U.S. v. Tropeano

• Decision Date: 01 August 2000
• Docket Number: DEFENDANT-APPELLANT,Docket No. 00-1708
• Citation: 252 F.3d 653
• Parties: (2nd Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. FREDERICK TROPEANO, AND MARLON TROPEANO, DEFENDANTS, DAVID BARROSO, JR.,
• Court: U.S. Court of Appeals — Second Circuit

Page 653

252 F.3d 653 (2nd Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. FREDERICK TROPEANO, AND MARLON TROPEANO, DEFENDANTS, DAVID BARROSO, JR., DEFENDANT-APPELLANT.

Docket No. 00-1708

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: February 26, 2001

Decided June 11, 2001

Appeal from a conviction for conspiracy to commit securities and wire fraud following a jury trial in the Southern District of New York (Shira A. Scheindlin, Judge). Appellant argues that the district court erred in admitting a follow-up statement sought by the government during a plea allocution of a co-defendant, in giving a conscious avoidance charge, and in admitting certain audiotapes. Although we believe that admission of the follow-up portion of the allocution was error, we conclude that its admission was harmless. We also hold that the charge was proper and that the tapes were admissible. We therefore affirm.

Colleen P. Cassidy, The Legal Aid Society Federal Defender Division Appeals Bureau, New York, New York, for Defendant-Appellant.

Timothy J. Coleman, Assistant United States Attorney (Mary Jo White, United States Attorney, and Christine H. Chung, Assistant United States Attorney, of counsel), New York, New York, for Appellee.

Before: Winter, Mclaughlin, and Pooler, Circuit Judges.

Winter, Circuit Judge

David Barroso, Jr., appeals from a conviction after a jury trial before Judge Scheindlin. He was found guilty of conspiring to commit securities and wire fraud, in violation of 18 U.S.C. § 371. On appeal, Barroso contends that the district court: (i) violated the hearsay rule and the Confrontation Clause when it admitted a co-defendant's follow-up statement sought by the government during the co-defendant's plea allocution; (ii) erroneously charged the jury that it could find the requisite level of criminal knowledge on a conscious avoidance theory; and (iii) admitted certain audiotapes without sufficient authentication.

Although the admission of the follow-up statement from the plea allocution was error, we conclude that it was harmless. We further conclude that giving the conscious avoidance charge was proper and that the audiotapes were admissible. We therefore affirm.

BACKGROUND

The evidence showed that Barroso and his co-defendants, Marlon and Frederick Tropeano, conspired to defraud four customers of the brokerage firm at which they were employed. The scheme involved the use of forged documents to transfer the customers' accounts to other brokerage firms without the customers' knowledge. See United States v. Barroso, 108 F. Supp. 2d 338, 339 (S.D.N.Y. 2000). Once the transfers were made, defendants liquidated the accounts and took the proceeds. Marlon and Frederick Tropeano pleaded guilty a few days prior to the commencement of the trial. Barroso went to trial, his primary defense being that he was duped by the Tropeano brothers into unknowingly facilitating their crimes. See id. at 340. However, there was considerable evidence that Barroso's active participation in the scheme was hardly innocent. He was recorded on audiotape both urgently requesting the liquidation of transferred accounts and stating to a transferee brokerage that he knew the owner of an account and had authority over that account as a result of his friendship with the owner's son. That owner had no sons and had never met Barroso. Moreover, Barroso endorsed a check drawn on a transferred account. The jury convicted Barroso of conspiracy to commit securities and wire fraud, in violation of 18 U.S.C. § 371.

Following his conviction, Barroso moved for a judgment of acquittal, see Fed. R. Crim. P. 29, or alternatively, a new trial, see Fed. R. Crim. P. 33. Only one of the various claims in that motion is relevant to this appeal, namely, that the district court improperly admitted a portion of Marlon Tropeano's plea allocution.

The factual background for this claim is as follows. We quote first from the portion of Marlon Tropeano's plea allocution relating to the factual predicates for his plea:

THE COURT: Tell me in your own words what you did.

THE DEFENDANT: I entered into a conspiracy with others between March of 1997 and April of 1998 to commit securities and wire fraud in connection with four accounts at Briarwood Investments by causing unauthorized transactions to be executed in these four accounts of Briarwood Investments and knowing that such transactions would be executed by telephone, fax, into an internal securities clearing house system.

[Colloquy relating to venue omitted]

THE COURT: Does the government have any other questions it wishes me to ask?

MR. COLEMAN: May I have a moment with counsel?

THE COURT: Yes. (Pause)

MR. COLEMAN: Your Honor, could the Court inquire whether the defendant conspired with one person or more than one person?

THE DEFENDANT: Yes, conspired with one or more people.

THE COURT: Was it one or more than one?

THE DEFENDANT: It was more than one person.

The corresponding portion of Frederick Tropeano's allocution reads as follows:

THE COURT: Let's turn for a moment to 99 Cr. 1025, which I call the Briarwood fraud but want to you [sic] understand that's a conspiracy, and a conspiracy is an agreement. So the charge there is that you agreed to commit securities and wire fraud with other people between March '97 and April '98.

Having been fully apprised of that, can you tell me what you did that makes you say you are guilty of conspiracy to commit securities fraud and wire fraud? What did you do?

THE DEFENDANT: I entered into a conspiracy with others between March of '97 and April of '98 to commit securities and wire fraud in connection with four accounts at Briarwood Investments, by causing unauthorized transactions to be executed in these four accounts in Briarwood Investments and known --

THE COURT: I am sorry. I am not understanding you. Maybe you ought stand up and read slowly, like everybody else. I am not understanding you. Why don't you just start that one all over again?

MR. LONDON: Say it your own words [sic].

THE COURT: No, I thought it was fine to read. Those, I am sure, are very carefully thought out words between you and your client. I have no problem with that. I just want him to read it slowly and carefully and loudly.

THE DEFENDANT: OK. I entered into a conspiracy with others between March of 1997 and April of 1998 to commit securities and wire fraud in connection with four accounts at Briarwood Investments, causing unauthorized transactions to be executed in these four accounts at Briarwood Investments, and knowing that such transactions would be executed by telephone, fax, into an internal securities clearinghouse system.

That's all, your Honor.

[Colloquy relating to venue omitted]

THE COURT: I see. With whom did you agree? You said you agreed with others. With whom did you agree?

THE DEFENDANT: Marlon Tropeano.

We turn now to the events at Barroso's trial that gave rise to the present appeal. For the purpose of proving the existence of the conspiracy alleged in the indictment, the government initially offered the portions of Marlon's and Frederick's allocutions describing the conspiracy and each one's participation in it, namely, the nearly identical paragraphs quoted above beginning "I entered...." Appellant's response was, first, to request redaction of the words "with others" from both allocutions, and, second, to offer the additional portion of Frederick's statement in which Frederick was asked with whom he conspired and replied, "Marlon Tropeano." The purpose of this latter offer was to bolster Barroso's claim that the sole conspirators were Marlon and Frederick Tropeano.

In response to the offer of Frederick's add-on description of a seemingly limited conspiracy, the government sought the admission of the follow-up statement from Marlon's allocution, in which, after an explicit request by the prosecutor, Marlon stated that he conspired with "more than one person." In support, the government argued that "the defense should [not] have it both ways. They shouldn't be able to argue that there were only two members of the conspiracy, offer only the portion that supports that and not allow the government to offer the portion of the allocution that supports our theory that there were more than one." The district court agreed with the government and admitted the answers to the follow-up questions posed to both Tropeanos.¹ See 108 F. Supp. 2d at 345 n.8. The portion of Marlon's allocution that was read to the jury included the prosecutor's explicit request regarding the number of co-conspirators.

In his post-conviction motion, Barroso argued that Marlon Tropeano's add-on statement that he conspired with "more than one person" was inadmissible hearsay and that its admission violated his Sixth Amendment right to confront witnesses. The district court denied the motion, holding that both of the Tropeanos' allocutions qualified as statements against penal interest under Fed. R. Evid. 804(b)(3) and possessed sufficient guarantees of trustworthiness justifying their exemption from the confrontation requirement. See 108 F. Supp. 2d at 343-44. The district court noted that it had issued a limiting instruction at trial, allowing the jury to consider the statements from both allocutions only on the issues of the existence of the conspiracy and "what, if anything, Marlon and Frederick Tropeano did in order to further the object of the conspiracy." Id. at 344. A further instruction had informed the jury that, if it found that the conspiracy as charged in the indictment existed, it "must decide as a separate question whether David Barroso was a part of the alleged conspiracy or scheme." Id.

The district court also noted that Barroso had refused to stipulate to the existence of the conspiracy, thereby putting the government to its proof on that issue, and that the government would not have sought the introduction of Marlon's follow-up answer had...