U.S. v. Mulder

Decision Date21 September 2000
Docket NumberB-B,Nos. 99-1516,s. 99-1516
Citation273 F.3d 91
Parties(2nd Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. ERIC MULDER, also known as Unique, Defendant, DENNIS MCCALL, also known asoy, DANIEL HUNTER, also known as Tyborne, TREVOR JOHNSON, and ROBERT CARNES, also known as Jamal, Defendants-Appellants. (LEAD), 99-1523 (CON), 99-1531 (CON), 99-1538 (CON)
CourtU.S. Court of Appeals — Second Circuit

MYLAN L. DENERSTEIN, Assistant United States Attorney, Southern District of New York, New York, NY (Mary Jo White, United States Attorney, Southern District of New York, Mark A. Godsey and Christine H. Chung, Assistant United States Attorneys, on the brief) for Appellee.

ANTHONY J. FERRARA, Polstein, Ferrara, Dwyer & Speed, P.C., New York, NY (Marie Castellitto and Bridget A. Short on the brief) for Defendant-Appellant Dennis McCall.

ANDREW A. RUBIN, Mancuso, Rubin & Fufidio, White Plains, NY, for Defendant-Appellant Daniel Hunter.

STEPHEN P. SCARING, Stephen P. Scaring, P.C., Garden City, NY, for Defendant-Appellant Trevor Johnson.

MARILYN S. READER, Law Office of Marilyn S. Reader, Larchmont, NY, for Defendant-Appellant Robert Carnes.

Before: FEINBERG, MINER, and POOLER, Circuit Judges.

POOLER, Circuit Judge:

Defendants-Appellants Dennis McCall, Daniel Hunter, Trevor Johnson, and Robert Carnes, belonged to Brooklyn Fight Back ("BFB"), a labor coalition that extorted money and jobs, including no-show jobs, from contractors operating in New York City. After a jury convicted the defendants of conspiracy to violate the Hobbs Act, the district court (Richard Conway Casey, J.) sentenced them to terms of imprisonment ranging from seventeen to twenty years. These harsh sentences resulted from the district court's finding that the murder of a rival coalition member by defendants' co-conspirator, Eric Mulder, was relevant conduct for purposes of calculating the sentences of each of the defendants. We affirm defendants' convictions but because the district court failed to determine the scope of each defendant's agreement before finding that the co-conspirator's conduct was reasonably foreseeable to all of the defendants, we vacate the sentences and remand for resentencing.

BACKGROUND

BFB claims that it used time-honored tactics of the labor movement to obtain jobs for members of minority groups on construction projects. However, the proof offered at trial demonstrated that at least during the time covered by the indictment - 1990 through 1998 - BFB extorted construction company owners to provide laborer jobs for BFB members, who then paid BFB's leaders a portion of their salaries. Although the coalition members hired were minorities, there is no indication in the record that BFB's activities increased the presence of minorities in the workforces at the companies they extorted or that the companies where they placed workers discriminated. BFB leaders also used threats of slowdowns or work stoppages and sometimes relied on their coalition's reputation for violence to obtain no-show jobs as coalition coordinators for themselves. The coalition coordinators' only function was to fend off rival coalitions that also wanted jobs at the site. During the course of the conspiracy, BFB member Eric Mulder killed a member of a rival coalition, Erick Riddick.

By indictment filed January 20, 1998, a grand jury charged each of the appellants and Eric Mulder with one count of conspiracy to commit extortion in violation of the Hobbs Act, 18 U.S.C. 1951. This original indictment identified the period of the conspiracy as being between January 1995 and January 20, 1998. A first superceding indictment filed July 7, 1998, added a substantive count of extortion related to Johnson's, Carnes', and McCall's activities at the DeFoe Corporation. A second superceding indictment filed October 1, 1998, changed the date of the conspiracy's beginning from January 1995 to January 1990. It also added a lengthy preamble describing the illegal role and actions of labor coalitions in general and alleged that the various coalitions competed for control of companies, that the competition sometimes escalated into violence, and that Johnson, Carnes, and McCall worked with members of the Gambino crime family to protect their mutual interests.

At a six-week trial beginning on November 2, 1998, Mulder testified against his co-defendants pursuant to a cooperation agreement. In addition to Mulder and other fact witnesses who testified to defendants' activities at the construction sites, the government offered tapes and transcripts of conversations among the defendants and between the defendants and some of their victims. The government also offered the testimony of two experts, Daniel O'Rourke and James McNamara.

The jury returned a verdict acquitting all charged defendants on the substantive count but convicting all defendants on the conspiracy count. Attributing the Riddick murder to each of the defendants as relevant conduct, the district court sentenced Johnson to twenty years of imprisonment and the remaining defendants to seventeen years of imprisonment.

This appeal followed. Defendants contend that (1) they were prejudiced by the government's eve-of-trial amendments of the indictment and presentation of proof not set forth in the original bill of particulars; (2) the court erred by admitting McNamara's and O'Rourke's testimony and made other evidentiary errors; (3) the charge included an erroneous definition of the labor exception to Hobbs Act liability, and the court abused its discretion by declining to give a supplementary charge on fear; (4) the court wrongfully declined to excuse two jurors who complained of financial hardship; (5) the court intervened excessively during defendants' questioning, and the prosecutor made prejudicial comments; (6) there was insufficient evidence to support the verdict; and (7) the district court erroneously attributed Riddick's murder to them as conduct relevant for sentencing purposes and made various other sentencing errors.

DISCUSSION
I. Changes in the Indictment and Bill of Particulars

Defendants contend that the district court erred by allowing the government to expand the time span of the conspiracy and add prejudicial surplusage concerning the violent nature of labor coalitions in its second superceding indictment filed about three weeks before trial.

Because the court offered defendants additional time to prepare, which they declined, they cannot establish prejudice from the timing of the amendment. "Motions to strike surplusage from an indictment will be granted only where the challenged allegations are not relevant to the crime charged and are inflammatory and prejudicial." United States v. Scarpa 913 F.2d 993, 1013 (2d Cir. 1990) (internal quotation marks omitted). Because the six challenged paragraphs, which generally described the tactics and purposes of labor coalitions, discussed background evidence that was properly admissible and relevant,1 the district court did not err by refusing to strike these paragraphs from the indictment.

On August 27, 1998, Judge Casey directed the government to give defendants a bill of particulars containing the names of the contractors, construction sites, and projects targeted by the conspiracy. The government did not comply until defendants complained in early October 1998. After furnishing belated particulars, Assistant United States Attorney Mylan Denerstein explained to the court that she had not received its order. Denerstein also explained that she could not always give specific sites because defendants sometimes acted as coordinators for entire sectors of a company's business.

On November 9, 1998, during the trial, the government amended its bill of particulars to add specific HHM Construction sites about which Eric Mulder would testify as a result of his November 2, 1998, plea agreement. The government also added Tully Construction Company's Union Street, Queens, site and informed defense counsel that this site was discussed in wiretap tape transcripts given to defendants on October 26, 1998. A November 13, 1998, letter added two additional sites. Defendants requested that the court preclude the government from offering evidence concerning the new sites, but the court denied this request.

"A bill of particulars may be amended at any time subject to such conditions as justice requires." Fed. R. Crim. P. 7(f). However, the defendants argue that they were prejudiced because the November 9, 1998, amendment allowed the government to present proof of a shoot out at Tully Construction's Union Street site. The first witness concerning the Union Street site testified on December 1, 1998. In addition, defense counsel had access to tapes of conversations concerning the sites as early as February 26, 1998. Because the circumstances of the disclosure and the timing of the subsequent testimony protected defendants against prejudice, Judge Casey did not abuse his discretion by allowing the belated amendment. Cf. United States v. Barnes, 158 F.3d 662, 665-66 (2d Cir. 1998) (approving complete denial of a bill of particulars).

II. Evidentiary Issues
A. Expert Testimony

Over strong objection from the defendants, the court allowed Daniel O'Rourke and James McNamara to testify as experts.

O'Rourke, who supervised the New York City Police Department Construction Task Force between 1986 and 1996, testified that the percentage of minorities at construction work sites did not correlate with coalition activity at the site; coalition coordinators visited work sites and demanded no-show jobs in return for protection from other coalitions; coalitions disrupted work if they were not given jobs, causing the...

To continue reading

Request your trial
191 cases
  • U.S. v. Ferguson
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 24 January 2007
    ...only where the challenged allegations are not relevant to the crime charged and are inflammatory and prejudicial.'" United States v. Mulder, 273 F.3d 91, 99 (2d Cir.2001) (quoting United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir.1990)). To prevail on the motion, then, the defendants must......
  • Care One Mgmt. v. United Healthcare Workers E.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 17 December 2021
    ...to "more militant tactics" (Maj. Op. at 16), because there are other legal limits on violent conduct.[12] See United States v. Mulder, 273 F.3d 91, 104 (2d Cir. 2001) (approving jury instruction on labor exception to Hobbs Act, where the instruction explained that the "exception does not im......
  • United States v. Thompson
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 28 October 2015
    ...that the challenged terms are: (1) irrelevant to the crime charged; and (2) inflammatory and prejudicial. United States v. Mulder, 273 F.3d 91, 99 (2d Cir.2001), cert. denied, 535 U.S. 949, 122 S.Ct. 1344, 152 L.Ed.2d 247 (2002). In light of this exacting standard, "if evidence of the alleg......
  • United States v. Barret
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 16 November 2011
    ...unless “the challenged allegations are not relevant to the crime charged and are inflammatory and prejudicial.” United States v. Mulder, 273 F.3d 91, 99 (2d Cir.2001) (quoting United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir.1990)). Moreover, “even language deemed prejudicial should not ......
  • Request a trial to view additional results
2 firm's commentaries
9 books & journal articles
  • Commonly Used Experts
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2018 Contents
    • 4 August 2018
    ...on street gangs, expert testimony may be permitted to describe illegal and violent tactics used by a labor coalition. In U.S. v. Mulder , 273 F.3d 91 (2d Cir. 2001), the prosecution presented an expert who supervised the New York City Police Department Construction Task force. He testified ......
  • Commonly Used Experts
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2016 Contents
    • 4 August 2016
    ...on street gangs, expert testimony may be permitted to describe illegal and violent tactics used by a labor coalition. In U.S. v. Mulder , 273 F.3d 91 (2d Cir. 2001), the prosecution presented an expert who supervised the New York City Police Department Construction Task force. He testified ......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2015 Contents
    • 4 August 2015
    ...Mejia, 545 F.3d 179 (2d Cir. 2008), §603 United States v. Mejia-Alarcon, 995 F. 982 (10th Cir. 1993), §423.1.4 United States v. Mulder , 273 F.3d 91 (2d Cir. 2001), §603.7 United States v. Muldrow , 19 F. 3d 1332 (10th Cir. 1994), §344.1.2 United States v. Nersesian , 824 F.2d 1294, 1308 (2......
  • Commonly Used Experts
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2019 Contents
    • 4 August 2019
    ...on street gangs, expert testimony may be permitted to describe illegal and violent tactics used by a labor coalition. In U.S. v. Mulder , 273 F.3d 91 (2d Cir. 2001), the prosecution presented an expert who supervised the New York City Police Department Construction Task force. He testified ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT