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United States v. Rosemond

United States Court of Appeals, Second Circuit

November 1, 2016

United States of America, Appellee,
James J. Rosemond, Defendant-Appellant, Derek Andre English, Ronald Anderson, Brian McCleod, AKA Slim, AKA Brian Connelly, AKA Joseph King, AKA Brian Conley, AKA John A. Conley, Shawn Williams, AKA William Shawn, Jason Williams, Derrick Grant, Rodney Johnson, AKA Rodney T. Hibbert, AKA Toree Johnson, Defendants.

          Argued: April 6, 2016

         On Appeal from the United States District Court for the Southern District of New York

         Appeal from a judgment of the United States District Court for the Southern District of New York (McMahon, C.J.), convicting defendant of murder for hire and related charges. On appeal, defendant contends that 1) the district court erred in ruling that certain defense arguments would open the door to admission of statements made during a proffer session; 2) the district court erred in admitting evidence of prior bad acts; and 3) there was insufficient evidence to support the conviction. We agree that the district court incorrectly applied the waiver provision in defendant's proffer agreement, and erred in precluding defense counsel from making certain arguments at trial. Because the error was not harmless, we vacate the judgment of conviction, and remand for further proceedings consistent with this opinion.

         Vacated and Remanded.

          Samson Enzer, Assistant United States Attorney (Elizabeth Hanft, Karl Metzner, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

          Jonathan I. Edelstein, Edelstein & Grossman, New York, NY, for Defendant-Appellant.

          Before: Kearse, Cabranes, and Chin, Circuit Judges.

          Chin, Circuit Judge.

         Defendant-Appellant James J. Rosemond appeals a March 25, 2015 judgment entered in the United States District Court for the Southern District of New York (McMahon, C.J.), following a jury trial, convicting him of murder for hire, conspiracy to commit murder for hire, murder through use of a firearm, and possession of a firearm, in violation of 18 U.S.C. §§ 1958, 924(c)(1)(A)(iii), and 924(j). Rosemond was the head of Czar Entertainment, a music label that engaged in a lengthy and violent feud with a rival company, Violator Records, and its rap group, G-Unit. The feud culminated in the fatal shooting of a G-Unit associate, Lowell Fletcher.

         Following his arrest for narcotics-related charges, Rosemond participated in proffer sessions with the Government in hopes of reaching a cooperation agreement. Rosemond and the Government signed a proffer agreement that prohibited the Government from using Rosemond's statements against him, except to rebut factual assertions made by him or on his behalf at a later proceeding. During one such proffer session, law enforcement officers asked Rosemond if he knew that his and his associates' actions in September 2009 would lead to Fletcher's death. Rosemond responded that he knew Fletcher would die.

         At Rosemond's first trial for his role in Fletcher's murder, the district court ruled that any argument by defense counsel that the Government had failed to prove that Rosemond had intended to murder - as opposed to merely shoot - would open the door to admitting his proffer statement. The first trial resulted in a mistrial and at the second trial the district court adhered to its prior rulings as to the proffer statements. As a consequence, Rosemond limited his defense. He was convicted on all counts.

         On appeal Rosemond contends that 1) the district court erred in ruling that certain defense arguments would open the door to the admission of statements made during a proffer session; 2) the district court erred in admitting evidence of prior bad acts; and 3) there was insufficient evidence to support the conviction. We conclude that the district court erred in unduly restricting Rosemond's ability to defend against the charges, and that such error was not harmless. Accordingly, we vacate the judgment and remand for a new trial.


         I. The Facts

         Because Rosemond appeals his convictions following a jury trial, "our statement of the facts views the evidence in the light most favorable to the government, crediting any inferences that the jury might have drawn in its favor." United States v. Dhinsa, 243 F.3d 635, 643 (2d Cir. 2001) (quoting United States v. Salameh, 152 F.3d 88, 107 n.1 (2d Cir. 1998) (per curiam)). At trial, the Government elicited testimony from three cooperating witnesses - Khalil Abdullah, Mohammed Stewart, and Brian McCleod - about the violent hip hop feud between Czar Entertainment and G-Unit and the events leading up to Fletcher's death.

         A. The Feud

         Rosemond was the owner of Czar Entertainment, a music business that represented and managed various hip hop and rap musicians, including rap artist Jayceon Taylor. Czar had a longstanding and violent rivalry with Violator Records and its rap group, G-Unit, featuring Curtis Jackson, Marvin Bernard, and Lloyd Banks. The dispute arose in part after Jackson publicly insulted Taylor on Hot 97, a New York hip hop radio station, in February 2005. After hearing what was said on the radio, Rosemond told his associate, Mohammed Stewart, to accompany Taylor to Hot 97 to "make sure nothing happen[ed] to him." App. 309. When Taylor arrived at Hot 97, someone started shooting into the crowd outside the radio station. Taylor's friend was shot in the leg. Later that day, Stewart had another Czar associate shoot up the front door of Violator Records. Rosemond paid Stewart $2, 000 for that shooting.

         Rosemond had another altercation with G-Unit in December 2006 at an award ceremony at the Apollo Theater in Harlem. Marvin Bernard of G-Unit confronted Rosemond at the event about Taylor "talking reckless" about G-Unit frontman, Curtis Jackson. App. 258. In anticipation of a shooting, Rosemond left through a side exit with his associates, including Khalil Abdullah. After they left the Apollo, Rosemond and Abdullah followed Bernard's car and shot fifty rounds into it when it pulled over. Following the Apollo incident, a meeting was organized by music industry mogul, Sean Combs, between Rosemond and G-Unit's manager, Christopher Lighty, to make peace between the groups. The meeting got heated and resulted in Rosemond getting "mushed in the face" by Lighty. App. 260. Rather than quell the feud, the meeting only increased tensions between the groups.

         B. Assault of Rosemond's Son and Subsequent Retaliation

         On March 20, 2007, three G-Unit associates - Marvin Bernard, Jaleel Walter, and Lowell Fletcher - were leaving Violator's office when they saw a 14 year-old boy wearing a sweatshirt bearing the Czar Entertainment logo. They confronted him, pushed him up against a wall, slapped him, and threatened him with a gun. A parking attendant at the garage across the street saw what was happening and yelled at them to break it up. The G-Unit associates got into a black Suburban and drove away.

         The boy was Rosemond's son. When Rosemond found out about the incident later that day, he was furious and immediately sent Stewart to cut a G-Unit associate with a razorblade. Stewart testified that Rosemond was so disturbed by the attack on his son that he sought to retaliate in "three ways": "through the law, through music and through streets." App. 315.

         Rosemond first sought out assistance from law enforcement. Rosemond's son reported the incident to the police and identified Fletcher and Bernard as his attackers. Criminal charges were brought against them both. Fletcher eventually pled guilty to assault and endangering the welfare of a child, and began serving a term of imprisonment in Mohawk Correctional Facility. Next, on the musical front, Rosemond organized conferences with hip hop figures to "talk about the guns and violence in hip-hop." App. 315. Taylor also wrote a song about the feud.

         The real retaliation, however, was achieved through "violence in the streets" where "[t]he objective was to shoot somebody." App. 315. Violence between the two gangs began to ratchet up. A month after the slapping incident, in April 2007, Rosemond claimed to have shot thirty rounds into Bernard's mother's house in Queens. Over the next couple of years, he and his associates continued to target G-Unit members. For instance, Stewart threw Molotov cocktails at and shot rounds into G-Unit associate Walter's house and car in Staten Island, and another Czar associate was paid $5, 000 for having a G-Unit jeep torched in New Jersey. There were various unsuccessful attempts to shoot Bernard, Walter, Lighty, and their homes, cars, and family members by Rosemond, Stewart, and other Czar associates. At one point, after spotting G-Unit members enter a van, Rosemond "tried to make it a coffin" by shooting it up. App. 320.

         Stewart testified to statements made by Rosemond during this time, including "something like they're not going to understand what it is until they're carrying a coffin." App. 315.

         C. The Fletcher Murder

         Meanwhile, Fletcher - one of the assailants of Rosemond's son -was serving his state sentence at Mohawk Correctional Facility, where his presence came to the attention of another inmate, Brian McCleod. Unbeknownst to Fletcher, McCleod was a friend of Rosemond. McCleod and Rosemond had spent time in jail together in the late 1990s and worked together in the music and drug business after they were released. McCleod had been serving a New York state prison term for possession of cocaine he removed from a stash house at Rosemond's behest in 2004.

         On August 10, 2009, McCleod was released on parole. Shortly thereafter, he met with Rosemond and told him that he "had a line on [i.e., had access to] . . . the individual [who] slapped [Rosemond's] son, " referring to Fletcher. App. 480. In response, Rosemond said that "since his son had been assaulted, he hadn't been able to sleep, " and that he had been "hitting them everywhere they turn, " including shooting their cars in front of the Apollo, blowing up their cars in South Beach, and shooting their homes. App. 481. Rosemond told McCleod that he wished he had known where Fletcher was incarcerated earlier, as he would have paid $10, 000 "for anybody who would have marked him, who would have scarred him, " meaning "[t]hat he would have paid someone [that amount] to cut" Fletcher. App. 482.

         Rosemond met McCleod a week later and told him that he would pay $30, 000 to anyone who "could bring [Fletcher to] him." App. 485. Rosemond said he would "hit him so fast and so hard, he's not even going to realize it's coming." App. 486. He "was talking about shooting" Fletcher. Id. McCleod suggested involving Derrick Grant, a trusted associate. Rosemond agreed. The next day, McCleod went to see Grant and told him that Rosemond "had 30, 000 for anybody who would bring [Fletcher] to him." App. 490. Grant agreed to be the shooter.

         Later that week, McCleod learned from a source that Fletcher was soon to be released from prison and had already been transferred to Queensboro, a temporary holding facility for those about to be released. McCleod informed Rosemond, who told McCleod to get in touch with Grant and Jason Williams, Rosemond's chauffeur. On September 11, 2009, McCleod and Williams drove to Queensboro, contemplating the possibility that "if something could happen, " they would "maybe even do the deed that day, " meaning "[t]he shooting." App. 494. When they arrived, however, McCleod learned that Fletcher had already been released. McCleod instead reached Fletcher by phone and "welcomed him home." App. 502. During that phone call, McCleod suggested that they "get together, talk it up, get with some girls, [and] have some drinks" in the "near future." App. 502. He also indicated that he had some money to give Fletcher to help him get on his feet. This was all to "artificially aid the relationship" to get Fletcher to "trust" him and "have an expectation and a reason to speak to [McCleod] in the future." App. 503.

         Later that month, Rosemond instructed Williams to give McCleod money to buy a new, temporary phone to be used exclusively for speaking with Fletcher. Rosemond asked McCleod if he could "handle the actual deed, the actual act of bringing Lowell Fletcher to a location, shooting Lowell Fletcher, " because, if not, he could get someone else to do it. App. 506-07. McCleod assured him that "[e]verything's good." App. 507.

         At some point during this period, Rosemond told Abdullah about how he had McCleod "line [Fletcher] up for when he get home" and that "these dudes ain't gonna be happy until they go to a funeral." App. 266.

         On September 25, 2009, McCleod again met with Rosemond. Rosemond showed McCleod on his Blackberry what he had been told was Fletcher's address in the Bronx to determine whether it "would . . . be a good location to . . . actually have the shooting." App. 512. They agreed that McCleod would go to the address to see if it was a suitable location for a shooting, and report back to Rosemond. A code was created: if McCleod thought the location was safe, he would tell Rosemond, "I got with the girl, I like her"; if he did not, he would say, "I don't like her, not good chemistry." App. 515. Once he visited the building on West 161st Street in the Bronx, McCleod saw "cameras everywhere, " and testified that he texted Rosemond back saying, "no, I don't like the girl, no chemistry." App. 517.

         On September 26, 2009, McCleod, Williams, and Grant went out looking for a better location for the shooting. They settled on a dark, quiet area near the 4 Train station on Mount Eden Avenue in the Bronx. McCleod arranged to meet Fletcher there the following evening. He sent Rosemond a text that said, "I got a hot date, " to which Rosemond responded, "OK. Have fun." App. 539.

         The next day, before Fletcher was expected to arrive, McCleod and Williams met Grant at the agreed-upon location on Mount Eden Avenue. Rosemond had also sent two other Czar associates - Rodney Johnson and Shawn Williams - to serve as backup. McCleod and Fletcher then exchanged a series of phone calls as McCleod sought to lure Fletcher to the spot where Grant was waiting for him. McCleod told Grant - the gunman - to take his position. When the time came, Grant shot Fletcher five times in the back using a silencer and gun provided to him by Rosemond. Fletcher died shortly thereafter. In return, Rosemond paid McCleod and Grant with a kilogram of cocaine, worth approximately $30, 000.

         After Fletcher's death, Rosemond told Abdullah what had transpired, saying, "Yo, the bitch is out of here" and "dude checked out." App. 267-68.

         D. Rosemond's Arrest and Proffer Session

         Prior to the indictment in this case, Rosemond was arrested and prosecuted for narcotics-related offenses in the Eastern District of New York[1] In response to those charges, Rosemond participated in proffer sessions with the Government in hopes of reaching a cooperation agreement. A proffer agreement was executed, stipulating that the Government would not use any of Rosemond's statements made during the proffer sessions against him, except that they could be used "as substantive evidence to rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [Rosemond] at any stage of a criminal prosecution." App. 212.

         During one such proffer session, "Rosemond was asked if he understood that, as a result of the actions he took with others in September 2009, Lowell Fletcher would be killed." App. 204. The notes taken during the proffer session state that Rosemond "responded affirmatively" and "knew [Fletcher] was going to be dead." Id.

         II. The Proceedings Below

         A. The First Trial

         A seven-count indictment was filed against Rosemond and his co-defendant, Rodney Johnson, charging them both with conspiracy to commit murder for hire, murder for hire, murder through use of a firearm, and possession of a firearm during murder for hire. Only Johnson was named in the remaining counts of the indictment, which related to the drug conspiracy and were substantially the same as the charges Rosemond had already been convicted of and sentenced for in the prior proceeding. A joint trial was held.

         Brian McCleod testified for the Government as a cooperating witness. During the Government's direct examination, McCleod testified that Rosemond had never used the words "murder" or "kill" in connection with Fletcher. He also testified that he had previously told the prosecutors that he "did not think this was going to be a murder, " and that he "knew there was going to be a shooting, " but "was telling [himself] nobody was going to get killed." App. 176. Defense counsel thoroughly examined this subject on cross-examination, emphasizing that McCleod had previously told the prosecutors that he believed he was participating only in a shooting, not a murder. McCleod admitted that he had repeatedly told prosecutors that he did not believe a murder would take place.

         Defense counsel also asked McCleod if Rosemond had ever in fact told McCleod to murder Fletcher prior to the shooting. McCleod admitted that he had never discussed "murdering" or "killing" Fletcher with either Rosemond or Grant. His ...

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