Petition for Writ of Certiorari — Jomo Williams, Petitioner v. United States
Supreme Court briefAug 2, 2019
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RECORD NO. ________
IN THE
Supreme Court of the United States
JOMO WILLIAMS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Robin C. Smith, Esq.
Leean Othman, Esq.
Law Office of Robin C. Smith, Esq., P.C.
99 Wall Street, Suite 901
New York, NY 10005
(415) 726-8000
rcs@robinsmithesq.com
Counsel for Petitioner
LANTAGNE LEGAL PRINTING
801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477
QUESTIONS PRESENTED
1) Were Petitioner’s Fifth and Sixth Amendment due process rights obliterated
where the district court, not only permitted the prosecution to insert its
personal opinion during summation, but also precluded Petitioner from
introducing evidence of a 20 minute video of the government’s only noncooperator witness making a statement to prosecutors that significantly
diverged from his trial testimony, failing to apply the presumption of
admissibility required by Federal Rule of Evidence 402 and disregarding
Petitioner’s rights to present evidence and confront witnesses?
2) Were petitioner’s due process rights violated by the district court’s
commission of a blatant violation of Federal Rule of Criminal Procedure
43(a)(2) with the result that Petitioner was convicted and sentenced without
any inquiry into whether there was an impartial jury or whether any
prejudicial information was provided to the jury during improper
communications between the Court Security Officer and the jury?
i
LIST OF PARTIES IN THE COURT OF APPEALS
United States of America
Jomo Williams
STATEMENT PURSUANT TO RULE 14(1)(b)(iii)
United States v. Barbee et. al., 11-cr-663, is the trial court docket in the Southern
District of New York, from which this case originates. Petitioner had two
codefendants who did not appeal: Khalid Barbee and Kevin Prince.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................... i
PARTIES TO THE PROCEEDINGS ............................................................................ ii
STATEMENT PURSUANT TO RULE 14(1)(b)(iii) ...................................................... ii
TABLE OF AUTHORITIES .......................................................................................... v
OPINION BELOW......................................................................................................... 1
JURISDICTIONAL STATEMENT ............................................................................... 1
CONSTITUTIONAL AND STATUTORY PROVISION INVOLVED .......................... 2
STATEMENT OF THE CASE ....................................................................................... 2
REASONS FOR THE GRANTING OF THE WRIT ................................................... 18
POINT I:
THE COURT OF APPEALS’ DECISION CONFLICTS WITH
THIS COURT’S AUTHORITY IN CAL V. GREEN, 399 U.S. 149
(1970) AND APPELLATE AUTHORITY IN SCHLAIFER NANE
& CO. V. ESTATE OF WARHOL, 194 F.3d 323 (2d CIR. 1999),
AS THE TRIAL COURT FAILED TO APPLY THE
PRESUMPTION OF ADMISSIBILITY REQUIRED BY
FEDERAL RULE OF EVIDENCE 402 AND DISREGARDED
PETITIONER’S RIGHTS TO PRESENT EVIDENCE AND
CONFRONT WITNESSES, CALLING FOR AN EXERCISE OF
THIS COURT’S SUPERVISORY POWER. THE COURT OF
APPEALS’ DECISION ALSO CONFLICTS WITH APPELLATE
COURT AUTHORITY IN UNITED STATES V. MODICA, 663
F.2d 1173 (2d Cir. 1981), IMPROPERLY PERMITTING THE
GOVERNMENT’S PERSONAL OPINIONS TO BE INCLUDED
IN ITS SUMMATION IN RELATION TO GOVERNMENT
WITNESSES, CALLING FOR AN EXERCISE OF THIS
COURT’S SUPERVISORY POWER. ...................................................... 18
POINT II
THE COURT OF APPEALS’ DECISION DENYING
PETITIONER RELIEF FOR A SECURITY OFFICER’S
IMPROPER COMMUNICATIONS WITH THE JURY
CONFLICTS WITH APPELLATE AUTHORITY IN UNITED
STATES V. COLLINS, 665 F.3D 454 (2d CIR. 2012) AND
FEDERAL RULE OF CRIMINAL PROCEDURE 43(A)(2),
iii
REQUIRING THAT MESSAGES FROM A JURY BE
DISCLOSED TO COUNSEL, CALLING FOR AN EXERCISE OF
THIS COURT’S SUPERVISORY POWER. ............................................ 28
CONCLUSION............................................................................................................. 33
APPENDIX:
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER, USA V. JOMO WILLIAMS, 02/28/2019 .................................. A1
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
EN BANC DENIAL, USA V. JOMO WILLIAMS, 05/09/2019 ................................... A6
iv
TABLE OF AUTHORITIES
CASES
Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946) .......................................................... 19
Cal. v. Green, 399 U.S. 149 (1970) ............................................................ 18, 19, 22, 27
Colby v. Klune, 178 F.2d 872 (2d Cir. 1949) ............................................................... 20
Crane v. Ky., 476 U.S. 683 (1986) ............................................................................... 20
Darden v. Wainwright, 477 U.S. 168 (1986) ............................................................... 24
Del. v. Van Arsdall, 475 U.S. 673 (1986) ........................................................ 25, 26, 27
Doe v. N.Y.C. Dep't of Soc. Servs., 649 F.2d 134 (2d Cir.1981) ............................ 20, 21
Donnelly v. DeChristoforo, 416 U.S. 637 (1974) ......................................................... 24
Garson v. Commodity Futures Trading Comm'n, 927 F.2d 607 ............................... 19
Gimbel v. CFTC, 872 F.2d 196 (7th Cir. 1989) ........................................................... 19
Grannis v. Ordean, 234 U.S. 385 (1914) ..................................................................... 20
Hall v. Zenk, 692 F.3d 793 (7th Cir. 2012) ................................................................. 31
King v. United States, 576 F.2d 432 (2d Cir. 1978) .................................................... 30
Majidi v. Gonzales, 430 F.3d 77 (2d Cir. 2005) .......................................................... 20
In re Oliver, 333 U.S. 257 (1948) ................................................................................. 20
Remmer v. United States, 347 U.S. 227 (1954) ..................................................... 28, 29
Rogers v. United States, 422 U.S. 35 (1975) ............................................................... 32
Rushen v. Spain, 464 U.S. 114 (1983) ......................................................................... 32
Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323 (2d Cir. 1999) ...... 18, 20, 27
Stouffer v. Trammell, 738 F.3d 1205 (10th Cir. 2013) ............................................... 31
v
United States v. Barshov, 733 F.2d 842 (11th Cir. 1984) ..................................... 329, 0
United States v. Bowie, 892 F.2d 1494 (10th Cir. 1990)....................................... 23, 28
United States v. Canady, 126 F.3d 352 (2d Cir. 1977) ............................................... 31
United States v. Carr, 424 F.3d 213 (2d Cir. 2005) .............................................. 23, 24
United States v. Certified Envtl. Servs., 753 F.3d 72 (2d Cir.2014).............. 20, 22, 23
United States v. Claxton, 766 F.3d 280 (3d Cir. 2014) ......................................... 28, 29
United States v. Collins, 665 F.3d 454 (2d Cir. 2012) .................................... 28, 31, 32
United States v. Figueroa, 548 F.3d 222 (2d Cir. 2008) ............................................. 22
United States v. Hamilton, 107 F.3d 499 (7th Cir. 1997)........................................... 19
United States v. Harlow, 444 F.3d 1255 (10th Cir. 2006) .......................................... 23
United States v. Ianniello, 866 F.2d 540 (2d Cir. 1989) ....................................... 29, 31
United States v. Kerr, 981 F.2d 1050 (9th Cir. 1992) ........................................... 23, 24
United States v. Mejia, 356 F.3d 470 (2d Cir. 2004)................................................... 32
United States v. Modica, 663 F.2d 1173 (2d Cir. 1981) ............................ 18, 23, 25, 28
United States v. Moon, 718 F.2d 1210 (2d Cir. 1983) ................................................. 29
United States v. Ortiz, 362 F.3d 1274 (9th Cir. 2004) ................................................ 23
United States v. Owens, 426 F.3d 800 (6th Cir. 2005)................................................ 29
United States v. Roberts, 618 F.2d 530 (9th Cir. 1980) ........................................ 24, 28
United States v. Ronder, 639 F.2d 931 (2d Cir. 1981) ................................................ 32
United States v. Schor, 418 F.2d 26 (1969) ................................................................. 32
United States v. Schwarz, 283 F.3d 76 (2d Cir. 2002) ................................................ 30
United States v. Shaw, 829 F.2d 714 (9th Cir. 1987) ................................................. 23
vi
United States v. Strother, 49 F.3d 869 (2d Cir. 1995)(A. 197-198) ...................... 17, 22
United States v. Vega, 285 F.3d 256 (3d Cir. 2002) .................................................... 29
United States v. Vitale, 459 F.3d 190 (2d Cir. 2006) .................................................. 29
United States v. White, 692 F.3d 235 (2d Cir. 2012) .................................................. 22
STATUTES AND RULES
U.S. Const. Amend. V ............................................................................................ 27, 32
U.S. Const. Amend. VI................................................................................. 2, 27, 28, 32
28 U.S.C. § 1254(1) ........................................................................................................ 1
Fed. R. Crim. P. 43(a)(2) .............................................................................................. 32
Fed. R. Evid. 401 .......................................................................................................... 20
Fed. R. Evid. 402 .................................................................................................... 18, 19
Fed. R. Evid. 613 ............................................................................................................ 4
OTHER AUTHORITIES
ABA Standards for Criminal Justice, Standard 3-5.8(b) (1980) ................................ 23
vii
In the
Supreme Court of the United States
October Term, 2018
Jomo Williams,
Petitioner,
v.
United States of America,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
To secure and maintain the uniformity of judicial decisions, it is up to this
Court, Petitioner’s last resort, to remedy the due process violations and remedy the
lower courts’ decision in conflict with this Court’s and appellate court authority.
Both the lower court’s precedential conflicts, and the refusal to remedy Petitioner’s
due process violations, warrant the grant of the writ.
Opinion Below
The Summary Order of the Court of Appeals for the Second Circuit is
reproduced in the appendix bound herewith (A1).
Jurisdictional Statement
This Court has jurisdiction to review the judgment of the Court of Appeals
pursuant to 28 U.S.C § 1254(1). The Court of Appeals issued a summary order
affirming Petitioner's conviction on February 28, 2019 (A1). On May 9, 2019, the
Court of Appeals denied Petitioner's Petition for panel rehearing, hearing en banc
(A6).
1
Constitutional and Statutory Provisions Involved
The Constitutional provisions involved are the Due Process Clause of the
Fifth Amendment and the Confrontation protections of the Sixth Amendment to the
United States Constitution.
STATEMENT OF THE CASE
The government's second superseding indictment charged Petitioner with
four counts. The indictment alleged that Petitioner, also known as "Ojo," Khalid
Barbee, also known as "Sleazy," and others, agreed with each other to participate in
the armed robberies of drug dealers, including the robbery of a drug dealer in the
vicinity of 550 West 158th Street, New York, New York, during which Petitioner
shot and killed D'Angelo Jordan. Overt acts alleged in support of the conspiracy
included the October 11, 2006 robbery of Jordan, as well as one other incident in
which it was alleged that on October 16, 2006, Petitioner and another co-conspirator
not named as a defendant, traveled from the vicinity of Boston Road and East 169th
Street, Bronx, New York, to the vicinity of Mohegan Avenue, Bronx, New York (CA.
22-23).1
Video Statement of Joseph Rosario on October 16, 20062
Joseph Rosario was expected to testify that he drove Kevin Prince and
Petitioner to the murder of D’Angelo Jordan on October 11, 2006.
Numerical references preceded by “A” refer to the pages of the Appendix submitted herewith.
Numerical references preceded by “CA” refer to the Appendix submitted to the Court of Appeals.
Numerical references preceded by “T” refer to the trial transcript.
2Rosario's complete video statement, Court Exhibit 1, which was not admitted into evidence, is
included on disc in the Joint Appendix submitted in the Court of Appeals, at p. 42.
1
2
On October 16, 2006, government witness Joseph Rosario gave a videotaped
statement to a Bronx County Assistant District Attorney. Rosario explained in the
video statement that he worked as a cab driver for Diamond Luxury, a cab service.
In the statement, Rosario stated that he received a call from "customers" to pick
them up from "Boston Road, 169." Rosario then said that "really I was supposed to
pick up one," but that three men got in his car. Rosario elaborated that a person he
only knew as "K," was the customer who called him, and that when he picked up the
men, K sat in the front passenger seat. The customers did not give him an address,
but instead, directed him to make turns as he drove.
According to Rosario's video statement, he first met K after receiving a call
from Diamond Luxury to pick up a customer at "Westchester and Evergreen." When
he arrived at that first meeting, two males were going to "169 and Boston Road."
Rosario claimed that he could not say if the male he picked up with K the first time
was one of the passengers from October 16, 2006. Rosario explained in the recording
that from the first time he met K, five days before his video statement, he had
picked up K on five occasions in total (CA. 181, 190-191).
Rosario stated that K had called him sometime after ten, but that Rosario
was busy dropping off a client. After dropping off the other client, Rosario picked up
K and two other individuals after eleven (CA. 182).
Rosario complied as all the passengers give him directions. Rosario repeated
at this point in his story that, "as I've said before I don't know who's sitting behind
me." The directions ended up being that Rosario circled his car around "Mohegan"
3
three times and finally the men told him to stop, near a man who was sitting on top
of a large postal box off the sidewalk. Rosario double-parked and the customers got
out. Rosario heard shots and started to pull away, but two of the men got back in
his car, K in front, and the other one, who had been shot in the legs, in the back.
Rosario again repeated, in response to questioning, two additional times, that he
didn't know the man in the back and had never seen him before (CA. 183-184, 186187, 192).
Defense Application for Introduction of Rosario's Video
Statement into Evidence on the First Day of Trial.
In his May 3, 2014, Letter to the district court prior to trial, Petitioner
informed the court that government witness Joseph Rosario was expected to testify
that he drove Kevin Prince and Petitioner to the murder of D'Angelo Jordan.
Rosario said in his video statement that Petitioner and Prince had been in his cab
on October 16, 2006, when the cab was stopped by the police. A gun was discovered
in the car and the occupants were arrested. Rosario elaborated in the video that he
had never seen Petitioner before, and had only met Prince five days earlier.
Petitioner argued in the letter that Rosario's expected trial testimony would
contradict his video statement (CA. 176-177).
Petitioner argued that under Fed. R. Evid. 613, the video he sought to
introduce into evidence would not be admitted for its truth, but "to challenge the
trustworthiness of the witness' testimony." Petitioner emphasized that the video
statement was not hearsay,
4
We are merely placing the statements made by Mr.
Rosario in the context of a formal statement made to
prosecutorial officials in an effort to extricate himself from
a sticky situation. The comparison to his testimony here
including his demeanor and manipulation of facts under
authority are evident. . . [The video] is demonstrative
evidence of Mr. Rosario's ability and inclination to lie for
his own advantage.
Petitioner offered that he would not object to a charge that the video
statement would not be offered for its truth (CA. 177).
Government Opposition to the Introduction of Rosario's
Video Statement.
The government conceded in its May 4, 2014, Memorandum of Law in
opposition to the introduction of Rosario's video statement into evidence, that
Rosario's video statement to a Bronx Assistant District Attorney that Rosario had
never seen Petitioner before October 16, 2006, would contradict his expected
testimony at trial that he had known Petitioner for "some time -- days to weeks"
(CA. 206).
The government argued that the district court should not admit any portion
of Rosario's video statement that is "not actually inconsistent with the witnesses'
testimony and that the witness does not deny" (A. 203). The government contended
that the entire video statement should not be admitted, as Rosario's "demeanor
throughout the interview is clearly a collateral matter, which cannot be proved up
by extrinsic evidence" (CA. 203).
5
Argument Regarding Admission of the Video on May 5,
2014, the First Day of Trial.
Counsel again argued that Rosario's videotape is "demonstrative evidence
that puts in context his statement and his willingness to lie to authority and his
facility in doing that (CA. 30)."
Counsel argued that the content of Rosario's statement was not offered for its
truth, but for the reason it was uttered, and that there were enough inconsistencies
interspersed in the twenty minutes of video that the whole video should be admitted
for "context and method" (CA. 30-31).
Government Opposition to Admission of Video Statement.
The government conceded that Rosario's video statement that he had never
previously seen Petitioner would be inconsistent with Rosario's expected testimony
at trial that he had driven Petitioner, along with Prince ("K") and Douglas on
multiple occasions, including the night of the robbery homicide at issue at trial,
which occurred five days before Rosario made his video statement (CA. 32).
So, the government agreed that the statements in the videotape were noncollateral inconsistencies. However, the government contended that it expected that
Rosario would admit that he had made prior inconsistent statements. And, the
government argued, while this Circuit had not previously ruled on the issue, other
Circuits had determined that where a witness admits on the stand that he had in
fact made a prior inconsistent statement, that there is no need for any further
extrinsic impeachment. However, the government argued, if the court were to allow
Petitioner to introduce evidence of Rosario's prior video statements, Petitioner
6
should not be allowed to introduce the complete videotape, only the portions which
included the prior inconsistent statements (CA. 33-34).
Ruling on Admissibility of Prior Inconsistent Statements.
The district court ruled that if, when Rosario testified, he admitted the prior
inconsistent statements, then the court would not permit further impeachment. If
Rosario did not admit making the inconsistent statements, then the court would
allow video evidence only to the extent of the specific questions and answers that
were relevant to the inconsistent statements, not the entire videotape (CA. 35).
Testimony: Government's Case
In October of 2006, Linda Lawson lived on 158th Street in Manhattan,
between Broadway and Amsterdam. Lawson, walking home from Broadway, noticed
a dark station wagon with tinted windows that had a sticker that said "Rough
Riders." The station wagon was parked in front of a fire hydrant. While Lawson
stood on her stoop, through the front windshield, she observed three males inside
the car, one in the front and two in the back.3 Ten to fifteen minutes later, while in
her bedroom, which faced the street, Lawson heard a gunshot. Then, Lawson saw
ambulance lights, and a stretcher coming out of 550 158th Street, the building
across the street. According to New York City Police Department Detective Kevin
Rivera, who responded to investigate the shooting on October 11, 2006, at 580 W.
158th Street, Lawson identified Charles Gibson. Gibson had "a record" (T. 84-86,
89-90, 197, 199, 228).
3The time of the shooting was approximately 7-7:30 p.m., according to Police Officer Beyon Bassier,
who responded to the 911 call of the shooting at 550 W. 158th Street on October 11, 2006 (T. 54, 57).
7
Another eyewitness, Mr. Terry, identified a Mr. Haestie (T. 227-229). After
interviewing these two eyewitnesses, police were not looking for any individual with
dreadlocks (236). A few months later, Rivera interviewed Oneil Douglas (T. 201,
227-229, 236).
Joseph Rosario4 testified that he had been working as a cab driver in 2006 for
Diamond Luxury Cars. At that time, Rosario drove a Silver 2005 Dodge Magnum,
which had a sticker that said "Rough Riders" on it. In October of 2006, Rosario was
arrested with two individuals in his car, one named "K," and the other sported
dreadlocks. During his testimony, Rosario referred to the man with the dreadlocks
as "Dreads." Rosario testified that he had met K and Dreads "weeks" before he was
arrested. Later, Rosario met Smash [Oneil Douglas]. Typically, Rosario would pick
up K at 169th Street and Boston Road. K would pay Rosario at an hourly rate of
$35/hour to drive him to multiple stops with Dreads in the car, while K smoked
marijuana. According to Rosario, he twice drove K and Dreads to Washington
Heights to purchase marijuana. Rosario testified to previously identifying Dreads in
a photo array as well as in a single photo (T. 97-98, 100, 106-108, 110-111, 114, 116,
Gov. Ex. 3503D, 200). Rosario did not identify Dreads at trial.5
Weeks6 before Rosario's arrest, K called Rosario to pick him up on 169th
Street and Boston Road. When Rosario arrived, K was with Smash and Dreads, and
4Rosario
admitted that after pleading guilty, he is awaiting sentence in Westchester for "credit
cards" and driving with a suspended license. Rosario's promised sentence is one to three years in
state prison (T. 165-166).
5Rosario also identified Smash and K in photo arrays and individual photos (T. 111-113).
6Rosario acknowledged on cross-examination that the date of the robbery/shooting was October 11,
2006 (T. 183). Rosario's in-custody video statement was made on October 16, 2006. Rosario testified
at trial that the robbery/shooting was "weeks" prior to the October 16, 2006, incident (T. 117).
8
Rosario picked up the three men. At first, Rosario drove around while the other men
smoked marijuana. Eventually, they met up with another vehicle, a black Dodge
Magnum. Smash alighted Rosario's Magnum and entered the other Magnum,
directing Rosario to follow. Rosario followed the black Magnum to the corner of
Amsterdam and 158th Street, where Smash left the black Magnum and got back
into Rosario's Magnum. At Smash's instruction, Rosario followed the black Magnum
to Broadway and 158th Street, where Rosario pulled over (T. 117-121).
Smash, K and Dreads got out of the car, crossed the street and entered a
building, while Rosario waited. After a short period of time, Rosario heard gunshots
and saw the men exit the building, getting in his car with a "big brown bag" that
smelled of marijuana. Rosario drove away, brought Smash, who was carrying the
bag, to 158th Street and Amsterdam where the black Magnum was parked. K gave
Rosario a "little bag" of marijuana, which Rosario gave to a friend (T. 122-125).
Direct Examination of Rosario Regarding His October 16,
2006, Video Statement7
Q. Did you tell them [the Bronx Assistant District
Attorney] lies about certain things that had happened?
A. Yes.
Q. Did you tell them -- did you talk to them about when
you had first met K?
A. Yes.
Q. Did you tell them the truth about when you had first
met K?
A. No.
Q. What did you tell them about when you had first met
K?
A. That I had just met him.
Q. And, specific, were you asked the following questions
and did you give the following answers:
7 Quoted portions of Rosario's video statement are italicized here.
9
Q. And you stayed, so when -- how long ago did you first
picking up K.
A. Five, five days ago. Five days ago.
Q. Five days. So you've known him?
A. Something like that.
Q. So you've known him within just this past week?
A. Yeah.
Q. That's the first time you gave him a ride?
A. Yeah.
Q. And on what date did you give him your phone
number?
A. The same day I picked him up.
Q. Okay.
A. Sunday.
Q. And, on Sunday -- so it was a week ago that you met
him, last Sunday?
A. On a Sunday, yeah. Yeah.
MR. MAIMIN:
Did you, in fact, get those questions
and give those answers?
A. Yes, I did.
Q. Was it true that you had met K only within the last
five days to about a week?
A. No, it wasn't true.
Q. How long ago had you actually met K?
A. Weeks ago.
Q. Why did you give those answers?
MR. COHN : Objection.
THE COURT: Overruled. You may answer.
Q. Why did you give those answers?
A. The reason I gave those, answers, I wasn't trying to
look like I was hanging out with them.
Q. And why was that?
A. Because of things that they were doing.
Q. And then did you also talk to the detectives and the DA
about when you had first met the guy with the dreads?
A. Yes.
Q. Did you tell them the truth about that?
A. No.
10
Q. What did you tell them about when you had first met
the guy with the dreads?
A. That I had -- that I never seen him before.
Q. In particular were you asked the following question
and did you give the following answer.
Q. And you never seen him before, the person who got shot
in the back of the -- in the leg, had you ever seen him
before?
A. No, never. No. I don't know him. Never seen him before.
Q. Did you get that question and did you give that
answer?
A. Yes, I did.
Q. Was that true?
A. No, that wasn't true.
Q. Why did you give that answer?
A. I was confused.
MR COHN: Objection.
THE COURT: Overruled.
A. I was confused.
Q. What were you confused about?
A. I thought they was referring to the guy that ran out the
car.
Q. But you also discussed the guy with the dreads, right?
A. Yes, I did.
Q. Were you asked the following question and did you give
the following questions and answers:
Q. Okay. And you said, so you've known -- you don't know
K by any other name?
A. No, I don't. I don't know.
Q. Okay. And before a week ago you'd never seen him
before?
A. No, just yesterday and today. They was forcing me to
run, run, run, run, run, run. I was scared.
Q. Okay
A. Telling me.
Q. And the passenger in the back, you'd never seen either
of them before?
A. Okay.
Were you given those questions and did you give
those answers?
A. Yes, I did.
11
Q. Were those accurate?
A. The -- the part that I said that I met him, that I never
met him before, no, it wasn't.
Q. Had you, in fact, met the man with the dreads before?
A. Yes, I did.
Q. When had you met him before?
A. On weeks ago.
Q. Had you, in fact, met K more than a week earlier?
A. Yes, I did.
Q. Had you met the other man in the back before?
A. No.
Q. Why is it that you gave those answers?
A. I wasn't trying to look like I was hanging out with
them.
Q. Was there anything else that you were trying to do
while you were in that interview room?
A. I was trying to speed up the process and go back
downstairs.
Q. Why was that?
A. I didn't want to make it look like I was talking to
detectives.
(T. 134-138).
Jason Elder,8 who was incarcerated at MDC Brooklyn after pleading guilty to
drug conspiracy, possession of a firearm, robbery and retaliating against a witness,
identified Petitioner at trial as "Ojo," one of the people with whom he committed
robberies. Elder admitted that Petitioner had a child with his sister, as well as also
having children with another woman named April. Elder claimed that he first met
Petitioner in 2000-2001, when he purchased marijuana from him. Elder alleged that
beginning around 2001 to 2002, he and Petitioner, along with "Fatal," "KB," and
"Menace," calling themselves the "Clean-up Crew," robbed drug dealers, who they
8Elder admitted his involvement with violent robberies of drug dealers, stores, and delivery trucks.
Elder acknowledged that he had: participated in shootings, had sold crack-cocaine in Monticello,
New York, had violated parole and, with others, assaulted a government witness to make it look like
he himself was not an informer (T. 539-550).
12
targeted because they would not report their loss. The crew would routinely set up a
dealer by pretending to purchase drugs, and then when the dealer would show the
drugs, members of the crew brandished guns and stole the drugs. Elder claimed
that for transport to and from the robberies, the crew would enlist a luxury cab
driver to provide transportation. But, they would not tell the cab driver of the
details of the crimes that they planned, or had committed (T. 535-536, 539-543).
Elder described that in 2002, on Intervale Avenue in the Bronx, he, along
with Petitioner, who was armed with a gun, "Fatal," "KB," "Slim," who was armed
with a gun, and a female whose name Elder forgot, robbed a store of money and
bundles of heroin. Also, in 2002, on Washington Avenue, in the Bronx, Elder,
Petitioner and others, armed with guns, rushed into a drug location, stealing money
and cocaine from the drug dealer. According to Elder, Petitioner pled guilty to
participating in this robbery and was released from prison on or about July 17, 2006
(T. 544-547).
Elder testified that Smash and Petitioner attempted to involve him in the
robbery of a marijuana dealer named Dio in October 2006, but Elder did not want to
participate because he was making money selling crack, and it was his birthday.
Elder claimed that he avoided Petitioner's calls on the day of the robbery, but that
afterwards, on October 11, Petitioner bragged to Elder that the victim had
challenged him so he shot him in the head. According to Elder, Petitioner also
boasted that he had gotten two pounds of marijuana from the robbery (T. 552, 554,
570).
13
Oneil Douglas,9 who had been a drug dealer in October, 2006, testified that
"D'Angelo" supplied him with an exotic marijuana called Purple Haze. Douglas
testified that he, Petitioner, "Fatal" (Kevin Prince), and "Sleazy" (who Douglas also
knew as Khalil) participated in D'Angelo's robbery. Douglas was the mastermind of
the D'Angelo robbery, because he knew him to be a drug dealer, who wouldn't call
the police, and who had been robbed before and "took nothing of it." Douglas
testified that he approached D'Angelo and told him that he had customers that he
wanted D'Angelo to sell marijuana to. Douglas also arranged with Petitioner and
Fatal to pretend that they were robbing Douglas and D'Angelo, and to rough
Douglas up so it would appear as if he was the victim. Douglas enlisted Sleazy to
drive Douglas to and from a robbery, but did not get into detail with him about the
specifics of the crime. However, Douglas asked Sleazy to obtain a gun for him,
Sleazy agreed and helped Douglas obtain a .9 millimeter firearm (T. 287, 312-314,
325, 329-330, 341-345).
Before the robbery, Douglas coached Petitioner and Fatal to be sure to rough
him up and planned that Petitioner and Fatal would arrive in a separate car
because Douglas had told D'Angelo that his buyers had come from out of state. Also,
Douglas wanted Sleazy to drive him so that he would not be associated with the
others in the event that something went wrong (T. 348).
On D'Angelo's block, Douglas instructed Fatal to have the driver park at a
fire hydrant. Douglas walked past Fatal's car to D'Angelo's building, rang the bell
9Douglas admitting to being a contract killer and a drug dealer, to being involved with shootings,
stabbings, and arranging the beating of a government witness. Douglas also admitted being a
member of the 240 Crew, who sold drugs, and committed robberies and shootings (T. 296-312).
14
and went inside the building. D'Angelo showed Douglas the marijuana. Douglas
smelled it, noted his approval and called Fatal to come into the building. Douglas let
Fatal and Petitioner into the building. Fatal and Petitioner examined the bag of
marijuana, said it was good, and then Petitioner pulled out the gun. Douglas acted
surprised, but D'Angelo leaped on Petitioner and Petitioner pushed him and shot
him. Petitioner and Fatal fled and Douglas ran with them, jumping into the same
car that Petitioner and Fatal arrived in, driven by "J." J dropped Douglas off at
Sleazy's car. Sleazy and Douglas disposed of the gun by throwing it into "a body of
water" (T. 349-352, 377).
Medical Examiner's Testimony
Dr. Lara Goldfeder was qualified by the district court as an expert in forensic
pathology. In 2006, Goldfeder was employed as a Senior Medical Examiner for the
City of New York at the Office of the Chief Medical Examiner. Goldfeder performed
the autopsy on D'Angelo Jordan and prepared the autopsy report admitted into
evidence as Government's Exhibit 300 (T. 243-248).
According to the external examination conducted by Goldfeder of D'Angelo
Jordan, Jordan stood five-foot-five inches tall and weighed "about 150 pounds."
Jordan sustained a single gunshot wound, perforating his torso. The bullet entered
"almost midline in the middle of [Jordan's] back between the shoulder blades. After
the bullet perforated the back, it, traveling at a downward trajectory10 fractured a
rib, entered the right lung, perforated the right side of Jordan's heart and exited on
10The bullet entered Jordan's body 12 3/4 inches from the top of his head and exited Jordan's body 20
inches from the top of Jordan's head (T. 261). Joseph Rosario, who was arrested with Williams and
stayed in a cell with him for hours, testified that Williams is taller than five foot eleven (T. 188).
15
the upper portion of his right abdomen below the rib cage.” The cause of death was
the gunshot wound (T. 249-251, 258-259, 261).
The autopsy generated no evidence that the gun was fired at close range and
Jordan's back "had to be facing the muzzle of the gun" (T. 256, 259).
Court Warns Audience Not To Make Threatening
Gestures.
Following Oneil Douglas' testimony, outside the presence of the jury, the
government informed the court that Douglas believed that at least one member of
the courtroom audience had made "intimidating motions" to him. According to the
government, "one of the marshals said that he saw similar motions." The
government requested that the court remind the jury not to say or do anything. The
government informed the court that it would like to be able to signal the court in
the event a threatening motion is made so that "whoever is making any
intimidating motions can be spoken to and possibly ejected from the courtroom."
Before the jury entered the courtroom, the court warned the audience that they
were not permitted to make any gestures or vocalizations during the trial (T. 362363).
The Government's May 11, 2014, Memorandum in
Support of Introduction of Portions of Rosario's Video
Statement.
Days after Rosario's testimony had concluded, on May 11, 2014, the
government sent a weekend memorandum to the court withdrawing its objection to
the introduction of the portions of Rosario's video statement that constituted prior
inconsistent statements. The government changed positions, it explained, based
16
upon a Second Circuit case it discovered after submitting its May 4, 2014,
Memorandum, United States v. Strother, 49 F.3d 869 (2d Cir. 1995)(A. 197-198).
The government explained that in Strother, the district court had precluded the
defense from admitting business records into evidence. This court determined that
the district court had erred and that the evidence was admissible as prior
inconsistent statements. In holding that the exclusion of the evidence was not
harmless, this Court held that "extrinsic evidence of a prior inconsistent statement
is more persuasive to a jury than a witness's acknowledgement of inconsistencies in
a prior statement." The Court of Appeals further held that because of the exclusion
of the evidence, Strother was "restricted from effectively presenting his defense"
(CA. 199).
The government informed the court that "in light of Strother, and in the
interest of caution and justice, and in light of the government's inadvertently
incomplete recitation of the law in its original Memo," it would withdraw its
objection to the introduction of the portions of the video statement that constituted
prior inconsistent statements (CA. 200).11
11The government noted in the Memorandum that it had discussed the issue with Williams' counsel
and that it would prepare a stipulation to allow the introduction of the portions of the video to which
the government did not object. The government also requested limiting instructions. First, the
government requested an instruction that the portions of the video were offered not for the truth of
the matter asserted, but for the purposes of impeachment. The government requested that the jury
be specifically instructed that it may not conclude that "the witness told the truth in these video
statements and act accordingly. Rather, you can consider these video statements solely in evaluating
the witness' credibility when he testified." The government also requested Sand's Modern Federal
Jury Instructions on a witness' prior inconsistent statement (A. 200-201).
17
Defense Case
April Ryan, the mother of three of Petitioner's children, testified that on the
evening of October 11, 2006, she and Petitioner were at home with the children for
the whole evening except when Petitioner went to the store for approximately ten
minutes. Ryan testified that Petitioner had returned home from parole between one
and two p.m and stayed home. (T. 612-614, 619, 634).
Petitioner introduced portions of Rosario's video statement (T. 639-641). The
district court instructed the jury at the time the portions of the video statement
were introduced that:
[t]he statements made by Mr. Rosario in the video are not
being offered for the truth of the matter asserted but,
rather, for the limited purpose of impeachment. As I will
explain in greater detail tomorrow, that means that you
may not conclude that the witness told the truth in this
video or in these video statements and acted accordingly.
Rather, you can consider these video statements solely in
evaluating the witness' credibility when he testified
before you on the stand.
(T. 641).
REASONS FOR THE GRANTING OF THE WRIT
POINT I
THE COURT OF APPEALS’ DECISION CONFLICTS
WITH THIS COURT’S AUTHORITY IN CAL V. GREEN,
399 U.S. 149 (1970) AND APPELLATE AUTHORITY IN
SCHLAIFER NANE & CO. V. ESTATE OF WARHOL,
194 F.3d 323 (2d CIR. 1999), AS THE TRIAL COURT
FAILED TO APPLY THE PRESUMPTION OF
ADMISSIBILITY REQUIRED BY FEDERAL RULE OF
EVIDENCE 402 AND DISREGARDED PETITIONER’S
RIGHTS TO PRESENT EVIDENCE AND CONFRONT
WITNESSES, CALLING FOR AN EXERCISE OF THIS
18
COURT’S SUPERVISORY POWER. THE COURT OF
APPEALS’ DECISION ALSO CONFLICTS WITH
APPELLATE COURT AUTHORITY IN UNITED
STATES V. MODICA, 663 F.2d 1173 (2d Cir. 1981),
IMPROPERLY PERMITTING THE GOVERNMENT’S
PERSONAL OPINIONS TO BE INCLUDED IN ITS
SUMMATION IN RELATION TO GOVERNMENT
WITNESSES, CALLING FOR AN EXERCISE OF THIS
COURT’S SUPERVISORY POWER.
The district court (and ultimately the Court of Appeals by affirming the
district court’s decision), unfairly refused to apply the presumption of admissibility
created by Federal Rule of Evidence 402, which states that all relevant evidence is
admissible, during Petitioner’s attempt to admit the videotape evidence, depriving
him of a fair trial. The district court abused its discretion when it held that the
probative value of the recording was “very low,” as it has long been held that a
witness’ demeanor, or the manner in which they tell their story, is a central, crucial
matter. See generally, Cal. v. Green, 399 U.S. 149, 158 (1970)(the purpose of the
Confrontation Clause of the Sixth Amendment is to permit the fact-finder to assess
the demeanor of the witness in making his statement, thus aiding the jury in
assessing his credibility); United States v. Hamilton, 107 F.3d 499, 505 (7th Cir.
1997)(“the goal of a criminal proceeding is to uncover the truth.... The rights of
cross-examination and confrontation ... are all directed toward this goal. In such an
undertaking, the finder of fact is called upon to determine the veracity of the
testifying witnesses based, inter
alia,
upon
the witnesses' demeanor while
testifying”); Arnstein v. Porter, 154 F.2d 464, 470 (2d Cir. 1946)(“For the demeanor
of witnesses is recognized as a highly useful, even if not an infallible, method of
19
ascertaining the truth and accuracy of their narratives”); Garson v. Commodity
Futures Trading Comm’n, 927 F.2d 607, 607 (citing Gimbel v. CFTC, 872 F.2d
196(7th Cir. 1989)(“the demeanor of the witnesses and their presentation of
evidence is crucial in weighing the evidence”);Schlaifer Nance & Co. v. Estate of
Warhol, 194 F.3d 323, 340 (2d Cir. 1999)("seeking the admission of video and
photographs of a witness is hardly unusual" . . . "attacking a witness's demeanor, if
relevant, is a fully acceptable and expected litigation tactic); Majidi v. Gonzales, 430
F.3d 77, 81 n.1 (2d Cir. 2005)(assessing a witnesses testimony along with his
demeanor are central to determining credibility). The Second Circuit has explained
that “trial on oral testimony, with the opportunity to examine and crossexamine witnesses in open court, has often been acclaimed as one of the persistent,
distinctive, and most valuable features of the common-law system. For only in such
a
trial
can
the
trier
of
the
facts
(trial
judge
or
jury)
observe
the witnesses' demeanor; and that demeanor . . . is recognized as an important clue
to witness' credibility.” Colby v. Klune, 178 F.2d 872, 873 (2d Cir. 1949).
The Confrontation Clause provides that, "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him."
Additionally, an essential component of procedural fairness is an opportunity to be
heard. Crane v. Ky., 476 U.S. 683, 690 (1986)(citing In re Oliver, 333 U.S. 257, 273
(1948); Grannis v. Ordean, 234 U.S. 385, 394 (1914). In general, evidence is relevant
if it has any tendency to make a material fact more or less probable than it would be
otherwise. See Fed. R. Evid. 401. "[E]vidence need not be conclusive in order to be
20
relevant. An incremental effect . . . is sufficient." United States v. Certified Envtl.
Servs., 753 F.3d 72, 90 (2d Cir.2014)(quoting Doe v. N.Y.C. Dep't of Soc. Servs., 649
F.2d 134, 147 (2d Cir.1981).
Prosecution witness Joseph Rosario admitted at trial that he lied in his video
statement when he stated that he never met Petitioner before October 16, 2006. He
also lied when he explained that he had only known Prince for five days. Had
Petitioner been able to admit the full video statement into evidence, he could have
demonstrated successfully to the jury that they could not believe Rosario’s trial
testimony because, according to his story that he lied in the videotape, he could lie
without any outward sign. Counsel could have played an excerpt in which Rosario
claimed he was telling the truth and excerpts that Rosario claimed were lies. As
there was no noticeable difference, counsel could have argued that Rosario was such
a skilled liar that he could lie without any indication, justifying the jury to
disregard his testimony in its entirety.
In finding that the entire video would have “confused the issues,” and wasted
time, the district court failed to specify what confusion would result. Permitting the
jury to see only excerpts made the video far more confusing and out of context.
Additionally, considering that the video was only twenty minutes long and was
proffered on a crucial issue, the credibility of the government’s only non-cooperator
witness, such relevant evidence would not have been a waste of time.
The video-taped exchange between Rosario and the ADA on the issue of
Rosario's prior acquaintance with Williams was not confusing. Introducing the
21
entire video statement was the only way that the jury could fully assess the
credibility of Rosario's statement that he was confused. The jury would have been
able to see that Rosario was so quick to understand that there was almost no delay
between the ADA's asking of a question and Rosario's answer. The district court's
refusal to permit introduction of the evidence was an abuse of discretion. Williams
was deprived of his right to present a defense and his right to due process of law
because he was not given the opportunity to challenge Rosario's claim that he was
confused. The Court of Appeals’ sanction of the district court's preclusion of this
essential evidence requires the grant of the writ. United States v. White, 692 F.3d
235, 244 (2d Cir. 2012)(quoting United States v. Figueroa, 548 F.3d 222, 226 (2d Cir.
2008)(a district court abuses its discretion when the court's determination is based
on clearly erroneous fact-finding or cannot be located within the range of
permissible decisions).
Precluding Petitioner from admitting the videotape failed to apply the
presumption of admissibility required by Rule 402, and deprived him of his
fundamental rights to cross-examine witnesses against him and present evidence in
his defense. Prohibition of a valuable opportunity to cross-examine Rosario and
make him explain his lies, deprived Petitioner of his rights to present a defense and
confrontation, warranting the grant of the writ. Green, 399 U.S. at 158 (1970);
Certified Envtl. Servs., 753 F.3d at 90; Strother, 49 F.3d at 876. Given that the
Court of Appeals’ affirmance conflicts with this Court’s and appellate court
authority on a defendant’s Constitutional right to present evidence and confront
22
and cross-examine witnesses against him, this Court should exercise its supervisory
power.
The Prosecution’s Improper Prejudicial Comments During Summation.
"It is well established that prosecutors may not 'vouch for their witnesses'
truthfulness.'" Certified Envtl. Servs., 753 F.3d at 94 (quoting United States v. Carr,
424 F.3d 213, 227 (2d Cir. 2005)(quoting United States v. Modica, 663 F.2d 1173,
1179 (2d Cir. 1981)). Courts have held that “it is error for the prosecution to
personally vouch for the credibility of a witness.” United States v. Harlow, 444 F.3d
1255, 1262 (10th Cir. 2006)(citing United States v. Bowie, 892 F.2d 1494, 1498 (10th
Cir. 1990)). “Argument or evidence is impermissible vouching ... if the jury could
reasonably believe that the prosecutor is indicating a personal belief in the witness'
credibility . . . through explicit personal assurances of the witness' veracity…”
Harlow,
444
F.3d
at
1262
(quoting
Bowie
819
F.2d
at
1498)).
A prosecutor also may not "express his or her personal belief or opinion as to the
truth or falsity of any testimony or evidence or guilt of the defendant." Modica, 663
F.2d at 1178 (quoting ABA Standards for Criminal Justice, Standard 3-5.8(b)
(1980)). “Whether the witnesses have testified truthfully, of course, is entirely for
the jury to determine; it is improper to communicate that a credibility
determination has been made by the AUSA, law enforcement agents, or the court,
or that the government knows whether the witness is being truthful and stands
behind the veracity of the witness's testimony." United States v. Ortiz, 362 F.3d
1274, 1279 (9th Cir. 2004)(citing United States v. Shaw, 829 F.2d 714, 717 (9th Cir.
23
1987); United States v. Kerr, 981 F.2d 1050 (9th Cir. 1992)). Courts have also
cautioned that when “trying to bolster a witness's credibility, a prosecutor may not
overstep the bounds of propriety and fairness. Improper vouching occurs when
the prosecutor places ‘the prestige of the government behind the witness’ by
providing ‘personal assurances of [the] witness's veracity.’” Kerr, 981 F.2d at 1053
(quoting United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)).
A persistent theme throughout the government's summations was that the
witnesses who testified pursuant to cooperation agreements had an "incentive" to
tell the truth because if they did not, it would be "automatic," and "guaranteed,"
that they would be in jail for "life," or fifty years (T. 693-694, 768-770). No defense,
even Petitioner's alibi, could possibly compete against the prosecutors' repeated
argument that if the witnesses did not tell the truth, then they would get an
automatic life or fifty-year sentence, violating Petitioner's right to due process of
law. Darden v. Wainwright, 477 U.S. 168, 181 (1986); Carr, 424 F.3d at 227. As this
Court explained in Darden, when faced with improper prosecutorial comments, “the
relevant question is whether the prosecutors' comments ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’” Darden, 477
U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). Given that
defendants have no power to create the incentives created by the government's
cooperation agreement and the government’s persistent comments to the jury that
the witnesses had an incentive to tell the truth, when it is the jury’s role alone to
determine witness credibility, the unfairness that infected Petitioner’s trial is
24
unmistakable. In addition, as recognized in Carr, “it is well established that
prosecutors may not 'vouch for their witnesses' truthfulness.'" Carr, 424 F.3d at
227(quoting Modica, 663 F.2d at 1179). Therefore, the government’s continual
comments regarding the truthfulness of their witnesses was a blatant violation of
Appellate case law. As a result of the Court of Appeals’ decision conflicting with
appellate court authority and failing to remedy Petitioner’s due process violations,
this Court should exercise its supervisory power and grant the writ of certiorari.
The Writ Should be Granted Because Petitioner Was Deprived of His Due Process
Rights By The Combined Errors at Trial, 1) Denial of Petitioner’ Right to Confront
Rosario; and 2) Improper Comment During Summation.
The Court of Appeals affirmation of the district court’s denial of Petitioner's
right to confront Rosario and present a defense, and, the government's improper
comments during summation, especially when combined, prejudiced Petitioner. This
Court held in Del. v. Van Arsdall, 475 U.S. 673, 684 (1986), that when assessing the
harm done from wrongfully denying a defendant an opportunity to cross-examine,
the correct inquiry is whether a reviewing court would find the error was harmless.
Factors considered include: the importance of the witness' testimony in the
prosecution's case, whether the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the witnesses’ testimony, the extent of
cross-examination otherwise permitted, and the overall strength of the prosecution's
case. Van Arsdall, 475 U.S. at 684.
The government's case was far from strong: First, there was only one alleged
witness to the actual robbery/shooting, Oneil Douglas. Douglas admitting to being a
25
contract killer, a drug dealer, and arranging the beating of a government witness.
Douglas' testimony implicating Petitioner in the murder was highly suspect.
Douglas glossed over the details as to how the shooting happened because the
forensic evidence from the medical examiner directly contradicted Douglas' version
on two important scores: 1) by Douglas' testimony, the shooting occurred when
Jordan jumped Petitioner, however, there were no powder burns present on Jordan,
which would have been present had the shooting occurred the way Douglas claimed;
2) the path of the fatal bullet went on a downward trajectory of about eight and a
half inches from back to front, which made Douglas' version that Jordan (who was
five foot five) was shot by Petitioner (who was five foot eleven), not possible. When
considered in light of Petitioner's alibi, and the lack of consistency in the
government's proof with the medical examiner's report, the government's case was
weak.
Oneil Douglas' testimony that he couldn't exactly remember where or when,
but that he threw the gun that killed Jordan into "a body of water," also
demonstrated the government’s weak case. Elder, who claimed that Petitioner
admitted to shooting Jordan, had a history of falsely accusing people, including
giving police false leads (T. 575-576). Elder also beat up supposed cooperators in
jail, just to make it look like he was not a cooperator himself (T. 563). As selfinterested individuals, Douglas and Elder knew that the only way to save
themselves would be to cooperate and testify as to the version of events adopted by
the government.
26
Other Van Arsdall factors support a finding that the error in not admitting
the complete video statement was not harmless. Rosario was the government's only
non-cooperator eyewitness who identified Petitioner. Thus, the issue of Rosario's
credibility was a central, noncollateral issue, and introduction of the complete video
would not have been cumulative, but would have been clarifying, because admitting
only excerpts was confusing. Van Arsdall, 475 U.S. at 684.
In sum, the district court failed to apply Rule 402’s presumption of
admissibility when Petitioner attempted to proffer evidence, but routinely applied it
to the prosecution. The district court violated Petitioner' Fifth and Sixth
Amendment rights to present a defense and to confront witnesses against him, by
precluding the introduction of inconsistent statements made by Rosario, and then
later, after Rosario had left the witness chair, admitting into evidence only video
excerpts. The prosecutors committed misconduct by arguing that the witnesses who
testified pursuant to cooperation agreements must have been truthful because were
they not, they would receive "automatic" lengthy prison terms. The Court of Appeals
decision affirming the district court is contrary to this Court’s precedent in Green,
399 U.S. at 158, which decided that the purpose of the Confrontation Clause is to
permit the fact-finder “to observe the demeanor of the witness in making his
statement, thus aiding the jury in assessing his credibility,” and appellate court
precedent in Estate of Warhol, 194 F.3d at 340, resulting in denying Petitioner his
right to admit evidence in his defense and precluding the jury from assessing
witness demeanor and credibility. Because the Court of Appeals decision
27
disregarded
Petitioner’s
right
to
admit
Rosario’s
inconsistent
statements,
precluding the jury from being able to fully assess his credibility as a witness, the
decision was contrary to this Court’s authority, warranting this Court to exercise its
supervisory power.
The Court of Appeals decision affirming the district court also conflicts with
its own precedent in Modica, 663 F.2d at 1179, and other appellate court precedent
in Bowie, 892 F.2d at 1498 and Roberts, 618 F.2d at 533, improperly permitting the
government’s expressions of personal opinions in relation to the testimony of
government witnesses.
The Court of Appeals’ decision conflicts with this Court’s and appellate court
precedent, as to call for the exercise of this Court’s supervisory power.
POINT II
THE COURT OF APPEALS’ DECISION DENYING
PETITIONER RELIEF FOR A SECURITY OFFICER’S
IMPROPER COMMUNICATIONS WITH THE JURY
CONFLICTS WITH APPELLATE AUTHORITY IN
UNITED STATES V. COLLINS, 665 F.3D 454 (2d CIR.
2012) AND FEDERAL RULE OF CRIMINAL
PROCEDURE 43(A)(2), REQUIRING THAT MESSAGES
FROM A JURY BE DISCLOSED TO COUNSEL,
CALLING FOR AN EXERCISE OF THIS COURT’S
SUPERVISORY POWER.
“It is fundamental that every litigant who is entitled to trial by jury is
entitled to an impartial jury, free to the fullest extent practicable from extraneous
influences that may subvert the fact-finding process.” U.S. Const. Amend. VI;
United States v. Claxton, 766 F.3d 280, 299 (3d Cir. 2014). Consequently, as this
Court has long held, "any private communication, contact, or tampering directly or
28
indirectly, with a juror during a trial about the matter pending before the jury is …
deemed presumptively prejudicial.” Remmer v. United States, 347 U.S. 227, 229
(1954). "The presumption is not conclusive, but the burden rests heavily upon the
Government to establish, after notice to and hearing of the defendant, that such
contact with the juror was harmless to the defendant." Remmer, 347 U.S. at 229. A
district court “must conduct a voir dire of all jurors with whom the improper
communication occurred that is sufficiently tailored to probe adequately the
possibility of prejudice.” Claxton, 766 F.3d at 300 (quoting United States v. Vega,
285 F.3d 256, 266 (3d Cir. 2002)(emphasis in original). This hearing is called a
Remmer hearing. Claxton, 766 F.3d at 300; United States v. Owens, 426 F.3d 800,
805 (6th Cir. 2005)(We require a Remmer hearing whenever the defense raises a
colorable claim of extraneous influence).
The Second Circuit held in United States v. Vitale, 459 F.3d 190, 193-95 (2d
Cir. 2006), that where the defendant has brought to the court's attention, a likely
confluence of innocent events, where the record does not exclude less innocent
inferences drawn from the prosecutor's failure to disclose a possible relationship
between a juror and the husband of a prosecutor, a hearing is mandated.
A "'duty to investigate arises . . . when the party alleging misconduct makes
an adequate showing of extrinsic influence to overcome the presumption of jury
impartiality.'" United States v. Ianniello, 866 F.2d 540, 543 (2d Cir. 1989)(quoting
United States v. Barshov, 733 F.2d 842, 851 (11th Cir. 1984)). Indeed, in Ianniello,
the Court of Appeals held that a post-trial hearing is mandatory "when a party
29
comes forward with 'clear, strong, substantial and incontrovertible evidence . . . that
a specific, non-speculative impropriety has occurred[.]'" Id. (quoting United States v.
Moon, 718 F.2d 1210, 1234 (2d Cir. 1983)(alterations in original); cf. King v. United
States, 576 F.2d 432, 438 (2d Cir. 1978); United States v. Schwarz, 283 F.3d 76, 98
(2d Cir. 2002).
During the trial, audience members vocalized and made gestures during
Oneil Douglas’ testimony. Further, during deliberations, a court security officer
("CSO") told the jury that they could be heard in the courtroom, warning they might
want to lower their voices (CA. 48). Following the improper communication, the jury
expressed that they needed to discuss ideas freely, and that they were
uncomfortable that they could be overheard, whereby the court transferred them to
another deliberation room. In addition, during the verdict, the court heard audience
members strongly disapproving of the verdict. Following the release of the jury,
Petitioner's counsel was advised that the jury requested that CSOs escort them
from the building because they were afraid.
Petitioner argued that defense counsel was not made aware of the jury’s
escort request at the time it happened and had no opportunity to assess the impact
of those decisions on the deliberative process (CA. 61). Petitioner elaborated, "we
were not advised and no inquiry could be made" because the jury was gone by the
time counsel was advised that the jury requested an escort (CA. 61-63).
On June 24, 2014, the district court heard argument on Petitioner's motion
for permission to interview the jury. Counsel argued the basis for his concern: that
the jury might have been impacted by fear; CSOs guarded the jury "during the
30
entire process;” a CSO told the jury to be quiet, resulting in them wanting to
relocate their deliberations; there was no inquiry into whether the CSO had told the
jury any other information; and after the jury was released, counsel was advised
that the jury had requested to be escorted because they were afraid. Counsel sought
permission to interview the jurors to determine if any improper influence affected
the deliberations (CA. 62-63).
The CSOs improper communication and the jury's fear-based request to be
escorted, warranted an inquiry under Rule 606(b) into whether prejudicial
information was improperly brought to the jury's attention; or whether outside
influence was brought to bear on any juror. The district court abused its discretion
in holding that Petitioner failed to make an adequate showing of extrinsic influence
warranting further investigation into the matter.
Petitioner made a more than adequate showing of extrinsic influence to
overcome the presumption of jury impartiality. The government and district court,
without any basis in fact or law, and without an assessment, maintained that fear
at trial was to be expected. This finding was based on supposition and refusing to
permit inquiry conflicts with the decisions of other Courts of Appeals, thereby
warranting this Court to exercise its supervisory power. Stouffer v. Trammell, 738
F.3d 1205 (10th Cir. 2013); Hall v. Zenk, 692 F.3d 793 (7th Cir. 2012); Ianniello, 866
F.2d at 543.
The district court did not address Petitioner’s claim that the CSO’s
communication with the jury had not been subject to any fact finding and did not
address Petitioner’s claim that apparently ex parte, the jury had asked CSOs to
protect them as they left the courthouse. These failures violated Petitioner's right to
31
be present at every trial stage. United States v. Collins, 665 F.3d 454, 459 (2d Cir.
2012); Fed. R. Crim. P. 43(a)(2); see United States v. Canady, 126 F.3d 352, 360 (2d
Cir. 1977)(the right to be present at every trial stage is rooted in the Sixth
Amendment Confrontation clause and Fifth Amendment Due Process clause). The
right to be present requires "that messages from a jury should be disclosed to
counsel and that counsel should be afforded an opportunity to be heard before the
trial judge responds." Collins, 665 F.3d at 459 (quoting United States v. Mejia, 356
F.3d
470,
474
(2d
Cir.
2004)(internal
quotation
marks
omitted).
When
communication from the jury "relates to some aspect of the trial, the trial judge
generally should disclose the communication to counsel for all parties." Collins, 665
F.3d at 459; Rushen v. Spain, 464 U.S. 114, 119-120 (1983), Rogers v. United States,
422 U.S. 35, 38-40 (1975); United States v. Schor, 418 F.2d 26, 29-30 (1969). The
Second Circuit has explained that the "proper practice" for handling jury inquiries
include counsel’s opportunity to suggest a response, and the judge informing
counsel for the response to be given. Collins, 665 F.3d at 460; Mejia, 365 F.3d at
475; United States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981). Hearing counsel
reduces the risk that the trial court will respond in a way that prejudices one side.
See Ronder, 639 F.2d at 935. Because no inquiry was done into what the CSO stated
to the jury in violation of Appellate court precedent, the Court of Appeals’
conflicting decision requires this Court to exercise its supervisory power and grant
the writ of certiorari.12
12Alternatively,
Petitioner requests that in the event that the Court determines that Hobbs Act
robbery categorically fails to qualify as a "crime of violence" under the force clause of § 924(c)(3)(A),
that his case be remanded vacatur of his conviction under Counts Three, Four of the Indictment.
32
CONCLUSION
For the reasons set forth herein, the petition for certiorari should be granted.
Dated: August 2, 2019
Robin C. Smith, Esq.
Leean Othman, Esq.
Law Office of Robin C. Smith,
Esq., P.C.
Attorney for Appellant
99 Wall Street Suite 901
New York, New York 10005
(415) 726-8000
33
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.