Michael HOFFLER, Petitioner-Appellant, v. Norman R. BEZIO, Superintendent of Great Meadow Correctional Facility, Eric T. Schneiderman, Attorney General of the State of New York, Respondents-Appellees.
Docket No. 11-5281-pr.
United States Court of Appeals, Second Circuit.
Argued Dec. 5, 2012. Decided Aug. 8, 2013.
726 F.3d 144
Before: CABRANES, RAGGI, and CARNEY, Circuit Judges.
REENA RAGGI, Circuit Judge:
Petitioner Michael Hoffler appeals from a judgment entered on November 17, 2011, in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge), denying him a writ of habeas corpus. See Hoffler v. Bezio, 831 F.Supp.2d 570 (N.D.N.Y.2011). Hoffler sought the writ pursuant to
Although a jury found Hoffler guilty of first-degree witness-elimination murder in violation of
At the outset, we conclude that our jurisdiction to hear an appeal brought by a state prisoner from the denial of a
With our jurisdiction thus established, we conclude that Hoffler was placed in jeopardy at the initial Drabik murder trial because the empaneled jury was properly sworn to return a verdict based on impartial consideration of the evidence and the applicable law. No different conclusion is warranted by the fact that the venire panel was not sworn in accordance with New York law, because that error rendered the judgment of conviction voidable but not void.
Insofar as Hoffler faults the Appellate Division for not ruling on his sufficiency challenge before ordering retrial, we need not here decide whether such a ruling is constitutionally required by the Double Jeopardy Clause because, even if it is, any error in this case would be harmless beyond a reasonable doubt in light of record evidence sufficient to support a guilty ver-
Accordingly, we affirm the judgment of the district court denying Hoffler‘s
I. Background
A. The Murder of Christopher Drabik
After his own arrest on drug charges in April 2003, Christopher Drabik agreed to cooperate with Albany police in making controlled drug purchases from identified traffickers, including an individual known to Drabik by the street name, “Murder.” Police subsequently identified “Murder” as petitioner Michael Hoffler who, based on a license he produced in the course of a traffic stop, also used the name “Ernest Hoffler.” On May 1, 2003, and again on May 6, 2003, Drabik made controlled purchases of cocaine from Hoffler. Police recorded the men‘s initial telephone conversation leading to these transactions, and they videotaped their face-to-face drug transactions. On May 14, 2003, in the course of a third controlled drug purchase by a different cooperator, police arrested Hoffler.
At Hoffler‘s July 1, 2003 arraignment—at which he was released on bail—the prosecution revealed the dates, times, and locations of the charged drug sales. Subsequently, the prosecutor provided defense counsel with police reports detailing the transactions, and at a November 2003 pretrial hearing, a police detective testified as to the surrounding circumstances. On none of these occasions did authorities identify Drabik as an informant or explicitly reveal that he would be called as a prosecution witness at the trial scheduled to begin on January 5, 2004. Nor were Hoffler‘s recorded conversation and videotaped meetings with Drabik provided to defense counsel before Drabik‘s murder.
The week prior to trial, on December 30, 2003, Drabik was found shot dead in front of 478 Sixth Avenue in Troy, New York. Even without Drabik‘s testimony, a jury found Hoffler guilty on the pending drug charges, and the trial court sentenced him to an aggregate prison term of 17 to 34 years. See People v. Hoffler, 41 A.D.3d 891, 892, 837 N.Y.S.2d 750, 752 (3d Dep‘t 2007).
B. Hoffler‘s Initial Conviction for Drabik‘s Murder
On March 19, 2004, a grand jury indicted Hoffler on homicide charges stemming from the Drabik murder. On May 19, 2005, the trial jury found Hoffler guilty of the most serious charge, first-degree witness-elimination murder, see
The prosecution theory at trial, which it supported largely through circumstantial evidence, was that Hoffler murdered Drabik—with the assistance of Albany confederate Lance Booker and Brooklyn gunman Gregory Heckstall—by luring Drabik to 478 Sixth Avenue in Troy, New York where, early on the morning of December 30, 2003, Heckstall shot Drabik dead.1 To facilitate our discussion of Hoffler‘s suffiсiency claim, we summarize some of the pertinent evidence.
Another woman testified that she too had met Heckstall and Hoffler sometime during the last week in December when the two men were sitting with her neighbor, Booker, in a dark-colored SUV parked on her street. Heckstall spent the night with the woman and, when he undressed, she saw that he was carrying a firearm, which he indicated to her was loaded. Early the next morning, Hoffler arrived at the woman‘s home and spoke quietly with Heckstall, after which Heckstall quickly dressed, collected his gun, and left with Hoffler.
Telephone records showed that at 7:48 p.m. on December 29, 2003, a call was placed to Drabik‘s cell phone from a cell phone registered to Hoffler‘s residence and used by him on a regular basis. While it is not clear that this particular call connected, Drabik‘s parents reсalled overhearing their son speaking on his cell phone sometime between 7:45 and 8:00 p.m. on December 29 to someone whom he agreed to meet the following day to discuss a possible construction job.
Telephone records showed that over the next several hours and into the early morning of December 30, there were frequent calls between Hoffler‘s cell phone and a phone number assigned to the residence of Pamela White, Booker‘s then girlfriend. In the early morning on December 30, Hoffler arrived at White‘s residence and waited while Booker dressed, after which the men left in a dark-colored SUV.
At about this same time, Drabik received a 6:09 a.m. call on his cell phone from an unidentified incoming number. His mother overheard Drabik agree to meet the caller in 20 minutes at 478 Sixth Avenue in Troy, New York, an address he wrote down on a piece of paper received into evidence at trial. A subsequent forensic examination of computers seized from Hoffler‘s home would show that, on the night of December 29, 2003, one computer accessed an online real estate listing for 478 Sixth Avenue in Troy.
At 6:37, 6:45, and 6:54 a.m. on December 30, Drabik called a number assigned to a “Trac Fone“—a preрaid phone with no named subscriber—that had been activated only the day before. Soon thereafter, at approximately 7:00 a.m., Drabik was fatally shot once in the chest in front of 478 Sixth Avenue in Troy, which is near the intersection of 112th Street and Sixth Avenue.
Andrew Bridgers testified that early on the morning of December 30, while delivering newspapers in Troy, he was slowing his car to a stop on Sixth Avenue near 112th Street when he spotted two men and heard a gunshot. Bridgers then saw one of the men fall to the ground while the other walked in the direction of Bridgers’ vehicle, affording Bridgers a view of the man‘s face. Bridgers testified that the man who fell to the ground was Drabik; the one who walked away was Heckstall.3
Telephone records showed that between 7:19 and 7:45 on the morning of December 30, six telephone calls were placed between Hoffler‘s cell phone and a landline registered to his residence. Approximately three hours later, at 10:58 a.m., a New York City police officer wrote a ticket for a vehicle illegally parked in Brooklyn: the gray SUV rented from Budget under the name “Ernest Hoffler.” Later that same day, the vehicle was back in Albany, where it was returned to Budget at 6:17 p.m., having been driven a total of 640 miles during “Ernest Hoffler‘s” three-day rental. On December 30, Budget debited $432.11 from Michael Hoffler‘s bank account to cover the cost of the rental, and subsequent forensic analysis would locate Hoffler‘s DNA in the rented SUV.
Meanwhile, when Heckstall arrived at his sister-in-law‘s Brooklyn home between 1:00 and 1:30 p.m. on December 30, he had several hundred dollars in cash.
C. Post-Conviction State Court Proceedings
1. Direct Appeal
In challenging his murder conviction on direct appeal, Hoffler argued that the trial evidence was insufficient to support his conviction and that the venire panel had not been sworn in accordance with New York law.
As to the latter point, New York law requires that two oaths be administered during the jury selection process. The first, administered to the venire panel before voir dire, is intended to ensure that prospective jurors provide truthful answers to questions about their qualifications to serve. See
In Hoffler‘s case, the venire panel was mistakenly sworn in accordance with
On remand, Hoffler moved the trial court to dismiss the indictment against him, arguing that, in the absence of an appellate determination that the evidence at the first trial was sufficient to support conviction, he could not be retried without violating the Double Jeopardy Clause. The trial court denied the motion, concluding that the Appellate Division was not obliged by either state or federal law to review the sufficiency of the evidence in ordering retrial based on a trial error that did not implicate guilt or innocence. The trial court also declined to conduct its own assessment of sufficiency in the absence of any authority for it to do so on remand where the Appellate Division had not. The trial court nevertheless observed that it had already rejected Hoffler‘s sufficiency challenge when raised prior to the entry of the now reversed judgment of conviction.
Hoffler next attempted to prevent his retrial by pursuing his double jeopardy/sufficiency challenge in an Article 78 petition to the Third Department. See
[U]nder New York‘s statutory double jeopardy scheme, a person is considered to have been “prosecuted” on an offense after the action proceeds to trial and the jury has been impaneled and sworn (
[N.Y.Crim. Proc. Law § 40.30(1)(b)] ). Thus, in a trial on an indictment, the constitutional protection against double jeopardy is not implicated—and jeopardy does not attach—in the absence of a duly impaneled and sworn jury.... [B]ecause it has been established [in this case] that the jury was never properly sworn pursuant to [N.Y.Crim. Proc. Law §] 270.15(1)(a) and that such failure “invalidated the entire trial,” the trial was a nullity and petitioner was never “prosecuted” under the indictment.
Id. at 1184-85, 897 N.Y.S.2d at 757-58 (citations omitted). In these circumstances, the state court concluded that it was not required to address Hoffler‘s sufficiency claim on direct appeal before ordering his retrial. See id. at 1185-86, 897 N.Y.S.2d at 758.
The New York Court of Appeals denied both Hoffler‘s application for leave to appeal, see Hoffler v. Jacon, 15 N.Y.3d 768, 906 N.Y.S.2d 812, 933 N.E.2d 212 (2010), and his subsequent motion for reconsideration, see Hoffler v. Jacon, 15 N.Y.3d 872, 912 N.Y.S.2d 561, 938 N.E.2d 994 (2010).
On April 11, 2011, Hoffler petitioned the district court pursuant to
Even if Hoffler had been рlaced in jeopardy at the Drabik murder trial, however, the district court identified a “sound reason” for the Appellate Division not to reach his sufficiency challenge. See id. at 578 n. 6 (internal quotation marks omitted) (construing United States v. Bruno, 661 F.3d 733, 743 (2d Cir.2011), to permit court ordering retrial not to consider sufficiency of the evidence where sound reason warranted). “Since the Appellate Division determined that no trier of fact could properly consider the evidence offered at Hoffler‘s trial, any discussion regarding the evidence presented to that improperly empaneled body may well have been viewed by that court to be advisory in nature,” and it is “well-settled that the giving of [advisory] opinions is not the exercise of the judicial function of New York appellate courts.” Id. at 577 (alteration and emphasis in original; internal quotation marks omitted).
In any event, the district court concluded that any error in the Appellate Division‘s failure to rule on Hoffler‘s sufficiency challenge before ordering retrial was necessarily harmless because the record evidence was sufficient to establish the elements of first-degree witness-elimination murder. See id. at 578 n. 7.
This timely appeal followed.
II. Discussion
We review de novo a district court‘s denial of a habeas petition brought pursuant to
We procеed to consider these arguments in turn, starting with the question of jurisdiction.
A. A Certificate of Appealability Is a Jurisdictional Prerequisite to Appellate Review of the Denial of a § 2241 Petition Brought by a State Prisoner
While the “Privilege of the Writ of Habeas Corpus” is constitutionally protected from suspension except in limited circumstances,
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
In circumstances where
There is no doubt that a state prisoner challenging his sentence under
This court has not yet specifically ruled on whether a state prisoner must procure a COA to appeal a denial of habeas relief sought pursuant to
In
Here, Hoffler awaits retrial by order of New York‘s Appellate Division, Third Department, the same court that also rejected Hoffler‘s Article 78 argument that retrial violates double jeopardy. In these circumstances, a
To secure a COA, a petitioner must make “a substantial showing of the denial of a constitutional right.”
In making that determination, we recognize that Hoffler‘s request for a COA at oral argument was untimely under Second Circuit Local Rule 22. 1, which requires that COA motions be made within 28 days of the later of the district court‘s denial of a COA or the filing of a notice of appeal. That rule, however, is not jurisdictional. See
Accordingly, we grant Hoffler a COA nunc pro tunc with respect only to his double jeopardy/sufficiency challenge to retrial, and we proceed to discuss the merits of that argument.
B. Hoffler‘s Retrial Will Not Violate Double Jeopardy
The Constitution states that no person shall “be subject for the same offence to be
twice put in jeopardy of life or limb.”
Hoffler contends that if he is retried for the Drabik murder after having аlready been tried once for that crime on a record that he maintains was legally insufficient to support conviction, he will be placed in double jeopardy. See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (holding that Double Jeopardy Clause bars retrial where appellate court finds evidence at first trial insufficient to support conviction). He submits that the New York State courts violated his right not to be placed in double jeopardy by mistakenly concluding that he was never in jeopardy at his first trial and by failing to rule on his sufficiency challenge to the evidence supporting his first conviction. We conclude that Hoffler was placed in jeopardy when he was first tried for the Drabik murder, but that his double jeopardy claim fails nonetheless because jeopardy never terminated with respect to that offense, and the trial evidence was not insufficient as a matter of law to support a conviction for first-degree witness-elimination murder.
1. Attachment of Jeopardy
In rejecting Hoffler‘s double jeopardy challenge to retrial, the Appellate Division
The first strand derives from the Supreme Court‘s decision in Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), and this court‘s decision in United States v. Wedalowski, 572 F.2d 69 (2d Cir.1978). In Serfass, the Supreme Court observed that, for purposes of reviewing double jeopardy challenges, “courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of attachment of jeopardy.” In the case of a jury trial, that point is when a jury is “empaneled and sworn.” Id.; accord United States v. Razmilovic, 507 F.3d 130, 136 (2d Cir.2007).
In Wedalowski, this court held that Serfass‘s use of “the word ‘sworn’ refers, of course, to the trial jury oath and not to the voir dire oath.” 572 F.2d at 74. We reached that conclusion in rejecting a defendant‘s claim that he was already in jeopardy when a trial court granted a motion to dismiss after jurors had been selected from a venire but before they had sworn the trial jury oath. See id. at 74-75. What is significant for our review of Hoffler‘s claim is that Wedalowski construed the word “sworn” to refer only to the trial jury oath and “not to the voir dire oath.” Id. at 74 (emphasis added). It notably did not hold that “the word ‘sworn’ refers, of course, to the trial jury oath [as well as] the voir dire oath.” Id.
Here, there is no question that the jurors empaneled to hear the evidence and return a verdict in Hoffler‘s case swore to the required trial jury oath. Thus, whatever state law error may have occurred in the administration of a voir dire oath to the venire panel from which trial jurors were selected does not alter the fact that Hoffler was tried before a jury “empaneled and sworn” to the trial jury oath. That was sufficient to place Hoffler once in jeopardy and to afford him the constitutional protection against being so placed a second time.
A second strand of precedent distinguishing between void and voidable judgments in the double jeopardy context reinforces that conclusion. Generally, a judgment is “void” where a court “usurр[s] a power without jurisdiction,” while a judgment is “voidable” where a court commits error while properly exercising jurisdiction. Dennison v. Payne, 293 F. 333, 341 (2d Cir.1923). In Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), the Supreme Court held that only in the former, narrowly confined circumstance does jeopardy fail to attach, see id. at 669-70. The government there argued that double jeopardy did not
An acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense. But, although the indictment was fatally defective, yet, if the court had jurisdiction of the cause and of the party, its judgment is not void, but only voidable by writ of error.
Id. at 669-70 (emphasis added; citations omitted). Having concluded that the defective indictment rendered the judgment voidable, but not void, the Court held that jeopardy attached at trial and that the government could not retry the defendant for murder. See Ball v. United States, 163 U.S. at 670; accord Kepner v. United States, 195 U.S. 100, 130 (1904); Illinois v. Somerville, 410 U.S. 458, 467-69, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (concluding jeopardy attached in state trial on defective indictment).
Significantly, for purposes of our review here, when in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the Supreme Court held that the Double Jeopardy Clause applied fully to thе states, it reiterated the distinction between void and voidable judgments in the context of a jury selection error, see id. at 795-97. In Benton, a defendant convicted of burglary but acquitted of larceny was granted a new trial by the state because a constitutionally impermissible oath had been administered to both the grand jury that returned the original indictment and the petit jury that rendered the trial verdict. See id. at 785-86. The state retried the defendant, however, on both the burglary and larceny counts, maintaining that the jury error rendered the initial indictment “absolutely void,” and that a defendant “cannot be placed in jeopardy by a void indictment.” Id. at 796 (internal quotation marks omitted). The Supreme Court rejected that argument in holding that the defendant could not be retried for larceny. It concluded that “at worst the indictment would seem only voidable at the defendant‘s option, not absolutely void.” Id. at 797; see also id. at 796 (characterizing state‘s voidness argument as “a bit strange ... since petitioner could quietly have served out his sentence under this ‘void’ indictment had he not appealed his burglary conviction“). In so stating, the Court reiterated Ball‘s holding that “if the court had jurisdiction of the cause and of the party, its judgment is not void, but only voidable by writ of error.” Id. at 797 (quoting Ball v. United States, 163 U.S. at 669-70). The Court grounded this conclusion in the common law roots of the Double Jeopardy Clause, specifically Blackstone‘s reference to a “plea of autrefoits acquit” or former acquittal. Id. at 795 (internal quotation marks omitted). In short, it is the law‘s longstanding opposition to retry-
We think the same conclusion that the Supreme Court reached in Benton with respect to a constitutional error in the oath administered to grand and trial juries necessarily applies to a state law error in the oath administered to a venire panel. As long as the trial court has jurisdiction of the cause and the party, such jury oath errors render ensuing judgments voidable but not void. Indeed, the conclusion is particularly apt here, where there is no question that the petit jurors empaneled from a mistakenly sworn venire were nevertheless properly sworn according to the trial jury oath. See United States v. Wedalowski, 572 F.2d at 74.12
The conclusion that few errors will render a judgment void is bolstered by United States v. Sabella, 272 F.2d 206 (2d Cir.1959). There, the government defended against a double jeopardy challenge to a conviction secured on retrial by arguing that a defect in the statute supporting defendants’ original conviction—specificаlly, the absence of any sentencing authority—deprived the trial court of jurisdiction to enter the original judgment. See id. at 207, 209. In rejecting this argument, Judge Friendly, writing for the court, explained that Ball referenced “jurisdiction” in the “basic sense,” asking only whether a “cause of action under our law was asserted,” and whether “the court had power to determine whether it was or was not well founded in law and effect.” Id. at 209 (internal quotation marks omitted). These “basic” jurisdiction questions required affirmative answers in Sabella because the district court, in addition to having personal jurisdiction over defendants and territorial jurisdiction over their alleged actions, had jurisdiction to try the charged conduct and “to render a judgment convicting the defendants, despite the fact that it could not lawfully impose a penalty.” 272 F.2d
More recently, this court clarified that, in making a double jeopardy assessment of a state court‘s initial exercise of jurisdiction, a federal court may consider, but is not bound by, state law. See Boyd v. Meachum, 77 F.3d at 65 (stating that question whether “state court had sufficient jurisdiction for jeopardy to attach ... is necessarily one of federal law“). Moreover, Boyd emphasized that a party claiming lack of jurisdiction to defeat a double jeopardy claim carries a particularly heavy burden. Thus, a party asserting that a state court judgment is void for lack of personal jurisdiction “must show that, in a larger sense, the state court was without fundamental power to exercise jurisdiction over his person.” Id. (emphasis added). In other words, it must demonstrate “not merely that the criminal court did not properly exercise jurisdiction over [defendant‘s] person as a matter of state law, but rather that the court could not exercise personal jurisdiction over him without violating the Constitution, or perhaps other federal law depriving the state court of personal jurisdiction.” Id. Absent such a showing, a judgment may be voidable, but it is not void so as to preclude jeopardy from attaching. See id. at 66 (rejecting defendant‘s argument that jeopardy did not attach, because there was “no claim that he was tried in the wrong court, or was tried in absentia, or was otherwise denied due process,” or that trial court exercised jurisdiction over him in violation of Constitution or federal law).
Consistent with these precedents, we here conclude that the state trial court did not lack the fundamental power or basic jurisdiction to try Hoffler for Drabik‘s murder. See Boyd v. Meachum, 77 F.3d at 65; United States v. Sabella, 272 F.2d at 209. Rensselaer County Court undoubtedly had jurisdiction to try the charged offense of first-degree murder, as well as lesser homicide crimes. See
In these circumstances, even if New York, in applying its own law, treats the failure to administer the proper voir dire oath to the venire as an error that “invlidate[s] the entire trial,” People v. Hoffler, 53 A.D.3d at 124, 860 N.Y.S.2d at 272, for purposes of the Fifth Amendment protection against double jeopardy, this is the sort of non-jurisdictional trial error that rendered the initial judgmеnt voidable, but not void. Thus, consistent with Ball, Benton, Sabella, and Boyd, we conclude that,
2. Review of Insufficiency Claims on Direct Appeal
Where a defendant placed in jeopardy at trial is acquitted, jeopardy terminates with the judgment of acquittal, and the Double Jeopardy Clause bars retrial. See, e.g., Boyd v. Meachum, 77 F.3d at 63. But where jeopardy has attached and a defendant is convicted, retrial on the same charges is not constitutionally barred where it results from a reversal of conviction based on the defendant‘s own successful demonstration of trial error on appeal. See id. In such circumstances, the law does not view jeopardy as terminating or the retrial as putting a defendant in jeopardy a second time. See id. Rather, it views the retrial as “a facet of the original jeopardy.” Id. (observing that “first jeopardy does not end with conviction, but rather continues through the appeal, and if successful, the remand and retrial are part of the original jeopardy“).
This conclusion does not apply, however, where an appellate court finds the evidence at the first trial insufficient to support conviction. In such circumstances, “[t]he Double Jeopardy Clause fоrbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v. United States, 437 U.S. at 11. As Burks explained, a reversal for insufficient evidence “means that the government‘s case was so lacking that it should not have even been submitted to the jury” a first time. Id. at 16 (emphasis in original). Hoffler argues that the Double Jeopardy Clause not only bars retrial when a conviction is reversed for insufficient evidence, but also compels a reviewing court to resolve any insufficiency claim before ordering retrial based on trial error. In support, he relies on Justice Brennan‘s concurring opinion in Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 321-22, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984). There, Justice Brennan, joined by Justice Marshall, stated as follows:
[W]hen a defendant challenging his conviction on appeal contends both that the trial was infected by error and that the evidence was constitutionally insufficient, the court may not, consistent with the rule of Burks v. United States, 437 U.S. 1 (1978), ignore the sufficiency claim, reverse on grounds of trial error, and remand for trial.... [I]f retrial is to be had, the evidence must be found to be legally sufficient, as a matter of federal law, to sustain the jury verdict.
Id. at 321-22 (Brennan, J., concurring in part and concurring in the judgment) (internal quotation marks omitted). Hoffler submits that this court adopted Justice Brennan‘s view as its own in United States v. Wallach, 979 F.2d 912 (2d Cir.1992), when it stated: “A reversal on the basis of insufficiency of evidence, like an acquittal, bars a retrial, see Burks v. United States, 437 U.S. at 16-17, and a reversal of a conviction on grounds other than sufficiency does not avoid the need to determine the sufficiency of the evidence before a retrial may occur.” Id. at 917 (emphasis added; citation omitted).
Wallach made the highlighted point in reviewing a federal conviction. Nowhere in the opinion, however, did we indicate whether we were identifying a prudential rule for the courts of this circuit or a generally applicable constitutional requirement. Insofar as Hoffler urges the latter, he confronts a hurdle: the Supreme
Hoffler submits that Richardson‘s rejection of a sufficiency-ruling requirement for retrial does not apply outside the mistrial context. Our sister courts of appeals have divided on that question, as well as on the issue of whether sufficiency review before retrial is prudentially sound or constitutionally required. See LaFave § 25.4(c) (noting circuit split); compare United States v. Wiles, 106 F.3d 1516, 1518 (10th Cir.1997) (identifying double jeopardy requirement to review preserved sufficiency claim before ordering retrial based on trial error); Palmer v. Grammer, 863 F.2d 588, 592 (8th Cir.1988) (same); Vogel v. Pennsylvania, 790 F.2d 368, 376 (3d Cir.1986) (same), with Foxworth v. Maloney, 515 F.3d 1, 4 (1st Cir.2008) (adopting prudential rather than constitutional rule requiring review of preserved sufficiency challenges before ordering retrial); Patterson v. Haskins, 470 F.3d 645, 655-60 (6th Cir.2006) (concluding, in case where appeals court erroneously failed to follow its own prudential rule to review sufficiency challenges before ordering retrial, that error did not subject defendant to unconstitutional retrial; “what activates the Burks [double jeopardy] rule is not the abstract possibility that the evidence was insufficient, but the appellate court‘s declaration to that effect. Absent such a declaration, jeopardy continues, and the defendant can be tried once again on the same charges.” (emphasis in original)); United States v. Bobo, 419 F.3d 1264, 1268 (11th Cir.2005) (citing circuit precedent that prudential rule requiring sufficiency review even when conviction reversеd on other ground is not mandated by Double Jeopardy Clause); United States v. Recio, 371 F.3d 1093, 1104 (9th Cir.2004) (referencing court‘s “policy” to consider sufficiency claims on appeal from final judgment); United States v. Miller, 952 F.2d 866, 871-74 (5th Cir.1992) (concluding that Richardson is not limited to mistrials but, rather, generally “refuses to extend Burks beyond instances in which the appellate court in fact reversed for insufficient evidence“; observing nevertheless that “[a]lthough not mandated by the double jeopardy clause, it is ... clearly the better practice” for appellate court to dispose of preserved sufficiency challenge before ordering retrial (emphasis in original)); United States v. Douglas, 874 F.2d 1145, 1149-51 (7th Cir.1989) (stating “we are not convinced, in light of Richardson, that the Double Jeopardy Clause compels an appellate court to review the sufficiency of the evidence offered at trial anytime a defendant raises the question,” but “to accomplish the same purpose, [we are] prepared to adopt a policy in this circuit of routinely addressing evidentiary sufficiency in criminal cases when a defendant presents the issue on appeal“), abrogated on other grounds by United States v. Durrive, 902 F.2d 1221, 1226 (7th Cir.1990).
In sum, while only a few courts of appeals have concluded that the Double Jeopardy Clause, as construed by the Supreme Court in Burks, compels sufficiency review before ordering retrial based on trial error, the courts of appeals, our own
Thus, we easily identify in our own precedent at least a prudential rule generally requiring reviewing courts to consider preserved sufficiency challenges before ordering retrials based on identified trial error. We see no reason here to decide the more difficult question of whether such a rule is also constitutionally compelled by the Double Jeopardy Clause because, even if it wеre, any Appellate Division error in failing to review Hoffler‘s sufficiency challenge would necessarily be harmless given that the challenge is meritless.
3. Because Hoffler‘s Sufficiency Challenge Is Meritless, Any Appellate Division Error in Failing To Review Sufficiency on Direct Appeal Was Necessarily Harmless Beyond a Reasonable Doubt
a. Harmless Error Standard
The test for harmless constitutional error on direct appeal is whether the error at issue “was harmless beyond a reasonable doubt.” Corby v. Artus, 699 F.3d 159, 169 (2d Cir.2012) (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). On review of a habeas claim by a state prisoner, however, “because of the deference we afford to state courts, we ‘find an error harmless unless it had substantial and injurious effect or influence in determining the jury‘s verdict.‘” Id. (quoting Fry v. Pliler, 551 U.S. 112, 116, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)). To the extent it is unsettled in this circuit what deference is owed a state court decision on
b. The Evidence at Hoffler‘s First Trial Was Sufficient To Support His Conviction for First-Degree Murder
A defendant challenging the sufficiency of the evidence bears a heavy burden because, even when we consider the question de novo, we must view the evidence in the light most favorable to the prosecution, and doing so, must uphold the jury verdict as long as “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); accord United States v. Rojas, 617 F.3d 669, 674 (2d Cir.2010).
Under New York law, “[w]itness elimination murder is committed when a defendant intentionally kills a victim who ‘was a witness to a crime committed on a prior
First, the evidence established that Hoffler had a strong motive to commit the charged murder. Drabik was, after all, an eyewitness to and participant in the drug transactions with which Hoffler was charged. Thus, he was in a position to provide powerful, direct evidence of Hoffler‘s culpability. Moreover, Drabik was not a coincidental witness to Hoffler‘s criminal conduct. He had specifically identified Hoffler—or, as he knew him, “Murder“—as a drug dealer and was cooperating with authorities when he participated in the charged drug transactions.
Second, the evidence established that Hoffler had the means to effect Drabik‘s murder in the person of Brooklyn gunman Heckstall. An eyewitness account of Drabik‘s murder indicated that Heckstall was the actual shooter. Not only had Heckstall and Hoffler been neighbors years before in Brooklyn, but several eyewitnesses also testified to seeing the two men together in Albany at and about the time of the Drabik murder. One eyewitness testified that Heckstall was in possession of a loaded firearm while in Albany, and that Heckstall brought this gun with him when Hoffler picked him up early one morning around the time of the Drabik killing. A number of witnesses testified that during this same time they saw Hoffler and Heckstall traveling together in a gray or dark SUV. Such a vehicle was spotted parked with its lights on at the time and near the site of the Drabik murder, and departing when a man entered the passenger side at about the same time as the shooter was seen fleeing the scene. Business, bank, and police records indicated that Hoffler rented such an SUV in Albany a few days before the Drabik murder and returned the vehicle, also in Albany, on the night of the murder—but only after driving the SUV to Brooklyn. These circumstances supported an inference that Hoffler drove Heckstall back to Brooklyn almost immediately after the Drabik murder. Moreover, when Heckstall appeared at a family member‘s home in Brooklyn later on the day of Drabik‘s murder, he was in possession of a significant amount of money, which a rational jury could infer was his payment for the killing.
Third, telephone and computer records strongly supported an inference that Hoffler lured Drabik to his death. Specifically, a cell phone registered to Hoffler‘s residence called Drabik‘s home the night before his death, at a time when Drabik‘s mother recalled that her son received a telеphone call from someone professing an interest in meeting Drabik the following morning to discuss a construction job. That same night, a computer in Hoffler‘s
From the totality of these circumstances, a reasonable jury could certainly draw the inferences necessary to find beyond a reasonable doubt not only that Hoffler and Heckstall agreed to kill Drabik, but also that Hoffler solicited Heckstall to commit the murder and then aided him in carrying it out.
Hoffler nevertheless submits that the evidence was insufficient to find him guilty of first-degree witness-elimination murder because the prosecution failed to show how he would have learned that Drabik was a confidential informant. The point merits little discussion. Witness-elimination murder does not require proof that a defendant knew the victim was an informant. It requires only that the victim have been a witness to a crime and that a defendant murder the victim with the intent to prevent him from testifying in a criminal proceeding. Here, although the authorities were careful not to disclose Drabik‘s identity or his cooperator status, a rational jury could infer that, once Hoffler was provided with particulars as to the drug transactions with which he was being charged, he knew from his own participation in these transactions that he had provided the drugs at issue to Drabik and recognized the possibility that Drabik could provide inculpatory evidence against him at trial. Moreover, given the timing of Drabik‘s murder—only days before Hoffler‘s drug trial was to commence—and the strong circumstantial evidence of Hoffler‘s involvement therein, a rational jury could conclude that Hoffler‘s purpose in arranging for Drabik‘s murder was to prevent Drabik from testifying against him at the forthcoming trial.
Hoffler further asserts that the prosecution failed to adduce evidence sufficient to prove that the Gregory Heckstall who shot Drabik was the same Gregory Heckstall with whom Hoffler had a relationship. To the extent the prosecution evidence identified Heckstall by name rather than by photographic or other physical evidence, New York law requires something more to show identity of person. See People v. Reese, 258 N.Y. 89, 96, 179 N.E. 305, 306 (1932) (“Identity of name is not always sufficient in a criminal prosecution to show identity of person, but it may be accepted as sufficient if fortified by circumstances....” (citation omitted)); People v. Rattelade, 226 A.D.2d 1107, 1108, 642 N.Y.S.2d 1, 1 (4th Dep‘t 1996) (holding identity of name sufficient when supported by “further, connecting evidence” (internal quotation marks omitted)). Here, the requisite connecting evidence was varied and included, (1) the possession of a loaded firearm by the Heckstall seen with Hoffler at and about the time of the Drabik murder and the use of a firearm by the Heckstall who shot Drabik, (2) the similarity between the SUV seen leaving the scene of the Drabik shooting and the SUV in which Hoffler and Heckstall were seen together in Albany at and about the same time, and (3) telephone and computer records indicating Hoffler‘s involvement in luring Drabik to his death, making Hoffler himself the link between the Heckstall who shot Drabik dead at the site to which he was lured and the armed Heckstall with whom Hoffler was seen by various persons in Albany at and about the time of the murder.
Insofar as Hoffler further argues that the evidence could not be sufficient to convict him in the absence of evidence excluding Michael Pearson, another drug
In sum, because the evidence at Hoffler‘s first murder trial was sufficient as a matter of law to permit a rational jury to find him guilty beyond a reasonable doubt of first-degree witness-elimination murder, double jeopardy does not preclude his retrial. Thus, even if the Appellate Division erred in failing to rule on sufficiency before ordering retrial, the error was necessarily harmless beyond a reasonable doubt.
III. Conclusion
To summarize, we conclude as follows:
1. Because
2. Hoffler wаs placed in jeopardy at his first murder trial because the empaneled jury that returned a verdict of guilty was duly sworn in accordance with the jury trial oath. To the extent the Appellate Division reversed Hoffler‘s conviction because of a failure to administer the correct voir dire oath to the venire panel from which the petit jury was selected, the error made the judgment voidable but not void, and thus did not prevent jeopardy from attaching.
3. The evidence at Hoffler‘s first trial was sufficient to permit a rational jury to find him guilty beyond a reasonable doubt of first-degree murder in violation of
The judgment of the district court denying Hoffler‘s
REENA RAGGI
UNITED STATES CIRCUIT JUDGE