United States v. O'Connor, et al., No. 08-5968 (2d Cir. 2011)
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Defendants Linda O'Connor and Dean Sacco appealed from convictions of sex trafficking of a child; O'Connor appealed from convictions of selling a child for the purpose of producing child pornography and producing child pornography; and Sacco appealed from convictions of buying a child for the purpose of producing child pornography, producing and possessing child pornography, and interstate travel with intent to engage in illicit sexual conduct with a minor. O'Connor contended that evidence was insufficient to support her conviction on any count and that the district court deprived her of a fair trial by denying her motions for severance of her trial from Sacco's trial. O'Connor also challenged certain evidentiary rulings. Sacco contended chiefly that the district court deprived him of a fair trial by denying his attorney's request to withdraw from the case, by admitting in evidence portions of his self-titled autobiography that gave an account of his past thoughts and conduct, and by denying his request for a continuance following unexpected testimony from a government witness. The court found no merit in any of defendants' contentions and therefore, affirmed the judgments and convictions.
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08-5968-cr (L) USA v. O'Connor 08-5968, -6092 USA v. O'Connor 08-5968, -6092 USA v. O'Connor 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2010 4 5 (Argued: October 13, 2010 Decided: June 16, 2011) Docket Nos. 08-5968-cr, -6092-cr 6 7 8 UNITED STATES OF AMERICA, Appellee, 9 10 11 - v. LINDA O'CONNOR, DEAN SACCO, 12 13 14 Defendants-Appellants. Before: KEARSE, POOLER, and HALL, Circuit Judges. Appeal from a judgment of the United States District Court 15 16 for the Northern District of New York, 17 convicting defendants of sex trafficking of a child, see 18 U.S.C. 18 §§ 19 chi ld 20 § 21 and convicting defendant Sacco of buying a child for the purpose 22 of producing child pornography, 23 possessing child pornography, 24 and 2256, 25 sexual conduct with a minor, see id. 26 1591 (a) for 2251A(a), and the (b) ; Thomas J. convicting defendant purpose of produc ing O'Connor of chi ld see id. § §§ see id. Judge, selling a pornography, and producing child pornography, see id. McAvoy, § see id. 2251 (b) ; 2251A(b), producing and 2251 (a), 2252A(a) (5) (B) and interstate travel with intent to engage in illicit Affirmed. § 2423(b). SCOTT 12 13 14 15 MEISLER, Criminal Division, United States Department of Justice, Washington, D.C. (Richard S. Hartunian, United States Attorney for the Northern District of New York, Miroslav Lovric, Brenda K. Sannes, Assistant United States Attorneys, Syracuse, New York, Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant Attorney General, Richard M. Re, Appellate Section, Criminal Division, United States Department of Justice, Washington, D. C., on the brief), for Appellee. 16 17 18 19 20 21 LISA A. PEEBLES, First Assistant Federal Publ ic Defender, Syracuse, New York (Alexander Bunin, Federal Public Defender, James P. Egan, Syracuse, New York, on the brief), for DefendantAppellant 0' Connor. 22 23 24 25 BRENDAN WHITE, New York, New York (White & White, New York, New York, on the brief), for Defendant-Appellant Sacco. 1 2 3 4 5 6 7 8 9 10 11 26 KEARSE, Circuit Judge: 27 Defendants Linda O'Connor and Dean Sacco appeal from final 28 judgments entered 29 Northern District of New York following a jury trial before Thomas 30 J. McAvoy, 31 in violation of 18 U.S.C. 32 child for the purpose of producing child pornography, in violation 33 of 18 U. S.C. 34 the 35 § Judge, § in the United States District Court for the convicting them of sex trafficking of a child, § 1591; convicting O'Connor of selling a 2251A(a), and permitting her child to be used for production of child pornography, in violation of 18 U.S.C. 2251(b); and convicting Sacco of buying a child for the purpose - 2 - 1 of producing 2 § 3 conduct for the production of child pornography, 4 18 U.S.C. 5 engage in illicit sexual conduct with a minor, 6 U.S.C. 7 violation of 8 to 9 imprisonment for life. 2251A(b), 30 child § a 2251(a), engage § On child to violation in of 18 sexually U.S.C. explicit in violation of travel in interstate commerce with intent to 2423 (b), § in coercing years I 10 pornography, and possession 2252A(a) (5) (B) 0 1 child pornography, in OIConnor was sentenced principally imprisonment. appeal, of in violation of 18 Sacco was Connor sentenced principally to contends, inter alia, that the 11 evidence was insufficient to support her conviction on any count 12 and 13 denying her 14 Sacco. She also challenges certain evidentiary rulings. 15 contends chiefly that the district court deprived him of a fair 16 trial by denying his attorney's request to withdraw from the case, 17 by admitting in evidence portions of his self-titled autobiography 18 that 19 denying 20 testimony from a government witness. 21 defendants that the give motions an his 1 district 24 for account request severance of his past for I. The present OIConnor's deprived a her of her trial of thoughts continuance a fair trial by that of from and conduct, following Sacco and by unexpected Finding no merit in any of contentions, we affirm the judgments of conviction. 22 23 court BACKGROUND prosecution daughter--identified focused in - 3 - the on the briefs sexual abuse before us of as 1 "S.O."--from 2004 into February 2007. 2 at trial, conducted in May 2008, was presented principally through 3 the 4 social 5 acquaintances of S. 0., 6 most 7 following. 8 A. testimony s.o. of workers, law favorable to and numerous enforcement s.o. witnesses and or Sacco. government, Evidence as to the Abuse of 9 other agents, 0' Connor, the The government's evidence former including friends or Viewed in the 1 ight the evidence reveals the s.o. testified that she was sexually abused by her mother, 10 by her mother's sex partner, George Lang (or "George" or "Lang"), 11 by 12 mother. 13 Sacco, 1. and by two strangers in encounters arranged by her Abuse by O'Connor and George Lang in 2004-2005 14 s.o. O'Connor began abusing in the bathroom of their home s.o. 15 in Deposit, New York, in 2004, when 16 the guise of helping s.o. 17 touching 18 (See Trial 19 been bathing herself for two years, asked her mother to stop; but 20 the abuse escalated; 21 lead S.O., naked, from the bathroom to O'Connor's bedroom, where 22 0' Connor, naked, would 23 require 24 testified S. o. s.o. that wash and dry herself, inappropriately, Transcript to was 10 years of age. ("Tr.") such as by 1458-59.) O'Connor started rubbing S.O., and reciprocate. pleading with (See her - touch 4 - s.o. id. mother her 's O'Connor would genitalia at 1459-6l.) to vagina. who by then had approximately twice a month, kiss In stop was and S.O. "useless" 1 (id. at 1461) 2 mother 3 Thus, 8.0. ceased to protest. and In 4 because 0' Connor's I was supposed O'Connor 2004, response was to do what "that she said" she was my (id. at 1460). (8ee id. at 1461.) and 8.0. were spending substantial 5 amounts of time with George and Renee Lang, a married couple whom 6 8.0. 7 During 8 rent and was threatened with eviction 9 would 10 sometimes this called period, sometimes "Grandpa" 0' Connor help and was O'Connor "Grandma" sometimes with late (see id. the (id. rent at 1306). in paying the at 1500-01); Lang (see id. at 1457, 1501) . 0' Connor 11 id. and George at 1465), Lang communicated frequently online 12 (see often sending each other pornographic images 13 (see id. at 1237). 14 at the Langs' home in nearby Nineveh, New York; O'Connor and Lang 15 were 16 living room after Renee Lang 17 could be heard snoring in the Langs' bedroom. After 8.0. walked 18 in saw 19 intercourse, 20 activities with them: 21 kissed and touched George; O'Connor kissed and touched 8.0. 22 1476-79.) In 2004, O'Connor and 8.0. spent many weekends sex partners, on O'Connor In 23 engaging in sexual and the 24 8.0., 25 and O'Connor 26 One adult (or "Renee") George O'Connor ensuing activities one required night 8.0. to in the Langs' had gone to sleep and and them participate in George kissed and touched 8.0.; months, George Lang cont inued sometimes with O'Connor and sometimes individually. would would ply 8.0. sometimes with take - 5 sexual O'Connor (Tr. to abuse George liquor before molesting her. photographs - having of 8.0. as she 1 2 the photos on his computer. 3 with s.o. performed sex acts on the other, and George would later show s.o. but not intercourse. In late 2004, 4 George engaged in oral and manual sex (See id. at 1481-88.) George Lang was diagnosed with cancer, 5 his abuse of S.O., although continuing, became less frequent 6 id. at 1496). 7 in 8 George. 9 succumbed to his cancer. and 10 early 2. O'Connor and 2006 after (See id. s.o. arguments at 1263-65, (see stopped going to the Langs' home between O'Connor 1497-98.) In and July Renee 2006, or Lang (See id. at 1320.) Abuse by O'Connor and Sacco in 2006-2007 11 In June 2006, a flood forced O'Connor and s.o. out of 12 their home in Deposit, and at the beginning of August they moved 13 into 14 Norwich, New York ("45 Fair"), where their new landlord was Sacco. 15 (See Tr. 16 told them he lived in New Jersey but that since he had to be back 17 in Norwich the next day, he planned to spend the night in his car; 18 O'Connor invited him to sleep in the apartment instead. 19 at 1507, 20 kissing 21 intercourse with her. 22 terrified, 23 the room, 24 O'Connor. the downstairs 1453, 1470, 1622-23.) her; apartment he 1502-04.) a house had removed at 45 Fair Street On the day they moved in, During the night, obeyed. leaving of her Sacco told s.o. clothing s.o. and - 6 - (See id. soon was to be quiet, crying into her pillow. (See id. at 1507-09.) Sacco woke up to find Sacco Sacco eventually stopped, s.o. in dressed, having and S.O., and left S.O. did not tell s.o. Little more than a week later, 1 with some 2 herself 3 commit 4 Department 5 804-05, 1510-11.) Later in August 2006, DSS learned that O'Connor 6 herself had to 7 stones and had left 8 finding 9 food suicide. of s.o. and of her She was Social gone mother's ingested and injected hospitalized, Services the s.o. medicines and (" DSS") hospital in the was an attempt Chenango notified. seeking at home unsupervised. County (See treatment to for Tr. kidney A DSS caseworker, home alone, with nothing in the kitchen except rotten frozen items S. o. 10 determined 11 have her 12 (See id. 13 wi th Renee, S. o. 14 her and 15 transferred to at 815-18.) lot" the that care not know how for herself temporary to prepare, and arranged to custody of Renee Lang. During the period in which she was living told social O'Connor, 16 could not did (Id. at 827; see id. at 1521.) a that s.o. that he once workers "creep led] out of the that Sacco her out" "trie [d] and hospital, to hug "scare [d] showered s.o. her." with 17 gifts and promised that their relationship would improve; and both 18 of 19 1516-20.) 20 DSS recommended that 21 court rejected that recommendation and returned 22 custody. However, 23 statements about 24 ordered O'Connor not 25 with Sacco. them wanted to resume In October, (rd. living together. (See the Family Court held a s.o. in Sacco's id. at 821-22, hearing at which instead be placed in foster care. light of DSS's repeated to allow s.o. at 826-27.) - 7 - report "creep [y]" to s.o. have of The to O'Connor's s.o. hugging, 's prior the court unsupervised contact 0' Connor ignored that 1 condi t ion, 2 Sacco sexually abused s.o. again. 3 apartment had become 4 at 45 Fair 5 conversation that S. o. 6 S. 0., 7 and a few weeks later, at 1522 -23, 1527.) and spoke with camera with a id. vacant. O'Connor Sacco at could not hear, and Sacco instructed S. o. Upstairs, 8 9 at 45 Fair rn late October, the the upstairs soon door. 0' Connor After a came in and got to join him upstairs. Sacco had intercourse with arrived s.o. (See id. He then used a zoom lens to take pornographic photographs of her. 10 (See 11 instructed, 12 finally allowed 13 who was in the kitchen. 14 is 15 responded," [I] t' s better than being homeless," and left the room. 16 (rd.) doing 17 at 1523-25.) Sacco stuff hit s.o. When she her. (See to leave, that's initially id. refused to at 1525.) pose When as Sacco she ran downstairs to her mother, Crying, S. o. told 0' Connor, hurting me. " (rd. "[M] at 1526.) om, Dean O'Connor The next time Sacco abused S.O., on Thanksgiving in 2006, he was joined by O'Connor. 19 (see Tr. 20 where, 21 intercourse with O'Connor. 22 sex on Sacco and to kiss her mother. 23 had again brought a camera, which appeared to S.O. to be the same 24 one he had used to take pornographic pictures of 25 and he and 0' Connor took turns taking pictures of each other as 26 they abused 1531), first, Sacco and O'Connor took Sacco had s.o. After serving s.o. 18 intercourse s.o. into her bedroom, s.o. Then Sacco had was then ordered to perform oral (See id. at 1529.) - with s.o. alcohol at dinner 8 - (See id. at 1528.) s.o. Sacco previously; At one point, after O'Connor 1 and Sacco had ignored S. O. 's pleas to stop, 2 tell someone about the abuse. 3 then I'll stab you and rape you as you die." 4 bel ieved him. Sacco responded, threatened to "[I] f you tell [,] (Id. at 1530.) S.O. (See id.) Sacco had intercourse with S.O. 5 S .0. upstairs apartment, twice in December 2006 in 6 the 7 (see Tr. 8 downstairs after she had spoken with Sacco at the door and ordered 9 S.O. to join Sacco upstairs. 1540, on including S. O. 's thirteenth birthday On the first occasion, 1546). that on O'Connor remained (See id. at 1541-42.) 10 of S. O. 11 the upstairs door to announce--through the door, 12 it--that 13 see 14 joined Sacco and S.O. 15 in the abuse of S.O. the S.O. occasion was interrupted by 0' Connor's knock at family of one of (See id. at 1543.) without opening S.O. 's schoolmates had arrived to On the second occasion, O'Connor in the upstairs apartment and participated (See id. at 1547-48.) Sacco last abused S.O. 16 Sacco's abuse in February 2007. In the meantime, 17 he and O'Connor had begun to have frequent arguments about money, 18 with Sacco telling O'Connor that she owed him rent and needed to 19 pay 20 (testimony 21 Sacco) 22 at 45 Fair was not paying rent on time).) him soon. of that 24 the 25 photographs 26 presented a at 1555-56; Sacco no that to evidence S.O. were presented evidence that, in see employer complained was photographs id. former Sacco There 23 (See him that the at trial. a search - 9 - (called that testified also the id. as a taken, However, of a witness downstairs government were at 2009-11 found and the locked by tenant any of no such government storage unit 1 containing property belonging to Sacco, 2 found 3 analysis revealed that the outside of the condom bore 4 (See id. at 334-35, a used 5 condom. (See also sexual 7 those victims, 8 those 9 girls in the age range of 8-11 years. Forensic s.o. 's DNA. other young girls, calling as Sacco's prior witnesses one of as well as a police detective who had investigated and whom Sacco discussed In had Part admitted being at tracted (See Tr. I1.B.l. 438-67, below, to 677-78, 686.) 11 introduced published writings by Sacco in which he had described 12 his pedophilic sexual appetites. 3. as to 10 13 And, 327-28.) introduced evidence of 6 events of at 309-10, 1940-4l.) The government abuse id. law enforcement agents had the government Abuse by Strangers, Arranged by O'Connor 14 In December 2006, New York, 15 Binghamton, 16 nearby 17 arrived at 18 the 19 intercourse and oral sex with 20 only 21 1533-37.) 22 0' Connor 23 left 24 at 1539.) Johnson man to the and O'Connor remind s.o. had man man to proceeded s.o. follow that 0' Connor had s.o. undress when a "had - 10 - man's they lot," to and a orders. arrived and lot bus never O'Connor sat nearby, the not to a to Western hotel S. o. and O'Connor told testified room a rode Best night, "some money but hotel a room, The s.o. into s.o. That City. their hotel wants." checked and that more seen "do what to have speaking (See in in Tr. Binghamton when money." the man In 1 January 2007, O'Connor again took S.O. to the Best 2 Western, where they went into a room in which a man S.O. had never 3 seen was waiting. 4 and 5 oral sex. 6 watching 7 bathroom after 8 the 9 at 1554.) 10 B. the O'Connor told S.O. to follow the man's orders, man had intercourse wi th S. O. Meanwhile, O'Connor sat in the room eating donuts and television. man was the (See id. man had gone and forced her to perform and at 1550-53.) S.O. finished wi th her; there was money on the went to the when she emerged, table. (See id. The Arrests of O'Connor and Sacco and the Proceedings Below In late February 2007, O'Connor, after dining with S.O. at 11 12 a pi zza Hut, 13 paying the bill. 14 with O'Connor's violation of the Family Court's order not to allow 15 S. O. 16 incarceration; 17 Chesebro, 18 (See id. at 896, 19 the 20 abuse 21 Patrick Blenis, 22 her. 23 supervisor, 24 telephone 25 later, to was have arrested when (See Tr. 892-93, the at she 926.) let from by her mother--telling a (See id. calls Sacco was S. O. DSS Chesebro to Sacco. leave wi thout led along to 0' Connor's caseworker Elizabeth be placed in foster care. S.o. began to disclose Sacco- -but did not disclose the teacher, then Chesebro, Norwich police detective, at 1566-68.) and of to That arrest, Sacco, Shortly thereafter, had suffered a wi th urging to attempted 1628-29.) unsupervised visi ts 0' Connor agreed abuse she and then that Sacco had raped On March 14 and 15, with Blenis, his at her (See side, id. S.O. at 138-42, arrested on state-law charges, - 11 - made controlled 145-52. ) Days including rape. 1 (See id. at 152-53.) 2 in Part II.B.2. below, Sacco told his friend and landlord, Gerardo 3 DiFiori, 4 sensed was being monitored. 5 doing" something wrong," 6 give 7 said, 8 at 528-29.) about me 30 a In the meantime, call years. he received had Sacco said he was "in trouble" for "if they I re going to In September 2007, S.O., they get at 527.) Pressed fearing which me, for "a prostitute ll ; "I had sex with a minor," 9 from as discussed Sacco and (Id. 11 on March 18, that detail s, IIshe l s S. O. Sacco 12." was suicidal, 10 Chesebro had her admitted to a 11 Tr. 12 month, S. O. 13 Sacco, 0 I Connor 14 photographs. 15 investigation by state and federal officials, which ultimately led 16 to the arrests of OIConnor and Sacco on federal charges. 17 at 175-84, 18 OIConnorls 19 to have oral and manual sex with George Lang, 20 oral 21 at 959-61.) 933 -34.) sex disclosed had (See Chesebro acquiesced 947. ) the the In 23 prosecution, 0 I Connor 24 buying, 25 pornography, in 26 respectively, and respectively, and a at 18 U.S.C. § S.O. taken (See id. disclosed Best and intercourse and (See Western. initiating charged with the id. present selling and the purpose of producing child 18 2 2007, occasion by as OIConnorls forcing her indictment of abused disclosure prompted an were one was That the Sacco she on December child for violation when had as well strangers seven-count that and at 937-46.) incestuous conduct, with (See conversation at that center the following to id. 192-94, In 22 During a psychiatric health center. U.S.C. (Counts - 12 - §§ 1 2251A(a) and 2); and (b), and each was 1 charged with sex trafficking of a child, in violation of 18 U.S.C. 2 §§ 3 engage in sexually explicit conduct for the purpose of producing 4 child 5 (Count 4), 6 of 7 O'Connor was charged, 8 knowingly 9 conduct 1591 (a) and (b) and pornography, 18 2 (Count in violation 3), of with 18 coercing U.S.C. a 2251(a) §§ and with possession of child pornography, U. S. C. §§ 2252A (a) (5) as permitting for the and 2 (B) (Count minor and 2 in violation 7). In addition, the child's parent and custodian, her child purpose of to engage producing child pornography, in 11 charged with 12 engaging in illicit sexual conduct with a minor under the age of 13 18, in violation of 18 U.S.C. 14 As in discussed moved for interstate in 15 trial, severance 16 arguing 17 irreconcilable 18 would 19 commerce 5)i for and Sacco was the purpose of 2423(b) and 2 (Count 6) §§ Part (Count explicit violation of 18 U.S.C. travel and 2 sexually with 10 §§ 2251(b) in to II.D. and likely result 20 that that her the her trial O'Connor, defense and from prior that of of Sacco to district court denied severance. principally of below, that Sacco, overwhelming evidence against in spillover prejudicial were Sacco to O'Connor. The As discussed in Part II.A. below, two business days before 21 the scheduled start of trial, Sacco's attorney, 22 under seal, 23 court denied that motion as well. requested permission to withdraw as his counsel. 24 After an 18-day trial, 25 three of the five counts against her: 26 for the in a motion filed purpose of producing The the jury found O'Connor guilty on child - 13 - Count 1 (selling a child pornography), Count 3 (sex 1 trafficking of a child), 2 used by Sacco in the production of child pornography). 3 found not guilty on Count 4, which charged her with coercing S.O. 4 to engage 5 pornography, 6 child pornography. 7 against B imprisonment, to be followed by a life term of supervised release. 9 Sacco was sentenced principally to prison for life. in sexual conduct and Count him. and Count 5 7, 0' Connor was sentenced principally to 13 request 14 excerpts from his 15 grant continuance 16 admission, 17 principally that the evidence was insufficient to convict her on 1B any count and that she was deprived of a fair trial by being tried 19 jointly 20 contentions. 21 A. 23 a withdraw which with fair trial by denying the case, by the district court to a years' DISCUSSION Sacco contends principally that him of 30 12 22 deprived the purpose of producing child which charged her wi th possession of II. On appeal, She was Sacco was convicted on all five of the counts 10 11 for (permitting her child to be from admitting self-titled autobiography, had Sacco. after been We DiFiori's no merit in at torney's in evidence and by refusing to testimony unanticipated. find his as to O'Connor any of Sacco's contends defendants' Sacco's Attorney's Motion To Withdraw Kelly E. Fischer Esq. had been appointed by the court to represent Sacco in this case in February 200B. - 14 - On March 20, the 1 court scheduled the trial to begin on Monday, April 28, 2008. On 2 Thursday April 24, Fischer to 3 withdraw from the case. 4 affirmation, was filed ex parte and under seal. asked His the court motion, to accompanied In a hearing in open court on April 25, 5 allow him by his Fischer directed 6 the court's attention to the contents of his sealed affirmation 7 and stated generally that the intensity of his personal feelings 8 with regard to the case against Sacco might affect his ability to 9 effectively represent his client. Citing an Ethical Consideration 10 ("EC") Lawyer's 11 Responsibility 12 (McKinney 2008), which was applicable at the time of Sacco's trial 13 (but which has since been superseded by N.Y. Rules of Professional 14 Conduct), Fischer stated as follows: 15 16 17 18 19 20 21 22 23 24 set in (the the New York "Code ll ) , reprinted in Code N.Y. of Professional Jud. Law App. Basically, your Honor, I would cite the ethical consideration under Professional Code of Professional Responsibility EC2-30 which basically says that if the intensity of an attorney's personal feelings might affect--may affect that attorney's ability to effectively represent his client, then the attorney should seek to withdraw. Based on the paperwork that I submitted which basically sets out my position personally, that raises a real concern for me in this case. 25 26 27 28 out THE COURT: All right. MR. FISCHER: Particularly with respect to the primary witness, almost the exclusive witness against Mr. Sacco, [S .0.] . 29 (Transcript 30 ( "Sacco April 25 Tr. "), at 3.) 31 32 of Proceedings as to Dean Sacco, April 25, 2008 Fischer's affirmation--which is hereby deemed unsealed to the extent that it is described in this opinion - 15 - (and we leave it 1 to the district court to decide 2 unsealed 3 Fischer had performed hours of research, had spoken with a variety 4 of investigators and other sources, and had reviewed every page of 5 the approximately 100 pounds of discovery materials that had been 6 supplied 7 However, Fischer stated that in the past two weeks he had received 8 materials 9 Sacco's possession of the used condom bearing in toto)--specified by the from that government the whether or government in the preparation obtained that motion from should for other be trial, sources. included the evidence as s.o. 's DNA. to Fischer 10 stated that until that time, 11 vigorously defend Sacco's position at trial; but that "single bit 12 of 13 shift 14 Stating that his past successes in defending criminal cases were 15 largely 16 ability to convey that moral conviction" to juries, Fischer stated 17 that "while I could probably go through the motions to defend Mr. 18 Sacco, 19 Fischer's affirmation did not cite any provision of the Code that 20 imposed an Ethical Consideration or a Disciplinary Rule ("DR") 21 The government opposed Fischer's motion to withdraw. evidence" in caused his due "moral to "the an he had been confident that he could immediate, and involuntary, technical strength of my conviction would not be perspective my moral behind and substant ial on this conviction [] that case." and my representation." It 22 noted that a substitution of counsel would substantially delay the 23 start of trial. 24 testify now for the last month, 25 other witnesses," and It stated that it had been "preparing [S.O.] to in addition to preparing all the s.o. was "ready to walk into this Court and - 16 - 1 testify about everything that happened to her." 2 Tr. at 6.) O'Connor's 3 that the attorney had supported 6 ground would hurt O'Connor's 7 effectively represent Mr. Sacco" 8 as to Fischer's ability to represent Sacco zealously, 9 that "it's only fair for both defendants that they have attorneys 10 that can be zealous advocates on their behalf and I think that's 11 what the law requires, your Honor." 12 point, 13 zealousness on 14 adequacy on 15 more than adequate." [the] [the] 17 withdraw. 18 Fischer, 19 intelligent, 20 communication has 21 (Id. 23 24 25 26 27 28 29 30 31 "I Sacco motion to withdraw case "if [Fischer] (id. at 8). don't think part of the attorney. part of the attorney. the cannot Expressing her doubt at 9.) (Id. on were I As to the latter the I she stated law requires think it requires know Mr. Fischer is (Id. ) Sacco himself took no firm position on Fischer's motion to 16 22 stated, court and severance irreconcilable) Fischer's O'Connor her 5 the of in motion it positions stated 4 that defense (who (Sacco April 25 He expressed both admiration for and frustration with saying he had "found Mr. Fischer to be sincere, genuine, at 3.) articulate," not but had been been continual "disappointed in the last that eight weeks." However, Sacco also said he had an interest [] in going to trial as quickly as possible I want to get it behind me but I have no indication whatsoever that Mr. Fischer is actually ready at this time. I haven't discussed anything. I haven't seen any motions that he's put forth. I haven't received any replies from any of the letters that I sent him in the last eight weeks. When I read in the newspaper that a trial was taking place on the 28 of April, I was--it couldn't be true. I hadn't spoken to Mr. Fischer so I think there is a little - 17 - our 1 bit of an issue that he may not be ready, I'd like to go, you know. 2 3 (rd. at 17.) In a written order entered later on April 25, 4 5 although the court denied Fischer's motion to withdraw: 6 7 Based upon the information contained in Defense counsel's ex parte motion, and the information obtained at the hearing held on April 25, 2008, the Court finds that there are insufficient grounds to warrant qrantinq the application to withdraw. No actual conflict has been identified and the Court is confident, and expects, that At tornev Fischer will continue to provide Defendant Sacco with appropriate representat ion. Moreover, aside from some concerns about Attorney Fischer's preparation for trial, Defendant Sacco articulated that he was satisfied with Attorney Fischer's abilities. Without more, the information before the Court is insufficient to demonstrate an actual conflict warranting withdrawal. The motion to withdraw is, therefore, DENIED. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Order dated April 22 (emphases 23 prepare 24 (See id. at 1-2.) 25 On 25, added). for Denying Withdrawal"), at 1 The court gave the parties an extra week to trial, April ("Order 2008 scheduling 30, jury selection who O'Connor, for May previously 5, 2008. had moved 26 unsuccessfully for severance of her trial from that of Sacco (see 27 Part II.D. below), renewed her motion for severance, stating that 28 Fischer had an "internal conflict with representing his client," 29 which would cause him to provide ineffective assistance to Sacco 30 at trial 31 and thereby prej udice 0' Connor's case 32 also argued, based on statements by Sacco at the April 25 hearing, 33 that 34 unreasonable"; (O'Connor Memorandum of Law dated April 30, "Fischer's assistance thus far that Fischer "ha [d], - 18 - (see id. [has] at 5) been 2008, at 2) O'Connor objectively by his own admission, stated 1 that his assistance w [ould] 2 "Fischer 3 inability to conduct a cross-examination of the alleged victim." 4 (Id. ) 5 done almost nothing to prepare for trial," that he was guilty of 6 an "utter failure to prepare," and that it was "highly unlikely" 7 that Fischer would be prepared for trial on May 5. ha[d] continue to be inadequate"; and that expressed an unequivocal unwillingness and O'Connor stated that "it would appear that Mr. Fischer has Fischer, 8 (Id.) in response to O'Connor's motion, did not take a 9 position on severance but disputed all of her characterizations of 10 his preparedness and his willingness to represent Sacco properly. 11 With respect to preparedness, Fischer stated that except for three 12 specified tasks, 13 matter." (Letter 14 April 2008 15 O'Connor's ethics challenge, Fischer stated: 30, from ("April Kelly E. 30 Fischer Letter"), to at Judge 2.) McAvoy dated With respect to I wish to make it clear that, while my personal, moral and religious beliefs do create some issues for me in the defense of this action, I do not now believe, and do not recall ever[] expressing, in words or substance, "an unequivocal unwillingness and inability to conduct a cross-examination of the alleged victim." 16 17 18 19 20 21 22 23 "I believe we are prepared to go to trial in this (Id. at l.) On 24 this appeal, Sacco, represented by new counsel, 25 contends that the district court's denial of Fischer's motion to 26 withdraw 27 the conference on the motion to wi thdraw, 28 require an attorney to act as a zealous advocate for his client," "was necessarily colored by its view, - 19 - expressed during that the law does not 1 and was thus improper. 2 that 3 4 5 6 7 8 9 10 11 12 (Sacco brief on appeal at 46.) He argues Code of Professional Responsibility Canon 7, entitled "A Lawyer Should Represent a Client Zealously Within the Bounds of the Law," contains Ethical Consideration 7 -1, stating "the duty of a lawyer, both to the client and to the legal system, is to represent the client zealously within the bounds of the law, which includes Disciplinary Rules and enforceable professional regulations," id., and Disciplinary Rule 7-101, expressly governing "Representing a Client Zealously." Id. 13 (Sacco brief on appeal at 47.) 14 either in the arguments made by Fischer in the district court or 15 in the arguments made by Sacco's new attorney on this appeal. 16 We see no basis for reversal-- A ruling denying a motion to withdraw is reviewable for 17 abuse of discretion. 18 See United States v. Oberoi, 331 F.3d 44, 47 (2d Cir. 2003). 19 20 21 22 23 24 25 26 27 We must grant considerable deference to the district court's decision especially when the prosecution of the suit is likely to be disrupted by the withdrawal of counsel. However, if forcing an attorney to continue representation will cause a violation of the Code of Professional Responsibility and possibly subject the attorney to sanctions, it will be an abuse of discretion not to grant the motion to withdraw. 28 Id. at 47-48 (internal quotation marks and citation omitted) . 29 In the present case, Fischer did not argue, either in his 30 sealed affirmation or in his statements in open court, 31 was any Disciplinary Rule that would be violated if he continued 32 to represent Sacco or that his continued representation of Sacco 33 might possibly expose him to sanctions. 34 cited at 35 dealing with whether an "attorney should seek to withdraw" because the hearing former EC 2-30, - 20 - that there As noted above, which he Fischer characterized as 1 of the "intensity of 2 Tr. 3.) 3 concerned whether an attorney should accept an appointment, 4 former 5 accepted an appointment, 6 most relevant to Fischer's motion to withdraw was EC 2-29, which 7 provided in pertinent part as follows: at That EC 2-29, 8 9 10 11 12 13 14 15 16 17 [his] personal statement which feelings." actually dealt with (Sacco April 25 conflated whether an EC 2-30, attorney, should seek to withdraw. which with having The provision When a lawyer is appointed by a court to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, the lawyer should not seek to be excused from undertaking the representation except for compelling reasons. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding [ or] the belief of the lawyer that the defendant in a criminal proceeding is guilty. 18 Code, EC 2-29 19 States, 20 the 21 predilections to his professional duty." 22 omitted)), cert. denied, 466 U.S. 951 727 F.2d 209, name 23 (emphases should Fischer's be 212 added) See (2d Cir.) capable affirmation of also Fiumara United ("A trial counsel worthy of subordinating made v. his personal (internal quotation marks (1984). clear that he had accepted 24 appointment by the court to defend Sacco knowing the nature of the 25 charges. 26 for 27 "100 pounds" of documents. 28 that 29 "single bit" of evidence in the case. 30 provided that he should not seek to withdraw except for compelling 31 reasons; He stated that he had proceeded industriously to prepare trial, conducting interviews, doing research, The affirmation quite plainly stated Fischer wished to withdraw because of his and if, and examining as EC 2-29 specified, - 21 - abhorrence of a Ethical Consideration 2-29 repugnance of the subject 1 matter of 2 revulsion at a single item of evidence in the case surely did not 3 constitute a compelling reason. 4 reference to the change in his " technical perspective" 5 added) suggests that the condom evidence caused Fischer to believe 6 that his client was guilty. 7 such a belief is not a sufficient reason to withdraw. 8 9 the case does not fit into that category, Fischer's Finally, Fischer's affirmation's (emphasis Under the express terms of EC 2-29, We thus see no abuse of discretion in the district court's denial of Fischer's court. motion based on the presentations to the that it 10 district 11 "expect [ed] 12 Defendant 13 Withdrawal at 1 (emphasis added), was the expectation that Fischer 14 would represent Sacco as vigorously as required by the Code. 15 expectation was entirely reasonable in light of the absence of any 16 suggestion by Fischer in his motion that he would be unable 17 comply with any of the Code's Disciplinary Rules or any suggestion 18 that his continued representation of Sacco might possibly expose 19 him 20 itself that he had done most of the work necessary to prepare for 21 trial. 22 able, and willing to proceed to trial and to cross-examine S.O. on 23 Sacco's behalf. to a that Attorney in the Fischer Sacco with appropriate sanction. Further, court's w [ould] statement continue representation," Fischer made clear to provide Order Denying That to in the motion And he indicated in his April 30 Letter that he was ready, Nor does 24 Implicit Sacco's brief on appeal provide any basis for 25 concluding that the district court should have granted Fischer's 26 motion. Although it cites the title of DR 7-101 - 22 - ("Representing a 1 Client Zealously"), it does not quote or describe any provision of 2 that Rule and does not suggest that Fischer failed to comply with 3 any of the Rule's commands. 4 EC 7-1's provision that an attorney should "represent the client 5 zealously," it provides no basis for a conclusion that Fischer did 6 not 7 performance 8 Fischer's 9 autobiography and the timing of a request for a bench trial. represent Sacco are to objection Further, zealously. strategic to the while Sacco's brief quotes His objections decisions admission such of as to the Sacco's Fischer's timing of self-styled The 10 record makes plain that Fischer competently cross-examined s.o. at 11 trial, 12 contrary. 13 and Sacco's brief on appeal does not contend to the In sum, the record provides no basis for a conclusion that 14 the denial 15 fair trial. 16 B. 17 of Fischer's motion to wi thdraw deprived Sacco of a Sacco's Other Challenges 1. The Admission of Excerpts From Sacco's Autobiography At 18 trial, the government offered in evidence eight 19 passages from Sacco's autobiography, in which Sacco had written of 20 his sexual attraction to children and described, inter alia, his 21 sexual her 22 while they were asleep. 23 proffered excerpts in full, excluded three, and admitted only part 24 of another. 25 excerpts under Fed. R. Evid. 413 acts against "[his] little sister" and girlfriends The district court admitted four of the Sacco does not challenge the admissibility of the (authorizing the admission, - 23 - in a 1 criminal case in which the defendant is accused of sexual assault, 2 of 3 offense 4 (authorizing 5 defendant is accused of child molestation, of relevant evidence of 6 the defendant's commission of another offense or offenses of child 7 molestation) 8 should have been excluded pursuant to Fed. 9 ground relevant evidence or offenses that the of of defendant's sexual assault), admission, Rather, their the in a for and that unfair another Fed. R. Evid. 414 ln which the all R. of the passages Evid. prejudice Sacco, of case criminal Sacco contends potential commission 403 on the substantially 10 outweighed their probative value. age 48 when he abused 11 S.O., 12 at most described his thoughts and conduct as a teenager, and thus 13 that they lacked probative value because they were too remote in 14 time. argues that the autobiography, written shortly before 2000, We reject this conclusion. 15 The trial court's not is reviewed only for to exclude evidence 16 pursuant 17 See,~, 18 1997) 19 offered under Rule 413 or Rule 414 should conduct a fact-specific 20 and case-specific analysis: 21 22 23 24 25 26 27 28 29 30 to Rule 403 decision United States v. Larson, ("Larson"). abuse of discretion. 112 F.3d 600, 604-05 (2d Cir. Courts confronted with remote-in-time evidence Exclusion of proof of other acts that are too remote in time caters principally to the dual concerns for relevance and reliability. The evaluation of the proffered evidence in light of these concerns must be made on a case-by-case basis to determine whether the significance of the prior acts has become too attenuated and whether the memories of the witnesses has likely become too frail. Neither Rule 403 nor any analogous Rule provides any bright -1 ine rule as to how old is too old. - 24 - 1 Larson, 112 2 discretion in the admission of testimony about acts that occurred 3 16 to 20 4 events 5 Id.; see also United States v. Davis, 6 2010) 7 conduct occurring some 19 years earlier) . at 605. In Larson, years before the t rial where clearly demonstrated we found no abuse "[ t] he simi lari ty of the testimony's 624 F.3d 508, of the relevance." 512 (2d Cir. (no abuse of discretion in the admission of testimony about 8 9 F.3d In the present case, the district court plainly conducted a Rule 403 balancing analysis; the ground that it excluded some of the proffered 10 excerpts on 11 probative 12 prejudice. 13 plainly had high probative value that outweighed any potential for 14 unfair 15 rooms 16 them--conduct that 17 Sacco's first molestation of her. 18 interest in child pornography was consistent with 19 that Sacco forced her to pose for pornographic photographs. value was (See in 20 which Further, as to outweighed Tr. prej udice; 696.) they young the they were The included girls potential excerpts that asleep paralleled present case and of for were their unfair admitted Sacco entering sexually molesting s.o. 's description of And an excerpt describing an s.o. 's testimony does not involve reliability; the passages the concerns 22 written by Sacco himself. 23 predilections 24 that the acts described in his autobiography occurred more than 30 25 years before his conduct with 26 time than the conduct at issue in the above cases, a teenager had usual 21 as or the descriptions were partially memory by cumulative or that been And although Sacco suggests that his should be discounted, pointing out s.o. and thus were more remote in - 25 - that argument 1 rings hollow in light of the evident relish with which he wrote 2 the passages just seven years before his molestation of s.o. 3 see no abuse of discretion in the admission of this evidence. 2. 4 5 We The Denial of a Continuance As indicated ln Part at trial that I. B. Sacco above, 6 testified 7 12-year-old girl. 8 government's 9 testimony had not been anticipated, as DiFiori did not inform the Although list of had Sacco's friend DiFiori admitted DiFiori planned had having been witnesses, sex with a included in the aspect of his this 10 government of Sacco's statement until Friday May 9, 2008, 11 DiFiori began his testimony. 12 Sacco asked the court to grant a mistrial, or, in the alternative, 13 to strike that testimony from the record or adjourn the trial for 14 at 15 investigation 16 preferred 17 instruction or a continuance of at least two weeks. 18 least a week into not The in to trial In light of the surprise testimony, order to DiFiori's have court, a the day allow Sacco background. mistrial and accepting the to conduct O'Connor's requested further attorney a curative representation of the 19 Assistant United States Attorney that 20 prior indication that DiFiori would give this 21 the defense motions. 22 is adequately cross-examined by everybody" 23 did 24 examinations 25 afternoon in order to give them the remainder of that day plus the not require and However, the government had had no testimony, denied "want [ing] to make sure the witness defendants to instead adjourned - 26 - (Tr. proceed the trial 548), with early the court their that crossFriday 1 weekend 2 statement. 3 of 4 confrontation rights. a to prepare to cross-examine DiFiori as to On appeal, Sacco contends principally that the denial week-long continuance violated his due process and We are unpersuaded. The decision whether to grant a continuance 5 Sacco's is a matter 6 "traditionally within the discretion of the trial judge." Ungar 7 v. order 8 denying a continuance for abuse of discretion, and we will find no 9 such Sarafite, abuse 376 U.S. unless 575, the 589 denial (1964). was an We review "arbitrary an action that 10 substantially impaired the defense." United States v. Beverly, 5 11 F . 3d burden of 12 impairment is on the party complaining of the lack of a sufficient 13 continuance. 14 144, 146 15 was "unable 16 prejudiced by not receiving a longer [than one-day] continuance"). 17 We see no arbitrary action or substantial impairment here. 633, 64 1 ( 2d Ci r . 1993). See,~, (2d Cir. to surprise The United States v. 2007) showing Tin Yat Chin, such an 476 F.3d (new trial not required where defendant specify particularity quite succinct how and he was The 19 straightforward. 20 time on that Friday plus the weekend recess were not sufficient to 21 permit him entirely 22 state that 23 background. 24 been 25 have conducted at least some investigation into his background in 26 preparation Sacco offers no explanation as to why the extra to prepare he was any 18 known testimony with an needed adequate more cross-examination, time to investigate except to DiFiori's But the fact that DiFiori was to testify at trial had to the defendants for his expected in advance; testimony. - 27 - presumably they would And although Sacco 1 contends that further investigation was warranted in light of the 2 unexpectedly damaging 3 helpful information might have been found. We 4 also testimony, reject he provides no inkling of what Sacco's contention that "DiFiori's 5 testimony was essential to proving 6 in sexual 7 (Sacco brief on appeal 8 virtually always damaging, we have no doubt that Sacco would have 9 been intercourse wi th S. o. convicted wi thout [Sacco] had engaged when she was at 61). his . that Although a statement to twelve years old" direct admission is DiFiori , 10 11 was found among Sacco's stored possessions. 12 C. s.o. explicit testimony and the used condom bearing S. o. 's given 's DNA, which O'Connor's Challenges to the Sufficiency of the Evidence 13 At trial, defendants s.o. cross-examined at length, s.o. did not 14 emphasizing that when Sacco first began abusing her, 15 tell her mother; that when 16 Blenis about Sacco, she did not tell them she had also been abused 17 by her mother or by George 18 testimony--such 19 occurred--differed from statements she had previously given to DSS 20 caseworkers or to Blenis. 21 the evidence to convict her on any count, 22 S .0. ' s 23 credible, 24 the 25 elements of the three offenses of which she was found guilty were as t es t imony and that evidence. She the was the s.o. first told Chesebro and Detective Lang; and that months in which some details of her various incidents O'Connor challenges the sufficiency of i ncons istent, arguing generally that contradictory, and not jury's verdict was against the weight of also contends, - 28 - inter al ia, that particular 1 not supported by sufficient 2 sufficiency challenges. O'Connor's 3 evidence. general principles We contentions governing find are contrary to 5 sufficiency of the evidence. In considering such a challenge, 6 must inference 7 drawn 8 Carson, 9 U.S. in government's the 702 F.2d 351, 1108 (1983), 361 favor, that the ~, see, (2d Cir.) challenges well established every reasonable of in her 4 credi t review no meri t from the inferences reasonably drawn, the 11 concluded doubt, 12 States v. Buck, 13 Taylor, 14 evidence is a 15 reversal on appeal. 16 65, 71 464 beyond 17 a reasonable 804 F.2d 239, F.2d 240, 242 cert. jury's 244-45 (2d Cir. See,~, cert. denied, see, 1972). to the 490 U.S. to resolution of 19 credibility 20 08-5266, 21 United 22 " [W] hen 23 examination, 24 decide the credibility issues for 25 v. 494 26 marks omitted), the the jury, 1109 v. Morrison, t es t i monial the Josephberg, jury 562 weight witnesses." 2011 WL 1661420, at *16 States v. 462 F.3d cert denied, ~, United not F.3d entitled the States Roman, - 29 - evidence Ct. and the Persico, v. No. 2011); see, are (2d revealed weigh (2d the " Cir.) 397 870 F.2d we must defer 49 itself 130 S. a ground for 34, to the (1989) (2d Cir. May 3, 153 478, of United inconsistencies [i] s fairly have The weight of United States v. 18 of denied, jury might "Where there are conflicts in the testimony, the States (2d Cir. 1986); United States v. matter for argument (2d Cir.), we and we must affirm the conviction so long as, 10 guilt the jury could have Uni ted ("Carson"), to Cir. 1998). on cross- evidence and United States (internal (2009). ~, quotat ion "It is the 1 province of the jury and not of the court" 2 witness 3 untruthful in some respects" was nonetheless "entirely credible in 4 the essentials of his testimony." 5 F.2d 6 (1970) 7 2008) 8 determine credibility") . who may 1069, In contradictory United States v. ~, United States v. Cote, must the Cir. "inaccurate, (2d ("court 9 been 1074 see, i have give play case, cert. s.o. right testified did she 12 there 13 O'Connor. 14 early disclosures, 15 Lang because to do so would implicate her mother. 16 "It's 17 everything. " 18 province 19 conclude that 20 that 21 principles, 22 convictions 23 testimony was not 24 witnesses, 25 the weight of the evidence, provide no basis for reversal. be repercussions She not al so of I (Tr. the trial jury testimony O'Connor's that Sacco custody, disclosed abuse the same the reason, by in her mentioned being abused by George truthful. I (emphasis added) .) to to not to O'Connor's had for regard to consider all was She testified, scared to say It was well wi thin the of the evidence, and to 's early disclosures were merely incomplete and should or had not wasn't 1636 s.o. she explained that she that if 1021 jury she because upon her return with 418 (2d Cir. the 11 that, disclosures 99 of that U.S. 0' Connor would early 397 544 F.3d 88, the even Tropiano, mention feared her to denied, and 10 her in 1969), full present to determine whether a be was truthful. overarching reversed on In light of contentions the grounds the above that that her s.o. 's credible or was contrary to testimony of other the guilty verdicts - 30 - against her were against 1 Nor, as discussed below, is there merit in O'Connor's more 2 particularized sufficiency challenges focusing on specific counts. 3 1. Count 1 With 4 respect to Count 1, O'Connor contends that the 5 government 6 intent required to support a conviction for selling a child for 7 the purpose 8 u. S . C . 9 applied, to the extent pertinent here, to § failed to prove that she acted wi th the knowledge or of producing child pornography, 22 51A (a) . That section, as it in violation of read in 18 2006-2007, 10 11 12 13 [a] ny parent . of a minor who sells or otherwise transfers custody or control of such minor, or offers to sell or otherwise transfer custody of such minor either-- 14 15 16 17 18 (1) wi th knowledge that, as a consequence of the sale or transfer, the minor will be portrayed in a visual depiction engaging in, or assisting another person to engage in, sexually explicit conduct; or 19 (2) with intent to promote either-- 20 21 22 23 (A) the engaging in of sexually explicit conduct by such minor for the purpose of producing any visual depiction of such conduct; or 24 25 26 27 28 (B) the rendering of assistance by the minor to any other person to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct . 29 18 U. S . C. As 30 Connor, 22 51A (a) (2006). set § in out inter al ia, Part 31 0' 32 of S.O in November 2006, I.A.2. above, S.O. testified that helped Sacco take pornographic photographs and that - 31 - in the months that followed, 1 0' Connor 2 Sacco. 3 in 4 testified at 5 photographs of S. o. 6 that the incident occurred in October--it plainly was within the 7 province of the jury to find that the event described by s.o. did 8 occur. 9 permit the jury to infer that O'Connor had the knowledge or intent 10 continued to send S. O. to the upstairs apartment with Although O'Connor seizes on various alleged discrepancies s.o. 's testimony--asserting, trial The for example, that whereas S.O. that 0' Connor helped Sacco take pornographic in November 2006, contention that the she had earl ier suggested evidence was insufficient to envisioned by the statute is meritless. 11 O'Connor also argues that the jury's verdict of guilty on 12 Count 1 was inconsistent with its verdict finding her not guilty 13 on 14 pornography. This argument is doubly flawed. 15 verdicts not 16 evidence was sufficient 17 "independent of the jury's determination that evidence on another 18 count was insufficient." 19 (1984). 20 child pornography is not an element of a 21 22 Count 2. 7, are which Second, a charged ground there for her with reversal; possession our of child First, inconsistent review of whether to support a conviction on one count is United States v. Powell, 469 U.S. 57, 67 was no inconsi stency, § as possession of 2251A(a) offense. Count 3 O'Connor contends that there was insufficient evidence to 23 support her Count 3 conviction of sex trafficking of a minor, 24 violation of 18 U.S.C. 25 part, to anyone who knowingly, § 1591. in That section applied, in pertinent - 32 - in or affecting interstate or foreign commerce, recruits, entices, harbors, transports, provides, or obtains by any means a person[,] 1 2 3 4 knowing that the person has not at tained the age of 18 years and will be caused to engage in a commercial sex act, 5 6 7 U.S.C. 1591(a) 8 18 9 penalties if, at the time of the offense, § (Supp. see id. III 2003), provided enhanced the minor was under the 10 age of 14 years, 11 that this offense was committed" [b]etween in and about January of 12 2004 13 abuse of 14 arranged by O'Connor. 15 that through March of s.o. s.o. § 1591(b) (1). and 2007," As the indictment charged this count encompassed any of the described in Part I.A. countenanced, supported, or O'Connor contends that there was no proof 's sex acts had any commercial aspect. 16 Without considering the evidence as to the sexual abuse by 17 George Lang, who sometimes helped O'Connor to pay her rent, or as 18 to the two strangers with whom O'Connor caused 19 the Best Western in exchange for money, we think it clear that the 20 evidence of O'Connor's collaboration with Sacco was sufficient to 21 support her conviction under 22 during 23 paying rent 24 2010-11); S.O. testified that when Sacco, who lived in New Jersey, 25 came 26 repeatedly sent her upstairs wi th Sacco to the vacant apartment 27 where Sacco abused S.O.; and when 28 such much to of the In 1591(a). to have sex at There is no dispute that question 0' Connor was (see O'Connor brief on appeal at 76-77; 45 Fair abuse period § s.o. in in that Norwich, apartment, New York, s.o. in see also Tr. inter alia, complained after the first 0' Connor's - 33 - O'Connor, behind response was that it From this evidence the jury 1 " [waJ s bet ter than being homeless." 2 could easily find that O'Connor provided the 12-year-old s.o. 3 Sacco, arriving from out of state, to have her engage in sex acts 4 in exchange for his forbearance with respect to her nonpayment or 5 deferred payments of rent or discounted rent. Count 5 3. 6 to Wi th 7 respect to her Count 5 convict ion for permit t ing 8 S.O. to be used in the production of child pornography, O'Connor 9 contends that the government failed to present sufficient evidence 10 of the interstate commerce element of 18 U. S. C. 11 section applied, in pertinent part, to 12 13 14 15 16 17 18 19 20 2251 (b) . § That raJ ny parent having custody or control of a minor who knowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct for the purpose of producing any visual depiction of such conduct. . if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate commerce. 18 U.S.C. 21 2251(b) § S.O. (2006) testified 24 had 25 Thanksgiving, O'Connor photographed them, using a camera that s.o. 26 believed was 27 never seen her mother with such a camera and did not believe it 28 belonged 29 introduced the When her Sacco in the thereafter vacant first apartment, he took pornographic pictures of her with a camera that lens. abused on the 23 to Sacco in late October 2006, occasion zoom which that 22 a on (emphases added) abused same one Sacco had used previously. O'Connor. evidence that (See Sacco Tr. had - 34 - 1529-30.) bought a upstairs The camera her S.O. on had government with zoom 1 capability on eBay in May of that year and had had it shipped to 2 him in New Jersey. 3 to permit the jury to find that the camera O'Connor used was one 4 that Sacco had brought to New York from New Jersey. 5 D. (See id. at 1852-53.) This evidence was ample O'Connor's Challenge to the Denial of Severance 6 Prior to trial, 14 (a) for an 7 P. 8 separately from Sacco on the ground, 9 against Sacco, order O'Connor moved pursuant to Fed. R. Crim. of including severance, evidence allowing her principally, of his to be tried that the proof pedophil ic past, was 10 overwhelming and extremely disturbing, 11 prejudicial 12 evidence against O'Connor. 13 that 14 district court 15 unduly complicated and that most of the witnesses, including S.O., 16 would be testifying against both Sacco and 0' Connor. 17 concluded that, given proper instructions, 18 jury confusing 19 against Sacco 20 as to Linda O'Connor, April 25, 2008, at 15.) her spillover defense the the unreconcilable evidence consideration moved with noting against [wa] s minimal again jury's of the She also argued, without specificity, denied the motion, O'Connor 21 was into making it likely to cause that that of the Sacco. The case was not The court "[t]he likelihood of a 0' Connor with the evidence "(Transcript of Proceedings for severance after the district to allow Sacco's attorney to withdraw, see Part 22 court's refusal 23 II.A. 24 proceed, 25 she argued that his poor performance in representing Sacco would above. She predicted that because Fischer preferred not to his performance in representing Sacco would be poor; and - 35 - 1 prej udice 2 her. comment. On 3 The appeal, motions district O'Connor denied this denial of that above wi thout the contends motion grounds the severance 5 fair 6 by her inability to question Sacco about DiFiori's testimony as to 7 Sacco's 8 prostitute--an argument that was not made in the severance motions 9 because when those motions were made, She also contends admission government of of a that she was unfairly prejudiced having had with a 12-year-old neither the defendants nor conclude that each of O'Connor's contentions lacks merit in light 12 of the relevant legal principles. a preference DiFiori in the would so We 11 is that sex the "There aware her 10 13 were deprived her 4 trial. raising court federal testify. system for joint 14 trials of defendants who are indicted together." 15 States, 16 role 17 efficiency 18 scandal 19 Richardson 20 avoid "requiring victims and witnesses to repeat the inconvenience 21 (and 22 at 210. 23 506 in U.S. the 'serve the of Marsh, 481 sometimes (1993) justice inequity v. The 537 criminal and and 534, trauma) antagonistic defenses is not 25 the 26 devised by prejudice the itself a court, offset "[t] hey verdicts,'" 209, promote 210 id. (1987)), Richardson, may mount the (quoting and 481 they U.S. mutually ground for severance where by "such as - 36 - 'playa vital justice by avoiding codefendants can be district 200, as testifying," that 24 risk of of inconsistent U.S. trials system,'" interests of possibility "Joint Zafiro v. United "less drastic measures" limiting instructions," 506 U.S. Zafiro, 2 F.2d 3 (1982). 4 evidence may 5 another," Carson, 6 at 171, 7 straightforward 8 the evidence against each defendant separately, 9 702 167, 171 at 539; ~, 1 see, (2d Cir.) United States v. 1125 Nor is severance necessarily required by "the fact that admissible 702 F.2d especially where F.2d and at 367; against at 367; the the denied, one defendant ~, see, charges against jury Losada, cert. 674 457 U.S. be ("Losada"), Losada, the F.2d F.2d defendants are to consider see, ~, There at 171. not 674 Losada, is properly instructed 674 but is Carson, a strong 10 indication that there has been no prejudicial spillover "where the 11 jury has convicted a defendant on some counts but not on others." 12 United States 13 denied, 540 U.S. 14 v. Hamilton, 985 Further, 334 F.3d (2003); see, given the 170, ~, 183 Carson, interests of (2d Cir.), cert. 702 F.2d at 367. judicial economy, a 15 defendant's 16 codefendant does not require a severance where there is no showing 17 of 18 Amendment 19 the codefendant 20 be 21 v. Wilson, 22 1025 23 Cir.), 24 v. 25 that the defendant had not pleaded guilty "indicat[ed that he was] 26 unlikely a professed likelihood the to elicit and testify at testified, it 11 F.3d 346, 354 cert. 750 a to his a Fifth if (2d Cir. See generally United States 1993), cert. denied, denied, 432 U.S. 909 1169, 1177 562 F.2d 1345, (2d Cir. the waive from severed trial or where, Taylor, waive would testimony is likely that his testimony would United States v. F.2d trial codefendant to damaging impeachment. (1994); Bari, that privilege subject desire privilege (1977); against - 37 - 511 U.S. 1362-63 (2d see also United States 1984) ("Bari") (the fact self-incrimination at a 1 separate trial unless [he] had 2 already been acquitted"), denied, 472 U.S. 1019 (1985) cert. We review the denial of a severance motion under an abuse- 3 4 of-discretion standard. 5 Carson, 6 find 7 "substantial 8 justice." 9 omitted); see, 10 (2d 2008), 11 States v. Blakney, 941 F.2d 114, 116 (2d Cir. 1991) 702 such Cir. F.2d at 366; Losada, an abuse only where 750 F.2d the denial denied, 129 a Rivera, S. We will the defendant miscarriage Ct. quotation marks 546 F.3d 245, 1395 of 253 (2009); United We see no abuse of discretion or miscarriage of 12 cert. to at 538-39; 171. caused (internal at 1177 United States v. ~, 506 U.S. 674 F.2d at 169, amounting prejudice Bari, Zafiro, See,~, justice 13 here. The 14 joint trial 15 O'Connor was charged with selling s.o. to Sacco for the purpose of 16 producing child pornography; 17 from 18 trafficking 19 child pornography, each defendant was charged with committing each 20 of 21 Thus, 22 disturbing 23 photographed by Sacco, 24 O'Connor alone. 25 appropriate to avoid unnecessarily subjecting s.o. 26 of having to give her trial testimony more than once. nature of of O'Connor those of crimes much of the charges O'Connor for that S.O., and Sacco purpose. and with evidence, testimony given present case made particularly the appropriate. Sacco was charged wi th buying S. O. With respect and with aiding the in the to using and abetting including by respect s.o. to her their virtually about the to produce commission. all being sex of the abused and would have been admissible at a trial of And given the sordid nature of the case, - 38 - it was to the trauma 1 Although one of O'Connor's arguments is that a joint trial 2 was unfair on 3 presented 4 factual premise. 5 at tempting to show flaws 6 and by arguing that her testimony simply was, 7 "put it very kindly, 8 kindly, 9 O'Connor's by the ground Sacco were that mutually unreliable" attorney (id. (id. in her at 2340) seeking, autobiographical fiction 12 be 13 attorney stated that 14 five words. American Sex, 17 S.O. 18 desperation what 19 order to give 20 id. 21 at 2319 22 telling 23 medication); 24 time I 25 old kid at 105 Dream of "false" termed why testimony a attention- (see id. at 2316-40) that should (id. at 2316). O'Connor's (Id. at 129.) S.O. would testify falsely, she thought those [S.O.] is "all the enjoyed 102 (" [S.O.] that for attention" she received taken (arguing that S.O. was id. - 39 - at 2337 ."); attention."); had was pretty cool. "); has said in she was seeking starving that that around her wanted to hear in she counselors at 2332 Tr. O'Connor's argued in part said something I'd get a lot of attention. that at 2241). devious, (See,~, ("Clearly id. (id. S.O. 's consciously Girl" her the attention camp her "[t]he government's case can be summed up in attention. (S.O. reject as Sacco's attorney in her opening and her summation, sought we defense or, as he put it less lies, and no videotape." explain attorney, and summation 11 16 the in S. O. 's statements (Tr. 2239), at 2240) "masterpiece" To and antagonistic, or inconsistencies 10 15 defense Both O'Connor and Sacco defended principally by "fabricated" "entitled her her id. after mother's thinking, "Every For a 13-year- (arguing that S.O. 1 was excited 2 including a bodyguard and IIreally felt like a celebrityll).) 3 In to his perhaps testify summation, 4 had 5 wanted 6 claim if it in fact 7 rewards to it. 8 that's 9 genuinely care. II ).) (See she Sacco's intentionally attention. one because had 2241 is false? her You get entourage" argued testimony (IIWhy would she a lot of that S. O. because make Why would she do that? There is an upside to it. reward. entire attorney too fabricated Tr. lIan a she false There are You get a bodyguard; people who really, really He also offered the alternative that S.O.'s 10 testimony might have been the product of confusion, either because 11 she 12 confused[,] 13 mix [ing] 14 because 15 home 16 events 17 mind-altering 18 statement to the authorities in December 2007--the first instance 19 of her accusing O'Connor of incest and of prostituting s.o. at the 20 Best Western--" [wa]s made at a time when she is at the very least 21 confused 22 hallucinating and under the 23 but 24 heavy-duty antipsychotic medications")) 25 26 conflated a variety of events tak[ing] bits (see and them up and they come out (id. and Thorazine, The or because medications at the most Risperdal, defense (see, she ~, severely posi tions are argued were not mutually antagonistic. living at ("She is events and storyll)); or Renee Lang's 2006 and had "fantas [ized] " was under the id. (arguing mentally influence of which from in some sort of to mid-October of at 2245); at 2284 pieces she had viewed pornography while in mid-August id. not influence of that s.o. 's ill, psychotic, Zoloft or Benadryl some very seriously by 0' Connor and Sacco thus The arguments plainly overlapped, - 40 - 1 and the jury's acceptance of any of them would have benefited both 2 defendants. 3 As to O'Connor's concern for the possibility of spillover 4 from the evidence against Sacco, 5 his past pedophilic conduct and appetites--presented through the 6 testimony of one of his victims, the testimony of a police officer 7 to whom Sacco made admissions, and the descriptions in Sacco's own 8 autobiography--might 9 O'Connor alone. well have it is true that the proof as to been excluded in a trial of But the district court gave the jury appropriate 10 instructions to minimize any possibility of prejudicial spillover. 11 For example, 12 the 13 were being tried together, the jury would be required to consider 14 "each 15 separately" 16 court repeatedly reiterated these instructions. 17 at 2396 18 particular defendant 19 the guil t 20 2411, 21 follow these instructions. 22 guilty on two of the counts against her strongly indicates that 23 she was 24 introduced only against Sacco. 25 past conduct was hardly more inflammatory than the evidence of the court before the attorneys made their opening statements, instructed the charge jury that separately" (Tr. 26, 44). (reminding the with although O'Connor and Sacco respect not "each defendant In its final charge to the jury, (See,~, the id. jurors to analyze the evidence "as to the you're considering wi thout or innocence of other people"); 2427.) to see also id. regard to at 2397, We see no reason to believe that the jury did not The fact unfairly prejudiced by that it found O'Connor not the evidence that had been Indeed, the evidence as to Sacco's - 41 - 1 fact that, and of the manner in which, O'Connor herself repeatedly 2 committed incest against and prostituted her young daughter. 3 Nor are we persuaded that 0' Connor is ent i tIed to a new 4 trial on the ground that being tried jointly with Sacco prevented 5 her from examining Sacco with respect to DiFiori's testimony that 6 Sacco 7 Sacco here 8 behalf; O'Connor has proffered no reason to believe that he would 9 waive had his admitted chose Fifth having sex with to stand trial Amendment a 12-year-old and not privilege prostitute. to testify in his in order to testify own at a 10 trial of 0' Connor alone. 11 silent as 12 Sacco 13 attributed 14 whatever responses she might elicit would not be entirely overcome 15 by the evidence that 0' Connor herself repeatedly caused S. O. 16 have sex with Sacco, 17 with Sacco in the sexual abuse of S.O., and that Sacco had in his 18 possession a used condom bearing S.O. 's DNA. if 19 Further, 0' Connor's brief on appeal is to what testimony she would have hoped to elicit from she had been able to him--and Finally, we it to examine him about offers no basis for the statement assuming that to that O'Connor herself sometimes participated find no merit in O'Connor's additional 20 contention that the denial of her severance motions deprived her 21 of 22 Sacco's 23 attorney does not cause a codefendant substantial prejudice where 24 the jury was instructed properly, where no evidence suggested that 25 the lawyer's behavior caused juror animus toward the codefendant, 26 and where each defendant a fair trial attorney. because of allegedly nonzealous performance by Poor trial performance by one defendant's "received ample opportunity to present - 42 - 1 his claims to the jury unobstructed by any conduct on the part of" 2 the 3 192, 4 record before us, we cannot conclude that Fischer's performance in 5 representing 6 Fischer 7 prejudiced 8 represented- -and who was 9 her. 10 allegedly E. 205 poor attorney. (2d Cir.), Sacco distracted the cert. was or United denied, poor. 434 And of v. U.S. Bubar, 872 we see no or that O'Connor, acquitted on F.2d On indication he who was of the two 567 (1977). jurors, alienated defense States in the that any way independently counts against O'Connor's Evidentiary Contentions 11 0' Connor also contends that the district 12 certain of 13 evidence that, 14 given a 15 Lang about 16 rulings are reviewed for abuse of discretion, 17 v. 18 disregard" [a] ny 19 does not affect 20 also, 21 Fed. 22 test, (2) States, 519 error, Evid. The U.S. 103 (a) . first 174 413 find no contention O'Connor sought n.1 see, to Fed. R. does Old Chief we are variance P. that 52 (a); (2d Cir. to see 2005); reversal in either warrant extended 24 discussion. 25 November 2007 interview with Detective Blenis she had stated that - 43 - present or 210 for not and Crim. F.3d 201, basis ~, (1997), irregulari ty, rights," Garcia, We The trial court's evidentiary 172, defect, substantial she asked to be in admitting testimony by Renee a note written by s.o. United States v. R. and in excluding (1) in being interviewed by the police, polygraph United principally erred in ruling. 23 its evidentiary rulings, court evidence that in a 1 she did not want to speak to him again without 2 ] detector 0' Connor 3 "state of mind." 4 the ground of relevance. 5 at the time of 6 allegedly unlawful conduct--was not relevant. test"; offered (Tr. 250-53.) that taking a statement to "lie[- show her The district court excluded it on We agree that O'Connor's state of mind her interview wi th Blenis- -many months after the O'Connor's second contention is that the court should have 7 8 excluded testimony by Renee Lang that she 9 out during her two-month stay the room in which S. O. had slept found, while cleaning 10 with Renee in 2006, a note in S.O. 's handwriting stating, 11 my mother. 12 note itself had since been 13 at 1301.) 14 itself was not offered and that the statements it contained were 15 hearsay, 16 evidence," in light of the loss of the note, 17 to the hearsay rule as evidence of S.O. 's state of mind. 18 no basis for reversal. She used me'" (Tr. 1307). "misplaced" '"I hate Renee testif ied that the or "thr[own] out." Over O'Connor's objections on the ground that the note the court admitted the testimony as (1) and (2) the "best an exception We find We see no error in the first part of the court's ruling. 19 20 Where 21 other than as a result of bad faith on the part of the proponent 22 of 23 secondary 24 States v. Ross, 25 894 26 government the all originals evidence, the evidence. (1963). of a writing trial court 70 been lost or destroyed, may allow the introduction of Fed. See,~, 321 F.2d 61, have 1004 R. Evid. (1) i United (2d Cir.), cert. denied, 375 U.S. There was no showing of bad faith on the part of the (or of Renee) in this case. - 44 - 1 Nor do we see error in the rejection of O'Connor's 2 hearsay objection, although our reasoning only partially parallels 3 that 4 principle 5 hearsay rule if it is of the district that a court. hearsay The district statement is not court relied excludable on the under the [a] statement of the declarant's then existing state of mind [ or] emotion, but not including a statement of memory or belief to prove the fact remembered or believed, 6 7 8 9 10 Fed. R. Evid. 803(3). 11 stating that S.O. hated O'Connor--to the extent it was offered for 12 its 13 803 (3) 14 stating that 15 statement of S.O. 's state of mind. 16 " 'She 17 part was not hearsay. truth--was 18 19 20 21 22 23 24 We agree hearsay and was exception did not, 0' Connor had used me'" that within the portion of this exception. S.O. 's note The Rule however, cover the portion of the note '" used'" S. 0., portion of for that part was not a Nonetheless, the note was Rule 801(d) not admission of the error because that provides in part as follows: statement is not hearsay if [t] he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication A ~, 25 Fed. R. Evid. 801 (d) (1) (B) See, 26 700 1983) 27 the trial court to exclude the defendant's out-of-court statement, 28 offered by the defendant under Rule 801 (d) (1) (B) 29 of 30 testimony") F.2d 196, the 202 (5th Cir. government's i inevitable (ruling that attack see also id. at 202-03 - 45 - United States v. Gonzalez, on [the it was error for "in anticipation defendant's] own (finding the error harmless). 1 Here, 0' Connor and Sacco had begun their at tacks on the s.o. 2 credibility 3 statements and accused her of belatedly fashioning the allegations 4 of sexual abuse by O'Connor. 5 her 6 complaining about Sacco, 7 by O'Connor. 8 that S.O.] starts saying I have more to tell. 9 about opening my of 's statement expected testimony in their opening For example, O'Connor's attorney in argued s.o. that during more than a year of made no allegations of sexual abuse She argued that it was not until "October 25 [, 2007, mother, it's going to get her I have more to tell in trouble" (Tr. 120 and not until October 29, 2007, that s.o. says 10 (emphases added)), 11 O'Connor "was having sex with me. 12 It's at this point in time where she brings up this notion that 13 her mom was taking photographs of her while she's having sex with 14 [Sacco]" 15 2 007, 16 mom. 17 sexually abused me. 18 (emphases added)) . (id. S. o. at 121 (emphasis added)); during and that on November 30, I have more to tell about my is "claiming now And She was taking pictures. that interview [S.O. My mother sexually abused me" Plainly, defendants contended that 19 says s.o. George (i d . Lang] at 122 - 2 3 's trial testimony 20 about O'Connor represented fabrications originating in late 2007, 21 and 22 Detective Blenis 23 omitted any charge of incest or sex trafficking by O'Connor, were 24 the more accurate and truthful. 25 by 26 her was consistent with they s.o. argued that her statements from October 2006 to to social workers late October 2007, and/or which Equally plainly, a statement made not later than mid-October 2006 that O'Connor had" 'used'" s.o. 's trial - 46 - testimony that George Lang 1 had helped O'Connor to pay the rent and that O'Connor had required 2 S.O. 3 Renee's 4 called to testify, it was clear that S.O. was to be--and was--the 5 principal at 6 defense about the statement in her note. 7 Rule 801 (d) 8 of Renee's testimony that S.O., in a note written in 2006, 9 that 0' Connor '" used '" her. to engage in sexual activities with Lang in 2004. testimony witness (1) about trial note and was could admi t ted before be S. O. cross-examined by was the Accordingly, in light of (B), we see no error in the trial court's admission 10 11 the Although stated CONCLUSION We have considered all of defendants' contentions on these 12 appeals and have found them to be without merit. 13 conviction are affirmed. - 47 - The judgments of
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