14-1588-cr
United States v. Romano


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
17th day of November, two thousand and fifteen.

Present:
            PETER W. HALL,
            GERARD E. LYNCH,
                        Circuit Judges,
            JED S. RAKOFF,
                        District Judge.
____________________________________________________

UNITED STATES OF AMERICA,

                      Appellee,

               v.                                                           No. 14-1588-cr

JOSEPH ROMANO,


                      Defendant-Appellant.

____________________________________________________

For Defendant-Appellant:      DANIEL S. NOOTER, Esq., Washington, DC.




 The Honorable Jed Rakoff, of the United States District Court for the Southern District of New
York, sitting by designation.
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For Appellee:           UNA A. DEAN (David C. James, on the brief), Assistant United
                        States Attorneys, for William J. Hochul, United States Attorney for
                        the Western District of New York, Buffalo, NY.
____________________________________________________

       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Keenan, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant Joseph Romano was convicted by a jury of conspiring to murder a federal

judge and Assistant United States Attorney (“AUSA”), all in violation of 18 U.S.C. § 1117, in

retribution for their roles in convicting and sentencing him for offenses related to a previous coin

fraud scheme. According to the evidence presented at trial, the conspiracy took root when

Romano, who was serving a 180 month sentence for mail and wire fraud, informed a fellow

inmate of his desire to murder the judge and AUSA and mutilate their bodies. Based on this

information, law enforcement set up a sting operation involving an undercover officer who posed

as a contract killer. After paying the officer to assault a mechanic with whom he had a financial

dispute, Romano offered to pay $40,000 for the murder of the judge and AUSA. The murders,

of course, were never consummated. Romano was arrested, convicted, and sentenced, inter alia,

to life in prison for his crimes. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

       Romano contends that the district court erred in denying his motion to suppress

incriminating statements he made after being arrested, claiming that the arresting officers

violated his Miranda rights by tricking him into believing he was entering a cooperation

agreement with the government. See United States v. Romano, No. 12 CR. 691 JFK, 2013 WL

5278420, at **1, 6 (E.D.N.Y. Sept. 18, 2013). We review a district court’s determination

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regarding the constitutionality of a Miranda waiver de novo and its factual findings for clear

error. United States v. Bershchansky, 788 F.3d 102, 108 (2d Cir. 2015). In determining whether

a defendant’s confession was the product of coercion, the court considers “the accused’s

characteristics, the conditions of interrogation, and the conduct of law enforcement officials.”

United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991). Further, “[r]egardless of whether [an]

agent’s statements were false, misleading, or intended to trick and cajole the defendant into

confessing, specific findings must be made that under the totality of the circumstances . . . the

defendant’s will was overborne by the agent’s conduct.” Id.

       It was not error, much less clear error, for the trial court to find that there was “simply no

evidence whatsoever of deceit by the agents.” Romano, 2013 WL 5278420, at *6. The court

noted that the agents did not actively question Romano until after he was transported from his

prison cell to the FBI field office. Id. Further, Romano was informed of his Miranda rights both

orally and in writing, and signed a written waiver that required him to initial next to each of the

rights he was waiving. Id. at **5–6. The court credited the agent’s testimony at the suppression

hearing that Romano appeared to be calm and understood what was happening and found

Romano’s assertions to the contrary to be incredible. Id. at *6. Such “[c]redibility

determinations are the province of the trial judges, and should not be overruled on appeal unless

clearly erroneous.” United States v. Yousef, 327 F.3d 56, 124 (2d Cir. 2003).

       The court further noted that, although the agents had suggested that cooperation would be

in Romano’s interest because “it would be made known to the prosecutors and the judge,”

Romano, 2013 WL 5278420, at *6, it is well established that promises of leniency, without more,

do not render a confession involuntary. United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995)

(“Generally, promises of leniency will not render a confession involuntary.”); United States v.



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Bye, 919 F.2d 6, 8–9 (2d Cir. 1990) (emphasizing that voluntariness of waiver is a

“comprehensive inquiry” and that mentioning the benefits of cooperation is not per se coercive);

United States v. Guarno, 819 F.2d 28, 31 (2d Cir.1987) (“[A] confession is not involuntary

merely because the suspect was promised leniency if he cooperated with law enforcement

officials.”).

        Romano argues that his case is distinguishable from the foregoing cases because the

agents did not merely hold out a hope of leniency but led him to believe that he was entering a

formal cooperation agreement. Romano contends the officers’ actions violated the spirit of

Missouri v. Seibert, which prohibits “two-step” interrogation techniques designed to deliberately

circumvent the requirements of Miranda. See Missouri v. Seibert, 542 U.S. 600, 618–22 (2004)

(Kennedy, J., concurring). Even if we were to extend Seibert’s holding to situations in which a

defendant is “tricked” by law enforcement into believing he is entering a cooperation agreement,

Romano has not presented any evidence that the agents deceived him. The purported agreement

signed by Romano makes no mention of a promise of leniency. It merely stated Romano’s

intention “to cooperate with the FBI and provide statements about crimes I know of and crimes

in which I was personally involved.” Romano, 2013 WL 5278420, at *3. Aside from this signed

statement, there is no other evidence to support Romano’s claims.

        Romano further contends that the trial court’s jury instructions on his entrapment defense

were legally erroneous and confusing to the jury. We review challenges to jury instructions de

novo. United States v. Kopstein, 759 F.3d 168, 172 (2d Cir. 2014). “Instructions are erroneous if

they mislead the jury as to the correct legal standard or do not adequately inform the jury of the

law.” Id. (internal quotation omitted).




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       Entrapment is an affirmative defense with two elements: “(1) government inducement of

the crime, and (2) lack of predisposition on the defendant’s part.” United States v. Bala, 236

F.3d 87, 94 (2d Cir. 2000). To establish inducement, a defendant must show “that it was the

government, not he, that originated ‘the criminal design.’” United States v. Brand, 467 F.3d 179,

189 (2d Cir. 2006) (quoting Jacobson v. United States, 503 U.S. 540, 548 (1992)). “If a

defendant presents credible evidence of government inducement, then the prosecutor must show

predisposition beyond a reasonable doubt.” Bala, 236 F.3d at 94. The court instructed the jury

that in order to prove his entrapment defense, Romano initially had the burden to show by “a

preponderance of the evidence that a government agent originated the criminal design” of the

crimes charged. If the jury so found, then the government would have the “burden to prove

beyond a reasonable doubt that prior to first being approached by government agents, the

defendant was ready and willing to commit the crime.” JA 157–58.

       Romano argues it was error to require the defense to show inducement by a

preponderance of the evidence. He also asserts that the court conflated the inducement and

predisposition prongs of the entrapment defense. These arguments are without merit. It is well

established in this circuit that “a defendant hoping to assert the entrapment defense bears the

burden of establishing inducement by a preponderance of the evidence.” Brand, 467 F.3d at 190.

To the extent that Romano asks us to overrule our prior precedents, we lack the power to do so;

only the Court sitting en banc may overrule our prior decisions.1 Lotes v. Hai Precision Indus.


       1
          It is misleading to compare our precedents to that of sister circuits that have required a
lower burden of production with respect to proving inducement, as those circuits have generally
adopted a more stringent definition of what constitutes government inducement. See United
States v. Mayfield, 771 F.3d 417, 431 (7th Cir. 2014) (comparing this circuit’s “expansive
understanding of inducement,” which “encompasses almost any government solicitation of the
crime,” with other circuits that “define[] inducement as requiring more than mere government
initiation or solicitation of the crime”).

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Co., 753 F.3d 395, 405 (2d Cir. 2014). Moreover, Romano’s assertion that the court blurred the

inducement and predisposition prongs of the entrapment defense is simply not supported by the

record. Testimony from a government informant regarding Romano’s intentions and his detailed

planning of the crime prior to the government’s involvement is relevant to prove both Romano’s

predisposition to commit the crime and a lack of government inducement.

       In any event, the evidence that Romano was not induced by the government and that he

was predisposed to commit the crime was overwhelming. See United States v. Kozeny, 667 F.3d

122, 130 (2d Cir. 2011) (“An error is harmless if it is clear beyond a reasonable doubt that a

rational jury would have found the defendant guilty absent the error.” (internal alterations and

quotation marks omitted)). For the inducement prong, the jury heard testimony that Romano had

discussed his plans for revenge prior to any government involvement and that Romano himself

had admitted to law enforcement that the murder plot “was his idea.” GA066. A rational jury

would have concluded that Romano, and no one else, initiated the conspiracy. Further, there was

overwhelming evidence that Romano was predisposed to committing the crime, including his

enthusiasm and prompt positive response when offered assistance in committing the murders and

his behavior in threatening to kill a witness in his prior coin fraud case. See Bala, 236 F.3d at

93–94 (stating that government may prove disposition by showing defendant’s “previously

formed design to commit the crime” or his “ready response” to government’s inducement).

Thus, any error was harmless.

       For these reasons, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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