18-3561-cr United States v. Rosemond
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2019
(Argued: December 10, 2019 Decided: May 1, 2020)
Docket No. 18-3561-cr
UNITED STATES OF AMERICA, Appellee,
- against -
JAMES J. ROSEMOND, Defendant-Appellant,
DEREK ANDRE ENGLISH; RODNEY JOHNSON, also known as Rodney T. Hibbert, Toree Johnson; RONALD ANDERSON; BRIAN MCCLEOD, also known as Slim, Brian Connelly, Joseph King, Brian Conley, John A. Conley; DERRICK GRANT; SHAWN WILLIAMS, also known as William Shawn; JASON WILLIAMS, Defendants. ∗
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
∗ The Clerk of Court is respectfully directed to amend the official caption to conform to the above. Before: SACK, CHIN, and BIANCO, Circuit Judges.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Kaplan, J.), convicting defendant-appellant of
murder-for-hire, conspiracy to commit murder-for-hire, murder through use of a
firearm, and possession of a firearm during a murder-for-hire conspiracy, and
sentencing him to imprisonment for life plus 30 years. On appeal, defendant-
appellant contends that at trial he was deprived of his Sixth Amendment rights
to autonomy and effective assistance of counsel because his lawyer conceded,
over his objection, an element of the charged crime -- that he had hired
individuals to shoot the victim -- while arguing that the government had failed
to prove intent to kill the victim. Defendant-appellant also argues that the
district court improperly admitted uncharged prior bad-act evidence under
Federal Rule of Evidence 404(b)(1).
AFFIRMED.
ELIZABETH HANFT, Assistant United States Attorney (Samson Enzer, Drew Skinner, and Karl Metzner, Assistant United States Attorneys, on the brief), for Geoffrey S. Berman, United States Attorney for
-2- the Southern District of New York, New York, NY, for Appellee.
MICHAEL E. RAYFIELD (Scott A. Chasin and Shai M. Silverman, on the brief), Mayer Brown LLP, New York, NY, for Defendant-Appellant.
CHIN, Circuit Judge:
In this case, defendant-appellant James Rosemond was charged with
murder-for-hire, conspiracy to commit murder-for-hire, possession of a firearm
during a murder-for-hire conspiracy, and murder through use of a firearm, in
violation of 18 U.S.C. §§ 1958, 924(c)(1)(A)(iii), and 924(j). These charges
stemmed from the death of Lowell Fletcher. The government alleged that
Rosemond hired others to kill Fletcher, who had previously assaulted
Rosemond's teenage son. At trial, Rosemond's counsel conceded in summation
that Rosemond hired individuals to shoot Fletcher, but he argued that the
government failed to prove that Rosemond intended for Fletcher to be killed.
The jury was not persuaded, and it returned a guilty verdict. The district court
eventually sentenced Rosemond to imprisonment for life plus 30 years.
On appeal, Rosemond argues that he was deprived of his Sixth
Amendment rights to autonomy and effective assistance of counsel because his
lawyer conceded that he hired individuals to shoot Fletcher over his objection. -3- He also argues that the district court improperly admitted uncharged prior bad-
act evidence under Federal Rule of Evidence 404(b)(1). For the reasons set forth
below, we AFFIRM.
BACKGROUND
I. The Facts
On appeal from a conviction following a jury trial, the "facts are
drawn from the trial evidence and described in the light most favorable to the
government." United States v. Wilson, 709 F.3d 84, 85 (2d Cir. 2013).
A. The Feud
Rosemond owned Czar Entertainment ("Czar"), a Manhattan-based
music management company that represented hip-hop, rap, and R&B artists.
Czar's office was located across the street from a rival record label, Violator
Records ("Violator"). From as early as 2002, when Rosemond paid his associate
Derrick Grant "half a kilo of cocaine" to shoot the awning on Violator's office
building, App'x at 1004, the two music companies were engaged in a
contentious, often-violent rivalry. 1 In 2003, Rosemond himself shot a parked car
1 Rosemond also ran a drug business, which, at its peak, involved ten individuals and sold as many as 70 kilograms of cocaine per week. -4- that belonged to Violator owner Christopher Lighty because Lighty was slow to
return Rosemond's phone calls.
The rivalry intensified in February 2005. At that time, Czar
represented rapper Jayceon Taylor, also known as "The Game." Despite being
individually represented by Czar, Taylor was a member of G-Unit, a rap group
managed by Violator and run by one of G-Unit's members, Curtis Jackson, also
known as "50 Cent." While appearing as a guest on Hot 97, a New York-based
radio station, Jackson insulted Taylor and ousted him from G-Unit. After
hearing this transpire on the radio, Rosemond directed Mohammed Stewart, a
Czar associate, to accompany Taylor to the Hot 97 studio to confront Jackson.
When they arrived, Taylor, Stewart, and their entourage were shot at and
retreated to Czar's office, but not before one of Taylor's friends was struck by a
bullet. In retaliation, Stewart and one of his friends shot at the Violator building
and were rewarded with a $2,000 payment, arranged by Rosemond.
The violence continued to escalate. In 2006, at an awards ceremony
at the Apollo Theater in Harlem, New York, Rosemond got into an altercation
with another G-Unit member, Marvin Bernard, also known as "Tony Yayo."
Following a brief exchange in the lobby, several G-Unit associates followed
-5- Rosemond and others to the mezzanine of the theater where the G-Unit
associates pulled out a gun and threatened violence. Rosemond and his Czar
associates left the theater and went into Khalil Abdullah's car. Abdullah, one of
Rosemond's associates, called his friend and told him to bring over some guns.
The friend complied, and when Bernard and his crew left the Apollo Theater
later that night, Abdullah directed the friend to shoot at Bernard's car while
Rosemond looked on. Abdullah later learned that a bullet struck a passenger in
the vehicle.
On March 20, 2007, as Bernard and at least two other G-Unit
associates -- including Fletcher -- were leaving Violator's office, they saw a 14-
year-old boy wearing a "Czar" sweatshirt. The men confronted the boy by
surrounding him, pushed him up against a wall, slapped him, and threatened
him with what appeared to be a gun. The boy was Rosemond's son. Later that
day, after Rosemond learned what happened, he and a group of Czar associates
were gathered outside of Czar's office when they saw Lighty's brother walking
by. Stewart wanted to exact some immediate revenge on Rosemond's behalf,
and, using a razor provided by Rosemond, slashed Lighty's brother in the face.
-6- More violence ensued, as Rosemond continued to commit and order
violent acts against G-Unit. In April 2007, Rosemond shot at Bernard's mother's
house while several of Bernard's family members, including a baby, were inside.
In early 2008, Rosemond paid Stewart to shoot at a Violator associate's house in
Staten Island. Other Czar acts of violence included throwing a Molotov cocktail
at a G-Unit associate's truck, attempting to shoot Jackson, hiring an arsonist to
burn one of Jackson's cars, trying to lure Lighty to a restaurant where he would
be shot, and shooting at a van filled with G-Unit associates in an attempt to
"make it a coffin." App'x at 311.
Rosemond told an associate he did not plan to stop until somebody
was killed. In September 2009, someone was killed.
B. The Murder-for-Hire Conspiracy
Brian McCleod met Rosemond in jail in the late 1990s. While there,
McCleod introduced Rosemond to Grant, and the three of them grew friendly.
In 2002, after all three were released, Rosemond gave McCleod and Grant jobs at
his music label, which was then called Henchmen Entertainment (and later
became Czar). McCleod was hired to supervise the activity at the studio, and
Grant was hired to accompany Rosemond to events and serve as "muscle."
-7- App'x at 1003. In 2003, McCleod stopping working at the record label, but he
remained in contact with Rosemond. On August 9, 2004, McCleod received a call
from Rosemond asking McCleod, in coded language, to go to an apartment in
Queens to remove money and drugs. Shortly after McCleod arrived at the
house, where there were 40 kilograms of cocaine and $450,000 in cash, he was
arrested. McCleod did not cooperate with law enforcement or implicate
Rosemond, and he was ultimately convicted and sentenced to a term of
imprisonment.
McCleod spent a portion of his jail sentence at Mohawk Correctional
Facility ("Mohawk") in Rome, New York. A month before McCleod was
released, Fletcher was transferred from another prison to Mohawk. While there,
he bragged about slapping Rosemond's son. McCleod did not reveal to Fletcher
that he was connected to Rosemond. On August 10, 2009, McCleod was released
from jail. A few days later, as partial payment for McCleod not cooperating with
law enforcement, Rosemond arranged for McCleod to receive $5,000.
Shortly thereafter, McCleod met Rosemond in Central Park and told
him he had "a line on the guy that slapped your son," App'x at 1028, indicating
he knew an inmate still in prison with Fletcher. Rosemond said that he would
-8- have paid $10,000 for someone to "cut" Fletcher in jail, App'x at 1029, and he
expressed interest in Fletcher's whereabouts because he was having trouble
sleeping ever since Fletcher assaulted his son.
Rosemond and McCleod met up again around a week-and-a-half
later. They talked more about "the line" McCleod had on Fletcher, and
Rosemond said: "I have $30,000 for anybody who brings him to me cause I'mma
hit him so hard and so fast he's not gonna see it coming." App'x at 1034. After
Rosemond said he was considering "doing this" himself, he asked for McCleod's
thoughts. App'x at 1057. McCleod believed it was unwise for Rosemond to be
involved in any violence himself, so he mentioned involving Grant. Rosemond
instructed McCleod to see whether Grant would be interested. Grant was, but he
wanted more than $30,000. McCleod agreed with Grant that a larger fee was
required because the $30,000 was McCleod's fee for luring Fletcher to an attack,
and Grant would need "at least twice that amount, if not more, maybe even close
to a hundred [thousand dollars]" to be the shooter. App'x at 1068. McCleod then
informed Rosemond that Grant was now involved in the plan.
McCleod learned from his contact in jail that Fletcher was being
released on September 11, 2009. Rosemond instructed McCleod and Rosemond's
-9- chauffeur -- Jason Williams -- to go to Long Island City, New York, where
Fletcher would be released. After just missing Fletcher's release from jail,
McCleod called Fletcher's lawyer, who happened to be with Fletcher. 2 The
lawyer put Fletcher on the phone with McCleod, who introduced himself as
"Slim," a friend-of-a-friend. App'x at 1076. McCleod pretended to want to help
Fletcher land on his feet by offering him financial assistance. He also gave him
his cell phone number. McCleod did this to earn Fletcher's trust so he would
eventually be able to lure Fletcher to a location where he would be shot. When
McCleod relayed his conversation with Fletcher to Rosemond, Rosemond
ordered Jason Williams to give McCleod money to buy a new phone and
instructed McCleod that the only person he should call from his new phone was
Fletcher. Rosemond also inquired whether McCleod was "sure you [and Grant]
can handle this?" App'x at 1083. McCleod said he was, and he bought the new
phone using a fake name.
On September 25, 2009, McCleod met up with Rosemond.
Rosemond showed McCleod an address in the Bronx where Fletcher was
supposedly living and instructed McCleod to scope out the address to "[s]ee if
2 McCleod remembered that his contact at Mohawk shared a lawyer with Fletcher, and so he called that attorney to try to reach Fletcher. - 10 - something can be done up there." App'x at 1091. McCleod then proposed a
code: if the location was good, McCleod would text Rosemond that he liked a
girl; if it was not good, McCleod would text Rosemond that there was no
chemistry. Rosemond agreed. After traveling to the Bronx and seeing several
surveillance cameras in and around the building, McCleod told Rosemond via
text that there was no chemistry.
The next day, on September 26, 2009, McCleod, Grant, and Jason
Williams met and agreed on a location for the murder: Mount Eden Avenue in
the Bronx, New York, between Inwood Avenue and Macombs Road. That night,
McCleod called Fletcher, and, under the guise of receiving money and meeting
some women, Fletcher agreed to meet McCleod the next day near the location
McCleod, Grant, and Jason Williams selected. In coded language, McCleod
relayed this information to Jason Williams and Rosemond. Rosemond said: "OK,
have fun." App'x at 1134.
C. The Murder-for-Hire
On Sunday, September 27, 2009, Jason Williams picked McCleod up
and they drove to Mount Eden Avenue where they saw Rodney "Toree" Johnson
and Shawn Williams parked in Johnson's car a few blocks away on the corner of
- 11 - Mount Eden Avenue and Jerome Avenue. Rosemond sent Johnson and Shawn
Williams as back-up shooters in case something went wrong. Jason Williams
and McCleod drove two blocks over between Inwood Avenue and Macombs
Road, and they saw Grant standing in the area where they agreed to kill Fletcher.
Grant had a gun, which Rosemond had provided him. When Fletcher got off the
train nearby, McCleod directed him toward Grant, who shot and killed him.
When Rosemond learned that Fletcher was killed, he reacted by
saying: "OK." App'x at 867. He expressed no shock and no anger that Fletcher
was dead. Instead, Rosemond told Jason Williams to get rid of the gun used to
murder Fletcher, and he paid him $8,000 for his involvement in the scheme. In a
separate reaction to the news that Fletcher was murdered, Rosemond told Czar
associate Abdullah: "Yo, that bitch is out of here." App'x at 631.
On September 30, three days after the murder, McCleod asked
Rosemond, in coded language, about him and Grant being paid for their
involvement in the murder. Rosemond told him to be patient. Two days later,
McCleod met Rosemond in person. Once again, Rosemond expressed no anger
or disappointment that Fletcher was dead. Instead, he apologized for the delay
in payment and instructed McCleod to meet up with Johnson, who had "a joint
- 12 - for you." App'x at 1182. Rosemond instructed McCleod to split what Johnson
gave him three ways, giving a third to Grant and a third to the guy from jail "that
helped bring Fletcher to you." App'x at 1182. Later that day, McCleod met up
with Johnson and another Czar associate named Brian James, and McCleod
received a computer box containing a kilo of cocaine -- payment for the
completed murder-for-hire.
II. Procedural History
Rosemond and Johnson were tried together in February and March
of 2014. Together, they faced seven counts, four of which related to the murder-
for-hire and three of which related to the drug conspiracy. Because Rosemond
was previously convicted and sentenced on similar drug charges, only Johnson
faced drug charges in that trial. The jury convicted Johnson of the drug-related
charges, but it failed to reach a unanimous decision on the murder-for-hire
charges, resulting in a mistrial.
Rosemond was retried alone in December 2014, and he was
convicted on four counts related to the murder-for-hire. He was sentenced to life
plus 20 years' imprisonment. This Court vacated that conviction and sentence,
however, on November 1, 2016, holding that the district court erred in
- 13 - interpreting the scope of Rosemond's proffer agreement waiver. United States v.
Rosemond, 841 F.3d 95, 110 (2d Cir. 2016). In particular, we found that the district
court erred in precluding Rosemond from arguing that the government failed to
prove an element of the charged crime -- that Rosemond intended for Fletcher to
be killed. Id.
In November 2017, Rosemond was tried for a third time. In his
closing argument, Rosemond's attorney, David Touger, acknowledged that
Rosemond paid for Fletcher to be shot, but he argued that the government failed
to prove beyond a reasonable doubt that Rosemond intended for Fletcher to be
killed. Rosemond was convicted. Before being sentenced, Rosemond moved for
a new trial. In support of this motion, Rosemond filed two affidavits stating that
he disagreed with the "trial strategy" advanced by Touger both before and
during trial. App'x at 1704-07. Rosemond noted that he did not raise this issue
before the district court because his "understanding was that Mr. Touger had
final authority about what trial tactics to pursue and what arguments to present
to the jury." App'x at 1705. The district court denied Rosemond's motion and
sentenced him to life plus 30 years' imprisonment. This appeal followed.
- 14 - DISCUSSION
On appeal, Rosemond argues principally that he was deprived of his
rights to autonomy and effective assistance of counsel under the Sixth
Amendment. He also argues that the district court improperly admitted
uncharged prior bad-act evidence under Federal Rule of Evidence 404(b)(1). We
address first the Sixth Amendment claims and then the evidentiary issue.
I. The Sixth Amendment
A. Standard of Review
"The question of whether a defendant's lawyer's representation
violates the Sixth Amendment right to effective assistance of counsel is a mixed
question of law and fact that is reviewed de novo." Doe v. United States, 915 F.3d
905, 910 (2d Cir. 2019) (citation omitted). Whether a defendant's Sixth
Amendment right to autonomy has been violated is also a mixed question of law
and fact, and thus we apply de novo review to that question as well. See United
States v. Read, 918 F.3d 712, 719 (9th Cir. 2019).
B. Applicable Law
The Sixth Amendment provides certain procedural safeguards to
individuals who have been charged with crimes, see Gannett Co. v. DePasquale,
- 15 - 443 U.S. 368, 379 (1979), including the right to a speedy, impartial trial; the ability
to call and confront witnesses; and, relevant here, "the Assistance of Counsel."
U.S. Const. amend. VI. A defendant who elects to be represented, however, does
not "surrender control entirely to counsel." McCoy v. Louisiana, 138 S. Ct. 1500,
1508 (2018); see also Faretta v. California, 422 U.S. 806, 820 (1975) (Sixth
Amendment "speaks of the 'assistance' of counsel, and an assistant, however
expert, is still an assistant"). Rather, the Sixth Amendment "contemplat[es] a
norm in which the accused, and not a lawyer, is master of his own defense."
DePasquale, 443 U.S. at 382 n.10.
1. "Right to Autonomy"
By retaining counsel, defendants necessarily relinquish some
autonomy to their attorneys. See Taylor v. Illinois, 484 U.S. 400, 418 (1988). After
all, "[t]he adversary process could not function effectively if every tactical
decision required client approval." Id. "Putting to one side the exceptional cases
in which counsel is ineffective, the client must accept the consequences of the
lawyer's decision to forgo cross-examination, to decide not to put certain
witnesses on the stand, or to decide not to disclose the identity of certain
witnesses in advance of trial." Taylor, 484 U.S. at 418.
- 16 - Recently, however, the Supreme Court held that a defendant in a
criminal case has a "protected autonomy right" -- that is, the "Sixth Amendment-
secured autonomy" -- "to make fundamental choices about his own defense,"
including whether to persist in maintaining his innocence even in the face of
overwhelming evidence of his guilt. McCoy, 138 S. Ct. at 1508, 1511. 3
In McCoy, the defendant, Robert McCoy, was charged with three
counts of first-degree murder and faced the death penalty. 138 S. Ct. at 1506.
McCoy's attorney, Larry English, believed the evidence against his client was
"overwhelming," and thus decided the best course of action was to concede that
McCoy murdered the victims to try to avoid a death sentence. Id. Before and
during trial, however, McCoy vehemently protested this strategy both to English
in private and the court on the record. Id.
3 Prior to McCoy, the Supreme Court had never explicitly used the term "right to autonomy" in the criminal context. See Erica J. Hashimoto, Resurrecting Autonomy: The Criminal Defendant's Right to Control the Case, 90 B.U. L. Rev. 1147, 1152-55 (2010). The Supreme Court has long recognized, however, that an accused has the right to make certain decisions, particularly with respect to self-representation. See Martinez v. Ct. App. of Calif., 528 U.S. 152, 160 (2000) ("[T]he Faretta majority found that the right to self-representation at trial was grounded in part in a respect for individual autonomy."); McKaskle v. Wiggins, 465 U.S. 168, 176- 77 (1984) ("The right to appear pro se exists to affirm the dignity and autonomy of the accused."); see also Faretta, 422 U.S. at 834 ("The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction.").
- 17 - At a hearing two days before trial, McCoy attempted to fire English
as his attorney in part because English tried to convince McCoy to "cop out to
three counts of first[-]degree murder." McCoy App'x at 455. At this hearing,
English asked to be relieved as McCoy's attorney because he and McCoy had "an
irrevocable disagreement between how to proceed in this case." McCoy App'x at
458. The court denied their requests to sever the attorney-client relationship. 4
McCoy, 138 S. Ct. at 1506. At trial, during English's opening statement -- but not
in earshot of the jury -- McCoy again voiced his disapproval of English's
representation to the court after English told the jury "McCoy was the cause of
these individuals' death [sic]." Id. The judge, however, affirmed McCoy's
attorney's authority to decide how to proceed, and McCoy was ultimately
convicted on all three counts of first-degree murder and sentenced to death. Id.
at 1507.
The Supreme Court granted certiorari to determine "whether it is
unconstitutional to allow defense counsel to concede guilt over the defendant's
4 After the court ruled that English had to continue representing McCoy, English began explaining the crux of their disagreement -- that McCoy was insisting that English put forward a defense at the guilt phase of the trial. As English explained "that the evidence in this case is so overwhelming against Mr. McCoy," the judge cut him off and assured that English had the authority to decide how to try the case. McCoy App'x at 469. He also noted that English had "stated this [concern] on the record prior to this date." McCoy App'x at 469. - 18 - intransigent and unambiguous objection," id., and it held that "a defendant has the
right to insist that counsel refrain from admitting guilt, even when counsel's
experienced-based view is that confessing guilt offers the defendant the best chance
to avoid the death penalty," id. at 1505. In addition to the well-established
decisions reserved for the client -- including "whether to plead guilty, waive the
right to a jury trial, testify in one's own behalf, and forego an appeal," id. at 1508
(citing Jones v. Barnes, 463 U.S. 745, 751 (1983)) -- the Court clarified that a
defendant also has the "[a]utonomy" to decide on "the objective of his defense,"
id. at 1505, 1508.
The Court in McCoy also held that a violation of a defendant's Sixth
Amendment right to autonomy is structural error not subject to harmless error
review; that is, once the error is established, the defendant is not required to
show prejudice to be entitled to a new trial. Id. at 1511. Errors are structural "if
the right at issue is not designed to protect the defendant from erroneous
conviction but instead protects some other interest." Id. (quoting Weaver v.
Massachusetts, 137 S. Ct. 1899, 1908 (2017)). Because conceding a defendant's guilt
against his wishes prevents a defendant from controlling his defense and "the
effects of the admission would be immeasurable," id., violating the right to
autonomy is per se harmful. - 19 - 2. Right to Effective Assistance of Counsel
Although the Sixth Amendment refers only to "Assistance of
Counsel," U.S. Const. Amend. VI, it guarantees the right to effective assistance of
counsel, see McMann v. Richardson, 397 U.S. 759, 771 (1970) ("[D]efendants facing
felony charges are entitled to the effective assistance of competent counsel."). To
prove this right has been violated, a defendant must show (1) the attorney's
representation "fell below an objective standard of reasonableness," Strickland v.
Washington, 466 U.S. 668, 688 (1984), and (2) there was "a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different," id. at 694.
Courts reviewing ineffective assistance of counsel claims are "highly
deferential," and must "strongly presume[]" that counsel "made all significant
decisions in the exercise of reasonable professional judgment." Id. at 689-90. This
presumption is overcome only if "counsel failed to act reasonably considering all
of the circumstances." Jackson v. Conway, 763 F.3d 115, 152 (2d Cir. 2014) (internal
quotation marks omitted). When analyzing whether an attorney's performance
was objectively reasonable, courts must avoid "the distorting effects of hindsight"
and consider the lawyer's perspective at the time the decision was made. Id. at
- 20 - 153. If the attorney made a strategic choice after thoughtful consideration, that
decision will be "virtually unchallengeable." Henry v. Poole, 409 F.3d 48, 63 (2d
Cir. 2005) (quoting Strickland, 466 U.S. at 690).
One strategic choice a lawyer may make is to concede an element of
the charged crime. Such a decision is "sound trial strategy" when the attorney
does not concede his client's guilt. United States v. Arena, 180 F.3d 380, 397 (2d
Cir. 1999), abrogated on other grounds by Scheidler v. Nat'l Org. for Women, Inc., 537
U.S. 393 (2003). It is also reasonable when there is "overwhelming evidence in
the case." United States v. Arnold, 126 F.3d 82, 89 (2d Cir. 1997), aff'd sub
nom. Holloway v. United States, 526 U.S. 1 (1999). Similarly, lawyers are permitted
to admit their client committed certain acts while challenging whether those acts
fit within the charged crime. See, e.g., United States v. Jones, 482 F.3d 60, 76-77 (2d
Cir. 2006) (finding it was objectively reasonable for an attorney to admit his client
shot the victim but argue the shooting was unrelated to a drug conspiracy).
Even if counsel's strategy is "professionally unreasonable," there is
no ineffective assistance of counsel "if the error had no effect on the judgment."
Strickland, 466 U.S. at 691. The stronger the prosecution's case, the less likely it is
that the defendant was prejudiced by his attorney's actions. Garner v. Lee, 908
- 21 - F.3d 845, 862 (2d Cir. 2018), cert. denied, 139 S. Ct. 1608 (2019). When there is
overwhelming evidence against a defendant, for example, counsel may make
certain concessions without prejudicing the defendant. See, e.g., Arnold, 126 F.3d
at 89.
C. Application
1. Right to Autonomy
Rosemond argues that his right to autonomy was violated when his
attorney, Touger, conceded that he hired McCleod and Grant to shoot Fletcher.
He contends this right was violated because Touger admitted "guilt of criminal
acts over Rosemond's express objection." Appellant's Br. at 35. We are not
persuaded, for we conclude that the right to autonomy is not implicated when
defense counsel concedes one element of the charged crime while maintaining
that the defendant is not guilty as charged.
Throughout its opinion, the McCoy Court's use of the word "guilt" is
explicitly limited to the charged crime. 138 S. Ct. at 1505 (stating that McCoy
"vociferously insisted that he did not engage in the charged acts and adamantly
objected to any admission of guilt" (emphasis added)); id. at 1509 ("When a client
expressly asserts that the objective of 'his defence' is to maintain innocence of the
- 22 - charged criminal acts, his lawyer must abide by that objective and may not
override it by conceding guilt." (second emphasis added)); id. at 1510 ("[C]ounsel
may not admit her client's guilt of a charged crime over the client's intransigent
objection to that admission." (emphasis added)). The dissent understood the
majority's opinion to be so limited, too. When explaining its understanding of
"[t]he constitutional right that the Court has now discovered," it noted: "a
criminal defendant's right to insist that his attorney contest his guilt with respect
to all charged offenses." Id. at 1514 (Alito, J., dissenting) (emphasis added).
The majority repeatedly made clear that its decision was meant to
safeguard the "objective of [one's] defense," see id. at 1505, 1508-10, 1512, plainly
stating that "it is the defendant's prerogative, not counsel's, to decide on the
objective of his defense," id. at 1505. Once a defendant decides on an objective --
e.g., acquittal -- "[t]rial management is the lawyer's province" and counsel must
decide, inter alia, "what arguments to pursue." Id. at 1508 (internal quotation
mark omitted). Conceding an element of a crime while contesting the other
elements falls within the ambit of trial strategy. See, e.g., Jones, 482 F.3d at 76-77;
see also Arena, 180 F.3d at 397. The majority in McCoy, in fact, acknowledged as
much. 138 S. Ct. at 1510 (noting that the case did not deal with "strategic
- 23 - disputes about whether to concede an element of a charged offense" but were
instead "intractable disagreements about the fundamental objective of the
defendant's representation"). Thus, when a lawyer makes strategic concessions
in pursuit of an acquittal, there is no McCoy violation assuming, of course, the
defendant's objective was to maintain his non-guilt (as opposed to, e.g., pleading
guilty in return for a lighter sentence).
Though we are not bound by our sister circuits' decisions
interpreting McCoy, they reinforce our conclusion. See, e.g., United States v.
Holloway, 939 F.3d 1088, 1101 n.8 (10th Cir. 2019) (defendant's right to autonomy
was not violated when attorney and defendant had "strategic disputes" about
how to achieve same goal); United States v. Audette, 923 F.3d 1227, 1236 (9th Cir.
2019) (defendant's right to autonomy was not violated because he disagreed with
his attorney about "which arguments to advance"); Thompson v. United States, 791
F.App'x 20, 26-27 (11th Cir. 2019) (defendant's right to autonomy is not violated
because attorney conceded some, but not all, elements of a charged crime). Thus,
we hold that McCoy is limited to a defendant's right to maintain his innocence of
the charged crimes.
- 24 - Here, Rosemond and Touger shared the same goal: acquittal. In
pursuit of that goal, Touger never conceded that Rosemond was guilty of the
charged crimes; instead, Touger merely conceded one element as part of his
strategy to argue that the government had failed to meet its burden to prove
Rosemond intended for Fletcher to be killed, a necessary element to convict on a
murder-for-hire charge. This was trial strategy, and Touger made the limited
concession while zealously defending Rosemond's innocence. For example, he
suggested Fletcher might have died because of gang violence unrelated to
Rosemond, noted that the shell casings found on Mount Eden Avenue could
have come from another gun, and questioned the reliability of the eyewitness.
This is far different from McCoy, where the attorney immediately conceded that
his client was guilty of the charged crime, 138 S. Ct. at 1506, and never explored
arguments that could have led to acquittal. A lawyer's decision to make strategic
concessions while maintaining that his client is not guilty of the charged crime
does not violate a defendant's right to autonomy.
While it is true that Touger admitted that Rosemond committed a
crime -- perhaps aiding and abetting an assault in the first-degree under New
York Penal Law § 120.10 or conspiring to commit a kidnapping under 18 U.S.C. §
- 25 - 1201 -- he vehemently denied that Rosemond committed the charged crime.
Although there may be times where such a concession could expose a defendant
to additional, future criminal liability, there is no indication that that was the
case here. Moreover, as noted supra, we read McCoy as limited to a defendant
preventing his attorney from admitting he is guilty of the crime with which he is
charged. This understanding makes good sense, as a defendant's decision to
admit guilt to the charged crime is similar to the other defense-related decisions
the Supreme Court has listed as being within the defendant's province: whether
to demand a jury trial, whether to testify in one's own behalf, and whether to
appeal a decision. McCoy, 138 S. Ct. at 1508; see also, e.g., Jae Lee v. United States,
137 S. Ct. 1958, 1969 (2017) (defendant retains right to reject a plea and proceed to
trial).
Finally, Rosemond's argument loses force when its nuance is
considered. In his affidavit to the district court in support of his Rule 33 motion
for a new trial, Rosemond affirmed that he did not want Touger to tell the jury he
paid to have Fletcher shot because he "viewed it as a concession that [he] had
committed an immoral and shameful act." App'x at 1705. Yet in the same
affidavit, Rosemond also revealed the trial strategy he preferred Touger adopt: "I
- 26 - asked him to argue to the jury instead . . . that I had paid Brian McCleod only to
bring Fletcher to me." App'x at 1705. In other words, Rosemond was
comfortable admitting to the jury that he paid for a kidnapping, but he drew the
line at paying for a shooting. Had Rosemond asserted his right to autonomy to
prevent his attorney from conceding any crime because of the "opprobrium" that
accompanies such an admission, McCoy, 138 S. Ct. at 1508, his argument might
carry more weight. It loses its thrust, however, when he picks and chooses
which crime he is comfortable conceding.
This is especially true when Rosemond's argument is considered
alongside the evidence the government presented of his rampant involvement in
criminal activity. The evidence at trial demonstrated that Rosemond ran a drug
operation and was involved in a series of violent acts against a rival record
company, many of which involved the use of guns and two of which resulted in
individuals being shot. Indeed, Rosemond looked on when Abdullah had a
friend shoot up a car filled with G-Unit associates, and he was disappointed
when Stewart refused to shoot up a house because he saw individuals were
inside. While avoiding the shame that comes with admitting to a criminal act
can be a genuine concern, that concern seems highly unlikely here.
- 27 - 2. Right to Effective Assistance of Counsel
Rosemond argues that his attorney was ineffective because he
conceded that Rosemond paid for Fletcher to be shot, even though Rosemond
told his lawyer not to make that concession. Because Rosemond fails to show
that this was objectively unreasonable or that he would have been found not
guilty had a different argument been advanced, his ineffective assistance of
counsel claim fails.
Touger explained in his affidavit that he thought it was "the best
defense strategy" to concede that Rosemond directed others to shoot Fletcher
because he did not think the government could prove that Rosemond intended
for Fletcher to be killed. App'x at 1707. Rosemond conceded this was "trial
strategy." App'x at 1705. Nevertheless, Rosemond contends that because none of
the witnesses testified that he expressly ordered Fletcher to be shot, Touger was
ineffective for not arguing that Rosemond only instructed that Fletcher be
brought to him.
To the contrary, there was ample evidence supporting Touger's
strategy to concede that Rosemond ordered a shooting. The government's key
witness, McCleod, who participated in the conspiracy and lured Fletcher to be
- 28 - shot, testified that Rosemond agreed to pay Grant to be the shooter. Moreover,
Rosemond was in Miami when the shooting took place, which belies the notion
that he merely wanted Fletcher brought to him as he was over 1,000 miles away
the day he sent five men with two guns to confront Fletcher. Finally,
Rosemond's reaction to the news that Fletcher was killed -- telling one of his
trusted employees, "Yo, that bitch is out of here," App'x at 631, 643-44, and
simply saying "OK" when McCleod first broke the news, App'x at 867 -- further
demonstrated his intent that, at the very least, Fletcher be shot. Thus, Rosemond
fails to prove that Touger's assistance fell below an objective standard of
reasonableness, even though that strategy ultimately did not work. See Bell v.
Cone, 535 U.S. 685, 698 (2002) (noting that "judicial scrutiny of a counsel's
performance must be highly deferential" (alteration omitted) (quoting Strickland,
446 U.S. at 689)); United States v. Caracappa, 614 F.3d 30, 48 (2d Cir. 2010)
("Monday-morning quarterbacking is not a sport encouraged by the laws
governing ineffective assistance claims.").
Moreover, as detailed above, there was ample evidence that
Rosemond hired McCleod and Grant to kill Fletcher. There is no reasonable
probability that the outcome of the case would have been different had Touger
- 29 - argued that Rosemond paid $30,000 to have Fletcher, who was in New York,
brought to Rosemond while Rosemond was in Miami. Rosemond, therefore, was
not deprived of his Sixth Amendment right to effective assistance of counsel as
his counsel's performance was neither deficient nor prejudicial to his defense.
II. Evidentiary Rulings
It is well settled that because "a district court is in the best position to
evaluate the evidence and its effect on the jury, its rulings on admissibility under
Rule 404(b) will not be overturned on appeal absent a clear showing of abuse of
discretion." United States v. Pitre, 960 F.2d 1112, 1119 (2d Cir. 1992). Therefore,
we will reverse a trial court's evidentiary rulings only if the judge "acted
arbitrarily and irrationally." Id.
"Evidence of a crime, wrong, or other act" is inadmissible to prove a
defendant's criminal propensity. Fed. R. Evid. 404(b)(1); see also Huddleston v.
United States, 485 U.S. 681, 685 (1988). We evaluate Rule 404(b) "under an
inclusionary approach," and prior bad acts may be admitted "for any purpose
other than to show a defendant's criminal propensity." United States v. Garcia,
- 30 - 291 F.3d 127, 136 (2d Cir. 2002) (internal quotation mark omitted). Evidence of
prior bad acts is admissible to "inform the jury of the background of the
conspiracy charged, in order to help explain how the illegal relationship between
participants in the crime developed, or to explain the mutual trust that existed
between coconspirators." United States v. Dupree, 870 F.3d 62, 76 (2d Cir. 2017).
The probative value of prior bad-act evidence is not substantially outweighed by
the risk of prejudice if the conduct is not "any more sensational or disturbing"
than the charged crime. United States v. Lyle, 919 F.3d 716, 737 (2d Cir. 2019).
Rosemond argues that the district court abused its discretion by
admitting evidence of prior bad acts for the purpose of "paint[ing] Rosemond as
a violent criminal." Appellant's Br. at 42. He further contends that the amount of
admitted evidence was excessive and prejudicial.
Before trial, the district court partially granted and partially denied
the government's motion in limine. The lower court decided to admit prior bad-
act evidence of several violent incidents between Czar and Violator that were in
connection with, and led to, the murder-for-hire conspiracy. The district court
also allowed evidence of uncharged narcotics trafficking acts.
- 31 - We conclude that the district court did not abuse its discretion in
admitting this evidence. First, the prior bad acts that were admitted provided
the jury with context to understand why Rosemond paid to have Fletcher killed.
They also provided background to show Rosemond sold narcotics, which
demonstrated his ability to make payments -- in support of an element the
government was required to prove to convict a defendant under 18 U.S.C. § 1958
-- in drugs. Second, these acts further explained the mutual trust between
Rosemond and the other conspirators, illustrating why Rosemond was
comfortable involving these individuals in a crime where a conviction could
result in life imprisonment or, worse, death. 18 U.S.C. § 1958(a). Third,
Rosemond was charged with murder-for-hire, which is far more sensational and
disturbing than the conduct admitted as prior bad acts. Thus, the district court
did not abuse its broad discretion when it admitted the 404(b) evidence.
CONCLUSION
For the foregoing reasons, the judgment of the district court is
- 32 -