81 F.4th 101
2d Cir.2023Background
- In December 2012 Suffolk County Police Chief James Burke violently assaulted detainee Christopher Loeb; senior SCPD officers and prosecutors then engaged in a multi-year effort to conceal the assault.
- Burke enlisted Lieutenant James Hickey and Criminal Intelligence detectives (Bombace, Leto, Malone) to keep witnesses quiet; Burke also involved Suffolk County District Attorney Thomas Spota and prosecutor Christopher McPartland to manage the prosecution and obstruct investigation.
- A federal grand jury investigation (EDNY/FBI) in 2013 produced subpoenas but initially stalled; many officers lied or refused to cooperate because they feared retaliation from Burke and his associates.
- The investigation reopened after some witnesses were immunized or cooperated; Burke pled guilty in 2016. In 2017 Spota and McPartland were indicted; after a five-week trial in 2019 a jury convicted both on all counts (witness tampering, obstruction, accessory after the fact); each was sentenced to five years.
- On appeal the defendants challenged multiple evidentiary rulings (admission of fear-of-retaliation testimony and various bad-act evidence, Oliva wiretap/prosecution, Cuff/Rickenbacker material, the “party bag”), denial of admission of the government’s bill of particulars, and McPartland’s Rule 33 motion for a new trial/hearing. The Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Gov't) | Defendant's Argument (Spota & McPartland) | Held |
|---|---|---|---|
| Admissibility of "fear-of-retaliation" testimony | Testimony explains coconspirators' state of mind, completes the story of the conspiracy, and makes defendants' statements and witnesses' conduct intelligible | Testimony was irrelevant, speculative, lay-opinion without personal knowledge, and a backdoor propensity/404(b) violation | Admitted: relevant, properly limited to state of mind, not a 404(b) other-act; district court did not abuse discretion |
| Admissibility of Oliva wiretap/prosecution, Rickenbacker/Cuff incidents, and "party bag" | Evidence was inextricably intertwined with charged conduct and necessary to explain references (e.g., threat "ask John Oliva"), motive, and context for witnesses' fears | Evidence was prejudicial, cumulative, irrelevant to defendants, and violated Rule 404(b) (and hearsay/403 objections) | Oliva, Rickenbacker, and party-bag evidence admissible; some cumulative testimony about Cuff (multiple non‑conspirator witnesses) should have been excluded but any error was harmless given strong, corroborated record |
| Admission of government's pre-trial bill of particulars | Government clarified in rebuttal that it was not asserting Constant was a co-conspirator; no inconsistent admission requiring the bill's admission | Defendants sought to admit the bill to show inconsistency and impeach government's opening (regarding Constant) | Denied: no clear inconsistency on the face of the record; rebuttal cured any ambiguity; district court acted within discretion |
| McPartland's Rule 33 motion (new trial / evidentiary hearing) | Gov't: Hickey's testimony was credible; no newly discovered or reliable evidence undermines verdict; trial record sufficed | McPartland alleged Hickey testified falsely on critical points and the government knew or should have known; sought hearing/new trial | Denied: district court's credibility findings and disposition were within broad Rule 33 discretion; no manifest injustice warranting a new trial |
Key Cases Cited
- United States v. Litvak, 889 F.3d 56 (2d Cir. 2018) (standard of review for evidentiary rulings)
- United States v. LaFlam, 369 F.3d 153 (2d Cir. 2004) (inclusionary approach to Rule 404(b) other-act evidence)
- United States v. Robinson, 702 F.3d 22 (2d Cir. 2012) ("inextricably intertwined" / completing the story exception)
- United States v. Simels, 654 F.3d 161 (2d Cir. 2011) (admitting intimidation evidence to explain witness fear and statements)
- United States v. Reichberg, 5 F.4th 233 (2d Cir. 2021) (presumption that juries follow limiting instructions)
- United States v. Cuti, 720 F.3d 453 (2d Cir. 2013) (Rule 602 personal-knowledge foundation for lay testimony)
- United States v. Roldan-Zapata, 916 F.2d 795 (2d Cir. 1990) (probative value vs. sensational/prejudicial evidence)
- United States v. Rosa, 11 F.3d 315 (2d Cir. 1993) (prior conduct admissible to explain relationships among coconspirators)
- United States v. Williams, 205 F.3d 23 (2d Cir. 2000) (prior conduct relevant to explain development of illegal relationship)
- United States v. Al‑Moayad, 545 F.3d 139 (2d Cir. 2008) (harmless‑error factors for wrongly admitted evidence)
- United States v. Vinas, 910 F.3d 52 (2d Cir. 2018) (standard of review for denial of Rule 33 motions)