908 F.3d 1
2d Cir.2018Background
- Zemlyansky ran multiple schemes (Lyons Ward, Rockford, illegal gambling, and a No‑Fault insurance network) that the Government alleged involved securities fraud, wire/mail fraud, money‑laundering, and insurance fraud.
- In 2013 (S13 Indictment) he was tried on a RICO conspiracy tied to the No‑Fault scheme plus underlying substantive and basic conspiracy counts; the jury acquitted him on the substantive and basic conspiracy counts and deadlocked on the RICO count (mistrial declared on RICO).
- In 2015 (S18 Indictment) the Government charged an expanded RICO conspiracy encompassing the No‑Fault scheme plus Lyons Ward, Rockford, and the gambling ring; it also charged substantive Lyons Ward counts.
- Before the second trial the district court precluded the Government from asserting Zemlyansky was guilty of insurance fraud but allowed evidence of his involvement in the No‑Fault scheme for the RICO count; the Government introduced evidence (including a recorded audio with a government transcript identifying the voice as Zemlyansky).
- During rebuttal the prosecutor commented on Zemlyansky’s visible crying; the court ordered the prosecution to move on, later sustained the objection, gave a curative instruction, and denied a mistrial or reopening. The jury convicted on all counts and the RICO conspiracy predicates.
- On appeal Zemlyansky argued (1) double jeopardy/issue preclusion barred using acts mirroring earlier acquittals as RICO predicates, (2) prosecutorial commentary and (3) admission/use of the transcript violated his constitutional rights. The Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Zemlyansky) | Held |
|---|---|---|---|
| Whether prior acquittals of substantive mail fraud and money‑laundering preclude using similar acts as RICO predicates | RICO conspiracy has different elements (agreement to conduct enterprise affairs through a pattern of racketeering); acquittals of substantive offenses don’t necessarily decide agreement element | Prior acquittals necessarily decided facts that cannot be relitigated; using the same conduct as predicates violates Ashe collateral‑estoppel | Government wins: acquittals of substantive offenses did not necessarily decide the agreement element required for RICO conspiracy; no issue preclusion. |
| Whether prior acquittals of "basic" conspiracies preclude using identical conduct as RICO predicates | RICO conspiracy requires proof of agreement to further a racketeering enterprise (broader mens rea); basic conspiracy and RICO conspiracy are qualitatively different | Acquittal on basic conspiracy necessarily precludes using those same facts as predicates later | Government wins: basic conspiracy acquittal did not necessarily decide elements of RICO conspiracy; a rational jury could have acquitted for reasons consistent with later conviction. |
| Whether reuse of evidence from the first trial was barred by issue preclusion | Reuse permitted if evidence is offered for different, non‑precluded purposes (e.g., to prove agreement, enterprise, or co‑conspirators’ predicates) | Reuse of evidence proving predicates of which he was acquitted relitigates issues already decided in his favor | Government wins: district court reasonably allowed reuse because the Government relied on non‑precluded evidence and co‑conspirators to prove elements. |
| Whether prosecutorial remarks about defendant’s courtroom crying and admission of transcript denied a fair trial | Remarks were improper but curative measures and overwhelming evidence cured prejudice; transcript admitted subject to limiting instruction and voice ID evidence | Remarks and transcript admission violated Fifth and Sixth Amendment rights (self‑incrimination, confrontation, conflict‑free counsel, and fair trial) | Government wins: court acted promptly, gave strong curative instruction, transcript was admissible with limiting instruction and jury aid status; no reversible constitutional error. |
Key Cases Cited
- Ashe v. Swenson, 397 U.S. 436 (establishes issue‑preclusion component of Double Jeopardy)
- Salinas v. United States, 522 U.S. 52 (RICO conspiracy distinguishes agreement from commission of predicate acts)
- United States v. Mespoulede, 597 F.2d 329 (2d Cir.) (reusing evidence decided for defendant in prior trial may be barred under Ashe)
- United States v. Ciccone, 312 F.3d 535 (2d Cir. 2002) (conspirator need not commit predicate acts personally for RICO conspiracy)
- United States v. Yannotti, 541 F.3d 112 (2d Cir. 2008) (pattern element can be satisfied by co‑conspirators’ predicates)
- United States v. Pizzonia, 577 F.3d 455 (2d Cir. 2009) (elements of RICO conspiracy explained)