595 F. App'x 26
2d Cir.2014Background
- James Rosemond ("Rosemond") was convicted after a jury trial on multiple counts including Continuing Criminal Enterprise (CCE), conspiracy and substantive cocaine distribution offenses, firearms and money-laundering charges; he received principally a life sentence.
- Rosemond had participated in proffer sessions with prosecutors; his trial counsel (Shargel) attended some sessions and Rosemond argued this created a conflict.
- During trial a juror attempted to speak to a prosecutor and later was excused; post-trial affidavits alleged jurors referenced Rosemond’s alleged connection to the Tupac Shakur murder.
- The government introduced cocaine base recovered from a stash house (not charged separately); defense argued lack of Rule 404(b) notice and unfair prejudice.
- After trial, Alleyne v. United States raised the question whether facts triggering the CCE mandatory-life minimum (that Rosemond was a principal leader) had to be found by a jury.
- The government used Rosemond’s proffer statements at trial to rebut defense assertions; Rosemond claimed Fifth Amendment violation despite his proffer agreement permitting such use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conflict-free counsel: counsel attending proffers could be a witness | Shargel’s presence at proffers created a conflict; no valid waiver obtained | No genuine conflict: another lawyer (Kramer) could testify; hearing satisfied inquiry; no waiver required | No conflict; court’s inquiry adequate and no further waiver obligation |
| Juror misconduct: thumbs-up and attempted contact | Juror’s attempted contact and alleged thumbs-up showed bias and required excusal | Juror denied signaling; was questioned; later excused; no prejudice from one day of service | No reversible error: credibility finding not abused and no prejudice shown |
| Juror extrajudicial research (Tupac) | Jurors researched Rosemond’s Tupac connection and pressured verdict | Affidavits do not show internet research; testimony at trial had referenced questioning about Tupac | Post-trial scrutiny disfavored; allegations insufficient to show extrajudicial research or prejudice |
| Admission of cocaine base not charged | Lack of 404(b) notice and unfair prejudice from uncharged cocaine base | Defense counsel had signed stipulation admitting that evidence; limiting instruction given; evidence cumulative | Any error was harmless given stipulation, limiting instruction, and overwhelming evidence |
| CCE mandatory-life sentencing (Alleyne) | Mandatory life depends on fact (principal leader) not found by jury; Alleyne requires jury finding | Government’s trial theory and record support leadership finding; district court would have imposed life regardless | Affirmed: plain-error standard met but fourth-prong fails because no dispute on facts and sentence would be same |
| Double jeopardy: concurrent CCE and conspiracy convictions | Conviction on conspiracy (lesser-included) violates double jeopardy given CCE conviction | Government concedes error | Conspiracy conviction (Count Two) vacated; remand to correct judgment |
| Use of proffer statements | Government’s use of proffer statements violated Fifth Amendment | Proffer agreement expressly permitted government to use statements to rebut defense; defendant elicited proffer at trial | No violation: enforceable waiver in proffer agreement; use was permitted |
Key Cases Cited
- United States v. Levy, 25 F.3d 146 (2d Cir.) (court obligations when conflict of interest arises)
- United States v. Cox, 324 F.3d 77 (2d Cir.) (abuse-of-discretion review for juror-misconduct rulings)
- United States v. Joyner, 313 F.3d 40 (2d Cir.) (plain-error review for sentencing facts not submitted to jury)
- United States v. Thomas, 274 F.3d 655 (2d Cir.) (four-prong plain-error framework)
- Rutledge v. United States, 517 U.S. 292 (Sup. Ct.) (CCE and lesser-included offense guidance)
- United States v. Mezzanatto, 513 U.S. 196 (Sup. Ct.) (enforceability of waivers in proffer agreements)
- United States v. Velez, 354 F.3d 190 (2d Cir.) (proffer agreement waivers enforceable in Second Circuit)