Second Circuit reverses organized crime convictions after finding plain error, in United States v. Riggi, 541 F.3d 94 (2d Cir. Sept. 4, 2008) (No. 06-1280)
Confrontation Clause error based on admission of evidence before Crawford was decided, but under the Crawford standard, is determined to be plain error.
After an extensive investigation, three defendants, who were longtime leaders of an organized crime family, were charged with racketeering and conspiracy charges. As evidence in support of the alleged conspiracies, the government read eight plea allocutions of co-conspirators which included admissions to predicate racketeering acts of conspiring to murder, commit extortion, engage in loansharking, and commit securities fraud.
Then District Judge Michael Mukasey instructed the jury that “the allocution could be considered only to establish that a particular racketeering enterprise or conspiracy existed, and that it could not be used to prove that any defendant on trial was a participant.” Riggi, 541 F.3d at 100. The defendants objected to the introduction of the plea allocutions, but not on Confrontation Clause grounds. The defendants were convicted on most counts. The trial took place in the spring of 2003, about a year before the Supreme Court’s landmark Confrontation Clause decision in Crawford v. Washington, 541 U.S. 36 (2004). The defendants moved to overturn their convictions based on Crawford, arguing they were deprived an opportunity to cross-examination the co-conspirators concerning their testimonial statements. The trial court concluded the admission of the plea allocutions was harmless beyond a reasonable doubt.
On appeal, the Second Circuit reviewed the challenged under plain error review and reversed the convictions after concluding “the plea allocutions undoubtedly prejudiced the jury and influenced their verdicts.” Riggi, 541 F.3d at 102. There was no dispute that the use of the plea allocutions were testimonial statements that were inadmissible under Crawford. The plea allocutions were used to prove and corroborate other evidence concerning nine conspiracies. The circuit highlighted five concerns:
- “prejudice arose from the sheer number of plea allocutions admitted to prove the multiple conspiracies in this case”;
- “many of the conspiracies were overlapping such that evidence of one tended to support the existence of another”;
- “the detailed content of the plea allocutions corresponded to elements of the crimes charged against defendants, potentially bolstering the government’s proof in those areas”;
- it was unlikely that the jury was able to following the limiting instructions; and
- “[t]he government’s case consisted primarily of cooperating witness testimony, which, even viewed in the light most favorable to the government, contained inconsistencies and contradictions.”
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