Second Circuit Vacates Conviction Because of Error Admitting Hearsay Evidence of Threats Against Witness

June 10, 2017 by Marshall A. Mintz · Leave a Comment 

Cummings was charged with conspiracy and multiple narcotics, murder, and firearm offenses. During the trial one of the government’s witnesses testified that Cummings had threatened him because he was a cooperating witness. Cummings was convicted and sentenced to 75 years’ imprisonment.

On appeal it was argued that the testimony was inadmissible hearsay because an examination of the record showed the witness actually stated he did not hear the threats personally. In United States v. Cummings, 858 F.3d 763 (2d Cir. 2017), the Second Circuit agreed and found  the evidence  so “toxic” that there was no way to conclude it did not influence the jury. As a result, the court vacated the convictions and remanded for a new trial.

The Circuit’s opinion provides an excellent analysis of the dangers of hearsay and the prejudice which can result. Please check back soon as I will be posting a more comprehensive discussion of the case.

(Disclosure: I represented Cummings on appeal but not at the initial trial)

Conspiracy Conviction Vacated Where Evidence Did Not Show Defendant Knew the Precise Nature of Contraband He Received

May 5, 2010 by Marshall A. Mintz · Leave a Comment 

In United States v. Torres, 09-17710-cr (2d Cir. May 5, 2010), the defendant had been convicted after trial of conspiring to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. sec. 846.

In reversing that conviction, the Court found that the evidence was sufficient to permit the jury to find beyond a reasonable doubt that there existed a conspiracy for the distribution of cocaine and that the defendant was most likely aware that the packages which were sent to him contained contraband.  However, the Court could not locate in the record any evidence which showed that the defendant knew the packages contained narcotics.  As such, the evidence was  insufficient for the jury to find that the defendant had knowledge of the purposes of the conspiracy of which he was accused.

In sum, “proof that the defendant engaged in suspicious behavior, without proof that he had knowledge that his conduct involved narcotics, is not enough to support his conviction for conspiracy to traffic in narcotics.”