Opinion
01 CR 1043 (SAS)
October 31, 2003
Brian Sheppard, Esq., New York, NY, for Defendant Viana
Richard D. Willstatter, Esq., Green Willstatter, New York, NY, for Defendant Berwick
Jay K. Musoff, Alexander H. Southwell, New York, NY, for the Government
MEMORANDUM OPINION AND ORDER
Defendants Cesar Viana and Cristopher Berwick move for bail pending appeal of their convictions for conspiracy to commit wire fraud and wire fraud. Viana, who was sentenced on April 9, 2003, to thirty-seven months in custody, surrendered on June 16, 2003. Berwick, who was sentenced on March 14, 2003, to thirty-seven months in custody, surrendered on June 30, 2003.
The Bail Reform Act of 1984 permits bail pending appeal if certain conditions are met. One such condition is a judicial finding that defendant's appeal "raises a substantial question of law or fact likely to result in reversal or an order for a new trial." 18 U.S.C. § 3143(b)(2). The Second Circuit has adopted the Eleventh Circuit's interpretation of the term "substantial" as stated in United States v. Giancola, 754 F.2d 898 (11th Cir. 1985). See United States v. Randell, 761 F.2d 122, 125 (2d Cir. 1985). "Giancola held that a substantial question `is one of more substance than would be necessary to a finding that it was not frivolous. It is a "close" question or one that very well could be decided the other way.'" Id. (quoting Giancola, 754 F.2d at 901). In addition, even if a court finds the question raised on appeal to be substantial, "it must then consider whether that question is `so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial.'" Id. (quoting United States v. Miller, 753 F.2d 19, 23 (3d Cir. 1985)).
A judicial officer must also find, by clear and convincing evidence, that the person seeking release is not likely to flee or pose a danger to the community if released. See 18 U.S.C. § 3143(b)(1). Defendants have met these conditions.
Defendants argue that they have raised one, and perhaps two, substantial issues of law likely to result in reversal or a new trial. Specifically, defendants first argue that this Court committed error in admitting at trial, over defense objection, the redacted portion of a co-defendant's plea allocution. In particular, defendants claim it was error to admit George Englert's statement that he entered a conspiracy with "several other people." (emphasis added). Berwick also argues that bail pending appeal is warranted based on the jury's alleged viewing of a New York Post article entitled "Con Job Kingdom."
Berwick joins in Viana's arguments regarding admission of the plea allocution without further briefing. See 9/18/03 Letter from Richard D. Willstatter.
Viana argues that a statement by Englert that he joined the conspiracy with someone would be against his penal interest but that his statement that he joined the conspiracy with "several other people" is not. See Petitioner's Memorandum of Law in Support of Motion for Bail Pending Appeal at 17. Although I do not comprehend the logic of this argument, I need not dwell upon it given the applicable Second Circuit precedent, discussed below.
A. Admission of a Co-Conspirator's Plea Allocution
The Second Circuit has repeatedly upheld the admission of a co-defendant's self-inculpatory plea allocution to prove the existence of a charged conspiracy. See, e.g., United States v. Petrillo, 237 F.3d 119, 122-23 (2d Cir. 2000), United States v. Markowitz, 215 F.3d 265, 269 (2d Cir. 2000) (per curiam). Because guilty plea allocutions qualify as statements against penal interest, they are admissible under Federal Rule of Evidence 804(b)(3). See United States v. Williams, 927 F.2d 95, 98 (2d Cir. 1991); United States v. Scopo, 861 F.2d 339, 348 (2d Cir. 1988).
Furthermore, admission of plea allocutions do not offend the Confrontation Clause if they contain "particularized guarantees of trustworthiness." Moskowitz, 215 F.3d at 269. In other words, the plea allocution must be given under oath and must subject the defendant to the risk of a lengthy term of imprisonment. See id. In addition, the district court must instruct the jurors to only consider the allocution as evidence that a conspiracy existed and not as direct evidence of a defendant's membership therein. See id.
Here, the portions of Englert's plea allocution admitted into evidence were sufficiently trustworthy. Englert's plea was given under oath in open court. By pleading guilty, Englert subjected himself to a lengthy period of incarceration. In fact, he was ultimately sentenced to forty-one months in prison. Finally, this Court instructed the jury that it may only consider Englert's statement as evidence of the existence of a conspiracy and not as evidence that any one defendant was a member. See Trial Transcript at 2063 ("You may consider the evidence of these statements, if you feel that they are probative in this direction, you may consider them on the issue of whether there was or was not a conspiracy to use the wires in connection with the scheme to defraud. The question of whether any defendant here was a member of the conspiracy, that is an issue on which you will have to rely on other evidence. There is no evidence in the statement that you are about to hear naming those defendants or any of the defendants here.").
In sum, Englert's plea allocution was properly admitted at trial and defendants' objection raises no substantial issue of law. Even if defendants had raised a substantial question, they have failed to demonstrate that their claim will likely result in reversal or a new trial. The Second Circuit has held that "harmless error analysis applies to evidentiary errors and to violations of the Confrontation Clause" resulting from improperly redacted plea allocutions. United States v. Tropeano, 252 F.3d 653 (2d Cir. 2001). Accordingly, bail pending appeal cannot be granted based upon the admission of Englert's plea allocution.
Viana's reliance on Tropeano is misplaced because there the court found that a co-defendant's initial statement that he conspired "with others" was presumptively admissible as it "fully sufficed to establish the existence of the conspiracy and his guilty involvement in it." 252 F.3d at 659. It was only admission of the follow-up question — whether the co-defendant conspired with one person or more than one person — that was found to be in error. In any event, the error was deemed harmless. See id.
B. The Newspaper Article Allegedly Viewed by the Jury
Berwick's argument relating to the jury's alleged knowledge of an unflattering newspaper article regarding the "House of Badische" and the "Kindgom of Mombassa" fares no better. Although defendants moved for a mistrial upon learning of this article, that motion was denied for several reasons. First, this Court specifically asked the jurors if any of them had read the article and none had. Second, the picture used in the article that Berwick claims was so damaging was in fact introduced into evidence by the Government and displayed to the jury as part of the Government's proof. See Tr. at 2236. Denial of a mistrial was well within this Court's discretion and, as such, does not raise a substantial question of law likely to lead to a reversal or new trial. See United States v. Carson, 52 F.3d 1173, 1188 (2d Cir. 1995) (holding that a denial of a motion for mistrial is reviewed under an abuse of discretion standard); United States v. Chang An-Lo, 851 F.2d 547, 558 (2d Cir. 1988) ("The trial court has wide discretion in determining how to pursue an inquiry into the effects of extra-record information upon a jury.").
For the foregoing reasons, defendants' motion for bail pending appeal is denied. The Clerk of the Court is directed to close this motion.
SO ORDERED.