Here, a divided panel found that a Crawford error required a new trial for two defendants convicted in a murder-for-hire conspiracy, although the evidence was legally sufficient.
Background
Defendant Williams was the head of a crack-cocaine ring operating in the Bronx. Defendant Lee was one of his dealers. The target of the conspiracy was Kawaine Ellis, who stabbed Lee in the chest in June of 2001. In November of 2001, Williams rented three cars at Newark Airport. Lee was pulled over while driving one of them, and was carrying a gun, which he told the police he had for “protection.” Around that same time, Williams spoke to another member of his crew, Jason Lawton, and told him to return a gun to Williams because Lee had “just got bit,” meaning that he had been stabbed or shot.
About two months later, Maurice Clarke was arrested on gun charges. He told a detective that he had been hired to kill Ellis; he was given a gun and was driven around by someone else who was looking for Ellis, whom they could not find, and was paid for his time. Clarke later said that he would invoke his Fifth Amendment rights if called to testify, so his statement was admitted into evidence through the detective as a statement against Clarke’s penal interest.
In March of 2002, one month after Clarke’s arrest, Orlando Gordon, one of Lee’s drug associates - he bought crack from and sold marijuana to Lee - was assaulted by “Mel,” a member of Lee’s crew. Gordon and Lee spoke about their respective assailants, Ellis and Mel, and discussed a “body for body” swap, under which Lee would deliver Mel to Gordon and Gordon would deliver Ellis to Lee. Gordon, a confidential informant, recorded a conversation with Lee about this plan and, during the conversation, Lee could be overheard placing a call to someone else asking for a “favor” to be “taken care of” - the shooting of Ellis. Lee and Gordon discussed this plan a bit more, but nothing came of it.
The Crawford Error
The court of appeals agreed that the admission of Clarke’s statement through the detective was a Confrontation Clause error under Crawford. Moreover, the error was preserved - although the trial was pre-Crawford, the defense expressly mentioned Confrontation Clause concerns when arguing against the admission of the statement. The court also concluded that the error was harmless.
Effect of the Error on Williams
The majority had little trouble concluding that the admission of Clarke’s statement “contributed to the verdict” against Williams. The only evidence against Williams, absent the hearsay, was that he rented a car and gave it and a gun to Lee, and that he later retrieved a gun from another member of the crew because Lee had “just been bit.” Only Clarke’s statement tended to suggest that Williams gave the car and gun to Lee to help Lee get back at Ellis. “Without the Clarke testimony there is absolutely no indication that the ... car and gun incidents involved a hired killer.” This was true even though Clarke’s statement did not explicitly mention Williams or Lee. A “reasonable juror” could have drawn precisely this inference, and the prosecutor encouraged the jury to do so. Since Williams was not implicated in Lee’s later discussions with Gordon about having Ellis shot, Clarke’s statement was “critical to Williams’ conviction.”
Effect of Error on Lee
The harmless error question was “closer” as to Lee because his conversation with Gordon made is clear that he was “orchestrating a plot to have Ellis shot.” Nevertheless, the majority vacated Lee’s conviction because there was very little evidence that the plan with Gordon included promising something of value to the shooter, an element of the offense of conviction. When Lee called the shooter during his conversation with Gordon, he spoke of shooting Ellis as “a favor for a favor.” This was not sufficient to establish the pecuniary value element.
While there was some other evidence that might have referred to the pecuniary value element - a mention that Lee was “spending more money” - the probative force of that evidence was weak, given that Lee was purchasing marijuana from Gordon at the time of their interactions. Moreover, the government repeatedly referred to Clarke as a “hired killer” who was “paid” to kill Ellis. Since Clarke’s statement “clearly” established the pecuniary value element and the other “money” reference was ambiguous, the government did not establish beyond a reasonable doubt that Clarke’s statement did not contribute to the verdict against Lee.
The Dissent’s View
Judge Straub disagreed. On his review of the record, Clarke’s statement did not contribute to the verdict against either defendant. He viewed the statement as “relatively unimportant to the” government’s case since, it did not “connect either defendant to a murder for hire conspiracy.” Rather, it “only established how far such a conspiracy, irrespective of its participants might have progressed.”
Sufficiency of the Evidence
On the other hand, the court held that the evidence against the defendants, including the Clarke statement, was sufficient. For this, the court turned to United States v. Hardwick, 523 F.3d 94, 101 (2d Cir. 2008), a highly similar case (blogged below under the title For Your Consideration), which held that sufficiency review should take into consideration improperly admitted evidence - a principal not without controversy. Here, a reasonable trier of fact could have found that Williams rented the car and gave the gun to Lee as part of plan for Lee to avenge his stabbing by Ellis. Clarke’s statement could reasonably be interpreted as relating to that plan, and thus that Williams and Lee were “involved in a conspiracy to pay Clarke to murder Ellis.”
