidence the plea allocutions of eight non-testifying co-defendants. On appeal, the circuit agreed that this violated Crawford and that the violation amounted to plain error. It vacated the convictions and remanded for a new trial.
The court spent little time on the first two prongs of plain error analysis: the district court made an error that was, at least in retrospect, plain. But the circuit also concluded that the error affected the defendants’ substantial rights because the plea allocutions “undoubtedly prejudiced the jury and influenced” the verdict.
1. The Impact of the Allocutions
First, the court held that “prejudice arose from the sheer number of plea allocutions admitted to prove the multiple conspiracies in this case.” The “repetitive nature” of the eight allocutions “suggested that the conspiracy was so widespread that it would be plausible for the jury to assume” that these defendants were participants too, “simply by their long and close association” with those who had pled.
Also, many of the conspiracies described by the allocutions “were overlapping such that evidence of one tended to support the existence of another.” Plea allocutions “confirming the existence of one of the linked conspiracies naturally reinforced the evidence of the others.” This created an “echo chamber of implied guilt” and magnified the prejudicial effect of the pleas.
Third, the detailed content of the allocutions “corresponded to elements of the crimes charged,” which bolstered the government’s proof in those areas. In some instances the allocutions “touched directly” on issues that were central to the defense. Other allocutions undermined specific defense arguments, and still others “contained detailed information that invited the jury to make improper assumptions regarding the defendants’ roles in the crimes.”
2. Error Not Cured by Limiting Instructions
Here, the district court gave the standard pre-Crawford limiting instruction that told the jury that it could consider the allocutions as proof that the particular conspiracy under consideration existed, but that it would have to look to other evidence to determine whether any defendant was a member. Here, however, the appellate court found conclusive evidence that the jury could not follow those instructions – the jury convicted the defendants on every substantive count supported by a plea allocution, but where no allocution was offered in support of a substantive account, the jury acquitted. Moreover, this same “general pattern” held for the RICO predicates. “The correlation between the verdicts and the plea allocutions strongly suggests that the jury was improperly influenced by the inadmissible evidence.”
3. The Government’s Evidence Was Otherwise Weak
Here, the court found that the government’s case was not overwhelming, and thus that it was likely that the allocutions substantially influenced the jury. The testimony of the cooperating witnesses “contained inconsistencies and contradictions” and the government, anticipating these, promised in its opening that their accounts would be corroborated by “other evidence,” including the eight allocutions.
The government also seemed to “betray anxiety” about its physical evidence, admitting in its opening that the taped conversations the jury would hear did not really implicate these defendants.
4. Use and Misuse of the Allocutions Pervaded the Government’s Summation
Perhaps most importantly, the court noted that the government repeatedly referred to the allocutions in its summation and rebuttal summations, and sometimes held them out as proof of something more than the mere existence of the conspiracies that they described.
For example, the government on numerous occasions told the jury that allocutions bolstered the cooperating witnesses’ testimony as to specific crimes.
Also, after the defendants argued that the allocutions proved only that the defendants who pled guilty were murders, the government rebutted by telling the jury that those allocutions showed that the cooperators were not “the only violent guys in the Decavalcante family.” In a similar vein, the government improperly used the allocutions to rebut defense arguments that the defendants’ conversations about murdering certain victims were not serious. The government rebutted that the defendants must have meant what they said because others involved in those same conversations pled guilty.
Finally, the government’s “last words” to the jury were “(again) to consider the plea allocutions as evidence of the crimes charged against the defendants, and not merely of evidence of the existence of the conspiracies.”
5. Sufficiency of the Evidence
Two defendants also argued that the evidence against them was insufficient as to certain discreet offenses. The court, following its usual – and probably wrong – rule that sufficiency review includes improperly admitted evidence, had little trouble finding legally sufficient evidence. That said, however, the court expressed “no opinion” as to whether there would be sufficient evidence without the improperly admitted allocutions.