U.S. v. Ciak, 338

• Citation: 102 F.3d 38
• Decision Date: 04 December 1996
• Docket Number: No. 338,D,338
• Parties: 45 Fed. R. Evid. Serv. 1420 UNITED STATES of America, Appellee, v. Scott C. CIAK, Defendant-Appellant. ocket 96-1217.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 38

102 F.3d 38

45 Fed. R. Evid. Serv. 1420

UNITED STATES of America, Appellee, v. Scott C. CIAK, Defendant-Appellant.

No. 338, Docket 96-1217.

United States Court of Appeals, Second Circuit.

Argued Sept. 18, 1996.

Decided Dec. 4, 1996.

Terence S. Ward, Assistant Federal Public Defender, Hartford, CT (Thomas G. Denis, Federal Public Defender, District of Connecticut, on the brief), for defendant-appellant.

Denise Derby, Assistant United States Attorney, New Haven, CT (Christopher F. Droney, United States Attorney, District of Connecticut, on the brief), for appellee.

Before: MESKILL, WINTER, and CABRANES, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

In an earlier action before this Court regarding the same set of events, we granted the defendant, Scott C. Ciak's, petition for habeas corpus and vacated his conviction for possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1), finding that he had received constitutionally deficient representation at trial. Ciak v. United States, 59 F.3d 296 (2d Cir.1995) (Ciak I ). Following a second jury trial in the United States District Court for the District of Connecticut (Alfred V. Covello, Judge ), the defendant was again convicted on this same charge, and he is now before us on direct appeal from that conviction. On appeal, he alleges that (1) the district court erred in denying his motion to suppress in-court identification testimony from Arthur Rancourt, an eyewitness to an incident in which the defendant is said to have wielded a handgun, on the ground that Rancourt was subjected to suggestive pre-trial identification procedures; (2) the court violated Ciak's rights under the Sixth Amendment's Confrontation Clause by permitting the introduction of testimony from a now-unavailable witness taken at Ciak's earlier trial, at which Ciak had constitutionally inadequate representation; (3) the court included several erroneous instructions in its charge to the jury: (a) allegedly suggesting that the presumption of innocence and the reasonable doubt standard are not applicable to the guilty, (b) failing to instruct the jury as to the defendant's duress defense, (c) charging the jury not to draw any inferences from the failure of either party to summon Michael Reed, the individual whom Ciak allegedly threatened with a weapon, and (d) providing an improper instruction on 18 U.S.C. § 922(g)(1)'s "interstate commerce" requirement; and (4) the Government presented insufficient evidence to satisfy this "interstate commerce" requirement.

We find these claims to be without merit. First, we conclude that any error in the district court's decision to permit Rancourt's in-court identification testimony was harmless. Second, we find that the court's decision to admit past testimony from a currently unavailable witness did not violate the defendant's Sixth Amendment Confrontation Clause rights; while defense counsel had a conflict of interest, his cross-examination of the now-unavailable witness conferred the requisite "indicia of reliability" upon the witness's testimony. Finally, the court did not commit plain error in instructing the jury that the reasonable doubt standard and the presumption of innocence "are designed to protect the innocent and not the guilty." As for the defendant's remaining claims on appeal, not discussed in this opinion, we have reviewed each of these claims and find them all to be without merit. Accordingly, we affirm the judgment of the district court.

I. BACKGROUND

On the evening of April 12, 1991, at approximately 9:00 o'clock, police received a call from Arthur Rancourt, at that time a resident of an apartment building in East Hartford, Connecticut, reporting that a man in the parking lot outside Rancourt's window had pulled a gun on another man and threatened to kill him. Rancourt recognized the threatened man as Michael Reed, and he described the gunman to the police dispatcher as a white male with long hair in a ponytail wearing an "8-ball" jacket (apparently a jacket with a depiction of an 8-ball on it). As Rancourt was relating the events in the parking lot to the police dispatcher, four of the people in the parking lot, including the gunman, left the scene in two vehicles--a white Trans Am and a black Mustang. Rancourt told the dispatcher that the gunman was driving the Trans Am with a female passenger whom Rancourt took to be the driver's girlfriend.

A police officer in the vicinity of the parking lot at the time of Rancourt's call saw the two cars pull out of the parking lot. After following the cars for a short distance, the officer turned on his blue flashing lights, at which point only the black car pulled over. The defendant's sister, Kristine Ciak, her former boyfriend, David Santos, and their young child were in the black car.

Another police officer stopped the white Trans Am a short distance away. The defendant, Scott Ciak, was driving the car. He was wearing what the officer later described as a jacket with an "eight ball" on the back. Ciak's girlfriend, Rebecca Durosette, was also in the white car. Ciak informed police officers on the scene that there was a weapon underneath the driver's seat, but insisted that it was not his. Police searched the vehicle and found two firearms under the front seat, a .38 caliber Colt revolver and a 9mm Brevete semiautomatic pistol.

The Government charged the defendant with knowing possession of one of the guns, the 9mm Brevete, as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Ciak was indicted on this charge and, in December 1991, was tried before a jury in the United States District Court for the District of Connecticut (T. Emmet Claire, Judge ). The jury found the defendant guilty, and this court affirmed the conviction on direct appeal.

Ciak filed a pro se petition for habeas corpus in the district court on August 17, 1993, alleging, inter alia, that his attorney, Jacob Wieselman, had had a number of conflicts of interest that precluded him from effectively representing Ciak. The district court denied Ciak's petition, but we reversed on appeal, concluding that the trial court erred in failing to conduct an evidentiary hearing on the conflict of interest issue in light of available evidence of Wieselman's prior and ongoing dealings both with Kristine Ciak and with Michael Reed, the man whom the defendant allegedly threatened in the parking lot and a witness for the prosecution. See Ciak I, 59 F.3d at 304-07.

Following our decision vacating the defendant's conviction, the second Ciak trial began before Judge Covello on December 8, 1995. The Government alleged at trial that Ciak had knowingly possessed the 9mm Brevete on April 12, 1991, focusing much of its case on the incident in which Ciak had allegedly threatened Michael Reed with this weapon in the parking lot. At trial, the Government presented testimony from Arthur Rancourt, during which he identified Ciak in court as the man who had threatened Reed. The Government also introduced a transcript, taken from the first trial, of the testimony of Steven Reed, Michael Reed's cousin and one of the people present in the parking lot when the alleged incident took place. Steven Reed had died in the interim between the two Ciak trials. In his testimony, Steven Reed identified the defendant as the man who threatened Michael Reed in the parking lot, and described an incident earlier on the same day in which Ciak had shown him various handguns, including the 9mm weapon in question, while the two were driving through Hartford with Michael Reed. Michael Reed, the alleged victim of the defendant's threats in the parking lot, did not testify at the second trial.

The defendant, acting pro se at his second trial (but with "standby" counsel appointed by the court available to him at all times), denied having been the man who threatened Michael Reed in the parking lot. While he admitted to being in the lot at the time of the incident, he argued that it was David Santos, his sister's former boyfriend, who had threatened Michael Reed with a handgun. As for the weapons that were in the white Trans Am when he was stopped by police, Ciak claimed that his sister Kristine had placed these weapons in the vehicle without his knowledge, and that Durosette had only informed him of their presence in the car as he was being pulled over by police. Durosette also testified for the defense, stating that she believed Kristine Ciak had placed the weapons in the car.

On December 18, 1995, the jury convicted Ciak of knowingly possessing the 9mm handgun as a convicted felon. He was subsequently sentenced to 188 months' imprisonment and five years of supervised release. This appeal of the judgment, without objection to the sentence, followed.

II. DISCUSSION

A. Arthur Rancourt's In-Court Identification Testimony

The defendant argues that the district court violated his Fifth Amendment right to due process when it denied his motion to suppress Arthur Rancourt's in-court identification of Ciak as the man who had threatened Michael Reed in the parking lot. The defendant contends that Rancourt's identification testimony was unreliable because Agent Zane Roberts of the U.S. Bureau of Alcohol, Tobacco, and Firearms exposed Rancourt to unduly suggestive identification procedures on two occasions prior to Ciak's first trial.

The first incident occurred soon after the events of April 12, 1991. Roberts met with Rancourt in an effort to elicit a positive identification of Ciak as the man who had threatened Michael Reed. Rancourt failed to select Ciak's picture out of a photo array, however, choosing another photograph instead. At this point, Agent Roberts apparently picked out Ciak's photo and identified it as a picture of Scott Ciak, the individual being held for threatening Reed. In a second incident, which occurred just before Rancourt testified at the first Ciak trial, Rancourt apparently noticed the defendant's driver's license...