Ed Sapone’s DECISIONS OF THE WEEK -August 16, 2019

| Aug 16, 2019 | Ed Sapone’s Decisions of the Week

There are only two decisions to report this lazy mid-August week: (1) a Second Circuit decision in United States v. Seng that addresses the recurring question of how far SCOTUS’s definition of “official act” set forth in McDonnell v. United States applies beyond its original scope of bribing public officials (see, e.g., United States v. Thiam decided last week); and (2) an interesting AD3 decision that addresses the philosophical Confrontation Clause question of how the defense can cross-examine the author of a testimonial statement when that author might be a computer.

Second Circuit

On Friday, in United States v. Seng, the Circuit affirmed defendant’s SDNY convictions before Judge Vernon S. Broderick for paying and conspiring to pay bribes and gratuities to UN officials, violations of the Foreign Corrupt Practices Act, and related money laundering charges. The Circuit rejected Defendant’s contentions that (1) the UN is not an “organization” within meaning of 18 USC § 666; (2) the jury was not correctly instructed as to controlling law, particularly bribery, in light of McDonnell v. United States, 136 S. Ct. 2355 (2016); and (3) the evidence was insufficient.

The charges stemmed from Defendant’s payments to two UN ambassadors—one of whom was for a time also serving as President of the General Assembly—of more than $1 million to secure a UN commitment to use defendant’s Macau real estate development as the site for an annual UN conference.

Defendant’s primary argument was that he could not be guilty of bribery because the UN was not an “organization” within the meaning of § 666. By defendant’s definition, while the UN was undeniably an organization, § 666 must be construed narrowly to refer to only private entities. The Circuit found that its prior decision in United States v. Bahel, 662 F.3d 610 (2d Cir. 2011), controlled, which had affirmed the § 666 conviction of a UN official who corruptly accepted and solicited things of value in return for influencing the award of UN contracts.

The Circuit also rejected defendant’s challenges to the jury instructions and the sufficiency of the evidence. Before the district court, the prosecution argued that the quid pro quo elements

of § 666 and the Foreign Corrupt Practices act were not limited to “official acts” as defined in the general bribery statute, as construed by the Supreme Court in McDonnell v. United States. Defendant argued that FCPA bribery, as well as § 666 bribery, required proof of an official act satisfying the McDonnell standard; that the district court’s official‐act instruction on § 666 bribery failed to satisfy that standard; and that the evidence was insufficient, in any event, to satisfy the McDonnell standard.

The Circuit found that § 666 and FCPA bribery were not textually limited to “official acts” as defined in McDonnell. Although the jury was incorrectly charged that it was required to find an official act, and the court then failed to define that official act in line with McDonnell, the Circuit found that the error was harmless, because there was no requirement that the jury find McDonnell official act compliance.

The Circuit’s decision can be found here.

Appellate Division, Third Department

On Thursday, in People v. Wakefield, AD3 affirmed Defendant’s Schenectady County first-degree murder conviction, rejecting his challenges, among others, to the general acceptance of TrueAllele DNA testing under NY’s Frye test, and to his Confrontation Clause challenge based on the prosecution’s failure to turn over TrueAllele’s source code.

TrueAllele is a computer program that subjects a DNA mixture to statistical modeling techniques to infer what DNA profiles contributed to the mixture and calculate the probability that DNA from a known individual contributed to it. It has some of the same attributes as the Forensic Statistical Tool (“FST”) used by NYC’s OCME.

AD3 agreed with Supreme Court that TrueAllele had been generally accepted within the meaning of Frye. After the Frye hearing, the court had found that there was a “plethora” of evidence in favor of TrueAllele, and “no significant evidence to the contrary.” AD3 found that, in view of the evidence adduced at the Frye hearing, the court’s ruling was proper.

Defendant challenged the admission of the results of TrueAllele’s testing on Confrontation Clause grounds. He argued that the failure to provide the computer source code that was used to produce the DNA likelihood ratio results prevented him from challenging the software’s conclusions. Essentially, Defendant argued that the computer program was the declarant within the meaning of the Confrontation Clause, because it was essentially testifying to a fact, i.e., the likelihood that the defendant’s DNA was present.

AD3 disagreed. Although it agreed that there might be circumstances under which what it called an “artificial intelligence-type system” might be a declarant, the human input involved in the TrueAllele system, which involved telling “the computer what questions to ask when interpreting data,” meant that the software hadn’t reached that stage. AD3 also pointed to the

fact that the creator of TrueAllele, who wrote the source code, was present in the courtroom and had testified. By AD3’s reckoning, it was the program’s author who was the declarant. Because he testified, there was no Confrontation Clause violation, even though the defense was not provided with the program’s source code.

AD3’s decision can be found here.

Warm regards,

Edward V. Sapone

Sapone & Petrillo, LLP

 

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