United States v. Hardwick, No. 04-1369 (2d Cir. 2008)

Annotate this Case

Download PDF

04-1369-cr United States v. Hardwick 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2005 (Argued: January 23, 2006 Decided: April 11, 2008) Docket Nos. 04-1369-cr(L), 04-2886-cr(CON) UNITED STATES OF AMERICA, Appellee, - v. - STACEY HARDWICK and GLEN HARDWICK, Defendants-Appellants. B e f o r e: WINTER, WALKER, and SOTOMAYOR, Circuit Judges. Appeal from a conviction in the United States District Court 26 for the Southern District of New York (Richard C. Casey, Judge) 27 following a jury trial. 28 court violated his Sixth Amendment rights by admitting hearsay 29 statements from his co-conspirator's plea allocution. 30 the conviction and remand. 31 32 33 34 35 36 Appellant contends that the district We vacate SUSAN V. TIPOGRAPH (Thomas Eddy, on the brief) New York, New York, for Defendant-Appellant Glen Hardwick. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 BENJAMIN M. LAWSKY, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, and Karl Metzner, Assistant United States Attorney, of counsel), United States Attorney's Office for the Southern District of New York, New York, New York, for Appellee. WINTER, Circuit Judge: Glen Hardwick appeals from a conviction after a jury trial 14 before Judge Casey.1 15 and aiding and abetting a murder-for-hire, both in violation of 16 18 U.S.C. § 1958. 17 Crawford v. Washington, 541 U.S. 36 (2004), he argues that the 18 district court committed plain error in violation of the Sixth 19 Amendment's Confrontation Clause when it permitted a plea 20 allocution by his brother and co-conspirator, Stacey Hardwick, to 21 be read into evidence. 22 legally insufficient evidence to prove the consideration element 23 of the underlying murder-for-hire offense. 24 He was found guilty of conspiracy to commit In light of the Supreme Court's decision in Glen further contends that there was The admission of Stacey's plea allocution was plain error 25 under Crawford. 26 67 (1997). 27 because the evidence presented at trial -- including the 28 improperly admitted plea allocution, United States v. Cruz, 363 29 F.3d 187, 197 (2d Cir. 2004) -- was legally sufficient to prove 30 Section 1958's consideration element, we vacate, but do not 31 reverse, the conviction and remand for further proceedings. 32 See Johnson v. United States, 520 U.S. 461, 466- We must therefore vacate Glen's conviction. BACKGROUND 2 However, 1 Viewing the evidence in the light most favorable to the 2 government, see United States v. Wilkerson, 361 F. 3d 717, 721 3 (2d Cir. 2004), we recount the evidence at trial. 4 In late March 2002, the New York Police Department began an 5 investigation into the sale of narcotics at the Skate Key, a 6 skating rink and party venue in the Bronx. 7 Detective Marco Trujillo, in his undercover persona "Antonio," 8 purchased cocaine and marijuana from Stacey, who was working the 9 door of the Skate Key. On March 23, 2002, In a conversation, Trujillo discussed his 10 desire to "do[] future business" with Stacey, i.e., purchase 11 drugs and guns from Stacey. Trial Tr. 145. 12 In a series of transactions over the next several months, 13 Trujillo purchased varying quantities of cocaine and five guns 14 from Stacey. 15 an organized crime hit man and was constantly in need of new guns 16 because he would use a gun only once, disposing of it after a 17 killing to eliminate any evidence linking him to the murder. As part of his cover, Trujillo claimed that he was 18 On September 8, 2002, while in New Jersey, Trujillo received 19 a voice message from Stacey on his cellular telephone, requesting 20 that Trujillo call Stacey back immediately. 21 returned Stacey's call, Stacey stated that a neighbor had pulled 22 a gun on his brother Glen. 23 this neighbor to "go away," i.e., be killed, and if Trujillo 24 could not do it, then Stacey would find someone else. 25 173-74. 26 the agreement that [Trujillo] would take a gun for payment." When Trujillo Stacey told Trujillo that he wanted Trial Tr. Trujillo told Stacey that he would take the job, but "on 3 Id. 1 Trujillo informed Stacey that he would do the murder within a 2 week. 3 On the morning of September 10, Trujillo recorded the first 4 of two telephone conversations with Stacey that day.2 5 first conversation, Trujillo informed Stacey that he would do the 6 murder that night. 7 about procuring the gun he would use for the murder. 8 told Stacey that he was not going to charge Stacey for the hit, 9 but that he needed two guns, "[o]ne for [Trujillo's] problem, one During the Trujillo talked to Stacey (in coded terms) Trujillo 10 for [Stacey's] problem." 11 informed Stacey that he was willing to do the killing "as a 12 friendly gesture" and would pay for one gun but that the other 13 gun would be Stacey's "cost." 14 unwilling to part with both weapons, claiming he needed at least 15 one of them. 16 Telephone Tr. 1, at 2. Id. Trujillo Stacey, however, was Approximately one hour later, Trujillo called Stacey, and 17 they agreed to meet at the Olympic Diner on Jerome Avenue in the 18 Bronx at five o'clock that evening. 19 that Stacey bring two guns to the meeting. 20 claiming that he could bring only one because he and Glen needed 21 the other. 22 Stacey, "you know what . . . you better bring some fuckin' cash 23 too. 24 cash." 25 join them at the meeting. 26 Trujillo again requested Stacey refused, Trujillo grew angry at this development and told You want this done the right way, you bring some fuckin' Telephone Tr. 2, at 3. The men agreed that Glen would After meeting with other officers, Trujillo, wearing two 4 1 recording devices, went to the Olympic Diner.3 2 arrived, he was alone but informed Trujillo that Glen was outside 3 in a truck with the gun. 4 little bit of cash too" for the gun. 5 Trujillo became upset at Stacey's request for payment when 6 Trujillo was "doing a job" for him, id., and responded, "lemme 7 see the part [gun] and, I'll tell you what, I'll give you a 8 couple . . . but why didn't you bring the other fucking thing 9 [gun], I would've gave you money for that." When Stacey Stacey told Trujillo that he needed "a Olympic/McDonald s Tr. 8. Id. When Trujillo 10 asked Stacey, "[w]hat're you looking at" - i.e., how much money 11 do you want for the gun -- Stacey replied, "at least a thousand." 12 Id. 13 replied, "No, No, No, Lemme tell you what he [Glen] was asking. 14 This is what he was asking . . . because he was gonna get rid of 15 it. 16 fuckin' cockaroach [the intended victim] out there, right." 17 at 9. 18 Trujillo expressed disbelief at the request, but Stacey But I said no, you can't get rid of it when you have this Id. Shortly after this exchange, a waitress and her boyfriend 19 began having a loud dispute; when the waitress threatened to call 20 the police, Stacey became nervous and suggested relocating to a 21 McDonald's down the street. 22 (and while coordinating the new location with his undercover 23 team), Stacey and Glen approached Trujillo, and Trujillo 24 introduced himself to Glen. 25 exchanges -- the transfer of the gun and the information on how 26 to locate the intended victim -- right there, but Trujillo On Trujillo's way to the McDonald's Stacey offered to make the necessary 5 1 refused, insisting that Stacey and Glen both join him at the 2 McDonald's. 3 Once in McDonald's, Trujillo, Stacey, and Glen sat together 4 at a table. 5 car into the McDonald's; when he took the gun out and tried to 6 hand it to Trujillo across the table, Trujillo told Stacey to 7 leave the gun in the bag. 8 intended victim's physical appearance (nationality, height, hair 9 color, and usual attire) as well as where and when he could be Stacey had brought the gun in a paper bag from his Glen gave Trujillo details on the 10 found. 11 the bag containing the gun. 12 doing the murder "as a friend to [Stacey] . . . as a good gesture 13 to [Stacey] because [Trujillo] fucked him on something . . . a 14 misunderstanding." 15 Glen gave Trujillo a pen to write the location down on Trujillo then told Glen that he was Id. at 21. Stacey concluded the conversation with "Let's do what we 16 gotta do. 17 I'm going over to my car right now, let's go." 18 replied, "Yo . . . you got any change on you," and Trujillo said, 19 "Yeah, in my car." 20 up." 21 done deal," which was the code for his police team to come in and 22 make the arrest. 23 Id. Alright"; Trujillo responded, "Alright. Id. Id. No problem, Stacey Stacey then asked that they go "pick it As they were exiting, Trujillo began saying "it's a Id. at 22-23. Glen was charged in a four-count indictment with: (i) 24 conspiring to commit murder-for-hire, in violation of 18 U.S.C. § 25 1958; (ii) aiding and abetting a murder-for-hire, in violation of 26 18 U.S.C. §§ 1958 and 2; and two other counts dropped by the 6 1 government prior to Glen's trial. 2 Stacey pleaded guilty to, inter alia, conspiring to commit 3 murder-for-hire and committing murder-for-hire. 4 Also prior to Glen's trial, Glen's trial commenced on June 17, 2003. The jury heard 5 recordings of various telephone calls between Stacey and Trujillo 6 as well as of the face-to-face meeting between Trujillo, Stacey, 7 and Glen. 8 about his undercover operation, the events leading up to Stacey's 9 and Glen's arrests, and his interpretation of the various Trujillo testified extensively in front of the jury 10 recordings played for the jury. 11 plea allocution to be admitted into evidence. 12 mention Glen, the allocution stated that Stacey "agreed and 13 conspired to cause [another] person to travel in interstate 14 commerce with the intent that a murder be committed in exchange 15 for payment. 16 caliber pistol." 17 objected to the reading of the plea allocution and requested that 18 limiting instructions be given to the jury. 19 agreed and told the jury that it could "consider these statements 20 as evidence of the activities of the person who made the 21 statement and that is relevant to this case," but that the 22 statements could be considered only as to whether a conspiracy 23 existed and "[w]hether the crime of murder for hire was committed 24 as part of that conspiracy." 25 that "[t]he question whether the defendant Glen Hardwick 26 participated in the conspiracy . . . is an issue for which you The court also allowed Stacey's While it did not The payment for the intended murder was a .32 Plea Tr. 18, May 30, 2003. Trial Tr. 582. 7 The defense The district judge The judge cautioned 1 will have to rely on other evidence. . . . 2 Stacey Hardwick's statement that answers" the question of whether 3 Glen participated in the conspiracy. 4 There is nothing in Id. at 582-83. While deliberating, the jury asked for, and received, a re- 5 reading of the portion of the transcript containing Stacey's plea 6 allocution and a replaying of the recordings of both September 10 7 phone conversations. 8 on both counts of the indictment. The jury returned with verdicts of guilty 9 DISCUSSION 10 On appeal, Hardwick challenges his conviction on the 11 following two grounds. 12 decision in Crawford v. Washington, 541 U.S. 36 (2004), he 13 contends that the district court's admission of Stacey's plea 14 allocution violated the Sixth Amendment's Confrontation Clause. 15 Second, Glen argues that the evidence was legally insufficient to 16 prove the consideration element of the substantive murder-for- 17 hire offense. 18 a) First, in light of the Supreme Court's We address each of these claims in turn. Confrontation Clause Claim 19 The government concedes that under the Supreme Court's 20 decision in Crawford, the admission of Stacey's plea allocution 21 was in error. 22 to plain error review because Glen's counsel failed to raise a 23 Confrontation Clause objection at trial. 24 However, the government argues that we are limited Although defense counsel made a general objection to the 25 reading of Stacey's allocution (and asked for a limiting 26 instruction, which was given), she did not mention the 8 1 Confrontation Clause, the Sixth Amendment, or any Confrontation 2 Clause caselaw in her objection. 3 [the] trial court on notice that Confrontation Clause concerns 4 [were] implicated"; thus, harmless error review is inappropriate, 5 and we review the constitutional issue for plain error. 6 States v. Dukagjini, 326 F.3d 45, 60 (2d Cir. 2002).4 7 The objection failed to "put United For us to correct an error not raised at trial, "there must 8 be (1) error, (2) that is plain, and (3) that affects substantial 9 rights." Johnson, 520 U.S. at 466-67 (internal quotation marks 10 and alterations omitted). 11 appellate court may then exercise its discretion to notice a 12 forfeited error, but only if (4) the error seriously affect[ed] 13 the fairness, integrity, or public reputation of judicial 14 proceedings." 15 Because the error here was not "structural," in other words, a 16 "defect affecting the framework within which [a] trial proceeds," 17 Arizona v. Fulminante, 499 U.S. 279, 310 (1991), we will conclude 18 that it affected the defendant's substantial rights only if the 19 error was "prejudicial" to the defendant and "affect[ed] the 20 outcome of the district court proceedings," United States v. 21 Bruno, 383 F.3d 65, 79 (2d Cir. 2004). 22 "If all three conditions are met, an Id. at 467 (internal quotation marks omitted). The admission of Stacey's plea allocution against Glen meets 23 the test for reversible plain error. 24 is 'clear' or 'obvious' at the time of appellate consideration." 25 United States v. Thomas, 274 F.3d 655, 667 (2d Cir. 2001). 26 Although co-conspirator plea allocutions were admissible under 9 "An error is 'plain' if it 1 our caselaw at the time of Glen's trial, we have since held that 2 they are testimonial hearsay and are inadmissible under the 3 Confrontation Clause unless the co-conspirator testifies at 4 trial, or is unavailable at trial and the defendant had a prior 5 opportunity for cross-examination. 6 F.3d 122, 129-30 (2d Cir. 2007); 7 F.3d 219, 22 (2d Cir. 2004); see also Crawford, 541 U.S. at 53- 8 54. 9 these requirements, the error is plain. 10 United States v. Becker, 502 United States v. McClain, 377 Because the plea allocution was admitted without meeting Furthermore, the plea allocution affected Glen's substantial 11 rights because it almost surely influenced the jury's verdict. 12 Bruno, 383 F.3d at 79 (2d Cir. 1999) ("[A]n error affects a 13 defendant's substantial rights if it is prejudicial and it 14 affected the outcome of the district court proceedings." 15 (internal quotation marks omitted)). 16 sufficiency issue with regard to the consideration element of the 17 murder-for-hire statute is close. 18 the issue largely turns on Stacey's state of mind as inferred 19 from the recorded conversations. 20 issue is much easier because the allocution was a direct 21 admission by Stacey that he intended the pistol he gave to 22 Trujillo to constitute a quid pro quo for Trujillo's promise to 23 murder the victim. 24 contributed to the jury's verdict. 25 26 As discussed below, the Without the plea allocution, With the plea allocution, the As such, the plea allocution almost certainly First, the judge's limiting instructions informed the jury that it should not consider the allocution as evidence that Glen 10 1 was part of the murder-for-hire conspiracy but that it could 2 consider the plea allocution as evidence that Stacey had violated 3 the murder-for-hire statute in his dealings with Trujillo. 4 the jury was explicitly permitted to consider the plea allocution 5 on the issue of whether the gun constituted consideration for 6 Trujillo's promise to murder the victim -- an issue as to which 7 the evidence, absent the plea allocution, was very close. 8 Bruno, 383 F.3d at 80. Thus, Cf. 9 Second, the government referred specifically to the plea 10 allocution in its closing arguments, stating "you have Stacey 11 Hardwick's guilty plea allocution, where he admitted to 12 conspiracy to commit a murder-for-hire. 13 a conspiracy existed." 14 allocution was re-read to the jury at their request during 15 deliberations. 16 even examined other evidence going to Stacey's state of mind, 17 given the nature and force of the plea allocution. 18 Trial Tr. 707. There is no dispute that Finally, the plea Indeed, it is extremely doubtful that the jury Therefore, the fairness and integrity of the proceedings in 19 this case were seriously affected by the unconstitutional 20 admission of the hearsay statements in Stacey's plea allocution. 21 Thomas, 274 F.3d at 671. 22 conviction. 23 b) As a result, we vacate the judgment of Sufficiency of the Evidence 24 Glen also challenges his conviction by contesting, inter 25 alia, the sufficiency of the evidence with respect to Section 26 1958's consideration element. Glen argues that Stacey did not 11 1 intend the gun he gave Trujillo to be something of "pecuniary 2 value" in exchange for Trujillo's promise to murder the intended 3 victim. 4 1. 5 The murder-for-hire statute provided: Murder-for-Hire Under 18 U.S.C. § 1958 6 7 8 9 10 11 12 13 14 15 18 U.S.C. § 1958(a) (2000). 16 proscribes a very limited category of behavior; only those 17 instances in which one party agrees to commit a murder in 18 exchange for another party's provision (or future promise) of 19 payment are punishable under § 1958." 20 382 F.3d 213, 217 (2d Cir. 2004). 21 Whoever . . . uses or causes another . . . to use the mail or any facility in interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, shall [be guilty of a crime under this section]. "The federal murder-for-hire statute United States v. Frampton, The consideration requirement of Section 1958 is interpreted 22 in "the traditional sense of bargained for exchange," United 23 States v. Wicklund, 114 F.3d 151, 154 (10th Cir. 1997), so that 24 there must be a "quid-pro-quo (or at least the promise of such) 25 between the parties to the transaction," United States v. 26 Hernandez, 141 F.3d 1042, 1057 (11th Cir. 1998). 27 States v. Richeson, 338 F.3d 653, 657 (7th Cir. 2003) 28 ("[C]onsideration retains its contract law meaning of a 29 bargained-for exchange of something of value."); United States v. 30 Washington, 318 F.3d 845, 854 (8th Cir. 2003). 31 See also United When the defendant is the solicitor of the murder-for-hire, 12 1 it is the defendant's intent that controls. 2 at 656 ("The federal murder-for-hire statute requires the 3 government to prove that the accused intended for a murder to be 4 committed" as consideration for something of pecuniary value. 5 (emphasis added)). 6 especially important when the would-be murderer is an undercover 7 agent who by definition never intends to commit the crime. 8 generally United States v. Ritter, 989 F.2d 318, 321 (9th Cir. 9 1993) (reversing convictions for conspiracy to commit murder-for- Richeson, 338 F.3d The nature of the solicitor's intent is See 10 hire for two defendants: 11 to commit the murder; the second also lacked the required intent 12 because the government agent pretending to be a hit man said he 13 would not charge anything for the murder). 14 the first did not know anyone was paid Under Section 1958, the term "anything of pecuniary value" 15 is defined as "anything of value in the form of money, a 16 negotiable instrument, a commercial interest, or anything else 17 the primary significance of which is economic advantage." 18 U.S.C. § 1958(b)(1). 19 -- in the absence of any evidence suggesting that either party to 20 the agreement had an understanding of what form such a favor 21 would take -- does not constitute pecuniary value under Section 22 1958. 23 requirement is satisfied, for example, by the payment or promise 24 of sale-level quantities of drugs, Washington, 318 F.3d at 854, 25 insurance proceeds, Hernandez, 141 F.3d at 1057-58, or a promise 26 to reimburse a hit man for a firearm purchase in addition to 18 The promise of a future, unspecified favor Frampton, 382 F.3d at 219. 13 However, the pecuniary value 1 letting him keep the firearm, Richeson, 338 F.3d at 656-57. 2 Thus, "the mere fact that the consideration offered . . . could 3 inure to the economic benefit of the [murderer] is insufficient. 4 Rather, there must be some evidence to establish that at the time 5 the agreement was formed, the consideration was something the 6 'primary significance' of which lay in its 'economic advantage.'" 7 Frampton, 382 F.3d at 219 (quoting 18 U.S.C. § 1958(b)(1)). 8 2. 9 Although we "review a claim of insufficient evidence de 10 novo[,] . . . a defendant challenging his verdict on sufficiency 11 grounds bears a heavy burden. 12 if we find that any rational trier of fact could have found the 13 essential elements of the crime beyond a reasonable doubt." 14 United States v. Lewter, 402 F.3d 319, 321 (2d Cir. 2005) 15 (internal quotation marks, citations, and alterations omitted). 16 Moreover, "[w]e are to view the evidence, whether direct or 17 circumstantial, in the light most favorable to the government," 18 United States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993), and 19 defer to the jury by "resolv[ing] all inferences from the 20 evidence and issues of credibility in favor of the verdict," 21 United States v. Howard, 214 F.3d 361, 363 (2d Cir. 2000). 22 consider the evidence in its totality and "'may not substitute 23 our own determinations of credibility or relative weight of the 24 evidence for that of the jury.'" 25 F.3d 635, 648 (2d Cir. 2001) (quoting United States v. Autuori, 26 212 F.3d 105, 114 (2d Cir. 2000)). Application We must uphold the jury's verdict 14 We United States v. Dhinsa, 243 1 In circumstances where, as here, "some government evidence 2 was erroneously admitted, we must make our determination 3 concerning sufficiency taking into consideration even the 4 improperly admitted evidence." 5 Lockhart v. Nelson, 488 U.S. 33, 39-40 (1988) (holding that 6 "where the evidence offered by the State and admitted by the 7 trial court -- whether erroneously or not -- would have been 8 sufficient to sustain a guilty verdict, the Double Jeopardy 9 Clause does not preclude retrial"); Bruno, 383 F.3d at 81 ("[I]n Cruz, 363 F.3d at 197; see also 10 assessing a legal-sufficiency challenge, we must consider 11 improperly admitted hearsay testimony."); United States v. Glenn, 12 312 F.3d 58, 67 (2d Cir. 2002) (considering improperly admitted 13 testimony in evaluating a sufficiency challenge).5 14 Where "'the evidence is determined to be insufficient when 15 the improperly admitted evidence is excluded from the equation 16 but sufficient when the improperly admitted evidence is included 17 in the equation, the remedy is affected. 18 rather than acquittal is the remedy.'" 19 n.20 (quoting Cooper v. McGrath, 314 F. Supp. 2d 967, 999 (N.D. 20 Cal. 2004)). If, however, we conclude that the evidence is 21 legally insufficient even with the improperly admitted hearsay, 22 the appropriate remedy is acquittal. 23 449 F.3d 93, 95 (2d Cir. 2006) (noting that "the proper remedy 24 for a successful sufficiency of the evidence claim is 25 acquittal"). 26 In such a case, retrial Bruno, 383 F.3d at 90 United States v. Santos, In order to convict Glen, a jury would have to find beyond a 15 1 reasonable doubt that Stacey intended the gun he provided 2 Trujillo to serve as consideration (i.e., a quid pro quo) for 3 Trujillo's promise to murder the intended victim. 4 gun as payment for committing murder violates Section 1958. 5 Frampton, 382 F.3d at 219 (noting that consideration element 6 could be satisfied where the consideration is "valuable 7 firearms"); 8 element of Section 1958 established based on evidence that "[t]he 9 payment offered took the form of money to buy the murder weapons, 10 with the promise to allow the murderer to keep the weapon when he 11 finished the job"). 12 used only to commit the specific murder does not. 13 would have to find that Stacey thought Trujillo would not dispose 14 of the gun following this particular killing even though Trujillo 15 previously told Stacey that whenever he killed someone with a 16 gun, he always disposed of it to eliminate the evidence. 17 noted above, if we include Stacey's improperly-admitted plea 18 allocution in our analysis, the question becomes much easier. 19 his allocution, Stacey conceded that he "agreed and conspired to 20 cause [another] person to travel in interstate commerce with the 21 intent that a murder be committed in exchange for payment. The 22 payment for the intended murder was a .32 caliber pistol." Plea 23 Tr. 18, May 30, 2003. 24 was intended as "payment" for the murder and as such, it is 25 easily sufficient to prove Section 1958's consideration element 26 and to uphold the jury's verdict. Providing a See Richeson, 338 F.3d at 657 (finding the consideration However, simply giving a hit man a gun to be Thus, the jury As In This is a direct admission that the gun 16 We therefore conclude that the 1 2 evidence was legally sufficient.6 Excluding Stacey's plea allocution leaves a very different 3 factual record; to convict, the jury would have to infer, from 4 the recorded conversations, that Stacey intended the gun to serve 5 as payment. 6 opine further on the sufficiency of the evidence absent the plea 7 allocution.7 8 set out above on the issue, we should, in the interests of 9 efficiency, inform the parties of our views on the sufficiency My colleagues would end the discussion here and not I believe, however, that, having said all that is 10 issue absent the plea allocution.8 11 no view on that matter. 12 My colleagues would intimate Turning to that issue, and noting again that my colleagues 13 do not join in the discussion, I believe that at least one 14 scenario might reasonably be found by a jury to be sufficient to 15 meet Section 1958's consideration requirement. 16 possible version of events is that Stacey fully expected, or even 17 hoped, that Trujillo would dispose of the weapon after killing 18 the victim, as Trujillo frequently stated. 19 Stacey understood and intended that Trujillo would dispose of the 20 weapon after the murder, then the primary significance of the gun 21 was to enable the commission of the murder, not to provide 22 Trujillo with a "profit" for the crime. 23 committed and the weapon disposed of, there would be no economic 24 value to the murderer. 25 26 To be sure, one As noted above, if Once the crime was A reasonable jury, however, might find an alternative scenario, namely that Stacey was engaged in what he understood to 17 1 be a business negotiation in which the gun had value beyond its 2 use in the anticipated murder, was either indifferent to or 3 doubted Trujillo's stated willingness to dispose of the gun after 4 the murder, and wanted to lower his "costs" by receiving some 5 cash as well as the murder in exchange for the gun. 6 that state of mind would be sufficient to meet the quid pro quo 7 requirement. 8 9 In my view, A jury could easily find that Stacey, until the point of his arrest, wanted -- and even expected -- to be paid for the 10 firearm. 11 the following exchange took place: When Trujillo asked Stacey to get the murder weapon, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Olympic/McDonald's Tr. 8-9. As the three men exited the 37 McDonald's, and right before Trujillo signaled for the arrest to 38 be made, Stacey still sought payment from Trujillo: Trujillo: Stacey: Trujillo: Stacey: Trujillo: Alright, go get me what I need and tell . . . I need a little bit of cash too. How much? I brought you a box [gun] already so . . . I'm fucking, I'm doing a job for you. . . . I'm doing a job for you . . . and you want me to pay you? . . . Lemme, lemme see the part [gun] and, I'll tell you what, I'll give you a couple . . . but why didn't you bring the other fucking thing, I would've gave you money for that. Stacey: Yo, I asked you a question, I cannot be left with . . . Trujillo: What're you looking at? Stacey: . . . at least a thousand. Trujillo: A thousand! Stacey: No, No, No, Lemme tell you what he [Glen] was asking. This is what he was asking . . . he was asking for . . . because he was gonna get rid of it. But I said no, you can't get rid of it when you have this fuckin' cockaroach [sic] out there, right . . . 18 1 2 3 4 5 6 7 8 9 10 11 Stacey: Let's do what we gotta do. Alright. Trujillo: Alright. No problem, I'm going over to my car right now, let's go. Stacey: Alright? Trujillo: Let's get out of here. Stacey: Yo, uh . . . you got any change on you? Trujillo: Yeah, in my car. Stacey: Let's go pick it up. Id. at 21. Glen argues that these conversations show only that Stacey 12 intended to sell the gun, a state of mind inconsistent, in his 13 view of the evidence, with using the gun as payment for the 14 murder. 15 "sale" proposal indicated Stacey's indifference and doubt as to 16 Trujillo's intent to throw the gun away rather than keep it after 17 the murder. 18 reflected a belief that Trujillo would pay some money for the gun 19 and commit the murder, acts that a jury might believe made sense 20 to Stacey only if the gun was to be kept after the murder. 21 Indeed, a jury might find that Stacey was encouraged in such a 22 belief by Trujillo's reaction, which, while incredulous at being 23 asked to pay for the gun, was hardly a refusal. 24 Trujillo mentioned that he could "give [Stacey] a couple," id. at 25 8, and Stacey was about to go to Trujillo's car to get the 26 "change" when arrested, id. at 21. 27 A jury, however, might also reasonably find that the It might well conclude that Stacey's demands In fact, In my view, a rational jury could therefore infer that 28 Stacey's demand for cash and a failure to insist that Trujillo 29 dispose of the gun reflected Stacey's intent that the gun be a 30 quid pro quo for the murder. 31 mind, however, is a jury question. Whether this was Stacey's state of 19 1 CONCLUSION 2 For the reasons discussed above, we vacate the judgment of 3 conviction entered by the district court and remand for further 4 proceedings. 20 1 FOOTNOTES 2 3 1. Stacey Hardwick, the other defendant-appellant in this case, previously withdrew his appeal. 2. The two telephone conversations on September 10, 2002, occurred at approximately 11:12 a.m. and 12:10 p.m. The 11:12 a.m. conversation will be cited as "Telephone Tr. 1, at (pincite)." The 12:10 p.m. conversation will be cited as "Telephone Tr. 2, at (pincite)." 3. Citations to the transcript of the September 10, 2002 face- to-face meeting between Trujillo, Stacey, and Glen -- which took place inside the Olympic Diner, outside the Olympic Diner, and at a nearby McDonald's Restaurant -- will take the form of "Olympic/McDonald's Tr. (pincite)." 4. "When the source of plain error is a supervening decision," this court has "employed a modified plain error standard whereby the government bears the burden of proving that the error did not affect the defendant's substantial rights." United States v. Lombardozzi, 491 F.3d 61, 74 n.4 (2d Cir. 2007). Whether this standard has been overruled by Johnson v. United States, 520 U.S. 461 (1997), and whether it applies to unpreserved Crawford errors, such as the one at issue here, remain open questions. Because we conclude that the error is plain even under the more 21 stringent standard applied to "non-structural" errors where the burden rests on the defendant to prove plain error, we need not decide those questions at this time. United States v. Bruno, 383 F.3d 65, 79 n.8 (2d Cir. 2004). 5. We note that this caselaw appears to be in tension with United States v. Jones, 393 F.3d 107, 109 (2d Cir. 2004), where this court made its sufficiency determination without weighing evidence admitted at trial in violation of Crawford. In that case, however, the government conceded that the improperly admitted evidence should not be considered in deciding the sufficiency issue, and the court did not independently analyze whether this was the proper course. Id. at 111. As a result, we do not believe that the resolution of this issue is part of the binding holding of Jones. See Getty Petroleum Corp. v. Bartco Petroleum Corp., 858 F.2d 103, 113 (2d Cir. 1988) (noting that a "sub silentio holding is not binding precedent" (internal quotation mark omitted)); United States v. Johnson, 256 F.3d 895, 916 (9th Cir. 2001) (en banc) (stating that a court is not bound by a statement of law "made casually and without analysis, . . . uttered in passing without due consideration of the alternatives or where it is merely a prelude to another legal issue that commands the panel's full attention"). 6. In his appellate brief, Glen challenges the sufficiency of the evidence with respect to the interstate nature of the telephone 22 calls between Stacey and Trujillo; he claims there is insufficient proof that Trujillo was in New Jersey when he had several phone conversations with Stacey. Glen seemingly argues that, by using the phrase "facility in interstate" commerce, Section 1958 requires that the telephone call be made across state lines. We rejected this argument, however, in United States v. Perez, 414 F.3d 302, 304 (2d Cir. 2005) (holding that Section 1958's "facility in" language covered wholly intrastate usage of the facility because "the phrases 'facility of interstate commerce' and 'facility in interstate commerce' are to be used interchangeably." (citing United States v. Marek, 238 F.3d 310, 321 (5th Cir. 2001))). Glen also argues that the evidence was insufficient to find that he was a member of the conspiracy to commit, or aided and abetted a murder-for-hire. We disagree. The jury could easily find that Glen possessed the gun, helped turn it over to Trujillo, and was present when Stacey said he was going to "pick up" the "change" in Trujillo's car. This evidence is sufficient to permit a jury to reasonably infer that Glen knew about the enterprise and intended to participate in it or make it succeed. United States v. Johnson, 513 F.2d 819, 823 (2d Cir. 1975). 7. While Lockhart v. Nelson, 488 U.S. 33 (1988), compels us to review the sufficiency of the evidence, including improperlyadmitted evidence, to determine whether the Double Jeopardy Clause bars a retrial, that rule does not preclude us from 23 informing the parties as to our view of the sufficiency issue absent the plea allocution. If a defendant has been convicted and an appellate court reverses based on its determination that the evidence produced at trial was legally insufficient, the Clause precludes a new trial. 1, 18 (1978). Burks v. United States, 437 U.S. The reasoning behind this rule is that the appellate ruling is the functional equivalent of a judgment of acquittal at the close of evidence. 39, 41-42. See Lockhart, 488 U.S. at Where the reversal is based on evidentiary error and the evidence is sufficient if the inadmissible evidence of a prejudicial nature is included in the equation, a defendant does not, under Lockhart, have double-jeopardy protection against a new trial. The reasoning behind this rule is that, under the Clause, such a reversal entitles a defendant only to an errorfree trial and allows the prosecution an opportunity in a retrial to substitute other evidence to support a conviction. 42. Id. at 40- The rule does not, therefore, preclude us from opining on the sufficiency issue absent the plea allocution for purposes of judicial efficiency. See Note 8, infra. 8. When a retrial is a possibility, we routinely rule on fully argued issues that will arise in such a retrial, lest serial appeals, reversals, and multiple retrials result. See, e.g., Arnold v. County of Nassau, 252 F.3d 599, 604 (2d Cir. 2001) ("Since the case will be retried, we think it might assist the district court upon retrial, and this court upon further review, 24 to have the benefit of a few observations."); Blyden v. Mancusi, 186 F.3d 252, 269 (2d Cir. 1999) ("Although our disposition of this matter lessens the importance to this appeal of appellant's [second] claim . . . we nevertheless address it in light of the fact that retrials seem inevitable."); Thornley v. Penton Pub., Inc., 104 F.3d 26, 31(2d Cir. 1997) ("We think it appropriate to give guidance on certain issues that may arise again on retrial."); United States v. Ajmal, 67 F.3d 12, 15 (2d Cir. 1995) ("While we vacate the proceeding below, we next address [the defendant's] and the government's remaining contentions to give the district court guidance on retrial and in the event of resentencing;"); United States v. Salerno, 937 F.2d 797, 811 (2d Cir. 1991) ("Since we reverse the convictions of all defendants on other grounds, it is not necessary to reach this issue in order to decide this appeal. Nevertheless, since a retrial is likely, we offer some guidance on this subject."), rev d on other grounds, 505 U.S. 317 (1992). It is a very inefficient use of judicial resources to remand this case without guidance on the sufficiency issue. If the admissible evidence was legally insufficient, why shouldn't the government know that without more evidence it cannot get a valid conviction at a retrial? Similarly, why should the appellant be subjected to a retrial in such circumstances, if additional evidence is not available? In other words, the fact that a retrial would not be precluded on double jeopardy grounds is a reason for our informing the parties whether a retrial without 25 the improperly-admitted evidence would lead to a valid conviction. Indeed, with the concurrence of my colleagues, this opinion goes into detail as to the legal principles relevant to sufficiency in order to guide a retrial. I would not stop just before providing the parties with the dispositive information. 26

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.