     09-2732-cr
     United States v. Richard James and Ronald Mallay

 1                        UNITED STATES COURT OF APPEALS

 2                            FOR THE SECOND CIRCUIT

 3                               August Term, 2011

 4   (Argued: October 3, 2011; Final submission: July 16, 2012;*
 5          Decided: March 28, 2013; Errata Filed: May 1, 2013)

 6                     Docket Nos. 09-2732-cr, 09-2804-cr

 7                   -------------------------------------

 8                                 United States,

 9                                    Appellee,

10                                       - v -

11                      Richard James and Ronald Mallay,

12                            Defendants-Appellants.

13                   -------------------------------------

14   Before:     SACK and RAGGI, Circuit Judges, and EATON, Judge.**

15               Appeal from judgments of the United States District

16   Court for the Eastern District of New York (Sterling Johnson,

17   Judge) convicting defendants on various counts of an indictment

18   including murder, mail fraud, and murder in aid of racketeering,

19   and imposing mandatory life sentences.             We find no error in the

20   admission of an autopsy report and a toxicology report without

21   the presence of the individuals who prepared those reports


           *
             The Court's consideration of this appeal was suspended
     pending the Supreme Court's decision in Williams v. Illinois, 132
     S. Ct. 2221 (2012), and the parties' subsequent supplemental
     briefing directed to the significance, if any, of that decision
     here.
           **
             Judge Richard K. Eaton of the United States Court of
     International Trade, sitting by designation.
 1   inasmuch as they were not testimonial statements because they

 2   were not made with the primary purpose of creating a record for

 3   use at a criminal trial, and therefore did not require that the

 4   defendants have the opportunity to confront the authors of the

 5   reports.   We further conclude that: there was no error in the

 6   district court's decision to exclude the prosecutor's rebuttal

 7   statement in a prior, related trial; the district court did not

 8   abuse its discretion in disallowing as impeachment evidence

 9   statements made by a cooperating witness outside of the jury's

10   presence; the district court's denial of defendant Richard

11   James's severance motion did not warrant vacatur of the verdict;

12   there was no Sixth Amendment violation in the admission of

13   surreptitious recordings made by a government informant; it was

14   proper to admit that recording as a co-conspirator statement

15   against defendant Mallay; there was no error in denying a motion

16   for a new trial based upon post-trial allegations of

17   prosecutorial misconduct; and there was no cumulative error

18   warranting reversal.

19              Affirmed.   Judge Eaton concurs in a separate opinion.

20                              JAMES G. McGOVERN, Susan Corkery, Robert
21                              L. Capers, for Loretta E. Lynch, United
22                              States Attorney for the Eastern District
23                              of New York, Brooklyn, New York, for
24                              Appellee.

25                              STEVE ZISSOU, Esq., Bayside, New York,
26                              for Defendant-Appellant Richard James.

27                              MICHAEL K. BACHRACH, Esq., New York, New
28                              York, for Defendant-Appellant Ronald
29                              Mallay.


                                       2
 1   SACK, Circuit Judge:

 2               Richard James and Ronald Mallay appeal from judgments

 3   of conviction based on their participation in a wide-ranging

 4   conspiracy that involved fraudulently obtained life insurance

 5   policies for members of their extended families and others in the

 6   Guyanese and Guyanese-American community, and, in several

 7   instances, murder of the insured in order to collect on those

 8   policies.

 9                                BACKGROUND

10               After a jury trial in the United States District Court

11   for the Eastern District of New York (Sterling Johnson, Judge),

12   James and Mallay were each sentenced to mandatory terms of life

13   in prison after they were convicted of racketeering, in violation

14   of 18 U.S.C. § 1962(c); racketeering conspiracy, in violation of

15   18 U.S.C. § 1962(d); murder in aid of racketeering, in violation

16   of 18 U.S.C. § 1959(a)(1); conspiracy to commit murder in aid of

17   racketeering, in violation of 18 U.S.C. § 1959(a)(5); mail fraud,

18   in violation of 18 U.S.C. § 1341; conspiracy to commit mail

19   fraud, in violation of 18 U.S.C. § 371; and conspiracy to commit

20   money laundering, in violation of 18 U.S.C. § 1956(h).   In

21   addition, Mallay was convicted of murder for hire and conspiracy

22   to commit murder for hire, in violation of 18 U.S.C. § 1958.

23   James was also convicted of attempted murder for hire, in

24   violation of 18 U.S.C. § 1958, and solicitation of murder in aid

25   of racketeering, in violation of 18 U.S.C. §§ 373 and 1959(a)(1).



                                       3
 1   These charges revolved around the murders of four people: Vernon

 2   Peter, Alfred Gobin, Hardeo Sewnanan, and Basdeo Somaipersaud.

 3   While Mallay was charged in relation to all four murders, James

 4   was charged in connection with only the murders of Sewnanan and

 5   Somaipersaud.   Mallay was convicted on every count with which he

 6   had been charged; James was convicted on all counts with which he

 7   had been charged, with the exception of those alleging conspiracy

 8   and murder for hire in connection with the deaths of Sewnanan and

 9   Somaipersaud.   The defendants were eligible for the death

10   penalty, but because the jury was unable to reach a unanimous

11   verdict as to that punishment, a sentence of life imprisonment

12   was imposed.

13             On appeal, the defendants do not contest the

14   sufficiency of the evidence of insurance fraud.   The issues on

15   these appeals relate largely to the convictions of the defendants

16   for committing four murders that were allegedly part of this

17   scheme, and particularly the murders of Sewnanan and

18   Somaipersaud, both of whom were poisoned to death.   Accordingly,

19   we review only that evidence necessary to explain our decision to

20   affirm all counts of conviction.

21             Vernon Peter

22             In 1991, Mallay was convicted of theft from the postal

23   service, for which he worked as a postal carrier, and sentenced

24   to 15 months' imprisonment.   See Memorandum & Order, United

25   States v. James, No. 02 Cr 0778, 2009 WL 763612, at *1, 2009 U.S.

26   Dist. LEXIS 23706, at *3 (E.D.N.Y. Mar. 18, 2009) ("James I").

                                        4
 1   While Mallay was incarcerated, his mother died of a heart attack.

 2   Id.   Mallay blamed his arrest and conviction on his sister's

 3   husband, Vernon Peter, known as "Dilly."       Id.   He told his

 4   sister, Betty Peter, to keep Dilly's life insurance current

 5   because he planned to get even.    Id., 2009 U.S. Dist. LEXIS

 6   23706, at *4.   In 1993, after Mallay was released from prison, he

 7   asked his nephew Baskinand Motillal if he would kill Dilly for

 8   Mallay.   Id. at *2, 2009 U.S. Dist. LEXIS 23706, at *4.      Motillal

 9   declined but introduced Mallay to another person, to whom Mallay

10   paid $10,000 to commit the crime.      He also gave that person $500

11   with which to purchase a weapon.       Id.   That person in turn

12   recruited three others to help him carry out the murder.       Id.       On

13   the morning of July 28, 1993, the four murdered Dilly as he

14   walked out of his home.   Id.

15              Betty Peter collected $400,000 on an insurance policy

16   on Dilly's life.   Id., 2009 U.S. Dist. LEXIS 23706, at *5.        She

17   then loaned at least $60,000 of those proceeds to Mallay.1         Id.,

18   2009 U.S. Dist. LEXIS 23706, at *5.

19              Alfred Gobin

20              In September 1993, Mallay met with James, then an

21   insurance agent with MetLife, and Gulabie Gobin, Mallay's

           1
             Betty Peter and Baskinand Motillal's trials were severed
     from James and Mallay's trial. Peter was convicted of charges
     including obstructing the investigation into the murder of her
     husband in aid of racketeering, and sentenced principally to 60
     months' imprisonment. United States v. James, 322 F. App'x 32,
     32-33 (2d Cir. 2009). Peter cooperated with the government
     subsequent to her conviction, and testified at the trial leading
     to the convictions appealed here. Id. at 35.

                                        5
 1   longtime mistress.      Id., 2009 U.S. Dist. LEXIS 23706, at *6.

 2   James and Mallay persuaded Gobin to take out two insurance

 3   policies on her father, Alfred Gobin, who was murdered in Guyana

 4   in January 1996.       Id.   Gulabie and her family received more than

 5   $200,000 from the policies, and lent James and Mallay nearly

 6   $60,000.   Id.

 7              Basdeo Somaipersaud

 8              James encouraged a friend of his, Satyanand Arjun, to

 9   purchase an insurance policy on the life of Somaipersaud, a heavy

10   drinker who sometimes lived with Arjun.         Id., 2009 U.S. Dist.

11   LEXIS 23706, at *6-*7.        In October 1994, James obtained a

12   $100,000 policy on Somaipersaud's life, with double indemnity if

13   Somaipersaud died accidentally.         It named James's sister as a

14   beneficiary.     Id.

15              During the fall of 1997, James offered $10,000 to

16   Kenrick Hassan, a member of James's extended family, to kill

17   Somaipersaud.    Id.     Although Hassan declined the offer, on

18   January 23, 1998, Somaipersaud was found dead in a park in the

19   Borough of Queens, New York City.          The New York City Office of

20   the Chief Medical Examiner ("OCME") determined that Somaipersaud

21   had died of acute alcoholism in combination with a dose of the

22   drug chlorpromazine.2        Id.   James contacted Arjun to tell him of

          2
             Chlorpromazine [brand name: Thorazine] is used to
     "[t]reat[] mental disorders, severe behavior disorders, severe
     hiccups, severe nausea and vomiting, and certain types of
     porphyria. . . ." See PubMed Health,
     http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0009582/?report=deta
     ils (last visited Mar. 22, 2013).

                                            6
 1   Somaipersaud's death, which Arjun found surprising because he was

 2   not aware of any connection between James and Somaipersaud and

 3   because he had not spoken to James since he had purchased the

 4   insurance policy.    Id.    James's girlfriend and Arjun received

 5   insurance payments as a result of Somaipersaud's death.     Id.

 6               Hardeo Sewnanan

 7               In October 1996, James arranged for the purchase of two

 8   $250,000 life insurance policies for Hardeo Sewnanan, who was

 9   Mallay's nephew, with Betty Peter, Mallay's wife, and Mallay's

10   mistress's daughter named as beneficiaries.     Id., at *3, 2009

11   U.S. Dist. LEXIS 23706, at *8.     William Mallay, who shared an

12   address with the defendant Ronald Mallay, paid the premiums on

13   the policy.   Id.    In 1999, Ronald Mallay asked Kenrick Hassan to

14   kill Sewnanan, who again declined to do so.     This time he put

15   Mallay in touch with Kenrick's brother, Derick Hassan.     Id.

16   Mallay traveled to Guyana to meet with Derick, paying him $10,000

17   to kill Sewnanan.    But Derick Hasan ultimately decided not to do

18   so.   Id.   Mallay later told Derick that he had hired others to

19   commit the murder.    Id.

20               On January 8, 1999, Sewnanan died in Guyana of what the

21   Guyanese medical examiner determined to be ammonia poisoning.

22   Id.; see also Memorandum & Order, United States v. James, No. 02

23   Cr 0778, 2007 WL 2702449, at *1, 2007 U.S. Dist. LEXIS 67538, at

24   *2 (E.D.N.Y. Sept. 12, 2007) ("James II").      Mallay collected

25   $400,000 on the policy on Sewnanan's life.     James I, 2009 WL

26   763612, at *3, 2009 U.S. Dist. LEXIS 23706, at *8.

                                         7
 1              Appeals

 2              The defendants raise eight separate issues on their

 3   appeals:   First, whether a new trial is required based on the

 4   district court's error under the Sixth Amendment’s Confrontation

 5   Clause in admitting forensic reports relating to the deaths of

 6   Sewnanan and Somaipersaud -- specifically, the issues are whether

 7   one member of the OCME was properly allowed to testify regarding

 8   an autopsy conducted by another member of that office in which

 9   the witness had not participated, and whether a medical examiner

10   from Guyana was properly allowed to testify to the results of

11   toxicology tests which he had ordered but did not conduct;

12   second, whether the district court erred in excluding the

13   prosecution's statement in the prior criminal trial of Betty

14   Peter, a cooperating witness in the current trial, suggesting

15   greater culpability on her part for Vernon Peter's murder; third,

16   whether the district court abused its discretion in refusing to

17   permit the defendants to impeach Betty Peter's testimony with

18   prior inconsistent statements; fourth, whether James is entitled

19   to a new trial because the district court's refusal to order

20   severance deprived him of a fair trial; fifth, whether the

21   defendants had been deprived of a fair trial because of the

22   district court's refusal to suppress statements elicited from

23   James by a government informant after James's indictment; sixth,

24   whether the district court erred in admitting, against Mallay as

25   a coconspirator, recorded statements of James made

26   surreptitiously by a third party; seventh, whether the district

                                      8
 1   court erred in denying a new trial based on allegations by a

 2   cooperating witness of prosecutorial misconduct and coercion; and

 3   eighth, whether there has been cumulative error sufficient to

 4   warrant a new trial.

 5                               DISCUSSION

 6             I.   The Confrontation Clause

 7             The defendants raise two separate Confrontation Clause

 8   issues on their appeals.   First, they contend that one member of

 9   the OCME could not constitutionally have been permitted to

10   testify as to the results of Somaipersaud's autopsy, which was

11   conducted by another member of that office.   Second, they urge

12   that allowing the Guyanese medical examiner who conducted

13   Sewnanan's autopsy to testify to the results of forensic tests

14   conducted by a colleague ran afoul of the Confrontation Clause.

15             The Sixth Amendment provides, among other things, that

16   "[i]n all criminal prosecutions, the accused shall enjoy the

17   right . . . to be confronted with the witnesses against him."

18   U.S. Const. amend. VI.   The landscape of Confrontation Clause

19   jurisprudence has changed considerably since the Supreme Court's

20   decision in Crawford v. Washington, 541 U.S. 36 (2004).     Even

21   after Crawford, however, this court reaffirmed its settled

22   holding that autopsy reports could be admitted as business

23   records without violating the Confrontation Clause.   See United

24   States v. Feliz, 467 F.3d 227, 230 (2d Cir. 2006).    Defendants

25   urge us to reconsider this precedent in light of Supreme Court



                                      9
 1   decisions since Feliz limning the contours of what constitutes a

 2   "testimonial" statement in the context of a laboratory analysis.

 3   See Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011); Melendez-

 4   Diaz v. Massachusetts, 557 U.S. 305 (2009).     We conclude that

 5   even if these cases cast doubt on any categorical designation of

 6   certain forensic reports as admissible in all cases, the autopsy

 7   reports in this case are nevertheless not testimonial –- and

 8   therefore do not implicate the Confrontation Clause –- because

 9   they were not created "for the purpose of establishing or proving

10   some fact at trial."   Melendez-Diaz, 557 U.S. at 324; see also

11   Bullcoming, 131 S. Ct. at 2719-20 (Sotomayor, J., concurring)

12   ("When the 'primary purpose' of a statement is 'not to create a

13   record for trial,' 'the admissibility of the statement is the

14   concern of state and federal rules of evidence, not the

15   Confrontation Clause.'" (quoting Bryant, 131 S. Ct. at 1155)).

16             A.   Confrontation Clause post-Crawford

17             In Crawford, the Court considered whether a tape-

18   recorded statement to police made by the wife of a man being

19   prosecuted for stabbing another man could be entered into

20   evidence against the alleged perpetrator even though he had no

21   opportunity to cross-examine the witness.   She could not be

22   compelled to testify against her husband under the state's

23   marital privilege.

24             The Court's analysis relied heavily on the

25   Confrontation Clause's historical background.    The Court

26   explained that the Confrontation Clause was designed to protect

                                     10
 1   against the "principal evil" of using ex parte statements against

 2   the accused.   Id. at 50.    Thus, the proper Confrontation Clause

 3   inquiry should focus not on reliability as contemplated by the

 4   law of evidence, but on the “witnesses against the accused - in

 5   other words, those who bear testimony.” See id. at 51.     The

 6   Crawford Court determined that the statement at issue was

 7   "testimonial," having been made against an identified suspect

 8   while the witness herself was in police custody, and therefore

 9   either confrontation, or unavailability and a prior opportunity

10   for cross-examination, was required.    Id. at 65-66.   But the

11   Court "le[ft] for another day any effort to spell out a

12   comprehensive definition of 'testimonial,'" to which its rule

13   applied.   Id. at 68.    In any event, "[w]hatever else the term

14   covers, it applies at a minimum to prior testimony at a

15   preliminary hearing, before a grand jury, or at a former trial;

16   and to police interrogations.    These are the modern practices

17   with the closest kinship to the abuses at which the Confrontation

18   Clause was directed."3    Id.


          3
             Elsewhere in Crawford, the Court offered a more complete
     definition of "testimonial":
                Various formulations of this core class of
                "testimonial" statements exist: ex parte
                in-court testimony or its functional
                equivalent –- that is, material such as
                affidavits, custodial examinations, prior
                testimony that the defendant was unable to
                cross-examine, or similar pretrial statements
                that declarants would reasonably expect to be
                used prosecutorially . . . extrajudicial
                statements . . . contained in formalized
                testimonial materials, such as affidavits,

                                       11
 1              In Feliz, we concluded, in light of Crawford, that

 2   "autopsy reports are not testimonial . . . and, thus, do not come

 3   within the ambit of the Confrontation Clause[.]"    Feliz, 467 F.3d

 4   at 229.   We examined a situation raising issues strikingly

 5   similar to those raised here -– one member of the OCME testified

 6   as to the findings of another member, and the testifying medical

 7   examiner had not participated in the autopsy at issue.     Id.   We

 8   remarked upon the sea change that Crawford brought about, but

 9   reasoned that it had "declined to 'spell out a comprehensive

10   definition of 'testimonial.'"   Feliz, 467 F.3d at 232 (quoting

11   Crawford, 541 U.S. at 68).   Crawford, we explained, "indicated

12   that a statement produced through the 'involvement of government

13   officers' and with an 'eye towards trial' is testimonial because

14   it 'presents a unique potential for prosecutorial abuse –- a fact

15   borne out time and again through a history with which the Framers

16   were keenly familiar.'"   Feliz, 467 F.3d at 232 (quoting

17   Crawford, 541 U.S. at 56 n.7) (brackets omitted).    We observed

18   that among the classes of statements that Crawford concluded


                depositions, prior testimony, or confessions;
                [and] statements that were made under
                circumstances which would lead an objective
                witness reasonably to believe that the
                statement would be available for use at a
                later trial. These formulations all share a
                common nucleus and then define the Clause's
                coverage at various levels of abstraction
                around it. Regardless of the precise
                articulation, some statements qualify under
                any definition -- for example, ex parte
                testimony at a preliminary hearing.
     Id. at 51-52 (citations and internal quotation marks omitted).

                                     12
 1   would be testimonial were those "made under circumstances which

 2   would lead an objective witness reasonably to believe that the

 3   statement would be available for use at a later trial."    Id. at

 4   233 (quoting Crawford, 467 F.3d at 52).

 5              We concluded that autopsy reports would nonetheless be

 6   admissible as business records under Federal Rule of Evidence

 7   803(6) because "a business record is fundamentally inconsistent

 8   with what the Supreme Court has suggested comprise the defining

 9   characteristics of testimonial evidence."    Feliz, 467 F.3d at

10   233-34.   Because the business records exception "requires

11   business records to be kept in the regular course of a business

12   activity, records created in anticipation of litigation do not

13   fall within its definition."   Id. at 234.

14              We rejected the argument that "autopsy reports must be

15   testimonial because a medical examiner preparing such a report

16   must have a reasonable expectation the reports may be available

17   for use in a subsequent trial."    Id.   Because "the Supreme Court

18   did not opt for an expansive definition [of testimonial] that

19   depended on a declarant's expectations," we said, "we are

20   hesitant to do so here."   Id. at 236.    We concluded that business

21   records fell outside Crawford's definition of testimonial "even

22   where the declarant is aware that it may be available for later

23   use at trial," Feliz, 467 F.3d at 236, and that autopsy reports

24   were business records within the meaning of Rule 803(6), as

25   thousands of autopsies were conducted every year "without regard

26   to the likelihood of their use at trial."    Id.   We further

                                       13
 1   concluded that autopsy reports would be equally admissible as

 2   public, rather than business, records because Rule 803(8)(A)-(B),

 3   which defines public records, excludes documents prepared in

 4   anticipation of litigation and matters observed by police

 5   officers.   Id. at 237.    "These factors suggest that public

 6   records, like business records, 'bear[] little resemblance to the

 7   civil-law abuses the Confrontation Clause targeted.'"       Id.

 8   (quoting Crawford, 541 U.S. at 51).

 9               In 2009, however, the Supreme Court cast doubt on our

10   post-Crawford jurisprudence in this area.    In Melendez-Diaz v.

11   Massachusetts, 557 U.S. 305 (2009), the Court concluded that

12   "certificates of analysis" identifying a seized substance as an

13   illicit drug should not have been introduced against the

14   defendant absent an opportunity for the defendant to confront the

15   person who prepared the certificate.    The Melendez-Diaz Court

16   reached this conclusion in part because the certificates "are

17   quite plainly affidavits: declarations of facts written down and

18   sworn to by the declarant before an officer authorized to

19   administer oaths."   Id. at 310 (internal quotation marks

20   omitted).   "The 'certificates' are functionally identical to

21   live, in-court testimony, doing 'precisely what a witness does on

22   direct examination.'"     Id. at 310-11 (quoting Davis v.

23   Washington, 547 U.S. 813, 830 (2006)).    "We can safely assume

24   that the analysts were aware of the affidavits' evidentiary

25   purpose, since that purpose –- as stated in the relevant state-

26   law provision –- was reprinted on the affidavits themselves."

                                       14
 1   Id. at 311.   The Court once again declined to spell out a

 2   comprehensive definition of testimonial.

 3             The Melendez-Diaz Court rejected the government's

 4   argument that the evidence should be admitted because it was a

 5   business record –- the hearsay exception upon which we relied in

 6   Feliz –- because that exception had never applied "if the

 7   regularly conducted business activity is the production of

 8   evidence for use at trial."   Id. at 321.   The Court concluded:

 9             Business and public records are generally
10             admissible absent confrontation, not because
11             they qualify under an exception to the
12             hearsay rules, but because -- having been
13             created for the administration of an entity's
14             affairs and not for the purpose of
15             establishing or proving some fact at trial --
16             they are not testimonial. Whether or not
17             they qualify as business or official records,
18             the analysts' statements here -- prepared
19             specifically for use at petitioner's trial --
20             were testimony against petitioner, and the
21             analysts were subject to confrontation under
22             the Sixth Amendment.

23   Id. at 324.
24
25             Justice Kennedy, in dissent, criticized the majority

26   for "disregard[ing] a century of jurisprudence" in favor of

27   "formalistic and wooden rules, divorced from precedent, common

28   sense, and the underlying purpose of the Clause."   Id. at 330-31

29   (Kennedy, J., dissenting).    In explaining why the analyst reports

30   at issue did not implicate the Confrontation Clause, Justice

31   Kennedy asserted:

32             First, a conventional witness recalls events
33             observed in the past, while an analyst's
34             report contains near-contemporaneous
35             observations of the test. . . . Second, an

                                      15
 1              analyst observes neither the crime nor any
 2              human action related to it. . . . The
 3              analyst's distance from the crime and the
 4              defendant, in both space and time, suggests
 5              the analyst is not a witness against the
 6              defendant in the conventional sense. Third,
 7              a conventional witness responds to questions
 8              under interrogation. . . . Put differently,
 9              out-of-court statements should only "require
10              confrontation if they are produced by, or
11              with the involvement of, adversarial
12              government officials responsible for
13              investigating or prosecuting crime."


14   Id. at 345-46 (quoting Carolyn Zabrycki, Comment, Toward a

15   Definition of "Testimonial": How Autopsy Reports Do Not Embody

16   the Qualities of a Testimonial Statement, 96 Cal. L. Rev. 1093,

17   1118 (2008)).

18              In Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011),

19   the question presented was whether a "certificate of analyst"

20   containing the results of a blood-alcohol test administered

21   pursuant to a DUI arrest required the testimony of the analyst

22   who conducted the gas chromatograph test.   Id. at 2710-11.   The

23   trial court had admitted the test as a business record, and

24   allowed its introduction through the testimony of "an analyst who

25   did not sign the certification or personally perform or observe

26   the performance of the test reported in the certification."   Id.

27   at 2713.   The Court rejected the suggestion that the report was

28   nontestimonial:

29              In all material respects, the laboratory
30              report in this case resembles those in
31              Melendez-Diaz. Here, as in Melendez-Diaz, a
32              law-enforcement officer provided seized
33              evidence to a state laboratory required by
34              law to assist in police investigations. Like

                                     16
 1             the analysts in Melendez-Diaz, [the analyst]
 2             tested the evidence and prepared a
 3             certificate concerning the result of his
 4             analysis. Like the Melendez-Diaz
 5             certificate, [the certificate here] is
 6             "formalized" in a signed document. . . . In
 7             sum, the formalities attending the "report of
 8             blood alcohol analysis" are more than
 9             adequate to qualify [the analyst's]
10             assertions as testimonial.

11   Id. at 2717 (citations omitted).

12             Justice Sotomayor concurred, relying largely on a

13   Confrontation Clause opinion she had written earlier in the term

14   in Michigan v. Bryant, 131 S. Ct. 1143 (2011) (concluding that

15   statements made by a dying man to police could be admitted

16   without requiring confrontation).    "To determine if a statement

17   is testimonial, we must decide whether it has 'a primary purpose

18   of creating an out-of-court substitute for trial testimony.'

19   When the 'primary purpose' of a statement is 'not to create a

20   record for trial,' 'the admissibility of the statement is the

21   concern of the state and federal rules of evidence, not the

22   Confrontation Clause.'"   Bullcoming, 131 S. Ct. at 2720

23   (Sotomayor, J., concurring) (quoting Bryant, 131 S. Ct. at 1155).

24   Noting that Bullcoming was "not a case in which the State

25   suggested an alternate purpose, much less an alternate primary

26   purpose, for the BAC report," such as to provide for medical

27   treatment, Justice Sotomayor concluded that the primary purpose

28   "is clearly to serve as evidence" and its introduction without

29   confrontation was therefore in error.   Id. at 2722-23.




                                     17
 1              Last term, in Williams v. Illinois, 132 S. Ct. 2221

 2   (2012), the Court returned to consideration of the Confrontation

 3   Clause, this time to determine whether it was a violation to

 4   allow an expert to testify in a rape case that "a DNA profile

 5   produced by an outside laboratory, Cellmark, matched a profile

 6   produced by the state police lab using a sample of petitioner's

 7   blood."   Id. at 2227.   The defendant argued that the expert "went

 8   astray when she referred to the DNA profile provided by Cellmark

 9   as having been produced from semen found on the victim's vaginal

10   swabs," even though she did not conduct or observe any of the

11   work that Cellmark had done in deducing a male DNA profile.    Id.

12   at 2227, 2230.    The Court came to no clear consensus as to what

13   constituted a testimonial statement in this context, however,

14   issuing a plurality opinion, two concurrences, and a dissent.

15              The plurality opinion by Justice Alito, joined by Chief

16   Justice Roberts, Justice Kennedy, and Justice Breyer -- the

17   dissenters in Melendez-Diaz and Bullcoming -- concluded that the

18   testimony did not run afoul of the Confrontation Clause using two

19   separate paths.   First, it noted that "[i]t has long been

20   accepted that an expert witness may voice an opinion based on

21   facts concerning the events at issue in a particular case even if

22   the expert lacks first-hand knowledge of those facts."   Id. at

23   2233.   Under the Illinois and federal rules, "an expert may base

24   an opinion on facts that are 'made known to the expert at or

25   before the hearing,'" even if those facts themselves are



                                      18
 1   inadmissible.    Id. at 2234 (quoting Ill. R. Evid. 703; Fed. R.

 2   Evid. 703).

 3                While in a jury trial the expert would be prohibited

 4   from disclosing those underlying facts, in a bench trial, such as

 5   that in Williams, the judge would be trusted to understand that

 6   those facts were not offered for their truth.    Id.   at 2234-35.

 7   The plurality concluded that "it is clear that the putatively

 8   offending phrase . . . was not admissible for the purpose of

 9   proving the truth of the matter asserted," and "there is no

10   reason to think that the trier of fact took [the testimony] as

11   substantive evidence to establish where the DNA profiles came

12   from."   Id. at 2237.    Because other evidence also established the

13   origin of the DNA profile, and because the trial judge was

14   presumed not to have considered the evidence for its truth, the

15   plurality concluded that there had been no Confrontation Clause

16   violation.    Id. at 2240.   The plurality noted that in Bullcoming

17   and Melendez-Diaz, "there is no question" but that the test

18   results were offered for their truth, whereas in Williams, the

19   report was offered "only for the distinctive and limited purpose

20   of seeing whether it matched something else."    Id. at 2240

21   (internal quotation marks omitted).

22                The plurality next considered whether, even if the

23   testimony had been offered for its truth, there would have been

24   no Confrontation Clause violation.     "The abuses that the Court

25   has identified as prompting the adoption of the Confrontation

26   Clause shared the following two characteristics: (a) they

                                       19
 1   involved out-of-court statements having the primary purpose of

 2   accusing a targeted individual of engaging in criminal conduct

 3   and (b) they involved formalized statements such as affidavits,

 4   depositions, prior testimony, or confessions."   Id. at 2242.     The

 5   plurality asserted that "[t]he Cellmark report is very different

 6   from the sort of extrajudicial statements, such as affidavits,

 7   depositions, prior testimony, and confessions, that the

 8   Confrontation Clause was originally understood to reach.    The

 9   report was produced before any suspect was identified.     The

10   report was sought not for the purpose of obtaining evidence to be

11   used against petitioner, who was not even under suspicion at the

12   time, but for the purpose of finding a rapist who was on the

13   loose."   Id. at 2228.   The plurality concluded that the admission

14   of the report did not run afoul of the Confrontation Clause

15   because these purposes were not of the same type that the clause

16   had been enacted to protect against.   Id.

17              In a concurring opinion, Justice Breyer said that he

18   would have set the case for reargument in order to answer the

19   question of what constitutes a "testimonial statement" with

20   regard to "the panoply of crime laboratory reports and underlying

21   technical statements written by (or otherwise made by) laboratory

22   technicians."   Id. at 2244-45 (Breyer, J., concurring).    He

23   criticized the Court's evolving Confrontation Clause

24   jurisprudence as offering "no logical stopping place between

25   requiring the prosecution to call as a witness one of the

26   laboratory experts who worked on the matter and requiring the

                                      20
 1   prosecution to call all of the laboratory experts who did so."

 2   Id. at 2246 (emphasis in original).

 3             Justice Breyer did not himself offer a comprehensive

 4   definition of testimonial, but said he would continue to adhere

 5   to the dissenting views in Bullcoming and Melendez-Diaz.     "[T]he

 6   need for cross-examination is considerably diminished when the

 7   out-of-court statement was made by an accredited laboratory

 8   employee operating at a remove from the investigation in the

 9   ordinary course of professional work."   Id. at 2249.    Justice

10   Breyer asserted that "to bar admission of the out-of-court

11   records at issue here could undermine, not fortify, the accuracy

12   of factfinding at a criminal trial," because it would potentially

13   bar autopsy reports:

14             Autopsies, like the DNA report in this case,
15             are often conducted when it is not yet clear
16             whether there is a particular suspect or
17             whether the facts found in the autopsy will
18             ultimately prove relevant in a criminal
19             trial. Autopsies are typically conducted
20             soon after death. And when, say, a victim's
21             body has decomposed, repetition of the
22             autopsy may not be possible. What is to
23             happen if the medical examiner dies before
24             trial? Is the Confrontation Clause
25             effectively to function as a statute of
26             limitations for murder?

27   Id. at 2251 (citations and internal quotation marks omitted).

28             Justice Breyer proposed as a solution a rebuttable

29   presumption that DNA reports of the type at issue be admissible,

30   with the defendant able to call the technician if he would choose

31   to do so, or to require confrontation upon a showing of a reason

32   to doubt the laboratory's competence or honesty.   Id. at 2251-52.

                                    21
 1                Justice Thomas concurred only in the judgment, and,

 2   consistent with his prior opinions on the subject, did so because

 3   the Cellmark report "lacks the solemnity of an affidavit or

 4   deposition, for it is neither a sworn nor a certified declaration

 5   of fact.   Nowhere does the report attest that its statements

 6   accurately reflect the DNA testing processes used or the results

 7   obtained."    Id. at 2260 (Thomas, J., concurring in the judgment).

 8   Further, Justice Thomas explicitly rejected the plurality's

 9   requirement that the primary purpose of the statements concern a

10   targeted individual, noting that "[t]here is no textual

11   justification, however, for limiting the confrontation right to

12   statements made after the accused's identity became known."      Id.

13   at 2262 (Thomas, J., concurring).

14                In dissent, Justice Kagan, joined by Justices Scalia,

15   Ginsburg, and Sotomayor, characterized Williams as an "open-and-

16   shut case":    "The State of Illinois prosecuted Sandy Williams for

17   rape based in part on a DNA profile created in Cellmark's

18   laboratory.    Yet the State did not give Williams a chance to

19   question the analyst who produced that evidence."     Id. at 2265

20   (Kagan, J., dissenting).    Taking note of the fact that the

21   judgment had been affirmed without a majority settling on a

22   "reason why," Justice Kagan averred that "in all except its

23   disposition, [Justice Alito's plurality] opinion is a dissent."

24   Id.   Likening the expert's testimony in Williams to the

25   "surrogate testimony" in Bullcoming, Justice Kagan asked, "Have

26   we not already decided this case?"     Id. at 2267.

                                       22
 1             Justice Kagan's opinion roundly rejected the idea that

 2   the expert's testimony had not been offered for its truth, noting

 3   recent scholarship and case law suggesting that the entire

 4   concept of "basis evidence" is illusory.   "[A]dmission of the

 5   out-of-court statement in this context has no purpose separate

 6   from its truth; the factfinder can do nothing with it except

 7   assess its truth and so the credibility of the conclusion it

 8   serves to buttress."   Id. at 2269 (emphasis in original).

 9             Justice Kagan then turned to the plurality's conclusion

10   that the DNA report was nontestimonial, joining Justice Thomas's

11   criticism of the reformulated primary purpose test as having no

12   basis in constitutional text, history, or the Court's prior

13   precedents.   "We have previously asked whether a statement was

14   made for the primary purpose of establishing past events

15   potentially relevant to later criminal prosecution –- in other

16   words, for the purpose of providing evidence.    None of our cases

17   has ever suggested that, in addition, the statement must be meant

18   to accuse a previously identified individual."   Id. at 2273-74.

19             The dissenters also rejected the plurality's suggestion

20   that the purpose of the DNA testing was "to respond to an ongoing

21   emergency, rather than to create evidence for trial," id. at 2274

22   (internal quotation marks omitted), noting that the expert

23   herself had testified that the DNA report was conducted "'for

24   this criminal investigation . . . and for the purpose of the

25   eventual litigation' –- in other words, for the purpose of



                                     23
 1   producing evidence, not enabling emergency responders."     Id.

 2   (citation omitted).

 3              Summarizing the current state of Confrontation Clause

 4   jurisprudence, Justice Kagan noted that the five Justices who

 5   agreed on the judgment "agree on very little," and "have left

 6   significant confusion in their wake."   Id. at 2277.

 7              What comes out of four Justices' desire to
 8              limit Melendez-Diaz and Bullcoming in
 9              whatever way possible, combined with one
10              Justice's one-justice view of those holdings,
11              is –- to be frank –- who knows what. Those
12              decisions apparently no longer mean all that
13              they say. Yet no one can tell in what way or
14              to what extent they are altered because no
15              proposed limitation commands the support of a
16              majority.
17   Id.

18              B.   Controlling Law

19              We are confronted in this case with the puzzle Justice

20   Kagan described: Which of the foregoing principles enunciated by

21   various members of the Supreme Court controls here?

22              We begin by looking to our holding in Feliz -- a case

23   decided on facts very similar to these -- to determine how and to

24   what extent the Supreme Court's intervening decisions have

25   altered the rule we established in that case.   There, we

26   concluded that autopsy reports were nontestimonial based in large

27   part on their status as business records.   Feliz, 467 F.3d at

28   236.   But, as we have explained, Melendez-Diaz and Bullcoming,

29   and to a lesser extent Williams, call this categorical conclusion

30   into doubt.


                                       24
 1                In each of these cases, the records were, in some

 2   sense, business records –- all were made in the course of the

 3   regular business that the laboratory in question conducts:

 4   forensic testing.    Yet, in Melendez-Diaz and Bullcoming, the

 5   Supreme Court concluded that the results of the tests were

 6   testimonial because they were completed "for the purpose of

 7   establishing or proving some fact at trial," Melendez-Diaz, 557

 8   U.S. at 324, or were "affirmations made for the purpose of

 9   establishing or proving some fact in a criminal proceeding,"

10   Bullcoming, 131 S. Ct. at 2716 (internal quotation marks

11   omitted).4    As the Melendez-Diaz Court explained, "[b]usiness and

12   public records are generally admissible absent confrontation not

13   because they qualify under an exception to the hearsay rules, but

14   because –- having been created for the administration of an

15   entity's affairs and not for the purpose of establishing or

16   proving some fact at trial –- they are not testimonial."    557

17   U.S. at 324.    The reports at issue in that case, having been

18   "prepared specifically for use at . . . trial[,]" were

19   testimonial "[w]hether or not they qualif[ied] as business or

20   official records."    Id.




          4
             No conclusion was reached in Feliz as to whether the
     autopsy reports were similarly completed for the purpose of
     establishing a fact at trial, in part because we did not then
     think that "the reasonable expectation of the declarant should be
     what distinguishes testimonial from nontestimonial statements,"
     Feliz, 467 F.3d at 235, rendering that factual inquiry
     unnecessary.

                                       25
 1             We distill from this pre-Williams case law the

 2   principle that a laboratory analysis is testimonial if the

 3   circumstances under which the analysis was prepared, viewed

 4   objectively, establish that the primary purpose of a reasonable

 5   analyst in the declarant's position would have been to create a

 6   record for use at a later criminal trial.    See Melendez-Diaz, 557

 7   U.S. at 324; Bryant, 131 S. Ct. at 1155-56 (explaining

 8   application of the primary purpose standard); see also

 9   Bullcoming, 131 S. Ct. at 2720 (Sotomayor, J., concurring) ("To

10   determine if a statement is testimonial, we must decide whether

11   it has 'a primary purpose of creating an out-of-court substitute

12   for trial testimony.'   When the 'primary purpose' of a statement

13   is 'not to create a record for trial,' 'the admissibility of the

14   statement is the concern of state and federal rules of evidence,

15   not the Confrontation Clause.'" (quoting Bryant, 131 S. Ct. at

16   1155)).

17             The question then becomes whether the Court's later

18   decision in Williams changed that rule.     We agree with Justice

19   Kagan that this problem is intractable.   No single rationale

20   disposing of the Williams case enjoys the support of a majority

21   of the Justices.   Ordinarily, "[w]hen a fragmented Court decides

22   a case and no single rationale explaining the result enjoys the

23   assent of five Justices, the holding of the Court may be viewed

24   as the position taken by those members who concurred in the

25   judgments on the narrowest grounds."   Marks v. United States, 430



                                     26
 1   U.S. 188, 193 (1977) (internal quotation marks omitted).    But

 2   what is the narrowest ground in the disposition in Williams?

 3             The Williams plurality's first rationale -- that the

 4   laboratory report there was offered as basis evidence, and not

 5   for its truth -- was roundly rejected by five Justices.

 6   Williams, 132 S. Ct. at 2258-59 (Thomas, J., concurring in the

 7   judgment); Id. at 2268-69 (Kagan, J., dissenting).    In any event,

 8   we are hard-pressed to read this rationale as controlling this

 9   case because the facts before us are in significant respects

10   different from those presented in Williams.5

11             Nor do we think we can apply the plurality's narrowed

12   definition of testimonial, which would require that the analyst

13   had "the primary purpose of accusing a targeted individual of

14   engaging in criminal conduct[.]"    Id. at 2242.   Again, five

15   Justices disagreed with this rationale, and it would appear to

16   conflict directly with Melendez-Diaz, which rejected a related



          5
             For example, Corinne Ambrosi, the OCME's deputy chief
     medical examiner for Queens County, testified in order to
     establish Somaipersaud's cause of death, which was not at all
     obvious and was clearly relevant to the charges against the
     defendants. No other testimony established that Somaipersaud
     died of poisoning. By contrast, in Williams, other admissible
     evidence established that the sample tested by Cellmark came from
     the victim's vaginal swab. See Williams, 132 S. Ct. at 2239.

               Also, the plurality in Williams relied at least in part
     on the fact that Williams was a bench trial, noting that the
     "[t]he dissent's argument would have force if petitioner had
     elected to have a jury trial." Williams, 132 S. Ct. at 2236.
     The case before us was tried to a jury, leaving us less confident
     that the factfinder would understand the conceptual distinction
     between basis evidence and evidence offered for its truth.


                                    27
 1   argument.   See Williams, 132 S. Ct. at 2274 (Kagan, J.,

 2   dissenting).   For similar reasons –- lack of support among the

 3   Justices and conflict with prior precedents that did command

 4   majority support –- we do not think either Justice Thomas's

 5   concurrence on the ground that the analysis was not sufficiently

 6   "formalized," or Justice Breyer's new approach to application of

 7   the Confrontation Clause, is controlling.

 8               Williams does not, as far as we can determine, using

 9   the Marks analytic approach, yield a single, useful holding

10   relevant to the case before us.    It is therefore for our purposes

11   confined to the particular set of facts presented in that case.

12   We think it sufficient to conclude that we must rely on Supreme

13   Court precedent before Williams to the effect that a statement

14   triggers the protections of the Confrontation Clause when it is

15   made with the primary purpose of creating a record for use at a

16   later criminal trial.6   See Melendez-Diaz, 557 U.S. at 310-11;

17   Bryant, 131 S. Ct. at 1155; see also Bullcoming, 131 S. Ct. at

18   2716; Davis v. Washington, 547 U.S. 813, 822 (2006); Crawford,

19   541 U.S. at 51-52.




          6
             Although the law is not well developed in the area of
     testimonial versus nontestimonial statements, a close analogue
     may be found in cases examining the applicability of the attorney
     work-product privilege, which applies when documents are created
     by an attorney "in anticipation of litigation." See, e.g.,
     Matter of Grand Jury Subpoenas Dated Oct. 22, 1991 and Nov. 1,
     1991, 959 F.2d 1158, 1166 (2d Cir. 1992).

                                       28
 1             C.     Testimony Related to Somaipersaud's Death

 2             We address first the defendants' argument that allowing

 3   surrogate testimony concerning the autopsy report in

 4   Somaipersaud's death was error.    This purported error was not

 5   objected to at trial.   We review challenges on appeal that the

 6   defendants did not raise at trial for plain error.     A finding of

 7   "plain error" requires that

 8             (1) there is an error; (2) the error is
 9             plain, that is, the error is clear or
10             obvious, rather than subject to reasonable
11             dispute; (3) the error affected the
12             appellant's substantial rights, which in the
13             ordinary case means it affected the outcome
14             of the district court proceedings; and (4)
15             the error seriously affects the fairness,
16             integrity or public reputation of judicial
17             proceedings.

18   United States v. Marcus, 628 F.3d 36, 42 (2d Cir. 2010) (internal

19   quotation marks and bracket omitted).

20             1.    Testimony at trial.    Corinne Ambrosi, the OCME's

21   deputy chief medical examiner for Queens County, testified at

22   trial regarding Somaipersaud's death.     She explained that the

23   OCME generally performs autopsies "where people died in

24   unexpected circumstances, unnatural deaths, unexpected deaths.

25   Those come to the attention of the medical examiner."     Trial Tr.

26   4655:18-20.    Ambrosi had previously testified as an expert

27   witness on cause and manner of death 106 times.     She testified

28   that she did not perform or participate in Somaipersaud's

29   autopsy, which was conducted by Dr. Heda Jindrak, who at the time

30   of trial was no longer employed by the OCME.     Ambrosi described


                                       29
 1   at length the results of toxicology tests ordered by Jindrak,

 2   which informed the autopsy report.    These tests were performed by

 3   technicians at the OCME's main office in Manhattan.   Ambrosi

 4   explained that the tests showed that Somaipersaud had elevated

 5   levels of alcohol as well as chlorpromazine, which is sometimes

 6   used as an antipsychotic drug.   She offered her own opinion that

 7   the level of alcohol revealed by the tests would not alone have

 8   been enough to have killed Somaipersaud.   She testified that the

 9   chlorpromazine levels were, however, significant -- more than she

10   would have expected to see from someone regularly taking the drug

11   as medication for a psychiatric illness.   Ambrosi further

12   testified that the level of chlorpromazine detected in the

13   victim's body combined with the level of blood alcohol in the

14   body would have been enough to have killed the victim, and that

15   the combination had indeed been determined to be the cause of

16   Somaipersaud's death.

17              The toxicology report was admitted as an exhibit at

18   trial.   It indicated .26 blood alcohol content and 1.9 milligrams

19   per kilogram chlorpromazine levels.   Ambrosi explained that the

20   chlorpromazine levels appeared to be acute because the level in

21   the liver was 75.7 milligrams per kilogram, whereas in someone

22   who was prescribed the drug therapeutically it would not normally

23   be more than 10 milligrams per kilogram.   Ambrosi further

24   explained that she did not recall ever having seen levels of

25   chlorpromazine in a person that high.   She also testified as to

26   Jindrak's autopsy determination that the cause of death was

                                      30
 1   "[a]cute intoxication by the ethynel or alcohol and

 2   chlorpromazine," and that she agreed with that assessment.         Trial

 3   Tr. 4678:20-21.   "[H]ypertensive and arteriosclerotic

 4   cardiovascular disease" were also contributing factors.      Trial

 5   Tr. 4679:2-3.

 6             On cross-examination, Ambrosi confirmed that she had

 7   not participated in the autopsy.       Her testimony was based on her

 8   review of the case file before testifying.

 9             2.    Analysis.   To resolve this case we must determine

10   whether, under the circumstances, the autopsy report (including

11   the toxicology report) was prepared with the primary purpose of

12   creating a record for use at a later criminal trial.7      As we

          7
               It is worth noting that courts throughout the country
     have applied various approaches and reached differing conclusions
     when considering Confrontation Clause challenges to the
     introduction of autopsy reports. Compare United States v. Moore,
     651 F.3d 30, 73 (D.C. Cir. 2011)(concluding that Chief Medical
     Examiner's surrogate testimony on autopsy reports prepared by
     others violated the Confrontation Clause where law enforcement
     officers observed the autopsies and participated in the creation
     of the reports -- circumstances that "would have signaled to the
     medical examiner that the autopsy might bear on a criminal
     investigation" -- and each autopsy "found the manner of death to
     be a homicide caused by gunshot wounds"), with State v. Locklear,
     363 N.C. 438, 452, 681 S.E.2d 293, 305 (2009)("Thus, when the
     State seeks to introduce [autopsy reports], absent a showing that
     the analysts are unavailable to testify at trial and that
     petitioner had a prior opportunity to cross-examine them such
     evidence is inadmissible under Crawford."(quotation marks,
     citation, and brackets omitted)).

               There is also academic debate on the subject. Compare
     Zabrycki, supra, cited by the Supreme Court in both Melendez-Diaz
     and Williams, in which the author proposed a definition of
     testimonial similar to that endorsed by the Williams plurality,
     proposing that "out-of-court statements are testimonial and thus
     require confrontation if they are produced by, or with the
     involvement of, adversarial government officials responsible for

                                       31
 1   explained in United States v. Burden, 600 F.3d 204 (2d Cir.

 2   2010), the examples of testimonial statements outlined in

 3   Crawford, are no "more than a set of guideposts [for] courts [to]

 4   work through, case-by-case . . . .   [N]o court can say whether a

 5   particular kind of statement is testimonial until it has

 6   considered that kind of statement in an actual case."   Id. at

 7   224.

 8              Key to determining the resolution of the case before us

 9   is the particular relationship between the OCME and law

10   enforcement both generally and in this particular case.    While

11   the OCME is an independent agency,8 the police are required to

12   notify it when someone has died "from criminal violence, by


     investigating and prosecuting crime," id. at 1118, but arguing
     that medical examiners are "public health officials," rather than
     law enforcement officers, and therefore, unless the medical
     examiner "writes an autopsy report in response to police
     interrogation," the report is non-testimonial, id. at 1128-29,
     with Professor Richard Friedman, who argued in a petition for
     writ of certiorari from a decision of the Supreme Court of Ohio,
     State v. Craig, 110 Ohio St. 3d 306, 853 N.E.2d 621 (2006), cert.
     denied, 549 U.S. 1255 (2007), that while "[t]here are, of course,
     situations in which coroners write autopsy reports without
     anticipation that they will likely be used in forensic
     proceedings, and for other purposes . . . ," id. at *13-*14,
     "where, as here, the coroner concludes that the decedent was
     clearly a victim of homicide, there can be no genuine doubt that
     a reasonable person in the position of the coroner understands
     that there will be forensic proceedings and intends that the
     report will be used in them," id. at *14, and they are therefore
     testimonial.
            8
             See People v. Freycinet, 11 N.Y.3d 38, 42, 862 N.Y.S.2d
     450, 453 (2008) (concluding than an autopsy report was not
     testimonial, in part because the OCME is "by law, independent of
     and not subject to the control of the office of the prosecutor"
     and "not a law enforcement agency" (internal quotation marks
     omitted)); People v. Hall, 84 A.D.3d 79, 83, 923 N.Y.S.2d 428,
     431 (1st Dep't 2011).

                                     32
 1   accident, by suicide, suddenly when in apparent health, when

 2   unattended by a physician, in a correctional facility or in any

 3   suspicious or unusual manner or where an application is made

 4   pursuant to law for a permit to cremate a body of a person."

 5   N.Y.C. Charter § 557(a), (f)(1); see also N.Y.C. Admin Code § 17-

 6   202.   The OCME is required to "take charge of the dead body" in

 7   such instances, and must "fully investigate the essential facts

 8   concerning the circumstances of the death" and interview

 9   witnesses and collect evidence that "may be useful in

10   establishing the cause of death."    N.Y.C. Admin. Code § 17-

11   202(a).

12              It is the OCME that determines whether to conduct an

13   autopsy based on whether "it may be concluded with reasonable

14   certainty that death occurred from natural causes or obvious

15   traumatic injury[.]"   N.Y.C. Admin Code § 17-203.   Whenever an

16   autopsy is deemed necessary, it "shall include toxicologic,

17   histologic, microbiologic and serologic examinations," the

18   results of which must be written down and filed with the OCME,

19   regardless of whether any further investigation results.   Id.

20   "Such medical examiner, medical investigator or lay medical

21   investigator shall take possession of any portable objects which,

22   in his or her opinion, may be useful in establishing the cause of

23   death, and except as provided in subdivision c hereof [relating




                                     33
1   to suicide notes], shall deliver them to the police department."9

2   Id. § 202(a).

3             Because the defendants failed to object to the

4   introduction of Ambrosi's testimony during trial, there is scant

5   record of the circumstances under which Jindrak produced her

6   autopsy report.   In its written ruling on the defendants'

7   objections to the testimony of Dr. Vivikand Brijmohan -- whose

8   testimony on the cause of death of another victim, Sewnanan, is



         9
            We similarly explained in United States v. Rosa, 11 F.3d
    315 (2d Cir. 1993), that
              the Medical Examiner's Office is required
              simply to investigate unnatural deaths; it
              refers a death bearing any indicium of
              criminality to the appropriate district
              attorney and has no responsibility for
              enforcing any laws. The chief medical
              examiner and his assistants are required to
              be physicians and pathologists; there is no
              requirement in the Charter that they be
              attorneys or that any employees of the office
              have any law enforcement training. Even when
              a matter is referred to the district attorney
              because of an indication of criminality, the
              Charter does not give the medical examiner
              any responsibility for collecting evidence or
              determining the identity of the perpetrator.
              Further, though law enforcement activities
              are typically accusatory and adversarial in
              nature, a medical examiner's reported
              observations as to a body's condition are
              normally made as part of an independent
              effort to determine a cause of death.
              Indeed, "a medical examiner, although often
              called a forensic expert, bears more
              similarity to a treating physician than he
              does to one who is merely rendering an
              opinion for use in the trial of a case."
    Id. at 332 (2d Cir. 1993) (citation omitted) (quoting Manocchio
    v. Moran, 919 F.2d 770, 777 (1st Cir. 1990) (internal quotation
    marks omitted)).

                                    34
 1   discussed below -- the district court noted that "Jindrak

 2   conducted an internal and external examination as well as a

 3   toxicology analysis," and that Ambrosi described these steps as

 4   "routine."    James II, 2007 WL 2702449, at *2 n.1.   The defendants

 5   do not argue in either of their briefs, or in the supplemental

 6   letter briefs submitted in response to the request by this Court

 7   after Williams, that Somaipersaud's autopsy was anything other

 8   than routine –- there is no suggestion that Jindrak or anyone

 9   else involved in this autopsy process suspected that Somaipersaud

10   had been murdered and that the medical examiner's report would be

11   used at a criminal trial.    Ambrosi testified that causes of death

12   are often undetermined in cases like this because it could have

13   been a recreational drug overdose or a suicide.    The autopsy

14   report itself refers to the cause of death as "undetermined" and

15   attributes it both to "acute mixed intoxication with alcohol and

16   chlorpromazine" combined with "hypertensive and arteriosclerotic

17   cardiovascular disease."

18                The autopsy was completed on January 24, 1998, and the

19   report was signed June 16, 1998, substantially before any

20   criminal investigation into Somaipersaud's death had begun.

21   During the course of Ambrosi's lengthy trial testimony, neither

22   the government nor defense counsel elicited any information

23   suggesting that law enforcement was ever notified that

24   Somaipersaud's death was suspicious, or that any medical examiner

25   expected a criminal investigation to result from it.    Indeed,



                                       35
 1   there is reason to believe that none is pursued in the case of

 2   most autopsies.10

 3             In short, the autopsy report was not testimonial

 4   because it was not prepared primarily to create a record for use

 5   at a criminal trial.11   There was therefore no error, much less

 6   plain error, in admitting the autopsy report into evidence, or

 7   allowing Ambrosi to testify regarding it, although she did not

 8   conduct it herself.

 9             D.   Testimony Related to Sewnanan's Death

10             In contrast to Ambrosi's testimony relating to

11   Somaipersaud's death, the defendants vigorously objected to Dr.

12   Vivikand Brijmohan's testimony as to a toxicology test relating



          10
               The OCME performs an average of 5,500 autopsies each
     year, and in 2010, for example, 533 New York City residents'
     causes of death were listed as homicides. See OCME, General
     Information Booklet, http://www.nyc.gov/html/ocme/downloads/pdf/
     General%20Information/OCME%20General%20Information%20Booklet.pdf
     (last visited Mar. 22, 2013); Deaths and Death Rates by Selected
     Causes New York City - 2010, http://www.health.ny.gov/statistics/
     vital_statistics/2010/table33c.htm (last visited Mar. 22, 2013).
     This suggests, although the data is of course insufficient to
     demonstrate conclusively, that something in the order of ten
     percent of deaths investigated by the OCME lead to criminal
     investigations. The statistics from Los Angeles tell a similar
     story: "In 2004, the Los Angeles Medical Examiner's office
     conducted 4,180 complete autopsies out of 9,465 cases taken by
     the office. Of the 9,465 total cases, 1,121 died from homicide,
     709 from suicide, 3,090 from accidents, and 4,256 from natural
     causes." Zabrycki, 96 Cal. L. Rev. at 1125.
          11
               No contrary conclusion is warranted by United States v.
     Ignasiak, 667 F.3d 1217 (11th Cir. 2012). Although that case
     holds that "[f]orensic reports constitute testimonial evidence,"
     id. at 1230, the decision was based in part on the fact that the
     Florida Medical Examiner's Office "was created and exists within
     the Department of Law Enforcement," id. at 1231. Here, the OCME
     is a wholly independent office.

                                      36
 1   to the death of Hardeo Sewnanan, which was based on forensic

 2   testing conducted by Dr. Leslie Mootoo.     When analyzing error

 3   that the defendants did raise at trial, we review for

 4   harmlessness, which requires us to ask whether we are satisfied

 5   "upon a review of the entire record . . . beyond a reasonable

 6   doubt that the error complained of . . . did not contribute to

 7   the verdict obtained."    United States v. Lee, 549 F.3d 84, 90 (2d

 8   Cir. 2008) (internal quotation marks omitted).     "In other words,

 9   to find the [error] harmless we must be able to conclude that the

10   evidence would have been unimportant in relation to everything

11   else the jury considered on the issue in question, as revealed in

12   the record."     Id. (internal quotation marks and citations

13   omitted).   We consider "(1) the overall strength of the

14   prosecution's case; (2) the prosecutor's conduct with respect to

15   the improperly admitted evidence; (3) the importance of the

16   wrongly admitted testimony; (4) whether such evidence was

17   cumulative of other properly admitted evidence."     Id. (internal

18   quotation marks omitted).

19               1.   Testimony at trial.   Brijmohan testified regarding

20   Sewnanan's cause of death, in part based on toxicology tests

21   conducted by Mootoo, who had died between his performance of the

22   test and the time of trial.    Brijmohan was the chief forensic

23   pathologist for the region of Guyana where Sewnanan's death

24   occurred.   Brijmohan testified that he would normally be informed

25   of the need for an autopsy by a coroner affiliated with the

26   police department.    Typically, autopsies in Guyana are performed

                                       37
 1   when there are "unnatural deaths," i.e., "accidents, murders,

 2   strangulations, drowning, . . . and of course including cases of

 3   poisoning."   Trial Tr. 3266:12-17.   Brijmohan explained that in

 4   conducting Sewnanan's internal examination, he discovered

 5   "extensive submucosal hemorrhages," which "is not definitely a

 6   normal finding.   Whenever such a finding occurs, one immediately

 7   thinks of extraneous ingestion and one thinks definitely of

 8   poisoning."   Trial Tr. 3265:13-14, 22-24.

 9              Brijmohan then sent the post-mortem contents of

10   Sewnanan's stomach for toxicology testing.   He testified that the

11   contents were taken by a police officer to the Guyanese police

12   laboratory, the stamp of which appeared on the resultant

13   toxicology report.   Brijmohan further testified that he did not

14   know who actually performed the toxicology test.   While Dr.

15   Mootoo may have played some role in the testing, Brijmohan was

16   apparently not sure whether Mootoo had conducted the testing

17   himself.

18              Brijmohan testified, based on "the scientific evidence

19   of my examination and the toxicology report, that the cause of

20   death of Hardeo Sewnanan was the consequence of the ingestion of

21   a toxic substance with ammoniacal compound."   Trial Tr. 3299:7-

22   10.   Brijmohan said it was probably hydrocyanic acid, or

23   potassium and sodium cyanide, in which case there would have been

24   no symptoms prior to death.   Brijmohan further testified that the

25   toxicology report indicated death resulted from ammonia poisoning



                                     38
 1   and, over continued objections, explained that the toxicology

 2   report on Sewnanan's stomach indicated ammonia poisoning.12

 3               On cross-examination, Brijmohan was questioned

 4   extensively as to whether the ammonia found in Sewnanan's body

 5   could have been naturally occurring, inasmuch as ammonia often

 6   occurs naturally in the human body after death.     Brijmohan

 7   testified that his knowledge that it was commercially produced

 8   was based on the laboratory report.    His conclusion that Sewnanan

 9   died of commercially-produced ammonia "was based essentially on

10   my observation of the stomach, with the hemorrhages, the

11   laboratory reports that was brought to my attention."     Trial Tr.

12   3382:23-25.

13               2.   The district court's decision.   The district court

14   rejected the defendants' argument that allowing introduction of

15   the toxicology report into evidence would violate the

16   Confrontation Clause.    See Mem. & Order, United States v. James,

17   2007 WL 2792449, at *1, 2007 U.S. Dist. LEXIS 39585, at *3-*4

18   (E.D.N.Y. May 31, 2007).    The district court relied on Feliz in

19   allowing introduction of the report, but its decision preceded

20   the Supreme Court decisions in Bullcoming, Melendez-Diaz, and

21   Williams.




          12
             Over repeated objections, Brijmohan testified that test
     results from two bottles sent to the police lab, one of which
     tested positive for ammonia, informed his analysis. The record
     does not conclusively reveal whether the contents of the bottles
     derived from the victim's body – though that appears the logical
     inference.

                                       39
 1             The district court did base its decision, however, in

 2   large part on its conclusion that the toxicology report was not a

 3   "'chemist's' report created by 'law enforcement.'"   Id. at *2.

 4   While acknowledging that the defendants had described the "close

 5   proximity" between the medical examiner's office and the Guyanese

 6   police station, and the cooperation between those two agencies,

 7   the court concluded that "the critical inquiry is not the

 8   physical proximity of two agencies, or their level of

 9   cooperation, but rather whether the agency that created the

10   report can be characterized by its duties and purposes as law

11   enforcement."   Id.   The district court cited Rosa's dictum to the

12   effect that the OCME is not a law enforcement agency, and then,

13   noting that the Guyanese medical examiner operates as part of the

14   Guyanese Ministry of Health and Georgetown Hospital, observed

15   that "[t]here is no indication that Dr. Mootoo was employed by a

16   law enforcement agency or was responsible for enforcing any

17   laws. . . .   [I]t appears that the Guyanese Office of Forensic

18   Medicine, for which Drs. Brijmohan and Mootoo worked, is directly

19   analogous to the [OCME]."   Id.

20             The court therefore concluded that the forensic records

21   did not fall under the "law enforcement" exception to the

22   business records rule that permits admission of the documentary

23   evidence despite the absence of the document's preparer.    Id.

24   Furthermore, the court noted that a toxicology report is "not

25   separate and distinct" from the autopsy report, which bolstered

26   its admissibility as a business record.   Id.

                                       40
 1              3.   Analysis.   First, in light of the foregoing

 2   analysis, it is apparent to us that the district court's

 3   rationale for allowing the forensic report into evidence is of

 4   questionable validity because of the doubt subsequent Supreme

 5   Court jurisprudence has cast on Feliz, on which the district

 6   court relied.   Nevertheless, we think the district court's

 7   conclusion sound.

 8              There is no indication in Brijmohan's testimony or

 9   elsewhere in the record that a criminal investigation was

10   contemplated during the inquiry into the cause of Sewnanan's

11   death.13   For example, Brijmohan testified that "the rate of

12   poisons taken is pretty high . . . within the East Indian

13   community," Trial Tr. 3253:15-17, suggesting accidental ingestion

14   or suicide rather than homicide.14     During the course of the

15   autopsy, Brijmohan observed symptoms consistent with poisoning,

16   including congestion in the lungs and hemorrhaging in the

17   stomach, and ordered toxicology tests on that basis.     Brijmohan


          13
             We note, as did the district court, that the police were
     unquestionably involved in the Guyanese autopsy process,
     including, for example, transporting forensic samples for
     testing. As five Justices in Williams made clear, however, the
     involvement of "adversarial officials" in an investigation is not
     dispositive as to whether or not a statement is testimonial. In
     this case, it appears that was simply the routine procedure
     employed by the Guyanese medical examiner in investigating all
     unnatural deaths, and does not indicate that a criminal
     investigation was contemplated.
          14
             Brijmohan was interviewed by a publication called
     "Hinduism Today" regarding the high rate of suicides,
     particularly among East Indian males, in Guyana, which he
     attributed to "cultural problem[s]" and alcoholism. Trial Tr.
     3375:15-3377:12.

                                       41
 1   further noted that there were other potential "natural" causes of

 2   the types of symptoms that led him to suspect poisoning in

 3   general -- not murder in particular -- including alcoholism.      In

 4   short, we see nothing to indicate that the toxicology report was

 5   completed primarily to generate evidence for use at a subsequent

 6   criminal trial.   We conclude that the toxicology report was

 7   nontestimonial, and the district court therefore did not err in

 8   allowing its introduction without requiring confrontation of the

 9   individual who prepared it.

10              As Justice Breyer pointed out in Williams, it is still

11   unsettled under the Court's recent Confrontation Clause

12   jurisprudence whether there is a "logical stopping place between

13   requiring the prosecution to call as a witness one of the

14   laboratory experts who worked on the matter and requiring the

15   prosecution to call all of the laboratory experts who did so."

16   Williams, 132 S. Ct. at 2246 (Breyer, J. concurring).     While

17   Brijmohan's testimony implicates that question -- he suggested

18   that someone other than Mootoo may also have participated in the

19   preparation of the toxicology report -- we find it unnecessary to

20   answer it in light of our conclusions as to the nature of the

21   report.   To the extent that question implicates the evidentiary

22   rules regarding "basis evidence," we also decline to decide

23   whether the toxicology test was properly offered as such here,

24   where the testifying expert had personal involvement in the

25   autopsy process, and he himself ordered the toxicology tests at

26   issue.

                                     42
 1             II.     Exclusion of the Government's Prior Jury Argument

 2             The defendants contend that the district court abused

 3   its discretion in denying their request to introduce an excerpt

 4   of the prosecutor's rebuttal summation in the trial of Betty

 5   Peter, a cooperating witness, which largely blamed her, and not

 6   the defendants in the instant case, for Vernon Peter's murder.

 7   "The defense is allowed to introduce a prosecutor's statement

 8   from a prior trial when: (1) the prosecution offered an

 9   inconsistent assertion of fact at the prior trial; and (2) the

10   prosecution can offer no 'innocent' explanation for the

11   contradiction."    United States v. Orena, 32 F.3d 704, 716 (2d

12   Cir. 1994)(citations omitted); see also Fed. R. Evid. 801(d)(2);

13   United States v. McKeon, 738 F.2d 26, 32-33 (2d Cir. 1984).

14             In McKeon, upon which the defendants principally rely,

15   the court's reasoning was based in large part upon the fact that

16   it was the same defendant on trial in a subsequent proceeding.

17   McKeon, 738 F.2d at 31 (noting the relationship to admissions of

18   a party-opponent in civil proceedings).      In any event, McKeon

19   requires that, in order to admit such evidence, the district

20   court must "determine by a preponderance of the evidence that the

21   inference the [party] seeks to draw from the inconsistency is a

22   fair one and that an innocent explanation for the inconsistency

23   does not exist.    Where the evidence is in equipoise or the

24   preponderance favors an innocent explanation, the . . . statement

25   should be excluded."    Id. at 33.     Here, the government explained



                                       43
 1   that the change in its view towards Peter resulted from a series

 2   of proffer sessions after her conviction on various charges

 3   including mail fraud, money laundering, and obstruction of

 4   justice.   The information gleaned from these sessions and

 5   corroborated by other witnesses led the government to a different

 6   view as to her culpability for Vernon Peter's murder.

 7              We conclude that the district court did not commit

 8   clear error in deciding by a preponderance of the evidence that

 9   there was an "innocent explanation" for the inconsistency between

10   the government's stated position at the trial of Peter and that

11   in the instant case.   The district court therefore did not abuse

12   its discretion in excluding the prior statement.   Cf. United

13   States v. GAF Corp., 928 F.2d 1253, 1261 n.3 (2d Cir. 1991)

14   (reversing and finding error in the exclusion of a prior bill of

15   particulars where the "the inconsistency is plain, [and] the

16   inferences are clear," and where the government's only

17   explanation is "that it no longer believes" that the same

18   evidence demonstrates what it had previously argued it did).

19              Finally, the defendants' argument that a post-trial

20   letter from a cooperating witness implicating Betty Peter in her

21   husband's murder somehow affects the propriety of the district

22   court's ruling is misplaced.   The letter was not before the

23   district court at the time it made the ruling.   It therefore does

24   not suggest either that the district court's factual finding as

25   to the government's explanation was clearly erroneous, or that it



                                     44
 1   abused its discretion in excluding the prosecution's rebuttal

 2   statement.

 3                III.   Limitation on Cross-Examination

 4                The defendants argue that the district court abused its

 5   discretion in curtailing their impeachment of Betty Peter with

 6   prior inconsistent statements concerning (1) a conversation she

 7   had with a member of Sewnanan's family15 and (2) her

 8   understanding of the term "double indemnity."     In particular,

 9   Peter testified at trial that she had not spoken to Patricia

10   Sewnanan after Hardeo's death, and that she did not know the

11   meaning of the term "double indemnity."

12                We review for abuse of discretion a district court's

13   decision to preclude evidence offered to impeach a witness.       See

14   United States v. Ramirez, 609 F.3d 495, 499 (2d Cir. 2010).        A

15   district court "is 'accorded broad discretion in controlling the

16   scope and extent of cross-examination.'"     United States v.

17   Caracappa, 614 F.3d 30, 42 (2d Cir. 2010) (quoting United States

18   v. Wilkerson, 361 F.3d 717, 734 (2d Cir.), cert. denied, 543 U.S.

19   908 (2004)); accord, e.g., United States v. Whitten, 610 F.3d

20   168, 182 (2d Cir. 2010).     Therefore, a "district court may impose

21   'reasonable limits' on cross-examination to protect against,

22   e.g., harassment, prejudice, confusion, and waste."    United

23   States v. Cedeno, 644 F.3d 79, 82 (2d Cir. 2011) (quoting

24   Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).     "In the

          15
               Precisely what her relationship to Hardeo Sewnanan was
     is not reflected in the record.

                                        45
 1   exercise of discretion, a district court should consider the need

 2   to 'ascertain [the] truth,' 'avoid needless consumption of time,'

 3   and 'protect witnesses from harassment or undue embarrassment.'"

 4   Whitten, 610 F.3d at 182-83 (quoting Fed. R. Evid. 611(a)).

 5                A district court should afford "wide latitude to a

 6   defendant in a criminal case to cross-examine government

 7   witnesses," Cedeno, 644 F.3d at 82 (internal quotation marks

 8   omitted), because the Confrontation Clause gives a defendant the

 9   right not only to cross-examination, but to effective cross-

10   examination, see United States v. Figueroa, 548 F.3d 222, 227 (2d

11   Cir. 2008).    But "[i]t does not follow, of course, that the

12   Confrontation Clause prevents a trial judge from imposing any

13   limits on defense counsel's inquiry [in cross-examining] a

14   prosecution witness."    Figueroa, 548 F.3d at 227 (quoting Van

15   Arsdall, 475 U.S. at 679) (emphasis added).

16                The defense sought to introduce evidence that the

17   Sewnanan family bribed the medical examiner to change Hardeo

18   Sewnanan's cause of death to poisoning, rather than disease, so

19   that they could collect on the insurance policy's double

20   indemnity clause.    The district court excluded evidence

21   supporting this theory, however, which the defendants do not

22   challenge.    Peter's denial that she spoke with Patricia Sewnanan,

23   a member of Sewnanan's family, was therefore irrelevant, because

24   the subject of her discussion was not to be introduced in any

25   event.   Moreover, because the subject of Peter's discussion with

26   Sewnanan's family member would not have been in front of the

                                       46
 1   jury, her inconsistency on this collateral matter (whether or not

 2   she spoke with the family member) was unlikely to influence the

 3   jury's assessment of her credibility, because they were already

 4   aware that she was a convicted felon who had begun cooperating

 5   with the government.

 6              For similar reasons, impeachment of Peter concerning

 7   her understanding of the term "double indemnity" would have had

 8   little probative value.    In any event, the cross-examination did

 9   indeed elicit testimony from Peter in which she explained that

10   she received $400,000 on her husband's $200,000 life insurance

11   policy because "when anybody died accidentally or something, they

12   pay double."     Eliciting from Peter that she had been inconsistent

13   in recognizing the term "double indemnity," when it was clear she

14   understood the concept, would therefore also not have affected

15   the jury's assessment of her credibility.

16              IV.    Motion to Sever

17              Defendant James contends that the district court's

18   denial of his motions for severance of his trial from that of his

19   co-defendant Mallay deprived him of a fair trial.    "[T]he court

20   may . . . sever the defendants' trials . . . [if] consolidation

21   for trial appears to prejudice a defendant."    Fed. R. Crim. P.

22   14(a).   "Considerations of efficiency and consistency militate in

23   favor of trying jointly defendants who were indicted together,

24   [and] [j]oint trials are often particularly appropriate in

25   circumstances where the defendants are charged with participating



                                         47
 1   in the same criminal conspiracy . . . ."    United States v.

 2   Spinelli, 352 F.3d 48, 55 (2d Cir. 2003) (citations omitted).

 3   "The decision to sever a joint trial of federal defendants is

 4   committed to the sound discretion of the trial judge[, and is

 5   c]onsidered virtually unreviewable."    United States v. Diaz, 176

 6   F.3d 52, 102 (2d Cir. 1999) (internal quotation marks and

 7   citations omitted).    "[T]o compel reversal, the defendant has the

 8   heavy burden to show prejudice so severe that his conviction

 9   constituted a miscarriage of justice."    United States v.

10   Ferguson, 676 F.3d 260, 286-87 (2d Cir. 2011) (internal quotation

11   marks omitted).

12                James argues that jointly trying him with Mallay, who

13   was also charged with two murders with which James was not

14   charged –- those of Vernon Peter and Alfred Gobin –- caused him

15   prejudice.    That evidence, however, was relevant to the

16   racketeering charges against James to prove the formation,

17   existence, and nature of the racketeering enterprise, which

18   involved the murder of individuals to collect on their insurance

19   policies, as well as to show the pattern of racketeering

20   activity.    See Diaz, 176 F.3d at 103; United States v. Stewart,

21   590 F.3d 93, 123-24 (2d Cir. 2009) ("[T]he fact that testimony

22   against a codefendant may be harmful is not a ground for

23   severance if that testimony would also be admissible against the

24   moving defendant tried separately." (internal quotation marks

25   omitted)).



                                       48
 1             James's argument that there was an irreconcilable

 2   conflict between him and Mallay based on Mallay's initial

 3   opposition to the introduction of evidence regarding a plot to

 4   bribe the Guyanese medical examiner is also without merit.

 5   Mallay later joined James in seeking to introduce that evidence.

 6   And in any case, "[t]o obtain a severance on the ground of

 7   antagonistic defenses, a defendant must show that the conflict is

 8   so irreconcilable that acceptance of one defendant's defense

 9   requires that the testimony offered on behalf of a codefendant be

10   disbelieved."   United States v. Benitez, 920 F.2d 1080, 1085-86

11   (2d Cir. 1990) (internal quotation marks and citation omitted).

12   That is not the case here.

13             V.    Refusal to Suppress Recorded Statements

14             The defendants object to the denial of a motion to

15   suppress statements made by James to Derick Hassan, a government

16   informant wearing a recording device, concerning a plot to murder

17   John Narinesingh.   The defendants argue that because James was

18   already subject to a sealed indictment at the time those

19   statements were recorded, doing so violated his Sixth Amendment

20   right to counsel.

21             The defendants waived this argument by failing to

22   object to the magistrate judge's recommendation that the motion

23   to suppress be denied, which was adopted by the district court.

24   United States v. James, 415 F. Supp. 2d 132, 137 (E.D.N.Y. 2006).

25   See also Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis,



                                     49
 1   Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir.

 2   2010) ("[A] party waives appellate review of a decision in a

 3   magistrate judge's Report and Recommendation if the party fails

 4   to file timely objections designating the particular issue.").

 5                Even so, as Magistrate Judge Pollack explained at

 6   length, the Sixth Amendment right is "offense specific," and the

 7   statements James made to the informant were not used to support

 8   the charge for which he had been indicted at the time he made

 9   those statements -- that charge was subsequently dropped.       James,

10   415 F. Supp. 2d at 158-61.      Therefore, the Sixth Amendment did

11   not bar their introduction into evidence.

12                VI.    Admission of Recorded Statements against Mallay

13                Defendant Mallay contends that the conversation between

14   James and Hassan, recorded by Hassan -- also referred to in the

15   previous section -- should not have been admitted against him

16   because that conversation indicates Mallay's withdrawal from the

17   conspiracy, and thus is not admissible as a co-conspirator

18   statement.    "A statement . . . is not hearsay if . . . [t]he

19   statement is offered against an opposing party and . . . was made

20   by the party’s coconspirator during and in furtherance of the

21   conspiracy."       Fed. R. Evid. 801(d)(2)(E).   "To admit an out-of-

22   court declaration under this rule, the district court must find

23   by a preponderance of the evidence '(a) that there was a

24   conspiracy, (b) that its members included the declarant and the

25   party against whom the statement is offered, and (c) that the



                                         50
 1   statement was made during the course of and in furtherance of the

 2   conspiracy.'"    United States v. Farhane, 634 F.3d 127, 161 (2d

 3   Cir. 2011) (quoting United States v. Al-Moayad, 545 F.3d 139, 173

 4   (2d Cir. 2008)).    These three factual predicates must be

 5   determined by the district court by "a preponderance of the

 6   evidence."    In re Terrorist Bombings of U.S. Embassies in E.

 7   Africa, 552 F.3d 93, 137 (2d Cir. 2008) (citing Fed. R. Evid.

 8   104(a)).   We review the district court's findings as to each for

 9   clear error.    See id.

10                First, the conspiracy must be proven by a preponderance

11   of the evidence to involve both the declarant and the defendant.

12   The district court "may properly find the existence of a criminal

13   conspiracy where the evidence is sufficient to establish, by a

14   preponderance of the evidence, that 'the . . . alleged

15   coconspirators entered into a joint enterprise with consciousness

16   of its general nature and extent.'"    In re Terrorist Bombings,

17   552 F.3d at 137-38.    Although Rule 801(d)(2)(E) "'requires that

18   both the declarant and the party against whom the statement is

19   offered be members of the conspiracy, there is no requirement

20   that the person to whom the statement is made also be a member.'"

21   Id. at 139 (quoting United States v. Beech-Nut Nutrition Corp.,

22   871 F.2d 1181, 1199 (2d Cir. 1989)).

23                Second, to be admissible, the statement must be made

24   "in furtherance of the conspiracy."    In general, "'the statements

25   must in some way have been designed to promote or facilitate

26   achievement of the goals of the ongoing conspiracy[.]'"      United

                                       51
 1   States v. Diaz, 176 F.3d at 85 (quoting United States v. Tracy,

 2   12 F.3d 1186, 1196 (2d Cir. 1993)).   The ways in which a

 3   statement might "promote or facilitate" the conspiracy include,

 4   among others, "seeking to induce a coconspirator's assistance,"

 5   id.; "informing coconspirators as to the progress or status of

 6   the conspiracy," id.; and prompting a non-coconspirator to

 7   respond in some way that "promotes or facilitates the carrying

 8   out of a criminal activity," Tracy, 12 F.3d at 1196.    See

 9   generally, e.g., In re Terrorist Bombings, 552 F.3d at 139; Diaz,

10   176 F.3d at 85; United States v. Gigante, 166 F.3d 75, 82 (2d

11   Cir. 1999).   "Because what constitutes a statement that is in

12   furtherance of a conspiracy is essentially a question of fact, we

13   will reverse a decision to admit co-conspirator statements only

14   if it is clearly erroneous."   In re Terrorist Bombings, 552 F.3d

15   at 139 (internal quotation marks omitted).

16             Mallay contends that at the time of James and Hassan's

17   conversation regarding the possible murder of Narinesingh he was

18   no longer part of the conspiracy.    As proof, James notes the

19   indication on the tape recorded statement that he is no longer

20   talking to Mallay, and that the two have had a falling out.      That

21   members of a conspiracy have had a disagreement or a falling out

22   is not, however, sufficient to establish withdrawal from the

23   conspiracy.   See, e.g., United States v. Jackson, 335 F.3d 170,

24   182 (2d Cir. 2003) ("To withdraw from a conspiracy, a person must

25   take some affirmative action either by making a clean breast to

26   the authorities or communicating the abandonment in a manner

                                     52
 1   reasonably calculated to reach co-conspirators." (internal

 2   quotation marks and citations omitted)); United States v. Spero,

 3   331 F.3d 57, 60 (2d Cir. 2003) ("[A conspiracy] is presumed to

 4   exist until there has been an affirmative showing that it has

 5   been terminated," and its members "continue to be conspirators

 6   until there has been an affirmative showing that they have

 7   withdrawn." (internal quotation marks omitted)).   "An internal

 8   dispute among members of a conspiracy can itself be compelling

 9   evidence that the conspiracy is ongoing and that the rivals are

10   members of it."   United States v. Amato, 15 F.3d 230, 234 (2d

11   Cir. 1994).   Hassan testified that the reason Mallay and James

12   were not talking to one another at the time was not that Mallay

13   had withdrawn from the conspiracy, but rather that Mallay had

14   just undergone heart surgery, a fact stipulated to by the

15   parties.   Shortly before his surgery, Mallay procured insurance

16   policies on two persons for more than $2 million, indicating that

17   he continued to participate in the conspiracy at the time of the

18   recorded conversation between Hassan and James.    We therefore

19   find no error in the admission of this recording against Mallay.

20              VII. Denial of New Trial Motion

21              The defendants argue that a post-trial letter from

22   Camuldeen Allie, a cooperating witness, alleging prosecutorial

23   misconduct required a new trial, or at least an evidentiary

24   hearing, and that the district court erred in not granting their

25   requests for either.



                                     53
 1              We review the denial of a Rule 33 motion for a new

 2   trial for abuse of discretion.   See United States v. McCourty,

 3   562 F.3d 458, 475 (2d Cir. 2009).     Federal Rule of Criminal

 4   Procedure 33(a) provides that "[u]pon the defendant's motion, the

 5   court may vacate any judgment and grant a new trial if the

 6   interest of justice so requires."     In deciding a Rule 33 motion,

 7   "[t]he test is whether it would be a manifest injustice to let

 8   the guilty verdict stand."   United States v. Lin Guang, 511 F.3d

 9   110, 119 (2d Cir. 2007) (internal quotation marks omitted).      "For

10   a trial judge to grant a Rule 33 motion, he must harbor a real

11   concern that an innocent person may have been convicted."    Id.

12   (internal quotation marks omitted).    To merit relief based on a

13   claim of newly discovered evidence, the burden is on the

14   defendant to satisfy five elements: (1) that the evidence is

15   "newly discovered after trial"; (2) that "facts are alleged from

16   which the court can infer due diligence on the part of the movant

17   to obtain the evidence"; (3) that "the evidence is material"; (4)

18   that the evidence "is not merely cumulative or impeaching"; and

19   (5) that "the evidence would likely result in an acquittal."

20   United States v. Owen, 500 F.3d 83, 88 (2d Cir. 2007) (internal

21   citations omitted).

22              The district court concluded that the allegations

23   contained in Allie's letter –- that an Assistant United States

24   Attorney had coerced him into testifying –- were "a fabrication."

25   James I, 2009 WL 763612, at *7, 2009 U.S. Dist. LEXIS 23706, at

26   *21.   The court found that the AUSA Allie accused of coercing him

                                      54
 1   had not yet joined the U.S. Attorney's Office at the time when

 2   Allie alleges he was coerced, that Allie had testified that no

 3   members of the prosecution team in this case were present during

 4   the negotiations that led to his cooperation, and that Allie was

 5   represented by counsel when he decided to cooperate.   Id., 2009

 6   U.S. Dist. LEXIS 23706, at *20-*21.   Furthermore, in his letter,

 7   Allie does not ever disclaim his testimony, or suggest it was

 8   anything but truthful.   Id. at *8, 2009 U.S. Dist. LEXIS 23706,

 9   at *21.    Finally, the defendants knew that Allie had a motive to

10   cooperate with the government because it was elicited on cross-

11   examination that the government might let the state parole board

12   know of his cooperation.    Id., 2009 U.S. Dist. LEXIS 23706, at

13   *21-*22.

14               While it may be that the contents of the letter provide

15   a reason to doubt Allie's credibility, "a new trial is not

16   required when the suppressed impeachment evidence merely

17   furnishes an additional basis on which to impeach a witness whose

18   credibility has already been shown to be questionable."    United

19   States v. Parkes, 497 F.3d 220, 233 (2d Cir. 2007) (internal

20   quotation marks omitted).   In any event, there is no "reasonable

21   probability" that the outcome of the defendants' trial would have

22   been different had the contents of Allie's letter been disclosed,

23   even if believed.   See In re Terrorist Bombings of U.S. Embassies

24   in E. Africa, 552 F.3d at 146.



25

                                      55
1             VIII.   Cumulative Error

2             Finally, having concluded that there has been no error

3   in the defendants' trial, it follows that we must reject their

4   claim of cumulative error.   "[That] doctrine finds no foothold in

5   th[ese] appeal[s]."   United States v. Fell, 531 F.3d 197, 233 (2d

6   Cir. 2008) (internal quotation marks omitted).

7                                CONCLUSION

8             For the foregoing reasons, we affirm the judgments of

9   the district court.




                                     56
  


Case # 09-2732-cr (L)
United States v. James


              EATON, Judge, concurring:

              Because of the unsettled state of the law, I agree that the admission into evidence of the

autopsy report prepared by Dr. Jindrak did not constitute plain error. United States v. Gamez,

577 F.3d 394, 400 (2d Cir. 2009) (“Typically, we will not find plain error ‘where the operative

legal question is unsettled.’”) (citations omitted). I respectfully part company with the majority,

however, on its conclusion that the autopsy report was “not testimonial” for purposes of the

Confrontation Clause.

              The majority reads recent Supreme Court cases as holding that “a statement triggers the

protections of the Confrontation Clause when it is made with the primary purpose of creating a

record for use at a later criminal trial.” This formulation, however, appears to place too much

emphasis on future use in a criminal trial being the primary purpose for the creation of a

testimonial statement. I would not find that this “primary purpose” is the common thread in the

Supreme Court’s jurisprudence.1 Rather, I would find that a testimonial statement is one having




                                                            
              1
                The Supreme Court’s use of the “criminal trial” language, while not entirely
consistent, tends toward the same idea. Compare Bullcoming v. New Mexico, 131 S. Ct. 2705,
2714 n.6 (2011) (quoting Davis’ “’potentially relevant to a later criminal prosecution’” language
in the context of a blood-alcohol test requested by the prosecutor), Michigan v. Bryant, 131 S.
Ct. 1143, 1148 (2011) (employing Davis’ “’potentially relevant to a later criminal prosecution’”
language in the context of a police interrogation), and Davis v. Washington, 547 U.S. 813, 822
(2006) (articulating the “potentially relevant to a later criminal prosecution” language in the
context of a 911 call), with Melendez–Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009)
(quoting Crawford’s “‘available for use at a later trial’” language in the context of a laboratory
report requested by the police), and Crawford v. Washington, 541 U.S. 36, 51–52 (2004) (listing
“available for use at a later trial” among the “[v]arious formulations” of the “core class” of
testimonial statements).


                                                               1
 
  


an evidentiary purpose, declared in a solemn manner, and made under circumstances that would

lead a reasonable declarant to understand that it would be available for use prosecutorially.

               The point of departure for this analysis is Crawford. As I read that case and those that

follow it, there are three key considerations for determining if a statement is testimonial. First,

“[t]estimony” is “a solemn declaration or affirmation made for the purpose of establishing or

proving some fact.”2 Crawford v. Washington, 541 U.S. 36, 51 (2004) (citation and internal

quotation marks omitted). Thus, at the time of its making, the statement must have an

“evidentiary purpose.” Bullcoming v. New Mexico, 131 S. Ct. 2705, 2717 (2011); Melendez–

Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009). In other words, to be testimonial the

declarant must make the statement to “prove past events.” Davis v. Washington, 547 U.S. 813,

822 (2006). Statements relating ongoing events made to achieve some other purpose, such as

receiving medical or police assistance, and forward-looking statements, such as those made in

furtherance of a conspiracy or to elicit inculpatory statements from others, lack the required

purpose. Michigan v. Bryant, 131 S. Ct. 1143, 1157 (2011) (statement made by a mortally

wounded victim in need of medical attention did not have an evidentiary purpose); Davis, 547

                                                            
              2
                Interestingly, not only did “several early American authorities flatly reject[] any
special status for coroner statements,” the historical precursors of modern medical examiners’
reports, one of the cases cited in Crawford also stands for the proposition that evidence produced
by coroners’ investigations requires confrontation, even though the purpose of those
investigations was not a purely prosecutorial one. Crawford, 541 U.S. at 47 n.2 (citing State v.
Campbell, 30 S.C.L. 124, 130 (S.C. App. L. 1844) (“The general object, at least, of our Act,
would seem to be, to record the whole of the information obtained upon any inquest concerning
the sudden or violent death of a man, for the purpose of a prosecution, for satisfaction, or any
investigation of the public, or of individuals concerned. So much is due to the living and the
dead. Sudden and unnatural deaths shock us all. . . . And let me here observe, that the
information and publication of the kind of death, the wound, time and manner, place and
circumstances, may often lead to unlooked for charges against unsuspected persons, and even of
men abroad. And shall they all be assumed . . . [not to require] cross-examination? Because our
Act is general for all inquests, the examination public, and of high respectability? On the
contrary, is there not too much of mere formula, if not fiction, in such a notion?”).

                                                               2
 
  


U.S. at 822 (statements about ongoing events during a 911 call did not have an evidentiary

purpose); United States v. Farhane, 634 F.3d 127, 131–32, 162–63 (2d Cir. 2011) (statements

promising future aid in a conspiracy did not have an evidentiary purpose); United States v.

Burden, 600 F.3d 204, 225 (2d Cir. 2010) (recorded statements of a cooperating witness made to

induce a confession did not have an evidentiary purpose); cf. United States v. Logan, 419 F.3d

172, 178 (2d. Cir. 2005) (finding alibi statements made to police were testimonial).

        Second, the statement must have been made in a way that is sufficiently solemn so as to

make it more like “‘a formal statement to government officers’” rather than “‘a casual remark

[made] to an acquaintance.’” Bryant, 131 S. Ct. at 1153 (quoting Crawford, 541 U.S. at 51);

Davis, 547 U.S. at 822 (quoting Crawford, 541 U.S. at 51). This does not mean that the

statement must be contained in a formal written document, but merely that the circumstances

surrounding its utterance must be such that a reasonable declarant would be aware of the serious

nature of his or her declaration. Davis, 547 U.S. at 826 (citing Crawford, 541 U.S. at 51).

        Finally, the statement must reasonably be understood as being “available for use at a later

trial.” Melendez–Diaz, 129 S. Ct. at 2532 (quoting Crawford, 541 U.S. at 52). That is, the

speaker need not expect that the statement will be used in a criminal trial, or even that it is

objectively likely that the statement will be used in a criminal trial, only that it is foreseeable that

the statement could be used prosecutorially. Bryant, 131 S. Ct. at 1169 (Scalia, J. dissenting)

(“[H]e must make the statement with the understanding that it may be used to invoke the

coercive machinery of the State.”); see also Melendez–Diaz, 129 S. Ct. at 2532 (“[T]he affidavits

[were] ‘made under circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.’” (quoting Crawford, 541 U.S. at

52)).



                                                   3
 
  


       Applying this formulation, it is evident that the admission of Dr. Jindrak’s report

triggered the Confrontation Clause. First, the autopsy report was, inarguably, created to establish

facts regarding the death of Mr. Somaipersaud. The report and its incorporated laboratory

analyses contain five final diagnoses, two statements of cause of death, detailed descriptions of

various portions of Mr. Somaipersaud’s body, and calculated levels of toxins, all of which are

factual statements.

       Second, the report is sufficiently solemn. All reports generated by the New York City

Office of Chief Medical Examiner (“OCME”) are required to “be signed by the medical

examiner performing the autopsy.” N.Y.C. Admin. Code § 17-203 (1998). These reports are

made by government officials for use by government officials. See United States v. Feliz, 467

F.3d 227, 2337 (2d Cir. 2006) (observing that OCME reports would qualify for the public

records hearsay exception, which requires that the statement be made by a public officer or

agency). Indeed, even if OCME did not have a long history of cooperation with law

enforcement, all autopsy reports would remain statements made directly to law enforcement

insofar as they are statutorily required to be available to law enforcement officers and

prosecutors. N.Y.C. Admin. Code § 17-205 (1998) (“The appropriate district attorney and the

police commissioner of the city may require from [OCME] such further records, and such daily

information, as they may deem necessary.”) Moreover, like the reports in Bullcoming and

Melendez–Diaz, Dr. Jindrak’s report contains a certification.

       Third, it could have reasonably been anticipated that the autopsy report would be

available for use in a criminal trial. Medical examiners working for OCME are statutorily

obligated to make conclusions as to causes of death, to record the reasons for those conclusions,

and to preserve those records for future use. N.Y.C. Admin. Code § 17-203 (“A detailed



                                                 4
 
  


description of [those] findings . . . shall be written or dictated. . . . The findings of the

investigation at the scene of death, the autopsy and any toxicologic, histologic, serologic and

microbiologic examinations, and the conclusions drawn therefrom shall be filed in the office of

chief medical examiner.”).

        Even if it could not have been reasonably foreseen at the outset of the autopsy that the

report’s results would be used in a later trial, it seems clear that, at some point during her

examination, Dr. Jindrak would reasonably have anticipated that it could be used later in a

criminal prosecution. That is, once she certified that the primary cause of death was “acute

mixed intoxication with alcohol and chlorpromazine,” i.e., that Mr. Somaipersaud had been

poisoned, a reasonable medical examiner would have anticipated that the autopsy report could be

used prosecutorially. See Bryant, 131 S. Ct. at 1159 (observing that non-testimonial statements

may “evolve into testimonial statements” as more information is provided (quoting Davis, 547

U.S. at 828 (internal quotation marks omitted))).

        When a statement such as Dr. Jindrak’s autopsy report is introduced against a defendant

at a criminal trial, that evidence is “functionally identical to live, in-court testimony, because [it

does] ‘precisely what a witness does on direct examination,’” rendering its declarant a “witness”

and triggering the protections of the Confrontation Clause. Melendez–Diaz, 129 S. Ct. at 2532

(quoting Davis, 547 U.S. at 830); see also Bullcoming, 131 S. Ct. at 2712; Crawford, 541 U.S. at

51.

        James was both charged with and convicted of murder and conspiracy to commit murder.

The prosecution’s theory was that Mr. Somaipersaud had been poisoned. The prosecution

offered the autopsy report to establish the very same facts, prejudicial to Mr. James, about which

Dr. Jindrak would have been expected to testify at trial. Indeed, on direct examination, Dr.



                                                    5
 
  


Ambrosi was asked both to identify Dr. Jindrak’s conclusions as to cause of death and to state

whether she agreed with those conclusions.

              Moreover, I believe that the admission of any medical examiner’s report prepared by

OCME would trigger the protections of the Confrontation Clause.3 Dr. Jindrak’s report was not

unique in the sense that the characteristics that made it testimonial are present in all autopsy

reports prepared by OCME that are introduced against a defendant at a criminal trial. All such

reports are made to establish facts about the cause of death of the decedent; they are made by and

to government officials in a formalized recording; they contain statements a medical examiner

could reasonably foresee would be used in a criminal prosecution; and if a prosecutor seeks to

introduce a report for its truth, it would substitute for live testimony adverse to the defendant.

              As noted, I believe that the majority’s approach goes astray by suggesting that to trigger

the Confrontation Clause the “primary purpose” of an autopsy report must be use “at a later

criminal trial.” This formulation postulates the existence of a medical examiner who gives

adverse testimony but who is not a “witness” for Confrontation Clause purposes because he or

she did not prepare the autopsy report primarily for use in criminal proceedings. In doing so, the

opinion creates the very “third category of witnesses, helpful to the prosecution, but somehow

immune from confrontation” that Melendez–Diaz expressly says does not exist. Melendez–Diaz,

129 S. Ct. at 2534.

                                                            
              3
                 At least two other federal circuits and a number of state courts of last resort have
reached a similar conclusion regarding particular reports prepared by the equivalent of OCME in
their jurisdictions. See, e.g., United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012); United
States v. Moore, 651 F.3d 30 (D.C. Cir. 2011); State v. Navarette, 294 P.3d 435 (N.M. 2013);
State v. Kennedy, 735 S.E.2d 905 (W. Va. 2012); Conners v. State, 92 So.3d 676 (Miss. 2012)
(noting a pre-Crawford decision that held admission of an autopsy report required
confrontation); State v. Locklear, 681 S.E.2d 293 (N.C. 2009); see also People v. Lewis, 806
N.W.2d 295 (Mich. 2011) (vacating lower court’s holding that an autopsy report was non-
testimonial but holding the error harmless without significant discussion); Wood v. State, 299
S.W.3d 200 (Tex. Ct. App. 2009), review denied, 2010 Tex.Crim.App. LEXIS 115 (2010).
                                                               6
 
  


       Finally, as the Eleventh Circuit points out, “[m]edical examiners are not mere scriveners”

and “autopsy reports are the product of the skill, methodology, and judgment of the highly

trained examiners who actually performed the autopsy.” United States v. Ignasiak, 667 F.3d

1217, 1232 (11th Cir. 2012) (holding autopsy reports to be testimonial and requiring

confrontation) (citing Bullcoming, 131 S. Ct. at 2714). Both Bullcoming and Melendez–Diaz

hold that a laboratory analyst’s report of sufficient solemnity triggers the protections of the

Confrontation Clause. It would be incongruous indeed, if an autopsy report requiring numerous

skilled judgments on the part of a medical examiner, did not require the same confrontation.




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