United States v. Brutus, No. 06-2710 (2d Cir. 2007)

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06-2710-cr United States v. Brutus 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 5 August Term 2006 (Argued: February 14, 2007 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Decided: October 2, 2007) Docket No. 06-2710-cr -----------------------------------------------------x UNITED STATES OF AMERICA, Appellee, -- v. -WALINE BRUTUS, Defendant-Appellant. -----------------------------------------------------x B e f o r e : Jacobs, Chief Judge, Walker and Calabresi, Circuit Judges. Appeal from a judgment of the United States District Court 23 for the Eastern District of New York (I. Leo Glasser, Judge) 24 convicting appellant, after a jury trial, of importing five or 25 more kilograms of cocaine, in violation of 21 U.S.C. § 952, and 26 possessing five or more kilograms of cocaine with the intent to 27 distribute, in violation of 21 U.S.C. § 841(a). 28 AFFIRMED. 29 30 31 32 DAVID A. LEWIS, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for defendant-appellant. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 ANTHONY G. KYRIAKAKIS, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Susan Corkery, Assistant United States Attorney, on the brief), New York, NY, for appellee. JOHN M. WALKER, JR., Circuit Judge: Defendant-appellant Waline Brutus appeals from a judgment of 14 the District Court for the Eastern District of New York (I. Leo 15 Glasser, Judge) convicting her, after a jury trial, of importing 16 five or more kilograms of cocaine, in violation of 21 U.S.C. § 17 952, and possessing five or more kilograms of cocaine with the 18 intent to distribute, in violation of 21 U.S.C. § 841(a). 19 Brutus, who testified on her own behalf at trial, contends on 20 appeal that the district court erred in instructing the jury on 21 how to evaluate her testimony. 22 agree; however, we further conclude that the error was harmless 23 beyond a reasonable doubt and therefore affirm Brutus 24 convictions. For the reasons that follow, we BACKGROUND 25 26 I. The Government s Case 27 At trial, the government elicited testimony to the following 28 effect. On August 27, 2005, Brutus arrived at JFK International 29 Airport on a flight from Haiti. 30 area, she was approached by Officer Maria Morelli, a member of While waiting in the baggage 2 1 the airport s Passenger Enforcement Roving Team. In response to 2 questioning by Officer Morelli, Brutus confirmed that everything 3 in her possession, including her suitcase, was her own. 4 moving Brutus to a secondary inspection area, Officer Morelli 5 inspected Brutus suitcase. 6 sandals1 packed between various articles of clothing. 7 that the sandals were unusual in weight and size, the officer 8 probed one of them. 9 substance that field tested positive for cocaine. After There, she found twelve men s Noticing Inside it she found a white, powdery 10 After escorting Brutus to a private search room, Officer 11 Morelli arrested Brutus and contacted agents from Immigration and 12 Customs Enforcement. 13 Special Agents Sean Garvey and Timothy Varian responded. 14 Garvey conferred with Officer Morelli and then identified himself 15 to Brutus and asked her if she spoke English, to which she 16 replied affirmatively. 17 rights, which she waived. 18 Senior Special Agent Amanda Jackson and Agent Brutus was then informed of her Miranda During a fifteen minute initial interview, Brutus admitted 19 that she knew drugs were hidden within the sandals, though she 20 was not aware of the kind of drugs. 21 she was recruited to be a drug courier by a friend of hers named 22 Marjorie; that she was to be paid $3,000 for her efforts; and 23 that someone whom she did not know was supposed to meet her in 1 2 1 She further explained that While there were twelve sandals total, ranging from size 10 to 13, there were only five pairs; two sandals did not match. 3 1 the airport lobby to take possession of the drugs. 2 then asked Brutus if she would participate in a controlled 3 delivery of the drugs. 4 Agent Garvey She agreed. Once surveillance was in place, Brutus was instructed to 5 walk into the airport lobby area and wait until she was 6 approached by the pick-up person. 7 instructed, but after a wait of 45 minutes, the agents abandoned 8 the controlled delivery and brought Brutus back to the search 9 room for further questioning. Brutus did as she was 10 Agents Garvey and Varian conducted the second interview, 11 which lasted approximately 45 minutes to an hour, after reminding 12 Brutus of her Miranda rights. 13 questions and proceeded to provide additional details about her 14 involvement in drug smuggling. 15 Marjorie while working with her at a Days Inn in Miami, Florida, 16 and that she believed Marjorie now lived in New York or New 17 Jersey. 18 drugs because she needed the money to pay her rent. 19 found three notice slips in her suitcase indicating that $190 in 20 rent and $65 in late payment penalties were overdue. 21 building address on the notices matched the address Brutus listed 22 on her customs declaration form. 23 24 She agreed to answer more She stated that she first met She further explained that she agreed to smuggle the Agents later The Brutus stated that she originally was supposed to fly into Miami but, on the day before her return trip, a male friend of 4 1 Marjorie s instructed Brutus to change her flight destination to 2 New York. 3 Haiti on the day she left for New York. 4 agents that Marjorie had instructed her that, if no one met her 5 in the airport lobby, she was to call Majorie in Haiti for 6 alternative delivery instructions. 7 with the telephone number and expressed her willingness to 8 participate in a recorded call with Marjorie. 9 however, that Marjorie would expect her to speak in Creole. The same man gave Brutus the drugs at the airport in Brutus also informed the She then provided the agents She noted, 10 Without a Creole-speaking agent available to monitor the 11 telephone call, the agents decided against placing the call. 12 During her second interview, Brutus also stated that she had 13 smuggled drugs into Miami from Haiti in the fall of 2004. She 14 said that that trip had been arranged by Marjorie and another 15 woman named Mona. 16 had smuggled during that trip, she knew they were concealed 17 within wooden voodoo statues. 18 delivery occurred: when she arrived in Miami, Mona s son Jason 19 picked her up, took possession of the drugs, and two days later 20 paid her $2,500. 21 descriptions of Marjorie, Mona, two male individuals associated 22 with Marjorie, and Jason. 23 revealed that she had flown to Haiti and returned to Miami 24 several times in the fall of 2004. While she did not know what type of drugs she She also explained how the Brutus account of this event included physical Inspection of Brutus passport 5 1 II. The Defense s Case 2 Using a Haitian-Creole interpreter, Brutus took the stand in 3 her own defense. 4 government s witnesses said was accurate, including their account 5 of the statements she made during her two airport interviews. 6 She claimed, however, that certain statements namely, her 7 confession to the offenses of conviction and her admission to 8 prior involvement in drug smuggling were false. 9 She testified that much of what the According to Brutus, the agents initiated the first 10 interview by asking her whether she knew her suitcase contained 11 drugs. 12 children. She replied she had a two-month old baby and a five- 13 year old. The agents responded, Brutus explained, by telling her 14 that she would remain in prison for ten years if she refused to 15 admit she knew of the drugs. 16 the jury, she falsely confessed. 17 When she answered no, the agents asked her if she had Scared of this fate, Brutus told Brutus also explained the statements she made during the 18 second airport interview. She stated that one of the agents told 19 her that he would help her plight if she said yes to the 20 questions asked. 21 when she admitted knowing about the drugs but were not kind when 22 she denied it. 23 about the current smuggling trip and to falsely state that she 24 had also smuggled drugs in the fall of 2004. She added that the agents were so kind to her This, according to Brutus, caused her to lie 6 1 The truth, Brutus testified, was quite different. 2 contrast to the incriminating story she told during her two 3 airport interviews, Brutus provided the following explanation for 4 her trips to Haiti in the fall of 2004 and August 2005. 5 In Brutus testified that she came to the United States from 6 Haiti in 2000 and that, just prior to her arrest, she lived in 7 Miami with her brother and two children. 8 traveled to Haiti several times to visit her ailing father and, 9 ultimately, to attend his funeral. During 2004, she It was during one of these 10 trips, recounted Brutus, that Mona, a friend of Brutus mother, 11 asked Brutus to bring certain traditional Haitian souvenirs to 12 Miami and sell them in a store. 13 was to send the proceeds to Mona in Haiti and tender any unsold 14 items to Mona s son, Jason. 15 with Mona s instructions but denied that the items Mona gave her 16 contained drugs. 17 Per Mona s instructions, Brutus Brutus testified that she complied As to the trip to Haiti in August 2005 that resulted in her 18 arrest, Brutus testified that its purpose was to see her ill 19 mother outside of Port-au-Prince, Haiti. 20 Port-au-Prince, Brutus stayed in a hotel where Marjorie Luc, her 21 best friend, came to see her. 22 with Marjorie, including her plan to move with her children to 23 New York and find employment there. 24 that she had a good friend in New York, Alina, who had offered The day she arrived in Brutus discussed her future plans 7 Brutus also told Marjorie 1 her a place to stay and help finding a job. When Marjorie heard 2 this, Brutus testified, Marjorie told Brutus not to fly back to 3 Miami but, instead, to go directly to New York from Haiti. 4 Marjorie then offered to pay for the ticket, adding that Brutus 5 could take some sandals to a friend of Marjorie s in New York who 6 often received sandals and similar items. 7 whether Brutus knew the friend, and Marjorie replied that she did 8 but, wanting it to be a suprise, would not tell Brutus the 9 person s name. Brutus asked Marjorie Brutus said she initially rejected Marjorie s 10 proposal but, while visiting her mother the next day, gave it 11 more thought and decided to accept. 12 Brutus testified that, as she had told Marjorie, she 13 intended to stay with Alina while she took a few days to apply 14 for jobs. 15 with her brother and the younger with the child s father during 16 this time. 17 tell her brother or the father of her youngest child, stating 18 that the child s father would not have let Brutus travel to New 19 York if she had told him beforehand. 20 permission would not be forthcoming, Brutus replied that she did 21 not know. 22 She added that she planned to leave her older child Brutus did not inform Alina of her plan. Nor did she When asked why the father s Brutus then testified that when she returned to Port-au- 23 Prince, she called Marjorie to accept her offer. 24 Brutus went to the airport where she was met by an unknown man 8 The next day, 1 and Marjorie, who handed Brutus an airplane ticket2 and gave the 2 suitcase full of sandals to security. 3 the opportunity to glance inside the suitcase when security 4 opened it briefly, but she saw only sweatshirts. 5 security a plastic bag full of her own clothes to place inside 6 the suitcase and boarded the plane, never suspecting that 7 Marjorie would have concealed drugs within the sandals. Brutus stated that she had She then gave 8 III. The Jury Charge 9 Over the objection of defense counsel, the district court s 10 jury charge included an interested-witness instruction, 11 pertaining to Brutus testimony, as follows: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 1 2 The defendant is on trial only for the crimes charged in the indictment and for nothing else. And although presumed innocent and because she is presumed innocent, a defendant is not obligated to testify on her own behalf. She is not obligated to call any witnesses or present any evidence on her own behalf. But a defendant may testify on her [own] behalf and this defendant did so. A defendant who does testify on her own behalf obviously has a deep personal interest in the outcome of her prosecution. It s fair to say that the interest which a defendant has in the outcome of the case is an interest which is possessed by no other witness. And such an interest creates a motive to testify falsely. And in appraising the credibility of a defendant who testified on her own behalf, you may take that into consideration. However, and I want to say that with as much force as I can muster, it by no means follows simply because a person has a vital interest in the outcome of her trial that she is not capable of telling a truthful and straightforward story. The defendant s 2 The record reveals that this $509.15 ticket was paid for in cash. 9 1 2 3 4 5 6 vital interest in the outcome of her case is not inconsistent with her ability to tell the truth. It s for you to decide what extent[,] if at all, her interest in the outcome of this trial has affected the color of her testimony. 7 The jury returned guilty verdicts on the two counts brought 8 against Brutus: importing five or more kilograms of cocaine, in 9 violation of 21 U.S.C. § 952, and possessing five or more 10 kilograms of cocaine with the intent to distribute, in violation 11 of 21 U.S.C. § 841(a). 12 principally to the mandatory minimum prison term of 120 months. 13 This appeal followed. The district court sentenced her DISCUSSION 14 15 I. The Challenged Instruction 16 Brutus argues that the district court committed reversible 17 error in instructing the jury on how to evaluate her testimony 18 because the instruction contains language that undermined the 19 presumption of innocence owed to her as the accused. 20 generally review challenged jury instructions de novo, reversing 21 only if the charge, taken as a whole, was prejudicial. 22 United States v. Bok, 156 F.3d 157, 160 (2d Cir. 1998). 23 We See Under our system of criminal justice, it is axiomatic and 24 elementary that defendants are entitled to a presumption of 25 innocence. 26 see Estelle v. Williams, 425 U.S. 501, 503 (1976). 27 the presumption, the Supreme Court has warned, courts must be Coffin v. United States, 156 U.S. 432, 453 (1895); 10 To implement 1 alert to factors that may undermine the fairness of the 2 fact-finding process. 3 to this admonishment has, on more than one occasion, required 4 that we place[] out of bounds practices that threaten to dilute 5 the presumption of innocence. 6 238, 245-46 (2d Cir. 2006); see, e.g., United States v. Dove, 916 7 F.2d 41, 46 (2d Cir. 1990) (finding that a jury instruction s use 8 of a hypothetical inquiry into whether Jack shot Mary, which 9 was intended to illustrate the concept of circumstantial Estelle, 425 U.S. at 503. Our adherence United States v. Gaines, 457 F.3d 10 evidence, was impermissible because it assumed Jack s guilt); 11 United States v. Oshatz, 912 F.2d 534, 539 (2d Cir. 1990) 12 (finding that while guilt-assuming hypothetical questions, posed 13 on cross-examination to a defendant s character witnesses, have 14 probative value in assessing the credibility of the witness, they 15 are prohibited because [they] create[] too great a risk of 16 impairing the presumption of innocence ). 17 Principally relying on Gaines, in which we discussed the 18 presumption of innocence in the interested-witness instruction 19 context, Brutus argues that reversible error lies in the district 20 court s instruction that Brutus had a deep personal interest in 21 [the case] . . . possessed by no other witness . . ., [which] 22 create[d] a motive to testify falsely. 23 that reversal is precluded by United States v. Tolkow, 532 F.2d 24 853 (2d Cir. 1976), which found language nearly identical to that 11 The government counters 1 challenged by Brutus to be unobjectionable. 2 that any untoward effect of the challenged language was 3 adequately balanced by other, more favorable language. 4 The government adds There is tension between Tolkow and Gaines. In Gaines, we 5 reviewed an interested-witness instruction relating to the 6 defendant s testimony that stated: 7 8 9 10 11 12 Obviously, the defendant has a deep personal interest in the result of his prosecution. This interest creates a motive for false testimony and, therefore, the defendants testimony should be scrutinized and weighed with care. Gaines, 457 F.3d at 242. 13 We criticized several aspects of this instruction. First, 14 we said that an instruction that the defendant has a motive to 15 testify falsely undermines the presumption of innocence, id. at 16 246, because it impermissibly presupposes the defendant s guilt, 17 id. at 247 ( The critical defect in a jury instruction that says 18 the defendant has a motive to lie is its assumption that the 19 defendant is guilty. ). 20 threat of dilution of the presumption of innocence, we . . . 21 direct[ed] district courts in the circuit not to charge juries 22 that a testifying defendant s interest in the outcome of the case 23 creates a motive to testify falsely. 24 1 2 3 4 In order to prevent [this] needless Id.3 Next, we were concerned about the instruction s statements 3 This opinion resolves the tension between United States v. Tolkow, 532 F.2d 853 (2d Cir. 1976), and United States v. Gaines, 457 F.3d 238 (2d Cir. 2006), the latter case having been decided after the instruction at issue in this case was delivered. 12 1 that the defendant had a deep personal interest in the outcome 2 of the trial and that his testimony should therefore . . . be 3 scrutinized and weighed with care. 4 original). 5 sufficiently dilute the presumption of innocence to constitute 6 reversible error. 7 these statements simply added to the error already identified in 8 the motive to lie instruction. 9 disapproved of jury instructions that highlight[] a testifying 10 defendant s deep personal interest in the outcome of a trial, 11 id., and urged district courts to refrain from using them, see 12 id. at 249. 13 whole was so unbalanced as to amount to reversible error. 14 at 250. Id. (alteration in We thought that such statements may, by themselves, We did not go that far, however, and held that Id. Nonetheless, we We concluded in Gaines that the charge viewed as a 15 In Tolkow, by contrast, we upheld an interested-witness 16 instruction regarding the defendant s testimony that stated: 17 18 19 20 21 22 23 24 25 Id. Obviously [the defendant] has a deep, personal interest in the result of his prosecution. Indeed, it is fair to say he has the greatest stake in its outcome. Interest creates a motive for false testimony; the greater the interest the stronger the motive, and a defendant s interest in the result of his trial is of a character possessed by no other witness. 26 532 F.2d at 859 n.3. (internal formatting ommitted). Recognizing the inconsistency between our ruling in Gaines 27 and our many decisions upholding interested-witness instructions 28 similar to that given in Tolkow, we explained in Gaines that: 13 1 This case involves (1) a preserved challenge to a charge that 2 (2) the defendant has a deep personal interest giving rise to (3) 3 a motive to lie and a resulting need to (4) carefully scrutinize 4 the defendant s testimony. 5 distinguished the many previously approved interested-witness 6 instructions on the basis that they lacked one of these factors4 7 specifically distinguishing Tolkow on the basis that the 8 instruction therein did not tell the jury to carefully 9 scrutinize the defendant s testimony. 10 457 F.3d at 250 n.10. We then Id. The instruction here is, as the government contends, 11 materially indistinguishable from the one given in Tolkow. Both 12 instructions contain statements about the defendant s deep 13 personal interest in the outcome of the case, which is held by no 14 other, and that such an interest creates a motive to testify 15 falsely; but the instructions, both in Tolkow and this case, lack 16 a careful scrutiny instruction. 17 Tolkow, the government would prevail on this issue. 1 2 3 4 5 6 7 8 9 10 11 12 13 4 Hence, were we to adhere to See United States v. Gleason, 616 F.2d 2, 15 (2d Cir. 1979) (instruction that interest creates, at least potentially, a motive for false testimony does not assume guilt) (internal quotation marks omitted); United States v. Vega, 589 F.2d 1147, 1154 (2d Cir. 1978) (no objection); United States v. Hernandez, 588 F.2d 346, 349-50 (2d Cir. 1978) (no objection); United States v. Rucker, 586 F.2d 899, 904 (2d Cir. 1978) (no objection); United States v. Floyd, 555 F.2d 45, 47 (2d Cir. 1977) (no careful scrutiny instruction); United States v. Martin, 525 F.2d 703, 706 (2d Cir. 1975) (no objection; no careful scrutiny instruction); United States v. Mahler, 363 F.2d 673, 678 (2d Cir. 1966) (no objection; no motive to lie instruction). 14 1 The principle underlying Gaines, however, leads us to now 2 reject the instruction we once approved in Tolkow and to overrule 3 that holding.5 4 defendant s interest in the outcome of the case creates a motive 5 to testify falsely impermissibly undermines the presumption of 6 innocence because it presupposes the defendant s guilt. 7 457 F.3d at 246-47. 8 instruction omits additional language specifically cautioning the 9 jury to carefully scrutinize and weigh the defendant s testimony. 10 Simply stated, an instruction that the Gaines, This is no less true where, as here, the We also cannot accept the government s contention that the 11 instruction s prejudicial language was balanced by other, more 12 favorable language. 13 an instruction that assumes the defendant s guilt is not cured 14 by a further charge that a defendant can still be truthful. 15 at 247. 16 rule that it is error to instruct the jury that a defendant s 17 interest in the outcome of the case creates a motive to testify 18 falsely; it follows that the charge at issue here was error, the 1 2 3 4 5 6 7 8 9 10 11 12 5 We made clear in Gaines that the defect in Id. Accordingly, with Gaines we established a prophylactic We also abandon our holding in Floyd to the extent that it is inconsistent with this opinion. See 555 F.2d at 47 (distinguished in Gaines as having no careful scrutiny instruction). We recognize that the law of the circuit doctrine dictates that we are bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court. United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004). We have therefore circulated this opinion to all active members of this court before filing. See, e.g., United States v. Gonzalez, 420 F.3d 111, 132 n.18 (2d Cir. 2005); United States v. Mincey, 380 F.3d 102, 103 n.1 (2d Cir. 2004) (per curiam). 15 1 prejudice from which was exacerbated by the district court s 2 reference to the defendant s deep personal interest. 3 See id. We caution our district courts that if the defendant has 4 testified, the charge should tell the jury to evaluate the 5 defendant s testimony in the same way it judges the testimony of 6 other witnesses. 7 district courts to the Seventh Circuit s pattern instruction.6 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 26 27 28 29 30 31 32 33 34 6 See id. at 249. As we did in Gaines, we refer 1.03 TESTIMONY OF WITNESSES (DECIDING WHAT TO BELIEVE) You are to decide whether the testimony of each of the witnesses is truthful and accurate, in part, in whole, or not at all, as well as what weight, if any, you give to the testimony of each witness. In evaluating the testimony of any witness, you may consider, among other things: . . . - the witness s intelligence; - the ability and opportunity the witness had to see, hear, or know the things that the witness testified about; - the witness s memory; - any interest, bias, or prejudice the witness may have; - the manner of the witness while testifying; and - the reasonableness of the witness s testimony in light of all the evidence in the case. [You should judge the defendant s testimony in the same way that you judge the testimony of any other witness.] Gaines, 457 F.3d at 249 n.8 (alteration in original); see also Pattern Criminal Federal Jury Instructions for the Seventh Circuit 4 (1998), available at 16 1 Moreover, if the district court wishes to use additional charging 2 language, we see no problem with the one given in Gaines, 3 stripped of its prejudicial language, id. at 249 & n.9.7 4 II. Harmless Error 5 The government argues that the foregoing error was harmless. 6 Brutus counters that the instruction was harmful because it 7 put [her] at a clear disadvantage with respect to the conflicts 8 between her testimony and that of the government s witnesses. 9 The crucial point in this regard, Brutus maintains, was the 10 contrast between [her] testimony that she had been told she could 11 receive a ten-year sentence and be taken away from her children, 12 which caused her to falsely confess in order to cooperate and 13 obtain a lower sentence, and the agent s testimony that he raised 14 these matters only after [she] confessed. 15 1 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Because the district court s error affected the presumption http:\\www.ca7.uscourts.gov\pjury.pdf. 7 This charge would read: The defendant in a criminal case never has any duty to testify or come forward with any evidence. This is because, as I have told you, the burden of proof beyond a reasonable doubt remains on the government at all times, and [the defendant] is presumed innocent. In this case, [the defendant] did testify and he was subject to cross-examination like any other witness. You should examine and evaluate the testimony just as you would the testimony of any witness with an interest in the outcome of the case. Gaines, 457 F.3d at 249 n.9 (alterations in original). 17 1 of innocence, and was therefore constitutional error, see 2 Estelle, 425 U.S. at 503 ( The presumption of innocence, although 3 not articulated in the Constitution, is a basic component of a 4 fair trial under our system of criminal justice. ); Gaines, 457 5 F.3d at 245, the standard for harmlessness is the familiar one 6 established by Chapman v. California, 386 U.S. 18 (1967): 7 [B]efore a federal constitutional error can be held harmless, 8 the court must be able to declare a belief that it was harmless 9 beyond a reasonable doubt. Id. at 24. This requires a negative 10 answer to whether there is a reasonable possibility that the 11 [error] complained of might have contributed to the conviction. 12 Id. (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963)). 13 Where, as here, the error was preserved, the burden of 14 establishing harmlessness is on the government. 15 Olano, 507 U.S. 725, 734 (1993); United States v. Quattrone, 441 16 F.3d 153, 181 (2d Cir. 2006). United States v. 17 Based on the evidence presented at trial, it is plain that 18 under the Chapman standard the error in the instruction did not 19 contribute to Brutus convictions. 20 Even assuming that the jury would have credited Brutus testimony 21 that the agents informed her of the possible time she faced 22 before she gave her confession, we are confident that the jury 23 would have rejected the balance of her trial testimony in favor 24 of the version in her confession. 18 This was not a close case. Not only was the veracity of 1 her confession inherently plausible, her contrary story at trial 2 was manifestly incredible, prompting the experienced Judge 3 Glasser to note at sentencing that it was the most incredible 4 perjury I ve ever heard in any case I ve ever tried in this 5 court. 6 During Brutus initial airport interview, she gave a 7 particularized account of her involvement in smuggling the seized 8 cocaine. 9 leading questions. The details for her confession were not the product of To the contrary, Brutus volunteered to the 10 agents extensive information on who recruited her for the trip; 11 how much she was paid; and how she was to effect delivery of the 12 drugs in the United States. 13 delivery of the drugs failed, Brutus then told the agents her 14 back-up plan and provided them with her recruiter s telephone 15 number. 16 She told the agents how she met her recruiter; how a man told her 17 to change her flight destination from Miami to New York; and how 18 that man gave her the drugs on the morning of her flight to New 19 York. 20 because she needed money to pay her rent, which was corroborated 21 by rent notice slips found in her suitcase. 22 After the attempted controlled Her second airport interview was even more extensive. She further explained that she agreed to smuggle the drugs Brutus also volunteered her involvement in a prior drug 23 smuggling venture. She told the agents who arranged the trip; 24 how the drugs were concealed (in wooden voodoo statues); to whom 19 1 she delivered the drugs; and how much she was paid for her 2 efforts. 3 participants. 4 confessions as to the offenses of conviction and her prior drug 5 smuggling trip belies her contention that she made up these 6 stories to cooperate with authorities. 7 She also provided detailed descriptions of all the In sum, the exhaustive detail of the defendant s On the other hand, Brutus trial testimony of the events 8 leading up to her August 2005 arrival at JFK airport made 9 virtually no sense. She testified that she planned to stay with 10 Alina while applying for jobs, but she admitted that she had 11 never informed Alina that she would be arriving in August after 12 testifying that she had told Alina she would be coming in 13 September. 14 plans, but when asked why, her excuse was that the father of her 15 youngest child would not have given his permission. 16 at a loss to explain why the father s permission was necessary or 17 why it would not be forthcoming. 18 She denied that she ever informed her family of her Yet she was Lastly, the jury heard an absurd story regarding the 19 financing of Brutus airfare from Haiti to New York and from New 20 York to Miami. 21 the $509.15 ticket from Haiti to New York because she wanted 22 Brutus to deliver sandals to a friend. 23 Miami, Brutus story was that she expected Alina to pay for the 24 flight. Brutus implausibly claimed that Marjorie paid for 20 As for the return trip to 1 Faced with what Judge Glasser termed the most incredible 2 perjury, it is plain to us that an appropriate jury instruction 3 on assessing the defendant s testimony would have yielded exactly 4 the same result and that the error was therefore harmless beyond 5 a reasonable doubt. CONCLUSION 6 7 8 For the foregoing reasons, we AFFIRM the district court s judgment of conviction. 21

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