United States v. Kelly
| Decision Date | 29 June 2022 |
| Docket Number | 19-CR-286 (AMD) |
| Citation | 609 F.Supp.3d 85 |
| Parties | UNITED STATES of America, v. Robert Sylvester KELLY, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Elizabeth Geddes, Government Attorney, Maria E. Cruz Melendez, Nadia Shihata, United States Attorneys Office, Brooklyn, NY, for United States of America.
Ilana Haramati, Meister Seelig & Fein LLP, New York, NY, Jennifer Ann Bonjean, Ashley Blair Cohen, Bonjean Law Group, PLLC, New York, NY, Calvin Harold Scholar, The C.H. Scholar Law Firm PLLC, New York, NY, Thomas A. Farinella, The Law Office of Thomas A. Farinella, New York, NY, Steven A. Greenberg, Pro Hac Vice, Greenberg Trial Lawyers, Chicago, IL, Michael I. Leonard, Pro Hac Vice, LeonardMeyer LLP, Chicago, IL, Devereaux Leon Cannick, Aiello & Cannick, Maspeth, NY, Nicole Blank Becker, Pro Hac Vice, Blank Law, PC, Royal Oak, MI, for Defendant.
The defendant, an international music star, was charged with using his fame and organization to lure young people into abusive sexual relationships—a racketeering enterprise that the government alleged spanned about 25 years. Over the course of a six-week trial, the government presented the testimony of 45 witnesses and introduced hundreds of exhibits, including written, videotaped and audiotaped evidence of the abuse to which the defendant, enabled by his employees and associates, subjected his victims. On September 27, 2021, a jury convicted the defendant for that conduct.1
Before the Court are the defendant's motions pursuant to Federal Rules of Criminal Procedure 29 and 33 for a judgment of acquittal, or, in the alternative, for a new trial. (ECF Nos. 270, 273, 276, 282, 283.) In seeking this relief, the defendant attacks almost every aspect of his trial—the sufficiency of the evidence, the credibility of the witnesses, his trial lawyers’ competence and the Court's evidentiary rulings. The government opposes. (ECF Nos. 277, 278, 288.) For the reasons explained below, I deny the defendant's motions in their entirety.
The defendant was charged in a third superseding indictment with racketeering in violation of 18 U.S.C. § 1962(c) (Count 1); transportation of Jane for the purpose of illegal sexual activity in violation of 18 U.S.C. § 2421(a) (Count 2); coercion of Jane for the purpose of illegal sexual activity in violation of 18 U.S.C. § 2422(a) (Count 3); coercion of Jane, as a minor, for the purpose of illegal sexual activity in violation of 18 U.S.C. § 2422(b) (Count 4); transportation of Jane, as a minor, for the purpose of illegal sexual activity in violation of 18 U.S.C. § 2423(a) (Count 5); transportation of Faith for the purpose of illegal sexual activity in violation of 18 U.S.C. § 2421(a) (Count 6); coercion of Faith for the purpose of illegal sexual activity in violation of 18 U.S.C. § 2422(a) (Count 7); transportation of Faith for the purpose of illegal sexual activity in violation of 18 U.S.C. § 2421(a) (Count 8); and coercion of Faith for the purpose of illegal sexual activity in violation of 18 U.S.C. § 2422(a) (Count 9). (ECF No. 43.)
On June 14 and 24, 2021, the government advised the Court that Nicole Blank Becker, one of the four attorneys who represented the defendant at trial, had potential conflicts of interest in representing the defendant.2 (See ECF Nos. 107, 114.) The government asserted that, in the summer of 2019, Ms. Blank Becker may have entered into an attorney-client relationship with someone who was then represented by Gloria Rodriguez in Chicago, and who ultimately testified as a government witness.3 (See ECF No. 114.) The Court appointed independent counsel—Ilana Haramati—to advise the defendant. (See ECF No. 112.) The Court conducted a Curcio hearing on June 17 and July 15, 2021. Ms. Blank Becker and Ms. Rodriguez made written submissions, and both answered a series of questions posed by the Court. (See ECF Nos. 108, 110, 125, 126.)4
After considering the submissions and the attorneys’ representations, the Court concluded that Ms. Blank Becker had potential conflicts in representing the defendant, but that the conflicts were waivable. (Curcio Tr. 32.)5 In particular, the Court found that Ms. Blank Becker "had substantial contacts with potential witnesses," including Jane, "and may have developed a relationship of trust with them even though she [was] never formally retained as their lawyer." (Id. ) Due to Ms. Blank Becker's "confidentiality obligations to them," and "given the nature and extent of those communications and the content of them, she would have a conflict if she were to cross-examine either one of them." (Id. ) The Court also determined that Ms. Blank Becker's communications with both women, knowing that they were represented by another attorney, could raise ethical concerns. (Id. at 33.) That, too, created potential a conflict because "a person would be motivated to defend himself or herself from the accusation in a way that might keep the lawyer from asking certain questions or calling certain witnesses." (Id. )
Addressing the defendant, the Court explained in detail the risks of being represented by a lawyer who had the potential conflicts that the Court identified. (Id. at 34-39.) The Court also explained that if the Court determined that the defendant's waiver was knowing and voluntary, the defendant would not be able to cite Ms. Blank Becker's conflict as a reason to overturn a conviction. (Id. at 46.) The defendant responded that he understood the risks, including his waiver of the right to use the conflict as the basis for a challenge to a conviction, and, at the Court's request, explained his understanding of the potential conflicts. (Id. at 34-46.) Ms. Haramati, Curcio counsel, confirmed that she had sufficient time to meet with the defendant, that she explained the conflicts to him, that he understood them and that he was capable of making an informed waiver of his right to conflict-free counsel.6 (Id. at 29-31, 37-38.) The defendant explained that he wanted to continue with Ms. Blank Becker as one of his lawyers, and waived the conflicts. (Id. at 46.) Based on the record, the Court accepted the defendant's knowing and intelligent waiver. (Id. at 47.)
In February and March 2020, the defendant moved to dismiss Count 1 of the indictment and the counts of the indictment incorporating New York Public Health Law Section 2307. (ECF Nos. 41, 42.) In moving to dismiss the Count 1, the defendant claimed that the indictment did not allege a legally cognizable enterprise within the meaning of RICO. (ECF No. 41 at 5-10.) In the second motion, the defendant moved to strike the charges that cite Section 2307 on the theory that the law is unconstitutionally overbroad and vague. (ECF No. 42.) The Court denied both motions in a written decision on May 22, 2020. (ECF No. 69.) On the morning that the oral portion of jury selection was set to begin, the defendant moved to dismiss the indictment on other grounds (ECF Nos. 159, 169); the Court denied that motion also, issuing a subsequent written decision. (ECF No. 252.) Before the final pre-trial conference on August 3, 2021, both parties filed motions in limine. (ECF Nos. 121, 133, 135, 136, 137.) As relevant here, the government sought to admit certain uncharged conduct. (ECF No. 133.) The defendant responded. (ECF No. 146.) At the August 3, 2021 pre-trial conference and prior to opening statements on August 18, 2021, the Court ruled on most of the parties’ requests, except for those on which the Court reserved decision pending hearing the trial evidence. On November 4, 2021, the Court issued a written opinion explaining the rationale for its rulings. (ECF No. 255.)
The Court employed the following system for jury selection. At the Court's direction, the parties submitted a joint proposed jury questionnaire. (See ECF No. 54.) Subsequently, both the government and the defense submitted requests for additions and changes to the questionnaire (see, e.g. , ECF Nos. 96, 105); the Court reviewed the submissions and modified the questionnaire accordingly. (See ECF No. 115.)7 The end result was a 28-page questionnaire with 108 questions. Approximately 575 prospective jurors completed the questionnaire. Next, the parties reviewed the completed questionnaires, and agreed that 251 jurors should be stricken for cause.8 (ECF Nos. 152, 157.) The Court directed the remaining prospective jurors, whom neither party had challenged, to appear for an in-person voir dire. In addition, the Court directed the parties to submit any questions that they wanted the Court to put to the prospective jurors. The parties filed those questions before the oral voir dire.
On August 9 and August 10, 2021, the prospective jurors appeared for questioning. The Court addressed them as a group, and explained the rules that they must follow and the principles of law that applied, including that the defendant was presumed to be innocent, and that the government had the burden of proving the defendant's guilt beyond a reasonable doubt. (J.S. Tr. 17-21, 197-200.) The Court questioned the prospective jurors individually and asked the written questions the parties submitted. The Court also asked the parties whether they had additional questions for jurors and put those questions to the jurors. Following the in-person voir dire , the parties exercised their challenges, both peremptory and for cause.9 At the end of jury selection, which took place over the course of three days, the Court empaneled 12 jurors and six alternate jurors.10
The evidence at trial established the following facts. From the early 1990s until his arrest in 2019, the defendant, a famous recording artist and professional singer and performer, was the head of an organization comprised of employees and associates, including managers, engineers, accountants, personal assistants and...
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