841 F.3d 95 (2nd Cir. 2016), 15-940-cr, United States v. Rosemond

Docket Nº:15-940-cr
Citation:841 F.3d 95
Opinion Judge:Chin, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Appellee, v. JAMES J. ROSEMOND, Defendant-Appellant, DEREK ANDRE ENGLISH, RONALD ANDERSON, BRIAN MCCLEOD, AKA Slim, AKA Brian Connelly, AKA Joseph King, AKA Brian Conley, AKA John A. Conley, SHAWN WILLIAMS, AKA William Shawn, JASON WILLIAMS, DERRICK GRANT, RODNEY JOHNSON, AKA Rodney T. Hibbert, AKA Toree Johnson, ...
Attorney:SAMSON ENZER, Assistant United States Attorney (Elizabeth Hanft, Karl Metzner, Assistant United States Attorneys, on the brief ), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee. MICHAEL RAYFIELD (Scott Chesin, on the brief ), Mayer Brow...
Judge Panel:Before: KEARSE, CABRANES, AND CHIN, Circuit Judges.
Case Date:November 01, 2016
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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841 F.3d 95 (2nd Cir. 2016)

UNITED STATES OF AMERICA, Appellee,

v.

JAMES J. ROSEMOND, Defendant-Appellant,

DEREK ANDRE ENGLISH, RONALD ANDERSON, BRIAN MCCLEOD, AKA Slim, AKA Brian Connelly, AKA Joseph King, AKA Brian Conley, AKA John A. Conley, SHAWN WILLIAMS, AKA William Shawn, JASON WILLIAMS, DERRICK GRANT, RODNEY JOHNSON, AKA Rodney T. Hibbert, AKA Toree Johnson, Defendants

15-940-cr

United States Court of Appeals, Second Circuit

November 1, 2016

Argued April 6, 2016

As Amended November 2, 2016.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. Appeal from a judgment of the United States District Court for the Southern District of New York (McMahon, C.J.), convicting defendant of murder for hire and related charges. On appeal, defendant contends that 1) the district court erred in ruling that certain defense arguments would open the door to admission of statements made during a proffer session; 2) the district court erred in admitting evidence of prior bad acts; and 3) there was insufficient evidence to support the conviction. We agree that the district court incorrectly applied the waiver provision in defendant's proffer agreement, and erred in precluding defense counsel from making certain arguments at trial. Because the error was not harmless, we vacate the judgment of conviction, and remand for further proceedings consistent with this opinion.

VACATED AND REMANDED.

SAMSON ENZER, Assistant United States Attorney (Elizabeth Hanft, Karl Metzner, Assistant United States Attorneys, on the brief ), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

MICHAEL RAYFIELD (Scott Chesin, on the brief ), Mayer Brown LLP, New York, NY, and Jonathan I. Edelstein, Edelstein & Grossman, New York, NY, for Defendant-Appellant.

Before: KEARSE, CABRANES, AND CHIN, Circuit Judges.

OPINION

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Chin, Circuit Judge

Defendant-Appellant James J. Rosemond appeals a March 25, 2015 judgment entered in the United States District Court for the Southern District of New York (McMahon, C.J. ), following a jury trial, convicting him of murder for hire, conspiracy to commit murder for hire, murder through use of a firearm, and possession of a firearm, in violation of 18 U.S.C. § § 1958, 924(c)(1)(A)(iii), and 924(j). Rosemond was the head of Czar Entertainment, a music label that engaged in a lengthy and violent feud with a rival company, Violator Records, and its rap group, G-Unit. The feud culminated in the fatal shooting of a G-Unit associate, Lowell Fletcher.

Following his arrest for narcotics-related charges, Rosemond participated in proffer sessions with the Government in hopes of reaching a cooperation agreement. Rosemond and the Government signed a proffer agreement that prohibited the Government from using Rosemond's statements against him, except to rebut factual assertions made by him or on his behalf at a later proceeding. During one such proffer session, law enforcement officers asked Rosemond if he knew that his and his associates' actions in September 2009 would lead to Fletcher's death. Rosemond responded that he knew Fletcher would die.

At Rosemond's first trial for his role in Fletcher's murder, the district court ruled that any argument by defense counsel that the Government had failed to prove that Rosemond had intended to murder -- as opposed to merely shoot -- would open the door to admitting his proffer statement. The first trial resulted in a mistrial, and at the second trial the district court adhered to its prior rulings as to the proffer statements. As a consequence, Rosemond limited his defense. He was convicted on all counts.

On appeal, Rosemond contends that 1) the district court erred in ruling that certain defense arguments would open the door to the admission of statements made during a proffer session; 2) the district court erred in admitting evidence of prior bad acts; and 3) there was insufficient evidence to support the conviction. We conclude that the district court erred in unduly restricting Rosemond's ability to defend against the charges, and that such error was not harmless. Accordingly, we vacate the judgment and remand for a new trial.

BACKGROUND

I. The Facts

Because Rosemond appeals his convictions following a jury trial, " our

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statement of the facts views the evidence in the light most favorable to the government, crediting any inferences that the jury might have drawn in its favor." United States v. Dhinsa, 243 F.3d 635, 643 (2d Cir. 2001) (quoting United States v. Salameh, 152 F.3d 88, 107 n.1 (2d Cir. 1998) (per curiam)). At trial, the Government elicited testimony from three cooperating witnesses -- Khalil Abdullah, Mohammed Stewart, and Brian McCleod -- about the violent hip hop feud between Czar Entertainment and G-Unit and the events leading up to Fletcher's death.

A. The Feud

Rosemond was the owner of Czar Entertainment, a music business that represented and managed various hip hop and rap musicians, including rap artist Jayceon Taylor. Czar had a longstanding and violent rivalry with Violator Records and its rap group, G-Unit, featuring Curtis Jackson, Marvin Bernard, and Lloyd Banks. The dispute arose in part after Jackson publicly insulted Taylor on Hot 97, a New York hip hop radio station, in February 2005. After hearing what was said on the radio, Rosemond told his associate, Mohammed Stewart, to accompany Taylor to Hot 97 to " make sure nothing happen[ed] to him." App. 309. When Taylor arrived at Hot 97, someone started shooting into the crowd outside the radio station. Taylor's friend was shot in the leg. Later that day, Stewart had another Czar associate shoot up the front door of Violator Records. Rosemond paid Stewart $2,000 for that shooting.

Rosemond had another altercation with G-Unit in December 2006 at an award ceremony at the Apollo Theater in Harlem. Marvin Bernard of G-Unit confronted Rosemond at the event about Taylor " talking reckless" about G-Unit frontman, Curtis Jackson. App. 258. In anticipation of a shooting, Rosemond left through a side exit with his associates, including Khalil Abdullah. After they left the Apollo, Rosemond and Abdullah followed Bernard's car and shot fifty rounds into it when it pulled over. Following the Apollo incident, a meeting was organized by music industry mogul, Sean Combs, between Rosemond and G-Unit's manager, Christopher Lighty, to make peace between the groups. The meeting got heated and resulted in Rosemond getting " mushed in the face" by Lighty. App. 260. Rather than quell the feud, the meeting only increased tensions between the groups.

B. Assault of Rosemond's Son and Subsequent Retaliation

On March 20, 2007, three G-Unit associates -- Marvin Bernard, Jaleel Walter, and Lowell Fletcher -- were leaving Violator's office when they saw a 14 year-old boy wearing a sweatshirt bearing the Czar Entertainment logo. They confronted him, pushed him up against a wall, slapped him, and threatened him with a gun. A parking attendant at the garage across the street saw what was happening and yelled at them to break it up. The G-Unit associates got into a black Suburban and drove away.

The boy was Rosemond's son. When Rosemond found out about the incident later that day, he was furious and immediately sent Stewart to cut a G-Unit associate with a razorblade. Stewart testified that Rosemond was so disturbed by the attack on his son that he sought to retaliate in " three ways" : " through the law, through music and through streets." App. 315.

Rosemond first sought out assistance from law enforcement. Rosemond's son reported the incident to the police and identified Fletcher and Bernard as his attackers. Criminal charges were brought against them both. Fletcher eventually

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pled guilty to assault and endangering the welfare of a child, and began serving a term of imprisonment in Mohawk Correctional Facility. Next, on the musical front, Rosemond organized conferences with hip hop figures to " talk about the guns and violence in hip-hop." App. 315. Taylor also wrote a song about the feud.

The real retaliation, however, was achieved through " violence in the streets" where " [t]he objective was to shoot somebody." App. 315. Violence between the two gangs began to ratchet up. A month after the slapping incident, in April 2007, Rosemond claimed to have shot thirty rounds into Bernard's mother's house in Queens. Over the next couple of years, he and his associates continued to target G-Unit members. For instance, Stewart threw Molotov cocktails at and shot rounds into G-Unit associate Walter's house and car in Staten Island, and another Czar associate was paid...

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