DECISIONS OF THE WEEK ENDED JANUARY 1, 2021

| Feb 2, 2021 | Ed Sapone’s Decisions of the Week

In this last week of the year, the Circuit released only a single opinion in a criminal case, United States v. Ho, which dealt with complicated Foreign Corrupt Practices Act questions.

In the state courts, AD2’s decision in Harris is worth a read. There, AD2 took the unusual step of reversing a post-remittal decision from Queens County Supreme Court Justice Ronald Hollie, finding that police officer testimony was incredible and had been tailored to meet constitutional objections.

Second Circuit

In United States v. Ho, CA2 affirmed defendant’s SDNY convictions, following a jury trial before Judge Loretta A. Preska, for conspiracy to violate the Foreign Corrupt Practices Act (FCPA), conspiracy to commit money laundering, substantive money laundering, and violations of the FCPA. CA2 rejected defendant’s contentions that (1) the evidence was insufficient to support his FCPA conviction (2) the district court erroneously instructed the jury that a violation of § 78dd-3 constituted specified unlawful activity that could support a money laundering conviction; (3) the wires at issue in his money laundering conviction did not go “to” or “from” the United States as required to convict; (4) the district court abused its discretion in admitting certain evidence at trial; and (5) the indictment was invalid because it contained material contradictions and charged him under mutually exclusive sections of the FCPA.

The indictment principally alleged that defendant, as an officer or director of a US-based non-governmental organization (NGO), paid bribes on behalf of a Chinese company—China CEFC Energy Company Limited (CEFC Energy)—a for-profit conglomerate based in Shanghai, to the leaders of Chad and Uganda in exchange for commercial advantages.

Defendant contended that the evidence did not support his convictions under 15 USC § 78dd-2 because no rational trier of fact could have found that he was acting to assist any domestic concern. Defendant argued that his actions were undertaken to benefit two foreign entities. According to defendant, at most, the jury could have found that he worked for a Hong Kong-based company, CEFC NGO, to arrange meetings between CEFC and Ugandan officials that benefited CEFC Energy, and that he worked on behalf of CEFC Energy to facilitate a sale in Chad. CA2 found, however, that defendant was properly convicted because there was sufficient evidence that he acted on behalf of a US NGO to assist it in obtaining business for CEFC Energy.

CA2 found that the court’s money laundering instructions were correct and the evidence supported those convictions. Defendant argued that the jury was improperly charged when it was told that a violation of § 78dd-3 could serve as the specified unlawful activity underlying his money laundering convictions pursuant to 18 U.S.C. § 1956(c)(7)(D). According to defendant, when Congress amended § 1956(c)(7) to add the Foreign Corrupt Practices Act as a specified unlawful activity, Congress was referring only to §§ 78dd-1 and 78dd-2, not § 78dd-3, which was added to the Foreign Corrupt Practices Act six years later, in 1998. CA2 found that § 1956(a) “plainly signals Congress’s intent to incorporate the full range” of felony violations under the FCPA. CA2 also rejected defendant’s challenge that the money laundering statute does not cover wire transfers where the United States is neither the point of origination nor the end destination for the money but is instead just an intermediate stop along the way.

CA2 also rejected defendant’s evidentiary challenges, including those to the admission of out-of-court statements and summary charts. CA2 found that the statements were admissible, variously, as adoptive admissions under Federal Rule of Evidence 801(d)(2)(B), as background to show “context and to tell the story,” and as “adopted” prior inconsistent statements. CA2 rejected defendant’s contention that the summary charts were erroneously admitted under Rule of Evidence 1006, because they were “created for the purpose of generating a narrative supporting the prosecution’s theory of the case.” CA2 found that the court’s instruction to the jury that the charts themselves did not constitute independent evidence and that it was the jury’s duty to first determine that they accurately reflected the evidence on which they were based was sufficient to alleviate any prejudice.

Finally, CA2 rejected defendant’s challenge to the indictment as repugnant because it contained contradictions between material allegations when it alleged that defendant was acting on behalf of a domestic concern in one count, while bringing charges that did not apply to domestic concerns in another. CA2 found that it was proper for the indictment to plead in the conjunctive without requiring that the government prove all possibilities at trial, and that sections 78dd-2 and 78dd-3 of the FCPA are not mutually exclusive.

CA2’s decision can be found here.

Appellate Division, Second Department

In People v. Abellard, AD2 modified defendant’s Rockland County convictions, affirming his third-degree assault conviction, but reversing his second-degree menacing conviction, finding the evidence of that charge insufficient.

A person is guilty of second-degree menacing when he “intentionally places or attempts to place another person in reasonable fear of physical injury . . . by displaying a deadly weapon [or] dangerous instrument” (Penal Law § 120.14[1]). Complainant testified that the defendant was not holding the knife, which was the subject of the menacing charge, in a menacing manner. And AD2 found that, even when viewing the evidence in the light most favorable to the People, the evidence did not establish that the defendant’s holding of the knife placed complainant in fear of physical injury.

AD2’s decision can be found here.

In People v. Cabrera, AD2 reversed defendant’s Orange County conviction for criminal possession of a controlled substance in the third degree, finding that his guilty plea was unknowing because County Court did not specify the period of post-release supervision to be imposed or, alternatively, the maximum potential duration of post-release supervision that could be imposed.

AD2’s decision can be found here.

In People v. Porter, AD2 reversed defendant’s Queens County controlled substance and weapon possession convictions, finding that the People erroneously failed to give CPL §710.30(1)(a) notice of their intention to offer at trial the testimony of a detective that the defendant’s physical act of unlocking a safe was in response to a request from police that the safe “needed to be opened.”  AD2 found that defendant’s act of typing in the combination to a safe, which was made in direct response to a detective’s request that the safe “needed to be opened,” was a statement made to a law enforcement officer which, if involuntarily made would render the evidence thereof suppressible upon motion pursuant to CPL §710.20(3).

AD2’s decision can be found here.

In People v. Harris, following a remittal directing Queens Supreme Court Justice Ronald D. Hollie to hold a new suppression hearing regarding evidence seized following a vehicle stop, AD2 reversed defendant’s criminal possession of a forged instrument conviction, finding that the police officers’ testimony about the stop was incredible.

Defendant was charged with possession of seven forged or stolen credit cards recovered from a car in which he was a passenger, including a burned credit card which officers claimed was in plain view on the center console of the car in which defendant was a passenger. Officers claimed not only that the card was in plain view, but also that, based on their training and experience, they were immediately able to determine that it was forged based on their visual observations alone. The People contended that, because the burned credit card was lawfully recovered under the plain-view doctrine, it, alone, gave the police probable cause to arrest defendant. A stack of credit cards, according to the People, was then lawfully recovered from defendant’s person as a search incident to lawful arrest.

AD2 rejected Supreme Court’s conclusion that the officers were credible. AD2 found that the officers’ versions of the incident conflicted with each other and could not both be simultaneously true. As described in detail in AD2’s decision, the versions of the incident given by the People’s witnesses differed in material respects at every stage of the investigation. Among other things, AD2 cited to an officer’s testimony that he could read the numbers on the card on the center console and see a stack of cards inside an envelope inside the defendant’s pocket, all while standing outside of the car. This testimony, on its face, AD2 found, was so improbable as to be unworthy of belief.

AD2’s decision can be found here.

Share This