U.S. v. Cosentino

• Decision Date: 06 April 1988
• Docket Number: No. 693,D,693
• Parties: , 25 Fed. R. Evid. Serv. 551 UNITED STATES of America, Appellee, v. Louis COSENTINO, Defendant-Appellant. ocket 87-1412.
• Court: U.S. Court of Appeals — Second Circuit

Page 30

844 F.2d 30

56 USLW 2630, 25 Fed. R. Evid. Serv. 551

UNITED STATES of America, Appellee, v. Louis COSENTINO, Defendant-Appellant.

No. 693, Docket 87-1412.

United States Court of Appeals, Second Circuit.

Argued Jan. 25, 1988.

Decided April 6, 1988.

Colleen P. Cassidy, Legal Aid Soc., Federal Defender Services Unit, New York City, for defendant-appellant.

Daniel C. Richman, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., and John F. Savarese, Asst. U.S. Atty., S.D.N.Y., New York City, of counsel), for appellee.

Before FEINBERG, Chief Judge, and MESKILL and MAHONEY, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York, Kram, J., following a jury trial.

Defendant-appellant Louis Cosentino was convicted of extortion in violation of 18 U.S.C. Sec. 1951 (1982) and use of the mails to facilitate bribery in violation of 18 U.S.C. Secs. 2, 1341 (1982). Two other counts were dropped prior to trial. Cosentino challenges the admission of witness cooperation agreements during direct testimony of government witnesses and claims that certain questions and comments by the prosecutor constituted prejudicial misconduct. For reasons that follow, we affirm.

BACKGROUND

Defendant-appellant Cosentino was a Project Superintendent for the New York City Housing Authority. As a superintendent, he had limited authority to purchase materials not available through the Housing Authority by placing "certificate for payment" orders with private vendors. Although Authority rules prohibited superintendents from placing more than $500 in such orders with any single vendor, Cosentino allegedly evaded this limitation by splitting orders among multiple companies owned by each vendor. He allegedly employed the same stratagem to circumvent another Authority rule that proscribed placement of more than one order with any single vendor in any thirty day period. According to the government, Cosentino solicited and received kickbacks from the vendors with whom he placed certificate for payment orders.

At trial, the government's case rested almost exclusively on the testimony of Alan Rappaport and Irving Eisenberg, two vendors who had dealt with Cosentino. They testified about the kickback scheme, explaining that Authority superintendents in general and Cosentino in particular placed orders only with vendors who kicked back a percentage of each order to the superintendent. There was also testimony that Cosentino received a $1,000 loan that he "worked off" by placing $10,000 worth of certificate for payment orders without demanding his usual ten percent kickback.

Cosentino took the stand on his own behalf to explain that he had split orders only in order to obtain necessary supplies that could not readily be procured through the Authority. He had evaded the rules, he said, to provide better service to the projects under his supervision. He also explained that he had paid the loan back out of his own pocket and emphatically denied soliciting or accepting bribes.

Because the case against Cosentino depended so heavily on the testimony of Rappaport and Eisenberg, their credibility was the central battleground of the trial. As participants in the kickback scheme who had agreed to testify in return for guilty pleas on reduced charges, they were especially vulnerable to impeachment. As a result, both the prosecuting Assistant United States Attorney (AUSA) and Cosentino's counsel highlighted credibility issues in their respective opening statements to the jury.

In opening, the prosecutor outlined the case against Cosentino, alluding specifically to the witnesses' background and cooperation agreements as follows:

I will tell you now about Rappaport and Eisenberg, the two vendors you will hear testify in this trial. They were not innocent victims. They acknowledge their participation in corrupt and criminal [a]ctivity. They pleaded guilty to felony charges and have been sentenced, but before they pled guilty they entered into a cooperation agreement with the U.S. Attorney's Office, an agreement to [sic] which the U.S. Attorney's office agreed to accept their pleas and in return they agreed to testify.

Remember, people who engage in conspiracy don't act in the open, and, as the evidence in this case will show, they tried not to keep records of their dealings. They acted in secret.

So for us to be able to show you what happened at Highbridge Houses [where Cosentino was superintendent], it's necessary that we bring people right from out of the muck to testify before you today.

Because Rappaport and Eisenberg participated in corrupt activities and because they have an agreement with the government, the government asks you to scrutinize Listen closely to what they say and see if what they say doesn't make sense in light of all the evidence in this case.

their testimony very carefully. You may not like a lot of the things they have done, but, remember, they are not on trial here today. Only Louis Cosentino is on trial, so when Alan Rappaport and Irving Eisenberg testify, you should be asking yourself one question: Are they telling you the truth today or tomorrow?

Tr. 11-12. Cosentino's counsel made a brief opening statement devoted almost entirely to the credibility issues. He focused on specific aspects of the cooperation deals that Rappaport and Eisenberg had struck with the government.

The only evidence they [i.e., the government] are going to give you are the words of Alan Rappaport and Irving Eisenberg, and, as [prosecuting AUSA] Mr. Richman says to you, they are raised up from the muck.

The government says criminals will be testifying against the innocent man sitting at the defense table, Mr. Louis Cosentino.

You will find out that they are men who received large amounts of money from the New York City Housing Authority. You will find out that these are men who are convicted felons; both pled guilty in the court to felonies.

Cooperation agreements, they made deals with the government. A deal basically means: You give us what we want and we'll give you what you want.

What the government wants is a conviction.

So what are they going to do but come here and try to give the government what they want in exchange for which they will get lesser charges than originally exposed to, and, more importantly, their back is scratched by the government in a letter sent to the judge later on.

Mr. Eisenberg has already been sentenced, but if it were found out he did not give the government what the government wanted here in contradiction to what he said earlier, he leaves himself open to all the rest of the charges that he could have been charged with, and the government will go after him.

Tr. 13-14. During the direct testimony of both Rappaport and Eisenberg, the government offered the full text of their written cooperation agreements. The district court admitted them over defense objection. The jury requested both agreements, in addition to other exhibits and testimony, during its deliberations leading to Cosentino's conviction on both counts.

On appeal, Cosentino principally argues that the admission of the cooperation agreements during direct examination constituted impermissible bolstering of the witnesses' credibility. He also argues that the agreements were misleadingly incomplete and that a limiting instruction should have been given. Finally, he contends that certain questions and statements by the AUSA constituted prosecutorial misconduct. We reject these contentions and affirm Cosentino's convictions.

DISCUSSION

I.

This appeal requires us to define the circumstances in which witness cooperation agreements may properly be admitted into evidence during the direct testimony of government witnesses. The existence and contents of such agreements are inevitably of considerable interest to both prosecution and defense. They tend to support witnesses' credibility by setting out promises to testify truthfully as well as penalties for failure to do so, such as prosecution for perjury and reinstatement of any charges dropped pursuant to the deal. The agreements can impeach, however, by revealing the witnesses' criminal background. Defense counsel can also argue that such witnesses cannot be believed because they are under pressure to deliver convictions and correspondingly tempted to twist facts to do so.

Cooperation agreements accordingly demand careful treatment under principles governing attack on and rehabilitation of witnesses' credibility. It is well settled A witness' credibility is often tested by a sequence of attack on cross-examination followed by rehabilitation on redirect. It may sometimes be useful, however, to develop impeaching matter in direct examination of a "friendly" witness in order to deprive an adversary of the psychological advantage of revealing it to the jury for the first time during cross-examination. We have accordingly held that impeaching aspects of cooperation agreements may be brought out in the government's direct examination of a witness who testifies pursuant to such an agreement. See Borello, 766 F.2d at 57; Edwards, 631 F.2d at 1051-52. Cf. United States v. Fernandez, 829 F.2d 363, 365 (2d Cir.1987) (discussing scope of permissible reference to agreement in direct examination). Even in the absence of a prior attack on credibility, "the elicitation of the fact of the agreement and the witness' understanding of it, as a motivation for the witness to testify for the Government, should be permitted on direct examination in order to anticipate cross-examination by the defendant which might give the jury the unjustified impression that the Government was concealing this relevant fact." Edwards, 631 F.2d at 1052.

                that absent an attack, no evidence may be admitted to support a witness' credibility.  See generally McCormick on Evidence Sec. 49 (E. Cleary 3d ed. 1984);

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