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February 16, 2017
  United States v. Barret
Headline: Second Circuit Rules That Testimony of a Former Co-Defendant Who Pleads Guilty During Trial is Admissible During the Same Trial, With Appropriate Precautions

Area of Law: Criminal

Issue Presented: Whether the testimony of a former co-defendant who switches his plea to guilty and agrees midtrial to testify against the remaining co-defendants is admissible, provided that steps are taken to avoid undue prejudice to the remaining defendants.

Brief Summary:
This case developed from a joint investigation by the United States Postal 5 Inspection Service, the Drug Enforcement Administration ("DEA"), and the New York City and New York State Police Departments, into the activities of a large-scale marijuana distribution organization in Queens, New York known as the "Fatherless Crew." The Fatherless Crew is alleged to have run its operation out of the Barret residence in Jamaica, Queens, one other residential property, and several commercial mail receiving agencies ("CMRAs") located in Queens. The first four days of trial consisted primarily of testimony by the case agent, after which one defendant entered into proffer talks with the government. He then entered into a cooperation agreement with the government and changed his plea from innocent to guilty on January 17, 2012. That same day, the government advised the court and defense counsel of its intention to add the now-cooperating defendant to its witness list. The remaining co-defendants were convicted in the United States District Court for the Eastern District of New York, and they appealed. The Second Circuit joined the Third and Seventh Circuits in holding that a district court may allow such testimony, provided that it takes appropriate steps to avoid causing unfair prejudice to the remaining co¿defendants. To read the full opinion, please visit http://www.ca2.uscourts.gov/de...abfc524b541/2/hilite/

Significance, if Any: Issue of first impression in the Second Circuit.

Extended Summary: On October 5, 2010, ten packages weighing roughly 120 kilograms were sent from Arizona to three CMRAs in Flushing. Investigators observed Wilson pick up nine of the boxes and deliver them to the Barret residence. Investigators later discovered the tenth box at another CMRA in Flushing, and seized 10.63 kilograms of marijuana from the box. In addition, on August 19, September 2, and 23, 2010, investigators conducted "trash pulls" of garbage left outside the Barretr residence and discovered bags containing remnants of marijuana, bags with marijuana residue and rubber bands.

Following Barret's arrest, a New York Police Department SWAT team executed a search warrant at the Barret residence. The police also arrested Scarlett, Forrest and several others. During their search of the residence, investigators discovered an open box, along with one bale of marijuana on the kitchen counter and another bale on the floor. Investigators also opened the remaining unopened parcels and found more 13 bales of marijuana. The total weight of the marijuana recovered from the packages exceeded 95.7 kilograms. Investigators recovered approximately 20.4 kilograms more of marijuana elsewhere in Barret's house.

The first four days of trial in the United States District Court for the Eastern District of New York consisted primarily of testimony by the case agent, after which Forrest entered into proffer talks with the government. He entered into a cooperation agreement with the government and changed his plea from innocent to guilty on January 17, 2012. That same day, the government advised the court and defense counsel of its intention to add Forrest to its witness list.

Scarlett, Mitchell, and co-defendant Ryan Anderson objected and moved to exclude Forrest's testimony, arguing: (1) Forrest participated in defense strategy before entering into his cooperation agreement, enabling him to report on such strategies to the government in violation of the co-defendants' Sixth Amendment rights to counsel; (2) Forrest was present at trial for the testimony of the government's first witness, violating Rule 615 of the Federal Rules of Evidence which requires the exclusion of witnesses from the courtroom; and (3) Forrest's testimony would likely refute assertions made during the defense's opening and arguments that were critical to the defense. Nonetheless, the testimony was admitted and the defendants were ultimately convicted.

On appeal, the Second Circuit noted that "the question of whether a district court may permit the testimony of co-defendants who change their pleas to guilty mid-trial and testify for the government is a question of first impression in our Circuit." The court ruled: "We join our sister Circuits in holding that a district court may allow such testimony, but must take appropriate steps to avoid causing unfair prejudice to the remaining co-defendants.

The court then explained what those "appropriate steps" involve. First, the district court must ensure that the testimony of the former co-defendant is admitted "only for the limited purpose of testifying to events other than the witness's involvement in joint defense planning," so that no testimony is given about the defense strategy. Second, the district court must "deliver adequate cautionary instructions to the jury to make certain that the jury does not draw any adverse or unfair inferences against the remaining co-defendants, does not use the former co-defendant's admission as guilt as evidence of the guilt of the remaining co-defendants, and does not give the former co-defendant's testimony undue weight." Here, the court approved of the jury instructions that the district court had given, and affirmed the conviction.
To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...efc17f8cf2d/1/hilite/

Panel (if known): Circuit Judges Pooler, Hall, and Carney

Argument Date: 1/6/16

Date of Issued Opinion: 2/15/17

Docket Number: Nos. 12¿4663(L), 13¿3800, 14¿573, 14¿2014

Decided: Affirmed

Case Alert Author: Belino Voshtina

Counsel: James M. Branden, New York, NY, for Defendant-Appellant Christopher Barret. Michael H. Sporn, New York, NY, for Defendant¿Appellant Omar Mitchell. Peter Tomao, Garden City, NY, for Defendant¿Appellant Leon Scarlett. Tyler J. Smith, Assistant United States Attorney (Amy Busa, Peter A. Norling, Assistant United States Attorneys, on the brief), for Robert L. Capers, United States Attorney for the Eastern District of New York, New York, NY, for Appellee.

Author of Opinion: Judge Pooler

Circuit: Second Circuit

Case Alert Circuit Supervisor: Professor Emily Gold Waldman

    Posted By: Emily Waldman @ 02/16/2017 04:46 PM     2nd Circuit  

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