November 12, 2014
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 Edward R. Korman declined to grant a habeas corpus petition challenging the preclusion of expert testimony about false confessions. Judge Brian M. Cogan saw no reason to grant plaintiff jurisdictional discovery to save its complaint from dismissal. And Judge Eric N. Vitaliano dealt with arguments by insurance companies disclaiming aspects of liability in the wake of a gold theft.
Expert Testimony: Confessions
In Bell v. Ercole, 05 CV 4532 (EDNY, June 20, 2008), Judge Korman rejected petitioner's claim that the state trial court's preclusion of expert testimony on false confessions warranted habeas relief.
After a 1996 jury trial in Queens Supreme Court, petitioner Bell was convicted of murder in the first degree and related offenses arising from the killing of two people during an attempted robbery. The trial evidence showed that, while three accomplices waited outside, Mr. Bell and another accomplice entered a check-cashing store, demanded money from the owner and, before the owner could open the safe, shot both the owner and a security guard. Mr. Bell and his accomplices fled as the two victims lay dying.
A few days later Mr. Bell was arrested as he left his home just before midnight. At the 109th precinct he was handcuffed to a chair for three hours. At 4:30 a.m. two detectives advised him of his Miranda rights. The detectives engaged him in small talk, mainly about basketball, then asked about the robbery. Mr. Bell denied any involvement. When informed that other suspects were telling police their stories, Mr. Bell said he had acted as a lookout with a .380 automatic handgun. He also proceeded to describe in detail what had occurred inside the store, relating facts which he could not have known as a mere lookout. The ballistics evidence showed a 9 mm weapon was used.
Pressed on this front, Mr. Bell began to cry and admitted being in the store with a 9 mm weapon. He provided further details and admitted to firing the fatal shots. One of the people he named as a lookout was Mendez Collier. Mr. Bell signed a written statement and repeated his confession on videotape.
Two hours later detectives visited Mr. Bell in his holding cell and asked him why he alone had implicated Mr. Collier. Mr. Bell said that he had falsely accused Mr. Collier because he feared danger to himself and his family if he named one Mr. Bigweh, an actual lookout.
The jury heard other evidence, in addition to the confession, corroborating Mr. Bell's guilt. Mr. Bell was sentenced to life imprisonment without parole.
Mr. Bell's habeas petition asserted a variety of separate grounds to vacate his conviction. Judge Korman saw no basis for collateral relief, but granted a certificate of applicability as to several issues, including preclusion of expert evidence. Slip op. 8-59.
Specifically, the defense at trial sought to present expert testimony that false confessions may be elicited by means other than physical coercion. This evidence would have addressed the mistaken belief that an innocent person never confesses and explained how, according to studies, the interrogation tactics used here 'create a risk of false or involuntary confessions.' To support its offer of proof, the defense submitted a memorandum of law saying that the expert would testify not about any propensity in Mr. Bell himself to make a false confession, but 'solely' about the 'general phenomena of false confessions.'
Mr. Bell submitted no affidavit alleging that his confession was false. Rather, his offer of proof surveyed published literature showing that certain interrogation techniques, though often inducing truthful admissions, 'also create a risk that a suspect will confess falsely.'
In denying the defense request, the state judge held that the jury could evaluate the voluntariness of the confession on the facts before it, and that expert testimony on false confessions does not pass the Frye test of general acceptance in its field.
Because the U.S. Supreme Court has never squarely addressed the issue, Judge Korman observed, the state court rulings below neither contradicted, nor unreasonably applied, any Supreme Court precedent. Particularly apposite here, in Judge Korman's view, was the holding in Commonwealth v. Robinson, 449 Mass. 1, 5-6, 864 N.E.2d 1186, 1189-90 (2007), where on similar facts the Supreme Judicial Court of Massachusetts upheld the exclusion of testimony by Professor Saul Kassin, on whose work petitioner Bell also relied. In that case Professor Kassin posited that threats, promises and other devices can lead to false confessions; yet he also conceded the lack of (1) empirical data on this subject and (2) a scientific basis for distinguishing true confessions from false. Professor Kassin also acknowledged the jury's ability to deal with these issues.
Judge Korman saw little in the published studies to undermine Professor Kassin's balanced analysis. While some scholars have noted that certain people are especially susceptible to police inducements that are neither unfair nor coercive, Mr. Bell explicitly disclaimed any intention to offer expert testimony about his own personal characteristics.
Judge Korman pointed as well to Mr. Bell's failure to provide an affidavit or testify at the pretrial hearing, even though his testimony at that stage could not have been used against him at trial. Nor did Mr. Bell have prior convictions that could have been used to impeach his credibility had he decided to testify before the jury. Without petitioner's testimony, Judge Korman noted, a jury would not likely have acquitted Mr. Bell based on expert testimony that the tactics used in his interrogation could induce truthful or false confessions. An acquittal was all the more unlikely given the corroboration of the confession by an innocent eyewitness, an accomplice and telephone records. Slip op. 27-28.
Finally, petitioner had the right under New York law to relitigate before the jury the voluntariness of his confession. In fact, the defense told the jury that '[t]he videotape is a product of terror, not a statement of truth.' Thus, the jury confronted two melded issues: whether the confession was voluntary, and whether it was false. The jury was instructed that a statement is 'involuntarily made,' and may not be considered, if it is obtained by force or threats to use force; by 'deception, trickery or promises likely to induce an unwilling statement'; or by 'any other improper conduct or undue pressure.' These very considerations, Judge Korman stated, 'are those which the scholarly writings suggest may lead to a false confession.' Slip op. 29.
In short, 'the jury's threshold determination of the voluntariness of the confession necessarily involved consideration of many of the factors that are said to be identified as relevant to its truthfulness.' Slip op. 29. The trial court also told the jury that the prosecution had to prove beyond a reasonable doubt that each statement was truthful -- a charge further signaling that the truthfulness of the confession was not to be presumed. Any error was therefore harmless.
LLC, LP Diversity Jurisdiction
In Sourceone Healthcare Technologies Inc. v. Bensonhurst Imaging Associates Management LLC, 08 CV 2568 (EDNY, July 2, 2008), Judge Cogan denied plaintiff's request for jurisdictional discovery as to the state of citizenship of each member of the two defendant entities, a limited liability company and limited partnership.
Plaintiff, a Florida corporation, filed an amended complaint after the court, sua sponte, issued an order to show cause as to why the action should not be dismissed for lack of subject matter jurisdiction. In the amended complaint, plaintiff alleged 'upon information and belief' that each member or partner of defendants was a citizen of New York. Plaintiff also submitted an affidavit seeking discovery on the jurisdictional issues.
In denying that request, Judge Cogan noted that there was no disputed issue of fact because defendants had not yet appeared and admitted or challenged the jurisdictional allegations. As the court also observed, 'plaintiff effectively admits that it has no idea as to the identity of all the members and partners of the defendants, let alone their citizenship,' basing its allegations of citizenship 'solely on the fact that defendants conduct business in New York.'
This approach, in the court's view, could run afoul of Rule 11:
Under Rule 11, a party cannot allege facts to make out the substance of a claim when it has an insufficient basis to make those allegations in the hope that discovery may fortuitously give it a good faith basis, unless it has reason to believe that will in fact occur. Slip op. 3.
The rule's requirements, moreover, apply to all allegations, including jurisdictional allegations.
Judge Cogan soundly rejected plaintiff's contention that defendants acted deceptively by using the LLC and LP forms rather than the corporate form to prevent plaintiff from determining their citizenship. Indeed, plaintiff 'has no vested right to diversity jurisdiction,' which is 'a limited grant, narrowly construed, available only to those who have sufficient facts to meet the confines of the power conferred by the Constitution and defined by Congress. ' Slip op. 4.
Interpretation of Insurance Policies
In Eurospark Industries Inc. v. The Underwriters at Lloyds Subscribing to the Risk on Cover No. 97FA0071010A; Eurospark Industries Inc. v. Massachusetts Bay Insurance Co., 05 CV 0208 (EDNY, July 2, 2008), Judge Vitaliano adopted the report and recommendation of Magistrate Judge Joan M. Azrack denying for the most part Lloyd's motion for summary judgment on insurance coverage and denying Massachusetts Bay's motion for summary judgment.
Eurospark manufactured raw gold into finished jewelry. It maintained gold at its factory in the form of raw gold, finished products and work-in-progress. Eurospark's profits reflected the labor involved in manufacturing jewelry. On March 14, 1998, an armed robbery occurred at the factory, and Eurospark submitted claims under its policy to Lloyds for the value of the stolen gold and to Massachusetts Bay for business income lost as a result of the robbery.
The claims filed with Lloyds sought compensation for the value of the stolen gold and labor lost. Eurospark retained a forensic accountant to prepare a 'roll-forward' calculation to support its claim, determining the inventory working backwards from the date of the robbery.
Lloyds based its summary judgment claim on three grounds. First, Lloyds claimed that Eurospark violated a disclaimer provision in the policy stating that if 'the assured shall make any claim knowing the same to be false or fraudulent, as regards amount or otherwise, this insurance shall become void and all claim hereunder shall be forfeited.' Lloyds pointed to a statement during an Examination Under Oath sought by Lloyds in which the president of Eurospark did not answer accurately about the funds used to purchase some gold, which was actually paid for by a third party. According to Lloyds this 'false' testimony 'as to a material issue with intent to defraud' entitled it to summary judgment. The record, however, was clarified during an adversary proceeding in the bankruptcy court, and Eurospark never filed a claim for that gold. In any event, unintentional false statements do not void a policy. Magistrate Judge Azrack concluded that whether the untrue statements were fraudulent was a credibility issue to be determined by a jury at trial. Upon de novo review Judge Vitaliano denied Lloyds' motion for summary judgment on this point. Slip op. 14.
Second, Lloyds claimed that Eurospark failed to comply with the policy requirement that the assured maintain 'a detailed and itemized inventory of his or their property, including records of purchases and sales and separate listings of all travelers' stocks, in such a manner that the exact amount of loss can be accurately determined therefrom by the Underwriters.' Magistrate Judge Azrack, applying a 'substantial compliance' rule, found that a jury could conclude that the omission in Eurospark's books and records of certain information about the gold at issue was immaterial to Eurospark's claim and could be explained through the president's testimony. Significantly, Eurospark's omissions did not inflate the size of its claim. Agreeing with Magistrate Judge Azrack, Judge Vitaliano denied Lloyds' motion for summary judgment based on the policy's books and records clause. Slip op. 17.
Third, Lloyds moved to strike Eurospark's claim for labor in addition to the value of the gold. The policy provides for compensation for 'stock ... adjusted on the basis of the London bullion Brokers 2nd fixing price per ounce as of the date of loss.' Slip op. 18. Judge Vitaliano determined that the term 'stock' in the policy was not ambiguous and included all gold possessed by Eurospark in all its forms. Thus, Lloyds' liability under the terms of the policy was limited to the cash value of the gold held by Eurostock measured by weight multiplied by the 2nd London Fix price. Granting partial summary judgment to Lloyds, Judge Vitaliano dismissed Eurospark's 'claim for the loss of the value added to raw gold by its labor as represented in the actual value of finished and work-in-process goods.' Slip op. 22.
Judge Vitaliano also reviewed and adopted Magistrate Judge Azrack's recommendation to deny Massachusetts Bay's motion for summary judgment on Eurospark's business interruption claim. Massachusetts Bay argued that since gold was easily replaceable on the market, there would be no business interruption. As Magistrate Judge Azrack found, the robbery had had some negative impact on Eurospark's business and the exact impact should be determined at trial.
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 July 11, 2008, issue of the New York Law Journal. Copyright © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]