Opinion
01 Cr. 0164 (SHS)
June 27, 2002
OPINION ORDER
On February 15, 2002, defendant Reginald Jennings was convicted, following a two week jury trial, of wire fraud and conspiracy to commit wire fraud. Specifically, Mr. Jennings, an attorney who had been suspended from the practice of law, was convicted of participating in a scheme to lease non-existent bank guarantees. Mr. Jennings has now moved for a new trial pursuant to Fed.R.Crim.P. 33 and asserts two arguments: (1) that the Court erred in making six evidentiary rulings regarding his co-defendant's plea allocution, defendant's bar suspension, his prior business dealings, certain bad checks, and defendant's expert; and (2) that defendant was denied effective assistance of counsel. Because the Court is satisfied that, after both an examination of the evidence and the effectiveness of trial counsel, the jury's verdict was supported by admissible, competent, and substantial evidence, Jennings's motion for a new trial is denied.
DISCUSSION
A court may grant a defendant's request for a new trial "if the interests of justice so require." Fed.R.Crim.P. 33. A court must exercise its authority to grant a new trial "`sparingly' and in `the most extraordinary circumstances.'" United States v. Ferguson, 246 F.3d 129, 134 (2d Cir. 2001) (quoting United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992)). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be manifest injustice." Id. at 134 (citing Sanchez, 969 F.2d at 1414). We now apply that standard to the facts of the trial of this action.
1. Challenges to the Court's Rulings
Jennings challenges six evidentiary rulings made in the course of the trial. The objections will be addressed seriatim.
a. Co-defendant's Plea Allocution
i. Admissibility
Jennings challenges both the Court's ruling admitting the plea allocution of nontestifying co-defendant Herman McEwan as well as the government's use of that allocution. Jennings contends that it was error to admit the plea allocution because it was incomplete insofar as it did not include allegedly exculpatory statements by McEwan.
Plea allocutions of co-conspirators are admissible at trial in the discretion of the court pursuant to Fed.R.Evid. 804(b)(3) to prove the existence of a conspiracy and to prove conduct in furtherance of the conspiracy. United States v. Petrillo, 237 F.3d 119, 122 (2d Cir. 2000); United States v. Moskowitz, 215 F.3d 265, 269 (2d Cir. 2000) (per curiam), cert. denied, 531 U.S. 1014 (2000). When the declarant is unavailable to testify at trial, that declarant's hearsay statement "is sufficiently dependable to allow its untested admission against an accused when (1) the evidence falls within a firmly rooted hearsay exception or (2) it contains particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything, to the statements' reliability." Moskowitz, 215 F.3d at 269 (quoting United States v. Gallego, 191 F.3d 156, 167 (2d Cir. 1999), cert. denied 528 U.S. 1127 (2000) (internal alterations and quotations omitted)). "Particularized guarantees of trustworthiness are found where, inter alia, (1) the plea allocution undeniably subjected [the allocuting party] to the risk of a lengthy term of imprisonment, even if it was also made in the hope of obtaining a more lenient sentence; (2) the allocution was given under oath." Id. (quoting Gallego, 191 F.3d at 167) (internal quotations omitted).
The preconditions for admissibility of McEwan's plea allocution have been met here. McEwan was under oath and his plea subjected him to an extended period of incarceration. Moreover, it was made in open court, when he was represented by counsel, in a proceeding that complied in all respects with Fed.R.Crim.P. 11. See United States v. Petrillo, 60 F. Supp.2d 217, 220 (S.D.N.Y. 1999), aff'd in part, rev'd in part, 237 F.3d 119 (2d Cir. 2000). In addition, the Court instructed the jury explicitly as to the limited purpose of the plea allocution — an instruction the jury is presumed by law to have followed. See United States v. Mussaleen, 35 F.3d 692, 695 (2d Cir. 1994). The Court instructed the jury that it could only consider the evidence on two issues: "One, whether there was a conspiracy to lease fraudulent bank notes and, two, what, if anything, Mr. McEwan did to further the object of the conspiracy should you find it existed." (Trial Transcript ("Tr.") at 615.) The Court further cautioned the jury that "the question of whether Mr. Jennings . . . was also a member of the charged conspiracy is an issue for which you will have to rely on other evidence. There is no evidence in the statement, of Mr. McEwan naming any other defendant or co-conspirator." (Tr. at 615.) This instruction was given both when the plea was introduced into evidence and in the final instructions given immediately prior to the commencement of jury deliberations. (Tr. at 615, 1085.)
The statements of Herman McEwan were admitted on consent. Those statements were properly limited to self-inculpatory statements because Fed.R.Evid. 804(b)(3) "does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory." Williamsom v. United States, 512 U.S. 594, 600-01 (1994). Thus, Jennings's belated argument that the Court erred when it did not sua sponte require the entire plea colloquy to be read to the jury is misplaced. Moreover, the failure of Jennings to object at the time constitutes a waiver. See United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir. 1995); United States v. Coonan, 938 F.2d 1553, 1561 (2d Cir. 1991). Part of Jennings's overall trial strategy, as perceived by the Court and specifically acknowledged by trial counsel, was to paint McEwan as the master manipulator and Jennings as his pawn. (Tr. at 66; Garnet Aff. ¶¶ 9-10, 27-29.) This strategy was demonstrated in part by the defense refraining from objecting — and in fact repeatedly consenting — to the admission of evidence as a tactical decision, negating even plain error review. Yu-Leung, 51 F.3d at 1122.
ii. Government's Use of the Plea Allocution During Its Opening
Jennings next contends that the government's use of the plea allocution during its opening statement was improper. In the course of its opening statement, the government commented that McEwan "pled guilty to the same charges that Jennings is charged with here and that [McEwan] admitted that he was part of this same conspiracy." (Tr. at 56.) That statement was improper in light of the limited purpose for which a nontestifying co-defendant's allocution can be used. However, in determining whether the prosecutor's comments amounted to prejudicial error within the context of the entire trial, the Court examines (1) "the severity of the misconduct," (2) "the measures adopted to cure the misconduct, and" (3) "the certainty of the conviction absent the misconduct." Strouse v. Leonardo 928 F.2d 548, 557 (2d Cir. 1991). Applying those standards, the prosecutor's comment did not rise to the level of prejudicial reversible error.
b. Defendant's Bar Suspension
Jennings next contends that the introduction of his suspension from the bar of the State of New Jersey was unfairly prejudicial and should have been precluded pursuant to Fed.R.Evid. 404(b). This evidence was admitted pursuant to a stipulation of the parties and thus any defense objection to it has been waived. See Yu-Leung, 51 F.3d at 1122. Moreover, the evidence was properly admitted. The evidence at trial demonstrated that Jennings held himself out to be "International Counsel" in correspondence and provided business cards indicating that he was an attorney, and that victims of the conspiracy relied on that representation in dealing with Jennings. (Tr. at 91-92, 251-53.) Thus, the evidence was not Rule 404(b) evidence of prior acts but rather was evidence directly relevant to the fraudulent misrepresentations Jennings made in furtherance of the conspiracy. Moreover, Jennings testified at length regarding the circumstances surrounding the bar suspension, thus opening the door for appropriate cross examination and impeachment by the government.
c. Defendant's Prior Business Dealings
Jennings also contends that evidence of his prior business dealings was prejudicial and not proper impeachment evidence. On direct examination, Jennings testified that he had no "prior experience or knowledge concerning bank guarantees." (Tr. at 714.) Again, the thrust of Jennings's defense was that he, unlike McEwan, was uninformed and lacked prior experience in dealing with complex financial instruments. It was entirely proper for the government to then seek to impeach Jennings on cross-examination regarding the specific falsehood that he lacked prior experience with bank guarantees. See United States v. Beverly, 5 F.3d 633, 639 (2d Cir. 1993). This was not an attempt by the government to prove that Jennings's had a bad character. Thus, defendant's argument that that cross-examination was improper because it ran afoul of Rule 404(b) is not valid. Moreover, contrary to defendant's assertion, the limiting instruction the Court gave to the jury — which defendant neither requested nor objected to — more than adequately cured any potential prejudicial effect. (Tr. at 914-18, 970-72, 1086-87.)
d. The Bad Checks
Jennings next contends that any evidence regarding two checks — one of which, written by McEwan, bounced and the other of which had a stop payment order placed on it — should have been excluded. One of the checks was not admitted into evidence. In addition, a limiting instruction was given to the jury that limited its use of this evidence to whether or not it established a relationship between Jennings and McEwan and knowledge by Jennings of McEwan's business practices. (Tr. at 831.) Moreover, it was properly submitted to impeach Jennings's testimony that he was McEwan's dupe.
While one of the checks — obtained in a search of the defendant's house — was inadvertently not turned over by the prosecution to the defense prior to trial in violation of Fed.R.Crim.P. 16, Jennings clearly had notice of the existence of the check as set forth in several government exhibits authored by Jennings. In addition, this was not a case of government ambush. See United States v. Kelly, 420 F.2d 26, 29 (24 Cir. 1969). Even assuming arguendo that the checks were improperly used at trial, the error, if it was error, was harmless and the Court's limiting instruction adequately protected Jennings from undue prejudice.
e. Defendant's Expert
Jennings's last objection to the Court's evidentiary rulings is similarly without merit. Jennings contends that the Court's exclusion of his expert's testimony regarding Jennings's state of mind was error. Jennings's expert — Nicholas Warren — was asked hypothetically whether a person with Jennings's education and professional background "would possess accurate knowledge about bank guarantees." (Tr. at 673-74.) The Court sustained the government's objection to the question. (Tr. at 674.) The question — whether a hypothetical student who took certain courses would have certain knowledge — is incapable of being accurately answered and is not relevant. See Fed.R.Evid. 402. Moreover, Fed.R.Evid. 704(b) provides that, "No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone." Thus, the Court properly precluded the expert's testimony pursuant to Rules 402 and 704(b).
2. Ineffective Assistance of Counsel
Next Jennings raises primarily the same objections under the umbrella of a claim of ineffective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel, Jennings must establish "(1) that counsel's performance `fell below an objective standard of reasonableness,' and (2) that there is a `reasonable probability' that, but for the deficiency, the outcome of the proceeding would have been different." McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). Thus, "a criminal defendant alleging prejudice must show `that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" A.L. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (quoting Strickland, 466 U.S. at 687).
Jennings points to repeated instances where his trial counsel stipulated to the admission of evidence or failed to object to the admission of certain evidence. He also claims that his trial counsel failed to prepare him adequately to testify, failed to present witnesses, and gave an "incompetent" summation. Many, if not all, of these claims are latter day determinations that a different trial strategy might have been more effective, also known as Monday morning quarterbacking. Although Jennings now disagrees with his counsel's trial strategy, he is bound by it and the Court is constrained to "eliminate the distorting effects of hindsight" and to judge counsel's conduct from counsel's perspective at the time. Strickland, 466 U.S. at 689. Viewed from that standpoint, Jennings has failed to overcome the presumption that his counsel's conduct was the result of sound trial strategy. Id. Indeed, as noted above, his trial counsel articulated a sound basis for his conduct — to convince the jury that McEwan, not Jennings, was the knowing wrongdoer.
More importantly, Jennings could not successfully bear his burden on the second prong of the Strickland test — "that there is a `reasonable probability' that, but for the deficiency, the outcome of the proceeding would have been different." McKee, 167 F.3d at 106 (quoting Strickland, 466 U.S. at 688). See also Strouse, 928 F.2d at 556 (citing Strickland, 466 U.S. at 697). It is insufficient for Jennings to show that counsel's alleged trial errors "had some conceivable effect on the outcome." Strickland, 466 U.S. at 693. In considering the trial record as a whole, the Court finds that the verdict was supported by substantial, even overwhelming, evidence of defendant's guilt. Neither the outcome of the trial would have been different nor was the fundamental fairness of the proceeding compromised to the degree that the Court lacks confidence in the jury's verdict. The jury's verdict of guilt could have been a surprise to — at most — the defendant.
CONCLUSION
For the foregoing reasons, defendant's motion for a new trial is denied in its entirety.