United States v. Rosemond, 841 F.3d 95

Background

James J. Rosemond (head of Czar Entertainment) was tried for murder-for-hire, conspiracy to commit murder-for-hire, murder by use of a firearm, and firearms possession in connection with the September 2009 murder of Lowell Fletcher, a G‑Unit associate involved in an earlier assault on Rosemond’s son.
Cooperating witnesses (McCleod, Stewart, Abdullah) testified that Rosemond solicited and coordinated Fletcher’s killing, arranged payment (a kilogram of cocaine ≈ $30,000), supplied a silenced gun, and later bragged about Fletcher’s death.
Prior to the murder prosecution, Rosemond entered into a proffer agreement in narcotics proceedings that waived Rule 410 protections and permitted the government to use proffer statements to rebut "factual assertions" made by or on behalf of Rosemond at trial.
At the first joint trial, the district court ruled that certain defense questioning and argument (suggesting lack of intent to murder) would trigger the proffer-waiver and thus could allow admission of Rosemond’s proffer statements; the joint trial ended in a mistrial.
At the second trial (Rosemond alone), the court again barred defense argument or questions that, in the court’s view, implicitly asserted Rosemond lacked intent to murder (as opposed to intent to shoot), limiting cross-examination and summation; Rosemond was convicted and sentenced to life plus 20 years.
On appeal the Second Circuit vacated the convictions and remanded for a new trial, holding the district court erred in construing the proffer-waiver to bar permissible challenges to the sufficiency of the government’s proof and cross-examination of witnesses about what they heard or believed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper scope of proffer‑agreement waiver (Rule 410)	The waiver covered rebuttal to any defense implication that Rosemond intended only a nonfatal shooting; defense questions implying lack of intent to murder triggered waiver and could admit proffer statements.	The waiver does not bar standard defenses: arguing insufficiency of proof on intent, impeaching witnesses, or suggesting government failed to prove murder intent without asserting alternative facts.	Vacated convictions; court ruled district court erred by unduly restricting cross‑examination and argument—defense may challenge sufficiency of evidence on intent and probe witness testimony without triggering waiver unless affirmative contradictory factual assertions are made.
Admission of uncharged prior bad acts	Government: prior violent acts evidence relevant to motive, intent, plan.	Rosemond: admission was prejudicial and excessive.	Not reached because conviction vacated on proffer‑waiver grounds.
Sufficiency of the evidence on intent to murder	Government: testimony, statements, planning, higher payment and coordination for Fletcher support a rational jury finding intent to murder.	Rosemond: evidence insufficient because witnesses said he never used the words "murder/kill" and defense was foreclosed from arguing lack of murder intent.	Court held evidence was sufficient (a rational juror could find intent), but error in restricting defense was not harmless—remanded for a new trial.

Key Cases Cited

United States v. Mezzanatto, 513 U.S. 196 (1995) (defendants may waive Rule 410 protections in proffer agreements; waiver enforceable)
United States v. Barrow, 400 F.3d 109 (2d Cir. 2005) (proffer waivers apply to factual assertions by or on behalf of defendant; but defendants may challenge sufficiency on elements like intent)
United States v. Oluwanisola, 605 F.3d 124 (2d Cir. 2010) (defense must be allowed to highlight lack of evidence on specific elements without triggering waiver)
United States v. Velez, 354 F.3d 190 (2d Cir. 2004) (enforced broad proffer waivers where parties agreed; fairness favors enforcing waiver terms)
United States v. Roberts, 660 F.3d 149 (2d Cir. 2011) (distinguishes impeachment of witness credibility from affirmative factual assertions that contradict proffer statements)
United States v. Krilich, 159 F.3d 1020 (7th Cir. 1998) (impeachment with prior inconsistent statements does not necessarily trigger proffer waiver)
United States v. Gupta, 747 F.3d 111 (2d Cir. 2014) (harmless‑error factors for constitutional trial errors)
Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of evidence)
United States v. Coplan, 703 F.3d 46 (2d Cir. 2012) (view evidence in light most favorable to government on sufficiency review)