Opinion
02 Cr. 441 (LAP).
October 28, 2004
OPINION AND ORDER
By notice of motion dated April 26, 2004, defendant James Cutler ("Cutler") moved for a new trial on the conspiracy charged as Count Twenty-One in the Indictment. By notice of motion dated April 27, 2004, defendant Howard Zukerman ("Zukerman") moved pursuant to Fed.R.Crim.P. 12, 29(c), and 34(a)(2) and the inherent supervisory powers of this Court, to arrest judgment, set aside the verdict, enter a judgment of acquittal, dismiss the instant Indictment and discharge defendant Zukerman. Zukerman also moved for an order pursuant to Fed.R.Crim.P. 33(a) and 18 U.S.C. §§ 1344 and 371 granting a new trial.
I. Zukerman's Motion
A. Background
Zukerman was convicted at trial of (a) conspiracy to commit bank fraud (Count One) and (b) two counts of bank fraud (Counts Three and Four). Zukerman alleges that (1) the Government breached a plea agreement entered into with Zukerman in connection with his personal tax crimes; (2) that the Government failed to present sufficient evidence of guilt; and (3) that the Court erred in its handling of the reported illness of a juror.
B. Zukerman's Agreement with the Government
Zukerman resided in Long Island, and his tax returns for the years 1992 through 1995 were filed in Long Island. Venue for Zukerman's personal tax crimes was therefore appropriately laid in the Eastern District of New York. Accordingly, in 1999, as part of the Southern District of New York's Tollman-Hundley investigation, Southern District prosecutors obtained an Eastern District indictment charging Zukerman with (1) four counts of failing to file tax returns for the years 1992 through 1995; and (2) four counts of filing false tax returns for those same years.See United States v. Zukerman, 129 F. Supp. 2d 198 (E.D.N.Y. 2000); United States v. Zukerman, 88 F. Supp. 2d 9 (E.D.N.Y. 2000).
In 2000, Zukerman pled guilty, without benefit of a plea agreement, to the four misdemeanor failure to file counts. At the time of Zukerman's plea to the four misdemeanor counts, the Government did not agree to dismiss the remaining felony false return counts against him. Instead, the Government indicated that it intended to proceed to trial on those counts.
Prior to the trial, on January 3, 2001, Zukerman reached a sentencing agreement with the Government on the four misdemeanor counts to which he had pled guilty (the "2001 Agreement"). As part of the agreement, Zukerman acknowledged filing false returns for the years 1989, 1990, and 1992 through 1995. Zukerman also agreed that the total tax loss for the years 1989 through 1995 constituted relevant conduct for sentencing purposes and that the total tax loss for those seven years was between $200,000 and $350,000.
In exchange, the Government agreed to dismiss the remaining false return counts. The Government also agreed that Zukerman was entitled to a three-level reduction in offense level for acceptance of responsibility. The 2001 Agreement gave Zukerman the following assurances regarding further criminal prosecution for his personal tax crimes:
In consideration of the defendant's previously-entered plea to the above offenses, the defendant will not be further prosecuted criminally by this Office . . . for any crimes relating to his failure timely to file tax returns for the tax years 1991 through 1995, and the filing of false returns for the years 1989-90, and 1991 through 1995. . . . This agreement does not provide any protection against prosecution except as set forth above.
Under this agreement, Zukerman's Sentencing Guidelines range was twelve to eighteen months. Zukerman was in fact sentenced to twelve months in prison and has served that sentence.
Prior to trial in this action, Zukerman sought dismissal of the charges against him, alleging that the bringing of those charges violated the 2001 Agreement. Judge Martin rejected Zukerman's arguments and denied the motion to dismiss. Judge Martin found that the "immunity" promised to Zukerman in the 2001 Agreement was "very specific" and was "crafted to make sure that he can be prosecuted for exactly the crime he's being prosecuted for here." (Transcript of June 13, 2003 conference before Judge Martin at 36.)
On several further occasions during the course of pretrial and trial proceedings, Zukerman again asserted that the 2001 Agreement barred the instant prosecution. For example, towards the close of the Government's case, Zukerman renewed his motion to dismiss the charges against him as violating the 2001 Agreement. (Tr. at 5203.) The Court denied the motion. (Tr. at 6173.) Zukerman also renewed his motion to dismiss in his Rule 29 motion at the close of the Government's case, and the Court again denied it. (Tr. at 7004-7012.)
For all of the same reasons previously stated in those denials, Zukerman's motion is again denied. The 2001 Agreement did not give Zukerman protection from prosecution for crimes which are related to crimes which are related to crimes for which he pled guilty. It instead provides him protection only for crimes which themselves relate to his failure to file tax returns and his filing of false tax returns. Zukerman has failed to show that the crimes for which he was convicted were themselves related to the crimes set forth in the 2001 Agreement. Accordingly, the motion is denied.
The fact that the bank fraud conspiracy charged in Count One had, as an object, to defraud the United States with regard to cancellation of indebtedness income potentially earned by Monty Hundley and Stanley Tollman does not make filing false tax returns an object of the Count One conspiracy. In any event, the jury's special verdict on Count One identified only bank fraud as the object of the Count One conspiracy. Furthermore, the 2001 Agreement provided protection only against further prosecution for his own filing of false tax returns, not the filing of false tax returns by others.
C. Sufficiency of the Evidence
In challenging the sufficiency of the Government's proof, Zukerman bears a heavy burden. United States v. Bala, 236 F.3d 87, 93 (2d Cir. 2000). The Court must consider the evidence in the light most favorable to the Government, crediting every inference that the fact-finder might have drawn in favor of the Government. United States v. Kinney, 211 F.3d 13, 16 (2d Cir. 2000). The task of choosing among the permissible inferences is for the fact-finder, not for the reviewing court. See United States v. Taylor, 18 F.3d 55, 57-58 (2d Cir. 1994). In assessing the proof at trial, the court must analyze every piece of evidence "not in isolation but in conjunction," United States v. Diaz, 176 F.3d 52, 89 (2d Cir. 1999), and must resolve all issues of credibility in the Government's favor, see United States v. Abelis, 146 F.3d 73, 80 (2d Cir. 1998). Applying these standards, the verdict must be sustained if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
This deference to the jury's verdict "is especially important when reviewing a conviction of conspiracy." United States v. Pitre, 960 F.2d 1112, 1121 (2d Cir. 1992). Moreover, it is well-settled that "[o]nce a conspiracy is shown to exist, the 'evidence sufficient to link another defendant to it need not be overwhelming.'" United States v. Ciambrone, 787 F.2d 799, 806 (2d Cir. 1986) (quoting Inted States v. Provenzano, 615 F.2d 37, 45 (2d Cir. 1980)). All that is required is "some evidence from which it can reasonably be inferred that the person charged with conspiracy knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it."United States v. Sanchez-Solis, 882 F.2d 693, 696 (2d Cir. 1989). "[A] defendant's knowledge of the conspiracy and his participation in it with criminal intent may be established through circumstantial evidence." United States v. Gordon, 987 F.2d 902, 906-07 (2d Cir. 1993).
Applying these standards, there was more than sufficient evidence of Zukerman's guilt. The evidence showed the existence of a scheme to defraud Tollman and Hundley's creditors by falsely persuading them that Tollman and Hundley were insolvent and then inducing them to sell Tollman and Hundley's debts, at huge discounts, to purported third parties secretly funded and controlled by Tollman and Hundley themselves.
The evidence established both that Zukerman participated in that scheme and that his participation was knowing and wilful. The evidence at trial established that Zukerman was involved in proposing and negotiating debt sales with two banks, Marine Midland and First National Bank of Chicago ("First Chicago"), and that during those negotiations, Zukerman made false claims about the true financial condition of Tollman and Hundley and the identity of the entities purchasing their debts.
For example, Marine Midland banker Richard Werner testified that he had approximately thirty conversations with Zukerman. (Tr. at 2193.) Werner recalled that in those conversations, Zukerman claimed that Tollman and Hundley "were in deep financial trouble," that they lacked the ability to repay their debts, and that their "financial situation was very bad, very poor." (Tr. at 2071-72, 2104.) The evidence at trial showed, however, that Tollman and Hundley in fact had a valuable, undisclosed asset — their earnout agreement with HFS — which paid them more than $100 million between 1993 and 1995. The jury was entitled to infer from Zukerman's senior position in the Tollman-Hundley companies his awareness of this deal.
Werner also testified that Zukerman described the proposed purchaser of Marine Midland's debt as a "foreign investor" interested in "future development possibilities with Mr. Tollman and Mr. Hundley." (Tr. at 2105-06.) The evidence at trial showed that the supposed foreign investor was in fact simply Tollman and Hundley themselves, operating through Paternoster, a company they controlled. The evidence further showed Zukerman's awareness of this fact. Among other things, in a memo Zukerman wrote during the course of the negotiations with Marine Midland (GX MM-8), Zukerman proposed to his co-conspirators Monty Hundley and Sanford Freedman that the three of them get together to formulate the negotiating position for the supposed foreign investor. In other words, at a time when Zukerman was telling the banks he was merely relaying the negotiating position of a foreign investor separate and independent from Tollman and Hundley, Zukerman was in fact planning that negotiating position with Hundley and Freedman without any input from the purported foreign investors. This document alone indicated Zukerman's awareness that there was no real foreign investor.
The testimony of First Chicago banker Edwin Eisendrath established that Zukerman made similar false representations in connection with the sale of First Chicago's debt. Eisendrath identified Zukerman as his principal contact at Tollman-Hundley, and indicated that they had "many and varied" conversations. (Tr. at 3493.) Among other things, Zukerman advised Eisendrath that Tollman-Hundley had a "European group that might be interested in buying" First Chicago's debt. (Tr. at 3497.) From the way Zukerman and others described this group to Eisendrath, he "didn't think it had anything to do with Tollman and Hundley." (Tr. at 3499.) Eisendrath also described Zukerman as providing him with a "composite" of information that led him to believe that Tollman and Hundley lacked the means to repay their debts in full. (Tr. at 3536-38.)
In the face of this evidence, Zukerman asserts that the jury's acquittal of him on two false statement counts somehow undermined the jury's guilty verdict on the conspiracy and bank fraud counts. (Zukerman Br. at 16-17.) However, there is no inconsistency in the jury's verdicts. The false statement counts related to particular false statements in the final agreements the "foreign investor" entities struck with First Chicago and Marine Midland. Zukerman did not sign these agreements, and the jury may well have concluded that the Government failed to prove beyond a reasonable doubt Zukerman's knowledge of the particular false representations made in these agreements. Such a conclusion in no way undermines the jury's conclusion that Zukerman was a knowing participant in the frauds on these banks. The frauds occurred over a period of years and involved repeated false statements in meetings, letters, and telephone conversations prior to the final agreements. There was ample evidence that Zukerman willfully made false representations to the banks in the course of negotiations that led to the final contracts. That the evidence established his guilty on the bank fraud and conspiracy counts, whether or not he had anything to do with the false statements in the final contracts.
Even if there were some inconsistency in the jury's verdict, that would be unimportant. "[I]t has long been established that inconsistency in jury verdicts of guilty on some counts and not guilty on others is not a ground for reversal of the verdicts of guilty" and "the review of the legal sufficiency of the evidence with respect to one count should be independent of the jury's determination that the evidence on another count was insufficient to meet the government's burden of persuasion." United States v. Acosta, 17 F.3d 538, 545 (2d Cir. 1994).
D. Admission of plea allocution and Scheer testimony
Zukerman also complains that the Court erred in admitted the plea allocution of Brett Tollman and the testimony of James Cutler in the Scheer litigation. However, Zukerman has not shown any prejudice from the admission of either piece of evidence. Cutler's Scheer testimony was admitted only against Mr. Cutler. (Tr. at 6812.) Brett Tollman's plea allocution was admitted only with regard to the conspiracy charged in Count Twenty-One, (Tr. at 6927), a count in which Zukerman was not named as a defendant. The jury must be presumed to have followed the Court's instructions and not to have used any of this evidence against Zukerman. Weeks v. Angelone, 528 U.S. 225, 233 (2000). Accordingly, Zukerman's motion is denied.
E. Illness of Juror
On the morning of February 3, 2004, the fourth day of jury deliberations, the Court advised the parties that juror number one was "not feeling quite up to snuff at the minute, but has reported she expects to be in by 1:00." (Tr. at 8994.) No counsel asked for additional information regarding juror number one's condition. Juror number one arrived in the jury room at the time predicted, and at 1:40 p.m, the Court informed the parties that the jury had reached its verdict. Juror number one, the jury's foreperson, reported that verdict orally and confirmed it when the Court polled the jury.
In addressing a later motion regarding an unrelated jury issue, the Court provided further information about juror number one's condition:
On the morning of February 3, an employee at Grand Central Terminal called the Court to report that juror no. 1 had collapsed on the platform and "appeared to [him] to be having an anxiety attack because [the jury wa]s going to bring in a verdict [that] day." He reported that medical personnel were examining the juror but that the juror reported that she expected to be able to get to court by 1:00 p.m.
(Order dated March 1, 2004 at 1.) The Court later explained that it did not convey the details of this report to the parties "because of the uncertainty of the information," which came from a "man who purported to work at Grand Central Terminal" who was reporting only "his layman's opinion" about juror number one's condition. (Order dated March 23, 2004 at 2.)
The incident related to juror number one provides no basis for questioning post-trial juror number one's competence as a juror. A defendant may not, post-verdict, question the mental competence of a juror absent evidence of recent formal adjudication of the juror's mental incompetence. See United States v. Dioguardi, 492 F.2d 70, 80 (2d Cir. 1974) ("With respect to post-verdict evidence of possible juror incompetency during the trial, courts have refused to set aside a verdict, or even to make further inquiry, unless there be proof of adjudication of insanity or mental incompetence closely in advance of the time of jury service."). The situation of juror number one falls well short of meeting this test.
Zukerman argues that the Court erred by not notifying the parties, pre-verdict, of the precise details that had been reported to the Court by a lay witness regarding juror number one's condition. However, the Court informed the parties of the substance of the information it had learned regarding juror number one's condition — viz., that she was sick but believed herself capable of coming to court by the middle of the day.
Zukerman has identified no case holding that the Court was required to communicate to the parties the exact information it had received from a third party regarding the health of one of the jurors. Instead, Zukerman cites cases involving the Court's obligation to disclose to the parties notes from the jury itself. (Zukerman Br. at 21-22.) However, an observation by a third party about a juror's condition is not part of the trial, as a note from the jury would be, but rather an extraneous communication to the Court from a bystander. Unlike communications directly with a juror, such communication by the Court with a third party observer does not create the possibility of any improper influencing of jurors. Accordingly, a defendant is not entitled to be present whenever a third party says something to the Court about the physical condition of a juror. Nor does the defendant have a right to learn the exact words used by the third party in communicating with the Court. The Court of Appeals has made clear that where the Court improperly communicates ex-parte directly with a juror outside the presence of counsel — something which did not happen here — the Court can meet its obligations by revealing "the substance of these communications to counsel for both sides." United States v. Taylor, 562 F.2d 1345 (2d Cir. 1977).
Additionally, the defense waived any right it might have had to additional information by not requesting it at the time. Zukerman's argument that he needed more detail on the nature of juror number one's illness is after-the-fact. THe parties had an opportunity to ask the Court for further information after the Court reported the fact of the illness to the parties. None did so. Zukerman is not entitled to await the jury's verdict and then, when displeased with the result, claim he should have been provided with information he did not request prior to the verdict.
Lastly, the defense fails to demonstrate any prejudice. Therefore, if any error occurred it was harmless.
For the above-stated reasons, Zukerman's motion is denied in its entirety.
By letter dated April 5, 2004, Monty Hundley joined in the relief requested by Cutler's Motion as it relates to Count Twenty-One of the Indictment. Accordingly, it is denied for the same reasons applicable to Cutler as set forth in this Opinion.
A. Background
Cutler was convicted at trial of (a) conspiracy to commit bank fraud (Count One); (b) two counts of bank fraud (Counts Two and Nineteen); (c) one count of making false statements to a bank (Count Eight); (d) one count of conspiring to defraud the United States (Count Twenty-One); and (e) two counts of tax evasion (Counts Thirty-One and Thirty-Two). Cutler seeks a new trial solely on Count Twenty-One, alleging that the admission of the plea allocutions of Brett Tollman and Howard Zukerman denied him a fair trial on that count.
Count Twenty-One of the Indictment charged James Cutler, along with co-defendants Sanford Freedman and Monty Hundley, with participating in a conspiracy to defraud the United States by causing the Tollman/Hundley companies not to report to the United States more than $29 million paid in compensation to approximately a dozen Tollman-Hundley employees and executives in the executive suite over a dozen years.
The Government introduced portions of the plea allocutions of Brett Tollman and Howard Zukerman. In the admitted portion of his allocation, Brett Tollman stated that he had:
conspired with others to defraud the United States by concealing certain numbers paid to these employees which sums were not reported on forms W-2 or 1099.
(Tr. 6925.) In the admitted portion of Zukerman's plea allocution, Zukerman stated that he "failed to file [tax returns for the years 1992 through 1995]," despite knowing "that [he] had to file them." Zukerman also admitted knowing he had gross income in those years, knowing that he should have filed for those years, and intentionally deciding not to file returns for those years. (Tr. 6926.)
At the time this evidence was offered, the Court gave the jury comprehensive limiting instructions making clear that, as to defendants Cutler and Hundley, the pleas were admitted solely on the questions of whether the Count 21 conspiracy existed and whether any conspirator committed overt acts in furtherance of that conspiracy. (Tr. 6927, 6936.) The Court gave a similar limiting instruction in its final charge to the jury:
You heard testimony that Brett Tollman has pleaded guilty to a charge relating to his participation in a conspiracy charged in Count Twenty-One of the indictment, a conspiracy to defraud the IRS of tax revenue.
You may consider certain statements made by Mr. Tollman in his guilty plea as evidence and, like any other evidence in this case, give that fact such weight as you believe to be appropriate.
Please understand, though, that you may only consider the Brett Tollman guilty plea on the issues of whether there was a conspiracy to defraud the IRS as charged in Count Twenty-One of the indictment and whether any alleged conspirator committed overt acts in furtherance of the conspiracy.
The question of whether the defendants on trial were members of the conspiracy charged in Count Twenty-One of the indictment is a separate issue from the question whether the charged conspiracy existed. To determine that a defendant on trial here was a member of the charged conspiracy, you must rely on other evidence. There is no evidence in these statements naming any of the defendants on trial.
In other words, if you find that the charged conspiracy existed, the participation of a defendant on trial here in that conspiracy would have to be proved entirely by other evidence. There is nothing in the statements of Brett Tollman that proves that one way or the other. . . .
I instruct you that you may consider certain statements made by Mr. Zukerman in his guilty plea as evidence and, like any other evidence in the case, give that fact such weight as you believe appropriate. Please understand, though, that with respect to Messrs. Hundley, Cutler and Freedman, you may only consider the statements of Mr. Zukerman on the issue of whether there was a conspiracy to defraud the IRS as charged in Count Twenty-One of the indictment and whether the alleged conspirators committed overt acts in furtherance of the conspiracy.
Mr. Zukerman's statements do not say anything about whether Monty Hundley, Sanford Freedman, or James Cutler participated in the Count Twenty-One conspiracy, and you may not consider his statements on that issue.
(Tr. at 8908-09.)
The proof at trial included voluminous documentation and extensive testimony. First, the Government introduced documentation (down to individual cancelled checks) showing the millions paid to Tollman-Hundley executives and employees but not reported by the company to the IRS. (See, e.g., GX 764A, 809-812, 819-821, 838-841, 853-857, 859, 870-875, 895, 905-909, 936-940, 942-973.) Second, the Government introduced documentary evidence (including IRS records, tax returns, and W-2 and 1099 forms) showing that neither the company nor the employee receiving the payments reported them to the Internal Revenue Service. (See, e.g., GX 231-236L.) Third, applying the Court's tax law instructions, Revenue Agent John Dennehy summarized the various payments that were taxable income and presented detailed charts summarizing the documentary evidence showing the unreported payments and showing that a dozen employees had received a total of $29 million in reportable income between 1991 and 1999 that neither the company nor the employee reported to the IRS. (See GX JD-7.) Fourth, several Tollman-Hundley employees — Alice Abalos (Tr. at 2909-2912), Kevin Kurpick (Tr. at 4850-4862, 4877-80), Luis Vaz (Tr. at 5001-5004), and Jodi Plemmons (Tr. at 5943-5948) — testified that they received payments from Tollman-Hundley companies which they knew were income, which they knew the companies had not reported to the Internal Revenue Service, and which they chose themselves not to report to the Internal Revenue Service either. Specifically, both Alice Abalos and Jodi Plemmons testified that they received their off-the-books payment following a conversation with Brett Tollman. (Tr. at 2909, 5943-44.) Kevin Kurpick testified that he received his off-the-books payments following a conversation with James Cutler, Tr. at 4850, and that Cutler signed the checks (falsely labeled as expense checks) through which Kurpick received the unreported payments, Tr. at 4858. Alice Abalos testified in detail about the mechanics of the scheme, explaining that her job included writing regular checks either directly to, or to others for the benefit of, numerous employees in the Tollman-Hundley executive suite, including Monty Hundley, Stanley Tollman, Sanford Freedman, Howard Zukerman, James Cutler, Victor Appelby, Tom Aro, Jody Plemmons, Danke Maricic, and Melissa Keeley. (Tr. at 2899-2908.) Ms. Abalos further testified that the companies neither withheld taxes from the payments nor reported the payments to the Government. (Tr. at 2900, 2906-08.) Ms. Abalos further testified that Cutler was well aware of the unreported payments but never instructed her to report them to the Internal Revenue Service. (Tr. at 3034.)
B. Discussion
In light of the Supreme Court's recent interpretation of the Sixth Amendment's confrontation clause in Crawford v. Washington, 124 S. Ct. 1354 (2004), the admission of the plea allocutions was error. See United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004) ("a plea allocution by a co-conspirator who does not testify at trial may not be introduced as substantive evidence against a defendant unless the co-conspirator is unavailable and there has been a prior opportunity for cross-examination").
Admission of evidence in violation of the confrontation clause is not a structural error automatically requiring a new trial but rather is subject to harmless error review. Id. The Court of Appeals has held the error "does not necessitate a new trial as long as 'the government can show beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. (quoting United States v. Casamento, 887 F.2d 1141, 1179 (2d Cir. 1989)).
The Government has satisfied that burden here. The plea allocutions were admitted against Cutler and Hundley on only two issues — the existence of the conspiracy charged in Count Twenty-One and whether any conspirator committed any overt acts in furtherance of that conspiracy. The evidence of the existence of the conspiracy and overt acts in furtherance of the conspiracy was overwhelming. Documentary evidence consisted of hundreds of Government exhibits documenting acts that furthered the executive suite conspiracy — including the issuance of hundreds of checks, the preparation of dozens of false W-2s, and the filing of false tax returns. The evidence also showed the existence of a conspiracy. The documents and witness testimony showed that for a decade, the Tollman-Hundley companies on a regular basis made regular payments (totaling more than $29 million) to and on behalf of a dozen executives and employees in the executive suite, without reporting those payments to the Internal Revenue Service. The only explanation for the long-standing pattern of paying the executives and employees in the executive suite some or all of their income off the books is that the senior executives of the company had at least tacitly agreed among themselves that certain payments not be reported. Such a tacit agreement is, of course, all that is required. See United States v. Perez, 144 F.3d 204, 208 (2d Cir. 1998) ("In order to prove a charge of conspiracy, the government need not present evidence of an explicit agreement; proof of a tacit understanding will suffice."); United States v. Desimone, 119 F.3d 217, 223 (2d Cir. 1997) ("The existence of . . . a conspiracy may be established entirely by circumstantial evidence. Moreover, the conspiratorial agreement itself may be established by proof of a tacit understanding among participants, rather than proof of an explicit agreement.") (citations omitted). While Cutler argues in a conclusory manner that the admission of the plea allocutions "in effect created an unrebuttable presumption of conspiracy," (Cutler Br. at 4), given strength of the evidence that a conspiracy existed and that there were overt acts in furtherance of the conspiracy, the admission of the plea allocutions was merely cumulative.
Cutler also claims that "the government failed to elicit any testimony from any witness establishing James Cutler's membership in the same conspiracy in which the witness participated." (Cutler Reply Br. at 1.) However, this argument is not relevant to his claim under Crawford. The jury was clearly and carefully instructed that it could consider the plea allocutions only as evidence that the conspiracy existed and whether an overt act was committed in furtherance of the conspiracy. Indeed, the Court instructed at length that the jury may not determine that a defendant was a member of the charged conspiracy based upon the plea allocutions and must rely on other evidence. We may presume that the jury followed this instruction. See McClain, 377 F.3d at 223 (citing United States v. Downing, 297 F.3d 52, 59 (2d Cir. 2002)).
Accordingly, the admission of the plea allocutions was harmless beyond a reasonable doubt.
CONCLUSION
For the foregoing reasons, defendants' motions (docket nos. 174 and 176) are denied.
SO ORDERED.