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First Circuit: Government’s Mention of Co-Defendant’s Guilty Plea Before Jury Was Confrontation Clause Violation Warranting New Trial

Donna Ackerly was tried with four co-conspirators in February 2018 for wire fraud, honest services wire fraud, and conspiracy to commit both. After an initial mistrial due to mid-trial excusal of too many jurors, Ackerly was retried separately.

During the trial, the prosecutor was examining Keith Haynes, a cooperating witness who had pleaded guilty in connection with the case. The prosecutor asked Haynes a question that revealed Brian Zentmyer had also pleaded guilty. This was significant because Ackerly was indicted for her role in allegedly bribing Zentmyer. Further, Zentmyer had not been called as a witness during the retrial and was thus not available for questioning.

Ackerly’s counsel objected to the question on the grounds that Zentmyer’s personal decision to plead guilty had no bearing on Ackerly’s guilt. The court sustained the objection, issued a curative instruction to the jury, and also issued jury instruction to disregard such statements as non-dispositive of guilt. Ackerly moved for another mistrial, was denied, and then motioned for a new trial on the same grounds after the jury convicted her.

The district court granted her motion for a new trial on the ground that the prosecution’s question amounted to a constitutional error by denying Ackerly her right to confront Zentmyer. The Government then appealed to the First Circuit.

The Court first addressed the issue of the proper standard to employ on review. Normally, a court of appeals applies the more lenient “abuse of discretion” standard, analyzing whether the district court abused its discretion in its ruling (in this case by granting a new trial). This was the standard the Government urged in this case.

However, when an issue is not properly raised in the district court and thereby preserved for appeal, the court of appeals reviews under the harsh “plain error” standard. To meet that standard, the appellant (the Government in this case) must show: (1) an error occurred, (2) the error was clear or obvious, (3) which affected the appellant’s substantial rights, and (4) “seriously impaired the fairness, integrity or public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56 (1st Cir., 2001). All four elements must be met. United States v. Pinkham, 896 F.3d 133 (1st Cir. 2018).

The Court determined that the Government did not preserve the error in the district court for appeal and applied plain error review. As such, the Government had to show that, not only was the district court’s finding of a constitutional violation an error, but it also had to show that the error was “clear” or “obvious.” The Government could not meet the second prong of the plain error standard because the error was not obvious under current case law at the time of the appeal.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause under the Fifth Amendment bars admission of a witness’ testimonial statements against a defendant at trial unless the witness is unavailable or the defendant had a prior opportunity to cross-examine the witness.

The Government conceded that a guilty plea constitutes a testimonial statement under Crawford. However, the Government argued that the prosecutor’s remark itself was not offered into evidence and was thus itself non-testimonial. The Government offered no clear case law supporting this position, and in fact, First Circuit precedent seemed to contradict it. In United States v. Offray-Campos, 534 F.3d 1 (1st Cir. 2008), the district court disclosed that the defendant’s alleged co-conspirators had been convicted. The First Circuit deemed this disclosure a violation of the defendant’s right to confrontation despite the disclosure not being admitted into evidence.

The Court explained that in order to show the district court committed plain error in granting Ackerly a new trial “the government must show, at a bare minimum, that not all hearsay testimonial statements demand a prior opportunity for confrontation.” But, the Court declared, “The government offers not a shred of authority in this respect.” Thus, there was no plain error where there was no controlling case law on the matter, the Court concluded.

The Government also argued that no constitutional violation occurred because the witness never answered the question, and the court took curative measures. The Court rejected the argument, stating that “a fair reading of Crawford supports a conclusion that a single unconfronted testimonial statement may work a violation of a defendant’s right to confrontation” and that “the notion that curative instructions may downgrade a constitutional violation to some lesser status conflates the question of whether an error occurred with the question of whether an error was prejudicial.”

Thus, the Court concluded the Government could not overcome the plain error standard for either claim, and it stated “it is apparent that no applicable case law forbade the district court, as a matter of law, from concluding that an error of constitutional dimension had occurred.”

Accordingly, the Court upheld the district court’s finding of a constitutional error and affirmed the order granting Ackerly a new trial. See: United States v. Ackerly, 981 F.3d 70 (1st Cir. 2020). 

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United States v. Ackerly



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