617 F. App'x 62
2d Cir.2015Background
- Christian Gerold Tarantino was convicted after two jury trials for (1) willfully endangering a commercial motor vehicle operator resulting in death (18 U.S.C. § 33), (2) murder to obstruct justice (18 U.S.C. § 1512(a)(1)(C)), and (3) conspiracy to commit such murder (18 U.S.C. § 1512(k)); sentenced to concurrent life terms.
- The conviction for murdering accomplice Louis Dorval rested on the theory that Tarantino killed Dorval to prevent his communications with federal law enforcement.
- Tarantino moved to dismiss the indictment, to suppress an incriminating audio recording made by a co-conspirator, to disqualify an Assistant U.S. Attorney, and for a new trial based on alleged perjury and inconsistent government theories; he also raised jury-presence and ineffective-assistance claims.
- District Court denied motions to dismiss and suppress, refused to disqualify the prosecutor, denied a new-trial motion, and presided over conviction and sentencing; Tarantino appealed.
- The Second Circuit affirmed: indictment sufficient; Fowler inapplicable; recording admissible; defendant waived presence at prescreening; ineffective-assistance claim preserved for §2255; no due-process violation from alleged inconsistent theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of indictment | Gov: indictment tracked statute and alleged elements | Tarantino: indictment deficient | Affirmed — indictment sufficient (tracked statute, alleged mens rea) |
| Applicability of Fowler (requirement re: federal-officer communications) | Gov: evidence showed intent to stop communication with federal agents | Tarantino: Fowler requires reasonable likelihood of communication with federal officers; claim should vacate conviction | Affirmed — Fowler inapplicable; evidence showed specific intent to prevent communication with federal agents (reasonable likelihood standard met) |
| Presence at jury prescreening | Gov: prescreening in counsel's presence, defendant informed and did not object | Tarantino: right to be present violated by absence from prescreening teleconferences | Affirmed — waiver inferred from defendant's conduct and counsel's participation |
| Admissibility of audio recording | Gov: recording admissible; cooperator not acting with primary criminal intent when recording | Tarantino: recording intercepted for criminal/tortious purpose (blackmail) => Title III exclusion | Affirmed — district court did not err; intent assessed at recording time, no clear error |
| Ineffective assistance/conflict claim | Tarantino: counsel had actual conflict at first trial | Gov: claim improper on direct appeal | Preserved for collateral review — remanded to §2255 (district record undeveloped) |
| Due process / inconsistent prosecution theories | Tarantino: successive prosecutions advanced inconsistent theories re: Dorval murder | Gov: consistent theory that Tarantino acted with others; inconsistencies in witnesses do not show government inconsistency | Affirmed — no due-process violation shown |
| Motion for new trial (perjured testimony) | Tarantino: cooperating witness Mulligan perjured about murder role | Gov: discrepancies among witnesses do not establish perjury warranting new trial | Affirmed — court did not abuse discretion denying new trial |
| Motion to disqualify AUSA | Tarantino: called for disqualification to call AUSA as witness | Gov: no compelling legitimate reason to call prosecutor | Affirmed — no compelling reason shown; denial proper |
Key Cases Cited
- Resendiz-Ponce, 549 U.S. 102 (statutory-indictment pleading standards)
- Fowler v. United States, 563 U.S. 668 (2011) (intent-to-obstruct standard re: communications with federal officers)
- United States v. Frias, 521 F.3d 229 (2d Cir. 2008) (indictment need only track statute)
- United States v. Gagnon, 470 U.S. 522 (waiver of right to be present at certain proceedings)
- United States v. Jiau, 734 F.3d 147 (standard of review for suppression rulings; assessing intent at time of recording)
- Massaro v. United States, 538 U.S. 500 (ineffective-assistance claims typically resolved via §2255)
- United States v. Regan, 103 F.3d 1072 (standard for calling prosecutor as witness/disqualification)
- United States v. Zichettello, 208 F.3d 72 (standards for granting new trial based on alleged perjury)
- United States v. James, 712 F.3d 79 (district court discretion in denying new trial)