U.S. v. Hardwick

• Decision Date: 11 April 2008
• Docket Number: Docket No. 04-1369-cr(L).,Docket No. 04-2886-cr(CON).
• Parties: UNITED STATES of America, Appellee, v. Stacey HARDWICK and Glen Hardwick, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

523 F.3d 94

UNITED STATES of America, Appellee, v. Stacey HARDWICK and Glen Hardwick, Defendants-Appellants.

Docket No. 04-1369-cr(L).

Docket No. 04-2886-cr(CON).

United States Court of Appeals, Second Circuit.

Argued: January 23, 2006.

Decided: April 11, 2008.

Susan V. Tipograph (Thomas Eddy, on the brief), New York, NY, for Defendant-Appellant Glen Hardwick.

Benjamin M. Lawsky, Assistant United States Attorney (David N. Kelley, United States Attorney for the Southern District of New York, and Karl Metzner, Assistant United States Attorney, of counsel), United States Attorney's Office for the Southern

District of New York, New York, NY, for Appellee.

Before: WINTER, WALKER, and SOTOMAYOR, Circuit Judges.

WINTER, Circuit Judge:

Glen Hardwick appeals from a conviction after a jury trial before Judge Casey.¹ He was found guilty of conspiracy to commit and aiding and abetting a murder-for-hire, both in violation of 18 U.S.C. § 1958. In light of the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), he argues that the district court committed plain error in violation of the Sixth Amendment's Confrontation Clause when it permitted a plea allocution by his brother and co-conspirator, Stacey Hardwick, to be read into evidence. Glen further contends that there was legally insufficient evidence to prove the consideration element of the underlying murder-for-hire offense.

The admission of Stacey's plea allocution was plain error under Crawford. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). We must therefore vacate Glen's conviction. However, because the evidence presented at trial — including the improperly admitted plea allocution, United States v. Cruz, 363 F.3d 187, 197 (2d Cir. 2004) — was legally sufficient to prove Section 1958's consideration element, we vacate, but do not reverse, the conviction and remand for further proceedings.

BACKGROUND

Viewing the evidence in the light most favorable to the government, see United States v. Wilkerson, 361 F.3d 717, 721 (2d Cir.2004), we recount the evidence at trial.

In late March 2002, the New York Police Department began an investigation into the sale of narcotics at the Skate Key, a skating rink and party venue in the Bronx. On March 23, 2002, Detective Marco Trujillo, in his undercover persona "Antonio," purchased cocaine and marijuana from Stacey, who was working the door of the Skate Key. In a conversation, Trujillo discussed his desire to "do[] future business" with Stacey, i.e., purchase drugs and guns from Stacey. Trial Tr. 145.

In a series of transactions over the next several months, Trujillo purchased varying quantities of cocaine and five guns from Stacey. As part of his cover, Trujillo claimed that he was an organized crime hit man and was constantly in need of new guns because he would use a gun only once, disposing of it after a killing to eliminate any evidence linking him to the murder.

On September 8, 2002, while in New Jersey, Trujillo received a voice message from Stacey on his cellular telephone, requesting that Trujillo call Stacey back immediately. When Trujillo returned Stacey's call, Stacey stated that a neighbor had pulled a gun on his brother Glen. Stacey told Trujillo that he wanted this neighbor to "go away," i.e., be killed, and if Trujillo could not do it, then Stacey would find someone else. Trial Tr. 173-74. Trujillo told Stacey that he would take the job, but "on the agreement that [Trujillo] would take a gun for payment." Id. Trujillo informed Stacey that he would do the murder within a week.

On the morning of September 10, Trujillo recorded the first of two telephone conversations with Stacey that day.² During the first conversation, Trujillo informed Stacey that he would do the murder that night. Trujillo talked to Stacey (in coded terms) about procuring the gun he would use for the murder. Trujillo told Stacey that he was not going to charge Stacey for the hit, but that he needed two guns, "[o]ne for [Trujillo's] problem, one for [Stacey's] problem." Telephone Tr. 1, at 2. Trujillo informed Stacey that he was willing to do the killing "as a friendly gesture" and would pay for one gun but that the other gun would be Stacey's "cost." Id. Stacey, however, was unwilling to part with both weapons, claiming he needed at least one of them.

Approximately one hour later, Trujillo called Stacey, and they agreed to meet at the Olympic Diner on Jerome Avenue in the Bronx at five o'clock that evening. Trujillo again requested that Stacey bring two guns to the meeting. Stacey refused, claiming that he could bring only one because he and Glen needed the other. Trujillo grew angry at this development and told Stacey, "you know what . . . you better bring some fuckin' cash too. You want this done the right way, you bring some fuckin' cash." Telephone Tr. 2, at 3. The men agreed that Glen would join them at the meeting.

After meeting with other officers, Trujillo, wearing two recording devices, went to the Olympic Diner.³ When Stacey arrived, he was alone but informed Trujillo that Glen was outside in a truck with the gun. Stacey told Trujillo that he needed "a little bit of cash too" for the gun. Olympic/McDonald's Tr. 8. Trujillo became upset at Stacey's request for payment when Trujillo was "doing a job" for him, id., and responded, "lemme see the part [gun] and, I'll tell you what, I'll give you a couple . . . but why didn't you bring the other fucking thing [gun], I would've gave you money for that." Id. When Trujillo asked Stacey, "[w]hat're you looking at" — i.e., how much money do you want for the gun — Stacey replied, "at least a thousand." Id. Trujillo expressed disbelief at the request, but Stacey replied, "No, No, No, Lemme tell you what he [Glen] was asking. This is what he was asking . . . because he was gonna get rid of it. But I said no, you can't get rid of it when you have this fuckin' cockaroach [the intended victim] out there, right." Id. at 9.

Shortly after this exchange, a waitress and her boyfriend began having a loud dispute; when the waitress threatened to call the police, Stacey became nervous and suggested relocating to a McDonald's down the street. On Trujillo's way to the McDonald's (and while coordinating the new location with his undercover team), Stacey and Glen approached Trujillo, and Trujillo introduced himself to Glen. Stacey offered to make the necessary exchanges — the transfer of the gun and the information on how to locate the intended victim — right there, but Trujillo refused, insisting that Stacey and Glen both join him at the McDonald's.

Once in McDonald's, Trujillo, Stacey, and Glen sat together at a table. Stacey had brought the gun in a paper bag from his car into the McDonald's; when he took the gun out and tried to hand it to Trujillo across the table, Trujillo told Stacey to leave the gun in the bag. Glen gave Trujillo details on the intended victim's physical appearance (nationality, height, hair color, and usual attire) as well as where and when he could be found. Glen gave Trujillo a pen to write the location down on the bag containing the gun. Trujillo then told Glen that he was doing the murder "as a friend to [Stacey] . . . as a good gesture to [Stacey] because [Trujillo] fucked him on something . . . a misunderstanding." Id. at 21.

Stacey concluded the conversation with "Let's do what we gotta do. Alright"; Trujillo responded, "Alright. No problem, I'm going over to my car right now, let's go." Id. Stacey replied, "Yo . . . you got any change on you," and Trujillo said, "Yeah, in my car." Id. Stacey then asked that they go "pick it up." Id. As they were exiting, Trujillo began saying "it's a done deal," which was the code for his police team to come in and make the arrest. Id. at 22-23.

Glen was charged in a four-count indictment with: (i) conspiring to commit murder-for-hire, in violation of 18 U.S.C. § 1958; (ii) aiding and abetting a murder-for-hire, in violation of 18 U.S.C. §§ 1958 and 2; and two other counts dropped by the government prior to Glen's trial. Also prior to Glen's trial, Stacey pleaded guilty to, inter alia, conspiring to commit murder-for-hire and committing murder-for-hire.

Glen's trial commenced on June 17, 2003. The jury heard recordings of various telephone calls between Stacey and Trujillo as well as of the face-to-face meeting between Trujillo, Stacey, and Glen. Trujillo testified extensively in front of the jury about his undercover operation, the events leading up to Stacey's and Glen's arrests, and his interpretation of the various recordings played for the jury. The court also allowed Stacey's plea allocution to be admitted into evidence. While it did not mention Glen, the allocution stated that Stacey "agreed and conspired to cause [another] person to travel in interstate commerce with the intent that a murder be committed in exchange for payment. The payment for the intended murder was a .32 caliber pistol." Plea Tr. 18, May 30, 2003. The defense objected to the reading of the plea allocution and requested that limiting instructions be given to the jury. The district judge agreed and told the jury that it could "consider these statements as evidence of the activities of the person who made the statement and that is relevant to this case," but that the statements could be considered only as to whether a conspiracy existed and "[w]hether the crime of murder for hire was committed as part of that conspiracy." Trial Tr. 582. The judge cautioned that "[t]he question whether the defendant Glen Hardwick participated in the conspiracy . . . is an issue for which you will have to rely on other evidence. . . . There is nothing in Stacey Hardwick's statement that answers" the question of whether Glen participated in the conspiracy. Id. at 582-83.

While deliberating, the jury asked for, and received, a rereading of the portion of the transcript...