Conviction Reversed on Appeal
September 5, 2008
By: Mark Hamblett
The unconstitutional admission of eight plea allocutions at a criminal trial has led a federal appeals court to vacate the murder and racketeering convictions of three alleged organized crime members.
The U.S. Court of Appeals for the Second Circuit yesterday said that the prosecutors should not have been able to introduce plea allocutions by non-testifying co-conspirators against Guiseppe Schifilliti, Philip Abramo and Stefano Vitabile at their 2003 trial.
The use of the allocutions, the court said, ran directly contrary to the instruction of the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), where the Court said the Sixth Amendment’s Confrontation Clause is violated by the “admission of testimonial statement of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”
The tree defendants were alleged members of the New Jersey-based Decavalcante organized crime family who were convicted before Southern District Judge Michael Mukasey. They were sentenced to life in prison.
With the government conceding on appeal that it was error for the court to admit the allocutions under Crawford, and the defense objecting to the admissions at trial, but not on Confrontation Clause grounds, the Second Circuit reviewed the admission under the “plain error” standard.
Under that standard of review, the analysis boiled down to whether the “substantial rights” of the defendants were affected, wrote Judge Dennis Jacobs in United States v. Riggi, 06-1280-cr.
“Here, the plea allocutions undoubtedly prejudiced the jury and influenced their verdicts,” Judge Jacobs said. He was joined on the panel by Judges Guido Calabresi and Robert Sack.
Judge Mukasey, who is now the U.S. Attorney General, had given limiting instructions to the jury that the plea allocutions were to be considered only for establishing that a particular racketeering enterprise or conspiracy existed, and were not to be use dot prove that any defendant was a participant.
But the Second Circuit said the limiting instructions were not enough to mitigate the constitutional violation.
Judge Jacobs said “prejudice arose from the sheer number of plea allocutions admitted to prove” the nine different conspiracies alleged in the case and that “many of the conspiracies were overlapping such that evidence of one tended to support the existence of another.”
The circuit was also concerned, Judge Jacobs said, that “the detailed content of the plea allocutions corresponded to elements of the crimes charged against defendants, potentially boosting the government’s proof in those areas.”
The panel also took note of the “prejudicial spillover” of the allocutions, which it said was “manifest in the alignment of the verdicts.”
“The jury convicted on every substantive count supported by a plea allocution; and where no plea allocution was offered in support of a substantive count, the jury acquitted,” Judge Jacobs wrote.
The government argued on appeal that the lower court’s error was harmless because the evidence of guilt was overwhelming.
But the circuit said that, while there was other evidence, the government’s case “consisted primarily of cooperating witness testimony, which, even viewed in the light most favorable to the government, contained inconsistencies and contradictions.”
And Judge Jacobs noted that the government leaned heavily on the plea allocutions on summation, “attributing to them undue probative value and significance.”
Roland Riopelle of Sercarz & Riopelle represented Mr. Schifilliti, who along with Mr. Abramo and Mr. Vitabile, was tied to the 1991 murder of Decavalcante captain Louis LaRasso through the plea allocution of coconspirator Anthony Rotondo.
Mr. Riopelle said the decision could make a big difference for his client as the government prepared for retrial or plea negotiations.
“I would think that, in particular for Mr. Schifilliti, I thin the substantive homicide count was very difficult for the government to prove even with the guilty plea allocution,” Mr. Riopelle said. “And while the Second Circuit did hold that there was sufficient evidence to go to the jury, this is a case where a retrial of that count might well come out in Mr. Schifilliti’s favor.”
Inga Parsons of Marblehead, Mass. Represented Philip Abramo.
Sanford Talkin of Talkin, Muccigrosso & Roberts represented Mr. Vitabile.
“We’re very happy with the decision,” Mr. Talkin said. “The lawyers worked together very hard on this and we look forward to getting back to the Southern District to see what happens in the case.”
Assistant U.S. Attorneys John M. Hillebrecht, Miriam Rocah and Katherine Polk Failla represented the government.