The opinion of the court was delivered by: Sweet, D.J.
On July 8, 2005, the Second Circuit issued a Summary Order (the "Order") remanding the cases of defendant Brent Birkett ("Birkett") and Franklin Sanchez ("Sanchez") (collectively, the "Defendants") to this Court to: (1) consider whether the admission at trial of six plea allocutions of co-conspirators, in violation of Crawford v. Washington, 541 U.S. 36 (2004) ("Crawford"), constituted plain error; (2) determine whether reconsideration of the prior denials of the Defendants' Rule 33 motions is necessary; and (3) re-sentence the Defendants pursuant to United States v. Fagans, 406 F.3d 138 (2d Cir. 2005). The parties requested, and the Court agreed, to decide the Crawford and Rule 33 issues initially and, if no new trial was granted, to permit further briefing on the Defendants' resentencings under Fagans.
For the reasons set forth below, the Crawford error did not amount to plain error, and no reconsideration of the prior denials of Defendants' Rule 33 motions is warranted. As such, no new trial will be ordered. Defendants will proceed to their respective re-sentencings.
A superseding indictment was filed on September 24, 1999, charging Defendants and ten other co-defendants with participating in a conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base, in a form known as "crack," in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846.
Trial against Birkett and Sanchez began on May 15, 2000, and a guilty verdict against both was returned on May 19, 2000.
By motion of September 29, 2000, Birkett and Sanchez moved to set aside the verdict and grant a new trial under Rule 33, Fed. R. Crim. P., on the basis of two handwritten letters purportedly written before trial by James Clyburn ("Clyburn"), an accomplice witness. Defendants argued that these handwritten letters were inconsistent with material portions of Clyburn's trial testimony and established that Clyburn knew that the government had targeted Birkett and Sanchez and that the government had urged Clyburn and his co-defendants to testify against Birkett and Sanchez. The motion was heard on December 6, 2000 and denied by opinion of January 10, 2001 (the "January 10 Opinion"), familiarity with which is assumed. See United States v. Sanchez, No. S1 99 CR 338, 2001 WL 26212 (S.D.N.Y. Jan. 10, 2001).
In the course of sentencing Birkett and Sanchez's co-defendants, Fatico hearings were conducted on June 27, 2001 and September 4, 2001, and Clyburn testified at both. By motion of February 4, 2003, Defendants again moved to set aside the verdict and grant a new trial under Rule 33, Fed. R. Crim. P., contending that during the Fatico hearings Clyburn admitted to committing perjury while testifying at Defendants' trial. Specifically, Defendants argued that Clyburn perjured himself at trial by steadfastly denying that he had written two letters. He subsequently admitted that he had written these letters when he was confronted by the government's expert's opinion about the handwriting in the letters. Additionally, Defendants asserted that Randolph Helvy ("Helvy"), another accomplice witness at trial, also changed his testimony at the Fatico hearing with respect to cooperation between accomplices. The Defendants' second Rule 33 motion was heard on March 12, 2003 and was denied by opinion of April 18, 2003 (the "April 18 Opinion"), familiarity with which is assumed. See United States v. Sanchez, No. S1 99 CR 338, 2003 WL 1907864 (S.D.N.Y. Apr. 18, 2003).
On February 10, 2004, Birkett and Sanchez were each sentenced to 360 months imprisonment to be followed by ten years of supervised release. Defendants currently are serving their sentences.
On December 17, 2004, Defendants appealed their convictions to the Second Circuit, arguing that the admission of six plea allocutions of Defendants' co-conspirators in violation of Crawford warranted a new trial. Defendants further argued that the trial court abused its discretion in denying Defendants' Rule 33 motions as the trial court's Rule 33 holdings may have relied on the six plea allocutions which, under Crawford, amounted to inadmissible hearsay. Finally, Defendants argued that the sentences imposed on them under the United States Sentencing Guidelines were invalid under the Supreme Court's holding in Blakely v. Washington, 542 U.S. 296 (2004).
The Second Circuit issued its Order on July 8, 2005, remanding the Crawford, Rule 33, and re-sentencing issues to this Court. The motion was marked fully submitted on November 22, 2005.
I. No Plain Error Under Crawford
In its July 8, 2005 Order, the Second Circuit remanded Defendants' claim that the admission at trial of the plea allocutions of six co-conspirators violated their confrontation rights under Crawford. See United States v. Birkett, 2005 WL 1607185, *2 (2d Cir. July 8, 2005). The Second Circuit held that Defendants had failed to invoke the Confrontation Clause expressly in their objection to the introduction of the plea allocutions during trial; as such, the Circuit instructed that the Crawford error be evaluated under a plain error analysis.
Under a plain error standard, the defendant bears the burden of showing "1) an error, 2) that is plain, 3) that affects substantial rights." United States v. Gordon, 291 F.3d 181, 191 (2d Cir. 2002) (citations omitted). If an error meets these first three requirements, "the Court engages in a fourth consideration: whether or not to exercise its discretion to correct the error. The plain error should be corrected only if it 'seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" United States v. Bruno, 383 F.3d 65, 79 (2d Cir. 2004), quoting Jones v. United States, 527 U.S. 373, 389 (1999).
Where, as here, a supervening decision resulted in constitutional error, the Second Circuit has directed that the court conduct a "modified plain error" analysis in which the government bears the burden of persuasion as to whether substantial rights have been affected. See United States v. Bruno, 383 F.3d 65, 79 n.8 (2d Cir. 2004), quoting United States v. Thomas, 274 F.3d 655, 668 n.15 (2d Cir. 2001) (en banc). The Second Circuit questioned, but did not resolve, whether the Supreme Court's decision in Johnson v. United States, 520 U.S. 461 (1997), implicitly overruled the Circuit's "modified plain error analysis." However, in this instance, it is unnecessary to decide the continued viability of the "modified plain-error" approach because, as will be set forth in greater detail below, even absent the allocutions, other evidence in this case was sufficient to demonstrate the existence of the charged conspiracy regardless of the allocation of burden.
The government concedes that the introduction of six guilty plea allocutions was plain error, as it is now "clear' or 'obvious[,]'" Gordon, 291 F.3d at 193 (citation omitted), that the admission of these allocutions violated Defendants' rights under the Confrontation Clause of the Sixth Amendment. The issue before the Court, therefore, is whether the Sixth Amendment violation affected "substantial rights," and, if so, whether this Court should exercise its discretion to correct that error.
In determining whether an error affects substantial rights, the court considers whether error "is prejudicial and . . . affected the outcome of the district court proceedings." Thomas, 274 F.3d at 668 (internal quotation marks and citations omitted). In determining whether a guilty plea admitted in violation of Crawford affected substantial rights, the Second Circuit has directed that the question to be resolved, under the plain error test, is whether the court "can conclude with fair assurance that this evidence did not substantially influence the jury." Bruno, 383 F.3d at 79, quoting Untied States v. Jean-Baptiste, 166 F.3d 102, 108 (2d Cir. 1999). Under this standard,
"[a]n error in the admission of evidence may be deemed harmless only if it is highly probable that the error did not contribute to the verdict." Id. at 79-80, quoting Jean-Baptiste, 166 ...