15‐940‐cr United States v. Rosemond

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2015

(Argued: April 6, 2016 Decided: November 1, 2016)

Docket No. 15‐940‐cr

UNITED STATES OF AMERICA,

Appellee,

v.

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.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Before: KEARSE, CABRANES, AND CHIN, Circuit Judges.

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 defendantʹs 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.

‐2‐

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

, 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 Rosemondʹs 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 associatesʹ actions in September 2009

would lead to Fletcherʹs death. Rosemond responded that he knew Fletcher

would die.

‐3‐

At Rosemondʹs first trial for his role in Fletcherʹs 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

Rosemondʹs ability to defend against the charges, and that such error was not

harmless. Accordingly, we vacate the judgment and remand for a new trial.

BACKGROUND

I. The Facts

Because Rosemond appeals his convictions following a jury trial,

ʺour 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

‐4‐

favor.ʺ United States v. Dhinsa,

(2d Cir. 2001) (quoting United

States v. Salameh,

, 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

Fletcherʹs 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 ʺmake sure nothing happen[ed] to

him.ʺ App. 309. When Taylor arrived at Hot 97, someone started shooting into

the crowd outside the radio station. Taylorʹs 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.

‐5‐

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 ʺtalking recklessʺ 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 Bernardʹs 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‐

Unitʹs manager, Christopher Lighty, to make peace between the groups. The

meeting got heated and resulted in Rosemond getting ʺmushed in the faceʺ by

Lighty. App. 260. Rather than quell the feud, the meeting only increased

tensions between the groups.

B. Assault of Rosemondʹs Son and Subsequent Retaliation

On March 20, 2007, three G‐Unit associates ‐‐ Marvin Bernard, Jaleel

Walter, and Lowell Fletcher ‐‐ were leaving Violatorʹs 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

‐6‐

happening and yelled at them to break it up. The G‐Unit associates got into a

black Suburban and drove away.

The boy was Rosemondʹs 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 ʺthree waysʺ:

ʺthrough the law, through music and through streets.ʺ App. 315.

Rosemond first sought out assistance from law enforcement.

Rosemondʹs 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 ʺtalk about the guns and violence in hip‐hop.ʺ App. 315. Taylor also

wrote a song about the feud.

The real retaliation, however, was achieved through ʺviolence in the

streetsʺ where ʺ[t]he objective was to shoot somebody.ʺ 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

‐7‐

Bernardʹs motherʹs 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 Walterʹs 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 ʺtried to make it a coffinʺ by shooting it

up. App. 320.

Stewart testified to statements made by Rosemond during this time,

including ʺsomething like theyʹre not going to understand what it is until theyʹre

carrying a coffin.ʺ App. 315.

C. The Fletcher Murder

Meanwhile, Fletcher ‐‐ one of the assailants of Rosemondʹs 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

‐8‐

state prison term for possession of cocaine he removed from a stash house at

Rosemondʹs behest in 2004.

On August 10, 2009, McCleod was released on parole. Shortly

thereafter, he met with Rosemond and told him that he ʺhad a line on [i.e., had

access to] . . . the individual [who] slapped [Rosemondʹs] son,ʺ referring to

Fletcher. App. 480. In response, Rosemond said that ʺsince his son had been

assaulted, he hadnʹt been able to sleep,ʺ and that he had been ʺhitting them

everywhere they turn,ʺ 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 ʺfor anybody who would

have marked him, who would have scarred him,ʺ meaning ʺ[t]hat he would have

paid someone [that amount] to cutʺ Fletcher. App. 482.

Rosemond met McCleod a week later and told him that he would

pay $30,000 to anyone who ʺcould bring [Fletcher to] him.ʺ App. 485. Rosemond

said he would ʺhit him so fast and so hard, heʹs not even going to realize itʹs

coming.ʺ App. 486. He ʺwas talking about shootingʺ Fletcher.

McCleod

suggested involving Derrick Grant, a trusted associate. Rosemond agreed. The

next day, McCleod went to see Grant and told him that Rosemond ʺhad 30,000

‐9‐

for anybody who would bring [Fletcher] to him.ʺ 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,

Rosemondʹs chauffeur. On September 11, 2009, McCleod and Williams drove to

Queensboro, contemplating the possibility that ʺif something could happen,ʺ

they would ʺmaybe even do the deed that day,ʺ meaning ʺ[t]he shooting.ʺ App.

494. When they arrived, however, McCleod learned that Fletcher had already

been released. McCleod instead reached Fletcher by phone and ʺwelcomed him

home.ʺ App. 502. During that phone call, McCleod suggested that they ʺget

together, talk it up, get with some girls, [and] have some drinksʺ in the ʺnear

future.ʺ App. 502. He also indicated that he had some money to give Fletcher to

help him get on his feet. This was all to ʺartificially aid the relationshipʺ to get

Fletcher to ʺtrustʺ him and ʺhave an expectation and a reason to speak to

[McCleod] in the future.ʺ 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

‐10‐

Fletcher. Rosemond asked McCleod if he could ʺhandle the actual deed, the

actual act of bringing Lowell Fletcher to a location, shooting Lowell Fletcher,ʺ

because, if not, he could get someone else to do it. App. 506‐07. McCleod

assured him that ʺ[e]verythingʹs good.ʺ App. 507.

At some point during this period, Rosemond told Abdullah about

how he had McCleod ʺline [Fletcher] up for when he get homeʺ and that ʺthese

dudes ainʹt gonna be happy until they go to a funeral.ʺ App. 266.

On September 25, 2009, McCleod again met with Rosemond.

Rosemond showed McCleod on his Blackberry what he had been told was

Fletcherʹs address in the Bronx to determine whether it ʺwould . . . be a good

location to . . . actually have the shooting.ʺ 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, ʺI got with the girl, I like herʺ; if he did not, he

would say, ʺI donʹt like her, not good chemistry.ʺ App. 515. Once he visited the

building on West 161st Street in the Bronx, McCleod saw ʺcameras everywhere,ʺ

and testified that he texted Rosemond back saying, ʺno, I donʹt like the girl, no

chemistry.ʺ App. 517.

‐11‐

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,

ʺI got a hot date,ʺ to which Rosemond responded, ʺOK. Have fun.ʺ 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 Fletcherʹs death, Rosemond told Abdullah what had

transpired, saying, ʺYo, the bitch is out of hereʺ and ʺdude checked out.ʺ App.

267‐68.

‐12‐

D. Rosemondʹs 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 Rosemondʹs

statements made during the proffer sessions against him, except that they could

be used ʺas 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.ʺ App. 212.

During one such proffer session, ʺRosemond was asked if he

understood that, as a result of the actions he took with others in September 2009,

Lowell Fletcher would be killed.ʺ App. 204. The notes taken during the proffer

session state that Rosemond ʺresponded affirmativelyʺ and ʺknew [Fletcher] was

going to be dead.ʺ

1 In the Eastern District of New York, Rosemond was convicted of engaging in a continuing criminal enterprise and numerous related narcotics, firearms, and money laundering counts. He was sentenced principally to life imprisonment. See United States v. Rosemond, 595 F. Appʹx 26 (2d Cir. 2014) (summary order) (substantially affirming convictions and sentence).

‐13‐

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 Governmentʹs direct examination, McCleod testified that

Rosemond had never used the words ʺmurderʺ or ʺkillʺ in connection with

Fletcher. He also testified that he had previously told the prosecutors that he

ʺdid not think this was going to be a murder,ʺ and that he ʺknew there was going

to be a shooting,ʺ but ʺwas telling [himself] nobody was going to get killed.ʺ

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

‐14‐

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 ʺmurderingʺ or ʺkillingʺ Fletcher with either Rosemond

or Grant. His cross‐examination included the following exchanges:

Q. While weʹre on that, Mr. Rosemond never told you that he wanted you to murder Lowell Fletcher, correct? A. No, sir. Q. Mr. Rosemond never told you that he wanted you to enter into a conspiracy to murder Lowell Fletcher, did he? A. No one talks like that. No, sir. Q. Well, I donʹt know about no one, but certainly in this case, Mr. Rosemond never used those words, never said those words to you in any of the meetings he had with you. Yes or no, isnʹt that correct? A. He never used those words. No, sir.

App. 188.

Q. Did you say to Mr. Grant, hey, listen, there is $30,000 on the table for us to kill Lowell Fletcher? Did you say anything like that to Derrick Grant back at that time? Yes or no, Mr. McCleod. A. No, sir.

App. 188.

‐15‐

Q. Incidentally, up to this point, where youʹre on Mount Eden Avenue, as we have it from your direct testimony, you had no conversation with Mr. Rosemond about murdering. Mr. Rosemond never asked you to murder Lowell Fletcher, correct? A. No, he did not. Q. In fact, you had had no conversation up to this point with Derrick Grant about murdering Lowell Fletcher, had you? A. No, I had not. Q. In fact, you had no conversation with Rodney Johnson or Jason Williams about murdering Lowell Fletcher, isnʹt that true? A. That is true.

App. 190.

The Government submitted a letter brief the next day, asserting that

defense counselʹs questioning opened the door to Rosemondʹs proffer statements

because it implicitly argued that ʺRosemond did not intend to have Fletcher

murdered.ʺ App. 204. For the same reason, the Government took issue with

defense counselʹs opening, which included a statement that McCleod would

testify that he ʺdidnʹt know it was a murder; Jim Rosemond never told [him] to

murder anybody.ʺ2 App. 205. The Government argued that while questions

2 The Government also argued that certain questions posed by defense counsel to the medical examiner about the caliber of the gun used furthered the implicit argument that Rosemond did not intend to murder Fletcher, and thus triggered

‐16‐

solely focused on impeaching McCleod with his prior inconsistent statements

did not open the door to the proffer statement, other questions ʺwere posed in

order to elicit answers indicating that no mention of ʹmurderʹ or ʹkillingʹ had been

made.ʺ App. 210. The ʺonly conceivable purposeʺ of these questions, according

to the Government, was to ʺimply to the jury that, in fact, Rosemond is not guilty

of Counts One through Four of the Indictment because Rosemond did not intend

to participate in a murder.ʺ

The trial court heard argument the next morning and ruled from the

bench that afternoon. A written ruling was issued later that day. The trial court

concluded that the questions limited to prior statements were acceptable forms

of impeachment with a prior inconsistent statement, but that the other questions

‐‐ focusing on the fact that Rosemond did not actually use the words ʺmurderʺ or

ʺkillʺ ‐‐ triggered Rosemondʹs proffer agreement waiver because they implicitly

asserted that the object of the conspiracy was something less than murder. The

trial court declined, however, to admit the proffer statement, to avoid a Bruton

problem for Rosemondʹs co‐defendant, Rodney Johnson. The court made clear

that if the trial involved Rosemond alone, it would have admitted the proffer

Rosemondʹs proffer agreement waiver. The trial court found that the alleged implication of such questions ‐‐ that a small‐caliber gun would not be used for a murder – did not support such an argument.

‐17‐

notes. Instead, the court decided to ʺcabinʺ Rosemondʹs closing argument as

follows:

[Defense counsel] can certainly attack the credibility of Mr. McCleod on the ground that he has given inconsistent statements in the past, and the jury will be carefully instructed on the prior inconsistent statement rule. He can argue in general terms that the Government has not proven all or certain of the elements of the charged crimes beyond a reasonable doubt. He can argue that the Governmentʹs proof fails to establish beyond a reasonable doubt the existence of a conspiracy, for example, because its evidence comes out of the mouths of admitted liars. What he cannot do is argue that the Government has failed to prove that the object of the conspiracy and the intent of Rosemond was to murder Lowell Fletcher, as opposed to simply shooting him, or assaulting him, or doing violence to him. That argument is inconsistent with a factual assertion made during his proffer, and so is not available to him.

App. 238 (emphasis added). Defense counsel so cabined his argument, focusing

instead on the cooperating witnessesʹ motive to lie.

The jury was unable to reach a verdict on the murder for hire

charges against either defendant. The court declared a mistrial.

B. The Second Trial

A second trial was held as to Rosemond alone on the same charges.

Prior to cross‐examining McCleod, defense counsel sought to clarify the

permissible scope of his questions so as to not ʺrepeat what took place at the last

‐18‐

proceedings.ʺ App. 659. Defense counsel then stated his interpretation of the

district courtʹs prior ruling, that is, that he could elicit only prior inconsistent

statements. The Government ʺagree[d] with that interpretation, as long as

[defense counsel] d[id] not argue in summation that this was merely a shooting

based on those answers.ʺ

The district court also agreed, stating that defense

counsel would be ʺentitled to examine, as indeed the prosecutor examined, about

the statements that were or were not made.ʺ App. 659‐60.

During McCleodʹs testimony, he was not asked ‐‐ either on direct

examination by the Government or on cross‐examination by defense counsel ‐‐

about his prior statements to prosecutors or whether Rosemond used the words

ʺmurderʺ or ʺkillʺ when discussing the Fletcher shooting.

During redirect, the prosecutor asked McCleod how he came to the

realization that Fletcher was murdered, rather than ʺmerely shot.ʺ App. 681.

McCleod answered as follows:

A: . . . [T]his is much too much planning for just a simple shot. Q: In any conversation you had with James Rosemond, did he ever say to you, Donʹt kill Lowell Fletcher? A: Mr. Rosemond never mentioned killing Fletcher at all. . . . Q: Why did you tell the government on [previous] occasions that this was a shooting?

‐19‐

A: The first time and even up until now I just ‐‐ I had some very serious issues with admitting to myself that I participated in the murder of another man to [sic] looks like me, especially considering my family history. . . . I guess I felt guilty. My motherʹs going through it. My brother was murdered. He was shot. And here I am doing the exact same thing. . . . Q: What words did Rosemond use when he was talking to you about what to do to Lowell Fletcher? A: Well, . . . initially he just said he was going to hit him so hard and so fast he wasnʹt going to see it coming And after that, it was, Am I sure I can handle it? Am I sure that Derrick, and I can handle it on our own?

App. 682‐83. Defense counsel did not re‐cross McCleod about his prior

statement about not knowing that a murder was to occur.

Again, prior to summation, the court reiterated its ruling that

Rosemond could not argue that ʺthis was a mere shootingʺ because they had

ʺbeen through that.ʺ App. 703 (ʺBeen there; done that. If the argument is made,

we will stop; we will read the proffer agreement; and then we will pick up and

move on. The one advantage to having a do‐over is that [defense counsel] hav[e]

been through this once before, and have, I think, been very careful . . . .ʺ).

This time, the jury convicted Rosemond on all counts. He was

sentenced to life plus 20 years, consisting of concurrent mandatory life terms on

the murder for hire and murder for hire conspiracy convictions, and two

‐20‐

additional consecutive ten‐year terms on the firearms charges.

(c), (j).

This appeal followed.

DISCUSSION

Three issues are presented: (a) the interpretation of Rosemondʹs

proffer agreement; (b) the admission of uncharged acts; and (c) the sufficiency of

the evidence on the element of intent. Because we vacate Rosemondʹs conviction

on the ground that the district court improperly interpreted the scope of his

proffer agreement waiver, we do not reach Rosemondʹs second argument. As to

the third issue, we conclude that there was sufficient evidence to support

Rosemondʹs conviction, and therefore decline to direct the district court to enter a

judgment of acquittal.

I. The Proffer Agreement Waiver

Rosemond argues that the district courtʹs rulings during the first

trial ‐‐ which extended to the second ‐‐ unduly restricted the permissible scope of

his lawyerʹs argument and questioning of witnesses, in violation of the Sixth

Amendment. We agree, and conclude that the error was not harmless.

‐21‐

A. Waiver

As a preliminary matter, the Government contends that Rosemond

has waived this argument absent any plain error by failing to renew his objection

at the second trial. The contention fails. Where a defendant has made his

position clear, further objections to ʺrulings or orders of the court are

unnecessaryʺ to preserve a claim of error for appellate review. Fed. R. Crim. P.

51(a); see Thornley v. Penton Publʹg, Inc.,

(2d Cir. 1997) (ʺBecause

[plaintiff] argued its position to the district judge, who rejected it, a further

exception after [the ruling] would have been a mere formality, with no

reasonable likelihood of convincing the court to change its mind on the issue.ʺ);

United States v. Lewis,

(7th Cir. 2016) (ʺ[T]here is no need for a

party to state an ʹexceptionʹ to a court ruling that has already been made.ʺ). The

purpose of the appellate waiver rule is ʺto induce the timely raising of claims and

objections, which gives the district court the opportunity to consider and resolve

them.ʺ Puckett v. United States,

(2009).

The trial court was given such an opportunity here. As discussed

above, the issue was fully litigated during the first trial and resulted in a ruling

by the district court. At the second trial, the court stated that its prior rulings

remained in effect. The Government argues that the district court was not given

‐22‐

an opportunity to revisit its prior rulings given the different context of the new

trial, but does not point to any change in circumstances that would have had a

material effect on the trial courtʹs decision had it been brought to its attention.

Thus, taking further exception under the circumstances would have been futile.

See Rose v. N.Y.C. Bd. of Educ.,

(2d Cir. 2001).

B. Applicable Law

Under Rule 410 of the Federal Rules of Evidence, ʺa statement made

during plea discussions with an attorney for the prosecuting authority if the

discussions did not result in a guilty pleaʺ is not ʺadmissible against the

defendant who made the plea or participated in the plea discussions.ʺ Fed. R.

Evid. 410(a)(4); see also Fed. R. Crim. P. 11(f) (ʺThe admissibility or inadmissibility

of a plea, a plea discussion, and any related statement is governed by Federal

Rule of Evidence 410.ʺ). The protections of Rule 410, however, may be waived so

long as the defendant agrees to the waiver knowingly and voluntarily. United

States v. Mezzanatto,

, 209‐10 (1995). In Mezzanatto, the Supreme

Court deemed enforceable a waiver provision allowing the Government to use a

defendantʹs statements made during plea negotiations to impeach him when he

testified in a manner inconsistent with those statements.

at 198‐99.

‐23‐

We considered a more expansive waiver in United States v. Velez, one

that allowed the Government to introduce the plea negotiation statements not

only when the defendant testified inconsistently, but also when the defense

presented contradictory other evidence or even arguments.

(2d

Cir. 2004). We concluded that ʺfairness dictates that the agreement be enforcedʺ

according to its terms, notwithstanding the disparity in bargaining power.

(ʺIf the proffer agreement is not enforced, a defendant will have less

incentive to be truthful, for he will know that his proffer statements cannot be

used against him at trial as long as he does not testify, even if he presents

inconsistent evidence or arguments.ʺ (quoting United States v. Gomez,

(S.D.N.Y. 2002)); see also United States v. Krilich,

(7th Cir. 1998).

Proffer agreements are contracts to be interpreted according to

ordinary principles of contract law. United States v. Liranzo,

(2d

Cir. 1991). Like all contracts, proffer agreements must be interpreted ʺto give

effect to the intent of the parties.ʺ United States v. Barrow,

(2d

Cir. 2005) (quoting Liranzo,

). We consider the district courtʹs

interpretation of the scope of a proffer agreement waiver de novo and its

evidentiary rulings for abuse of discretion. Barrow,

.

‐24‐

In determining whether a defendant has triggered the type of waiver

contained in Rosemondʹs proffer agreement, we ask first whether there has been

any evidence offered or elicited, or ʺfactual assertionʺ made, by or on behalf of

the defendant that would trigger the Rule 410 waiver, and second, if so, whether

the proffer statement ʺfairly rebut[s]ʺ the fact asserted or evidence offered or

elicited. See Barrow, 400 F.3d at 117‐21. If the defendant makes a factual assertion

at trial that contradicts a statement made during the proffer session, the

Government may then offer the earlier proffer statement to rebut the assertion

being made at trial.

. Rebuttal is ʺnecessarily a flexible concept,ʺ

and

not ʺlimited to evidence that directly contradicts what it opposes; rather, rebuttal

encompasses any evidence that the trial judge concludes fairly counters and casts

doubt on the truthfulness of factual assertions advanced, whether directly or

implicitly, by an adversary,ʺ

.

In United States v. Barrow, we held that a waiver provision

substantially similar to the one in this case applied to any factual assertions made

by or on behalf of the defendant, whether made ʺdirectly or implicitly,ʺ during

counselʹs opening argument or through cross‐examination.

. We

made clear, however, that ʺ[t]he mere fact that a defendant pleads not guilty and

stands trial is not a factual assertion that triggers the proffer agreement waiver.ʺ

‐25‐

. Defense counsel may also ʺattempt to demonstrate why the facts put

in evidence by the prosecution are insufficient,ʺ and ʺchallenge[] the sufficiency

of government proof on elements such as knowledge, intent, identity, etc.,ʺ

without triggering the factual assertion requirement of the waiver.

. In

other words, the proffer agreement does not bar a defendant from arguing that

the Government has failed to meet its burden of proof.

We reiterated this rule in United States v. Oluwanisola, concluding

that defense counsel must be permitted to ʺdraw the juryʹs attention to the lack of

evidenceʺ presented on specific elements without triggering the waiver.

(2d Cir. 2010). There, we vacated a conviction where defense counsel

was precluded, except to an extent in summation, from arguing that specific

elements had not been proven without triggering the proffer waiver.

To hold

otherwise, we explained, would prevent defense counsel from challenging the

Governmentʹs lack of evidence on a particular element, even where the

Government ʺfailed to introduce any evidence on a certain element.ʺ

The line between challenging the sufficiency of the Governmentʹs

evidence and implicitly asserting new facts can be a fine one. See United States v.

Roberts,

(2d Cir. 2011) (admitting that this ʺdistinction is more

easily stated than appliedʺ). When the defense introduces an exhibit or offers

‐26‐

testimony of a defense witness, there is a greater likelihood that new facts are

being asserted. See

(concluding that the waiver provision was triggered

when defense counsel ʺput documentary evidence before the jury to imply facts

that contradicted the defendantʹs proffer statementsʺ). But ʺ[p]articular caution

is required when the purported fact is asserted by counsel rather through

witness testimony or exhibits.ʺ

. In evaluating defense arguments and

questions, we have advised district courts to ʺconsider carefully what fact, if any,

has actually been implied to the jury before deciding whether proffer statements

fairly rebut it.ʺ Barrow, 400 at 119; accord Oluwanisola,

.

This distinction is illustrated by our treatment of cross‐examination

questions that attack a witnessʹs credibility. On the one hand, defense counsel

may cross‐examine a witness ʺin a way that cast[s] doubt on his credibility,ʺ

Roberts,

, as well as ʺchalleng[e] a witnessʹs perception or

recollection of an event,ʺ Barrow,

. Such attacks ʺdo[] not

necessarily imply that the event did not occur, only that the witness may not

have seen or reported it accurately,ʺ and thus primarily implicate the

Governmentʹs burden of proving each element beyond a reasonable doubt. Id.;

see also Krilich, 159 F.3d at 1025‐26. For example, in Oluwanisola, defense counsel

asked a series of questions implying that a cooperating witness was fabricating

‐27‐

his testimony that he saw the defendant perform certain incriminating acts.

. We held that such questioning should not be construed as an

implicit factual assertion that the defendant did not actually perform those

incriminating acts.

(ʺThere is no inconsistency or contradiction between

a defendantʹs admission that he robbed the bank and his challenge to a witnessʹs

testimony that the witness saw the defendant rob the bank and recognizes the

defendant.ʺ).

On the other hand, questions ʺaccusing a witness of fabricating an

eventʺ can implicitly assert that the event did not take place, and may,

depending on the context, satisfy the factual assertion requirement. Barrow,

(emphasis added). In Barrow, defense counsel affirmatively argued

during opening statements that the defendant had been mistaken for someone

else and that the true culprit was the cooperating witnessʹs brother. Defense

counsel then accused that Government witness during cross: ʺYou made up

about meeting the [confidential informant] there that day, didnʹt you?ʺ

.

There, in light of his opening statement, defense counselʹs question implicitly

asserted that no meeting in fact took place ʺbecause his theory of mistaken

identity depended on that fact.ʺ Oluwanisola,

(discussing Barrow).

‐28‐

To be sure, implicit in questions and arguments regarding witness

fabrication, perception, or recollection will often be the claim that the event did

not occur the way the Government suggests. Absent an affirmative assertion of

fact contradicting the proffer agreement, however, such questions will usually be

insufficient to trigger the ʺfactual assertionʺ requirement of the proffer waiver.

To summarize, the following are not factual assertions sufficient to

trigger the waiver provision in a proffer agreement:

 pleading not guilty, see Barrow,

; Krilich,

;

 arguing generally that the Government has not met its burden

of proof, see Barrow,

;

 arguing specifically that the Government has failed to prove

particular elements of the crime, such as intent, knowledge, identity,

etc., see

;

 cross‐examining a witness in a manner to suggest that he was

lying or mistaken or was not reporting an event accurately, see

Oluwanisola, 605 F.3d at 132‐33; Barrow,

; Krilich,

(ʺImpeachment of a witness need not be ʹcontrary toʹ or

‐29‐

ʹinconsistent withʹ a defendantʹs admission of guilt in a bargaining

proffer.ʺ);3

 cross‐examining a police officer about discrepancies between

his testimony and his earlier written report, see Barrow,

; and

 arguing that the Government failed to present corroborating

evidence, see Roberts, 660 F.3d at 158‐59.

The following are factual assertions that will trigger the waiver:

 asserting, in an opening statement, that someone other than

the defendant was the real perpetrator of the crime, see Barrow,

;

 accusing an officer, in cross‐examination, that he had

fabricated a meeting with a confidential informant where defense

counsel had argued mistaken identity in his opening statement, see

id.; see also Oluwanisola, 605 F.3d at 132‐33;

 arguing that a shooting was ʺan intended kidnapping gone

wrong,ʺ when the defendant admitted in a proffer session that the

3 We do not foreclose the possibility that, in unusual circumstances not presented here, such cross‐examination could suffice to trigger the ʺfactual assertionʺ requirement of a proffer waiver.

‐30‐

shooting was ʺan intentional murder,ʺ Gomez,

(noted with approval in Velez, 354 F.3d at 195‐96); and

 proffering documentary evidence that implied that a

cooperating witness was not present as alleged by the Government,

where the evidence was offered not just to impugn the witnessʹs

credibility, but to prove a fact that contradicted the defendantʹs

proffer statement, see Roberts, 660 F.3d at 163‐64.

C. Application

Rosemondʹs proffer agreement contained a waiver that allowed his

statements to come in as evidence ʺto 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.ʺ App. 212.

The proffer statements at issue were 1) Rosemondʹs positive

response after being asked whether he ʺunderstood that, as a result of the actions

he took with others in September 2009, Lowell Fletcher would be killedʺ; and

2) Rosemondʹs admission that he ʺknew [Fletcher] was going to be dead.ʺ App.

204.

We conclude that the district court erred in circumscribing both

defense counselʹs argument and his cross‐examination of McCleod.

‐31‐

i. Scope of Defense Counselʹs Argument

The district court interpreted Rosemondʹs proffer waiver to prohibit

any implicit argument that ʺthe Government has failed to prove that the object of

the conspiracy and the intent of Rosemond was to murder Lowell Fletcher, as

opposed to simply shooting him, or assaulting him, or doing violence to him,ʺ as

that argument ʺis inconsistent with the factual assertion made during his

proffer.ʺ App. 238. This ruling is at odds with our decisions in Barrow and

Oluwanisola, both of which clearly allow defendants to argue that specific

elements of the crime have not been proven. See Oluwanisola,

;

Barrow,

.

Rosemond should have been permitted to argue, without triggering

the proffer waiver, that the Government failed to prove that he intended to

murder Fletcher. See Barrow,

(defense counsel may ʺchallenge[]

the sufficiency of government proof on elements such as . . . intentʺ without

triggering the proffer waiver); Oluwanisola,

(ʺUnder Barrow,

[defense counsel] should have been permitted . . . to reference certain elements of

the crime and argue that the government would be unable to sustain its burden

of proof as to those elements.ʺ). There is a material difference between the

statement ʺthe Governmentʹs evidence fails to establish that Rosemond intended

‐32‐

that Fletcher be murdered, as opposed to shot or injured,ʺ and asserting as fact

that ʺthe object of the conspiracy was to non‐fatally assault Fletcherʺ; only the

latter is a factual assertion that would trigger the waiver. Defense counsel never

attempted to affirmatively argue or prove that Rosemond conspired to commit

only a nonfatal shooting. Cf. Roberts,

(finding waiver triggered

where defense introduced flight logs and swipe‐card records to ʺurge . . . a

factual inferenceʺ that Governmentʹs witness was in fact elsewhere); Barrow,

(concluding that ʺstatement of fact in a defense opening . . .

unequivocally identifying [a different person] as the real perpetrator of the

charged crimesʺ triggered the waiverʹs ʺfactual assertionʺ requirement); United

States v. Hardwick,

, 570‐71 (3d Cir. 2008) (concluding that cross‐

examination insinuating that different drug gang had particular motive to kill

victim triggered proffer agreement waiver). Notably, unlike the statement

ʺRosemond intended to commit a non‐fatal shooting,ʺ the argument that there is

insufficient evidence of intent to murder suggests no new facts and injects no

alternate version of events inconsistent with the proffer statements. See Roberts,

(ʺ[A]rguments or questions challenging ʹthe sufficiency of

government proof,ʹ . . . ʹwithout a factual assertion contradicting facts admitted

‐33‐

in the proffer statement,ʹ do not trigger a waiver provision.ʺ (quoting

Oluwanisola,

)).

The Government contends that implicit in the argument that there

was insufficient evidence of intent to murder is the factual assertion that

Rosemond did not actually intend to murder Fletcher. Challenges to the

sufficiency of the Governmentʹs evidence, however, will often carry with them

the inference that events did not actually occur consistent with the Governmentʹs

theory, and thus ‐‐ at some level ‐‐ are arguably contrary to the proffer

statements. The same is true when a defendant enters a plea of ʺnot guilty,ʺ but

these are not ʺfactual assertionsʺ as they do not propose an alternate version of

events inconsistent with the proffer statement.

Defense counsel was also entitled to argue that certain inferences

from the Governmentʹs proof should not be drawn. For example, the

Government argued that an intent to murder should be inferred from certain

statements made by Rosemond, such as ʺ[he would] hit [Fletcher] so fast and so

hard, heʹs not even going to realize itʹs coming,ʺ App. 486, and ʺthese dudes ainʹt

gonna be happy until they go to a funeral,ʺ App. 266. Defense counsel should

have been permitted to challenge these types of inferences by ʺattempt[ing] to

demonstrate why the facts put in evidence by the prosecution [were] insufficient

‐34‐

to permit the jury to find the elements of the crime proved.ʺ Barrow,

. Defense counsel was entitled to argue that McCleodʹs testimony that he

never heard Rosemond use the words ʺmurderʺ or ʺkillʺ undercut the

Governmentʹs assertion that Rosemond intended to murder without triggering

the waiver. Just as the suggestion that a witness did not see the defendant rob

the bank is not inconsistent with the defendantʹs admission that he robbed the

bank, Oluwanisola,

, McCleodʹs testimony that he never heard

Rosemond say ʺmurderʺ or ʺkillʺ is not inconsistent with Rosemondʹs admission

during the proffer session that he knew Fletcher would die.

ii. Scope of Defense Counselʹs Cross‐Examination

Likewise, defense counselʹs questions that probed the already

elicited fact that McCleod never heard Rosemond use the words ʺkillʺ or

ʺmurderʺ were within bounds. The district court found that the questions

ʺimplied that Rosemond did not participate in a murder conspiracy or order the

murder of Lowell Fletcher[,] . . . that any agreement to do violence to Lowell

Fletcher was at best an agreement to commit a non‐fatal shooting of Fletcher (and

thus not an agreement to commit a murder‐for‐hire as charged), and that

Rosemond never intended for Fletcher to be killed.ʺ App. 236. These questions,

‐35‐

it concluded, were implicit factual assertions that ʺdirectly contradict[ed]

Rosemondʹs proffer that he knew Fletcher would be killed.ʺ

We disagree. The questions at issue attacked the Governmentʹs

proof without asserting any new facts. Rosemondʹs admission that he knew

Fletcher would be dead is not inconsistent with McCleodʹs testimony that the

words ʺkillʺ and ʺmurderʺ were not used in their discussions, and the

Government offered other proof of that intent. See Oluwanisola,

(explaining that witness fabrication of an event does not necessarily imply that

the event did not occur). Rosemond could have intended the shooting to be a

murder without saying as much to McCleod or using those specific words before

the fact. Indeed, the Governmentʹs theory rests on that very scenario. See

Appelleeʹs Br. 35‐36 (ʺThe factual assertion implied by the Government . . . was

that, notwithstanding the prior inconsistent statements by McCleod, it became

clear to McCleod that Rosemond intended for Fletcher to be killed as part of the

attack McCleod was hired to carry out, which is entirely consistent with

Rosemondʹs proffer statement.ʺ). Such inquiry into exculpatory facts already

elicited by the Government did not trigger the waiver. See Barrow,

(ʺ[D]efense arguments that attempt to demonstrate why the facts put in

evidence by the prosecution are insufficient to permit the jury to find the elements

‐36‐

of the crime proved [are not factual assertions that trigger the proffer agreement

waiver].ʺ (emphasis added)). Drawing the juryʹs attention to the fact that

McCleod did not discuss killing or murdering in those words with Rosemond

was simply an attempt to highlight the supposed insufficiency of Government

proof on the element of intent.

Again, and most importantly, defense counsel did not accuse

McCleod of actually conspiring with Rosemond to commit a non‐fatal shooting,

or make factual assertions to that effect. To the extent the questions might also

have carried the implication that Rosemond did not actually intend to have

Fletcher murdered, they were no more inconsistent with the proffer waiver than

entering a plea of not guilty or challenging the sufficiency of the evidence.

As the district court correctly ruled, questions challenging the

credibility of a witness do not trigger the waiver provision absent factual

assertions contradicting the proffer statement. See Roberts,

. Thus,

it was permissible for defense counsel to ask questions regarding McCleodʹs

prior statement that he never heard Rosemond use the words ʺkillʺ or ʺmurder,ʺ

as such questioning was not inconsistent with Rosemondʹs proffer statement that

he ʺknew [Fletcher] was going to be dead.ʺ App. 204.

‐37‐

Finally, it is significant that at both trials it was the Government that

elicited from McCleod the fact that Rosemond did not use the words ʺmurderʺ or

ʺkill.ʺ The Government did so on its direct examination of McCleod at the first

trial, and during its redirect examination of McCleod at the second trial. At

minimum, the Government opened the door, and defense counsel should not

have been foreclosed from following up in cross‐examination, recross‐

examination, or summation. Because the district courtʹs interpretation of the

scope of the waiver provision was unduly narrow, its restrictions on Rosemondʹs

ability to cross‐examine his witnesses and mount an effective defense violated

the Sixth Amendment. See Oluwanisola,

.

D. Harmlessness

Constitutional errors of this type are subject to harmless error

review. Oluwanisola,

. In assessing harmlessness, we ask ʺwhether

we can ʹconclude with fair assuranceʹ that the errors ʹdid not substantially

influence the jury.ʹʺ

(quoting United States v. Ivezaj,

(2d Cir.

2009)). We consider ʺ(1) the importance of . . . unrebutted assertions to the

governmentʹs case; (2) whether the excluded material was cumulative; (3) the

presence or absence of evidence corroborating or contradicting the governmentʹs

case on the factual questions at issue; (4) the extent to which the defendant was

‐38‐

otherwise permitted to advance the defense; and (5) the overall strength of the

prosecutionʹs case.ʺ United States v. Gupta,

, 133‐34 (2d Cir. 2014)

(alteration in original) (quoting Oluwanisola,

)).

The error was not harmless. Indeed, the Government does not even

argue in the alternative that it was. See Govʹt Br. 31‐44. The Government did,

however, make such an argument in Oluwanisola, in similar circumstances. And

we rejected that argument, even though, in that case, ʺdefense counsel was

permitted to make sufficiency arguments during summation.ʺ

.

Here, defense counsel was not permitted to make any sufficiency argument at

any point during trial, whether during his opening, cross‐examination, or closing.

The district courtʹs ruling therefore ʺhad the effect of severely limiting

[Rosemondʹs] ability to mount an effective defense. In a situation such as this

one, where defense counsel risked letting the horse out of the barn if he did not

closely adhere to the courtʹs ruling, this limitation was substantial.ʺ

We hold that the preclusion of defense arguments and cross‐

examination was not harmless error, and vacate Rosemondʹs convictions and

remand for a new trial.4

4Because we vacate the convictions on these grounds, we do not reach Rosemondʹs argument that the district court abused its discretion in admitting certain uncharged act evidence as excessive and prejudicial.

‐39‐

II. Sufficiency of the Evidence

Rosemond also argues that the Government failed to produce

sufficient evidence to prove that Rosemond committed murder for hire or

conspired to murder for hire because of the lack of evidence that Rosemond

intended that Fletcher be killed. We reach this question despite our decision that

Rosemondʹs conviction should be vacated on the grounds discussed above

because, ʺif we were to conclude that there was insufficient evidence, we would

be required to direct the district court to enter a judgment of acquittal,ʺ instead of

a vacatur and remand for a new trial. Oluwanisola,

n.4.

We review challenges to the sufficiency of evidence de novo, and will

uphold a conviction if ʺany rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.ʺ United States v. Vernace,

(2d Cir. 2016) (quoting Jackson v. Virginia,

(1979)).

In doing so, we ʺmust view the evidence in the light most favorable to the

government, crediting every inference that could have been drawn in the

governmentʹs favor, and deferring to the juryʹs assessment of witness credibility

and its assessment of the weight of the evidence.ʺ United States v. Coplan,

(2d Cir. 2012) (quoting United States v. Chavez,

(2d

Cir. 2008)). ʺA defendant bears a heavy burden in seeking to overturn a

‐40‐

conviction on grounds that the evidence was insufficient.ʺ United States v.

Aleskerova,

(2d Cir. 2002) (internal quotation marks omitted).

There was sufficient evidence to show that Rosemond committed a

murder for hire and conspired to do so with his associates. First, through

cooperating witnesses, the Government presented a number of statements made

by Rosemond from which an intent to murder could be inferred. For instance,

witnesses testified that Rosemond said ʺsomething like theyʹre not going to

understand what it is until theyʹre carrying a coffin,ʺ App. 315, and in connection

with Fletcherʹs anticipated return home from prison, that ʺthese dudes ainʹt

gonna be happy until they go to a funeral,ʺ App. 266. Second, the jury could

infer from the extent of planning and coordination that murder was the object of

the conspiracy. Third, while Rosemond paid Czar associates $5,000‐$10,000 for

nonfatal attacks on other G‐Unit associates, their homes, and their cars, he

offered $30,000 to anyone who would bring him Fletcher. Compared to the other

shootings described during the course of the trial, the Fletcher shooting involved

multiple meetings, coordination, and stealth, including the purchase of a

separate phone used exclusively for communicating with Fletcher. Finally,

Rosemondʹs behavior following Fletcherʹs death could reasonably imply that his

goal had been achieved. After hearing that Fletcher had been killed, rather than

‐41‐

become angry or express regret, Rosemond gloated to friends about what had

occurred and paid the participants for their actions.

In sum, viewing the evidence in the light most favorable to the

Government, we conclude there was sufficient evidence to support Rosemondʹs

convictions, and therefore decline to direct the District Court to enter a judgment

of acquittal.5

CONCLUSION

For the reasons set forth above, we VACATE Rosemondʹs

convictions and REMAND to the district court for further proceedings consistent

with this opinion.

5 We note that our holding that the district courtʹs error was not harmless but that a judgment of acquittal should not be entered is not internally inconsistent. The standards that we apply to determine whether an error was harmless and whether a judgment of acquittal should be entered are substantially different. When undertaking the latter analysis, we ask whether ʺany rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.ʺ Vernace,

. Just because a rational trier of fact could have found that Rosemond had the requisite intent does not mean that a rational trier of fact must have done so, or that we can ʺconclude with fair assurance that the [district courtʹs] errors did not substantially influence the jury.ʺ Oluwanisola,

(internal quotation marks omitted).

‐42‐