United States v. Richard James and Ronald Mallay

09-2732-cr
United States v. Richard James and Ronald Mallay
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2011 3
(Argued: October 3, 2011; Final submission: July 16, 2012; *
4
Decided: March 28, 2013; Errata Filed: May 1, 2013) 5
Docket Nos. 09-2732-cr, 09-2804-cr 6
------------------------------------- 7
United States, 8
Appellee, 9
- v - 10
Richard James and Ronald Mallay, 11
Defendants-Appellants. 12
------------------------------------- 13
Before: SACK and RAGGI, Circuit Judges, and EATON, Judge.**
14
Appeal from judgments of the United States District 15
Court for the Eastern District of New York (Sterling Johnson, 16
Judge) convicting defendants on various counts of an indictment 17
including murder, mail fraud, and murder in aid of racketeering, 18
and imposing mandatory life sentences. We find no error in the 19
admission of an autopsy report and a toxicology report without 20
the presence of the individuals who prepared those reports 21
* The Court's consideration of this appeal was suspended
pending the Supreme Court's decision in Williams v. Illinois, 132
S. Ct. 2221 (2012), and the parties' subsequent supplemental
briefing directed to the significance, if any, of that decision
here.
** Judge Richard K. Eaton of the United States Court of
International Trade, sitting by designation.

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inasmuch as they were not testimonial statements because they 1
were not made with the primary purpose of creating a record for 2
use at a criminal trial, and therefore did not require that the 3
defendants have the opportunity to confront the authors of the 4
reports. We further conclude that: there was no error in the 5
district court's decision to exclude the prosecutor's rebuttal 6
statement in a prior, related trial; the district court did not 7
abuse its discretion in disallowing as impeachment evidence 8
statements made by a cooperating witness outside of the jury's 9
presence; the district court's denial of defendant Richard 10
James's severance motion did not warrant vacatur of the verdict; 11
there was no Sixth Amendment violation in the admission of 12
surreptitious recordings made by a government informant; it was 13
proper to admit that recording as a co-conspirator statement 14
against defendant Mallay; there was no error in denying a motion 15
for a new trial based upon post-trial allegations of 16
prosecutorial misconduct; and there was no cumulative error 17
warranting reversal. 18
Affirmed. Judge Eaton concurs in a separate opinion. 19
JAMES G. McGOVERN, Susan Corkery, Robert 20
L. Capers, for Loretta E. Lynch, United 21
States Attorney for the Eastern District 22
of New York, Brooklyn, New York, for 23
Appellee. 24
STEVE ZISSOU, Esq., Bayside, New York, 25
for Defendant-Appellant Richard James. 26
MICHAEL K. BACHRACH, Esq., New York, New 27
York, for Defendant-Appellant Ronald 28
Mallay. 29
2

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SACK, Circuit Judge: 1
Richard James and Ronald Mallay appeal from judgments 2
of conviction based on their participation in a wide-ranging 3
conspiracy that involved fraudulently obtained life insurance 4
policies for members of their extended families and others in the 5
Guyanese and Guyanese-American community, and, in several 6
instances, murder of the insured in order to collect on those 7
policies. 8
BACKGROUND 9
After a jury trial in the United States District Court 10
for the Eastern District of New York (Sterling Johnson, Judge), 11
James and Mallay were each sentenced to mandatory terms of life 12
in prison after they were convicted of racketeering, in violation 13
of 18 U.S.C. § 1962(c); racketeering conspiracy, in violation of 14
18 U.S.C. § 1962(d); murder in aid of racketeering, in violation 15
of 18 U.S.C. § 1959(a)(1); conspiracy to commit murder in aid of 16
racketeering, in violation of 18 U.S.C. § 1959(a)(5); mail fraud, 17
in violation of 18 U.S.C. § 1341; conspiracy to commit mail 18
fraud, in violation of 18 U.S.C. § 371; and conspiracy to commit 19
money laundering, in violation of 18 U.S.C. § 1956(h). In 20
addition, Mallay was convicted of murder for hire and conspiracy 21
to commit murder for hire, in violation of 18 U.S.C. § 1958. 22
James was also convicted of attempted murder for hire, in 23
violation of 18 U.S.C. § 1958, and solicitation of murder in aid 24
of racketeering, in violation of 18 U.S.C. §§ 373 and 1959(a)(1). 25
3

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These charges revolved around the murders of four people: Vernon 1
Peter, Alfred Gobin, Hardeo Sewnanan, and Basdeo Somaipersaud. 2
While Mallay was charged in relation to all four murders, James 3
was charged in connection with only the murders of Sewnanan and 4
Somaipersaud. Mallay was convicted on every count with which he 5
had been charged; James was convicted on all counts with which he 6
had been charged, with the exception of those alleging conspiracy 7
and murder for hire in connection with the deaths of Sewnanan and 8
Somaipersaud. The defendants were eligible for the death 9
penalty, but because the jury was unable to reach a unanimous 10
verdict as to that punishment, a sentence of life imprisonment 11
was imposed. 12
On appeal, the defendants do not contest the 13
sufficiency of the evidence of insurance fraud. The issues on 14
these appeals relate largely to the convictions of the defendants 15
for committing four murders that were allegedly part of this 16
scheme, and particularly the murders of Sewnanan and 17
Somaipersaud, both of whom were poisoned to death. Accordingly, 18
we review only that evidence necessary to explain our decision to 19
affirm all counts of conviction. 20
Vernon Peter 21
In 1991, Mallay was convicted of theft from the postal 22
service, for which he worked as a postal carrier, and sentenced 23
to 15 months' imprisonment. See Memorandum & Order, United 24
States v. James, No. 02 Cr 0778, 2009 WL 763612, at *1, 2009 U.S. 25
Dist. LEXIS 23706, at *3 (E.D.N.Y. Mar. 18, 2009) ("James I"). 26
4

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While Mallay was incarcerated, his mother died of a heart attack. 1
Id. Mallay blamed his arrest and conviction on his sister's 2
husband, Vernon Peter, known as "Dilly." Id. He told his 3
sister, Betty Peter, to keep Dilly's life insurance current 4
because he planned to get even. Id., 2009 U.S. Dist. LEXIS 5
23706, at *4. In 1993, after Mallay was released from prison, he 6
asked his nephew Baskinand Motillal if he would kill Dilly for 7
Mallay. Id. at *2, 2009 U.S. Dist. LEXIS 23706, at *4. Motillal 8
declined but introduced Mallay to another person, to whom Mallay 9
paid $10,000 to commit the crime. He also gave that person $500 10
with which to purchase a weapon. Id. That person in turn 11
recruited three others to help him carry out the murder. Id. On 12
the morning of July 28, 1993, the four murdered Dilly as he 13
walked out of his home. Id. 14
Betty Peter collected $400,000 on an insurance policy 15
on Dilly's life. Id., 2009 U.S. Dist. LEXIS 23706, at *5. She 16
then loaned at least $60,000 of those proceeds to Mallay. 1 Id., 17
2009 U.S. Dist. LEXIS 23706, at *5. 18
Alfred Gobin 19
In September 1993, Mallay met with James, then an 20
insurance agent with MetLife, and Gulabie Gobin, Mallay's 21
1 Betty Peter and Baskinand Motillal's trials were severed
from James and Mallay's trial. Peter was convicted of charges
including obstructing the investigation into the murder of her
husband in aid of racketeering, and sentenced principally to 60
months' imprisonment. United States v. James, 322 F. App'x 32,
32-33 (2d Cir. 2009). Peter cooperated with the government
subsequent to her conviction, and testified at the trial leading
to the convictions appealed here. Id. at 35.
5

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longtime mistress. Id., 2009 U.S. Dist. LEXIS 23706, at *6. 1
James and Mallay persuaded Gobin to take out two insurance 2
policies on her father, Alfred Gobin, who was murdered in Guyana 3
in January 1996. Id. Gulabie and her family received more than 4
$200,000 from the policies, and lent James and Mallay nearly 5
$60,000. Id. 6
Basdeo Somaipersaud 7
James encouraged a friend of his, Satyanand Arjun, to 8
purchase an insurance policy on the life of Somaipersaud, a heavy 9
drinker who sometimes lived with Arjun. Id., 2009 U.S. Dist. 10
LEXIS 23706, at *6-*7. In October 1994, James obtained a 11
$100,000 policy on Somaipersaud's life, with double indemnity if 12
Somaipersaud died accidentally. It named James's sister as a 13
beneficiary. Id. 14
During the fall of 1997, James offered $10,000 to 15
Kenrick Hassan, a member of James's extended family, to kill 16
Somaipersaud. Id. Although Hassan declined the offer, on 17
January 23, 1998, Somaipersaud was found dead in a park in the 18
Borough of Queens, New York City. The New York City Office of 19
the Chief Medical Examiner ("OCME") determined that Somaipersaud 20
had died of acute alcoholism in combination with a dose of the 21
drug chlorpromazine. 2 Id. James contacted Arjun to tell him of 22
2 Chlorpromazine [brand name: Thorazine] is used to
"[t]reat[] mental disorders, severe behavior disorders, severe
hiccups, severe nausea and vomiting, and certain types of
porphyria. . . ." See PubMed Health,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0009582/?report=deta
ils (last visited Mar. 22, 2013).
6

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Somaipersaud's death, which Arjun found surprising because he was 1
not aware of any connection between James and Somaipersaud and 2
because he had not spoken to James since he had purchased the 3
insurance policy. Id. James's girlfriend and Arjun received 4
insurance payments as a result of Somaipersaud's death. Id. 5
Hardeo Sewnanan 6
In October 1996, James arranged for the purchase of two 7
$250,000 life insurance policies for Hardeo Sewnanan, who was 8
Mallay's nephew, with Betty Peter, Mallay's wife, and Mallay's 9
mistress's daughter named as beneficiaries. Id., at *3, 2009 10
U.S. Dist. LEXIS 23706, at *8. William Mallay, who shared an 11
address with the defendant Ronald Mallay, paid the premiums on 12
the policy. Id. In 1999, Ronald Mallay asked Kenrick Hassan to 13
kill Sewnanan, who again declined to do so. This time he put 14
Mallay in touch with Kenrick's brother, Derick Hassan. Id. 15
Mallay traveled to Guyana to meet with Derick, paying him $10,000 16
to kill Sewnanan. But Derick Hasan ultimately decided not to do 17
so. Id. Mallay later told Derick that he had hired others to 18
commit the murder. Id. 19
On January 8, 1999, Sewnanan died in Guyana of what the 20
Guyanese medical examiner determined to be ammonia poisoning. 21
Id.; see also Memorandum & Order, United States v. James, No. 02 22
Cr 0778, 2007 WL 2702449, at *1, 2007 U.S. Dist. LEXIS 67538, at 23
*2 (E.D.N.Y. Sept. 12, 2007) ("James II"). Mallay collected 24
$400,000 on the policy on Sewnanan's life. James I, 2009 WL 25
763612, at *3, 2009 U.S. Dist. LEXIS 23706, at *8. 26
7

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Appeals 1
The defendants raise eight separate issues on their 2
appeals: First, whether a new trial is required based on the 3
district court's error under the Sixth Amendment’s Confrontation 4
Clause in admitting forensic reports relating to the deaths of 5
Sewnanan and Somaipersaud -- specifically, the issues are whether 6
one member of the OCME was properly allowed to testify regarding 7
an autopsy conducted by another member of that office in which 8
the witness had not participated, and whether a medical examiner 9
from Guyana was properly allowed to testify to the results of 10
toxicology tests which he had ordered but did not conduct; 11
second, whether the district court erred in excluding the 12
prosecution's statement in the prior criminal trial of Betty 13
Peter, a cooperating witness in the current trial, suggesting 14
greater culpability on her part for Vernon Peter's murder; third, 15
whether the district court abused its discretion in refusing to 16
permit the defendants to impeach Betty Peter's testimony with 17
prior inconsistent statements; fourth, whether James is entitled 18
to a new trial because the district court's refusal to order 19
severance deprived him of a fair trial; fifth, whether the 20
defendants had been deprived of a fair trial because of the 21
district court's refusal to suppress statements elicited from 22
James by a government informant after James's indictment; sixth, 23
whether the district court erred in admitting, against Mallay as 24
a coconspirator, recorded statements of James made 25
surreptitiously by a third party; seventh, whether the district 26
8

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court erred in denying a new trial based on allegations by a 1
cooperating witness of prosecutorial misconduct and coercion; and 2
eighth, whether there has been cumulative error sufficient to 3
warrant a new trial. 4
DISCUSSION 5
I. The Confrontation Clause 6
The defendants raise two separate Confrontation Clause 7
issues on their appeals. First, they contend that one member of 8
the OCME could not constitutionally have been permitted to 9
testify as to the results of Somaipersaud's autopsy, which was 10
conducted by another member of that office. Second, they urge 11
that allowing the Guyanese medical examiner who conducted 12
Sewnanan's autopsy to testify to the results of forensic tests 13
conducted by a colleague ran afoul of the Confrontation Clause. 14
The Sixth Amendment provides, among other things, that 15
"[i]n all criminal prosecutions, the accused shall enjoy the 16
right . . . to be confronted with the witnesses against him." 17
U.S. Const. amend. VI. The landscape of Confrontation Clause 18
jurisprudence has changed considerably since the Supreme Court's 19
decision in Crawford v. Washington, 541 U.S. 36 (2004). Even 20
after Crawford, however, this court reaffirmed its settled 21
holding that autopsy reports could be admitted as business 22
records without violating the Confrontation Clause. See United 23
States v. Feliz, 467 F.3d 227, 230 (2d Cir. 2006). Defendants 24
urge us to reconsider this precedent in light of Supreme Court 25
9

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decisions since Feliz limning the contours of what constitutes a 1
"testimonial" statement in the context of a laboratory analysis. 2
See Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011); Melendez- 3
Diaz v. Massachusetts, 557 U.S. 305 (2009). We conclude that 4
even if these cases cast doubt on any categorical designation of 5
certain forensic reports as admissible in all cases, the autopsy 6
reports in this case are nevertheless not testimonial –- and 7
therefore do not implicate the Confrontation Clause –- because 8
they were not created "for the purpose of establishing or proving 9
some fact at trial." Melendez-Diaz, 557 U.S. at 324; see also 10
Bullcoming, 131 S. Ct. at 2719-20 (Sotomayor, J., concurring) 11
("When the 'primary purpose' of a statement is 'not to create a 12
record for trial,' 'the admissibility of the statement is the 13
concern of state and federal rules of evidence, not the 14
Confrontation Clause.'" (quoting Bryant, 131 S. Ct. at 1155)). 15
A. Confrontation Clause post-Crawford 16
In Crawford, the Court considered whether a tape- 17
recorded statement to police made by the wife of a man being 18
prosecuted for stabbing another man could be entered into 19
evidence against the alleged perpetrator even though he had no 20
opportunity to cross-examine the witness. She could not be 21
compelled to testify against her husband under the state's 22
marital privilege. 23
The Court's analysis relied heavily on the 24
Confrontation Clause's historical background. The Court 25
explained that the Confrontation Clause was designed to protect 26
10

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against the "principal evil" of using ex parte statements against 1
the accused. Id. at 50. Thus, the proper Confrontation Clause 2
inquiry should focus not on reliability as contemplated by the 3
law of evidence, but on the “witnesses against the accused - in 4
other words, those who bear testimony.” See id. at 51. The 5
Crawford Court determined that the statement at issue was 6
"testimonial," having been made against an identified suspect 7
while the witness herself was in police custody, and therefore 8
either confrontation, or unavailability and a prior opportunity 9
for cross-examination, was required. Id. at 65-66. But the 10
Court "le[ft] for another day any effort to spell out a 11
comprehensive definition of 'testimonial,'" to which its rule 12
applied. Id. at 68. In any event, "[w]hatever else the term 13
covers, it applies at a minimum to prior testimony at a 14
preliminary hearing, before a grand jury, or at a former trial; 15
and to police interrogations. These are the modern practices 16
with the closest kinship to the abuses at which the Confrontation 17
Clause was directed." 3 Id. 18
3 Elsewhere in Crawford, the Court offered a more complete
definition of "testimonial":
Various formulations of this core class of
"testimonial" statements exist: ex parte
in-court testimony or its functional
equivalent –- that is, material such as
affidavits, custodial examinations, prior
testimony that the defendant was unable to
cross-examine, or similar pretrial statements
that declarants would reasonably expect to be
used prosecutorially . . . extrajudicial
statements . . . contained in formalized
testimonial materials, such as affidavits,
11

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In Feliz, we concluded, in light of Crawford, that 1
"autopsy reports are not testimonial . . . and, thus, do not come 2
within the ambit of the Confrontation Clause[.]" Feliz, 467 F.3d 3
at 229. We examined a situation raising issues strikingly 4
similar to those raised here -– one member of the OCME testified 5
as to the findings of another member, and the testifying medical 6
examiner had not participated in the autopsy at issue. Id. We 7
remarked upon the sea change that Crawford brought about, but 8
reasoned that it had "declined to 'spell out a comprehensive 9
definition of 'testimonial.'" Feliz, 467 F.3d at 232 (quoting 10
Crawford, 541 U.S. at 68). Crawford, we explained, "indicated 11
that a statement produced through the 'involvement of government 12
officers' and with an 'eye towards trial' is testimonial because 13
it 'presents a unique potential for prosecutorial abuse –- a fact 14
borne out time and again through a history with which the Framers 15
were keenly familiar.'" Feliz, 467 F.3d at 232 (quoting 16
Crawford, 541 U.S. at 56 n.7) (brackets omitted). We observed 17
that among the classes of statements that Crawford concluded 18
depositions, prior testimony, or confessions;
[and] statements that were made under
circumstances which would lead an objective
witness reasonably to believe that the
statement would be available for use at a
later trial. These formulations all share a
common nucleus and then define the Clause's
coverage at various levels of abstraction
around it. Regardless of the precise
articulation, some statements qualify under
any definition -- for example, ex parte
testimony at a preliminary hearing.
Id. at 51-52 (citations and internal quotation marks omitted).
12

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would be testimonial were those "made under circumstances which 1
would lead an objective witness reasonably to believe that the 2
statement would be available for use at a later trial." Id. at 3
233 (quoting Crawford, 467 F.3d at 52). 4
We concluded that autopsy reports would nonetheless be 5
admissible as business records under Federal Rule of Evidence 6
803(6) because "a business record is fundamentally inconsistent 7
with what the Supreme Court has suggested comprise the defining 8
characteristics of testimonial evidence." Feliz, 467 F.3d at 9
233-34. Because the business records exception "requires 10
business records to be kept in the regular course of a business 11
activity, records created in anticipation of litigation do not 12
fall within its definition." Id. at 234. 13
We rejected the argument that "autopsy reports must be 14
testimonial because a medical examiner preparing such a report 15
must have a reasonable expectation the reports may be available 16
for use in a subsequent trial." Id. Because "the Supreme Court 17
did not opt for an expansive definition [of testimonial] that 18
depended on a declarant's expectations," we said, "we are 19
hesitant to do so here." Id. at 236. We concluded that business 20
records fell outside Crawford's definition of testimonial "even 21
where the declarant is aware that it may be available for later 22
use at trial," Feliz, 467 F.3d at 236, and that autopsy reports 23
were business records within the meaning of Rule 803(6), as 24
thousands of autopsies were conducted every year "without regard 25
to the likelihood of their use at trial." Id. We further 26
13

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concluded that autopsy reports would be equally admissible as 1
public, rather than business, records because Rule 803(8)(A)-(B), 2
which defines public records, excludes documents prepared in 3
anticipation of litigation and matters observed by police 4
officers. Id. at 237. "These factors suggest that public 5
records, like business records, 'bear[] little resemblance to the 6
civil-law abuses the Confrontation Clause targeted.'" Id. 7
(quoting Crawford, 541 U.S. at 51). 8
In 2009, however, the Supreme Court cast doubt on our 9
post-Crawford jurisprudence in this area. In Melendez-Diaz v. 10
Massachusetts, 557 U.S. 305 (2009), the Court concluded that 11
"certificates of analysis" identifying a seized substance as an 12
illicit drug should not have been introduced against the 13
defendant absent an opportunity for the defendant to confront the 14
person who prepared the certificate. The Melendez-Diaz Court 15
reached this conclusion in part because the certificates "are 16
quite plainly affidavits: declarations of facts written down and 17
sworn to by the declarant before an officer authorized to 18
administer oaths." Id. at 310 (internal quotation marks 19
omitted). "The 'certificates' are functionally identical to 20
live, in-court testimony, doing 'precisely what a witness does on 21
direct examination.'" Id. at 310-11 (quoting Davis v. 22
Washington, 547 U.S. 813, 830 (2006)). "We can safely assume 23
that the analysts were aware of the affidavits' evidentiary 24
purpose, since that purpose –- as stated in the relevant state- 25
law provision –- was reprinted on the affidavits themselves." 26
14

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Id. at 311. The Court once again declined to spell out a 1
comprehensive definition of testimonial. 2
The Melendez-Diaz Court rejected the government's 3
argument that the evidence should be admitted because it was a 4
business record –- the hearsay exception upon which we relied in 5
Feliz –- because that exception had never applied "if the 6
regularly conducted business activity is the production of 7
evidence for use at trial." Id. at 321. The Court concluded: 8
Business and public records are generally 9
admissible absent confrontation, not because 10
they qualify under an exception to the 11
hearsay rules, but because -- having been 12
created for the administration of an entity's 13
affairs and not for the purpose of 14
establishing or proving some fact at trial -- 15
they are not testimonial. Whether or not 16
they qualify as business or official records, 17
the analysts' statements here -- prepared 18
specifically for use at petitioner's trial -- 19
were testimony against petitioner, and the 20
analysts were subject to confrontation under 21
the Sixth Amendment. 22
Id. at 324. 23
24
Justice Kennedy, in dissent, criticized the majority 25
for "disregard[ing] a century of jurisprudence" in favor of 26
"formalistic and wooden rules, divorced from precedent, common 27
sense, and the underlying purpose of the Clause." Id. at 330-31 28
(Kennedy, J., dissenting). In explaining why the analyst reports 29
at issue did not implicate the Confrontation Clause, Justice 30
Kennedy asserted: 31
First, a conventional witness recalls events 32
observed in the past, while an analyst's 33
report contains near-contemporaneous 34
observations of the test. . . . Second, an 35
15

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analyst observes neither the crime nor any 1
human action related to it. . . . The 2
analyst's distance from the crime and the 3
defendant, in both space and time, suggests 4
the analyst is not a witness against the 5
defendant in the conventional sense. Third, 6
a conventional witness responds to questions 7
under interrogation. . . . Put differently, 8
out-of-court statements should only "require 9
confrontation if they are produced by, or 10
with the involvement of, adversarial 11
government officials responsible for 12
investigating or prosecuting crime." 13
Id. at 345-46 (quoting Carolyn Zabrycki, Comment, Toward a 14
Definition of "Testimonial": How Autopsy Reports Do Not Embody 15
the Qualities of a Testimonial Statement, 96 Cal. L. Rev. 1093, 16
1118 (2008)). 17
In Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), 18
the question presented was whether a "certificate of analyst" 19
containing the results of a blood-alcohol test administered 20
pursuant to a DUI arrest required the testimony of the analyst 21
who conducted the gas chromatograph test. Id. at 2710-11. The 22
trial court had admitted the test as a business record, and 23
allowed its introduction through the testimony of "an analyst who 24
did not sign the certification or personally perform or observe 25
the performance of the test reported in the certification." Id. 26
at 2713. The Court rejected the suggestion that the report was 27
nontestimonial: 28
In all material respects, the laboratory 29
report in this case resembles those in 30
Melendez-Diaz. Here, as in Melendez-Diaz, a 31
law-enforcement officer provided seized 32
evidence to a state laboratory required by 33
law to assist in police investigations. Like 34
16

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the analysts in Melendez-Diaz, [the analyst] 1
tested the evidence and prepared a 2
certificate concerning the result of his 3
analysis. Like the Melendez-Diaz 4
certificate, [the certificate here] is 5
"formalized" in a signed document. . . . In 6
sum, the formalities attending the "report of 7
blood alcohol analysis" are more than 8
adequate to qualify [the analyst's] 9
assertions as testimonial. 10
Id. at 2717 (citations omitted). 11
Justice Sotomayor concurred, relying largely on a 12
Confrontation Clause opinion she had written earlier in the term 13
in Michigan v. Bryant, 131 S. Ct. 1143 (2011) (concluding that 14
statements made by a dying man to police could be admitted 15
without requiring confrontation). "To determine if a statement 16
is testimonial, we must decide whether it has 'a primary purpose 17
of creating an out-of-court substitute for trial testimony.' 18
When the 'primary purpose' of a statement is 'not to create a 19
record for trial,' 'the admissibility of the statement is the 20
concern of the state and federal rules of evidence, not the 21
Confrontation Clause.'" Bullcoming, 131 S. Ct. at 2720 22
(Sotomayor, J., concurring) (quoting Bryant, 131 S. Ct. at 1155). 23
Noting that Bullcoming was "not a case in which the State 24
suggested an alternate purpose, much less an alternate primary 25
purpose, for the BAC report," such as to provide for medical 26
treatment, Justice Sotomayor concluded that the primary purpose 27
"is clearly to serve as evidence" and its introduction without 28
confrontation was therefore in error. Id. at 2722-23. 29
17

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Last term, in Williams v. Illinois, 132 S. Ct. 2221 1
(2012), the Court returned to consideration of the Confrontation 2
Clause, this time to determine whether it was a violation to 3
allow an expert to testify in a rape case that "a DNA profile 4
produced by an outside laboratory, Cellmark, matched a profile 5
produced by the state police lab using a sample of petitioner's 6
blood." Id. at 2227. The defendant argued that the expert "went 7
astray when she referred to the DNA profile provided by Cellmark 8
as having been produced from semen found on the victim's vaginal 9
swabs," even though she did not conduct or observe any of the 10
work that Cellmark had done in deducing a male DNA profile. Id. 11
at 2227, 2230. The Court came to no clear consensus as to what 12
constituted a testimonial statement in this context, however, 13
issuing a plurality opinion, two concurrences, and a dissent. 14
The plurality opinion by Justice Alito, joined by Chief 15
Justice Roberts, Justice Kennedy, and Justice Breyer -- the 16
dissenters in Melendez-Diaz and Bullcoming -- concluded that the 17
testimony did not run afoul of the Confrontation Clause using two 18
separate paths. First, it noted that "[i]t has long been 19
accepted that an expert witness may voice an opinion based on 20
facts concerning the events at issue in a particular case even if 21
the expert lacks first-hand knowledge of those facts." Id. at 22
2233. Under the Illinois and federal rules, "an expert may base 23
an opinion on facts that are 'made known to the expert at or 24
before the hearing,'" even if those facts themselves are 25
18

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inadmissible. Id. at 2234 (quoting Ill. R. Evid. 703; Fed. R. 1
Evid. 703). 2
While in a jury trial the expert would be prohibited 3
from disclosing those underlying facts, in a bench trial, such as 4
that in Williams, the judge would be trusted to understand that 5
those facts were not offered for their truth. Id. at 2234-35. 6
The plurality concluded that "it is clear that the putatively 7
offending phrase . . . was not admissible for the purpose of 8
proving the truth of the matter asserted," and "there is no 9
reason to think that the trier of fact took [the testimony] as 10
substantive evidence to establish where the DNA profiles came 11
from." Id. at 2237. Because other evidence also established the 12
origin of the DNA profile, and because the trial judge was 13
presumed not to have considered the evidence for its truth, the 14
plurality concluded that there had been no Confrontation Clause 15
violation. Id. at 2240. The plurality noted that in Bullcoming 16
and Melendez-Diaz, "there is no question" but that the test 17
results were offered for their truth, whereas in Williams, the 18
report was offered "only for the distinctive and limited purpose 19
of seeing whether it matched something else." Id. at 2240 20
(internal quotation marks omitted). 21
The plurality next considered whether, even if the 22
testimony had been offered for its truth, there would have been 23
no Confrontation Clause violation. "The abuses that the Court 24
has identified as prompting the adoption of the Confrontation 25
Clause shared the following two characteristics: (a) they 26
19

-- 19 of 63 --

involved out-of-court statements having the primary purpose of 1
accusing a targeted individual of engaging in criminal conduct 2
and (b) they involved formalized statements such as affidavits, 3
depositions, prior testimony, or confessions." Id. at 2242. The 4
plurality asserted that "[t]he Cellmark report is very different 5
from the sort of extrajudicial statements, such as affidavits, 6
depositions, prior testimony, and confessions, that the 7
Confrontation Clause was originally understood to reach. The 8
report was produced before any suspect was identified. The 9
report was sought not for the purpose of obtaining evidence to be 10
used against petitioner, who was not even under suspicion at the 11
time, but for the purpose of finding a rapist who was on the 12
loose." Id. at 2228. The plurality concluded that the admission 13
of the report did not run afoul of the Confrontation Clause 14
because these purposes were not of the same type that the clause 15
had been enacted to protect against. Id. 16
In a concurring opinion, Justice Breyer said that he 17
would have set the case for reargument in order to answer the 18
question of what constitutes a "testimonial statement" with 19
regard to "the panoply of crime laboratory reports and underlying 20
technical statements written by (or otherwise made by) laboratory 21
technicians." Id. at 2244-45 (Breyer, J., concurring). He 22
criticized the Court's evolving Confrontation Clause 23
jurisprudence as offering "no logical stopping place between 24
requiring the prosecution to call as a witness one of the 25
laboratory experts who worked on the matter and requiring the 26
20

-- 20 of 63 --

prosecution to call all of the laboratory experts who did so." 1
Id. at 2246 (emphasis in original). 2
Justice Breyer did not himself offer a comprehensive 3
definition of testimonial, but said he would continue to adhere 4
to the dissenting views in Bullcoming and Melendez-Diaz. "[T]he 5
need for cross-examination is considerably diminished when the 6
out-of-court statement was made by an accredited laboratory 7
employee operating at a remove from the investigation in the 8
ordinary course of professional work." Id. at 2249. Justice 9
Breyer asserted that "to bar admission of the out-of-court 10
records at issue here could undermine, not fortify, the accuracy 11
of factfinding at a criminal trial," because it would potentially 12
bar autopsy reports: 13
Autopsies, like the DNA report in this case, 14
are often conducted when it is not yet clear 15
whether there is a particular suspect or 16
whether the facts found in the autopsy will 17
ultimately prove relevant in a criminal 18
trial. Autopsies are typically conducted 19
soon after death. And when, say, a victim's 20
body has decomposed, repetition of the 21
autopsy may not be possible. What is to 22
happen if the medical examiner dies before 23
trial? Is the Confrontation Clause 24
effectively to function as a statute of 25
limitations for murder? 26
Id. at 2251 (citations and internal quotation marks omitted). 27
Justice Breyer proposed as a solution a rebuttable 28
presumption that DNA reports of the type at issue be admissible, 29
with the defendant able to call the technician if he would choose 30
to do so, or to require confrontation upon a showing of a reason 31
to doubt the laboratory's competence or honesty. Id. at 2251-52. 32
21

-- 21 of 63 --

Justice Thomas concurred only in the judgment, and, 1
consistent with his prior opinions on the subject, did so because 2
the Cellmark report "lacks the solemnity of an affidavit or 3
deposition, for it is neither a sworn nor a certified declaration 4
of fact. Nowhere does the report attest that its statements 5
accurately reflect the DNA testing processes used or the results 6
obtained." Id. at 2260 (Thomas, J., concurring in the judgment). 7
Further, Justice Thomas explicitly rejected the plurality's 8
requirement that the primary purpose of the statements concern a 9
targeted individual, noting that "[t]here is no textual 10
justification, however, for limiting the confrontation right to 11
statements made after the accused's identity became known." Id. 12
at 2262 (Thomas, J., concurring). 13
In dissent, Justice Kagan, joined by Justices Scalia, 14
Ginsburg, and Sotomayor, characterized Williams as an "open-and- 15
shut case": "The State of Illinois prosecuted Sandy Williams for 16
rape based in part on a DNA profile created in Cellmark's 17
laboratory. Yet the State did not give Williams a chance to 18
question the analyst who produced that evidence." Id. at 2265 19
(Kagan, J., dissenting). Taking note of the fact that the 20
judgment had been affirmed without a majority settling on a 21
"reason why," Justice Kagan averred that "in all except its 22
disposition, [Justice Alito's plurality] opinion is a dissent." 23
Id. Likening the expert's testimony in Williams to the 24
"surrogate testimony" in Bullcoming, Justice Kagan asked, "Have 25
we not already decided this case?" Id. at 2267. 26
22

-- 22 of 63 --

Justice Kagan's opinion roundly rejected the idea that 1
the expert's testimony had not been offered for its truth, noting 2
recent scholarship and case law suggesting that the entire 3
concept of "basis evidence" is illusory. "[A]dmission of the 4
out-of-court statement in this context has no purpose separate 5
from its truth; the factfinder can do nothing with it except 6
assess its truth and so the credibility of the conclusion it 7
serves to buttress." Id. at 2269 (emphasis in original). 8
Justice Kagan then turned to the plurality's conclusion 9
that the DNA report was nontestimonial, joining Justice Thomas's 10
criticism of the reformulated primary purpose test as having no 11
basis in constitutional text, history, or the Court's prior 12
precedents. "We have previously asked whether a statement was 13
made for the primary purpose of establishing past events 14
potentially relevant to later criminal prosecution –- in other 15
words, for the purpose of providing evidence. None of our cases 16
has ever suggested that, in addition, the statement must be meant 17
to accuse a previously identified individual." Id. at 2273-74. 18
The dissenters also rejected the plurality's suggestion 19
that the purpose of the DNA testing was "to respond to an ongoing 20
emergency, rather than to create evidence for trial," id. at 2274 21
(internal quotation marks omitted), noting that the expert 22
herself had testified that the DNA report was conducted "'for 23
this criminal investigation . . . and for the purpose of the 24
eventual litigation' –- in other words, for the purpose of 25
23

-- 23 of 63 --

producing evidence, not enabling emergency responders." Id. 1
(citation omitted). 2
Summarizing the current state of Confrontation Clause 3
jurisprudence, Justice Kagan noted that the five Justices who 4
agreed on the judgment "agree on very little," and "have left 5
significant confusion in their wake." Id. at 2277. 6
What comes out of four Justices' desire to 7
limit Melendez-Diaz and Bullcoming in 8
whatever way possible, combined with one 9
Justice's one-justice view of those holdings, 10
is –- to be frank –- who knows what. Those 11
decisions apparently no longer mean all that 12
they say. Yet no one can tell in what way or 13
to what extent they are altered because no 14
proposed limitation commands the support of a 15
majority. 16
Id. 17
B. Controlling Law 18
We are confronted in this case with the puzzle Justice 19
Kagan described: Which of the foregoing principles enunciated by 20
various members of the Supreme Court controls here? 21
We begin by looking to our holding in Feliz -- a case 22
decided on facts very similar to these -- to determine how and to 23
what extent the Supreme Court's intervening decisions have 24
altered the rule we established in that case. There, we 25
concluded that autopsy reports were nontestimonial based in large 26
part on their status as business records. Feliz, 467 F.3d at 27
236. But, as we have explained, Melendez-Diaz and Bullcoming, 28
and to a lesser extent Williams, call this categorical conclusion 29
into doubt. 30
24

-- 24 of 63 --

In each of these cases, the records were, in some 1
sense, business records –- all were made in the course of the 2
regular business that the laboratory in question conducts: 3
forensic testing. Yet, in Melendez-Diaz and Bullcoming, the 4
Supreme Court concluded that the results of the tests were 5
testimonial because they were completed "for the purpose of 6
establishing or proving some fact at trial," Melendez-Diaz, 557 7
U.S. at 324, or were "affirmations made for the purpose of 8
establishing or proving some fact in a criminal proceeding," 9
Bullcoming, 131 S. Ct. at 2716 (internal quotation marks 10
omitted). 4 As the Melendez-Diaz Court explained, "[b]usiness and 11
public records are generally admissible absent confrontation not 12
because they qualify under an exception to the hearsay rules, but 13
because –- having been created for the administration of an 14
entity's affairs and not for the purpose of establishing or 15
proving some fact at trial –- they are not testimonial." 557 16
U.S. at 324. The reports at issue in that case, having been 17
"prepared specifically for use at . . . trial[,]" were 18
testimonial "[w]hether or not they qualif[ied] as business or 19
official records." Id. 20
4 No conclusion was reached in Feliz as to whether the
autopsy reports were similarly completed for the purpose of
establishing a fact at trial, in part because we did not then
think that "the reasonable expectation of the declarant should be
what distinguishes testimonial from nontestimonial statements,"
Feliz, 467 F.3d at 235, rendering that factual inquiry
unnecessary.
25

-- 25 of 63 --

We distill from this pre-Williams case law the 1
principle that a laboratory analysis is testimonial if the 2
circumstances under which the analysis was prepared, viewed 3
objectively, establish that the primary purpose of a reasonable 4
analyst in the declarant's position would have been to create a 5
record for use at a later criminal trial. See Melendez-Diaz, 557 6
U.S. at 324; Bryant, 131 S. Ct. at 1155-56 (explaining 7
application of the primary purpose standard); see also 8
Bullcoming, 131 S. Ct. at 2720 (Sotomayor, J., concurring) ("To 9
determine if a statement is testimonial, we must decide whether 10
it has 'a primary purpose of creating an out-of-court substitute 11
for trial testimony.' When the 'primary purpose' of a statement 12
is 'not to create a record for trial,' 'the admissibility of the 13
statement is the concern of state and federal rules of evidence, 14
not the Confrontation Clause.'" (quoting Bryant, 131 S. Ct. at 15
1155)). 16
The question then becomes whether the Court's later 17
decision in Williams changed that rule. We agree with Justice 18
Kagan that this problem is intractable. No single rationale 19
disposing of the Williams case enjoys the support of a majority 20
of the Justices. Ordinarily, "[w]hen a fragmented Court decides 21
a case and no single rationale explaining the result enjoys the 22
assent of five Justices, the holding of the Court may be viewed 23
as the position taken by those members who concurred in the 24
judgments on the narrowest grounds." Marks v. United States, 430 25
26

-- 26 of 63 --

U.S. 188, 193 (1977) (internal quotation marks omitted). But 1
what is the narrowest ground in the disposition in Williams? 2
The Williams plurality's first rationale -- that the 3
laboratory report there was offered as basis evidence, and not 4
for its truth -- was roundly rejected by five Justices. 5
Williams, 132 S. Ct. at 2258-59 (Thomas, J., concurring in the 6
judgment); Id. at 2268-69 (Kagan, J., dissenting). In any event, 7
we are hard-pressed to read this rationale as controlling this 8
case because the facts before us are in significant respects 9
different from those presented in Williams. 5
10
Nor do we think we can apply the plurality's narrowed 11
definition of testimonial, which would require that the analyst 12
had "the primary purpose of accusing a targeted individual of 13
engaging in criminal conduct[.]" Id. at 2242. Again, five 14
Justices disagreed with this rationale, and it would appear to 15
conflict directly with Melendez-Diaz, which rejected a related 16
5 For example, Corinne Ambrosi, the OCME's deputy chief
medical examiner for Queens County, testified in order to
establish Somaipersaud's cause of death, which was not at all
obvious and was clearly relevant to the charges against the
defendants. No other testimony established that Somaipersaud
died of poisoning. By contrast, in Williams, other admissible
evidence established that the sample tested by Cellmark came from
the victim's vaginal swab. See Williams, 132 S. Ct. at 2239.
Also, the plurality in Williams relied at least in part
on the fact that Williams was a bench trial, noting that the
"[t]he dissent's argument would have force if petitioner had
elected to have a jury trial." Williams, 132 S. Ct. at 2236.
The case before us was tried to a jury, leaving us less confident
that the factfinder would understand the conceptual distinction
between basis evidence and evidence offered for its truth.
27

-- 27 of 63 --

argument. See Williams, 132 S. Ct. at 2274 (Kagan, J., 1
dissenting). For similar reasons –- lack of support among the 2
Justices and conflict with prior precedents that did command 3
majority support –- we do not think either Justice Thomas's 4
concurrence on the ground that the analysis was not sufficiently 5
"formalized," or Justice Breyer's new approach to application of 6
the Confrontation Clause, is controlling. 7
Williams does not, as far as we can determine, using 8
the Marks analytic approach, yield a single, useful holding 9
relevant to the case before us. It is therefore for our purposes 10
confined to the particular set of facts presented in that case. 11
We think it sufficient to conclude that we must rely on Supreme 12
Court precedent before Williams to the effect that a statement 13
triggers the protections of the Confrontation Clause when it is 14
made with the primary purpose of creating a record for use at a 15
later criminal trial. 6 See Melendez-Diaz, 557 U.S. at 310-11; 16
Bryant, 131 S. Ct. at 1155; see also Bullcoming, 131 S. Ct. at 17
2716; Davis v. Washington, 547 U.S. 813, 822 (2006); Crawford, 18
541 U.S. at 51-52. 19
6 Although the law is not well developed in the area of
testimonial versus nontestimonial statements, a close analogue
may be found in cases examining the applicability of the attorney
work-product privilege, which applies when documents are created
by an attorney "in anticipation of litigation." See, e.g.,
Matter of Grand Jury Subpoenas Dated Oct. 22, 1991 and Nov. 1,
1991, 959 F.2d 1158, 1166 (2d Cir. 1992).
28

-- 28 of 63 --

C. Testimony Related to Somaipersaud's Death 1
We address first the defendants' argument that allowing 2
surrogate testimony concerning the autopsy report in 3
Somaipersaud's death was error. This purported error was not 4
objected to at trial. We review challenges on appeal that the 5
defendants did not raise at trial for plain error. A finding of 6
"plain error" requires that 7
(1) there is an error; (2) the error is 8
plain, that is, the error is clear or 9
obvious, rather than subject to reasonable 10
dispute; (3) the error affected the 11
appellant's substantial rights, which in the 12
ordinary case means it affected the outcome 13
of the district court proceedings; and (4) 14
the error seriously affects the fairness, 15
integrity or public reputation of judicial 16
proceedings. 17
United States v. Marcus, 628 F.3d 36, 42 (2d Cir. 2010) (internal 18
quotation marks and bracket omitted). 19
1. Testimony at trial. Corinne Ambrosi, the OCME's 20
deputy chief medical examiner for Queens County, testified at 21
trial regarding Somaipersaud's death. She explained that the 22
OCME generally performs autopsies "where people died in 23
unexpected circumstances, unnatural deaths, unexpected deaths. 24
Those come to the attention of the medical examiner." Trial Tr. 25
4655:18-20. Ambrosi had previously testified as an expert 26
witness on cause and manner of death 106 times. She testified 27
that she did not perform or participate in Somaipersaud's 28
autopsy, which was conducted by Dr. Heda Jindrak, who at the time 29
of trial was no longer employed by the OCME. Ambrosi described 30
29

-- 29 of 63 --

at length the results of toxicology tests ordered by Jindrak, 1
which informed the autopsy report. These tests were performed by 2
technicians at the OCME's main office in Manhattan. Ambrosi 3
explained that the tests showed that Somaipersaud had elevated 4
levels of alcohol as well as chlorpromazine, which is sometimes 5
used as an antipsychotic drug. She offered her own opinion that 6
the level of alcohol revealed by the tests would not alone have 7
been enough to have killed Somaipersaud. She testified that the 8
chlorpromazine levels were, however, significant -- more than she 9
would have expected to see from someone regularly taking the drug 10
as medication for a psychiatric illness. Ambrosi further 11
testified that the level of chlorpromazine detected in the 12
victim's body combined with the level of blood alcohol in the 13
body would have been enough to have killed the victim, and that 14
the combination had indeed been determined to be the cause of 15
Somaipersaud's death. 16
The toxicology report was admitted as an exhibit at 17
trial. It indicated .26 blood alcohol content and 1.9 milligrams 18
per kilogram chlorpromazine levels. Ambrosi explained that the 19
chlorpromazine levels appeared to be acute because the level in 20
the liver was 75.7 milligrams per kilogram, whereas in someone 21
who was prescribed the drug therapeutically it would not normally 22
be more than 10 milligrams per kilogram. Ambrosi further 23
explained that she did not recall ever having seen levels of 24
chlorpromazine in a person that high. She also testified as to 25
Jindrak's autopsy determination that the cause of death was 26
30

-- 30 of 63 --

"[a]cute intoxication by the ethynel or alcohol and 1
chlorpromazine," and that she agreed with that assessment. Trial 2
Tr. 4678:20-21. "[H]ypertensive and arteriosclerotic 3
cardiovascular disease" were also contributing factors. Trial 4
Tr. 4679:2-3. 5
On cross-examination, Ambrosi confirmed that she had 6
not participated in the autopsy. Her testimony was based on her 7
review of the case file before testifying. 8
2. Analysis. To resolve this case we must determine 9
whether, under the circumstances, the autopsy report (including 10
the toxicology report) was prepared with the primary purpose of 11
creating a record for use at a later criminal trial. 7 As we 12
7 It is worth noting that courts throughout the country
have applied various approaches and reached differing conclusions
when considering Confrontation Clause challenges to the
introduction of autopsy reports. Compare United States v. Moore,
651 F.3d 30, 73 (D.C. Cir. 2011)(concluding that Chief Medical
Examiner's surrogate testimony on autopsy reports prepared by
others violated the Confrontation Clause where law enforcement
officers observed the autopsies and participated in the creation
of the reports -- circumstances that "would have signaled to the
medical examiner that the autopsy might bear on a criminal
investigation" -- and each autopsy "found the manner of death to
be a homicide caused by gunshot wounds"), with State v. Locklear,
363 N.C. 438, 452, 681 S.E.2d 293, 305 (2009)("Thus, when the
State seeks to introduce [autopsy reports], absent a showing that
the analysts are unavailable to testify at trial and that
petitioner had a prior opportunity to cross-examine them such
evidence is inadmissible under Crawford."(quotation marks,
citation, and brackets omitted)).
There is also academic debate on the subject. Compare
Zabrycki, supra, cited by the Supreme Court in both Melendez-Diaz
and Williams, in which the author proposed a definition of
testimonial similar to that endorsed by the Williams plurality,
proposing that "out-of-court statements are testimonial and thus
require confrontation if they are produced by, or with the
involvement of, adversarial government officials responsible for
31

-- 31 of 63 --

explained in United States v. Burden, 600 F.3d 204 (2d Cir. 1
2010), the examples of testimonial statements outlined in 2
Crawford, are no "more than a set of guideposts [for] courts [to] 3
work through, case-by-case . . . . [N]o court can say whether a 4
particular kind of statement is testimonial until it has 5
considered that kind of statement in an actual case." Id. at 6
224. 7
Key to determining the resolution of the case before us 8
is the particular relationship between the OCME and law 9
enforcement both generally and in this particular case. While 10
the OCME is an independent agency, 8 the police are required to 11
notify it when someone has died "from criminal violence, by 12
investigating and prosecuting crime," id. at 1118, but arguing
that medical examiners are "public health officials," rather than
law enforcement officers, and therefore, unless the medical
examiner "writes an autopsy report in response to police
interrogation," the report is non-testimonial, id. at 1128-29,
with Professor Richard Friedman, who argued in a petition for
writ of certiorari from a decision of the Supreme Court of Ohio,
State v. Craig, 110 Ohio St. 3d 306, 853 N.E.2d 621 (2006), cert.
denied, 549 U.S. 1255 (2007), that while "[t]here are, of course,
situations in which coroners write autopsy reports without
anticipation that they will likely be used in forensic
proceedings, and for other purposes . . . ," id. at *13-*14,
"where, as here, the coroner concludes that the decedent was
clearly a victim of homicide, there can be no genuine doubt that
a reasonable person in the position of the coroner understands
that there will be forensic proceedings and intends that the
report will be used in them," id. at *14, and they are therefore
testimonial.
8 See People v. Freycinet, 11 N.Y.3d 38, 42, 862 N.Y.S.2d
450, 453 (2008) (concluding than an autopsy report was not
testimonial, in part because the OCME is "by law, independent of
and not subject to the control of the office of the prosecutor"
and "not a law enforcement agency" (internal quotation marks
omitted)); People v. Hall, 84 A.D.3d 79, 83, 923 N.Y.S.2d 428,
431 (1st Dep't 2011).
32

-- 32 of 63 --

accident, by suicide, suddenly when in apparent health, when 1
unattended by a physician, in a correctional facility or in any 2
suspicious or unusual manner or where an application is made 3
pursuant to law for a permit to cremate a body of a person." 4
N.Y.C. Charter § 557(a), (f)(1); see also N.Y.C. Admin Code § 17- 5
202. The OCME is required to "take charge of the dead body" in 6
such instances, and must "fully investigate the essential facts 7
concerning the circumstances of the death" and interview 8
witnesses and collect evidence that "may be useful in 9
establishing the cause of death." N.Y.C. Admin. Code § 17- 10
202(a). 11
It is the OCME that determines whether to conduct an 12
autopsy based on whether "it may be concluded with reasonable 13
certainty that death occurred from natural causes or obvious 14
traumatic injury[.]" N.Y.C. Admin Code § 17-203. Whenever an 15
autopsy is deemed necessary, it "shall include toxicologic, 16
histologic, microbiologic and serologic examinations," the 17
results of which must be written down and filed with the OCME, 18
regardless of whether any further investigation results. Id. 19
"Such medical examiner, medical investigator or lay medical 20
investigator shall take possession of any portable objects which, 21
in his or her opinion, may be useful in establishing the cause of 22
death, and except as provided in subdivision c hereof [relating 23
33

-- 33 of 63 --

to suicide notes], shall deliver them to the police department." 9
1
Id. § 202(a). 2
Because the defendants failed to object to the 3
introduction of Ambrosi's testimony during trial, there is scant 4
record of the circumstances under which Jindrak produced her 5
autopsy report. In its written ruling on the defendants' 6
objections to the testimony of Dr. Vivikand Brijmohan -- whose 7
testimony on the cause of death of another victim, Sewnanan, is 8
9 We similarly explained in United States v. Rosa, 11 F.3d
315 (2d Cir. 1993), that
the Medical Examiner's Office is required
simply to investigate unnatural deaths; it
refers a death bearing any indicium of
criminality to the appropriate district
attorney and has no responsibility for
enforcing any laws. The chief medical
examiner and his assistants are required to
be physicians and pathologists; there is no
requirement in the Charter that they be
attorneys or that any employees of the office
have any law enforcement training. Even when
a matter is referred to the district attorney
because of an indication of criminality, the
Charter does not give the medical examiner
any responsibility for collecting evidence or
determining the identity of the perpetrator.
Further, though law enforcement activities
are typically accusatory and adversarial in
nature, a medical examiner's reported
observations as to a body's condition are
normally made as part of an independent
effort to determine a cause of death.
Indeed, "a medical examiner, although often
called a forensic expert, bears more
similarity to a treating physician than he
does to one who is merely rendering an
opinion for use in the trial of a case."
Id. at 332 (2d Cir. 1993) (citation omitted) (quoting Manocchio
v. Moran, 919 F.2d 770, 777 (1st Cir. 1990) (internal quotation
marks omitted)).
34

-- 34 of 63 --

discussed below -- the district court noted that "Jindrak 1
conducted an internal and external examination as well as a 2
toxicology analysis," and that Ambrosi described these steps as 3
"routine." James II, 2007 WL 2702449, at *2 n.1. The defendants 4
do not argue in either of their briefs, or in the supplemental 5
letter briefs submitted in response to the request by this Court 6
after Williams, that Somaipersaud's autopsy was anything other 7
than routine –- there is no suggestion that Jindrak or anyone 8
else involved in this autopsy process suspected that Somaipersaud 9
had been murdered and that the medical examiner's report would be 10
used at a criminal trial. Ambrosi testified that causes of death 11
are often undetermined in cases like this because it could have 12
been a recreational drug overdose or a suicide. The autopsy 13
report itself refers to the cause of death as "undetermined" and 14
attributes it both to "acute mixed intoxication with alcohol and 15
chlorpromazine" combined with "hypertensive and arteriosclerotic 16
cardiovascular disease." 17
The autopsy was completed on January 24, 1998, and the 18
report was signed June 16, 1998, substantially before any 19
criminal investigation into Somaipersaud's death had begun. 20
During the course of Ambrosi's lengthy trial testimony, neither 21
the government nor defense counsel elicited any information 22
suggesting that law enforcement was ever notified that 23
Somaipersaud's death was suspicious, or that any medical examiner 24
expected a criminal investigation to result from it. Indeed, 25
35

-- 35 of 63 --

there is reason to believe that none is pursued in the case of 1
most autopsies. 10
2
In short, the autopsy report was not testimonial 3
because it was not prepared primarily to create a record for use 4
at a criminal trial. 11 There was therefore no error, much less 5
plain error, in admitting the autopsy report into evidence, or 6
allowing Ambrosi to testify regarding it, although she did not 7
conduct it herself. 8
D. Testimony Related to Sewnanan's Death 9
In contrast to Ambrosi's testimony relating to 10
Somaipersaud's death, the defendants vigorously objected to Dr. 11
Vivikand Brijmohan's testimony as to a toxicology test relating 12
10 The OCME performs an average of 5,500 autopsies each
year, and in 2010, for example, 533 New York City residents'
causes of death were listed as homicides. See OCME, General
Information Booklet, http://www.nyc.gov/html/ocme/downloads/pdf/
General%20Information/OCME%20General%20Information%20Booklet.pdf
(last visited Mar. 22, 2013); Deaths and Death Rates by Selected
Causes New York City - 2010, http://www.health.ny.gov/statistics/
vital_statistics/2010/table33c.htm (last visited Mar. 22, 2013).
This suggests, although the data is of course insufficient to
demonstrate conclusively, that something in the order of ten
percent of deaths investigated by the OCME lead to criminal
investigations. The statistics from Los Angeles tell a similar
story: "In 2004, the Los Angeles Medical Examiner's office
conducted 4,180 complete autopsies out of 9,465 cases taken by
the office. Of the 9,465 total cases, 1,121 died from homicide,
709 from suicide, 3,090 from accidents, and 4,256 from natural
causes." Zabrycki, 96 Cal. L. Rev. at 1125.
11 No contrary conclusion is warranted by United States v.
Ignasiak, 667 F.3d 1217 (11th Cir. 2012). Although that case
holds that "[f]orensic reports constitute testimonial evidence,"
id. at 1230, the decision was based in part on the fact that the
Florida Medical Examiner's Office "was created and exists within
the Department of Law Enforcement," id. at 1231. Here, the OCME
is a wholly independent office.
36

-- 36 of 63 --

to the death of Hardeo Sewnanan, which was based on forensic 1
testing conducted by Dr. Leslie Mootoo. When analyzing error 2
that the defendants did raise at trial, we review for 3
harmlessness, which requires us to ask whether we are satisfied 4
"upon a review of the entire record . . . beyond a reasonable 5
doubt that the error complained of . . . did not contribute to 6
the verdict obtained." United States v. Lee, 549 F.3d 84, 90 (2d 7
Cir. 2008) (internal quotation marks omitted). "In other words, 8
to find the [error] harmless we must be able to conclude that the 9
evidence would have been unimportant in relation to everything 10
else the jury considered on the issue in question, as revealed in 11
the record." Id. (internal quotation marks and citations 12
omitted). We consider "(1) the overall strength of the 13
prosecution's case; (2) the prosecutor's conduct with respect to 14
the improperly admitted evidence; (3) the importance of the 15
wrongly admitted testimony; (4) whether such evidence was 16
cumulative of other properly admitted evidence." Id. (internal 17
quotation marks omitted). 18
1. Testimony at trial. Brijmohan testified regarding 19
Sewnanan's cause of death, in part based on toxicology tests 20
conducted by Mootoo, who had died between his performance of the 21
test and the time of trial. Brijmohan was the chief forensic 22
pathologist for the region of Guyana where Sewnanan's death 23
occurred. Brijmohan testified that he would normally be informed 24
of the need for an autopsy by a coroner affiliated with the 25
police department. Typically, autopsies in Guyana are performed 26
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when there are "unnatural deaths," i.e., "accidents, murders, 1
strangulations, drowning, . . . and of course including cases of 2
poisoning." Trial Tr. 3266:12-17. Brijmohan explained that in 3
conducting Sewnanan's internal examination, he discovered 4
"extensive submucosal hemorrhages," which "is not definitely a 5
normal finding. Whenever such a finding occurs, one immediately 6
thinks of extraneous ingestion and one thinks definitely of 7
poisoning." Trial Tr. 3265:13-14, 22-24. 8
Brijmohan then sent the post-mortem contents of 9
Sewnanan's stomach for toxicology testing. He testified that the 10
contents were taken by a police officer to the Guyanese police 11
laboratory, the stamp of which appeared on the resultant 12
toxicology report. Brijmohan further testified that he did not 13
know who actually performed the toxicology test. While Dr. 14
Mootoo may have played some role in the testing, Brijmohan was 15
apparently not sure whether Mootoo had conducted the testing 16
himself. 17
Brijmohan testified, based on "the scientific evidence 18
of my examination and the toxicology report, that the cause of 19
death of Hardeo Sewnanan was the consequence of the ingestion of 20
a toxic substance with ammoniacal compound." Trial Tr. 3299:7- 21
10. Brijmohan said it was probably hydrocyanic acid, or 22
potassium and sodium cyanide, in which case there would have been 23
no symptoms prior to death. Brijmohan further testified that the 24
toxicology report indicated death resulted from ammonia poisoning 25
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and, over continued objections, explained that the toxicology 1
report on Sewnanan's stomach indicated ammonia poisoning. 12
2
On cross-examination, Brijmohan was questioned 3
extensively as to whether the ammonia found in Sewnanan's body 4
could have been naturally occurring, inasmuch as ammonia often 5
occurs naturally in the human body after death. Brijmohan 6
testified that his knowledge that it was commercially produced 7
was based on the laboratory report. His conclusion that Sewnanan 8
died of commercially-produced ammonia "was based essentially on 9
my observation of the stomach, with the hemorrhages, the 10
laboratory reports that was brought to my attention." Trial Tr. 11
3382:23-25. 12
2. The district court's decision. The district court 13
rejected the defendants' argument that allowing introduction of 14
the toxicology report into evidence would violate the 15
Confrontation Clause. See Mem. & Order, United States v. James, 16
2007 WL 2792449, at *1, 2007 U.S. Dist. LEXIS 39585, at *3-*4 17
(E.D.N.Y. May 31, 2007). The district court relied on Feliz in 18
allowing introduction of the report, but its decision preceded 19
the Supreme Court decisions in Bullcoming, Melendez-Diaz, and 20
Williams. 21
12 Over repeated objections, Brijmohan testified that test
results from two bottles sent to the police lab, one of which
tested positive for ammonia, informed his analysis. The record
does not conclusively reveal whether the contents of the bottles
derived from the victim's body – though that appears the logical
inference.
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The district court did base its decision, however, in 1
large part on its conclusion that the toxicology report was not a 2
"'chemist's' report created by 'law enforcement.'" Id. at *2. 3
While acknowledging that the defendants had described the "close 4
proximity" between the medical examiner's office and the Guyanese 5
police station, and the cooperation between those two agencies, 6
the court concluded that "the critical inquiry is not the 7
physical proximity of two agencies, or their level of 8
cooperation, but rather whether the agency that created the 9
report can be characterized by its duties and purposes as law 10
enforcement." Id. The district court cited Rosa's dictum to the 11
effect that the OCME is not a law enforcement agency, and then, 12
noting that the Guyanese medical examiner operates as part of the 13
Guyanese Ministry of Health and Georgetown Hospital, observed 14
that "[t]here is no indication that Dr. Mootoo was employed by a 15
law enforcement agency or was responsible for enforcing any 16
laws. . . . [I]t appears that the Guyanese Office of Forensic 17
Medicine, for which Drs. Brijmohan and Mootoo worked, is directly 18
analogous to the [OCME]." Id. 19
The court therefore concluded that the forensic records 20
did not fall under the "law enforcement" exception to the 21
business records rule that permits admission of the documentary 22
evidence despite the absence of the document's preparer. Id. 23
Furthermore, the court noted that a toxicology report is "not 24
separate and distinct" from the autopsy report, which bolstered 25
its admissibility as a business record. Id. 26
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3. Analysis. First, in light of the foregoing 1
analysis, it is apparent to us that the district court's 2
rationale for allowing the forensic report into evidence is of 3
questionable validity because of the doubt subsequent Supreme 4
Court jurisprudence has cast on Feliz, on which the district 5
court relied. Nevertheless, we think the district court's 6
conclusion sound. 7
There is no indication in Brijmohan's testimony or 8
elsewhere in the record that a criminal investigation was 9
contemplated during the inquiry into the cause of Sewnanan's 10
death. 13 For example, Brijmohan testified that "the rate of 11
poisons taken is pretty high . . . within the East Indian 12
community," Trial Tr. 3253:15-17, suggesting accidental ingestion 13
or suicide rather than homicide. 14 During the course of the 14
autopsy, Brijmohan observed symptoms consistent with poisoning, 15
including congestion in the lungs and hemorrhaging in the 16
stomach, and ordered toxicology tests on that basis. Brijmohan 17
13 We note, as did the district court, that the police were
unquestionably involved in the Guyanese autopsy process,
including, for example, transporting forensic samples for
testing. As five Justices in Williams made clear, however, the
involvement of "adversarial officials" in an investigation is not
dispositive as to whether or not a statement is testimonial. In
this case, it appears that was simply the routine procedure
employed by the Guyanese medical examiner in investigating all
unnatural deaths, and does not indicate that a criminal
investigation was contemplated.
14 Brijmohan was interviewed by a publication called
"Hinduism Today" regarding the high rate of suicides,
particularly among East Indian males, in Guyana, which he
attributed to "cultural problem[s]" and alcoholism. Trial Tr.
3375:15-3377:12.
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further noted that there were other potential "natural" causes of 1
the types of symptoms that led him to suspect poisoning in 2
general -- not murder in particular -- including alcoholism. In 3
short, we see nothing to indicate that the toxicology report was 4
completed primarily to generate evidence for use at a subsequent 5
criminal trial. We conclude that the toxicology report was 6
nontestimonial, and the district court therefore did not err in 7
allowing its introduction without requiring confrontation of the 8
individual who prepared it. 9
As Justice Breyer pointed out in Williams, it is still 10
unsettled under the Court's recent Confrontation Clause 11
jurisprudence whether there is a "logical stopping place between 12
requiring the prosecution to call as a witness one of the 13
laboratory experts who worked on the matter and requiring the 14
prosecution to call all of the laboratory experts who did so." 15
Williams, 132 S. Ct. at 2246 (Breyer, J. concurring). While 16
Brijmohan's testimony implicates that question -- he suggested 17
that someone other than Mootoo may also have participated in the 18
preparation of the toxicology report -- we find it unnecessary to 19
answer it in light of our conclusions as to the nature of the 20
report. To the extent that question implicates the evidentiary 21
rules regarding "basis evidence," we also decline to decide 22
whether the toxicology test was properly offered as such here, 23
where the testifying expert had personal involvement in the 24
autopsy process, and he himself ordered the toxicology tests at 25
issue. 26
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II. Exclusion of the Government's Prior Jury Argument 1
The defendants contend that the district court abused 2
its discretion in denying their request to introduce an excerpt 3
of the prosecutor's rebuttal summation in the trial of Betty 4
Peter, a cooperating witness, which largely blamed her, and not 5
the defendants in the instant case, for Vernon Peter's murder. 6
"The defense is allowed to introduce a prosecutor's statement 7
from a prior trial when: (1) the prosecution offered an 8
inconsistent assertion of fact at the prior trial; and (2) the 9
prosecution can offer no 'innocent' explanation for the 10
contradiction." United States v. Orena, 32 F.3d 704, 716 (2d 11
Cir. 1994)(citations omitted); see also Fed. R. Evid. 801(d)(2); 12
United States v. McKeon, 738 F.2d 26, 32-33 (2d Cir. 1984). 13
In McKeon, upon which the defendants principally rely, 14
the court's reasoning was based in large part upon the fact that 15
it was the same defendant on trial in a subsequent proceeding. 16
McKeon, 738 F.2d at 31 (noting the relationship to admissions of 17
a party-opponent in civil proceedings). In any event, McKeon 18
requires that, in order to admit such evidence, the district 19
court must "determine by a preponderance of the evidence that the 20
inference the [party] seeks to draw from the inconsistency is a 21
fair one and that an innocent explanation for the inconsistency 22
does not exist. Where the evidence is in equipoise or the 23
preponderance favors an innocent explanation, the . . . statement 24
should be excluded." Id. at 33. Here, the government explained 25
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that the change in its view towards Peter resulted from a series 1
of proffer sessions after her conviction on various charges 2
including mail fraud, money laundering, and obstruction of 3
justice. The information gleaned from these sessions and 4
corroborated by other witnesses led the government to a different 5
view as to her culpability for Vernon Peter's murder. 6
We conclude that the district court did not commit 7
clear error in deciding by a preponderance of the evidence that 8
there was an "innocent explanation" for the inconsistency between 9
the government's stated position at the trial of Peter and that 10
in the instant case. The district court therefore did not abuse 11
its discretion in excluding the prior statement. Cf. United 12
States v. GAF Corp., 928 F.2d 1253, 1261 n.3 (2d Cir. 1991) 13
(reversing and finding error in the exclusion of a prior bill of 14
particulars where the "the inconsistency is plain, [and] the 15
inferences are clear," and where the government's only 16
explanation is "that it no longer believes" that the same 17
evidence demonstrates what it had previously argued it did). 18
Finally, the defendants' argument that a post-trial 19
letter from a cooperating witness implicating Betty Peter in her 20
husband's murder somehow affects the propriety of the district 21
court's ruling is misplaced. The letter was not before the 22
district court at the time it made the ruling. It therefore does 23
not suggest either that the district court's factual finding as 24
to the government's explanation was clearly erroneous, or that it 25
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abused its discretion in excluding the prosecution's rebuttal 1
statement. 2
III. Limitation on Cross-Examination 3
The defendants argue that the district court abused its 4
discretion in curtailing their impeachment of Betty Peter with 5
prior inconsistent statements concerning (1) a conversation she 6
had with a member of Sewnanan's family 15 and (2) her 7
understanding of the term "double indemnity." In particular, 8
Peter testified at trial that she had not spoken to Patricia 9
Sewnanan after Hardeo's death, and that she did not know the 10
meaning of the term "double indemnity." 11
We review for abuse of discretion a district court's 12
decision to preclude evidence offered to impeach a witness. See 13
United States v. Ramirez, 609 F.3d 495, 499 (2d Cir. 2010). A 14
district court "is 'accorded broad discretion in controlling the 15
scope and extent of cross-examination.'" United States v. 16
Caracappa, 614 F.3d 30, 42 (2d Cir. 2010) (quoting United States 17
v. Wilkerson, 361 F.3d 717, 734 (2d Cir.), cert. denied, 543 U.S. 18
908 (2004)); accord, e.g., United States v. Whitten, 610 F.3d 19
168, 182 (2d Cir. 2010). Therefore, a "district court may impose 20
'reasonable limits' on cross-examination to protect against, 21
e.g., harassment, prejudice, confusion, and waste." United 22
States v. Cedeno, 644 F.3d 79, 82 (2d Cir. 2011) (quoting 23
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). "In the 24
15 Precisely what her relationship to Hardeo Sewnanan was
is not reflected in the record.
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exercise of discretion, a district court should consider the need 1
to 'ascertain [the] truth,' 'avoid needless consumption of time,' 2
and 'protect witnesses from harassment or undue embarrassment.'" 3
Whitten, 610 F.3d at 182-83 (quoting Fed. R. Evid. 611(a)). 4
A district court should afford "wide latitude to a 5
defendant in a criminal case to cross-examine government 6
witnesses," Cedeno, 644 F.3d at 82 (internal quotation marks 7
omitted), because the Confrontation Clause gives a defendant the 8
right not only to cross-examination, but to effective cross- 9
examination, see United States v. Figueroa, 548 F.3d 222, 227 (2d 10
Cir. 2008). But "[i]t does not follow, of course, that the 11
Confrontation Clause prevents a trial judge from imposing any 12
limits on defense counsel's inquiry [in cross-examining] a 13
prosecution witness." Figueroa, 548 F.3d at 227 (quoting Van 14
Arsdall, 475 U.S. at 679) (emphasis added). 15
The defense sought to introduce evidence that the 16
Sewnanan family bribed the medical examiner to change Hardeo 17
Sewnanan's cause of death to poisoning, rather than disease, so 18
that they could collect on the insurance policy's double 19
indemnity clause. The district court excluded evidence 20
supporting this theory, however, which the defendants do not 21
challenge. Peter's denial that she spoke with Patricia Sewnanan, 22
a member of Sewnanan's family, was therefore irrelevant, because 23
the subject of her discussion was not to be introduced in any 24
event. Moreover, because the subject of Peter's discussion with 25
Sewnanan's family member would not have been in front of the 26
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jury, her inconsistency on this collateral matter (whether or not 1
she spoke with the family member) was unlikely to influence the 2
jury's assessment of her credibility, because they were already 3
aware that she was a convicted felon who had begun cooperating 4
with the government. 5
For similar reasons, impeachment of Peter concerning 6
her understanding of the term "double indemnity" would have had 7
little probative value. In any event, the cross-examination did 8
indeed elicit testimony from Peter in which she explained that 9
she received $400,000 on her husband's $200,000 life insurance 10
policy because "when anybody died accidentally or something, they 11
pay double." Eliciting from Peter that she had been inconsistent 12
in recognizing the term "double indemnity," when it was clear she 13
understood the concept, would therefore also not have affected 14
the jury's assessment of her credibility. 15
IV. Motion to Sever 16
Defendant James contends that the district court's 17
denial of his motions for severance of his trial from that of his 18
co-defendant Mallay deprived him of a fair trial. "[T]he court 19
may . . . sever the defendants' trials . . . [if] consolidation 20
for trial appears to prejudice a defendant." Fed. R. Crim. P. 21
14(a). "Considerations of efficiency and consistency militate in 22
favor of trying jointly defendants who were indicted together, 23
[and] [j]oint trials are often particularly appropriate in 24
circumstances where the defendants are charged with participating 25
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in the same criminal conspiracy . . . ." United States v. 1
Spinelli, 352 F.3d 48, 55 (2d Cir. 2003) (citations omitted). 2
"The decision to sever a joint trial of federal defendants is 3
committed to the sound discretion of the trial judge[, and is 4
c]onsidered virtually unreviewable." United States v. Diaz, 176 5
F.3d 52, 102 (2d Cir. 1999) (internal quotation marks and 6
citations omitted). "[T]o compel reversal, the defendant has the 7
heavy burden to show prejudice so severe that his conviction 8
constituted a miscarriage of justice." United States v. 9
Ferguson, 676 F.3d 260, 286-87 (2d Cir. 2011) (internal quotation 10
marks omitted). 11
James argues that jointly trying him with Mallay, who 12
was also charged with two murders with which James was not 13
charged –- those of Vernon Peter and Alfred Gobin –- caused him 14
prejudice. That evidence, however, was relevant to the 15
racketeering charges against James to prove the formation, 16
existence, and nature of the racketeering enterprise, which 17
involved the murder of individuals to collect on their insurance 18
policies, as well as to show the pattern of racketeering 19
activity. See Diaz, 176 F.3d at 103; United States v. Stewart, 20
590 F.3d 93, 123-24 (2d Cir. 2009) ("[T]he fact that testimony 21
against a codefendant may be harmful is not a ground for 22
severance if that testimony would also be admissible against the 23
moving defendant tried separately." (internal quotation marks 24
omitted)). 25
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James's argument that there was an irreconcilable 1
conflict between him and Mallay based on Mallay's initial 2
opposition to the introduction of evidence regarding a plot to 3
bribe the Guyanese medical examiner is also without merit. 4
Mallay later joined James in seeking to introduce that evidence. 5
And in any case, "[t]o obtain a severance on the ground of 6
antagonistic defenses, a defendant must show that the conflict is 7
so irreconcilable that acceptance of one defendant's defense 8
requires that the testimony offered on behalf of a codefendant be 9
disbelieved." United States v. Benitez, 920 F.2d 1080, 1085-86 10
(2d Cir. 1990) (internal quotation marks and citation omitted). 11
That is not the case here. 12
V. Refusal to Suppress Recorded Statements 13
The defendants object to the denial of a motion to 14
suppress statements made by James to Derick Hassan, a government 15
informant wearing a recording device, concerning a plot to murder 16
John Narinesingh. The defendants argue that because James was 17
already subject to a sealed indictment at the time those 18
statements were recorded, doing so violated his Sixth Amendment 19
right to counsel. 20
The defendants waived this argument by failing to 21
object to the magistrate judge's recommendation that the motion 22
to suppress be denied, which was adopted by the district court. 23
United States v. James, 415 F. Supp. 2d 132, 137 (E.D.N.Y. 2006). 24
See also Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, 25
49

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Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 1
2010) ("[A] party waives appellate review of a decision in a 2
magistrate judge's Report and Recommendation if the party fails 3
to file timely objections designating the particular issue."). 4
Even so, as Magistrate Judge Pollack explained at 5
length, the Sixth Amendment right is "offense specific," and the 6
statements James made to the informant were not used to support 7
the charge for which he had been indicted at the time he made 8
those statements -- that charge was subsequently dropped. James, 9
415 F. Supp. 2d at 158-61. Therefore, the Sixth Amendment did 10
not bar their introduction into evidence. 11
VI. Admission of Recorded Statements against Mallay 12
Defendant Mallay contends that the conversation between 13
James and Hassan, recorded by Hassan -- also referred to in the 14
previous section -- should not have been admitted against him 15
because that conversation indicates Mallay's withdrawal from the 16
conspiracy, and thus is not admissible as a co-conspirator 17
statement. "A statement . . . is not hearsay if . . . [t]he 18
statement is offered against an opposing party and . . . was made 19
by the party’s coconspirator during and in furtherance of the 20
conspiracy." Fed. R. Evid. 801(d)(2)(E). "To admit an out-of- 21
court declaration under this rule, the district court must find 22
by a preponderance of the evidence '(a) that there was a 23
conspiracy, (b) that its members included the declarant and the 24
party against whom the statement is offered, and (c) that the 25
50

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statement was made during the course of and in furtherance of the 1
conspiracy.'" United States v. Farhane, 634 F.3d 127, 161 (2d 2
Cir. 2011) (quoting United States v. Al-Moayad, 545 F.3d 139, 173 3
(2d Cir. 2008)). These three factual predicates must be 4
determined by the district court by "a preponderance of the 5
evidence." In re Terrorist Bombings of U.S. Embassies in E. 6
Africa, 552 F.3d 93, 137 (2d Cir. 2008) (citing Fed. R. Evid. 7
104(a)). We review the district court's findings as to each for 8
clear error. See id. 9
First, the conspiracy must be proven by a preponderance 10
of the evidence to involve both the declarant and the defendant. 11
The district court "may properly find the existence of a criminal 12
conspiracy where the evidence is sufficient to establish, by a 13
preponderance of the evidence, that 'the . . . alleged 14
coconspirators entered into a joint enterprise with consciousness 15
of its general nature and extent.'" In re Terrorist Bombings, 16
552 F.3d at 137-38. Although Rule 801(d)(2)(E) "'requires that 17
both the declarant and the party against whom the statement is 18
offered be members of the conspiracy, there is no requirement 19
that the person to whom the statement is made also be a member.'" 20
Id. at 139 (quoting United States v. Beech-Nut Nutrition Corp., 21
871 F.2d 1181, 1199 (2d Cir. 1989)). 22
Second, to be admissible, the statement must be made 23
"in furtherance of the conspiracy." In general, "'the statements 24
must in some way have been designed to promote or facilitate 25
achievement of the goals of the ongoing conspiracy[.]'" United 26
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States v. Diaz, 176 F.3d at 85 (quoting United States v. Tracy, 1
12 F.3d 1186, 1196 (2d Cir. 1993)). The ways in which a 2
statement might "promote or facilitate" the conspiracy include, 3
among others, "seeking to induce a coconspirator's assistance," 4
id.; "informing coconspirators as to the progress or status of 5
the conspiracy," id.; and prompting a non-coconspirator to 6
respond in some way that "promotes or facilitates the carrying 7
out of a criminal activity," Tracy, 12 F.3d at 1196. See 8
generally, e.g., In re Terrorist Bombings, 552 F.3d at 139; Diaz, 9
176 F.3d at 85; United States v. Gigante, 166 F.3d 75, 82 (2d 10
Cir. 1999). "Because what constitutes a statement that is in 11
furtherance of a conspiracy is essentially a question of fact, we 12
will reverse a decision to admit co-conspirator statements only 13
if it is clearly erroneous." In re Terrorist Bombings, 552 F.3d 14
at 139 (internal quotation marks omitted). 15
Mallay contends that at the time of James and Hassan's 16
conversation regarding the possible murder of Narinesingh he was 17
no longer part of the conspiracy. As proof, James notes the 18
indication on the tape recorded statement that he is no longer 19
talking to Mallay, and that the two have had a falling out. That 20
members of a conspiracy have had a disagreement or a falling out 21
is not, however, sufficient to establish withdrawal from the 22
conspiracy. See, e.g., United States v. Jackson, 335 F.3d 170, 23
182 (2d Cir. 2003) ("To withdraw from a conspiracy, a person must 24
take some affirmative action either by making a clean breast to 25
the authorities or communicating the abandonment in a manner 26
52

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reasonably calculated to reach co-conspirators." (internal 1
quotation marks and citations omitted)); United States v. Spero, 2
331 F.3d 57, 60 (2d Cir. 2003) ("[A conspiracy] is presumed to 3
exist until there has been an affirmative showing that it has 4
been terminated," and its members "continue to be conspirators 5
until there has been an affirmative showing that they have 6
withdrawn." (internal quotation marks omitted)). "An internal 7
dispute among members of a conspiracy can itself be compelling 8
evidence that the conspiracy is ongoing and that the rivals are 9
members of it." United States v. Amato, 15 F.3d 230, 234 (2d 10
Cir. 1994). Hassan testified that the reason Mallay and James 11
were not talking to one another at the time was not that Mallay 12
had withdrawn from the conspiracy, but rather that Mallay had 13
just undergone heart surgery, a fact stipulated to by the 14
parties. Shortly before his surgery, Mallay procured insurance 15
policies on two persons for more than $2 million, indicating that 16
he continued to participate in the conspiracy at the time of the 17
recorded conversation between Hassan and James. We therefore 18
find no error in the admission of this recording against Mallay. 19
VII. Denial of New Trial Motion 20
The defendants argue that a post-trial letter from 21
Camuldeen Allie, a cooperating witness, alleging prosecutorial 22
misconduct required a new trial, or at least an evidentiary 23
hearing, and that the district court erred in not granting their 24
requests for either. 25
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We review the denial of a Rule 33 motion for a new 1
trial for abuse of discretion. See United States v. McCourty, 2
562 F.3d 458, 475 (2d Cir. 2009). Federal Rule of Criminal 3
Procedure 33(a) provides that "[u]pon the defendant's motion, the 4
court may vacate any judgment and grant a new trial if the 5
interest of justice so requires." In deciding a Rule 33 motion, 6
"[t]he test is whether it would be a manifest injustice to let 7
the guilty verdict stand." United States v. Lin Guang, 511 F.3d 8
110, 119 (2d Cir. 2007) (internal quotation marks omitted). "For 9
a trial judge to grant a Rule 33 motion, he must harbor a real 10
concern that an innocent person may have been convicted." Id. 11
(internal quotation marks omitted). To merit relief based on a 12
claim of newly discovered evidence, the burden is on the 13
defendant to satisfy five elements: (1) that the evidence is 14
"newly discovered after trial"; (2) that "facts are alleged from 15
which the court can infer due diligence on the part of the movant 16
to obtain the evidence"; (3) that "the evidence is material"; (4) 17
that the evidence "is not merely cumulative or impeaching"; and 18
(5) that "the evidence would likely result in an acquittal." 19
United States v. Owen, 500 F.3d 83, 88 (2d Cir. 2007) (internal 20
citations omitted). 21
The district court concluded that the allegations 22
contained in Allie's letter –- that an Assistant United States 23
Attorney had coerced him into testifying –- were "a fabrication." 24
James I, 2009 WL 763612, at *7, 2009 U.S. Dist. LEXIS 23706, at 25
*21. The court found that the AUSA Allie accused of coercing him 26
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had not yet joined the U.S. Attorney's Office at the time when 1
Allie alleges he was coerced, that Allie had testified that no 2
members of the prosecution team in this case were present during 3
the negotiations that led to his cooperation, and that Allie was 4
represented by counsel when he decided to cooperate. Id., 2009 5
U.S. Dist. LEXIS 23706, at *20-*21. Furthermore, in his letter, 6
Allie does not ever disclaim his testimony, or suggest it was 7
anything but truthful. Id. at *8, 2009 U.S. Dist. LEXIS 23706, 8
at *21. Finally, the defendants knew that Allie had a motive to 9
cooperate with the government because it was elicited on cross- 10
examination that the government might let the state parole board 11
know of his cooperation. Id., 2009 U.S. Dist. LEXIS 23706, at 12
*21-*22. 13
While it may be that the contents of the letter provide 14
a reason to doubt Allie's credibility, "a new trial is not 15
required when the suppressed impeachment evidence merely 16
furnishes an additional basis on which to impeach a witness whose 17
credibility has already been shown to be questionable." United 18
States v. Parkes, 497 F.3d 220, 233 (2d Cir. 2007) (internal 19
quotation marks omitted). In any event, there is no "reasonable 20
probability" that the outcome of the defendants' trial would have 21
been different had the contents of Allie's letter been disclosed, 22
even if believed. See In re Terrorist Bombings of U.S. Embassies 23
in E. Africa, 552 F.3d at 146. 24
25
55

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VIII. Cumulative Error 1
Finally, having concluded that there has been no error 2
in the defendants' trial, it follows that we must reject their 3
claim of cumulative error. "[That] doctrine finds no foothold in 4
th[ese] appeal[s]." United States v. Fell, 531 F.3d 197, 233 (2d 5
Cir. 2008) (internal quotation marks omitted). 6
CONCLUSION 7
For the foregoing reasons, we affirm the judgments of 8
the district court. 9
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1
Case # 09-2732-cr (L)
United States v. James
EATON, Judge, concurring:
Because of the unsettled state of the law, I agree that the admission into evidence of the
autopsy report prepared by Dr. Jindrak did not constitute plain error. United States v. Gamez,
577 F.3d 394, 400 (2d Cir. 2009) (“Typically, we will not find plain error ‘where the operative
legal question is unsettled.’”) (citations omitted). I respectfully part company with the majority,
however, on its conclusion that the autopsy report was “not testimonial” for purposes of the
Confrontation Clause.
The majority reads recent Supreme Court cases as holding that “a statement triggers the
protections of the Confrontation Clause when it is made with the primary purpose of creating a
record for use at a later criminal trial.” This formulation, however, appears to place too much
emphasis on future use in a criminal trial being the primary purpose for the creation of a
testimonial statement. I would not find that this “primary purpose” is the common thread in the
Supreme Court’s jurisprudence.1 Rather, I would find that a testimonial statement is one having
1 The Supreme Court’s use of the “criminal trial” language, while not entirely
consistent, tends toward the same idea. Compare Bullcoming v. New Mexico, 131 S. Ct. 2705,
2714 n.6 (2011) (quoting Davis’ “’potentially relevant to a later criminal prosecution’” language
in the context of a blood-alcohol test requested by the prosecutor), Michigan v. Bryant, 131 S.
Ct. 1143, 1148 (2011) (employing Davis’ “’potentially relevant to a later criminal prosecution’”
language in the context of a police interrogation), and Davis v. Washington, 547 U.S. 813, 822
(2006) (articulating the “potentially relevant to a later criminal prosecution” language in the
context of a 911 call), with Melendez–Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009)
(quoting Crawford’s “‘available for use at a later trial’” language in the context of a laboratory
report requested by the police), and Crawford v. Washington, 541 U.S. 36, 51–52 (2004) (listing
“available for use at a later trial” among the “[v]arious formulations” of the “core class” of
testimonial statements).

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an evidentiary purpose, declared in a solemn manner, and made under circumstances that would
lead a reasonable declarant to understand that it would be available for use prosecutorially.
The point of departure for this analysis is Crawford. As I read that case and those that
follow it, there are three key considerations for determining if a statement is testimonial. First,
“[t]estimony” is “a solemn declaration or affirmation made for the purpose of establishing or
proving some fact.”2 Crawford v. Washington, 541 U.S. 36, 51 (2004) (citation and internal
quotation marks omitted). Thus, at the time of its making, the statement must have an
“evidentiary purpose.” Bullcoming v. New Mexico, 131 S. Ct. 2705, 2717 (2011); Melendez–
Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009). In other words, to be testimonial the
declarant must make the statement to “prove past events.” Davis v. Washington, 547 U.S. 813,
822 (2006). Statements relating ongoing events made to achieve some other purpose, such as
receiving medical or police assistance, and forward-looking statements, such as those made in
furtherance of a conspiracy or to elicit inculpatory statements from others, lack the required
purpose. Michigan v. Bryant, 131 S. Ct. 1143, 1157 (2011) (statement made by a mortally
wounded victim in need of medical attention did not have an evidentiary purpose); Davis, 547
2 Interestingly, not only did “several early American authorities flatly reject[] any
special status for coroner statements,” the historical precursors of modern medical examiners’
reports, one of the cases cited in Crawford also stands for the proposition that evidence produced
by coroners’ investigations requires confrontation, even though the purpose of those
investigations was not a purely prosecutorial one. Crawford, 541 U.S. at 47 n.2 (citing State v.
Campbell, 30 S.C.L. 124, 130 (S.C. App. L. 1844) (“The general object, at least, of our Act,
would seem to be, to record the whole of the information obtained upon any inquest concerning
the sudden or violent death of a man, for the purpose of a prosecution, for satisfaction, or any
investigation of the public, or of individuals concerned. So much is due to the living and the
dead. Sudden and unnatural deaths shock us all. . . . And let me here observe, that the
information and publication of the kind of death, the wound, time and manner, place and
circumstances, may often lead to unlooked for charges against unsuspected persons, and even of
men abroad. And shall they all be assumed . . . [not to require] cross-examination? Because our
Act is general for all inquests, the examination public, and of high respectability? On the
contrary, is there not too much of mere formula, if not fiction, in such a notion?”).

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U.S. at 822 (statements about ongoing events during a 911 call did not have an evidentiary
purpose); United States v. Farhane, 634 F.3d 127, 131–32, 162–63 (2d Cir. 2011) (statements
promising future aid in a conspiracy did not have an evidentiary purpose); United States v.
Burden, 600 F.3d 204, 225 (2d Cir. 2010) (recorded statements of a cooperating witness made to
induce a confession did not have an evidentiary purpose); cf. United States v. Logan, 419 F.3d
172, 178 (2d. Cir. 2005) (finding alibi statements made to police were testimonial).
Second, the statement must have been made in a way that is sufficiently solemn so as to
make it more like “‘a formal statement to government officers’” rather than “‘a casual remark
[made] to an acquaintance.’” Bryant, 131 S. Ct. at 1153 (quoting Crawford, 541 U.S. at 51);
Davis, 547 U.S. at 822 (quoting Crawford, 541 U.S. at 51). This does not mean that the
statement must be contained in a formal written document, but merely that the circumstances
surrounding its utterance must be such that a reasonable declarant would be aware of the serious
nature of his or her declaration. Davis, 547 U.S. at 826 (citing Crawford, 541 U.S. at 51).
Finally, the statement must reasonably be understood as being “available for use at a later
trial.” Melendez–Diaz, 129 S. Ct. at 2532 (quoting Crawford, 541 U.S. at 52). That is, the
speaker need not expect that the statement will be used in a criminal trial, or even that it is
objectively likely that the statement will be used in a criminal trial, only that it is foreseeable that
the statement could be used prosecutorially. Bryant, 131 S. Ct. at 1169 (Scalia, J. dissenting)
(“[H]e must make the statement with the understanding that it may be used to invoke the
coercive machinery of the State.”); see also Melendez–Diaz, 129 S. Ct. at 2532 (“[T]he affidavits
[were] ‘made under circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.’” (quoting Crawford, 541 U.S. at
52)).

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Applying this formulation, it is evident that the admission of Dr. Jindrak’s report
triggered the Confrontation Clause. First, the autopsy report was, inarguably, created to establish
facts regarding the death of Mr. Somaipersaud. The report and its incorporated laboratory
analyses contain five final diagnoses, two statements of cause of death, detailed descriptions of
various portions of Mr. Somaipersaud’s body, and calculated levels of toxins, all of which are
factual statements.
Second, the report is sufficiently solemn. All reports generated by the New York City
Office of Chief Medical Examiner (“OCME”) are required to “be signed by the medical
examiner performing the autopsy.” N.Y.C. Admin. Code § 17-203 (1998). These reports are
made by government officials for use by government officials. See United States v. Feliz, 467
F.3d 227, 2337 (2d Cir. 2006) (observing that OCME reports would qualify for the public
records hearsay exception, which requires that the statement be made by a public officer or
agency). Indeed, even if OCME did not have a long history of cooperation with law
enforcement, all autopsy reports would remain statements made directly to law enforcement
insofar as they are statutorily required to be available to law enforcement officers and
prosecutors. N.Y.C. Admin. Code § 17-205 (1998) (“The appropriate district attorney and the
police commissioner of the city may require from [OCME] such further records, and such daily
information, as they may deem necessary.”) Moreover, like the reports in Bullcoming and
Melendez–Diaz, Dr. Jindrak’s report contains a certification.
Third, it could have reasonably been anticipated that the autopsy report would be
available for use in a criminal trial. Medical examiners working for OCME are statutorily
obligated to make conclusions as to causes of death, to record the reasons for those conclusions,
and to preserve those records for future use. N.Y.C. Admin. Code § 17-203 (“A detailed

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description of [those] findings . . . shall be written or dictated. . . . The findings of the
investigation at the scene of death, the autopsy and any toxicologic, histologic, serologic and
microbiologic examinations, and the conclusions drawn therefrom shall be filed in the office of
chief medical examiner.”).
Even if it could not have been reasonably foreseen at the outset of the autopsy that the
report’s results would be used in a later trial, it seems clear that, at some point during her
examination, Dr. Jindrak would reasonably have anticipated that it could be used later in a
criminal prosecution. That is, once she certified that the primary cause of death was “acute
mixed intoxication with alcohol and chlorpromazine,” i.e., that Mr. Somaipersaud had been
poisoned, a reasonable medical examiner would have anticipated that the autopsy report could be
used prosecutorially. See Bryant, 131 S. Ct. at 1159 (observing that non-testimonial statements
may “evolve into testimonial statements” as more information is provided (quoting Davis, 547
U.S. at 828 (internal quotation marks omitted))).
When a statement such as Dr. Jindrak’s autopsy report is introduced against a defendant
at a criminal trial, that evidence is “functionally identical to live, in-court testimony, because [it
does] ‘precisely what a witness does on direct examination,’” rendering its declarant a “witness”
and triggering the protections of the Confrontation Clause. Melendez–Diaz, 129 S. Ct. at 2532
(quoting Davis, 547 U.S. at 830); see also Bullcoming, 131 S. Ct. at 2712; Crawford, 541 U.S. at
51.
James was both charged with and convicted of murder and conspiracy to commit murder.
The prosecution’s theory was that Mr. Somaipersaud had been poisoned. The prosecution
offered the autopsy report to establish the very same facts, prejudicial to Mr. James, about which
Dr. Jindrak would have been expected to testify at trial. Indeed, on direct examination, Dr.

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Ambrosi was asked both to identify Dr. Jindrak’s conclusions as to cause of death and to state
whether she agreed with those conclusions.
Moreover, I believe that the admission of any medical examiner’s report prepared by
OCME would trigger the protections of the Confrontation Clause.3 Dr. Jindrak’s report was not
unique in the sense that the characteristics that made it testimonial are present in all autopsy
reports prepared by OCME that are introduced against a defendant at a criminal trial. All such
reports are made to establish facts about the cause of death of the decedent; they are made by and
to government officials in a formalized recording; they contain statements a medical examiner
could reasonably foresee would be used in a criminal prosecution; and if a prosecutor seeks to
introduce a report for its truth, it would substitute for live testimony adverse to the defendant.
As noted, I believe that the majority’s approach goes astray by suggesting that to trigger
the Confrontation Clause the “primary purpose” of an autopsy report must be use “at a later
criminal trial.” This formulation postulates the existence of a medical examiner who gives
adverse testimony but who is not a “witness” for Confrontation Clause purposes because he or
she did not prepare the autopsy report primarily for use in criminal proceedings. In doing so, the
opinion creates the very “third category of witnesses, helpful to the prosecution, but somehow
immune from confrontation” that Melendez–Diaz expressly says does not exist. Melendez–Diaz,
129 S. Ct. at 2534.
3 At least two other federal circuits and a number of state courts of last resort have
reached a similar conclusion regarding particular reports prepared by the equivalent of OCME in
their jurisdictions. See, e.g., United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012); United
States v. Moore, 651 F.3d 30 (D.C. Cir. 2011); State v. Navarette, 294 P.3d 435 (N.M. 2013);
State v. Kennedy, 735 S.E.2d 905 (W. Va. 2012); Conners v. State, 92 So.3d 676 (Miss. 2012)
(noting a pre-Crawford decision that held admission of an autopsy report required
confrontation); State v. Locklear, 681 S.E.2d 293 (N.C. 2009); see also People v. Lewis, 806
N.W.2d 295 (Mich. 2011) (vacating lower court’s holding that an autopsy report was non-
testimonial but holding the error harmless without significant discussion); Wood v. State, 299
S.W.3d 200 (Tex. Ct. App. 2009), review denied, 2010 Tex.Crim.App. LEXIS 115 (2010).

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Finally, as the Eleventh Circuit points out, “[m]edical examiners are not mere scriveners”
and “autopsy reports are the product of the skill, methodology, and judgment of the highly
trained examiners who actually performed the autopsy.” United States v. Ignasiak, 667 F.3d
1217, 1232 (11th Cir. 2012) (holding autopsy reports to be testimonial and requiring
confrontation) (citing Bullcoming, 131 S. Ct. at 2714). Both Bullcoming and Melendez–Diaz
hold that a laboratory analyst’s report of sufficient solemnity triggers the protections of the
Confrontation Clause. It would be incongruous indeed, if an autopsy report requiring numerous
skilled judgments on the part of a medical examiner, did not require the same confrontation.

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