United States v. James and Mallay

suggests offense that he longer no needs

to be deterred or pub- shielded STATES, Appellee, UNITED lic.”); Scott, (“Because 270 F.3d at 636 v. condition was based on conduct that oc- curred more than a decade before the Richard JAMES Mallay, and Ronald offense, current the condition would not Defendants-Appellants. goals serve the of deterrence or public safety”); Kent, (“[T]he 209 F.3d at 1077 Docket Nos. (Lead), 09-2732-cr use of the condition as a deterrent makes (Con). 09-2804-cr little light sense in of the fact that behavior to be deterred had ceased United States inde- Court of Appeals, pendently.”). The majority opinion ap- Second Circuit.

pears specific subjective infer a state of Argued: 3,Oct. 2011. mind on the part of Morales-Cruz that would warrant the imposition of the spe- Final July submission: 2012.* cial condition. Specifically, appears to infer from record a state of mind from Decided: March his continued register failure to that “he likely to or wanted to commit addi-

tional offenses freed from the constraints registration.” I join find it difficult to

in that conclusion when defendant pro- has

vided us an 18-year of the opposite record

state mind. district court has im-

posed a sentence and a quite series of

burdensome special conditions tailored to

defendant’s record that defendant does not

challenge; view, in my it is unreasonable impose additional conditions of the type

challenged appeal rely on pure which

speculation assumptions regarding de-

fendant’s propensity specifically towards

sexual offense-based crimes.

Because the special imposed condition

constitutes a “greater deprivation of liber-

ty that reasonably necessary” to achieve purposes release, of supervisory § (b)(2),

U.S.S.G. 5D1.3 I respectfully dis-

sent. * The Court's appeal consideration this parties’ subsequent supplemental briefing di- suspended pending Supreme Court’s deci significance, rected any, to the if of that deci- Illinois, - U.S. -, sion in Williams sion here. (2012), S.Ct. 183 L.Ed.2d 89 and the McGovern, Corkery, Susan G.

James Lynch, Loretta E. Capers, L. for Robert Attorney for the Eastern United States NY, York, Brooklyn, for of New District Appellee. NY, Zissou, Esq., Bayside,

Steve Richard James. Defendant-Appellant York, Bachrach, Esq., New Michael K. Mal- NY, Defendant-Appellant Ronald for lay. RAGGI, and Circuit

Before: SACK EATON, Judge.** Judges, and in separate concurs Judge EATON opinion.

SACK, Judge: Circuit Mallay ap- Ronald Richard and James of conviction based judgments from peal wide-ranging in a participation on their fraudulently ob- involved conspiracy policies for members tained life insurance families and others their extended of com- Guyanese-American and Guyanese instances, and, murder in several munity, ** nation. United States Judge K. Eaton of the Richard Trade, sitting by desig- International Court of of the insured in order to collect on those appeal, On the defendants do not contest policies. the sufficiency of the evidence of insurance fraud. The issues on appeals these relate

BACKGROUND largely to the convictions of the defendants jury After a trial in the United States for committing four murders that were District Court for the Eastern District of part scheme, of allegedly this particu- New (Sterling Johnson, York Judge), larly the murders of Sewnanan and So- Mallay James and were each to sentenced maipersaud, both of poisoned whom were mandatory prison terms of in life after to Accordingly, death. we only review they were convicted of racketeering, in that necessary evidence explain our de- 1962(c); § violation 18 U.S.C. of racketeer- cision to affirm all counts of conviction. ing conspiracy, in violation 18 U.S.C. Vernon Peter 1962(d); § murder in of racketeering, aid 1959(a)(1); § violation 18 U.S.C. con- 1991, In Mallay was convicted of theft spiracy to commit in aid of murder racke- service, postal for he which teering, in violation of 18 U.S.C. postal carrier, worked as a and sentenced § 1959(a)(5); fraud, mail in violation of 18 to 15 imprisonment. months’ See Memo 1341; § conspiracy U.S.C. to commit mail Order, randum & James, United States v. fraud, in 371; § violation 18 U.S.C. 0778, No. 02 *1, Cr 2009 WL at conspiracy to commit money laundering, in 2009 U.S. Dist. LEXIS at *3 1956(h). § violation of 18 U.S.C. In addi- (E.D.N.Y. 18, 2009) ("James I”). Mar. tion, Mallay was convicted of murder for Mallay incarcerated, While his mother hire and conspiracy to commit murder for died of heart attack. Mallay blamed hire, in violation § of 18 U.S.C. 1958. his arrest and conviction on his sister’s James also convicted of attempted husband, Peter, Vernon “Dilly.” known as hire, murder for violation of 18 U.S.C. sister, Id. He Peter, told his Betty keep § and solicitation of murder aid Dilly’s life insurance current because he racketeering, violation 18 U.S.C. planned Id., get even. 2009 WL 1959(a)(1). §§ 373 and charges These re- *l-*2, 2009 U.S. Dist. LEXIS volved around the of four murders people: *4. Mallay after was released Peter, Gobin, Vernon Alfred Hardeo Sew- from prison, he nephew his asked Baski nanan, Basdeo Somaipersaud. While nand if Motillal he kill Dilly would Mallay in charged was relation to all four *2, Mallay. Id. at 2009 U.S. Dist. LEXIS murders, James charged was in connection 23706, at *4. Motillal declined but intro only with the murders Sewnanan of and duced Mallay to person, another to whom Somaipersaud. Mallay was convicted on Mallay $10,000 paid to commit the crime. every count with he which had been He gave also that person with which $500 charged; James was convicted on all purchase to a weapon. Id. That person in counts with which he had been charged, turn recruited three others to him help with the exception of alleging those con- carry out the murder. morning Id. On the spiracy and murder for in hire connection 28, 1993, July of the four Dilly murdered with the of deaths Sewnanan and Somaip- as he out of walked his home. Id. ersaud. The defendants were eligible for penalty, death Betty $400,000 but jury because the Peter collected on in- an to reach a Id., unable policy Dilly’s unanimous surance on verdict life. as to that punishment, 763612, *2, a sentence of life WL at 2009 U.S. Dist. LEXIS imprisonment imposed. 23706, *5. at She then loaned at least in alcoholism Id., of acute had died maipersaud Mallay.1 to

$60,000 proceeds of those drug chlor- a dose of *2, Dist. with 763612, 2009 U.S. combination 2009 WL Arjun to contacted Id. James promazine.2 at *5. LEXIS death, which Somaipersaud’s of tell him Gobin Alfred he was not because Arjun surprising found 1993, Mallay met with September In James any connection between aware with Met- James, agent an insurance then had not because he Somaipersaud and and Gobin, Mallay’s longtime Life, and Gulabie purchased he had since spoken to James *2, 763612, at Id., 2009 WL mistress. girl- policy. Id. James’s the insurance 23706, at *6. James Dist. LEXIS U.S. pay- Arjun insurance and received friend out take Gobin to Mallay persuaded death. Somaipersaud’s as a result ments father, on her policies two insurance Id. Guya- Gobin, murdered who was Alfred Hardeo Sewnanan and her January 1996. Id. Gulabie na in $200,000 from more than family received arranged for the In James October Mallay and lent James policies, $250,000 insurance life of two purchase $60,000. nearly Id. Sewnanan, who was for Hardeo policies Peter, Mal- Somaipersaud Betty Mallay’s nephew, Basdeo with wife, daugh- Mallay’s mistress’s lay’s his, Satya- a friend of encouraged James *3, Id. at ter named beneficiaries. poli- to an insurance Arjun, purchase nand 23706, at *8. William Dist. LEXIS U.S. heavy Somaipersaud, cy on the life with the Mallay, shared address who Arjun. with sometimes lived who drinker premi- Mallay, paid Ronald defendant *2-*3, Id., 2009 U.S. 2009 WL Ronald policy. Id. ums on 23706, at *6-*7. In October Dist. LEXIS kill Sew- Mallay asked Kenrick Hassan $100,000 on policy obtained James This to do so. nanan, again who declined life, indemnity with double Somaipersaud’s Kenrick’s Mallay in with put time he touch accidentally. It Somaipersaud died if Mallay trav- brother, Id. Derick Hassan. beneficiary. Id. as a named James’s sister Derick, Guyana pay- meet eled offered fall of James During the $10,000 But to kill Sewnanan. ing him Hassan, $10,000 a member to Kenrick ultimately not to Hassan decided Delick Somaiper- kill family, to James’s extended he Mallay Derick that Id. later told do so. Although Hassan saud. Id. declined the murder. others to commit had hired 23, 1998, offer, Somaipersaud January Borough park dead was found 8, 1999, January Sewnanan died On City. The New Queens, New York ex- Guyanese medical Guyana of what the Ex- City of the Chief Medical York Office poison- to be ammonia (“OCME”) aminer determined that So- determined aminer Chlorpromazine Thorazine] name: [brand 2. trials Betty and Baskinand Motillal's Peter disorders, Mallay's trial. severe James and mental "[t]reat[] were severed from is used including charges disorders, ob- hiccups, Peter was severe convicted severe behavior investigation murder of structing into the types of vomiting, certain nausea racketeering, and sen- in aid of Health, her husband http:// porphyria....” See PubMed imprison- principally to 60 tenced months’ www.ncbi.nlm.nih.gov/pubmedhealth/PMHT James, Fed.Appx. 322 ment. United States 22, (last Mar. 0009582/?report=details visited 32, Cir.2009). cooperated (2d Peter 32-33 2013). subsequent to her con- government with the viction, leading to the at the trial and testified appealed at 35. here. Id. convictions

87 Id.; ing. see also Order, Memorandum & court erred in denying a new trial based James, United States v. 0778, No. 02 Cr allegations by a cooperating witness 2702449, *1, 2007 WL 2007 U.S. prosecutorial Dist. misconduct coercion; (E.D.N.Y. 67538, LEXIS at *2 12, Sept. and eighth, whether there has been cumu- (“James 2007) II”). Mallay lative collected error sufficient to warrant a new $400,000 on the policy on trial. Sewnanan’s life. I,

James *3, WL 2009 U.S. DISCUSSION

Dist. LEXIS at *8. Appeals I. The Confrontation Clause The defendants raise two separate Con- defendants eight raise separate is- frontation Clause issues on sues their appeals. on their appeals: First, whether a First, they contend that one member new required trial based on the district the OCME could not constitutionally court’s have error under the Sixth Amendment’s been permitted testify as to the results Confrontation Clause in admitting forensic of Somaipersaud’s autopsy, which was con- reports relating to the deaths of Sewnanan by ducted another member of that office. and Somaipersaud specifically, the issues — Second, they urge that allowing Guya- are whether one member of the OCME nese medical examiner who conducted was properly to testify allowed regarding Sewnanan’s autopsy to testify to the re- an autopsy conducted by another member sults of forensic tests conducted by a col- of that in office which the witness had not league ran afoul of the Confrontation participated, and whether a medical exam- Clause. Guyana iner from was properly allowed to testify to the results of toxicology tests The Sixth provides, Amendment among

which he had ordered but conduct; did not other things, “[i]n all criminal prose- second, whether the district court cutions, erred in the accused shall enjoy right excluding prosecution’s statement in ... to be confronted with .the witnesses the prior Const, criminal trial Betty Peter, against him.” U.S. amend. VI. cooperating trial, witness the current The landscape of ju- Confrontation Clause suggesting greater culpability on her part risprudence changed has considerably for Vernon murder; third, Peter’s whether since Supreme Court’s decision in the district court abused its discretion v. Washington, 541 U.S. Crawford refusing permit defendants to im- S.Ct. (2004). 158 L.Ed.2d 177 Even peach Betty Peter’s testimony prior after Crawford, however, this court reaf- statements; fourth, inconsistent whether firmed its holding settled that autopsy re- James is entitled ato new trial because ports could be admitted as business rec- district court’s refusal to order severance ords without violating the Confrontation deprived trial; him of a fifth, fair whether Clause. Feliz, See United States v. the defendants had deprived been of a Cir.2006). fair F.3d Defendants trial because of the district court’s urge refusal us to reconsider precedent this to suppress statements elicited light Supreme Court decisions since Fel- James government informant after iz limning the contours of what constitutes indictment; James’s sixth, whether a “testimonial” statement in the context of district court erred admitting, against laboratory analysis. See Bullcoming v. — Mallay as a coconspirator, Mexico, recorded state- New -, U.S. 131 S.Ct. ments of James made surreptitiously by (2011); L.Ed.2d Melendez- third party; seventh, whether the Massachusetts, district Diaz 557 U.S. 129

88 that the explained The (2009). Court background. We L.Ed.2d 314

S.Ct. pro- designed to was Clause cast Confrontation cases if these that even conclude using of ex “principal evil” against of tect designation categorical any on doubt Id. the accused. against statements parte all as admissible reports forensic certain Thus, proper 1354. case in this are at S.Ct. reports cases, autopsy focus inquiry should there Clause testimonial —and Confrontation not nevertheless by the contemplated reliability as the Confrontation not on implicate fore do not “witnesses evidence, on not created but were of they law Clause—because words, those establishing proving or other the accused—in against of purpose “for the Melendez-Diaz, at id. testimony.” See trial.” fact at who bear some 2527; also Bull Court deter- see 129 S.Ct. 1354. at S.Ct. U.S. Crawford (Sotomayor, at issue was at 2719-20 the statement coming, 131 S.Ct. mined an (“When pur against ‘primary “testimonial,” made J., concurring) having been create a ‘not to herself is suspect a statement while witness pose’ of identified trial,’ admissibility of the ‘the either and therefore custody, for in police record was and fed state confrontation, unavailability prior the concern of and a statement or evidence, the Confronta cross-examination, not re- eral rules for opportunity ” 131 S.Ct. Bryant, (quoting 65-66, But Clause.’ 1354. at S.Ct. Id. quired. 1155)). day any effort another for “le[ft] the Court definition comprehensive out spell to ” post-Craw- Clause A. Confrontation applied. rule ‘testimonial,’ to which its ford event, any In 1354. 124 S.Ct. Id. at considered Crawford, covers, the Court it applies In the term else “[w]hatever po- statement tape-recorded testimony at a whether prior a minimum being a man by the wife jury, lice made a grand before hearing, preliminary man could stabbing another prosecuted trial; interro- police and to or at a former the al- against into evidence entered practices be are modern These gations. he had no though even leged perpetrator abuses at kinship to the closest the witness. to cross-examine opportunity direct- Clause was which the Confrontation testify compelled could not be She ed.”3 mar- the state’s under her husband against Feliz, concluded, of Craw- light we privilege.

ital are not testi- “autopsy reports ford, that and, thus, come within do ... heavily monial analysis relied The Court’s Clausef.]” the Confrontation the ambit of historical Clause’s Confrontation circum- under that were made statements Crawford, Court offered a Elsewhere objective wit- lead would complete "testimoniar': stances which definition of more that the state- reasonably to believe ness this core class of Various formulations at a later parte use ex in- be available for exist: ment would statements "testimoniar’ equiva- a com- testimony share or its functional formulations all court trial. These affidavits, is, as such material the Clause's lent—that and then define mon nucleus examinations, testimony prior custodial abstraction coverage at various levels unable to cross- defendant precise articu- Regardless of the around it. examine, pretrial statements that or similar lation, any qualify under statements some reasonably expect to be would declarants testimony parte example, ex definition—for extrajudicial state- ... prosecutorially used hearing. preliminary aat testimo- ... contained formalized ments (citations 51-52, 124 S.Ct. Id. at affidavits, materials, deposi- nial such omitted). quotation marks internal confessions; tions, prior testimony, [and] or Feliz, 467 F.3d at 229. We examined a medical examiner preparing such a report situation raising issues strikingly similar to must have a expectation reasonable those raised reports here —one member of may be available for use in a sub- OCME findings sequent testified to the trial.” of an- Id. Because “the Supreme member, other did opt and the Court testifying medical for an expansive defini- examiner had not participated [of testimonial] the au- that depended on a topsy expectations,” at issue. declarant’s said, Id. upon We remarked we “we are hesitant to do change sea so here.” brought about, Id. at 236. We Crawford concluded but that business reasoned that it records had “declined fell out- ‘spell side Crawford's, out a definition of comprehensive definition testimonial of “testimo- ’ ” “even where the Feliz, declarant nial.” is aware F.3d at 232 (quoting may be available for trial,” later Crawford, use at 68, 1354). 541 U.S. at 124 S.Ct. Feliz, 236, 467 F.3d at and that Crawford, autopsy we explained, “indicated that a reports were business records within the produced statement through the ‘involve- meaning 803(6), of Rule as thousands of government ment of officers’ and with an autopsies were every conducted year ‘eye towards trial’ is testimonial because it “without regard to the likelihood of then- ‘presents unique potential for prosecuto- use at trial.” Id. We further concluded rial abuse—a fact borne out time and that autopsy reports would be equally ad- again through a history with which the ” missible as public, business, rather than Framers Feliz, were keenly familiar.’ records because Rule 803(8)(A)-(B),which 467 F.3d at 232 (quoting Crawford, 541 public records, defines excludes documents 1354) (brackets U.S. at 56 n. 124 S.Ct. prepared in anticipation of litigation and omitted). We observed that among the matters by police observed officers. Id. at classes of statements that con- Crawford 237. “These factors suggest that public cluded would be testimonial were those records, like records, business ‘bear[ little ] “made under circumstances which would resemblance to the civil-law abuses the lead an objective witness reasonably to ” Confrontation targeted.’ Clause Id. believe that the statement would be avail- (quoting Crawford, 541 U.S. at able for at a use trial.” later 1354). S.Ct. (quoting Crawford, 541 U.S. at In however, the Supreme Court 1354). S.Ct. cast doubt on our post-Crawford jurispru We concluded that autopsy reports dence this area. Melendez-Diaz would nonetheless be admissible as busi- Massachusetts, 557 U.S. 129 S.Ct. ness records under Federal Rule of Evi- 2527, 174 (2009), L.Ed.2d 314 the Court 803(6) dence because “a business record is concluded that of analysis” “certificates fundamentally inconsistent with what the identifying a seized substance as an illicit Supreme Court has suggested comprise drug should not have been introduced defining characteristics of testimonial against the defendant an opportuni absent Feliz, evidence.” 467 F.3d at 233-34. Be- for the ty defendant to confront the person cause the business records exception “re- prepared who the certificate. The Melen quires business kept records be dez-Diaz Court reached this conclusion regular course of a business activity, rec- part because certificates “are quite ords in anticipation created litigation do plainly affidavits: declarations of facts not fall within its definition.” Id. at 234. written down and sworn the declar- rejected

We the argument that “autopsy ant before an officer authorized to admin reports must be testimonial because ister oaths.” Id. at 129 S.Ct. 2527 J., dissenting). In (Kennedy, omitted). 2527 “The S.Ct. marks

(internal quotation at issue analyst reports why the explaining to functionally identical are ‘certificates’ Clause, the implicate Confrontation doing ‘precisely did testimony, live, in-court Kennedy asserted: direct examina Justice does a witness what ” 310-11, 129 (quot 2527 S.Ct. at Id. tion.’ recalls witness First, conventional a 547 U.S. Washington, Davis v. ing while an past, in the observed events 224 L.Ed.2d 165 830, 126 S.Ct. near-contempo- report contains analyst’s the safely assume (2006)). can “We test.... of the observations raneous evi- the affidavits’ aware analysts were the neither Second, analyst observes an purpose since purpose, dentiary —as related human action any nor crime provision— state-law in the relevant stated the from analyst’s distance The it.... them affidavits on the reprinted was defendant, space in both and the crime 2527. 129 S.Ct. at Id. selves.” a is not time, analyst the suggests and a spell out declined again Court once the defendant against witness of testimonial. definition comprehensive Third, a conven- sense. conventional rejected the Court The Melendez-Diaz un- questions responds witness tional that the evidence argument government’s differently, Put interrogation.... der a it was busi- because admitted should be “re- only should out-of-court statements upon hearsay exception record —the ness they produced if are confrontation quire ex- in Feliz —because relied which we of, adver- involvement with the by, or regularly “if the applied never had ception responsible officials government sarial produc- the activity is business conducted crime.” prosecuting or investigating for trial.” Id. for use at tion of evidence 345-46, Car (quoting S.Ct. Id. at The Court concluded: 2527. S.Ct. Comment, a Toward Zabrycki, olyn Defi are general- records public Business Autopsy How “Testimonial”: nition of confrontation, not absent ly admissible Qualities a Embody the Do Not Reports exception they under qualify because Statement, L.Rev. 96 Cal. Testimonial rules, but because—hav- hearsay to the (2008)). 1093, 1118 the administration created for ing been for the and not entity’s affairs of an — Mexico, U.S. Bullcoming v. New some proving or establishing purpose -, 180 L.Ed.2d S.Ct. testimonial. they are not fact at trial — wheth- (2011), question presented the they qualify business or not Whether containing the analyst” er “certificate of a records, analysts’ state- the or official test administered a blood-alcohol results for specifically prepared ments here — required arrest to a DUI pursuant testimony trial —were petitioner’s use at conducted analyst who testimony of the analysts were petitioner, and against at 2710- Id. chromatograph test. gas Sixth under the subject to confrontation the test admitted trial had 11. The court Amendment. record, its intro- and allowed as business 324, 129 S.Ct. Id. ana- testimony of “an through the duction or sign certification dissent, lyst who did not criticized Kennedy, Justice per- or observe perform century personally “disregarding] majority the certifi- reported in of the test formance in favor of “formalistic jurisprudence” rejected The Court at 2713. rules, prece- cation.” divorced wooden nontes- report suggestion underlying sense, dent, common 330-31, 129 timonial: Id. at of the Clause.” purpose — In all respects, laboratory term, material Illinois, Last in Williams v. U.S. -, report this case resembles those in 132 S.Ct. 183 L.Ed.2d 89 (2012), Here, Melendez-Diaz. as Melendez- Court returned to consideration Diaz, Clause, Confrontation provided law-enforcement officer this time to determine whether it seized was a laboratory evidence to state re- violation to allow an expert to testify in a quired by rape law to in case police assist investi- that profile “a DNA produced by an out gations. analysts Like the in Melendez- laboratory, Cellmark, side Diaz, pro matched a analyst] [the tested the evidence produced file by the police state using lab prepared a concerning certificate sample a petitioner’s of blood.” Id. at analysis. the result of his Like the Me- 2227. The argued defendant that the ex certificate, lendez-Diaz [the certificate pert “went astray when she referred to the is in signed here] “formalized” a docu- profile DNA provided by Cellmark as hav sum, ... ment. the formalities attend- ing produced been from semen found on the ing “report of blood analysis” alcohol swabs,” the victim’s vaginal though even adequate are more than to qualify [the she did not conduct or any observe analyst’s] assertions as testimonial. work that Cellmark had done in deducing (citations omitted). at 2717 Id. a profile. male DNA Id. at The Court came to no clear consensus as Sotomayor concurred, Justice relying to what constituted a testimonial state largely on a Confrontation opinion Clause context, in however, ment this issuing a she had written earlier in the term in plurality opinion, concurrences, two and a — Michigan -, v. Bryant, U.S. dissent. (2011) (conclud- S.Ct. 179 L.Ed.2d 93 plurality opinion The by Alito, Justice ing statements made dying man joined by Roberts, Chief Justice Justice police could be admitted without requir- Kennedy, Breyer and Justice confrontation). dissen- ing “To determine if a —the ters in Melendez-Diaz and Bullcoming— testimonial, statement is we must decide concluded testimony that the did not run whether it has ‘a primary purpose of creat- afoul of the Confrontation using Clause ing an out-of-court substitute for trial tes- First, separate two paths. it noted that timony.’ ‘primary When the purpose’ of a long “[i]t has been accepted expert that an statement is ‘not to create a record for may witness opinion voice an based on trial,’ ‘the admissibility of the statement is concerning facts the events at issue the concern of the state and federal rules particular case even if expert lacks evidence, not the Confrontation ” first-hand knowledge of those facts.” Id. Clause.’ Bullcoming, 131 S.Ct. at 2720 at 2233. Under the Illinois and federal J., (Sotomayor, concurring) (quoting rules, expert may “an opinion base an 1155). Bryant, 131 S.Ct. at Noting that facts that are ‘made known expert to the Bullcoming was “not a case which the ” at or hearing,’ before the if even those suggested State purpose, alternate facts themselves are inadmissible. Id. at much less an primary purpose, alternate 703; (quoting Ill. R. Evid. Fed. for the report,” BAC such provide as to for 703). R.Evid. treatment, medical Sotomayor Justice con- cluded that primary purpose clearly “is in jury trial the expert While would be to serve as evidence” and its introduction prohibited disclosing underly- those without facts, confrontation was therefore in ing trial, er- in a bench such as ror. Williams, Id. at 2722-23. the judge would be trusted to time, for the but suspicion under not of- facts were those

understand was on the who finding rapist The purpose at 2234-35. Id. their truth. fered con- plurality at 2228. “it clear that Id. is loose.” plurality concluded report did not ... that the admission offending phrase cluded putatively Clause proving purpose of the Confrontation for the run afoul admissible asserted,” and “there not of the matter were truth of the these purposes because of fact the trier enact- to think that had been no reason the clause type that same evi- substantive testimony] as took against. [the protect ed to profiles the DNA where dence establish Breyer Justice concurring opinion, aIn other 2237. Because Id. at from.” came case for have set that he would said origin of established also evidence ques- to answer reargument order judge trial and because profile, DNA a “testimonial what constitutes the have considered not to presumed was panoply “the of regard to statement” truth, con- plurality the its for evidence underlying reports and laboratory crime no Confronta- had been that there cluded (or by other- written statements technical The at 2240. violation. Id. tion Clause laboratory technicians.” by) made wise Bullcoming and in that noted plurality J., concurring). (Breyer, 2244-45 Id. at but Melendez-Diaz, question” is no “there evolving Confron- Court’s He criticized the their offered for results were that the test offering “no jurisprudence as tation Clause Williams, report the truth, in whereas requiring place between stopping logical limited and the distinctive “only for offered one of to call as a witness prosecution the it matched seeing of whether purpose on the laboratory experts who worked the (internal quo- Id. at else.” something prosecution the requiring matter and omitted). marks tation laboratory who did experts the all of call whether, considered next plurality The original). (emphasis at 2246 Id. so.” for offered testimony had been if even the Con- truth, have been no there would its offer himself Breyer did not Justice “The abuses violation. frontation Clause testimonial, of definition comprehensive prompting identified as has that the Court to adhere to continue he would said but Clause of the Confrontation adoption Bullcoming dissenting views following two characteristics: shared the for cross- need “[T]he Melendez-Diaz. (a) out-of-court statements they involved diminished considerably is examination accusing a of purpose having primary was made statement the out-of-court when in criminal engaging of targeted individual laboratory employee op- accredited (b) formalized they involved conduct and investigation from the erating at a remove affidavits, depositions, such as statements professional ordinary course of confessions.” testimony, or prior as- Breyer 2249. Justice Id. at work.” “[t]he plurality asserted 2242. The of the out-of- admission that “to bar serted very different from report is Cellmark under- could issue here records at court statements, extrajudicial such sort factfind- accuracy of mine, fortify, the not testimony, and affidavits, depositions, prior trial,” it would because a criminal ing at confessions, Clause Confrontation autopsy reports: bar potentially The to reach. originally understood report the DNA this like Autopsies, suspect any before produced report was it is not case, conducted when are often sought not report was was identified. particular there is yet clear whether to be obtaining evidence purpose found in the facts or whether suspect even who was not petitioner, against used autopsy will ultimately prove rele- Williams chance to question the analyst vant in a criminal trial. Autopsies are who produced that evidence.” Id. at 2265 typically conducted soon J., after (Kagan, death. dissenting). Taking note of the when, And say, a body victim’s has de- fact that the judgment had been affirmed composed, repetition autopsy may without a majority settling on a “reason not be possible. happen What is to if why,” Kagan Justice averred that “in all the medical examiner dies before trial? except disposition, its [Justice plu- Alito’s Is the Confrontation Clause effectively rality] is a opinion dissent.” Id. Likening to function as a statute limitations for expert’s testimony in Williams to the murder? “surrogate testimony” in Bullcoming, Jus- asked, tice (citations Kagan “Have we Id. at not already quota- internal decided this case?” omitted). Id. at marks Breyer Justice proposed Kagan’s Justice opinion as a roundly solution a rejected presumption rebuttable idea that DNA reports expert’s testimony had type admissible, issue been truth, be offered for with the its noting re- defendant cent able to call the scholarship technician if he case law suggesting so, would choose to do the entire require concept toor con- “basis evidence” frontation upon illusory. showing “[A]dmission of a reason to of the out-of- doubt the court laboratory’s competence statement or hon- this context has no esty. purpose Id. separate at 2251-52. truth; from its the fact- finder can do nothing with it except assess Justice Thomas only concurred its truth and so the credibility of con- the judgment, and, consistent with his prior clusion it serves to buttress.” Id. at 2269 opinions subject, on the did so because the (emphasis in original). report Cellmark “lacks the solemnity anof affidavit deposition, or for it Kagan is neither a Justice then turned plural- to the sworn nor a certified ity’s declaration of conclusion fact. that the DNA report was Nowhere the report nontestimonial, does attest its joining Justice Thomas’s statements accurately reflect the DNA criticism of the reformulated primary pur- testing processes used or the pose results ob- test as having no basis constitu- tained.” Id. at (Thomas, J., text, concur- tional history, or the prior Court’s ring judgment). Further, the precedents. Justice “We have previously asked explicitly Thomas rejected the plurality’s whether a statement was made for the requirement that the primary purpose of primary purpose of establishing past the statements concern a targeted individ- events potentially relevant to later crimi- ual, “[tjhere noting that no justi- textual nal prosecution words, other for the —in fication, however, for limiting the confron- purpose of providing evidence. None of right tation to statements made after the our that, cases has ever suggested addi- accused’s identity tion, became known.” Id. at the statement be must meant to ac- (Thomas, J., concurring). cuse a previously identified individual.” Id. at 2273-74. dissent, Kagan, joined Justice by Jus- Scalia, tices Ginsburg, and Sotomayor, rejected dissenters also the plurali- characterized Williams as an “open-and- ty’s suggestion that purpose the shut case”: “The State prosecut- of Illinois DNA testing was “to respond to an ongo- Sandy ed rape Williams for based in part ing emergency, rather than to evi- create on a profile DNA created in trial,” (internal Cellmark’s dence for id. at 2274 quota- laboratory. Yet the State did not give omitted), tion marks noting that the expert Melendez-Diaz But, explained, have report DNA we the had testified

herself lesser extent to a Bullcoming, and and investi- this criminal “‘for conducted conclusion Williams, categorical this call the of purpose the and for ... gation into doubt. words, for other litigation’ eventual —in evidence, not en- producing purpose were, cases, records of these In each (cita- Id. responders.” emergency abling sense, were records —all business in some omitted). regular business in the course of made conducts: laboratory question that the of Con- state current Summarizing the Yet, in Melendez-Diaz testing. forensic Justice jurisprudence, Clause frontation con- Bullcoming, Supreme Court and who the five Justices Kagan noted were the tests results cluded very “agree on judgment agreed completed they were because testimonial confusion significant left little,” “have and establishing proving or the purpose “for at 2277. let. in their wake.” Melendez-Diaz, 557 trial,” at some fact desire of four Justices’ out comes What “affir- or were 129 S.Ct. U.S. Bullcoming Melendez-Diaz limit establish- purpose made for mations way possible, combined in whatever in a criminal fact some ing proving or view of those one-justice one Justice’s Bullcoming, 131 S.Ct. proceeding,” frank —who knows be holdings, is—to omitted).4 As (internal marks quotation no apparently decisions Those what. explained, Court Melendez-Diaz Yet they say. no all that mean longer “[bjusiness general- are public records what way or to in what can tell one not be- confrontation ly absent admissible pro- no because they are altered extent exception to they qualify under cause support commands limitation posed having rules, but hearsay because— majority. of a anof administration for the been created purpose entity’s affairs Controlling Law B. fact at trial— some establishing proving or at 557 U.S. they are not testimonial.” with the in this case are confronted We in reports issue 2527. The at S.Ct. Which described: Kagan Justice puzzle case, “prepared specifi- having that been by var- enunciated principles foregoing the trial[,]” ... testimoni- at were cally for use con- Supreme Court ious members “[wjhether qualified] as they or not al trols here? or officialrecords.” business holding in by looking to our begin We case pre-Williams from this We distill very similar case decided facts Feliz —a laboratory analysis that law the principle and to what how determine to these —to under if circumstances is testimonial intervening Court’s Supreme extent viewed analysis prepared, which the we estab- the rule have altered decisions primary pur- objectively, establish There, concluded in that case. we lished declar- analyst pose of reasonable were autopsy reports nontestimonial create have been to would position ant’s status as on their large part based trial. at a later criminal use Feliz, at record for F.3d records. business distinguishes testi be what should declarant as to reached in Feliz 4. No conclusion statements,” Fel reports similarly nontestimonial autopsy were monial whether establishing iz, rendering factual purpose of completed for the trial, part did not then because we unnecessary. fact at inquiry expectation of the "the reasonable think Melendez-Diaz, See 557 U.S. at 129 truth —was roundly rejected by five Jus- 2527; Bryant, S.Ct. 131 S.Ct. at 1155-56 Williams, tices. 132 S.Ct. at 2258-59 (explaining application of the primary pur- (Thomas, J., concurring in the judgment); standard); see also Bullcoming, 131 Id. pose J., 2268-69 (Kagan, dissenting). J., S.Ct. at 2720 (Sotomayor, concurring) any event, we hard-pressed are to read (“To determine if a statement is testimoni- this rationale as controlling this case be- al, we must decide whether it pri- has ‘a cause the facts before us are in significant mary purpose of creating an out-of-court respects different from presented those testimony.’ substitute trial When the Williams.5 ‘primary purpose’ of a statement is ‘not to Nor do we think we can apply plu trial,’ create a record for ‘the admissibility rality’s narrowed definition testimonial, of the statement is the concern of state which would require that analyst had evidence, federal rules of not the Con- ” “the primary purpose accusing a target frontation Clause.’ (quoting Bryant, ed individual of engaging in criminal con 1155)). S.Ct. at Id. at 2242. Again, five Justices duct.]” question then becomes wheth disagreed with this rationale, and it would er the Court’s later decision in Williams appear to conflict directly with Melendez- changed that rule. agree We with Justice Diaz, rejected which a related argument. Kagan that problem this is intractable. Williams, See 132 S.Ct. at (Kagan, J., single No disposing rationale dissenting). For similar reasons —lack of Williams case enjoys support of a support among the Justices and conflict majority the Justices. Ordinarily, prior precedents that did command a fragmented “[w]hen Court decides a case majority support do not think either —we single and no rationale explaining the re Justice Thomas’s concurrence on the enjoys sult Justices, assent of five the ground that analysis was not sufficient holding of the may Court be viewed as the ly “formalized,” Breyer’s or Justice new position taken those members who con approach application of the Confronta curred judgments in the on the narrowest Clause, is controlling. grounds.” States, Marks v. United 188, 193, U.S. 97 S.Ct. 51 L.Ed.2d 260 Williams does not, as far as we can (1977) (internal omitted). quotation marks determine, using the Marks analytic ap But what is the ground narrowest proach, yield a single, useful holding rele disposition in Williams'? vant the case to before us. It is therefore The Williams plurality’s first ratio- for purposes our particular confined to the laboratory nale—that the report there was set of presented facts in that case. We offered as evidence, basis and not for its think it sufficient to conclude that we must Ambrosi, 5. example, For Also, Corinne the OCME’s plurality the in relied at Williams least Queens deputy chief medical examiner for part in on the that fact was a Williams bench County, testified in order to establish Somaip- trial, noting that argument "[t]he the dissent’s death, ersaud’s cause of which was not at all petitioner would have force if had elected to and clearly obvious was relevant to the jury Williams, have a trial.” 132 S.Ct. at charges against the defendants. No other tes- 2236. The case before us jury, was tried to a timony established that Somaipersaud died of leaving us less confident the that factfinder contrast, poisoning. By ’Williams, other conceptual would the understand distinction admissible evidence that the established sam- between basis evidence and evidence offered ple by tested Cellmark came from the victim’s for truth. its vaginal Williams, swab. See 132 S.Ct. at 2239. generally the OCME that explained She before precedent Court rely Supreme on died people autopsies “where performs a statement that to the effect Williams circumstances, unnatural unexpected Confronta protections triggers Those come deaths, unexpected deaths. pri made it is when Clause examiner.” medical the attention for use creating a record mary purpose previ- Ambrosi had Tr. 4655:18-20. Trial Melendez- trial.6 See criminal at a later expert witness as an 2527; ously testified 310-11, 129 S.Ct. Diaz, at U.S. 106 times. She manner of death cause 1155; also Bull see at S.Ct. Bryant, 131 par- or perform that she did testified 2716; v. Davis Wash S.Ct. at coming, 131 autopsy, which Somaipersaud’s ticipate S.Ct. 547 U.S. ington, Jindrak, who Dr. Heda by was conducted (2006); Crawford, 541 L.Ed.2d employed longer was no of trial at the time 51-52, 124 1354. at S.Ct. U.S. at described the OCME. Ambrosi by Somaiper- Related Testimony or- toxicology tests C. the results of length Death the au- Jindrak, informed saud’s which dered performed tests were These topsy report. the defendants’ first We address office main at the OCME’s by technicians testimo allowing surrogate that argument that the explained Ambrosi in Manhattan. report So- autopsy concerning ny ele- had Somaipersaud that tests showed pur This error. death maipersaud’s chlorpro- well as of alcohol as vated levels to at trial. objected was not error ported as an mazine, used is sometimes which that appeal challenges on We review her own offered drug. She antipsychotic plain for at trial raise did not defendants revealed level of alcohol that the opinion requires “plain error” finding A error. been alone have would not by the tests She Somaipersaud. have enough to killed (2) error; (1) the error is there is levels chlorpromazine testified or obvi- is, is clear the error plain, than she however, were, significant—more subject reasonable ous, rather than to see from someone expected would have (3) appel- error affected dispute; medication drug as taking the regularly rights, which substantial lant’s further Ambrosi illness. a psychiatric the out- it affected case means ordinary chlorpromazine testified that level proceedings; court of the district come combined body in the victim’s detected (4) seriously affects the the error body alcohol in of blood with the level reputation of fairness, public or integrity killed the enough to been have would have judicial proceedings. in- had victim, combination Marcus, States United cause of to be the determined deed been (internal Cir.2010) quotation marks death. Somaipersaud’s omitted). and bracket toxicology report admitted Am- Testimony trial Corinne .26 blood trial. It indicated an exhibit medical brosi, deputy chief the OCME’s kilo- milligrams per and 1.9 alcohol content County, testified at Queens for examiner ex- Ambrosi levels. chlorpromazine gram death. Somaipersaud’s regarding trial attorney by an created are developed when documents in Although is not well the law 6. See, e.g., Mat- litigation." anticipation of "in versus nontestimonial the of testimonial area 22, Subpoenas Oct. Jury Dated statements, may ter analogue be found Grand in a close 1158, 1991, 1, 1166 F.2d 959 Nov. the attor- 1991 and examining applicability of the cases Cir.1992). (2d applies privilege, work-product which ney plained that the chlorpromazine 2. Analysis. To resolve this case ap- levels peared to be acute because the level in the we must whether, determine under the liver was 75.7 milligrams per kilogram, circumstances, (includ the autopsy report whereas in someone prescribed who was ing the toxicology report) was prepared drug the therapeutically it would not nor- with the primary purpose of creating a mally be more than milligrams per kilo- record for use at a later criminal trial.7 As gram. Ambrosi explained further that she explained Burden, United we States did not having recall ever seen levels of Cir.2010), F.3d 204 the examples of chlorpromazine in a person that high. She testimonial statements outlined in Craw also testified as to autopsy Jindrak’s deter- ford, are no “more than a set of guideposts mination that the cause of death was [for] courts [to] work through, case-by- “[a]cute intoxication by ethynel or alco- case .... [N]o court say can whether a hol chlorpromazine,” and and that she particular kind of statement is testimonial agreed with that assessment. Trial Tr. until it has considered that kind of state 4678:20-21. “[H]ypertensive and arterio- ment in an actual case.” Id. at 224. sclerotic cardiovascular disease” were also contributing factors. Trial Tr. 4679:2-3. Key to determining the resolution of the case before particular us is the

On cross-examination, relationship Ambrosi con- between the firmed OCME that she had and law not participated in enforcement autopsy. Her testimony both on and in generally based her particular this case. review of the case file before testifying. While OCME is an independent agen- It noting is Williams, worth throughout that courts in which the proposed author country applied approaches have various definition of and testimonial similar to that en by dorsed differing reached plurality, conclusions Williams proposing when consider- ing “out-of-court are statements challenges Confrontation Clause testimonial to the and require thus they confrontation if are autopsy reports. introduction of Compare produced by, of, or with the involvement ad Moore, United 30, States v. government versarial responsible officials for (D.C.Cir.2011)(concluding that Chief Medical crime,” investigating prosecuting and at id. surrogate Examiner’s testimony autopsy 1118, but arguing that medical are examiners reports prepared by others violated the Con- "public officials,” health rather than law en frontation Clause law where offi- enforcement officers, therefore, forcement and unless cers autopsies observed the participated and medical examiner autopsy report "writes an reports creation of the —circumstances response police interrogation,” re signaled “would have to the medical ex- port non-testimonial, 1128-29, id. aminer that the autopsy might bear on a Friedman, Professor Richard argued who in a investigation” criminal autopsy each —and petition for writ of certiorari from decision "found the manner of death to be a homicide Ohio, Supreme Court Craig, State v. gunshot wounds”), caused by with State v. (2006), Ohio St. 3d 853 N.E.2d 621 Locklear, 363 N.C. 681 S.E.2d denied, cert. 549 U.S. 127 S.Ct. (2009) ("Thus, when State seeks to (2007), 167 L.Ed.2d 164 that while "[t]here [autopsy reports], are, introduce course, absent a showing situations in which coroners analysts that the are write testify autopsy reports unavailable to without anticipation they trial petitioner likely and that be prior pro had a will opportu- used forensic ceedings, ...,” nity purposes other cross-examine id. at them such evidence is *13-*14, "where, here, the coroner con inadmissible under (quotation Crawford.” cludes that clearly the decedent marks, citation, victim omitted)). and brackets homicide, genuine there can be no doubt There is also academic debate on the sub person that a position reasonable ject. Compare Zabrycki, supra, cited coroner understands that there will be foren Supreme Court in both proceedings sic Melendez-Diaz report intends that the OCME, of whether regardless with the notify it to required are

cy,8 police Id. investigation results. any further criminal died “from has someone when examiner, investiga- suicide, medical suddenly accident, by medical violence, “Such health, take investigator when unattended shall lay medical apparent in tor or when facility which, or objects in correctional a by physician, any portable a possession manner or or unusual any suspicious useful in may in be opinion, her in his or pursuant to is made application death, except where an and establishing the cause body of a cremate to permit for a law [relat- c in subdivision hereof provided as 557(a), (f)(1); § N.Y.C. Charter person.” to notes], them shall deliver to ing suicide § 17-202. Code Admin. N.Y.C. see also 202(a). §Id. department.”9 police charge of required to “take is The OCME object failed the defendants Because instances, and must body” in such the dead testimony of Ambrosi’s to the introduction facts con- essential investigate the “fully of the trial, record there is scant during of the death” the circumstances cerning pro- which Jindrak under circumstances collect evi- and witnesses interview and In its written autopsy report. her duced establishing in “may be useful that dence objections to the the defendants’ ruling on Code N.Y.C. Admin. of death.” the cause Brijmohan— Dr. Vivikand testimony of 17-202(a). § of death of the cause testimony on whose determines wheth- that It the OCME is Sewnanan, be- victim, is discussed another on whether based autopsy an er to conduct “Jindrak court noted that district low—the cer- with reasonable may “it be concluded exami- and external an internal conducted natural occurred tainty death analysis,” toxicology well as nation as injury[.]” traumatic or obvious causes steps these Ambrosi described and that § 17-203. Whenever Code N.Y.C. Admin. 2702449, II, 2007 WL James “routine.” it necessary, “shall autopsy is deemed an argue in do not The defendants *2 n. 1. microbiolog- toxicologic, histologic, include briefs, supplemen- in the or their either of examinations,” the results serologic ic and response briefs tal letter submitted written down filed must be of which requirement *14, pathologists; there is no them,” they are id. at used in will be attorneys or they be Charter testimonial. therefore any law any employees the office have training. Even when matter Freycinet, 11 enforcement People v. N.Y.3d 8. See attorney because the district referred to is N.E.2d 862 N.Y.S.2d criminality, the Charter indication of an report (2008) autopsy (concluding than an any give medical examiner not does testimonial, part because the was not collecting de- evidence or responsibility for law, independent of and "by is OCME perpetrator. identity termining the office of the subject to the control Further, though activities enforcement law enforcement "not a law prosecutor” and accusatory and typically adversarial are omitted)); (internal quotation marks agency” nature, reported ob- examiner’s a medical 79, 83, Hall, 923 N.Y.S.2d People v. A.D.3d are nor- body's as to condition servations 2011). (1st Dep’t part independent effort of an mally made as Indeed, "a of death. a cause to determine v. States similarly explained in United We examiner, although often called a medical Cir.1993), Rosa, (2d 11 F.3d similarity to a expert, more bears forensic required is one who Office he does to treating physician the Medical Examiner’s than deaths; opinion use investigate rendering for merely unnatural simply bearing any indicium of of a a death case.” refers trial omitted) Cir.1993) (citation appropriate district attor- at 332 criminality to Moran, responsibility enforcing (quoting Manocchio ney and has no Cir.1990) (internal (1st quotation marks 777 omitted)). examiner and any medical laws. chief physicians required to be are assistants his Williams, short, request by this Court after In autopsy report was not Somaipersaud’s autopsy anything was testimonial because it was not prepared other than routine —there suggestion is no primarily to create a record for use at a anyone that Jindrak or else involved in criminal trial.11 There was therefore no autopsy process suspected this that So- error, plain error, much less in admitting had maipersaud been murdered and that autopsy evidence, report into or allow- report the medical examiner’s would be ing testify it, Ambrosi to regarding al- used at a criminal trial. Ambrosi testified though she did not it conduct herself.

that causes of death are often undeter-

mined cases like this because it could D. Testimony Related to Seumanan’s have drug been recreational overdose or Death autopsy a suicide. The report itself refers to the contrast cause death as “undetermined” Ambrosi’s testi mony relating Somaipersaud’s death, and attributes both to “acute mixed in- ehlorproma- toxication with alcohol and vigorously objected defendants to Dr. “hypertensive zine” combined with ar- Brijmohan’s Vivikand testimony as to a teriosclerotic cardiovascular disease.” toxicology relating test to the death of Sewnanan, Hardeo which was based on autopsy completed January testing forensic by conducted Dr. Leslie 24, 1998, report signed and the June Mootoo. analyzing When error that 16, 1998, substantially any before criminal trial, defendants did raise at we review for investigation into Somaipersaud’s death harmlessness, which requires us to ask begun. During had the course of Ambro- whether we are “upon satisfied a review of lengthy testimony, si’s trial neither beyond entire record ... a reasonable government nor defense counsel elicited doubt that the error any complained of ... suggesting information did law en- not contribute to the forcement was ever verdict obtained.” Somaip- notified that Lee, United suspicious, any ersaud’s death was or that States v. Cir.2008) (internal

medical expected quotation examiner a criminal in- marks omit ted). vestigation Indeed, words, to result from “In it. other to find the [error] there is reason to believe that none is harmless we must be able to conclude that pursued in autopsies.10 the case of most the evidence would unimportant have been 5,500 performs average 10. The OCME Angeles Los Medical Examiner's office con- 4,180 9,465 autopsies year, complete each and in autopsies for exam- ducted out of ple, 9,465 City by 533 New York residents’ causes of cases taken the office. Of the total OCME, cases, 1,121 homicide, death were listed as died from homicides. See 709 from suicide, 3,090 Booklet, accidents, 4,256 General http://www.nyc. from Information gov/html/ocme/downloads/pdf/General%20In- Zabrycki, natural causes.” 96 Cal. L.Rev. 1125. 20General% 20Informa- formation/OCME% (last 20Booklet.pdf tion% visited Mar. 2013); by Deaths and Death Rates Selected contrary No conclusion is warranted City 2010, http://www. Causes New York (11th Ignasiak, United States v. 667 F.3d 1217 — health.ny.gov/statistics/vital_statistics/2010/ Cir.2012). Although that case holds that (last 22, 2013). table33c.htm visited Mar. reports “[florensic constitute testimonial evi- suggests, although dence,” This the data is of course id. at the decision was based in conclusively, insufficient to demonstrate part on the fact that the Florida Medical Ex- something percent in the order of ten aminer's Office “was created and exists with- investigated by Enforcement,” deaths the OCME lead to Department of Law id. investigations. Here, criminal The statistics from wholly at 1231. the OCME a inde- Angeles story: pendent Los tell a similar "In office. that testified further Brijmohan jury report. con- the else everything in relation actually performed know who not re- he did question, issue on the sidered Dr. Mootoo toxicology test. While (internal the quota- Id. in the record.” vealed testing, role omitted). some may played have We citations marks and wheth- not sure apparently Brijmohan was of “(1) strength the overall the consider him- testing the had conducted (2) er Mootoo case; prosecutor’s the prosecution’s self. improperly to the respect with conduct (3) of importance evidence; the admitted testified, on scien- “the based Brijmohan (4) testimony; wrongly admitted

the the my examination of tific evidence of was cumulative evidence such whether of death the cause report, that toxicology Id. evidence.” admitted properly consequence other the Hardeo Sewnanan of omitted). (internal marks quotation with substance of a toxic ingestion the of 3299:7- Trial Tr. compound.” ammoniacal tes- Brijmohan Testimony at trial. 1. hydro- probably said was Brijmohan cause regarding Sewnanan’s tified cya- acid, and sodium potassium or cyanic tests toxicology death, on part based been would have nide, in case there which Mootoo, died be- who had by conducted Brijmohan death. prior to symptoms no test the of the performance his tween report toxicology the that further testified chief the Brijmohan was trial. time of ammonia from death resulted indicated Guya- region of for the pathologist forensic objections, and, continued over poisoning occurred. death Sewnanan’s na where report on toxicology that explained normally that he would Brijmohan testified ammonia indicated stomach Sewnanan’s autopsy by for an of the need be informed poisoning.12 depart- the police with a coroner affiliated cross-examination, Brijmohan was Guyana are autopsies in On Typically, ment. whether extensively “unnatural as to questioned there are when performed could murders, body “accidents, strangu- deaths,” i.e., found Sewnanan’s ammonia inasmuch occurring, naturally ... and course in- have lations, been drowning, naturally in the Trial often Tr. as ammonia occurs poisoning.” cluding cases of tes- Brijmohan body that in after death. explained human Brijmohan 3266:12-17. it was knowledge that his examina- tified that internal conducting Sewnanan’s on commercially produced was based submucosal tion, “extensive he discovered His conclusion laboratory report. definitely a “is not hemorrhages,” which commercially-produced died of Sewnanan a finding such finding. Whenever normal my on essentially “was based ammonia of extrane- occurs, immediately thinks one stomach, the he- definitely of observation one thinks ingestion ous laboratory reports 3265:13-14, morrhages, 22-24. Tr. Trial poisoning.” Trial Tr. attention.” my brought post-mortem sent Brijmohan then 3382:23-25. for toxi- stomach of Sewnanan’s contents decision. district court’s 2. The that the con- testified testing. He cology ar- rejected the defendants’ district court police officer taken tents were introduction allowing gument stamp of laboratory, the police Guyanese vio- evidence would report into toxicology toxicology the resultant appeared which the con- conclusively reveal whether does not Brijmohan objections, testi- repeated 12. Over victim’s derived tents the bottles bottles sent to from two that test results fied infer- logical body though appears lab, positive for police of which tested one — ammonia, ence. analysis. The record his informed late the Confrontation Clause. See worked, Mem. is directly analogous to the Order, & James, United States v. 2007 WL [OCME].” *l-*2, 2007 U.S. Dist. LEXIS The court therefore concluded that the (E.D.N.Y. 2007). *3-*4 May forensic records did fall under the “law The district court relied on Feliz in allow- enforcement” exception to the business

ing report, introduction but its deci- records rule permits that admission of the preceded sion the Supreme Court deci- documentary despite evidence the absence in sions Melendez-Diaz, Bullcoming, and of the preparer. document’s Id. Further- Williams. more, the court noted a that toxicology report is “not separate and distinct” The district court decision, did base its the autopsy report, which bolstered its ad- however, large in on part its conclusion missibility as a business record. that the toxicology report was not a “ report ‘chemist’s’ by created ‘law en- 3. Analysis. First, in light of ” forcement.’ Id. at *2. the foregoing While analysis, acknowl- it apparent is to us edging that that the defendants the district had described court’s rationale for allow ing the proximity” “close the forensic report between the into evidence medical is of questionable validity examiner’s office and the of Guyanese because the police doubt subsequent Supreme station, Court jurisprudence and the cooperation between those Feliz, has cast on on which agencies, two the district court concluded that “the court relied. Nevertheless, we think critical inquiry is not the physical proximi- district court’s conclusion sound. ty agencies, of two or their cooper- level of ation, but rather agency whether the that There is no indication in Brijmo- report created the be can by characterized testimony han’s or elsewhere in the record its and duties purposes as law enforce- that a criminal investigation was contem ment.” Id. The district court cited Rosa’s plated during the inquiry into the of cause dictum to the effect that the OCME is not Sewnanan’s death.13 For example, Bri- a law enforcement agency, then, not- jmohan testified that “the rate poisons ing that Guyanese medical examiner taken pretty is high ... within the East operates part as Guyanese Ministry Indian community,” 3253:15-17, Trial Tr. Georgetown Health and Hospital, ob- suggesting ingestion accidental or suicide served that “[t]here is no indication that rather than During homicide.14 the course Dr. Mootoo employed was aby law en- of the autopsy, Brijmohan symp observed agency forcement or was responsible for toms consistent with poisoning, including enforcing any laws.... [I]t appears that congestion in the lungs and hemorrhaging Guyanese Office of Medicine, Forensic stomach, and ordered toxicology for which Drs. Brijmohan and Mootoo tests Brijmohan basis. further note, court, 13. We as did the district that the investigating medical in examiner all unnatu- police unquestionably were deaths, involved in the ral and does not indicate that a crimi- Guyanese autopsy process, including, for investigation ex- nal contemplated. was ample, transporting samples forensic for test- ing. clear, As five Justices in made Williams Brijmohan publica- was interviewed however, the involvement of "adversarial offi- tion called Today” “Hinduism regarding the cials” investigation in an dispositive suicides, high rate of particularly among East males, whether or not a statement is testimonial. Guyana, Indian which he attributed case, In this appears simply problem[s]” to "cultural and alcoholism. Tri- routine procedure employed by Guyanese al Tr. 3375:15-3377:12. Peter, cooperat- Betty in the trial “nat- tion potential were other that there noted her, and witness, largely blamed which ing symptoms types of causes ural” case, for in the instant not the defendants general— suspect poisoning led him to defense is “The murder. Peter’s Vernon alco- particular including not murder — state- prosecutor’s to introduce allowed nothing to indi- short, we see holism. (1) the trial prior when: ment from was com- report toxicology cate that asser- an inconsistent offered prosecution evidence for generate pleted primarily (2) trial; prior of fact at trial. We criminal subsequent at a use explana- ‘innocent’ offer no can prosecution toxicology report conclude United States contradiction.” tion for the court nontestimonial, the district Cir.1994) Orena, 704, v. intro- allowing its not err did therefore (citations omitted); Fed.R.Evid. see also confrontation requiring duction without McKeon, 738 801(d)(2); States United it. prepared who the individual Cir.1984). (2d 26, F.2d 32-33 out in Breyer pointed As Justice McKeon, the upon which defen the In under Williams, it is still unsettled reason rely, the court’s juris principally Clause dants recent Confrontation Court’s the fact large part upon in “logical ing was based is whether there prudence in a on trial the it was same defendant requiring that the between place stopping McKeon, 738 subsequent proceeding. one of a witness to call as prosecution ad relationship to (noting the on F.2d at 31 who worked laboratory experts the pro in civil party-opponent of a prosecution missions requiring and the matter event, requires any McKeon ceedings). laboratory experts who call to all evidence, the that, admit such Williams, in to S.Ct. 2246 order 132 so.” did pre “determine Brijmo must district court concurring). While (Breyer, J. that the infer ques of the evidence ponderance that testimony implicates han’s from the [party] other seeks draw someone ence suggested that tion—he an and that is a fair inconsistency one participated also may have than Mootoo inconsistency for the toxicology explanation re innocent of the preparation in the is in the evidence Where unnecessary to answer it does not exist. find port —we favors an preponderance to the or the equipoise na of our conclusions light in the ... statement explanation, the extent innocent report. To of the that ture Here, the at 33. rules evidentiary should be excluded.” implicates question change that the evidence,” explained government we also de “basis regarding from a Peter resulted toxicology its view towards whether cline to decide here, after her convic proffer such sessions offered as series properly test was mail including charges personal had tion on various testifying expert where the fraud, laundering, obstruction money and process, autopsy involvement gleaned information toxicology justice. tests at The ordered he himself by other and corroborated these sessions issue. a differ government led the witnesses Government’s for Vernon culpability II. Exclusion view as to her ent Jury Argument Prior Peter’s murder. court did district We conclude contend that defendants by a deciding clear error commit its discretion in court abused

the district there of the evidence preponderance introduce ex request denying their in- for the explanation” was an “innocent summa- rebuttal prosecutor’s cerpt 103 consistency government’s Ramirez, between the See United States v. 609 F.3d (2d position 495, Cir.2010). stated at the trial of Peter and A district court “is that in the instant case. The district court ‘accorded broad discretion in controlling therefore did not its discretion in abuse scope and extent of cross-examina excluding prior statement. United tion.’” United States v. Caracappa, Cf. Corp., States GAF 928 F.2d (2d Cir.2010) F.3d (quoting United (2d 1991) (reversing finding n.3 Cir. Wilkerson, States v. 361 F.3d prior error the exclusion of a bill of Cir.), denied, cert. 543 U.S. 125 S.Ct. particulars inconsistency where “the is 225, (2004)); accord, 160 L.Ed.2d 185 e.g., clear,” plain, the inferences [and] are Whitten, United States v. 610 F.3d where the government’s only explanation (2d Cir.2010). Therefore, a “district longer was “that it no believes” may impose court ‘reasonable limits’ on same evidence demonstrates what it had protect cross-examination to against, e.g., did). previously argued it harassment, prejudice, confusion, and

Finally, argument the defendants’ Cedeno, waste.” United States v. a post-trial cooperating letter from a wit- (2d Cir.2011) 79, 82 (quoting Delaware v. implicating Betty ness Peter her hus- Arsdall, 673, 679, Van 475 U.S. 106 S.Ct. pro- band’s murder somehow affects the (1986)). 89 L.Ed.2d 674 “In the priety ruling of the district court’s discretion, exercise of a district court misplaced. The letter was not before the should consider the need to ‘ascertain [the] court at district the time it made the rul- truth,’ ‘avoid needless consumption of ing. It therefore not suggest does either time,’ ‘protect witnesses from harass that the district court’s factual finding as ment or undue embarrassment.’” Whit government’s to the explanation was ten, 610 (quoting F.3d 182-83 Fed. erroneous, clearly or that it abused its 611(a)). R.Evid. in excluding discretion the prosecution’s A district court should afford rebuttal statement. “wide latitude to a defendant in a criminal III. case to government Limitation on Cross-Examina- cross-examine wit nesses,” Cedeno, (internal

tion 644 F.3d at 82 quotation omitted), marks because argue The defendants gives Confrontation Clause a defendant district court abused its discretion cur right cross-examination, only to tailing impeachment Betty their of Peter cross-examination, to but effective see with prior inconsistent statements con Figueroa, United States v. 548 F.3d (1) cerning a conversation she had with a (2d Cir.2008). (2) 227 But “[i]t does not fol member of family15 Sewnanan’s low, course, understanding her the Confrontation of the term “double in demnity.” In particular, prevents judge Clause a trial from impos Peter testified at spoken trial that she had not ing any to Patricia inquiry limits defense counsel’s death, Sewnanan after Hardeo’s and that cross-examining] prosecution [in wit she did not know the meaning of the term Figueroa, ness.” at 227 (quoting F.3d indemnity.” “double Arsdall, Van 475 U.S. at 106 S.Ct. 1431) added). (emphasis

We review for abuse of discre sought tion a district court’s The defense to evi- preclude decision to introduce evidence impeach offered to a witness. family dence that the Sewnanan bribed the Precisely relationship what her to Hardeo Sewnanan was is not reflected in the record. 14(a). Fed.R.Crim.P. “Considerations change Hardeo Sew-

medical examiner consistency militate in favor efficiency and poisoning, rather nanan’s cause of death in trying jointly defendants who were disease, they could collect on than so that [j]oint trials are of together, dicted [and] indemnity double policy’s the insurance particularly appropriate circum ten evi- court excluded clause. The district charged stances where the defendants are however, theory, this supporting dence criminal participating with the same challenge. do not which the defendants Spinel conspiracy....” United States v. Patricia spoke that she with Peter’s denial Cir.2003) (citations (2d li, 352 F.3d Sewnanan, fami- of Sewnanan’s a member omitted). joint “The decision to sever a irrelevant, ly, because was therefore is committed to trial of federal defendants not to be subject of her discussion was judge[, the trial the sound discretion of Moreover, any event. be- introduced virtually unreviewable.” and is considered subject of Peter’s discussion with cause the Diaz, 52, 102 United States v. F.3d family member would not have Sewnanan’s Cir.1999) (internal ci quotation marks and jury, inconsistency in front of the her been omitted). reversal, compel tations “[T]o (whether or not on this collateral matter heavy the defendant has the burden member) family spoke she with the that his prejudice show so severe convic unlikely jury’s to influence the assessment miscarriage justice.” constituted credibility, they al- of her because were Ferguson, United States v. was a convicted felon ready aware she (internal (2d Cir.2011) quotation 286-87 begun cooperating gov- had with the who omitted). marks ernment. argues jointly trying him James reasons, For of Pe- impeachment similar Mallay, charged who was also with concerning understanding ter her James was not two murders with which indemnity” term “double would have had charged Peter Vernon event, —those probative any little value. prejudice. Alfred him Gobin—caused cross-examination did indeed elicit testimo- evidence, however, That was relevant to ny explained from Peter which she racketeering charges against James to $400,000 she received on her husband’s existence, formation, prove the and nature $200,000 policy life insurance because racketeering enterprise, of the which in accidentally anybody “when died or some- volved the murder of individuals to collect they Eliciting from thing, pay double.” as to policies, on their insurance as well Peter that had been inconsistent she pattern racketeering activity. show the indemnity,” recognizing the term “double Diaz, 103; See 176 F.3d at United States the con- when was clear she understood (2d Stewart, v. 123-24 Cir. 590 F.3d cept, would therefore also not have affect- 2009) (“[T]he a testimony against fact that jury’s credibility. of her ed the assessment harmful a may codefendant be testimony if that ground for severance IV. Motion to Sever against would also be admissible the mov Defendant James contends (internal ing separately.” defendant tried that the district court’s denial of his mo omitted)). quotation marks tions for severance of his trial from that of argument him a that there was Mallay deprived his co-defendant James’s him and may fair trial. court ... sever the an irreconcilable conflict between “[T]he Mallay Mallay’s opposition ... based on initial defendants’ trials consolidation [if] regarding a to the introduction of evidence a appears prejudice trial to defendant.” Guyanese to plot bribe medical exam those charge statements —that was subse- James, also without merit. Mallay quently iner is later dropped. 415 F.Supp.2d joined in seeking Therefore, James to introduce that at 158-61. the Sixth Amend- case, in any evidence. And obtain a “[t]o ment did not bar their introduction into ground antagonistic severance on the evidence.

defenses, a defendant must show that the VI. Admission of Recorded State-

conflict is acceptance so irreconcilable that against Mallay ments requires one defendant’s defense the testimony offered on behalf of a code- Mallay Defendant contends fendant be disbelieved.” United States that the conversation between James and (2d Benitez, 920 F.2d 1085-86 Cir. Hassan, by recorded Hassan —also re 1990) (internal quotation marks and cita ferred previous to section—should omitted). That is not the case here. not have been against admitted him be cause that conversation indicates Mallay’s Suppress V. Refusal Recorded withdrawal from the conspiracy, and thus Statements is not admissible a co-conspirator state object

The defendants to the deni ment. “A statement ... is not hearsay if al of a suppress motion to statements ... [t]he statement is offered against an by Hassan, made gov James Derick opposing party and ... was made ernment wearing recording informant party’s coconspirator during in fur device, concerning plot to murder John therance conspiracy.” of the Fed.R.Evid. Narinesingh. argue The defendants 801(d)(2)(E). “To admit an out-of-court already subject because James was ato rule, declaration under this the district sealed indictment at the time those state by preponderance court must find recorded, ments doing were so his ‘(a) violated evidence that there a conspiracy, right Sixth Amendment to counsel. (b) that its members included the declar- ant and the party against whom the state The defendants argument by waived this (c) offered, ment is that the statement failing object to the magistrate judge’s during was made the course of recommendation sup the motion to ” furtherance of conspiracy.’ United denied, press be which adopted by Farhane, States v. James, district court. United States v. Cir.2011) (quoting United States v. Al- (E.D.N.Y.2006). 415 F.Supp.2d (2d Cir.2008)). Moayad, 545 F.3d Wagner Wagner, See also & LLP v. Atkin predicates These three factual must be son, Haskins, Nellis, Brittingham, Gladd by determined by the district court “a Carwile, P.C., (2d 84, & 596 F.3d 92 Cir. preponderance of the evidence.” In re 2010) (“[A] party appellate waives review Bombings Terrorist U.S. Embassies in of a in a magistrate judge’s decision Re (2d Cir.2008) 93, Africa, E. 552 F.3d 137 port and if party Recommendation the fails 104(a)). (citing Fed.R.Evid. review We timely objections to file designating the findings the district court’s as to each for issue.”). particular clear error. See id. so, Magistrate Even Judge Pollack explained length, First, at the Sixth Amendment conspiracy must be right is specific,” “offense and the proven by preponderance state- a of the evidence ments James made to the informant were to involve both the declarant and the de support not used to the charge “may for which fendant. The court properly district he had been indicted at the time he made find conspiracy the existence of a criminal

106 conspir- longer part no of the singh to estab he was is sufficient where the evidence evidence, notes the indication acy. proof, As James lish, by preponderance a that recorded statement he is tape on the en alleged coconspirators ... that ‘the that the talking Mallay, to longer no joint enterprise with con into a tered falling That members two have had a out. and ex general its nature sciousness of ” disagreement a conspiracy have had Bombings, 552 In re Terrorist tent.’ however, not, falling out is sufficient or a Rule Although F.3d at 137-38. “ conspira- withdrawal from the to establish 801(d)(2)(E) that both the de- ‘requires Jackson, See, v. cy. e.g., United States party against whom clarant and the Cir.2003) (“To (2d with- 335 F.3d 182 is offered be members of statement person must conspiracy, draw from a requirement no that conspiracy, there is by action either take some affirmative made to whom the statement is person ” to the authorities or making a clean breast (quoting a member.’ 139 also be in a man- communicating the abandonment Nutrition States v. Beech-Nut United reasonably reach co-con- ner calculated to (2d Cir.1989)). Corp., 871 F.2d 1199 (internal spirators.” quotation marks Second, admissible, the statement to be omitted)); Spero, United States v. citations “in furtherance of the con- must be made Cir.2003) (“[A conspira- 331 F.3d “ In statements spiracy.” general, ‘the until there has cy] presumed is to exist way designed have been must some that showing been an affirmative has or facilitate achievement of promote terminated,” “con- been and its members ” ongoing conspiracy[.]’ Unit- goals of the conspirators tinue to until there has be Diaz, (quoting v. 176 F.3d ed States showing they an affirmative that have been Tracy, 12 United States v. F.3d (internal quotation withdrawn.” marks (2d Cir.1993)). ways in a state- which omitted)). dispute among “An internal or facilitate” the might “promote ment conspiracy of a can itself be com- members include, others, “seeking conspiracy among on- pelling conspiracy evidence that the is assistance,” id.; coconspirator’s to induce a and that the rivals are members of going coconspirators prog- as to the “informing Amato, v. 15 F.3d it.” United States id.; conspiracy,” or status of the ress (2d Cir.1994). that Hassan testified prompting non-coconspirator respond Mallay reason and James were not or facilitates way “promotes in some at the time was not talking to one another activity,” out of a criminal carrying Mallay had withdrawn from the con- generally, at 1196. See Tracy, F.3d Mallay just had spiracy, but rather e.g., Bombings, Terrorist 552 F.3d at re undergone surgery, stipulated heart a fact Diaz, 85; 139; 176 F.3d at United States parties. Shortly his sur- before (2d Cir.1999). Gigante, Mallay procured policies insurance gery, constitutes a statement “Because what million, persons for more than two $2 of a is conspiracy furtherance indicating participate that he continued to fact, essentially question we will re- conspiracy at the time of the record- co-conspirator verse a decision to admit conversation between Hassan and ed only clearly if it erroneous.” statements in therefore find no error James. We Bombings, In re 552 F.3d at 139 Terrorist recording against Mallay. admission of this omitted). (internal quotation marks Trial Denial of New Motion VII. time Mallay contends that at the post- that a argue of James and Hassan’s conversation re The defendants Allie, a coop- trial from garding possible murder of Narine- letter Camuldeen

107 witness, prosecution mis- fied that no erating alleging prosecutorial members trial, required a or at least an present conduct new team this case were during that the evidentiary hearing, and district negotiations that led to his cooperation, requests their granting court erred represented by and that Allie was counsel for either. Id., cooperate. when he decided to 2009 763612, *7, WL at 2009 U.S. Dist. LEXIS of a We review the denial Rule 33 23706, Furthermore, at *20-*21. in his for a abuse of motion new trial for discre letter, Allie ever does not disclaim his tes- McCourty, v. tion. See United States 562 timony, it suggest or was anything but Cir.2009). (2d 458, 475 Federal Rule F.3d *8, truthful. Id. at 2009 U.S. Dist. 33(a) LEXIS provides Procedure that Criminal 23706, Finally, at *21. the defendants motion, the court “[u]pon defendant’s that a knew Allie had motive to cooperate any grant may judgment vacate a new government it because was elicit- justice requires.” trial if the interest of so motion, on govern- ed cross-examination that the deciding “[t]he In Rule 33 test is injustice might it ment parole would be a manifest let the state whether board Id., guilty verdict stand.” United know of cooperation. let his 2009 WL (2d 110, Guang, 763612, v. Lin F.3d 119 *7-*8, States at 2009 U.S. Dist. LEXIS Cir.2007) (internal quotation marks omit at *21-*22.

ted). grant “For a trial judge to Rule 33

motion, he real concern must harbor a that may While it be that the contents person innocent may have been convict the letter provide reason to doubt (internal quotation ed.” marks omit credibility, Allie’s “a new trial is not re ted). To merit on a claim relief based of quired impeachment when the suppressed evidence, the newly discovered burden is merely evidence furnishes an additional satisfy on the defendant to five elements: on which to impeach basis witness whose (1) “newly that the evidence is discovered already credibility has been shown to be (2) trial”; alleged that “facts are after Parkes, questionable.” States v. United which the court can infer due dili (2d Cir.2007) (internal 497 F.3d gence part of the movant to obtain omitted). event, quotation any marks (3) evidence”; that “the evidence is probability” there is no “reasonable (4) material”; the evidence “is not the outcome of the trial defendants’ would (5) merely cumulative or impeaching”; and have been different had the contents of likely that “the evidence result in an would disclosed, Allie’s letter been even if be Owen, v. acquittal.” United States 500 lieved. Terrorist Bombings See In re (2d Cir.2007) (internal F.3d citations Africa, Embassies in E. U.S. F.3d omitted). The district court concluded

allegations contained Allie’s letter —that VIII. Error Cumulative Attorney an Assistant United had States Finally, having concluded that there has him testifying coerced into “a fabri- —were trial, no error the defendants’ been I, *7, cation.” James WL reject their claim follows we must 2009 U.S. Dist. at *21. The LEXIS error. doctrine finds “[That] cumulative court found that the Allie accused AUSA appealfs].” no foothold in United joined th[ese] him coercing yet had not the U.S. Fell, Attorney’s time Cir. Office at the when Allie States 2008) (internal omitted). coerced, he marks alleges quotation that Allie had testi- 108 criminal trial.” This formula- at a later

CONCLUSION however, tion, appears place to too much reasons, affirm the we foregoing For the in a criminal trial emphasis on future use of the district court. judgments for the creation being primary purpose the I would not of a testimonial statement. EATON, Judge, concurring: purpose” is the “primary find that this of the unsettled state Because Supreme common thread the Court’s law, the into evi- agree I that admission Rather, I would find that jurisprudence.1 autopsy report prepared the dence of having statement is one a testimonial plain did not constitute error. Dr. Jindrak evidentiary purpose, declared in a solemn Gamez, 394, 400 v. United States manner, circumstances and made under Cir.2009) not find (“Typically, we will lead a reasonable declarant would legal operative ‘where the plain error it would be available for understand unsettled.’”) (citations omit- question is prosecutorially. use ted). respectfully part company I however, majority, on its conclusion point departure analysis of for this The autopsy report was “not testimonial” I read that case and is As Crawford. of the Confrontation Clause. purposes for it, key there are three those that follow if determining for a state majority Supreme recent considerations reads First, “[tjestimony” ment is testimonial. holding cases as that “a statement Court “a solemn declaration or affirmation triggers protections of the Confronta- establishing pri- purpose made for the of or when is made with Clause v. Wash proving for use some fact.”2 mary purpose creating of record Crawford early Interestingly, only did "several Supreme of the ''criminal 1. The Court’s use consistent, flatly reject[] any spe- American authorities entirely language, while not trial” statements,” the cial status for coroner histor- Compare Bull tends toward the same idea. precursors - modern medical examiners' ical -, Mexico, coming New U.S. 131 v. reports, one of the cases cited in 6, 2705, (2011) Crawford S.Ct. 2714 n. 180 L.Ed.2d 610 " proposition also stands for the that evidence (quoting ‘potentially relevant to a la Davis’ ” produced by investigations requires coroners’ language prosecution’ in the ter criminal confrontation, though purpose even requested by context of a blood-alcohol test investigations purely prosecu- those was not a prosecutor), Michigan Bryant, v. 2, Crawford, one. 541 U.S. at 47 n. torial - U.S. -, 1143, 1148, 179 L.Ed.2d 93 131 S.Ct. (citing Campbell, 30 S.C.L. S.Ct. 1354 State v. " (2011) (employing ‘potentially rele Davis’ 124, ("The (S.C.App.L.1844) general ob- ” prosecution’ lan vant to a later criminal least, Act, be, ject, at of our would seem to interroga guage police context whole obtained record the information 813, tion), Washington, v. 547 U.S. and Davis concerning upon any inquest the sudden or (2006) 126 S.Ct. 165 L.Ed.2d man, purpose violent death of a for the (articulating "potentially relevant to a la satisfaction, prosecution, any investiga- for or language prosecution” ter criminal public, tion of the or of individuals con- call), with v. context of a 911 Melendez-Diaz living and the cerned. So much is due to the Massachusetts, 557 U.S. S.Ct. dead. Sudden and unnatural deaths shock us (2009) (quoting Craw 174 L.Ed.2d observe, all.... And let me here ” " trial’ ‘available for use at later ford’s publication information and of the kind of language laboratory report in the context of a manner, death, wound, place time and requested police), by the circumstances, may often lead to un- Crawford 36, 51-52, Washington, S.Ct. 541 U.S. unsuspected per- charges against looked for sons, (2004) (listing 158 L.Ed.2d 177 "avail men abroad. And shall and even of among at a the ‘‘[v]ar able for use later trial” they require] [not all be assumed ... cross- general ious formulations” of the "core class” of testi examination? Because our Act is statements). inquests, public, and of monial all the examination 109 “ 36, 51, 1354, 541 124 158 than ‘a ington, U.S. S.Ct. casual remark [made] to an ac ” (2004) (citation quaintance.’ Bryant, L.Ed.2d 177 and internal 131 S.Ct. at 1153 omitted). Thus, (quoting Crawford, 51, at quotation marks 541 U.S. at 124 1354); Davis, 822, making, its S.Ct. 547 at time of statement must U.S. 126 S.Ct. 2266 “evidentiary purpose.” (quoting Crawford, have an Bullcom 541 U.S. at — Mexico, 51, 1354). -, 124 S.Ct. ing v. New U.S. 131 This does not mean 2705, 2717, (2011); that the statement S.Ct. 180 L.Ed.2d 610 must be contained in a Massachusetts, document, Melendez-Diaz v. formal written merely 557 U.S. but 305, 2527, 2532, surrounding 129 S.Ct. 174 L.Ed.2d 314 circumstances its utter (2009). words, ance must be other to be testimonial such that a reasonable de- the declarant clarant would must make statement to be aware of the serious na Davis, “prove past events.” v. ture of his or her Washing Davis declaration. 547 ton, 813, 826, 2266, at 547 U.S. 126 U.S. 126 S.Ct. (citing S.Ct. 165 2266 Craw (2006). 1354). ford, 51, 124 224 relating L.Ed.2d Statements 541 U.S. at S.Ct. ongoing events made to achieve some oth Finally, the statement reasonably must purpose, receiving er such as medical or be being understood as “available for use assistance, police forward-looking Melendez-Diaz, at a later trial.” 129 S.Ct. statements, such as those made further (quoting Crawford, 541 U.S. at conspiracy ance of a or to elicit inculpatory 1354). is, 124 S.Ct. That the speaker need others, statements from lack required expect that the statement will be used — purpose. Michigan Bryant, v. U.S. trial, in a criminal or objec even that it is -, 1143, 1157, 131 S.Ct. 179 L.Ed.2d 93 tively likely that the statement will be used (2011) (statement mortally made trial, in a criminal only that it is foresee wounded victim need of medical atten able that the statement could be used evidentiary tion did not have an purpose); prosecutorially. Bryant, 131 S.Ct. at 1169 Davis, U.S. 126 S.Ct. 2266 (Scalia, J., (“[H]e dissenting) must make (statements ongoing during about events the statement with the understanding that evidentiary call did not have an pur may be used to invoke the coercive Farhane, pose); United States 634 F.3d State.”); machinery of the see also Melen 127, 131-32, Cir.2011) (state 162-63 dez-Diaz, (“[T]he 129 S.Ct. at 2532 affida promising ments conspiracy future aid in a vits ‘made [were] under circumstances did not evidentiary have an purpose); objective which would lead an witness rea Burden, United States v. 600 F.3d 225 sonably to believe that the statement ” (2d Cir.2010) (recorded statements a would be available for use at later trial.’ cooperating witness made to induce a con (quoting Crawford, 541 U.S. at fession did not have an evidentiary pur 1354)). S.Ct.

pose); United Logan, States v. cf. formulation, Applying this it is evident (2d Cir.2005) (finding alibi state that the admission of Dr. report Jindrak’s testimonial). ments made police were triggered First, the Confrontation Clause.

Second, the statement must have been was, the autopsy report inarguably, creat- in a way sufficiently made that is solemn ed to regarding establish facts the death of “ so as to make it more like ‘a formal Somaipersaud. Mr. report and its ” statement to government officers’ incorporated laboratory analyses rather contain high respectability? notion?”)). contrary, On the is there in such a formula, fiction, not too much of mere if not examinations, the con- microbiologic of and two statements diagnoses, final

five filed therefrom be death, of clusions drawn shall descriptions of detailed cause examiner.”). of the office chief medical Somaipersaud’s Mr. portions of various toxins, all of body, and calculated levels of if reason- Even it could have been are factual statements. which autopsy the outset of the ably foreseen at report’s be used a that the results would Second, sufficiently report is solemn. trial, that, clear at some later it seems by York All the New reports generated examination, Dr. point during her Jindrak Examiner Office of Medical City Chief that reasonably anticipated have it would (“OCME”) by required signed to are “be prosecu- in a could be used later criminal performing the au the medical examiner is, That that tion. once she certified § Admin. 17-203 topsy.” N.Y.C. Code of death “acute mixed primary cause (1998). by gov reports are made These chlorproma- alcohol intoxication with and by government for use ernment officials i.e., zine,” Somaipersaud had that Mr. been Feliz, 467 officials. See United States a examiner poisoned, reasonable medical Cir.2006) (observing that F.3d autopsy anticipated would have reports public qualify would for OCME prosecutorially. used See report could be hearsay exception, requires records which (observing at 1159 Bryant, S.Ct. by public be made statement may non-testimonial statements “evolve Indeed, if agency). officer or even OCME testimonial as more infor- into statements” history long cooperation did not have a of Davis, provided (quoting mation is enforcement, reports all autopsy with law (internal quota- 126 S.Ct. U.S. directly would remain statements made omitted))). marks they insofar as are statu law enforcement en torily required to be available to law such When statement as Dr. Jindrak’s prosecutors. forcement officers and report against a de- autopsy is introduced (1998) (“The § trial, N.Y.C. Admin. Code 17-205 fendant at a criminal that evidence is attorney police live, and the appropriate district tes- “functionally identical in-court city may require commissioner of the timony, ‘precisely does] because what a [it ” records, further and such examination,’ such [OCME] direct ren- witness does on information, daily they as nec may deem dering trig- its and declarant “witness” Moreover, essary.”) reports like of gering protections the Confrontation Melendez-Diaz, Bullcoming Melendez-Diaz, Dr. Jind and at 2532 Clause. 129 S.Ct. report Davis, rak’s contains certification. 126 S.Ct. (quoting U.S. at 2266); Bullcoming, see also 131 S.Ct. at Third, reasonably have been an- could 2712; 51, 124 Crawford, 541 U.S. at S.Ct. ticipated autopsy would report that the be in a Medi- available for use criminal trial. working charged are stat- and con- cal examiners OCME James was both utorily conspiracy make of and to commit obligated to conclusions to victed murder death, theory prosecution’s causes to record the reasons for murder. The conclusions, poisoned. and to that Mr. had been preserve Somaipersaud those those report prosecution autopsy records for future use. Admin. The offered the N.Y.C. (“A facts, very prejudi- § description Code 17-203 detailed to establish the same James, ... shall or cial to Mr. about which Dr. Jindrak findings be written [those] findings investiga- expected testify have dictated.... The would been death, examination, Indeed, autopsy tion at the scene of trial. on direct Dr. any histologic, serologic identify both to Dr. toxicologic, and Ambrosi was asked pressly says as to death conclusions cause of does not exist. Jindrak’s Melendez- agreed Diaz, she with those to state whether 129 S.Ct. at 2534. conclusions. Finally, as the points Eleventh Circuit Moreover, admission I believe “[mjedical out, are examiners not mere any report prepared medical examiner’s and “autopsy reports scriveners” are the protections trigger OCME would product skill, methodology, Dr. the Confrontation Clause.3 Jindrak’s of judgment highly trained examiners unique was not that the report sense actually performed who the autopsy.” made it testimonial are characteristics that v. 667 Ignasiak, United States F.3d reports prepared by in all present autopsy (11th Cir.2012) 1232 (holding autopsy re- against that are introduced de- OCME ports to be testimonial and requiring con- at a criminal trial. All re- fendant such frontation) (citing Bullcoming, 131 S.Ct. at are made to facts ports establish about 2714). Both Bullcoming and Melendez- decedent; they cause of death of the are Diaz laboratory analyst’s hold that a re- by in a government made and to officials port solemnity of sufficient triggers the they recording; formalized contain state- protections the Confrontation Clause. ments a medical examiner could reason- indeed, It be incongruous would if an au- ably foresee be used in a would criminal topsy requiring report numerous skilled prosecutor if a prosecution; and seeks judgments part on the aof medical exam- truth, report introduce a for its it would iner, not require did the same confronta- testimony for live to the substitute adverse tion. defendant. noted, majority’s As I believe by

approach goes astray suggesting that to “pri-

trigger Confrontation Clause the

mary purpose” autopsy must report of an use “at a criminal This

be later trial.” postulates

formulation of a existence gives examiner testi-

medical who adverse

mony but who is “witness” Con- Clause he or purposes

frontation because report did not prepare autopsy she America, UNITED STATES of primarily for in criminal proceedings. use Appellee, so, doing very opinion creates the witnesses, category helpful “third to the v. prosecution, but somehow immune ex- Anthony BARTON, Defendant, confrontation” that Melendez-Diaz John pre-Crawford At least two federal and a decision that held other circuits admission confrontation); autopsy report required have number state courts last resort of an Locklear, par regarding reached similar conclusion State v. 363 N.C. 681 S.E.2d Lewis, (2009); reports prepared equivalent People see v. ticular 293 also 490 See, (2011) jurisdictions. e.g., (vacating in their 806 OCME United Mich. N.W.2d 295 (11th Ignasiak, holding autopsy report v. F.3d Cir. States 667 1217 lower court's 2012); Moore, holding United v. 651 30 but the error States F.3d non-testimonial - Navarette, (D.C.Cir.2011); discussion); significant N.M. State harmless without -, State, (2013); Kennedy, (Tex.Ct.App. 294 P.3d 299 200 State v. Wood v. S.W.3d denied, (2012); 2009), Tex.Crim.App. 229 W.Va. S.E.2d Con review State, (Miss.2012) (2010). (noting ners v. So.3d LEXIS 115

Case Details

Case Name: United States v. James and Mallay

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 28, 2013

Citation: 712 F.3d 79

Docket Number: 09-2732-cr (L)

Court Abbreviation: 2d Cir.