712 F.3d 79 (2nd Cir. 2013), 09-2732-cr, United States v. James

Docket Nº:09-2732-cr (Lead), 09-2804-cr (Con).
Citation:712 F.3d 79
Opinion Judge:SACK, Circuit Judge:
Party Name:UNITED STATES, Appellee, v. Richard JAMES and Ronald Mallay, Defendants-Appellants.
Attorney:James G. McGovern, Susan Corkery, Robert L. Capers, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee. Steve Zissou, Esq., Bayside, NY, for Defendant-Appellant Richard James. Michael K. Bachrach, Esq., New York, NY, for Defendant-Appella...
Judge Panel:Before: SACK and RAGGI, Circuit Judges, and EATON, Judge.[**] Judge EATON concurs in a separate opinion. EATON, Judge, concurring:
Case Date:March 28, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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712 F.3d 79 (2nd Cir. 2013)

UNITED STATES, Appellee,

v.

Richard JAMES and Ronald Mallay, Defendants-Appellants.

Nos. 09-2732-cr (Lead), 09-2804-cr (Con).

United States Court of Appeals, Second Circuit.

March 28, 2013

Argued: Oct. 3, 2011.

Final submission: July 16, 2012.[*]

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James G. McGovern, Susan Corkery, Robert L. Capers, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Steve Zissou, Esq., Bayside, NY, for Defendant-Appellant Richard James.

Michael K. Bachrach, Esq., New York, NY, for Defendant-Appellant Ronald Mallay.

Before: SACK and RAGGI, Circuit Judges, and EATON, Judge.[**]

Judge EATON concurs in a separate opinion.

SACK, Circuit Judge:

Richard James and Ronald Mallay appeal from judgments of conviction based on their participation in a wide-ranging conspiracy that involved fraudulently obtained life insurance policies for members of their extended families and others in the Guyanese and Guyanese-American community, and, in several instances, murder

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of the insured in order to collect on those policies.

BACKGROUND

After a jury trial in the United States District Court for the Eastern District of New York (Sterling Johnson, Judge ), James and Mallay were each sentenced to mandatory terms of life in prison after they were convicted of racketeering, in violation of 18 U.S.C. § 1962(c); racketeering conspiracy, in violation of 18 U.S.C. § 1962(d); murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1); conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5); mail fraud, in violation of 18 U.S.C. § 1341; conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371; and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). In addition, Mallay was convicted of murder for hire and conspiracy to commit murder for hire, in violation of 18 U.S.C. § 1958. James was also convicted of attempted murder for hire, in violation of 18 U.S.C. § 1958, and solicitation of murder in aid of racketeering, in violation of 18 U.S.C. §§ 373 and 1959(a)(1). These charges revolved around the murders of four people: Vernon Peter, Alfred Gobin, Hardeo Sewnanan, and Basdeo Somaipersaud. While Mallay was charged in relation to all four murders, James was charged in connection with only the murders of Sewnanan and Somaipersaud. Mallay was convicted on every count with which he had been charged; James was convicted on all counts with which he had been charged, with the exception of those alleging conspiracy and murder for hire in connection with the deaths of Sewnanan and Somaipersaud. The defendants were eligible for the death penalty, but because the jury was unable to reach a unanimous verdict as to that punishment, a sentence of life imprisonment was imposed.

On appeal, the defendants do not contest the sufficiency of the evidence of insurance fraud. The issues on these appeals relate largely to the convictions of the defendants for committing four murders that were allegedly part of this scheme, and particularly the murders of Sewnanan and Somaipersaud, both of whom were poisoned to death. Accordingly, we review only that evidence necessary to explain our decision to affirm all counts of conviction.

Vernon Peter

In 1991, Mallay was convicted of theft from the postal service, for which he worked as a postal carrier, and sentenced to 15 months' imprisonment. See Memorandum & Order, United States v. James, No. 02 Cr 0778, 2009 WL 763612, at *1, 2009 U.S. Dist. LEXIS 23706, at *3 (E.D.N.Y. Mar. 18, 2009) (" James I " ). While Mallay was incarcerated, his mother died of a heart attack. Id. Mallay blamed his arrest and conviction on his sister's husband, Vernon Peter, known as " Dilly." Id. He told his sister, Betty Peter, to keep Dilly's life insurance current because he planned to get even. Id., 2009 WL 763612, at *1-*2, 2009 U.S. Dist. LEXIS 23706, at *4. In 1993, after Mallay was released from prison, he asked his nephew Baskinand Motillal if he would kill Dilly for Mallay. Id. at *2, 2009 U.S. Dist. LEXIS 23706, at *4. Motillal declined but introduced Mallay to another person, to whom Mallay paid $10,000 to commit the crime. He also gave that person $500 with which to purchase a weapon. Id. That person in turn recruited three others to help him carry out the murder. Id. On the morning of July 28, 1993, the four murdered Dilly as he walked out of his home. Id.

Betty Peter collected $400,000 on an insurance policy on Dilly's life. Id., 2009 WL 763612, at *2, 2009 U.S. Dist. LEXIS 23706, at *5. She then loaned at least

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$60,000 of those proceeds to Mallay.1 Id., 2009 WL 763612, at *2, 2009 U.S. Dist. LEXIS 23706, at *5.

Alfred Gobin

In September 1993, Mallay met with James, then an insurance agent with MetLife, and Gulabie Gobin, Mallay's longtime mistress. Id., 2009 WL 763612, at *2, 2009 U.S. Dist. LEXIS 23706, at *6. James and Mallay persuaded Gobin to take out two insurance policies on her father, Alfred Gobin, who was murdered in Guyana in January 1996. Id. Gulabie and her family received more than $200,000 from the policies, and lent James and Mallay nearly $60,000. Id.

Basdeo Somaipersaud

James encouraged a friend of his, Satyanand Arjun, to purchase an insurance policy on the life of Somaipersaud, a heavy drinker who sometimes lived with Arjun. Id., 2009 WL 763612, at *2-*3, 2009 U.S. Dist. LEXIS 23706, at *6-*7. In October 1994, James obtained a $100,000 policy on Somaipersaud's life, with double indemnity if Somaipersaud died accidentally. It named James's sister as a beneficiary. Id.

During the fall of 1997, James offered $10,000 to Kenrick Hassan, a member of James's extended family, to kill Somaipersaud. Id. Although Hassan declined the offer, on January 23, 1998, Somaipersaud was found dead in a park in the Borough of Queens, New York City. The New York City Office of the Chief Medical Examiner (" OCME" ) determined that Somaipersaud had died of acute alcoholism in combination with a dose of the drug chlorpromazine.2 Id. James contacted Arjun to tell him of Somaipersaud's death, which Arjun found surprising because he was not aware of any connection between James and Somaipersaud and because he had not spoken to James since he had purchased the insurance policy. Id. James's girlfriend and Arjun received insurance payments as a result of Somaipersaud's death. Id.

Hardeo Sewnanan

In October 1996, James arranged for the purchase of two $250,000 life insurance policies for Hardeo Sewnanan, who was Mallay's nephew, with Betty Peter, Mallay's wife, and Mallay's mistress's daughter named as beneficiaries. Id. at *3, 2009 U.S. Dist. LEXIS 23706, at *8. William Mallay, who shared an address with the defendant Ronald Mallay, paid the premiums on the policy. Id. In 1999, Ronald Mallay asked Kenrick Hassan to kill Sewnanan, who again declined to do so. This time he put Mallay in touch with Kenrick's brother, Derick Hassan. Id. Mallay traveled to Guyana to meet with Derick, paying him $10,000 to kill Sewnanan. But Derick Hassan ultimately decided not to do so. Id. Mallay later told Derick that he had hired others to commit the murder. Id.

On January 8, 1999, Sewnanan died in Guyana of what the Guyanese medical examiner determined to be

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ammonia poisoning . Id.; see also Memorandum & Order, United States v. James, No. 02 Cr 0778, 2007 WL 2702449, at *1, 2007 U.S. Dist. LEXIS 67538, at *2 (E.D.N.Y. Sept. 12, 2007) (" James II " ). Mallay collected $400,000 on the policy on Sewnanan's life. James I, 2009 WL 763612, at *3, 2009 U.S. Dist. LEXIS 23706, at *8.

Appeals

The defendants raise eight separate issues on their appeals: First, whether a new trial is required based on the district court's error under the Sixth Amendment's Confrontation Clause in admitting forensic reports relating to the deaths of Sewnanan and Somaipersaud— specifically, the issues are whether one member of the OCME was properly allowed to testify regarding an autopsy conducted by another member of that office in which the witness had not participated, and whether a medical examiner from Guyana was properly allowed to testify to the results of toxicology tests which he had ordered but did not conduct; second, whether the district court erred in excluding the prosecution's statement in the prior criminal trial of Betty Peter, a cooperating witness in the current trial, suggesting greater culpability on her part for Vernon Peter's murder; third, whether the district court abused its discretion in refusing to permit the defendants to impeach Betty Peter's testimony with prior inconsistent statements; fourth, whether James is entitled to a new trial because the district court's refusal to order severance deprived him of a fair trial; fifth, whether the defendants had been deprived of a fair trial because of the district court's refusal to suppress statements elicited from James by a government informant after James's indictment; sixth, whether the district court erred in admitting, against Mallay as a coconspirator, recorded statements of James made surreptitiously by a third party; seventh, whether the district court erred in denying a new trial based on allegations by a cooperating witness of prosecutorial misconduct and coercion; and eighth, whether there has been cumulative error sufficient to warrant a new trial.

DISCUSSION

I. The Confrontation Clause

The defendants raise two separate...

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