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First Circuit Upholds New Trial on Basis of Confrontation Clause Violation

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In United States v. Ackerly, the government appealed the District Court’s decision to grant a new trial on the basis of the defendant’s argument that the government violated the Confrontation Clause. In that case, the defendant and her co-defendants were alleged to have conducted a fraudulent scheme, which consisted of bribing an employee of a firm (ISS) in exchange for non-public information about ISS’s proxy-voting advice, and to have concealed their scheme by falsely invoicing their own employer’s (Georgeson, Inc.) clients for a portion of the cost of the bribes. 

At the trial, the government called a witness, Haynes, who testified that he participated in a scheme to bribe ISS employee, Zentmyer. The prosecutor asked Hayes whether at the time he pleaded guilty he was aware that Zentmyer had also pleaded guilty to being involved in a conspiracy to steal confidential ISS information in exchange for bribes. The defendant objected before Haynes could answer. The court sustained the objection and issued a curative instruction to the jury. 

The defendant moved for a mistrial, arguing that the government violated the Confrontation Clause of the Constitution by exposing Zentmyer’s guilty plea through the prosecutor’s statement rather than through testimony from Zentmyer. The District Court denied the defendant’s motion, but included a further curative instruction in its jury charge. After deliberation, the jury convicted the defendant. The District Court granted the defendant’s subsequent motion for a new trial. 

On appeal, the government argued that the Confrontation Clause was not implicated as a matter of law because the testimonial statement the District Court found prejudicial was never admitted into evidence. The government also argued that a single unanswered question and multiple curative instructions could not, as a matter of law, have violated the Confrontation Clause. The government argued that if either of those contentions were correct, then the District Court had applied too strict a standard of harmless error review. 

However, because the government never argued that the prosecutor’s statement did not violate the Confrontation Clause in the district court, the Court of Appeals found that the government failed to raise the issue at trial and, thus, reviewed the District Court’s decision for plain error. To prevail under plain error review, the government needed to demonstrate (1) that an error occurred (2) which was clear or obvious and which not only (3) affected its substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings. The Court of Appeals found that the government failed to meet the second step under plain error analysis, finding that case law did not provide a bright-line rule regarding whether statements not admitted into evidence could violate the Confrontation Clause. To the contrary, the Court noted, “[t]hat this circuit has long recognized Confrontation Clause protection against extrinsic information disclosed to juries, whether admitted into evidence or not, strongly suggests that the government’s bright-line rule is open to question.” The Court held that, to the extent the District Court may have erred in treating the prosecutor’s improper statements as a Confrontation Clause violation (which the Court did not decide), such error was neither clear nor obvious. Further, the Court found that the District Court’s curative instructions did not, as a matter of law, preclude the District Court from finding a Confrontation Clause violation. As such, the Court of Appeals upheld the grant of the new trial. 

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