Petition for Writ of Certiorari — Eric Williams, Petitioner v. New York

Supreme Court briefNov 19, 2018

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No. ____________

In The

SUPREME COURT OF THE UNITED STATES

______________

ERIC WILLIAMS,

Petitioner

v.

NEW YORK,

Respondent.

_____________

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEW YORK,

APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

JANE SIMKIN SMITH

P.O. Box 1277

Millbrook, New York 12545

(845) 724-3415

jssmith1@optonline.net

Counsel for Petitioner

QUESTION PRESENTED

At a retrial in a criminal case, New York prosecutors were permitted to

introduce prior testimony of a witness from the first trial. The witness had been

deported, and, because of his criminal history, was ineligible to obtain a visa for

readmission to the United States. Though there is a procedure under federal law

(“Significant Public Benefit Parole”) by which state prosecutors may secure the

temporary presence of a deported witness in order for him to testify at a criminal

trial (even a witness barred for life from readmission), the New York prosecutors

asserted they had no obligation to utilize, or even attempt to utilize, this or any

other mechanism for obtaining the witness’s live testimony.

The question presented is: Whether prosecutors may dispense with

the Confrontation Clause of the Sixth Amendment, and may be relieved of the

obligation recognized in Barber v. Page, 390 U.S. 719, 723-725 (1968), to make a

good-faith effort to secure an absent witness’s presence at trial, simply because

the witness has been deported and is ineligible for a visa for readmission to the

United States.

PARTIES TO THE PROCEEDINGS

The parties to the proceedings below were Petitioner-Appellant Eric

Williams, and Respondent-Appellee People of the State of New York.

i

TABLE OF CONTENTS

QUESTION PRESENTED ........................................................................................ i

PARTIES TO THE PROCEEDINGS ........................................................................ i

TABLE OF AUTHORITIES .................................................................................... iv

ORDERS BELOW ......................................................................................................1

JURISDICTION.........................................................................................................1

PERTINENT CONSTITUTIONAL PROVISIONS ..................................................1

STATEMENT OF THE CASE ..................................................................................2

REASONS FOR GRANTING THE WRIT ..............................................................13

1. The New York Court’s decision conflicts with the decisions of this Court

that, because “face-to-face” confrontation forms “the core of the values

furthered by the Confrontation Clause,” before there may be an exception

to the Constitutional Confrontation requirement there must be either: (a)

a showing the witness is “unavailable” -- and this means a showing that

reasonable good-faith efforts to secure the witness’s presence have been

made (not simply efforts to confirm the witness’s absence); or (b) a finding

that denial of a “face-to-face” confrontation is necessary to further an

important state interest in the specific case. ..............................................13

2. The New York Court’s analysis and its disregard of the mechanism of

Significant Public Benefit Parole conflicts with decisions of the United

States Court of Appeal for the Fifth Circuit. ...............................................24

3. The issue presented is important and likely to recur, and this case

presents an ideal vehicle for ensuring against the evisceration of the

Confrontation Clause for the sake of convenience. .....................................27

CONCLUSION.........................................................................................................29

ii

APPENDIX

Decision & Order On Motion, Supreme Court of the State of New York,

Appellate Division: Second Judicial Department, People v. Eric Williams, Docket

No. 2015-03387 (September 16, 2016) ……………………………………………… A.1

Decision & Order, Supreme Court of the State of New York, Appellate Division:

Second Judicial Department, People v. Eric Williams, Docket No. 2015-03387

(June 6, 2018), affirming judgment of County Court, Suffolk County, rendered

April 3, 2015…………………………………………………………………………… A.3

Order Denying Leave, State of New York Court of Appeals, People v. Williams

(August 27, 2018)……………………………………………………………………… A.7

Transcript excerpt (pre-trial proceeding, January 30, 2015), trial court’s ruling

granting People’s motion to admit prior testimony of Jose Vanderlinde …….A.8

Transcript excerpt (post-trial proceeding, April 3, 2015), trial court’s denial of

defendant’s post-trial motions and reaffirming ruling admitting prior testimony

of Jose Vanderlinde …………………………………………………………………A.12

iii

TABLE OF AUTHORITIES

Cases

Barber v. Page, 390 U.S. 719 (1968) .......................................................... passim

Berger v. California, 393 U.S. 314 (1969) .........................................................16

California v. Green, 399 U.S. 149 (1970) ..............................................17, 21, 23

Crawford v. Washington, 541 U.S. 36 (2004) ..................................13, 16, 21, 24

Davis v. Alaska, 415 U.S. 308 (1974) ................................................................28

Hardy v. Cross, 565 U.S. 65 (2011)....................................................................17

Maryland v. Craig, 497 U.S. 836 (1990) ...............................................21, 22, 24

Mattox v. United States, 156 U.S. 237 (1895) ...................................................14

Motes v. United States, 178 U.S. 458 (1900) ....................................................14

Ohio v. Roberts, 448 U.S. 56 (1980) .................................................16, 20, 22, 24

People v. Diaz, 97 NY2d 109 (2001) ...................................................................19

People v. Feingold, 7 NY3d 288 (2006) ...............................................................3

People v. Garcia, 2d Crim No. B241780, Court of Appeals of California,

Second District, Division Six (Feb. 6, 2014) ..................................................19

People v. Grice, 84 AD3d 1419 (3d Dept. 2011).................................................20

People v. Robert F., 25 NY3d 448 (2015) ...........................................................23

People v. Williams, 50 AD3d 709 (2d Dept. 2008); leave to appeal to the New

York Court of Appeals was denied, 11 NY3d 742 (2008) ................................2

People v. Wrotten, 14 NY3d 33 (2009) ...............................................................23

State of Ohio v. Abboud, No. 85750, Court of Appeals of Ohio, Eight District,

Cuyahoga County (Nov. 3, 2005) ...................................................................19

United States v. Allie, 978 F.2d 1401 (5th Cir. 1992) .......................................26

United States v. Calderon Lopez, 268 F.App'x 279 (5th Cir. 2008) .................26

iv

United States v. Guadian-Salazar, 824 F.2d 344 (5th Cir. 1987) ....................26

United States v. Rojas-Coyotl, 2014 U.S. Dist. LEXIS 65693 (N.D. Ga. Feb.

14, 2014) ..........................................................................................................19

United States v. Tirado-Tirado, 563 F.3d 117 (5th Cir. 2009) ....................25, 26

Williams v. Artus, 2013 U.S. Dist. LEXIS 12640 (EDNY 2013) ........................2

Statutes

8 U.S.C. § 1101A 15 S ........................................................................................11

8 U.S.C. § 1182(a)(2)(C) .......................................................................................3

8 U.S.C. § 1182(d)(5)(A) ...................................................................................4, 7

8 U.S.C. § 1184(a)(1) ............................................................................................8

28 U.S.C. § 1254(1) ...............................................................................................1

New York CPL § 330.30(1) .................................................................................11

New York CPL § 330.50 .....................................................................................11

New York CPL § 620.20 .......................................................................................8

New York CPL § 670.10 .............................................................................5, 9, 10

Regulations

8 C.F.R. § 212.5 ................................................................................................4, 8

Other Authorities

“Protecting the Homeland, Toolkit for Prosecutors,”

https://www.ice.gov/doclib/about/offices/osltc/pdf/tool-kit-for-prosecutors.pdf..7

v

ORDERS BELOW

The Decision & Order of the Supreme Court of the State of New York,

Appellate Division: Second Judicial Department (dated June 6, 2018), People

v. Williams, 162 AD3d 694 (2d Dept. 2018), affirming the judgment of the

County Court, Suffolk Court rendered on April 3, 2015, is attached in the

Appendix at A. 3-6. The Order of the State of New York Court of Appeals

denying leave to appeal, dated August 27, 2018, 32 NY3d 942 (2018), is

included in the Appendix at A. 7.

JURISDICTION

The New York Court of Appeals entered its Order denying leave to

appeal on August 27, 2018.

Jurisdiction of this Court is invoked under 28

U.S.C. § 1257.

PERTINENT CONSTITUTIONAL PROVISIONS

Sixth Amendment of the Constitution of the United States

In all criminal prosecutions, the accused shall enjoy the right … to be

confronted with the witnesses against him ....

Fourteenth Amendment of the Constitution of the United States

… nor shall any State deprive any person of life, liberty, or property,

without due process of law . . . .

STATEMENT OF THE CASE

Overview

Petitioner Eric Williams was the sole defendant in the trial court. He

was initially tried and convicted in 2003 on New York State depraved

indifference murder and assault charges, as well as related firearm use and

weapon possession charges.

All charges arose out of a chain of events

involving the sale of drugs, a debt, a car chase and, tragically, a fatal car

crash on May 15, 2001.

The 2003 conviction was affirmed, People v.

Williams, 50 AD3d 709 (2d Dept. 2008); leave to appeal to the New York

Court of Appeals was denied, 11 NY3d 742 (2008).

Finding that the 2003 trial was infected by prosecutorial misconduct

and that the prejudicial effect of the prosecutor’s misconduct alone warranted

relief, a federal district court granted Williams’ petition for habeas relief in

2013, and ordered that he be retried or released. The federal court also held

that the prejudice caused by the prosecutor was compounded by inadequate

and confusing curative instructions and by ineffective assistance of defense

counsel. Williams v. Artus, 2013 U.S. Dist. LEXIS 12640 (EDNY 2013).

Mr. Williams was retried, and again convicted in 2015.

One of the prosecution witnesses at the first trial was Jose

Vanderlinde. Vanderlinde had briefly shared a jail cell with Williams in 2002

while Vanderlinde was awaiting sentence on federal drug charges. According

to Vanderlinde, Williams made admissions about the state crimes with which

he was charged and also expressed the desire to harm potential witnesses.

2

Vanderlinde was deported to the Dominican Republic in 2013 after he

completed his sentence for the federal drug offenses. Over objection, the

People were permitted to introduce Vanderlinde’s testimony from the first

trial at the retrial, and the prosecutors relied on it in arguing the sufficiency

of their proof.1

Both the trial court and the New York appellate court ruled that the

introduction of Vanderlinde’s prior testimony did not violate Williams’

constitutional rights under the Confrontation Clause. The courts approved

the admission of the prior testimony simply on the ground that Vanderlinde

had been deported and, because of his drug trafficking conviction, was, as a

general proposition, ineligible to be readmitted into the United States. (See 8

U.S.C. §1182(a)(2)(C).)

The prosecutors conceded that there is an available procedure under

federal law -- “Significant Public Benefit Parole” (pursuant to 8 U.S.C. §

1182(d)(5)(A) and 8 C.F.R. § 212.5) -- that allows for a deported alien (even

1

Vanderlinde’s prior testimony was significant especially because of a

change in the state law on the “depraved indifference” element between the

first trial in 2003 and the second in 2015. Under the controlling law in 2003,

“depraved indifference” referred not to a culpable mental state, but, rather, to

the objective circumstances in which risk-creating conduct occurred. In 2006,

the New York Court of Appeals ruled that “depraved indifference” is a

subjective mental state. Williams conceded at the retrial that he was

involved in the high-speed chase to collect a drug debt and that he had

engaged in reckless conduct in doing so. The only disputed issue was whether

he had the subjective mental state distinguishing depraved indifference

murder from manslaughter, i.e., “an utter disregard for the value of human

life – a willingness to act not because one intends harm but because one

simply doesn’t care whether harm results or not.” People v. Feingold, 7 NY3d

288, 294-6 (2006).

3

one with a lifetime ban on readmission) to re-enter the United States and

stay temporarily in order to testify in a criminal case. The prosecutors also

made clear that they had made no attempt to utilize this procedure to secure

Vanderlinde’s presence at the retrial.

Neither the trial court nor the appellate was concerned that the People

made no effort to utilize this mechanism for securing Vanderlinde’s return to

New York. Nor did either court hold the People to account for failing to make

any effort to secure Vanderlinde’s virtual presence through videoconferencing

or Skype from the Dominican Republic. The issue here is whether the New

York courts’ rulings comport with this Court’s Confrontation Clause

jurisprudence.

The Specific Evidence, Arguments, And Court Rulings Relating To

Vanderlinde’s Supposed Unavailability, The Confrontation Clause,

And The Admissibility Of Vanderlinde’s Prior Testimony

Vanderlinde was deported to the Dominican Republic on or about

August 6, 2013, about six months after Williams’ habeas petition was fully

briefed and argued, but a month before the Order granting the petition was

issued. (T. 1/23/15, 13) Though (as described in the footnote below) there

were strong signals in the habeas litigation that the habeas petition would be

granted over a year before Vanderlinde’s removal, the prosecutors neither

attempted to stay Vanderlinde’s deportation nor took any other action

4

between July 2012 and August 2013 to secure Vanderlinde’s presence for a

potential retrial. 2

Nor did the People attempt to secure Vanderlinde’s return or try to

arrange for his live testimony from the Dominican Republic after the habeas

petition was granted. Instead, on the eve of the retrial 16 months after the

habeas

petition

was

granted,

the

prosecutors

moved

to

introduce

Vanderlinde’s prior testimony pursuant to New York CPL §670.10, a

provision authorizing the use of testimony given in a previous proceeding

relating to the action when the witness is “outside the state or in federal

custody and cannot with due diligence be brought before the court.”

The prosecutors maintained they had “no reason” to take any action

with respect to Vanderlinde until the order granting habeas relief was issued;

by that time Vanderlinde had been deported, and, they claimed, they were

incapable of bringing him before the court to testify because he was ineligible

2

At oral argument on the habeas petition in July 2012, the DA’s office

conceded that the ADA’s conduct was “beyond the pale” and “outrageous,”

and the judge expressed his view not only that the ADA had deliberately

elicited prejudicial testimony but also that the testimony was “a bombshell.”

(Williams v. Artus, 11cv5541 (EDNY), Doc. #56, T. 7/12/12, 13, 16, 18, 27, 31)

Thereafter, the court appointed counsel for Williams and ordered

supplemental briefing and argument. At argument in February 2013, the

judge explained that counsel “was appointed to provide supplemental briefing

because, as [the ADA] knows well, I had some concerns about this petition.”

The judge characterized the prosecutor’s eliciting the (wholly uncorroborated)

testimony as “a pretty volatile issue,” and found her twisting of the stricken

testimony in summation “breathtaking.” (Doc. #57, T. 2/8/13, 2, 14, 24) The

same prosecutor who conducted the first trial conducted the retrial.

5

for a visa or admission to the United States under 8 U.S.C. §1182.

(T.

1/23/15, 4-5, 7-9, 11, 13, 18, 19, 27) (T. 1/30/15, 27-30)

The prosecutors also presented evidence that Vanderlinde had not

reentered the country after his deportation: In October 2013, an investigator

began checking law enforcement databases and did not find Vanderlinde’s

name; on January 23, 2015 (after the first day of hearing on the motion to

introduce the prior testimony), the investigator contacted Vanderlinde’s son

who lived in New York with his mother, and confirmed that Vanderlinde had

not returned.

Importantly, the son also provided Vanderlinde’s phone number in the

Dominican Republic. The son advised that he spoke with his father about

twice a week, and that Vanderlinde was living with a girlfriend on the

outskirts of Santo Domingo, but the son did not have Vanderlinde’s address.

The investigator made no effort to contact Vanderlinde by phone or find his

address. (T. 1/30/15, 5, 7-10, 13-15) The investigator, therefore, never

ascertained Vanderlinde’s willingness to either return to the U.S. to testify or

to testify via alternative means from the Dominican Republic via, for

example, videoconference or Skype.

A federal deportation officer employed with the Department of

Homeland Security, Immigration and Customs Enforcement explained that

there were procedures for prosecutors to “deal with immigration and their

cases” including administrative stays of removals, deferred prosecutions, and

6

“S-Visas”, but the prosecutors argued that these measures were irrelevant.

(T. 1/23/15, at 27) They also contended that Vanderlinde would not qualify

for an S-Visa because, by statute, such visas are available only for deported

alien witnesses in possession of information concerning criminal or terrorist

organizations – not matters involved in this case. (T. 1/30/15, 16-17)

The prosecutors did acknowledge orally and in writing that there is

another procedure known as Significant Public Benefit Parole that allowed

for a deported alien to “come back into the country to cooperate in an

investigation.” See 8 U.S.C. §1182(d)(5)(A). However, the prosecutors made

no effort to avail themselves of this procedure. 3

The prosecutors justified this lack of effort on the grounds that (1) “as

a lifetime criminal and drug trafficker,” Vanderlinde posed “a security risk”

and a “danger to the community,” and (2) “if we could even find him” and

even if he were granted Significant Public Benefit Parole by federal

authorities, bringing him back into the country would put “society at risk”

because the People “would have no opportunity to control him or supervise

him.”

They also argued (inconsistently) that maintaining some kind of

control over Vanderlinde “would be a tremendously onerous burden on the

People.” (T. 1/30/15, 17-22) These claims rested only on the prosecutors’

3

Significant Public Benefit Parole is explained in an Immigration and

Customs Enforcement publication entitled “Protecting the Homeland, Toolkit

for Prosecutors.”

A copy of that document, which can be found at

https://www.ice.gov/doclib/about/offices/osltc/pdf/tool-kit-for-prosecutors.pdf,

was submitted to the trial court.

7

assertions; no evidence was presented to substantiate them, the trial court

made no findings with respect to them, and, in fact, as set forth in the

footnote below, the claims were unfounded.4

According to the prosecutors, they “have no control over the federal

government and … no control over the witness.” Their position was that the

People had no obligation to “attempt to bring the individual back in the

4

First, as set forth in the minutes of Vanderlinde’s federal sentencing (Court

Exhibit V, at 30-31), upon his release from prison, not only was Vanderlinde

ordered to comply with the directives of U.S. immigration law, but also he

was subject to a mandatory 5-year term of supervised release under the

supervision of U.S. Probation. If he re-entered the U.S. to testify in 2015,

this term of supervised release would still be in effect and, therefore,

Vanderlinde would be subject to U.S. Probation supervision. In addition,

under the federal regulations pertaining to parole of aliens into the U.S. (8

C.F.R. §212.5; 8 U.S.C. § 1184(a)(1)), U.S. Citizenship and Immigration

Services authorities have the power to impose reasonable terms and

conditions on a parolee if a determination is made that such conditions are

necessary and appropriate. These include the giving of a bond and the

requirement of periodic reporting, conditions that would serve to enhance the

conditions of Vanderlinde’s supervised release with U.S. Probation. Moreover,

the prosecutors could have taken additional precautions through, for

example, securing a material witness order pursuant to New York CPL

§620.20 et. seq.

Vanderlinde had completed his federal prison sentence, and posed no

greater threat to the public than any other person on supervised release or

parole after serving a sentence. The claim that Vanderlinde posed too great a

risk to the safety and security of the community for the prosecutors to even

try to arrange his return to the U.S. to testify was disingenuous and

hypocritical: at the first trial, they emphasized that Vanderlinde should be

believed because he was non-violent (T1. 1586), “never hurt nobody” (T1.

1648), and was testifying not to receive any benefit for himself but, rather,

because he had a family and felt it was civic duty to come forward. The

prosecutor reiterated this on appeal after the first trial (“He had no

convictions involving violence and never used or carried a gun.”), and at the

retrial (T. 2/25/15, 93).

8

country” because the “security interests of the People of the State of New

York… are not furthered by … [requiring] an individual like this be brought

back into the country when we have already obtained a transcript. There is

no right to confrontation violation here because this witness has been

thoroughly cross-examined.” (T. 1/30/15, 28-29)

The prosecutors insisted, “We’re not going to go any further and

contact Mr. Vanderlinde by cell phone.” They claimed that, to satisfy the

People’s burden to establish unavailability and due diligence, they were

required to show no more than that the witness was in fact deported and

ineligible to gain re-entry on his own. (T. 1/30/15, 27-30)

In other words, according to the prosecutors, all they had to do was cry

“security interests” and “cross-examination,” and they could dispense with

the Confrontation Clause.

Mr. Williams opposed the introduction of Vanderlinde’s prior

testimony on constitutional and statutory grounds.

His counsel argued

(before, during, and after trial, in memoranda and orally) that the People had

not shown “unavailability” or “due diligence,” the requirements for

admissibility of prior testimony under the Constitution and New York CPL §

670.10. The People did not even bother to call the phone number provided by

Vanderlinde’s son, let alone reach out to either federal authorities to request

Significant Public Benefit Parole, or the authorities in the Dominican

Republic, or any other organization in order to get Vanderlinde before the

9

court.

Counsel argued that the DA’s unwillingness to exercise control over

Vanderlinde if he were allowed reentry under Significant Public Benefit

Parole should not trump Williams’ confrontation rights. (T. 1/30/15, 22-32)

The trial court ruled that Vanderlinde’s prior testimony could be

introduced. It determined Vanderlinde was “unavailable” simply because he

had been deported, and the obligation to exercise “due diligence” was

satisfied because Vanderlinde was barred from reentering the United States

and because an S-Visa was not available to secure his attendance. (T. 1/30/15,

34-37; Appendix, A. 8-11)

In so ruling, the court thus focused on only one mechanism for a

deported alien to return to the United States to testify, the S-Visa. The court

made no mention of other procedures such as Significant Public Benefit

Parole or videoconferencing that were available for obtaining Vanderlinde’s

live testimony, and did not comment on the lack of any attempt by the

prosecutors to utilize these mechanisms.5

5

Apart from arguing that “unavailability” and the requirements of CPL §

670.10 had not been demonstrated (and, therefore, the Confrontation Clause

was violated by the admission of Vanderlinde’s prior testimony), Williams

also moved to preclude Vanderlinde’s testimony on other constitutional and

evidentiary grounds. Counsel argued that the prejudicial effect of the

testimony outweighed its probative value, that Vanderlinde was unreliable,

and that Williams (whose counsel at the first trial was found to have been

ineffective by the federal judge granting habeas relief) did not have a full and

fair opportunity to cross-examine Vanderlinde at the prior trial. With respect

to Vanderlinde’s reliability, counsel pointed to falsehoods in Vanderlinde’s

testimony regarding his cooperation with federal authorities, and contended

that Mr. Williams had been unable to expose these falsities at the first trial

because Williams did not have and had not been given the transcript of

10

After the jury reached its verdict, Mr. Williams moved to set aside or

modify the verdict.

He repeated the claim that the introduction of

Vanderlinde’s prior testimony violated his constitutional confrontation rights

in that the People had demonstrated neither Vanderlinde’s unavailability nor

the exercise of due diligence to secure his testimony at trial – either actually

through available federal procedures or virtually through video or Skype.

(Motion pursuant to CPL §§ 330.30(1) and 330.50, pp. 6-11)

The court denied the motion. It affirmed its previous ruling, clarifying

that it “did not strictly approve of the People’s exercise of due diligence.”

Rather, the court explained, it focused on the plain language of 8 USC §

1101A 15 S, and, after determining that an S-Visa did not apply to

Vanderlinde’s situation, concluded that, because the law does not require the

People to do a “futile act,” the People’s obligation was satisfied when they

determined that Vanderlinde had been deported with a ban on readmission.

(T. 4/3/15, 12-13; Appendix, A. 12-13) Again, the court made no reference to

either Significant Public Benefit Parole (and/or the claimed costs associated

Vanderlinde’s federal sentencing and other Brady material; defense counsel

represented (and the ADA did not refute) that Williams had not obtained

Vanderlinde’s sentencing minutes until after trial when representing himself

in connection with the habeas petition. (T. 614-622, 625-7) The federal

sentencing minutes showed that Vanderlinde was an unsuccessful federal

cooperator: he was accused of perjury by federal prosecutors and found not

credible by the federal sentencing judge. The state trial court denied the

motion to preclude without acknowledging either the challenges to

Vanderlinde’s reliability or the fact that, in connection with Williams’ habeas

petition, the federal court had found Williams’ defense counsel ineffective. (T.

626-28)

11

with the supposed “security risks” purportedly posed by Vanderlinde should

he obtain Significant Public Benefit Parole) or videoconferencing.

Mr. Williams appealed. In a Decision and Order dated June 6, 2018,

the Appellate Division affirmed.

In rejecting the claims that the admission

of Vanderlinde’s prior testimony violated the Confrontation Clause 6 , the

appellate court, like the trial court, made no mention of the available means

for securing an otherwise inadmissible alien witness’s presence (or virtual

presence) at trial, and expressed no regard for the prosecutors’ utter lack of

effort to make use of those means. Rather, the appellate court excused the

exercise of any effort based on the mere facts that Vanderlinde had been

deported and was ineligible to obtain a visa for readmission:

The defendant’s contention that the County Court erred

in admitting the testimony of Jose Vanderlinde from the first

trial is without merit.

Vanderlinde had testified at the

defendant’s first trial but was deported before the second trial

commenced, and was barred from re-entering the United States.

Under these circumstances, the court properly admitted

Vanderlinde’s testimony from the first trial, as the prosecutor’s

failure to produce the witness “was not due to indifference or a

strategic preference for presenting [the witness’s] testimony in

the more sheltered form of [trial] minutes rather than in the

confrontational setting of a personal appearance on the stand”

(People v. Arroyo, 54 NY2d 576, 571).

162 AD3d at 695 (A. 5).

The New York State Court thus decided that when a potential witness

has been deported and is ineligible for readmission, prosecutorial authorities

6

Brief for Defendant Appellant, pp. 40-53; Reply Brief for DefendantAppellant, pp. 21-31.

12

need not take any steps in an effort to secure the witness’s presence in order

for his prior testimony to be admitted at a subsequent trial. Even though

there is an available procedure for securing the presence of an alien who is

otherwise inadmissible, and even though the prosecutorial authorities made

no effort to utilize this procedure, the New York Court determined that the

Confrontation Clause did not prohibit admission of the absent witness’s prior

testimony.

A timely application for leave to appeal to the Court of Appeals was

denied on August 29, 2018 (A. 7).

REASONS FOR GRANTING THE WRIT

1. The New York Court’s decision conflicts with the decisions of this

Court that, because “face-to-face” confrontation forms “the core of

the values furthered by the Confrontation Clause,” before there may

be an exception to the Constitutional Confrontation requirement,

there must be either:

(a) a showing the witness is “unavailable” -- and this means a

showing that reasonable good-faith efforts to secure the

witness’s presence have been made (not simply efforts to

confirm the witness’s absence); or

(b) a finding that denial of a “face-to-face” confrontation is

necessary to further an important state interest in the specific

case.

This case plainly conflicts with Supreme Court precedent.

The

Confrontation Clause bars the “admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to testify, and

the defendant had had a prior opportunity for cross-examination.” Crawford

13

v. Washington, 541 U.S. 36, 53-54 (2004) (emphasis added.)

Here, the

prosecutors did not show that Vanderlinde was unavailable. They showed

only that he was absent.

While they acknowledged that it would have

required some effort to secure Vanderlinde’s presence, the prosecutorial

authorities did not expend any effort to do so. Their efforts were directed

only at confirming Vanderlinde’s absence from New York.

The prosecutors conceded the possibility that a person in Vanderlinde’s

position could be granted Significant Public Benefit Parole – a federal

mechanism to secure the presence of otherwise inadmissible alien witnesses

in order that they may testify in a state criminal case. But, on the grounds

that the State had no control over the federal government’s discretionary

decision whether to grant Vanderlinde Significant Public Benefit Parole, and

the unsubstantiated claim that it would be either onerous or impossible for

state officials to monitor and supervise Vanderlinde in the United States

should parole be granted, the prosecutors did not even try. This reasoning –

and the New York court’s approval of the introduction of the prior testimony

without (a) any showing of an attempt by the prosecutors to utilize the

Significant Public Benefit Parole procedure, or any other procedure such as

two-way videoconferencing, or (b) any finding that the failure to do so was

justified by necessity in this particular case – cannot be squared with this

Court’s decisions explaining the unavailability requirement.

14

The requirement that a witness must be “unavailable” before his or her

prior testimony can be admitted against a defendant in a criminal trial has a

long history.

See, e.g., Mattox v. United States, 156 U.S. 237 (1895)

(testimony of witnesses who testified in original trial but who died prior to

the second trial properly admitted at second trial); compare Motes v. United

States, 178 U.S. 458, 474 (1900) (Court “unwilling to hold it to be consistent

with the constitutional requirement that an accused shall be confronted with

the witnesses against him, to permit the deposition or statement of an absent

witness (taken at an examining trial) to be read at the final trial when it does

not appear that the witness was absent by the suggestion, connivance or

procurement of the accused, but does appear that his absence was due to

the negligence of the prosecution.”)

In Barber v. Page, 390 U.S. 719, 723-725 (1968), the Court expressly

rejected the notion that “the mere absence of a witness from the jurisdiction

was sufficient ground for dispensing with confrontation.”

If there are

available means for securing the witness’s presence, the prosecutorial

authorities must make an affirmative effort to utilize those means. “In short,”

Barber held, “a witness is not `unavailable’ for purposes of the foregoing

exception to the confrontation requirement unless the prosecutorial

authorities have made a good-faith effort to obtain his presence at trial.” 390

U.S. at 724-725.

15

The absent witness in Barber was in a federal prison in Texas; the

defendant’s trial was in Oklahoma state court. Both federal and state courts

had the power to issue writs of habeas corpus ad testificandum that would

permit a federal prisoner to testify in state court criminal proceedings; and, it

was the policy of the United States Bureau of Prisons to honor state writs.

Nevertheless, Oklahoma state authorities did not make any effort to work

with the federal government and “avail themselves” of these alternative

means of seeking to secure the witness’s presence at Barber’s trial.

The

Oklahoma Court of Appeals apparently reasoned (like the prosecutors in Mr.

Williams’ case) “that because the State would have had to request an exercise

of discretion on the part of the federal authorities, it was under no obligation

to make any such request.” Barber v. Page rejected that reasoning and the

idea that, because the witness’s presence could not be compelled by the state

court’s process, the right of confrontation could be dispensed with. The Court

ruled that such a theory has “no continuing validity in the criminal law,”

given the “increased cooperation between the States themselves and between

the States and the Federal Government.” 390 U.S. at 723-4.7

7

See also, Berger v. California, 393 U.S. 314 (1969) (Court of Appeal of

California held that the introduction of a robbery victim’s preliminary

hearing testimony at trial did not deny the defendant the Sixth Amendment

right to be confronted with witnesses against him because the victim was

absent from the State and defendant had adequate opportunity to crossexamine victim at the preliminary hearing; Supreme Court vacated judgment

holding that the absence of the victim from the jurisdiction did not justify the

use at trial of the preliminary hearing testimony because the State failed to

make a good-faith effort to secure the victim’s presence); California v. Green,

16

This Court also explored the concept of “unavailability” in Ohio v.

Roberts, 448 U.S. 56, 74 (1980), overruled on other grounds by Crawford, 541

U.S. 36. 8 After pointing out that Barber v. Page, 390 U.S. at 724-725,

established the “basic litmus test of Sixth Amendment unavailability” (i.e.,

“[A] witness is not `unavailable for purpose of … the exception to the

confrontation requirement unless the prosecutorial authorities have made a

good-faith effort to obtain his presence at trial”), the Court set forth five

“general propositions” derived from Barber v. Page and other cases:

1. “The law does not require the doing of a futile act.

Thus, if no

possibility of procuring the witness exists (as for example, the witness’

intervening death), `good faith’ demands nothing of the prosecution.

But if there is a possibility, albeit remote, that affirmative measures

might produce the declarant, the obligation of good faith may demand

their effectuation.” 448 U.S. at 74.

2. As a general rule, “`the possibility of a refusal is not the equivalent of

asking and receiving a rebuff.’ Barber v. Page, 390 U.S. at 724, quoting

399 U.S. 149, 162 (1970) (reiterating holding in Barber v. Page that absence

alone not enough: “unavailability” exception “would not justify the denial of

confrontation where the State had not made a good-faith effort to obtain the

presence of the allegedly ‘unavailable’ witness.”)

8

Though Crawford overruled Ohio v. Roberts to the extent that it obviated

the prior opportunity for cross-examination requirement and admitted

testimonial statements upon a reliability finding, Crawford did not change

the definition of "unavailability" for Confrontation Clause purposes; preCrawford cases on this point, including Ohio v. Roberts, remain good law.

See, e.g., Hardy v. Cross, 565 U.S. 65, 70 (2011) (citing and quoting from Ohio

v. Roberts in addressing the “unavailability” requirement).

17

from the dissenting opinion in that case in the Court of Appeals (381

F.2d 479, 481 (CA10 1966)).” 448 U.S. at 76.

3. “`The lengths to which the prosecution must go to produce a witness . .

. is a question of reasonableness.’” (Quoting California v. Green, 399

U.S. 149, 189 n.22 (1970) (Harlan, J., concurring)). 448 U.S. at 74. [In

his concurrence in California v. Green, Justice Harlan cited Barber v.

Page as the source of this proposition and continued in the same

footnote, “A good-faith effort is, of course, necessary and added expense

or inconvenience is no excuse.”]

4. “The ultimate question is whether the witness is unavailable despite

the good-faith efforts undertaken prior to trial to locate and present

that witness.” (Emphasis added.) 448 U.S. at 74.

5. “As with other evidentiary proponents, the prosecution bears the

burden of establishing this predicate.” 448 U.S. at 74-5.

The decision of the New York court in this case clashes with each of

these general propositions.

The trial court inexplicably focused only on S-Visas and, after

determining that an S-Visa did not apply to Vanderlinde’s situation,

proclaimed that because the law does not require the People to do a “futile

act,” the People’s obligation was satisfied when they determined that

Vanderlinde had been deported with a ban on readmission. The appellate

court likewise held that deportation with a ban on readmission absolved the

18

prosecutors of the obligation to take any action to locate Vanderlinde and

present him at trial. Yes, given that this case did not involve a criminal or

terrorist organization, trying to obtain an S-Visa for Vanderlinde would have

been futile. But the focus of both courts should have been on Significant

Public Benefit Parole, not S-Visas.

The prosecutors had the burden of

establishing unavailability and presented no basis for concluding that a goodfaith effort to secure Significant Benefit Parole for Vanderlinde would have

been futile.

While the request for Significant Benefit Parole is not a routine

matter, several (published and non-officially published) cases – listed in the

footnote below -- reflect federal and state prosecutors obtaining, or making

good-faith efforts to obtain, Significant Public Benefit Parole (or other relief

from Homeland Security or Immigration Enforcement authorities) for

witnesses who have been deported and/or are residing outside the United

States.9 Because the prosecutors here failed to even try, they blatantly failed

the Barber v. Page litmus test.

9

See United States v. Calderon Lopez, 268 F.App'x 279, 289 (5th Cir. 2008)

(finding that a government special agent made a good faith effort to secure

the presence of several deported witnesses at trial sufficient to satisfy the

Confrontation Clause by, among numerous other things, requesting

Significant Public Benefit Paroles in order to facilitate their reentry into the

United States); People v. Garcia, 2d Crim No. B241780, Court of Appeals of

California, Second District, Division Six (Feb. 6, 2014) (state prosecutor

sought assistance form Department of Homeland Security after numerous

attempts to reach witness by email in Mexico; then, Homeland Security

Special Agent obtained first one and then another “significant public benefit

parole visa” for witness to enter the United States to testify at trial”); State of

19

In his dissenting opinion in Ohio v. Roberts, Justice Brennan said of

the prosecution, “It is difficult to believe that the State would have been so

derelict in attempting to secure the witness’ presence at trial had it not had

[his] favorable [prior trial testimony] upon which to rely in the event of [his]

`unavailability.’” 448 U.S. at 79-80 (Brennan J., dissenting).

Here, the

prosecutors did not even make a perfunctory effort to secure Vanderlinde’s

presence.

Ohio v. Abboud, No. 85750, Court of Appeals of Ohio, Eight District,

Cuyahoga County (Nov. 3, 2005) (detective tried to secure the attendance of

two witnesses who had been in U.S. illegally and had returned to Argentina

by filing an “application” with the INS to allow witnesses to appear in the

U.S. to testify; INS granted witnesses, and their six-month-old child

“significant benefit parole status.”); United States v. Rojas-Coyotl, 2014 U.S.

Dist. LEXIS 65693 (N.D. Ga. Feb. 14, 2014) (confidential source who

“received significant public benefit parole as a result of assisting government”

provided information included in affidavit in support of search warrant

application); see also, People v. Diaz, 97 NY2d 109, 119 n.2 (2001) (in

connection with describing efforts to secure presence of witness in Mexico,

prosecutor testified, “ I offered to have my office pay for his airfare and hotel

expenses in New York. I also offered to arrange with Immigration to allow

him into the country for the limited purpose of testifying here…”); cf. People

v. Grice, 84 AD3d 1419 (3d Dept. 2011) (“The People …timely applied for a

writ of habeas corpus ad testificandum to compel the attendance of [witness]

before County Court, but [witness] was deported prior to the court's execution

of the order. Thereafter, the Department of Homeland Security advised that,

as a removed alien, [witness] was not required to provide them with an

updated address and, therefore, his whereabouts were unknown. The People

were also notified by a member of the United States Immigration

Enforcement Unit that, even if [witness] were to be located, he would not be

permitted back into the country until three months had elapsed from the date

of his deportation and, then, only under special circumstances.”) (Unlike the

situation in Grice, over 17 months elapsed between Vanderlinde’s deportation

in 2013 and the trial in 2015 and, therefore, no reason to assume he would be

denied Significant Public Benefit Parole.)

20

The prosecutors tried to justify their dispensing with the unavailability

requirement by proclaiming that Vanderlinde posed too great a security risk

and that society should not have to bear any costs associated with that risk

because the People had his prior testimony: According to the prosecutor, the

“security interests of the People of the State of New York… are not furthered

by … [requiring] an individual like this be brought back into the country

when we have already obtained a transcript.

There is no right to

confrontation violation here because this witness has been thoroughly crossexamined.” This faux “cost-benefit” analysis was wrong on many levels; it is

not surprising that neither the trial nor the appellate court adopted it. See,

Maryland v. Craig, 497 U.S. 836, 870 (1990) (Scalia, J., dissenting) (“We are

not free to conduct a cost-benefit analysis of clear and explicit constitutional

guarantees, and then to adjust their meaning to comport with our findings.”)

Crawford’s pronouncement that there are two requirements for the

admission of testimonial statements of a witness not appearing at trial unavailability, and a prior opportunity for cross-examination – reflects the

recognition that cross-examination is only one of the core values at the heart

of the Confrontation Clause. The Confrontation Clause also encompasses a

strong preference for face-to-face confrontation so that the jury deciding the

defendant’s fate can “observe the demeanor of the witness in making his

statement, thus aiding the jury in assessing his credibility.” California v.

Green, 399 U.S. 149, 158 (1970); see also Maryland v. Craig, 497 U.S. 836,

21

844 (1990) (listing numerous cases making the same point). Viewing the

witness’s demeanor as an aid to assessing credibility is valuable not only to

the defendant but also to the State whose interest is obtaining a just verdict.

See Id. at 846 (“We have recognized, for example, that face-to-face

confrontation enhances the accuracy of factfinding by reducing the risk that a

witness will implicate an innocent person.”)

The New York courts allowed the prosecution to dispense with the

requirement of a face-to-face confrontation in this case without any showing

or finding that there was a necessity for doing so, and without identifying any

public policy or strong state interest that warranted the sacrifice of Mr.

Williams’ confrontation rights. This conflicts with this Court’s recognition

that, “in conformance with the Framers’ preference for face-to-face

accusation, the Sixth Amendment establishes a rule of necessity.” Ohio v.

Roberts, 448 U.S. at 65.

The Court elaborated in Maryland v. Craig: “That the face-to-face

confrontation requirement is not absolute does not, of course, mean that it

may easily be dispensed with. As we suggested in Coy [v. Iowa, 487 U.S.

1012 (1988)], our precedents confirm that a defendant’s right to confront

accusatory witnesses may be satisfied absent a physical, face-to-face

confrontation at trial only where denial of such confrontation is necessary to

further an important public policy and only where the reliability of the

testimony is otherwise assured.” 497 U.S. at 850 (emphasis added).

22

In Maryland v. Craig, the Court allowed that a state’s interest in

protecting child abuse victims from the emotional trauma of testifying is

sufficiently important to justify the use of a special procedure that permits a

child witness in such cases to testify at trial against a defendant in the

absence of face-to-face confrontation with the defendant.

The Court also

held, however, that it was not enough to identify such a generalized state

interest; a trial court must hear evidence and make a case-specific finding of

necessity. (In Maryland v. Craig, for example, the trial court was required to

find that the alternate procedure (the use of a one-way closed circuit

television procedure) was necessary to protect the particular child witness.)

Here, the prosecutors suggested that the expense and inconvenience of

monitoring

Vanderlinde

made

it

“necessary”

to

dispense

with

the

unavailability requirement. As Justice Harlan opined in California v. Green,

399 U.S. at 189 n.22 (Harlan, J., concurring), however, “added expense or

inconvenience is no excuse” for dispensing with the unavailability

requirement. Moreover, none of the supposed “costs” were substantiated or

found by the trial court. No showing of “necessity” having been demonstrated

or found, the New York decision cannot be squared with Supreme Court

precedent and should not be allowed to stand.

Finally, though the state authorities had contact information for

Vanderlinde in the Dominican Republic, they also made no effort to contact

him to ascertain his willingness to testify via video or Skype. Video testimony

23

is an available procedure recognized by the New York Court of Appeals. See

People v. Wrotten, 14 NY3d 33 (2009) (live two-way video testimony permitted

in rare case where key witness cannot physically travel to court in New

York); People v. Robert F., 25 NY3d 448 (2015) (Supreme Court has the

discretion to utilize live, two-way video testimony pursuant to its inherent

power, but only where exceptional circumstances so require, or when all

parties consent). Even if the prosecutors were sincere in their concerns about

the costs and risks associated with bringing Vanderlinde back to the United

States to testify, there were less costly alternatives that could have been

used; because the prosecutors also made no effort to employ any alternative,

no finding of necessity could reasonably have been made.

The New York court’s decision below cannot be squared with Barber v.

Page, Ohio v. Roberts, Crawford v. Washington, or Maryland v. Craig. These

decisions demand a rigorous showing before the values and protections

embodied in the Confrontation Clause may be excused. The state court below

flouted these decisions. Certiorari should be granted.

2. The New York Court’s analysis and its disregard of the mechanism

of Significant Public Benefit Parole conflicts with decisions of the

United States Court of Appeal for the Fifth Circuit.

The New York Court’s decision cannot be reconciled with the general

principles and core values articulated in this Court’s Confrontation Clause

precedent. This New York decision also conflicts with decisions from the

Fifth Circuit recognizing that “`good faith’ in the Confrontation Clause

24

context is an objective standard that looks to the reasonableness of the

government’s efforts to secure the witness, not the subjective intent of the

responsible officials,” and that, in the case of an absent witness who has been

deported, the failure to seek Significant Public Benefit Parole or to make (or

attempt to make) other arrangements for legal reentry is a significant factor

for a court to consider in assessing the reasonableness and good-faith of the

prosecutorial efforts.

United States v. Tirado-Tirado, 563 F.3d 117, 123-125

& n. 5 (5th Cir. 2009).

Based simply on the facts that Vanderlinde had been deported before

the second trial commenced, and was barred from re-entering the United

States, the New York court concluded that Vanderlinde’s testimony from the

first trial was properly admitted at the second trial.

It announced this

conclusion without saying one word about the specific procedure under

federal law that would have allowed his temporary re-entry to testify and the

lack of any efforts undertaken by the prosecutors to utilize this procedure.

The court ruled, “Under these circumstances, the court properly admitted

Vanderlinde’s testimony as the prosecutor’s failure to produce the witness

`was not due to indifference or a strategic preference for presenting [the

witness’s] testimony in the more sheltered form of [trial] minutes rather than

in the confrontational setting of a personal appearance on the stand.’ (People

v. Arroyo, 54 NY2d 576, 571).”

25

New York’s decision suggests that admissibility of prior testimony is to

be based not on an objective assessment of the efforts expended by state

officials to obtain an absent witness’s presence at trial, but, rather, on the

subjective intent and/or motivations of the prosecutors.

This analysis

conflicts the Fifth Circuit’s ruling in Tirado-Tirado that the “good-faith

effort” standard articulated by this Court in in Barber v. Page is measured

objectively not subjectively.

Certiorari should be granted to resolve this

conflict.

The New York courts’ disregard of Significant Public Benefit Parole as

an available mechanism for securing the presence of a witness who has been

deported also conflicts with the Fifth Circuit’s recognition that whether or not

officials have made an effort to employ this procedure, and whether or not

officials have made other concrete arrangements to facilitate the witness’s

legal reentry, are significant in making the “good faith” determination. In

Tirado-Tirado, for example, where the court found that the measures taken

by the government shortly before the start of trial did not constitute “goodfaith” or “reasonable” efforts to secure the physical presence of a deported

witness, the Fifth Circuit specifically compared the efforts undertaken in

other Fifth Circuit cases where good faith was found (United States v.

Calderon Lopez, 268 F.App'x 279, 289 (5th Cir. 2008); United States v. Allie,

978 F.2d 1401, 1407 (5th Cir. 1992)) with a case where it was not (United

States v. Guadian-Salazar, 824 F.2d 344, 346-47 (5th Cir. 1987).

26

In the

former, the government took concrete steps to arrange for the witnesses

reentry (including staying in contact with witnesses after their deportation,

requesting Significant Public Benefit Paroles, making arrangements with the

American Embassy, providing witnesses letters and subpoenas to facilitate

reentry, and alerting border inspectors to expect their arrival). In the latter,

by contrast, the efforts consisted of nothing more than vague and ambiguous

representations that provisions for the witness’s reentry would be made.

In Mr. Williams’ case, the New York court approved admission of

Vanderlinde’s prior testimony without state prosecutorial authorities making

any efforts to secure his presence. Granting certiorari would give this Court

the opportunity to resolve the conflict with the Fifth Circuit, and to clarify

whether, in the case of a witness who has been deported, no effort at all to

secure his reentry to testify can be considered reasonable.

3. The issue presented is important and likely to recur, and this case

presents an ideal vehicle for ensuring against the evisceration of the

Confrontation Clause for the sake of convenience.

Given the current administration’s expanded immigration enforcement

priorities and its policy of increasing deportations, issues concerning the

steps that must be taken before a deported witness’s prior testimony may be

used as evidence in a criminal trial without violating the Confrontation

Clause are likely to recur. This is an ideal case for certiorari because the facts

are clear: Claiming that securing the witness’s presence would be too

“onerous,” the People made absolutely no effort to secure the witness’s

27

presence at trial; and the state court did not find any necessity for limiting

the defendant’s confrontation rights.

This Court has made clear that there is no exception to the

Confrontation Clause on the basis of a witness’s “unavailability” unless “good

faith efforts” to secure the witness’s presence and the “reasonableness” of

those efforts have been demonstrated.

The terms “good faith” and

“reasonableness” are necessarily fact dependent, and courts may not

necessarily agree whether a particular set of circumstances rises to the level

of “good faith” or are “reasonable.” However, we have been unable to find

any other case where the prosecutor’s efforts to secure the presence of a

deported witness were deemed either in “good faith” or “reasonable,” and/or

where the witness was deemed “unavailable” when, as in this case,

prosecutors had both a way to contact the witness to ascertain his willingness

to testify and a method to produce the witness (either physically or virtually)

yet made no effort to do either.

This Court should grant certiorari to ensure that the excusing of all

effort in the case of deported witnesses does not take hold in New York or

elsewhere. As with any other witness, unless their “unavailability” is clearly

demonstrated, deported witnesses must be subjected to face-to-face

confrontation so that the fact-finders may properly gauge their demeanor.

In short, if the State wanted Vanderlinde’s testimony, it was obliged to

exert a good faith effort to obtain his presence. If the State wanted to save

28

the effort or expense, it was not obliged to use the witness’s testimony to

make its case. Cf. Davis v. Alaska, 415 U.S. 308, 320 (1974) (The State could

have protected Green from exposure of his juvenile adjudication in these

circumstances by refraining from using him to make out its case; the State

cannot, consistent with the right of confrontation, require the petitioner to

bear the full burden of vindicating the State's interest in the secrecy of

juvenile criminal records.”)

Granting certiorari would give the Court the

opportunity to reaffirm that the right of confrontation is paramount to the

State’s interest in expedience and cost saving. This is true in any case, but

especially in a case like Mr. Williams’ where the charges are so grave and the

penalty so severe.

CONCLUSION

This Court should grant certiorari.

Respectfully submitted,

November 19, 2018

Jane Simkin Smith

P.O. Box 1277

Millbrook, New York 12545

Counsel for Petitioner

29

APPENDIX

Decision & Order On Motion, Supreme Court of the State of New York, Appellate

Division: Second Judicial Department, People v. Eric Williams, Docket No. 201503387 (September 16, 2016) ……………………………………………………………. A.1

Decision & Order, Supreme Court of the State of New York, Appellate Division:

Second Judicial Department, People v. Eric Williams, Docket No. 2015-03387 (June

6, 2018), affirming judgment of County Court, Suffolk County, rendered April 3,

2015…………………………………………………………………………………………. A.3

Order Denying Leave, State of New York Court of Appeals, People v. Williams

(August 27, 2018)…………………………………………………………………………. A.7

Transcript excerpt (pre-trial proceeding, January 30, 2015), trial court’s ruling

granting People’s motion to admit prior testimony of Jose Vanderlinde ………… A.8

Transcript excerpt (post-trial proceeding, April 3, 2015), trial court’s denial of

defendant’s post-trial motions and reaffirming ruling admitting prior testimony of

Jose Vanderlinde ………………………………………………………………………... A.12

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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