Argued: April 6, 2016
Appeal from the United States District Court for the Southern
District of New York
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.
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.
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,
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.
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.
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
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.
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
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.
Assault of Rosemond's Son and Subsequent
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.
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.
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.
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.
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.
The Fletcher Murder
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.
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.
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
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.
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.
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.
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.
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.
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.
Fletcher's death, Rosemond told Abdullah what had
transpired, saying, "Yo, the bitch is out of here"
and "dude checked out." App. 267-68.
Rosemond's Arrest and Proffer Session
to the indictment in this case, Rosemond was arrested and
prosecuted for narcotics-related offenses in the Eastern
District of New York 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.
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
The Proceedings Below
The First Trial
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.
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
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 ...