     04-1369-cr
     United States v. Hardwick

 1                            UNITED STATES COURT OF APPEALS
 2
 3                                   FOR THE SECOND CIRCUIT
 4
 5                                     August Term, 2005
 6
 7   (Argued:     January 23, 2006                      Decided: April 11, 2008)
 8
 9                    Docket Nos. 04-1369-cr(L), 04-2886-cr(CON)
10
11
12   UNITED STATES OF AMERICA,
13
14         Appellee,
15
16                -      v.      -
17
18   STACEY HARDWICK and GLEN HARDWICK,
19
20         Defendants-Appellants.
21
22
23   B e f o r e:        WINTER, WALKER, and SOTOMAYOR, Circuit Judges.
24
25         Appeal from a conviction in the United States District Court

26   for the Southern District of New York (Richard C. Casey, Judge)

27   following a jury trial.            Appellant contends that the district

28   court violated his Sixth Amendment rights by admitting hearsay

29   statements from his co-conspirator's plea allocution.            We vacate

30   the conviction and remand.

31
32                                           SUSAN V. TIPOGRAPH (Thomas Eddy, on
33                                           the brief) New York, New York, for
34                                           Defendant-Appellant Glen Hardwick.
35
36




                                               1
 1                                  BENJAMIN M. LAWSKY, Assistant
 2                                  United States Attorney (David N.
 3                                  Kelley, United States Attorney for
 4                                  the Southern District of New York,
 5                                  and Karl Metzner, Assistant United
 6                                  States Attorney, of counsel),
 7                                  United States Attorney's Office for
 8                                  the Southern District of New York,
 9                                  New York, New York, for Appellee.
10
11   WINTER, Circuit Judge:
12
13        Glen Hardwick appeals from a conviction after a jury trial

14   before Judge Casey.1   He was found guilty of conspiracy to commit

15   and aiding and abetting a murder-for-hire, both in violation of
16   18 U.S.C. § 1958.   In light of the Supreme Court's decision in

17   Crawford v. Washington, 541 U.S. 36 (2004), he argues that the

18   district court committed plain error in violation of the Sixth

19   Amendment's Confrontation Clause when it permitted a plea

20   allocution by his brother and co-conspirator, Stacey Hardwick, to

21   be read into evidence.   Glen further contends that there was

22   legally insufficient evidence to prove the consideration element

23   of the underlying murder-for-hire offense.

24        The admission of Stacey's plea allocution was plain error
25   under Crawford.   See Johnson v. United States, 520 U.S. 461, 466-

26   67 (1997).   We must therefore vacate Glen's conviction.   However,

27   because the evidence presented at trial -- including the

28   improperly admitted plea allocution, United States v. Cruz, 363

29   F.3d 187, 197 (2d Cir. 2004) -- was legally sufficient to prove

30   Section 1958's consideration element, we vacate, but do not

31   reverse, the conviction and remand for further proceedings.

32                               BACKGROUND


                                      2
 1        Viewing the evidence in the light most favorable to the

 2   government, see United States v. Wilkerson, 361 F. 3d 717, 721

 3   (2d Cir. 2004), we recount the evidence at trial.

 4        In late March 2002, the New York Police Department began an

 5   investigation into the sale of narcotics at the Skate Key, a

 6   skating rink and party venue in the Bronx.     On March 23, 2002,

 7   Detective Marco Trujillo, in his undercover persona "Antonio,"

 8   purchased cocaine and marijuana from Stacey, who was working the

 9   door of the Skate Key.   In a conversation, Trujillo discussed his
10   desire to "do[] future business" with Stacey, i.e., purchase

11   drugs and guns from Stacey.   Trial Tr. 145.

12        In a series of transactions over the next several months,

13   Trujillo purchased varying quantities of cocaine and five guns

14   from Stacey.   As part of his cover, Trujillo claimed that he was

15   an organized crime hit man and was constantly in need of new guns

16   because he would use a gun only once, disposing of it after a

17   killing to eliminate any evidence linking him to the murder.

18        On September 8, 2002, while in New Jersey, Trujillo received
19   a voice message from Stacey on his cellular telephone, requesting

20   that Trujillo call Stacey back immediately.     When Trujillo

21   returned Stacey's call, Stacey stated that a neighbor had pulled

22   a gun on his brother Glen.    Stacey told Trujillo that he wanted

23   this neighbor to "go away," i.e., be killed, and if Trujillo

24   could not do it, then Stacey would find someone else.     Trial Tr.

25   173-74.   Trujillo told Stacey that he would take the job, but "on

26   the agreement that [Trujillo] would take a gun for payment."        Id.

                                       3
 1   Trujillo informed Stacey that he would do the murder within a

 2   week.

 3           On the morning of September 10, Trujillo recorded the first

 4   of two telephone conversations with Stacey that day.2       During the

 5   first conversation, Trujillo informed Stacey that he would do the

 6   murder that night.    Trujillo talked to Stacey (in coded terms)

 7   about procuring the gun he would use for the murder.       Trujillo

 8   told Stacey that he was not going to charge Stacey for the hit,

 9   but that he needed two guns, "[o]ne for [Trujillo's] problem, one
10   for [Stacey's] problem."     Telephone Tr. 1, at 2.     Trujillo

11   informed Stacey that he was willing to do the killing "as a

12   friendly gesture" and would pay for one gun but that the other

13   gun would be Stacey's "cost."       Id.   Stacey, however, was

14   unwilling to part with both weapons, claiming he needed at least

15   one of them.

16           Approximately one hour later, Trujillo called Stacey, and

17   they agreed to meet at the Olympic Diner on Jerome Avenue in the

18   Bronx at five o'clock that evening.        Trujillo again requested
19   that Stacey bring two guns to the meeting.        Stacey refused,

20   claiming that he could bring only one because he and Glen needed

21   the other.     Trujillo grew angry at this development and told

22   Stacey, "you know what . . . you better bring some fuckin' cash

23   too.     You want this done the right way, you bring some fuckin'

24   cash."     Telephone Tr. 2, at 3.    The men agreed that Glen would

25   join them at the meeting.

26           After meeting with other officers, Trujillo, wearing two

                                          4
 1   recording devices, went to the Olympic Diner.3   When Stacey

 2   arrived, he was alone but informed Trujillo that Glen was outside

 3   in a truck with the gun.   Stacey told Trujillo that he needed "a

 4   little bit of cash too" for the gun.   Olympic/McDonald’s Tr. 8.

 5   Trujillo became upset at Stacey's request for payment when

 6   Trujillo was "doing a job" for him, id., and responded, "lemme

 7   see the part [gun] and, I'll tell you what, I'll give you a

 8   couple . . . but why didn't you bring the other fucking thing

 9   [gun], I would've gave you money for that."   Id.   When Trujillo

10   asked Stacey, "[w]hat're you looking at" –- i.e., how much money

11   do you want for the gun -- Stacey replied, "at least a thousand."

12   Id.   Trujillo expressed disbelief at the request, but Stacey

13   replied, "No, No, No, Lemme tell you what he [Glen] was asking.

14   This is what he was asking . . . because he was gonna get rid of

15   it.   But I said no, you can't get rid of it when you have this

16   fuckin' cockaroach [the intended victim] out there, right."     Id.

17   at 9.

18         Shortly after this exchange, a waitress and her boyfriend
19   began having a loud dispute; when the waitress threatened to call

20   the police, Stacey became nervous and suggested relocating to a

21   McDonald's down the street.   On Trujillo's way to the McDonald's

22   (and while coordinating the new location with his undercover

23   team), Stacey and Glen approached Trujillo, and Trujillo

24   introduced himself to Glen.   Stacey offered to make the necessary

25   exchanges -- the transfer of the gun and the information on how

26   to locate the intended victim -- right there, but Trujillo

                                      5
 1   refused, insisting that Stacey and Glen both join him at the

 2   McDonald's.

 3          Once in McDonald's, Trujillo, Stacey, and Glen sat together

 4   at a table.    Stacey had brought the gun in a paper bag from his

 5   car into the McDonald's; when he took the gun out and tried to

 6   hand it to Trujillo across the table, Trujillo told Stacey to

 7   leave the gun in the bag.     Glen gave Trujillo details on the

 8   intended victim's physical appearance (nationality, height, hair

 9   color, and usual attire) as well as where and when he could be
10   found.    Glen gave Trujillo a pen to write the location down on

11   the bag containing the gun.     Trujillo then told Glen that he was

12   doing the murder "as a friend to [Stacey] . . . as a good gesture

13   to [Stacey] because [Trujillo] fucked him on something . . . a

14   misunderstanding."     Id. at 21.

15          Stacey concluded the conversation with "Let's do what we

16   gotta do.     Alright"; Trujillo responded, "Alright.    No problem,

17   I'm going over to my car right now, let's go."     Id.   Stacey

18   replied, "Yo . . . you got any change on you," and Trujillo said,
19   "Yeah, in my car."     Id.   Stacey then asked that they go "pick it

20   up."    Id.   As they were exiting, Trujillo began saying "it's a

21   done deal," which was the code for his police team to come in and

22   make the arrest.     Id. at 22-23.

23          Glen was charged in a four-count indictment with:    (i)

24   conspiring to commit murder-for-hire, in violation of 18 U.S.C. §

25   1958; (ii) aiding and abetting a murder-for-hire, in violation of

26   18 U.S.C. §§ 1958 and 2; and two other counts dropped by the

                                          6
 1   government prior to Glen's trial.     Also prior to Glen's trial,

 2   Stacey pleaded guilty to, inter alia, conspiring to commit

 3   murder-for-hire and committing murder-for-hire.

 4        Glen's trial commenced on June 17, 2003.     The jury heard

 5   recordings of various telephone calls between Stacey and Trujillo

 6   as well as of the face-to-face meeting between Trujillo, Stacey,

 7   and Glen.   Trujillo testified extensively in front of the jury

 8   about his undercover operation, the events leading up to Stacey's

 9   and Glen's arrests, and his interpretation of the various
10   recordings played for the jury.     The court also allowed Stacey's

11   plea allocution to be admitted into evidence.     While it did not

12   mention Glen, the allocution stated that Stacey "agreed and

13   conspired to cause [another] person to travel in interstate

14   commerce with the intent that a murder be committed in exchange

15   for payment.   The payment for the intended murder was a .32

16   caliber pistol."   Plea Tr. 18, May 30, 2003.    The defense

17   objected to the reading of the plea allocution and requested that

18   limiting instructions be given to the jury.     The district judge
19   agreed and told the jury that it could "consider these statements

20   as evidence of the activities of the person who made the

21   statement and that is relevant to this case," but that the

22   statements could be considered only as to whether a conspiracy

23   existed and "[w]hether the crime of murder for hire was committed

24   as part of that conspiracy."   Trial Tr. 582.    The judge cautioned

25   that "[t]he question whether the defendant Glen Hardwick

26   participated in the conspiracy . . . is an issue for which you

                                       7
 1   will have to rely on other evidence. . . .     There is nothing in

 2   Stacey Hardwick's statement that answers" the question of whether

 3   Glen participated in the conspiracy.     Id. at 582-83.

 4        While deliberating, the jury asked for, and received, a re-

 5   reading of the portion of the transcript containing Stacey's plea

 6   allocution and a replaying of the recordings of both September 10

 7   phone conversations.   The jury returned with verdicts of guilty

 8   on both counts of the indictment.

 9                               DISCUSSION

10        On appeal, Hardwick challenges his conviction on the

11   following two grounds.   First, in light of the Supreme Court's

12   decision in Crawford v. Washington, 541 U.S. 36 (2004), he

13   contends that the district court's admission of Stacey's plea

14   allocution violated the Sixth Amendment's Confrontation Clause.

15   Second, Glen argues that the evidence was legally insufficient to

16   prove the consideration element of the substantive murder-for-

17   hire offense.   We address each of these claims in turn.

18   a)   Confrontation Clause Claim
19        The government concedes that under the Supreme Court's

20   decision in Crawford, the admission of Stacey's plea allocution

21   was in error.   However, the government argues that we are limited

22   to plain error review because Glen's counsel failed to raise a

23   Confrontation Clause objection at trial.

24        Although defense counsel made a general objection to the

25   reading of Stacey's allocution (and asked for a limiting

26   instruction, which was given), she did not mention the

                                       8
 1   Confrontation Clause, the Sixth Amendment, or any Confrontation

 2   Clause caselaw in her objection.       The objection failed to "put

 3   [the] trial court on notice that Confrontation Clause concerns

 4   [were] implicated"; thus, harmless error review is inappropriate,

 5   and we review the constitutional issue for plain error.      United

 6   States v. Dukagjini, 326 F.3d 45, 60 (2d Cir. 2002).4

 7        For us to correct an error not raised at trial, "there must

 8   be (1) error, (2) that is plain, and (3) that affects substantial

 9   rights."   Johnson, 520 U.S. at 466-67 (internal quotation marks
10   and alterations omitted).   "If all three conditions are met, an

11   appellate court may then exercise its discretion to notice a

12   forfeited error, but only if (4) the error seriously affect[ed]

13   the fairness, integrity, or public reputation of judicial

14   proceedings."   Id. at 467 (internal quotation marks omitted).

15   Because the error here was not "structural," in other words, a

16   "defect affecting the framework within which [a] trial proceeds,"

17   Arizona v. Fulminante, 499 U.S. 279, 310 (1991), we will conclude

18   that it affected the defendant's substantial rights only if the
19   error was "prejudicial" to the defendant and "affect[ed] the

20   outcome of the district court proceedings," United States v.

21   Bruno, 383 F.3d 65, 79 (2d Cir. 2004).

22        The admission of Stacey's plea allocution against Glen meets

23   the test for reversible plain error.       "An error is 'plain' if it

24   is 'clear' or 'obvious' at the time of appellate consideration."

25   United States v. Thomas, 274 F.3d 655, 667 (2d Cir. 2001).

26   Although co-conspirator plea allocutions were admissible under


                                        9
 1   our caselaw at the time of Glen's trial, we have since held that

 2   they are testimonial hearsay and are inadmissible under the

 3   Confrontation Clause unless the co-conspirator testifies at

 4   trial, or is unavailable at trial and the defendant had a prior

 5   opportunity for cross-examination.    United States v. Becker, 502

 6   F.3d 122, 129-30 (2d Cir. 2007);     United States v. McClain, 377

 7   F.3d 219, 22 (2d Cir. 2004); see also Crawford, 541 U.S. at 53-

 8   54.   Because the plea allocution was admitted without meeting

 9   these requirements, the error is plain.
10         Furthermore, the plea allocution affected Glen's substantial

11   rights because it almost surely influenced the jury's verdict.

12   Bruno, 383 F.3d at 79 (2d Cir. 1999) ("[A]n error affects a

13   defendant's substantial rights if it is prejudicial and it

14   affected the outcome of the district court proceedings."

15   (internal quotation marks omitted)).     As discussed below, the

16   sufficiency issue with regard to the consideration element of the

17   murder-for-hire statute is close.     Without the plea allocution,

18   the issue largely turns on Stacey's state of mind as inferred
19   from the recorded conversations.     With the plea allocution, the

20   issue is much easier because the allocution was a direct

21   admission by Stacey that he intended the pistol he gave to

22   Trujillo to constitute a quid pro quo for Trujillo's promise to

23   murder the victim.   As such, the plea allocution almost certainly

24   contributed to the jury's verdict.

25         First, the judge's limiting instructions informed the jury

26   that it should not consider the allocution as evidence that Glen


                                     10
 1   was part of the murder-for-hire conspiracy but that it could

 2   consider the plea allocution as evidence that Stacey had violated

 3   the murder-for-hire statute in his dealings with Trujillo.    Thus,

 4   the jury was explicitly permitted to consider the plea allocution

 5   on the issue of whether the gun constituted consideration for

 6   Trujillo's promise to murder the victim -- an issue as to which

 7   the evidence, absent the plea allocution, was very close.     Cf.

 8   Bruno, 383 F.3d at 80.

 9        Second, the government referred specifically to the plea
10   allocution in its closing arguments, stating "you have Stacey

11   Hardwick's guilty plea allocution, where he admitted to

12   conspiracy to commit a murder-for-hire.    There is no dispute that

13   a conspiracy existed."   Trial Tr. 707.   Finally, the plea

14   allocution was re-read to the jury at their request during

15   deliberations.   Indeed, it is extremely doubtful that the jury

16   even examined other evidence going to Stacey's state of mind,

17   given the nature and force of the plea allocution.

18        Therefore, the fairness and integrity of the proceedings in
19   this case were seriously affected by the unconstitutional

20   admission of the hearsay statements in Stacey's plea allocution.

21   Thomas, 274 F.3d at 671.   As a result, we vacate the judgment of

22   conviction.

23   b)   Sufficiency of the Evidence

24        Glen also challenges his conviction by contesting, inter

25   alia, the sufficiency of the evidence with respect to Section

26   1958's consideration element.   Glen argues that Stacey did not


                                     11
 1   intend the gun he gave Trujillo to be something of "pecuniary

 2   value" in exchange for Trujillo's promise to murder the intended

 3   victim.

 4        1.   Murder-for-Hire Under 18 U.S.C. § 1958

 5        The murder-for-hire statute provided:

 6        Whoever . . . uses or causes another . . . to use the
 7        mail or any facility in interstate or foreign commerce,
 8        with intent that a murder be committed in violation of
 9        the laws of any State or the United States as
10        consideration for the receipt of, or as consideration for
11        a promise or agreement to pay, anything of pecuniary
12        value, or who conspires to do so, shall [be guilty of a
13        crime under this section].
14
15   18 U.S.C. § 1958(a) (2000).   "The federal murder-for-hire statute

16   proscribes a very limited category of behavior; only those

17   instances in which one party agrees to commit a murder in

18   exchange for another party's provision (or future promise) of

19   payment are punishable under § 1958."   United States v. Frampton,

20   382 F.3d 213, 217 (2d Cir. 2004).

21        The consideration requirement of Section 1958 is interpreted

22   in "the traditional sense of bargained for exchange," United

23   States v. Wicklund, 114 F.3d 151, 154 (10th Cir. 1997), so that
24   there must be a "quid-pro-quo (or at least the promise of such)

25   between the parties to the transaction," United States v.

26   Hernandez, 141 F.3d 1042, 1057 (11th Cir. 1998).   See also United

27   States v. Richeson, 338 F.3d 653, 657 (7th Cir. 2003)

28   ("[C]onsideration retains its contract law meaning of a

29   bargained-for exchange of something of value."); United States v.

30   Washington, 318 F.3d 845, 854 (8th Cir. 2003).

31        When the defendant is the solicitor of the murder-for-hire,

                                     12
 1   it is the defendant's intent that controls.   Richeson, 338 F.3d

 2   at 656 ("The federal murder-for-hire statute requires the

 3   government to prove that the accused intended for a murder to be

 4   committed" as consideration for something of pecuniary value.

 5   (emphasis added)).   The nature of the solicitor's intent is

 6   especially important when the would-be murderer is an undercover

 7   agent who by definition never intends to commit the crime.     See

 8   generally United States v. Ritter, 989 F.2d 318, 321 (9th Cir.

 9   1993) (reversing convictions for conspiracy to commit murder-for-
10   hire for two defendants:   the first did not know anyone was paid

11   to commit the murder; the second also lacked the required intent

12   because the government agent pretending to be a hit man said he

13   would not charge anything for the murder).

14        Under Section 1958, the term "anything of pecuniary value"

15   is defined as "anything of value in the form of money, a

16   negotiable instrument, a commercial interest, or anything else

17   the primary significance of which is economic advantage."      18

18   U.S.C. § 1958(b)(1).   The promise of a future, unspecified favor
19   -- in the absence of any evidence suggesting that either party to

20   the agreement had an understanding of what form such a favor

21   would take -- does not constitute pecuniary value under Section

22   1958.   Frampton, 382 F.3d at 219.   However, the pecuniary value

23   requirement is satisfied, for example, by the payment or promise

24   of sale-level quantities of drugs, Washington, 318 F.3d at 854,

25   insurance proceeds, Hernandez, 141 F.3d at 1057-58, or a promise

26   to reimburse a hit man for a firearm purchase in addition to


                                     13
 1   letting him keep the firearm, Richeson, 338 F.3d at 656-57.

 2   Thus, "the mere fact that the consideration offered . . . could

 3   inure to the economic benefit of the [murderer] is insufficient.

 4   Rather, there must be some evidence to establish that at the time

 5   the agreement was formed, the consideration was something the

 6   'primary significance' of which lay in its 'economic advantage.'"

 7   Frampton, 382 F.3d at 219 (quoting 18 U.S.C. § 1958(b)(1)).

 8        2.   Application

 9        Although we "review a claim of insufficient evidence de
10   novo[,] . . . a defendant challenging his verdict on sufficiency

11   grounds bears a heavy burden.   We must uphold the jury's verdict

12   if we find that any rational trier of fact could have found the

13   essential elements of the crime beyond a reasonable doubt."

14   United States v. Lewter, 402 F.3d 319, 321 (2d Cir. 2005)

15   (internal quotation marks, citations, and alterations omitted).

16   Moreover, "[w]e are to view the evidence, whether direct or

17   circumstantial, in the light most favorable to the government,"

18   United States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993), and
19   defer to the jury by "resolv[ing] all inferences from the

20   evidence and issues of credibility in favor of the verdict,"

21   United States v. Howard, 214 F.3d 361, 363 (2d Cir. 2000).     We

22   consider the evidence in its totality and "'may not substitute

23   our own determinations of credibility or relative weight of the

24   evidence for that of the jury.'"     United States v. Dhinsa, 243

25   F.3d 635, 648 (2d Cir. 2001) (quoting United States v. Autuori,

26   212 F.3d 105, 114 (2d Cir. 2000)).


                                     14
 1        In circumstances where, as here, "some government evidence

 2   was erroneously admitted, we must make our determination

 3   concerning sufficiency taking into consideration even the

 4   improperly admitted evidence."   Cruz, 363 F.3d at 197; see also

 5   Lockhart v. Nelson, 488 U.S. 33, 39-40 (1988) (holding that

 6   "where the evidence offered by the State and admitted by the

 7   trial court -- whether erroneously or not -- would have been

 8   sufficient to sustain a guilty verdict, the Double Jeopardy

 9   Clause does not preclude retrial"); Bruno, 383 F.3d at 81 ("[I]n
10   assessing a legal-sufficiency challenge, we must consider

11   improperly admitted hearsay testimony."); United States v. Glenn,

12   312 F.3d 58, 67 (2d Cir. 2002) (considering improperly admitted

13   testimony in evaluating a sufficiency challenge).5

14        Where "'the evidence is determined to be insufficient when

15   the improperly admitted evidence is excluded from the equation

16   but sufficient when the improperly admitted evidence is included

17   in the equation, the remedy is affected.   In such a case, retrial

18   rather than acquittal is the remedy.'"   Bruno, 383 F.3d at 90
19   n.20 (quoting Cooper v. McGrath, 314 F. Supp. 2d 967, 999 (N.D.

20   Cal. 2004)). If, however, we conclude that the evidence is

21   legally insufficient even with the improperly admitted hearsay,

22   the appropriate remedy is acquittal.   United States v. Santos,

23   449 F.3d 93, 95 (2d Cir. 2006) (noting that "the proper remedy

24   for a successful sufficiency of the evidence claim is

25   acquittal").

26        In order to convict Glen, a jury would have to find beyond a


                                      15
 1   reasonable doubt that Stacey intended the gun he provided

 2   Trujillo to serve as consideration (i.e., a quid pro quo) for

 3   Trujillo's promise to murder the intended victim.   Providing a

 4   gun as payment for committing murder violates Section 1958.      See

 5   Frampton, 382 F.3d at 219 (noting that consideration element

 6   could be satisfied where the consideration is "valuable

 7   firearms");   Richeson, 338 F.3d at 657 (finding the consideration

 8   element of Section 1958 established based on evidence that "[t]he

 9   payment offered took the form of money to buy the murder weapons,
10   with the promise to allow the murderer to keep the weapon when he

11   finished the job").   However, simply giving a hit man a gun to be

12   used only to commit the specific murder does not.   Thus, the jury

13   would have to find that Stacey thought Trujillo would not dispose

14   of the gun following this particular killing even though Trujillo

15   previously told Stacey that whenever he killed someone with a

16   gun, he always disposed of it to eliminate the evidence.    As

17   noted above, if we include Stacey's improperly-admitted plea

18   allocution in our analysis, the question becomes much easier.      In
19   his allocution, Stacey conceded that he "agreed and conspired to

20   cause [another] person to travel in interstate commerce with the

21   intent that a murder be committed in exchange for payment.     The

22   payment for the intended murder was a .32 caliber pistol."     Plea

23   Tr. 18, May 30, 2003.   This is a direct admission that the gun

24   was intended as "payment" for the murder and as such, it is

25   easily sufficient to prove Section 1958's consideration element

26   and to uphold the jury's verdict.    We therefore conclude that the


                                     16
 1   evidence was legally sufficient.6

 2        Excluding Stacey's plea allocution leaves a very different

 3   factual record; to convict, the jury would have to infer, from

 4   the recorded conversations, that Stacey intended the gun to serve

 5   as payment.    My colleagues would end the discussion here and not

 6   opine further on the sufficiency of the evidence absent the plea

 7   allocution.7   I believe, however, that, having said all that is

 8   set out above on the issue, we should, in the interests of

 9   efficiency, inform the parties of our views on the sufficiency
10   issue absent the plea allocution.8    My colleagues would intimate

11   no view on that matter.

12        Turning to that issue, and noting again that my colleagues

13   do not join in the discussion, I believe that at least one

14   scenario might reasonably be found by a jury to be sufficient to

15   meet Section 1958's consideration requirement.    To be sure, one

16   possible version of events is that Stacey fully expected, or even

17   hoped, that Trujillo would dispose of the weapon after killing

18   the victim, as Trujillo frequently stated.    As noted above, if
19   Stacey understood and intended that Trujillo would dispose of the

20   weapon after the murder, then the primary significance of the gun

21   was to enable the commission of the murder, not to provide

22   Trujillo with a "profit" for the crime.    Once the crime was

23   committed and the weapon disposed of, there would be no economic

24   value to the murderer.

25        A reasonable jury, however, might find an alternative

26   scenario, namely that Stacey was engaged in what he understood to


                                      17
 1   be a business negotiation in which the gun had value beyond its

 2   use in the anticipated murder, was either indifferent to or

 3   doubted Trujillo's stated willingness to dispose of the gun after

 4   the murder, and wanted to lower his "costs" by receiving some

 5   cash as well as the murder in exchange for the gun.   In my view,

 6   that state of mind would be sufficient to meet the quid pro quo

 7   requirement.

 8        A jury could easily find that Stacey, until the point of his

 9   arrest, wanted -- and even expected -- to be paid for the
10   firearm.   When Trujillo asked Stacey to get the murder weapon,

11   the following exchange took place:

12        Trujillo: Alright, go get me what I need and tell . . .
13        Stacey:   I need a little bit of cash too.
14        Trujillo: How much?
15        Stacey:   I brought you a box [gun] already so . . .
16        Trujillo: I'm fucking, I'm doing a job for you. . . .
17                  I'm doing a job for you . . . and you want me
18                  to pay you?
19                  . . . Lemme, lemme see the part [gun] and,
20                  I'll tell you what, I'll give you a couple .
21                  . . but why didn't you bring the other
22                  fucking thing, I would've gave you money for
23                  that.
24        Stacey:   Yo, I asked you a question, I cannot be left
25                  with . . .
26        Trujillo: What're you looking at?
27        Stacey:   . . . at least a thousand.
28        Trujillo: A thousand!
29        Stacey:   No, No, No, Lemme tell you what he [Glen] was
30                  asking. This is what he was asking . . . he
31                  was asking for . . . because he was gonna get
32                  rid of it. But I said no, you can't get rid
33                  of it when you have this fuckin' cockaroach
34                  [sic] out there, right . . .
35
36   Olympic/McDonald's Tr. 8-9. As the three men exited the

37   McDonald's, and right before Trujillo signaled for the arrest to

38   be made, Stacey still sought payment from Trujillo:


                                     18
 1        Stacey:   Let's do what we gotta do. Alright.
 2        Trujillo: Alright. No problem, I'm going over to my
 3                  car right now, let's go.
 4        Stacey:   Alright?
 5        Trujillo: Let's get out of here.
 6        Stacey:   Yo, uh . . . you got any change on you?
 7        Trujillo: Yeah, in my car.
 8        Stacey:   Let's go pick it up.
 9
10   Id. at 21.

11        Glen argues that these conversations show only that Stacey

12   intended to sell the gun, a state of mind inconsistent, in his

13   view of the evidence, with using the gun as payment for the
14   murder.   A jury, however, might also reasonably find that the

15   "sale" proposal indicated Stacey's indifference and doubt as to

16   Trujillo's intent to throw the gun away rather than keep it after

17   the murder.   It might well conclude that Stacey's demands

18   reflected a belief that Trujillo would pay some money for the gun

19   and commit the murder, acts that a jury might believe made sense

20   to Stacey only if the gun was to be kept after the murder.

21   Indeed, a jury might find that Stacey was encouraged in such a

22   belief by Trujillo's reaction, which, while incredulous at being

23   asked to pay for the gun, was hardly a refusal.   In fact,
24   Trujillo mentioned that he could "give [Stacey] a couple," id. at

25   8, and Stacey was about to go to Trujillo's car to get the

26   "change" when arrested, id. at 21.

27        In my view, a rational jury could therefore infer that

28   Stacey's demand for cash and a failure to insist that Trujillo

29   dispose of the gun reflected Stacey's intent that the gun be a

30   quid pro quo for the murder.   Whether this was Stacey's state of

31   mind, however, is a jury question.

                                     19
1                              CONCLUSION

2        For the reasons discussed above, we vacate the judgment of

3   conviction entered by the district court and remand for further

4   proceedings.




                                   20
1                                FOOTNOTES

2

3   1.   Stacey Hardwick, the other defendant-appellant in this case,

    previously withdrew his appeal.



    2.   The two telephone conversations on September 10, 2002,

    occurred at approximately 11:12 a.m. and 12:10 p.m.   The 11:12

    a.m. conversation will be cited as "Telephone Tr. 1, at

    (pincite)."   The 12:10 p.m. conversation will be cited as
    "Telephone Tr. 2, at (pincite)."



    3.   Citations to the transcript of the September 10, 2002 face-

    to-face meeting between Trujillo, Stacey, and Glen -- which took

    place inside the Olympic Diner, outside the Olympic Diner, and at

    a nearby McDonald's Restaurant -- will take the form of

    "Olympic/McDonald's Tr. (pincite)."



    4. "When the source of plain error is a supervening decision,"

    this court has "employed a modified plain error standard whereby

    the government bears the burden of proving that the error did not

    affect the defendant's substantial rights."   United States v.

    Lombardozzi, 491 F.3d 61, 74 n.4 (2d Cir. 2007).   Whether this

    standard has been overruled by Johnson v. United States, 520 U.S.

    461 (1997), and whether it applies to unpreserved Crawford

    errors, such as the one at issue here, remain open questions.

    Because we conclude that the error is plain even under the more

                                      21
stringent standard applied to "non-structural" errors where the

burden rests on the defendant to prove plain error, we need not

decide those questions at this time.    United States v. Bruno, 383

F.3d 65, 79 n.8 (2d Cir. 2004).



5. We note that this caselaw appears to be in tension with United

States v. Jones, 393 F.3d 107, 109 (2d Cir. 2004), where this

court made its sufficiency determination without weighing

evidence admitted at trial in violation of Crawford.    In that
case, however, the government conceded that the improperly

admitted evidence should not be considered in deciding the

sufficiency issue, and the court did not independently analyze

whether this was the proper course.    Id. at 111.   As a result, we

do not believe that the resolution of this issue is part of the

binding holding of Jones.   See Getty Petroleum Corp. v. Bartco

Petroleum Corp., 858 F.2d 103, 113 (2d Cir. 1988) (noting that a

"sub silentio holding is not binding precedent" (internal

quotation mark omitted)); United States v. Johnson, 256 F.3d 895,

916 (9th Cir. 2001) (en banc) (stating that a court is not bound

by a statement of law "made casually and without analysis, . . .

uttered in passing without due consideration of the alternatives

or where it is merely a prelude to another legal issue that

commands the panel's full attention").



6. In his appellate brief, Glen challenges the sufficiency of the

evidence with respect to the interstate nature of the telephone

                                  22
calls between Stacey and Trujillo; he claims there is

insufficient proof that Trujillo was in New Jersey when he had

several phone conversations with Stacey.    Glen seemingly argues

that, by using the phrase "facility in interstate" commerce,

Section 1958 requires that the telephone call be made across

state lines.   We rejected this argument, however, in United

States v. Perez, 414 F.3d 302, 304 (2d Cir. 2005) (holding that

Section 1958's "facility in" language covered wholly intrastate

usage of the facility because "the phrases 'facility of

interstate commerce' and 'facility in interstate commerce' are to

be used interchangeably." (citing United States v. Marek, 238

F.3d 310, 321 (5th Cir. 2001))).

     Glen also argues that the evidence was insufficient to find

that he was a member of the conspiracy to commit, or aided and

abetted a murder-for-hire.   We disagree.   The jury could easily

find that Glen possessed the gun, helped turn it over to

Trujillo, and was present when Stacey said he was going to "pick

up" the "change" in Trujillo's car.   This evidence is sufficient
to permit a jury to reasonably infer that Glen knew about the

enterprise and intended to participate in it or make it succeed.

United States v. Johnson, 513 F.2d 819, 823 (2d Cir. 1975).



7. While Lockhart v. Nelson, 488 U.S. 33 (1988), compels us to

review the sufficiency of the evidence, including improperly-

admitted evidence, to determine whether the Double Jeopardy

Clause bars a retrial, that rule does not preclude us from

                                23
informing the parties as to our view of the sufficiency issue

absent the plea allocution.   If a defendant has been convicted

and an appellate court reverses based on its determination that

the evidence produced at trial was legally insufficient, the

Clause precludes a new trial.   Burks v. United States, 437 U.S.

1, 18 (1978).   The reasoning behind this rule is that the

appellate ruling is the functional equivalent of a judgment of

acquittal at the close of evidence.   See Lockhart, 488 U.S. at

39, 41-42.   Where the reversal is based on evidentiary error and
the evidence is sufficient if the inadmissible evidence of a

prejudicial nature is included in the equation, a defendant does

not, under Lockhart, have double-jeopardy protection against a

new trial.   The reasoning behind this rule is that, under the

Clause, such a reversal entitles a defendant only to an error-

free trial and allows the prosecution an opportunity in a retrial

to substitute other evidence to support a conviction.   Id. at 40-

42.   The rule does not, therefore, preclude us from opining on

the sufficiency issue absent the plea allocution for purposes of
judicial efficiency.   See Note 8, infra.



8. When a retrial is a possibility, we routinely rule on fully

argued issues that will arise in such a retrial, lest serial

appeals, reversals, and multiple retrials result.   See, e.g.,

Arnold v. County of Nassau, 252 F.3d 599, 604 (2d Cir. 2001)

("Since the case will be retried, we think it might assist the

district court upon retrial, and this court upon further review,

                                24
to have the benefit of a few observations."); Blyden v. Mancusi,

186 F.3d 252, 269 (2d Cir. 1999) ("Although our disposition of

this matter lessens the importance to this appeal of appellant's

[second] claim . . . we nevertheless address it in light of the

fact that retrials seem inevitable."); Thornley v. Penton Pub.,

Inc., 104 F.3d 26, 31(2d Cir. 1997) ("We think it appropriate to

give guidance on certain issues that may arise again on

retrial."); United States v. Ajmal, 67 F.3d 12, 15 (2d Cir. 1995)

("While we vacate the proceeding below, we next address [the
defendant's] and the government's remaining contentions to give

the district court guidance on retrial and in the event of

resentencing;"); United States v. Salerno, 937 F.2d 797, 811 (2d

Cir. 1991) ("Since we reverse the convictions of all defendants

on other grounds, it is not necessary to reach this issue in

order to decide this appeal.    Nevertheless, since a retrial is

likely, we offer some guidance on this subject."), rev’d on other

grounds, 505 U.S. 317 (1992).

     It is a very inefficient use of judicial resources to remand
this case without guidance on the sufficiency issue.    If the

admissible evidence was legally insufficient, why shouldn't the

government know that without more evidence it cannot get a valid

conviction at a retrial?   Similarly, why should the appellant be

subjected to a retrial in such circumstances, if additional

evidence is not available?   In other words, the fact that a

retrial would not be precluded on double jeopardy grounds is a

reason for our informing the parties whether a retrial without


                                 25
the improperly-admitted evidence would lead to a valid

conviction.   Indeed, with the concurrence of my colleagues, this

opinion goes into detail as to the legal principles relevant to

sufficiency in order to guide a retrial.   I would not stop just

before providing the parties with the dispositive information.




                                26
