This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge Dora L. Irizarry, ruling on several in limine motions by the prosecution to admit proof of uncharged acts, excluded evidence of defendant’s role in a murder. Judge David G. Trager granted a habeas petition claiming ineffective assistance of counsel. Judge Brian M. Cogan dismissed Aliens Tort Claims Act (ATCA) and Torture Victims Protection Act (TVPA) claims alleging torture. Judge Arthur D. Spatt, citing the ‘ministerial exception,’ declined to adjudicate the claims of a rabbi contesting the decision to fire her. And Judge Jack B. Weinstein allowed defendants in a criminal case to use FBI reports to attack the credibility of hearsay declarants heard on a tape.
Admission of Uncharged Acts
In United States v. Khan, 06 CR 255 (EDNY, Dec. 15, 2008), Judge Irizarry granted in part and denied in part the government’s motion, in a criminal trial, to admit evidence of uncharged acts.
Defendant, a Guyanese national, was charged with cocaine offenses and engaging as a leader of a continuing criminal enterprise.
Judge Irizarry found the government’s allegations of uncharged criminal conduct to be relevant as part of the charged offenses. The next question was whether the evidence was unduly prejudicial under Federal Rule of Evidence 403.
The alleged threats by defendant’s coconspirators to one Elizabeth Persaud had high probative value as to defendant’s leadership role and involvement in the drug conspiracy. With a proper limiting instruction, the risk of prejudice did not out-weigh the evidentiary force of the unindicted acts, especially since the nature of the charges could cause the jurors to assume the possible use of violence.
The court then turned to the proffered evidence regarding the uncharged murders of Devendra Persaud and another victim. Whether to admit such evidence against a defendant who is not charged with crimes of violence, intimidation or firearms is ‘an issue of first impression’ in the U.S. Court of Appeals for the Second Circuit, which has disapproved admission of uncharged conduct ‘more serious than the charged crime.’ As Judge Irizarry concluded:
[V]iolence is inherent to the charges defendant faces. However, evidence of an un-charged murder is highly prejudicial. In this case, the government seeks to admit what appears to be circumstantial evidence of two uncharged murders. The probative value gained – proof of defendant’s leadership role – is substantially outweighed by the risk of undue prejudice. Slip op. 5.
Finally, the court deferred ruling on the motion to admit evidence of the un-charged seizure of Devendra Persaud’s car as payment for a drug debt. The problem was the nature of the government’s proof statements that Ms. Persaud, now deceased, allegedly made to a cooperating witness. This evidence implicated defendant’s Confrontation Clause protections. The government urged that the statements were admissible in any event under Rule 804(b)(6) because Ms. Persaud’s unavailability was due to defendant’s role in the murder. The court therefore ‘reserve[d] decision on the admissibility of the theft until there is an opportunity during the trial to conduct an evidentiary hearing’ on the sufficiency of the proof and defendant’s alleged forfeiture by misconduct of his right to confrontation.
In Espinal v. Bennett, 00 CV 1337, 6536 (EDNY, Dec. 5, 2008), Judge Trager held that a defense lawyer’s failure to explore and present certain evidence at a state criminal trial amounted to ineffective assistance of counsel requiring habeas relief.
Following a 1991 jury trial in Kings County, petitioner was convicted on counts of murder and attempted murder in the second degree, resulting in a sentence of 581/3 years to life. Since that time, petitioner has repeatedly challenged his conviction in state and federal courts.
Here, based on a detailed analysis of the record (slip op. 4-70), Judge Trager saw a prejudicial constitutional error, principally, ‘counsel’s failure to investigate a redacted police report that could have corroborated petitioner’s alibi.’ This, in the court’s view, undermined confidence in the reliability of the conviction and met the standard for ineffective assistance. Strickland v. Washington, 466 U.S. 668 (1984). Unfortunately, the witness who supplied the information reflected in the report is now dead.
Judge Trager observed that petitioner’s alibi has remained consistent since his initial police interview in 1989 and, long after the conviction, was corroborated by others, whose story is largely consistent with the redacted police report. That report also ‘bears significant signs of being a credible hearsay statement.’ Slip op. 71. Taken as a whole, the alibi evidence ‘casts some doubt on whether petitioner was actually at the scene of the shootings[.]’
Judge Trager found petitioner’s trial counsel to be a ‘vigorous and tenacious advocate for his client[.]’ But counsel made a ‘serious error’ when he failed to investigate whether the redacted police report could provide critical corroboration to support the alibi. Slip op. 72.
Counsel also failed to use a few other items of available evidence. Though not of constitutional dimension, these additional errors were significant when weighed together with the failure to investigate the alibi claims fully.
The state court rulings rejecting the ineffective assistance claim ‘were based on unreasonable assessments of the law and facts.’ Slip op. 72.
Torture As Violation of International Law
In Chowdhury v. WorldTel Bangladesh Holding Ltd., 08 CV 1659 (EDNY, Dec. 5, 2008), Judge Cogan dismissed a complaint alleging violations of the ATCA and TVPA with leave to replead the ATCA claims against the individual defendant.
Plaintiff Chowdhury is the managing director of plaintiff WorldTel Bangladesh Ltd. The complaint alleges that defendant Amjad Kahn, a former business partner and present competitor, filed false criminal charges against Mr. Chowdhury in Bangladesh alleging bank fraud. Mr. Chowdhury was arrested and imprisoned for about five months, repeatedly denied bail and allegedly subjected to electric shock. The complaint also asserts that Mr. Kahn offered to withdraw the criminal complaint if his company was given control of WorldTel.
Judge Cogan applied a heightened pleading standard under Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955 (2007), which requires that a plaintiff allege enough facts to make the claim plausible on its face, because the ATCA is based upon a ‘violation of the law of nations.’ Slip op. 4. Judge Cogan determined that the ‘use of gratuitous, punitive, or coercive electric shock against a pretrial detainee’ as described in the complaint was actionable under the law of nations. Slip op. 8-9. However, Mr. Chowdhury’s allegations of forced standing while handcuffed and a five-month detention did not fall into the narrow category of crimes clearly violating the norms of international law as required by Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), for a violation of the ATCA. Thus, the court was unwilling here to internationalize false arrest and malicious prosecution claims under the ATCA.
Concerning the defendants, private parties, such as pirates, can be liable under the ATCA, and torturers should be similarly treated. But according to Judge Cogan, the complaint did not allege sufficient detail concerning the participation of Mr. Kahn in the torture to satisfy the plausibility requirement of Twombly. As the court stated:
The only potentially viable ATCA claim here is that defendants enlisted the assistance of the Bangladeshi police to violate international law norms on defendants behalf. A private party can corruptly enlist state resources to accomplish his own ends, and if the means that the private party uses to make his agent, the state, accomplish that goal is the knowing violation of an international law norm, he should be liable as a principal for the violation. Slip op. 17.
Judge Cogan saw no viable theory upon which the corporate plaintiffs could recover, because they were not tortured.
Judge Cogan reached similar conclusions concerning the TVPA claims. Slip op. 18-20.
‘Ministerial Exception’ To Subject Matter Jurisdiction
In Friedlander v. Port Jewish Center, 07 CV 5253 (EDNY, Dec. 8, 2008), Judge Spatt, dismissing claims brought by a fired rabbi, relied on the ‘ministerial ex-ception’ under the First Amendment. Plaintiff alleged she had been fired in viola-tion of her contract and the covenant of good faith and fair dealing.
Plaintiff was fired as the rabbi for the Port Jewish Center (the Temple) with two years remaining on her three-year contract. The Temple president outlined an exten-sive list of grievances, including plaintiff’s infrequent readings of the Torah and changes to the Bar Mitzvah and Bat Mitzvah services and the liturgical music se-lected for religious services.
Judge Spatt concluded that adjudicating plaintiff’s claim would necessarily re-quire the court to review her performance of her rabbinical duties. The religion clauses of the First Amendment prohibit this type of inquiry into purely religious matters. Under the ‘ministerial exception,’ the court could not exercise subject matter jurisdiction over plaintiff’s claim.
In United States v. Uvino, 07 CR 725 (EDNY, Dec. 19, 2008), Judge Weinstein granted defendants’ motion to admit material from an FBI agent’s reports (Form 302) for the purpose of impeaching two witnesses who would invoke the Fifth Amendment if called to testify.
The voices of the two alleged victim witnesses were heard by the jury on a tape recorded by a confidential informant during an assault. Under Federal Rule of Evidence 806 any evidence that would be admissible if the declarant had testified as a witness may be used to impeach a hearsay statement by declarant that has been admitted in evidence. Here, the hearsay statements were admissible as ‘excited utterances.’ Additionally, Rule 608 permits impeachment through evidence of a witness’ character for untruthfulness. Rule 806 makes Rule 608’s impeachment rules applicable to out-of-court statements.
At defendants’ request, Judge Weinstein admitted statements from the 302 forms, including a statement by one alleged victim about faking a seizure during the alleged assault and evidence of prior dishonest acts, such as participation in armed robbery and fabrication of a story about the robbery. Judge Weinstein planned to explain to the jury the nature of the Form 302 documents, the reason the victims were not testifying and the use of the Form 302 documents to attack the credibility of the individuals who had been heard on the tape but were not testifying.
Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.
[This article is reprinted with permission from the January 9, 2009, issue of the New York Law Journal. Copyright © 2009 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]