06-1274-cr

USA v. Becker

UNITED STATES COURT OF APPEA LS 1 F OR THE S ECOND C IRCU IT 2

_____________________ 3 4 August Term, 2006 5 6 (Argued: June 13, 2007 Decided: September 13, 2007) 7 8 Docket No. 06-1274-cr 9 10

_____________________ 11 12 U NITED S TAT ES OF A MERICA , 13 Appellant , 14 15 — v .— 16 17 G REGG B ECKER , 18 19 Defendant-Appellee

. 20 21

___________________ 22 23 24 Before: C ALABRESI , B.D. P ARKER , AND W ESLEY , Circuit Judges

. 25 26

___________________ 27 28 The government appeals from a judg ment of the United States District Court for the 29 Southern District of New York (Patterson, J .) granting defendant- appellee’s petition for a writ of 30 habeas c orpus and vacatin g his con viction fo r secur ities fra ud and conspiracy to

commit 31 securities fraud. See28 U.S.C. § 2255. 32 33 AFFIRMED. 34

___________________ 35 36 J OSHUA KLEIN , Ass is tan t Un it ed S tat es A tt orn ey (R obi n L. 37 Baker, Assistant United States Attorney , on the 38 brief ) for Michael J. Garcia, United States Attorney 39 for the Southern District of New York, New York, 401 Becke r finishe d serving

his prison

sentenc e in Octob er 2005. There r emains a live cas e or controversy

due to the collateral consequences that attach to c riminal conviction post-release. See Perez v. Greiner , 296 F.3d 123, 125 (2d Cir. 2002). 2 NY, for Appellant

. 1 2 M ARANDA F RI TZ , Hinshaw & Culbertson LL P, New York, 3 NY, for Defendant-Appellee

. 4 5

___________________ 6 7 B ARRI

NGTON D. P ARKER , Circuit Judge : 8 In 2002 the gover nment charged Gregg Becker with one count of se curities fraud and one 9 count of conspiracy to commit securities fraud, mail fraud, and wire fraud. See 15 U.S.C. §§ 10 78j(b), 78ff; 17 C.F.R. § 240.10b-5; 18 U.S.C. § 371. After a jury trial in the United States 11 District Court for the Southern District of New York (Patterson, J .), Becker was convicted on 12 both the su

bstantive and the c onspirac

y c ounts. Judg e Patterson sente nced him t

o 24 months’ 13 imprisonment, followed by three y ears of supervised release. 1 Becke r appea led his conviction to 14 this C ourt, and w e aff irme d in a

n unpu blish ed su

mmar y order file d Oct ober 31, 20 03. We 15 subsequently denied B ecker’s timely petition for rehearing on Dece mber 19, 2003. 16 On March 8, 2004, the Supreme Court decided Crawford v. Washington , 541 U.S. 36 17 (2004), w

hich held that the Sixth

Amendmen

t’s Confr ontation Cl ause bar

s the admis sion of out

18 of-court testimonial statements unless the declarant is unavailable and the de fendant has had a 19 prior opportunity to cross-examine. See id. at 59. Relying on Crawford , Becker petitioned for a 20 writ of habeas corpus, contending that his Sixth Amendment right to confrontation had bee n 21 violated by the district court’s a dmission of eleven plea allocution transcripts of alleged c o- 223

conspirators. See 28 U.S.C. § 2255. Judge Patterson granted Becker’ s petition, finding that 1 under Crawford

it was error to admit the plea allocutions and that this error was not harmless. 2 Based on these findings, the court vac ated Becker’s conviction and orde red a new trial. The 3 gover

nment app eals, contending that Bec ker’s Crawford claim is procedurally barred and, 4 alternatively, that a ny error in admitting the plea allocutions was harmless. We affirm. 5 BACKGROUND 6 From 1995 to 1996, Becker was employ ed as a licensed securities broker at the Me lville, 7 Long I sland branch of Inve stor Associates (“IA” ). It was later re vealed that several I

A brokers 8 had been engage d in a massive securities fraud during this period. The Melville bra nch operated 9 as a so-called “boiler room,” where brokers were trained to cold call potential clients and 10 pre ss ure th em i nt o pu rch asi ng r is ky se cur it ies usi ng a var iet y of d ece pt iv e sa les tac ti cs. In 11 particu

lar, brokers we

re instru cted, an d given incentiv es, to sel l severa l highly specula tive “hou se 12 stocks” f

or which IA ha d partic ipated in

underwr iting the initial pub lic offe

rings. T o gene

rate 13 interest from investors in the house stocks, IA broke rs would follow sales scripts that contained 14 false and misleading information about the stability of the securities and their potential for future 15 growth. The brokers also lied to investors reg arding their own backgrounds, le vel of experience 16 in financ e, and pa st performance . The demand cre ated by these misr

eprese ntations a rtificia lly 17 inflated the share price of the house stocks, and the br okers collected large commissions. 18 Meanwhi le, inves tors wer e discour aged f rom sellin

g the sto cks, eve

n as shar e price s inevitab ly 19 fell and

they experienced subst

antial los ses. 20 At trial, the government presented sever al recorded telephone conversa tions in which 214

Becker was heard ly

ing to potential customers about his experience as a broker, his personal 1 income and net worth, and the manner in which he was c ompensated for executing trades. On 2 the recordings, Becke r was also heard making predictions reg arding the growth potential of 3 house stocks and encouraging inve stors to hold their shares despite falling prices. I n addition, 4 the government presented the live testimony of Joseph Mandaro and Todd Peterson, two 5 cooperating witnesses who were f ormer IA brokers, and of three of Becker’ s former customers 6 who had sustained significant monetary losses. 7 On direct examinati on, Manda ro testif ied to hav ing told n umerous l ies to cus tomers in 8

connec tion with se lling the house stoc

ks. He fu rther te stified that he wor ked “ve ry close wit h 9 Gregg” and that much of the information that Becker gave to customers regarding his persona l 10 background and experience in the financ ial industry was false. Ma ndaro testified that he made 11 similar fa

lse state ments regarding

his own ba

ckgro und to give custome

rs “the s ense of a

well12 established well-known successful broker.” About such stateme nts, he testified: “I knew it was 13 illegal. I knew it was a blatant lie.” Peterson testified similarly re garding lies he told customers 14 regarding his personal bac kground, as well as about his understanding that such lies we re 15 inconsiste

nt with the

training he had c ompleted

to become

a licens ed secur

ities brok er. Bot h 16 Mandaro and Peterson also testified that they lied to customers about the commissions they 17 receiv ed on the s ale of ho use stocks, about the lengt h of time the custome

rs could e xpect to hol d 18 the stocks before selling them, and

about the likelihood

that the house stocks would increase in 19 value. 20 Finally

, the governmen

t read in to eviden ce, ove r the def ense’s o bjection s, the tra

nscripts 215

of eleve n plea al locutions

by f ormer I A brokers who desc

ribed the ir intenti onal par ticipation in 1 the fraudulent scheme. These plea allocutions – which the government no doubt anticipated, at 2 the time they were taken, would be powerful evidence but not subject to cross-e xamination when 3 introduced in a subsequent trial – went far bey ond anything r

equired by Rule 11 of the Federal 4 Rules of Criminal Procedure. Each allocuting defenda nt discussed in detail the specific practices 5 used to ca

rry out the fr aud at I A – espec ially

the use of

sales scripts to misl ead cust omers into 6 purchasing securities and the broker’ s inflation of his own credentials to further deceive 7 customers – and the se detai ls were l argel y id entical a mong the allocutions. The a

llocutions also 8 contained broad statements concerning the pervasiveness of the fraud. For e xample: “It was 9 wel l-k now n at Inve st ors Ass oci ate s t hat

. . . you c oul dn’ t j ust let cli ent s s ell hou se s to ck. ” In 10 addition, some defendants referred throug hout their allocutions to actions “we” took – for 11 example, “[w]e also used the high pressure sales tactics that was descr ibed in the charges” – 12 potentially imply ing that all IA brokers were knowing participants in the conspiracy

. 13 Prior to admitting the plea allocutions, the court instructed the jury that it could consider 14 them “for proof that a conspiracy existed as charged in the indictment, but not to show that any 15 defenda

nt here was a memb er of tha t conspir acy .” The c ourt fur

ther instr ucted the jury to 16 “consider these allocutions only for the following two issues: (1) there was a c onspiracy or a 17 scheme to commit securities fraud, mail fraud, or wire fr aud; (2) what, if any

thing, each of the 18 persons’ testimonies you’re about to hear did to further the object of the conspiracy , if you do 19 find that a conspiracy existed.” The court reiterated these limiting instructions immediately after 20 the transcripts were read, emphasizing that “[t]here is no evidenc e in these statements that any of 216

the defendants are co-conspirators.” At the conclusion of the trial, the court again reminded the 1 jury that it could “consider e vidence that other people pleaded guilty to these crimes as evidence 2 that a conspiracy

existed” but could “not consider the guilty pleas of others as evidence that any 3 of the defendants were members of the a lleged conspiracy .” 4 The jury found B ecker guilty on both counts of the indictment. On direct appeal, we 5 rejecte d Becke

r’s arg uments tha

t the misre

present ations he made to in

vestors r egard ing his 6 backg

round and experie

nce wer e not mate

rial; tha t the misre

present ations we re not ma de “in 7 connection with” the purchase or sale of the house stocks; that the government failed to prove 8 that Becker had the necessa ry intent to support a secur ities fraud conviction; and that the district 9 court erred in admitting the plea allocutions as evidence of the charged conspirac y. As noted 10 above, our summary order affirming the conviction was filed on Oc tober 31, 2003, and we 11 denied Becker’s petition for rehe aring on December 19, 2003. Althoug h Becker had until March 12 18, 2004 – ten days af ter the Supreme Court decided Crawford – to file a timely petition for 13 certiorari, see S UP . C T . R. 13(3), he did not do so. 14 Subsequently, Bec ker petitioned for habeas relief, pressing several arguments including 15 that the admission of the plea allocutions violated Crawford. The district court denied the 16 petition on all bases except the Crawford claim. United States v. Becker , No. 01 Cr. 156 (RPP), 17 2005 WL 3110650, at *9-*10 (S.D.N.Y. Nov. 18, 2005) (“ Becke r I ”). The court rejected the 18 gover

nment’s a rgumen t that Crawford was inapplicable, reasoning that under Teague v. Lane , 19 489 U.S. 288 (1989), Becker’s conviction did not become final until afte r Crawford was decided 20 and, as a result, Crawford applied despite being non-retroactive. Id . at *9; see Mungo v. Duncan 217

393 F.3d 327, 336 (2d Cir. 2004). The court also determined that the admission of the plea 1 allocutions violated Crawford

. Becke r I , at *10. In a later opinion, the court he ld that the 2 Crawford error was not harmless, and vacated the c onviction and ordered a new trial. United 3 States v. Becker , No. 01 Cr. 156 (RPP), 2006 WL 156677 (S.D.N.Y. Jan. 17, 2006). This appeal 4 followed. 5 DISCUSSION 6 We review a district court’s decision to grant a ha beas petition de novo and the court’s 7 factual findings for clear e rror. Hawkins v

. Costello , 460 F.3d 238, 242 (2d Cir. 2006); 8 Campusano v. United States , 442 F.3d 770, 773 (2d Cir. 2006). 9 I. Whethe r Becker ’s Crawford Claim is Procedurally Barred 10 Initially , the government contends that because B ecker challenged the a dmission of the 11 plea allocutions on direct appeal and this Court affirmed his conviction, law of the c ase precludes 12 him from again raising the issue on collatera l review. “The law of the case ordina rily forec loses 13 relitigation of issues expressly or impliedly decided by the

appellate court.” United States v. 14 Quintieri , 306 F.3d 1217, 1229(2d Cir. 20 02) (inte rnal quot ation mar ks omitted) . Apply

ing this 15 general principle, we have held that “section 2255 may not be employed to relitiga

te questions 16 which were raised and considered on dir ect appeal.” Cabrera v. United States , 972 F.2d 23, 25 17 (2d Cir. 1992) (internal quotation marks omitted). Nevertheless, application of the doctr ine 18 remains a matter of discretion, not jurisdiction. See United States v. Tenzer , 213 F.3d 34, 39 (2d 19 Cir. 2000) (observing that while law of the case “ informs the court’s discretion, [it] does not 20 limit the tr

ibunal’s power” (interna l quotation

marks omit

ted)). We

may find it app

ropriate to 212 Supreme Court Rule 13 requires that a petition for a writ of certiorar i be filed within 90 days afte r the entry of

judgment by a

court of appeals. “[I]f a petition for r ehearing is timely

filed in the lowe

r court by a

ny p arty , . . . the ti

me to file the petiti on for a w

rit of ce rtiorar i for all parties . . . runs from the date of the denial of rehe aring . . . .” S UP . C T . R. 13(3). As we have already noted, we denied Becker’s pe tition for rehearing on December 19, 2003. Thus, by the time the Supreme Court decided Crawford on March 8, 2004, B ecker had ten re maining day s to file a time ly p etition for certiorari. 8 reconsider an earlier decision whe n we are confronted with “an interve ning change of controlling 1 law, the a

vailabili ty o f new evidence, or the ne ed to cor rect a c lear er

ror or pr event ma nifest 2 injustice.” Id . (intern al quotat ion marks omitted); see also U

nited State

s v. Thorn , 446 F.3d 378, 3 383 (2d Cir . 2006); United States v. Loschiavo , 531 F.2d 659, 663-64 (2d Cir. 1976). 4 In our prior decision reje cting Becker’s direct appeal, we relied on the “well-settled” 5 principle

“that ple a allocu

tions of unavailab le co-c onspirat ors are admissible

at trial a s stateme

nts 6 against interest,” and therefore fall within an exception to the hearsay rule. The Supreme Court 7 uprooted that principle when it concluded that, “[w]here testimonial statements are involved, we 8 do not think the Framers meant to leave the Sixth Amendment’s protection to the vagarie s of the 9 rules of evidence.” Crawford , 541 U.S. at 61. Nevertheless, the government contends that 10 Crawford did not represent an intervening chang e of law because when it was decide d, Becker 11 still had time to petiti on for ce rtiorar i. 2 12 We have never held that to establish an exception to the law of the case doc trine an 13 intervening change of la w must occur after a defendant’s time to petition the Supreme Court for 14 certiorari has expired. While we have not squarely addressed the issue, Supreme Court precedent 15 points us toward an opposite conclusion from the one the government urges. Davis v. United 16 States , 417 U.S. 333, 342 (1974), held that law of the case did not preclude a pe titioner from 179

seeking § 2255 relief based on a cha nge in the law that occurred af ter his conviction was 1 affirmed on direct appeal. I n Davis , the cha

nge re sulted fr

om a deci sion of the

Ninth Circ

uit – 2 the same

court tha t had aff irmed Da vis’s con viction on

direct a ppeal – w hich was issued wh

ile 3 Davis’ certiorari petition was pending. The Supre me Court denied certiorari in the first instance, 4 but granted review after D avis’s subsequent § 2255 petition had been denied in the lower courts. 5 Id . at 339-41. In determining tha t Davis’s habeas claim was not barred by the circuit court’s 6 decision on direct appeal, the Supreme Court implied that the result would be differe nt had the 7 change in law occurre d while the defendant still had time to appeal his conviction but failed to do 8

so. Id . at 34 5 (dis cussi ng Sunal v. Large , 332 U.S. 174 (1947)). The Court did not, however, 9 ascribe

any signific ance to w

hether s uch a change o ccurre d before or afte r the opportunity

to 10 petition for certiorari had expired. 11 The circumstances in Davisare directly analogous to those here insofar as the cha nge of 12 law on whi ch Becker rel ies occu rred af ter his dir ect appe al was de cided but before his time to 13 petition the Supreme Court for certiorari had expired. The fact that Da vis actually filed a pe

tition 14 for cer

tiorari, wherea s Becke

r did not, i s not dispos itive. The rule the gover nment advocates i s 15 that a change in

law can not be con sidered

“interv ening”

if it occu rs befor e a defe ndant’s t ime to 16 petition for certiorari expires, whether o r not such a pe tition is fil ed. Such a

rule wou ld 17 contrad

ict Davis

. 18 Moreover, the fact that the Supreme Court initially denied certiorari on Davis’s direct 19 appeal, before

granti ng it on c ollatera

l review , demonstr

ates why the mere possibility

of Supreme 20 Court rev

iew is ina dequate to preve nt the “ma

nifest inj ustice”

that migh

t result if a defen dant in 2110

Davis’s position, or in Becker’s, were pre cluded from raising a chang e of law in a habeas 1 petition. A

lthough t he gove rnment c ontends ot

herwise , we can

not predi ct with an

y c ertainty 2 whether the Supreme Court, in any individual case, will grant the purely discretionary w

rit of 3 certiorari. Pragmatism as well as prec edent, therefore, supports our conclusion that an 4 intervening change in law oc curring after a defe ndant’s direct appeal has been exhausted, but 5 before his time to petition for certiorari has expired, may give rise to an exception to the law of 6 the case

doctrine on collat eral re view. We f

urther c onclude t

hat such a n exception is justifie d in 7 this case, where the application of Crawford is necessary to “prevent manifest injustice.” Tenzer , 8 213 F.3d at 39 (internal quotation marks omitted). 9 The government maintains that even if Crawford may be consid

ered “i nterven ing,” it 10 does not apply retroa ctively to Bec

ker’s case. This argument is based on a misreading of Teague 11 v. Lane , in which the Supreme Court held that “[u]nless they fall within an exception to the 12 general rule, new constitutional rules of cr iminal procedure will not be applicable to those cases 13 which have become final before the ne w rules are announced.” 489 U.S. at 310. Teague 14 recognized two exceptions to the general rule of non-retroactivity : the first is for new rules that 15 “place[] certain kinds of primary , private individual conduct bey ond the power of the criminal 16 law-making authority to proscribe,” and the second is for new “wa tershed rules of criminal 17 procedure.” Id . at 311 (i nternal quotation

marks omit

ted). We have held

that bec ause the

rule 18 announced in Crawford does not fall within either exception to Teague , it “should not be applied 19 retroactively

on collateral review.” Mungo , 393 F.3d at 336. The Supreme

Court rec ently 20 confirmed this understanding. Whorton v. Bockting, 127 S. Ct. 1173, 1184 (2007). 2111

Were this a

straig htforwa rd issue o f retroa

ctivity, there i s no questi on that B ecker’ s claim 1 would be barred. Teague ’s rule of non-retroactivity , however, applies only “to those cases which 2 have become final before the new rules are announced.” Teague , 489 U.S. at 310. In Mungo , we 3 noted that “[a] conviction becomes final for the purposes of Teague when ‘the availability of 4 direct appeal . . . has been exhausted and the time for filing a petition for a writ of certiorari has 5 elapsed or a timely filed petition has been finally de cided.’” Mungo , 393 F.3d at 333 n.3 6 (quot ing Beard v. Banks , 542 U.S. 406, 411 (2004)). Timing was not an issue in Mungo because 7 Crawford

had been decided “long afte r . . . the date when petitioner’s conviction became fina l.” 8 Id . at 334 n.5. Here, Becker still had time to petition the Supreme Court for ce rtiorari when 9 Crawford was decided and, accordingly, his conviction had not become f inal for purposes of 10 Teague . Non-retroactivity is therefore beside the point, and we turn to the merits of the 11 gover

nment’s a ppeal. 12 II. Crawford and Harm less Erro r Analysis 13 Prior to Crawford , we regularly

approved the admission of an unavailable witness’s plea 14 allocution to prove the existence and scope of a conspiracy , and – so long as they

were 15 accompanied by

particularized guarantees of trustworthiness – we rejected the argument that 16 such statements violate the Confrontation Clause. See, e.g. , United States v. Dolah , 245 F.3d 98, 17 104-05 (2d Cir. 2001); United Sta tes v. Pe trillo , 237 F.3d 119, 122- 23 (2d Cir. 2000); United 18 States v. Moskowitz , 215 F.3d 265, 269-70 (2d Cir. 2000) (per curiam). Our a pproval was 19 generally

conditioned on the district court excluding from the plea allocutions anynon-self20 inculpatory statements bef ore admitting them into evidence, as well as clear ly limiting the jury ’s 2112

consider ation of the allocu

tions to the

issues of whether a conspir acy existed and what, if 1 anything, the

declarant did to further the objects of the conspirac y. See Petr

illo , 237 F.3d at 123; 2 Moskowitz , 215 F.3d at 268-69 ; see also United States v. Gallego , 191 F.3d 156, 167-68 (2d Cir. 3 1999). 4 In Crawford , the Supreme Court upended these precedents, and de clared that the 5 procedural safeguar ds we and other courts had relied on as g uaranteeing the reliabilityof out-of6 court testimonial statements were inadequate to compensate for the defendant’s lack of an 7 opportunity to cross-examine the decla rant. See Crawfo rd , 541 U.S. at 64-65. “Where 8 testimonia

l stateme nts are a t issue,” the Supre

me Court he ld, “the only

indicium of

reliabil ity 9 sufficie

nt to satisf

y c onstitutional deman

ds is the one the Cons titution ac tually prescr ibes: 10 confrontation.” Id . at 68-69. We have since concluded that plea allocutions are testimonial, and 11 are therefore subject to the require ments set forth in Crawford

. United Sta tes v. Mc Clain , 377 12 F.3d 219, 221-22 (2d Cir. 2004). 13 Whether or not the d istrict c ourt’s de cision to a dmit the ple a allocu

tions in Be cker’s

case 14 was consistent with the then-controlling law of this Circuit, there can be no doubt a fter 15 Crawford

that their admission violated the Confrontation Clause. See id

. at 222 (“[A] plea 16 allocution by a co-c onspirator who does not testify a t trial may not be introduced a s substantive 17 evidence against a defe ndant unless the co-conspirator is unavailable and there ha s been a prior 18 opportunity for cross-e xamination.”). Thus, as the government essentially concedes, the district 193 The gov ernment sugge sts in its br

ief that, as to the s

ubstantiv e count of

the indictment, it was not even error for the district court to admit the plea allocutions bec ause the court limited the jury’s consider

ation of the allocutions to the conspiracy count. This argument is specious. The government does not contend, nor could it, that it would have bee n permissible under Crawford for the district court to admit the plea allocutions as proof under either count of the indictment against Becker. I t perforce concedes that the admission of the allocutions was error. Given that concession, any argument regarding

the purposes for which the jury might or might not have a

ctually consider ed the al locutions

necessa rily goes to w

hether s uch err or was ha rmless, not whether it existed at all. We address below the effectiveness of the district cour t’s limiting instructions in the context of our harmless error analysis. 13 court’s admission of the plea allocutions was constitutional error. 3 1 Not every suc h error, however, necessitates a ne w trial. After Crawford

, as before, we 2 review Confrontation Clause violations under a harmless error standa rd. See United States v. 3 Gotti , 459 F.3d 296, 343 (2d Cir. 2006); United States v. Reifler , 446 F.3d 65, 87 (2d Cir. 2006). 4 To establish harmlessness, it is the government’s burden to prove “be yond a rea sonable doubt 5 that the error complained of did not contribute to the verdict obtained.” McClain , 377 F.3d at 6 222 (internal quotation marks omitted). The government arg ues that the admission of the plea 7 allocutions was harmless (a) because the jury is presumed to have followed the district court’s 8 limiti

ng in struc tions , and (b) b eca use there was ov erwhelmin g evidence of

Bec ker’ s gui lt. We 9 disagree. 10 A. Limiting Instructions 11 The district court instructed the jury that it could consider the plea allocutions “only for 12 the follow

ing two is sues: (1)

there wa s a conspi

racy or a sche me to commi

t securit ies frau d, mail 13 fraud, or wire fraud; (2) what, if a nything, ea

ch of the persons’ testimonies y ou’re about to hear 14 did to further the object of the conspiracy, if you do find that a conspira cy existed.” The cour

t 1514

added that “[t]here is no evidence in these statements that anyof the defendants are co1 conspirators,” and reiterated its instructions at the conclusion of trial. The government contends 2 th at th es e l im it in g i ns tr uc ti on s w er e s uf fi ci en t t o r en de r a ny Crawford error harmless bey

ond a 3 reasonable doubt. 4 Generally , we presume that juries follow limiting instructions. See, e.g. , United States v. 5 Downing , 297 F.3d 52, 59 (2d

Cir. 2002) ; United States v. Salameh , 152 F.3d 88, 116 (2d Cir. 6 1998). However, the presumption is overcome “wher e there is an overwhelming probability that 7 the jury will be unable to follow the c ourt’s instructions and the evidence is devastating to the 8 defense.” United States v. Jones , 16 F. 3d 487 , 493 ( 2d Ci r. 199 4) (ci ting Greer v. Miller , 483 9 U.S. 756, 7 66 n.8 (19 87)). Sta ted another way

, we have found it inappropr

iate to pr esume tha t a 10 district c ourt’s lim iting inst ructions were ob eyed when s

uch instr uctions r equired jurors to 11 perform “mental acrobatics.” Id .; see also U nited State

s v. McD ermott , 245 F.3d 133, 140 (2d 12 Cir. 2001) (“Although the district court here provided the jury with standard limiting 13 instructions, we find that under the circumstances of the case , where the prejudicial spillover was 14

so overw

helming , they

cannot be

presume d to be ef

fective .”); United States v. Colombo , 909 15 F.2d 711, 715 (2d Cir. 1990) (finding an overwhelming probability that, despite limiting 16 instructi ons, the ju ry was unab le to dispa ssionate ly c onsider e vidence of rape and sodomy 17 admitted as “background” in a trial for RI CO conspiracy a

nd narcotics violations). 18 The government sugge sts that the

present case is in distingu ishable f rom United States v. 19 Snype , 441 F.3d

119 (2d Cir . 2006). On direct appeal f rom a con viction for conspir

acy to 20 commit bank robbery, the defendant in Snypeargued that the admission at trial of a co- 2115

conspirator’s plea allocution constituted reversible error under Crawford

(which was decided 1 after the guilty

verdict but before sentencing). Id . at 125, 128. We observed that the district 2 court “c areful ly in structed the jury that it cou

ld conside

r [the plea

] allocution only

on two issue s” 3 – whether there was a conspiracy and what, if any

thing, the declarant did to further the objects of 4 the conspiracy

. Id . at 128. The court also “specifically instructed the jury that [the] allocution 5 could not be used to determine Snype ’s membership in the charged conspirac y.” Id . The court 6 went on to note that Snype’s membership “is an issue that you will have to dec ide based on other 7 evidence,” pointing out that the plea allocution did not name Sny pe, and emphasized that the 8 jury’s deter

mination on this issue must not be based on statements in the allocution. Id

. 9 We held, in light of Crawford , that it was error for the district court to admit the plea 10 allocution, but concluded that such error was harmless bey ond a reasonable doubt. Id . at 128, 11 130. Snype had “e ssentially concede d the existence of the charged conspirac y.” Id . at 129. As 12 to his asse

rtion that “the jur ors ‘cou ld’ have used [the] a

llocution f

or a sec ond, imper

missible 13 purpose” – by infe rring, despite the court’s limiting instructions, that Sny pe was the “man” 14 referred to in the statements of his allege d co-conspirator – we found that “it is Sny pe who 15 proposes mental acrobatics.” Id . at 129-30. Accordingly , we saw no reason to deviate from our 16 general presumption that the jury had followed the limiting instructions. Id . at 130. 17 Here, as in Snype , Becker essentially concedes the existence of the charg ed conspiracy ; he 18 offered to stipulate to it at trial. However, ample gr ounds exist for distinguishing this case from 19 Snype . First, t

he sheer number of

plea allo cutions a

dmitted to prove the

conspira cy in this cas e is 20 significant, and highlights the importance of suc h testimony to the gover

nment’s case. The 2116

number and repetitive nature of the allocutions also sugg ested that the conspiracy was 1 widespread – making it plausible for the jury to assume that Becker was a participa nt simply by 2 associa

tion with hi s co-wor

kers. 3 Moreover, the content of the plea allocutions was unusually far-reaching and de

tailed, and 4 touched directly on issues tha t were central to Becker ’s defense. To establish that Becker 5 committed a criminal securities fraud violation, as well as to establish his membership in the 6 conspiracy , the government was required to prove tha t he acted willfully. United States v. 7 Cassese , 428 F.3d 92, 98 (2d

Cir. 2005) ; see also United States v. Aleskerova , 300 F.3d 286, 292 8 (2d Cir. 2002) (“To establish membership in a conspiracy , the government must prove that the 9 defendant knowingly engaged in the conspiracy with the specific intent to commit the offenses 10 that were the objects of the conspiracy .” (internal quotation marks omitted)). We have defined 11 willfulness in this context as “‘a realization on the defendant’s part that he was doing a wrongful 12 act ’ under the securities laws.” Cassese , 428 F.3d at 98 (quot ing United Sta tes v. Pe ltz , 433 F.2d 13 48, 55 (2d Cir. 1970)). 14 At trial, Becker’s primary defense to both counts of the indictment was that he lacked 15 mental culpability, and that his actions as a br oker at IA wer

e driven by c

redulity and 16 inexperie

nce rat her than by g reed. T his theor y w as bolste

red by the facts that Be cker wa s only 17 nineteen ye ars old when he began working at IA and that he left the f irm within a year, 18 purportedly upon re alizing that his fellow brokers were enga ged in illegal activity

. 19 The plea

allocutions signif

icantly undermined this de fense by sugge sting tha

t at least 20 eleven other IA br okers had knowingly

and willfully misled investors. The plea a llocutions 2117

covere d not only

what ea ch individ ual broke r did to fu rther the objects o f the con spiracy , but also 1 the knowledge and intent with which each engaged in fraudulent acts identical to those that 2 Becker allegedly

committed. The brokers, for example, testified that they deliberately inf

lated 3 their lev els of expe rience when talk

ing to cu stomers, p

ressure d custome

rs into buy

ing the house 4 stocks then actively discour aged them from selling those stocks, and made ba seless predictions 5 regarding future pe rformance. Several brokers testified that they were in their early

twenties and, 6 like Becker, had little or no experience in finance when they be gan working at I A. Each admitted 7 that he knew his acts were wrongf ul or illegal at the time he committed them. It would re quire 8 no gre at leap in

reasoni ng for a juror to a ssume tha

t Becke r’s inten t in misrepresentin

g to 9 customers the value of the house stocks, as well as his own backg round and experience, matched 10 that of the eleven other I A brokers who pled guilty to the same or similar conduct. 11 We do not ha ve a gr eat dea l of diffi culty

concludi ng that, by i

ntroduci ng the a llocutions , 12 the government was inviting the jury to make precisely

that improper assumption regarding 13 Becker’s criminal intent. For example, the Assistant United States Attorney argued to the court 14 below that the plea allocutions would help rebut the defense’s position that only a few brokers at 15 the firm were engaging in intentional securities fraud because, “[i]f there’s ten or 12 allocutions 16 admitted, obviously this shows it was not some isolated conspiracy .” In addition, the 17 government’s attorney placed great emphasis on the plea a llocutions in his closing. Although he 18 reitera

ted to the jury the distri ct judge ’s limiting instructi on, he de scribed almost in the same 19 breath how the eleven co-conspirators who ple aded guilty told exactly the same lies to investors 20 as Becker allege dly had. I n doing so, the government gutted the limiting instruction it now relies 2118

on to prove harmlessness. Cf. Jones , 16 F.3d at 492-93 (“In the course of giving th[e] limiting 1 instruction, the [trial] judge reminded the jurors repeatedly that Jones was a convicted felon as he 2 simultane ously

asked the m to put this c onsidera

tion out of

their minds when de ciding i f 3 [witnesses] had identified the right man.”). 4 In lig

ht of the p lea alloc

utions’ sw eeping

content a nd number , as well a s their ce ntrality to 5 the government’s case, we c onclude that the limiting instruction given by the district court was 6 too vague and too genera l to achieve its intended effect. I n Snype , the limiting instruction 7 expressly forbade jur ors from drawing the impermissible conclusion as to identity that the 8 defendant suggested they nonetheless might have drawn. See Snype , 441 F.3d at 128. Here, by 9 contrast, the court’s instruction said nothing whatever about the c rucial issue of Becker’s 10 criminal intent . That omis sion seem s to us espe cially signific ant give

n the deta iled manner in 11 which the allocuting defendants testified reg arding their own intent. 12 The government asserts t hat it was sufficie nt for the district c ourt to exhort jurors not to 13

con si der th e pl ea a ll ocu ti ons as e vi den ce t hat Bec ker was a me mb er o f th e co nsp ira cy. In 14 addition, because the jury was permitted to consider the allocutions “only ” as to the two issues 15 identified by the district court – e xistence of the conspiracy and what if any

thing each declarant 16 did to further its objects – the government sugg ests that jurors were forbidden, by negative 17 implication, from making inferences about Be cker’s intent or from considering the allocutions at 18 all wi th regar d to t he sub stant ive se curit ies fr aud co unt. Neith er argum ent is convi ncing. 19 Precisely bec ause the presumption that juries follow limiting instructions is a strong one, 20 it is impera

tive that s uch instr uctions be

clear a nd unequi vocal. T he distric t court explicitly 2119

instructed jurors not to consider the plea allocutions as proof of Bec ker’s membership in the 1 conspiracy , but did not mention other forbidden purposes. As a result, a reasonable juror mig ht 2 have ass

umed that she was p ermitted

to conside

r the allo cutions a s to Becker’s in tent to co mmit 3 securities fraud. Likew ise, the court’s instruction that jurors must rely “ entirely on the other 4 evidence in the case” to find that Bec ker was a member of the alleg ed conspiracy left open the 5 possibility that they might rely on the ple a allocutions to find that Becker intended to defraud 6 investors. The fa

ct that the court pr eface d the per

missible pu

rposes f or which the jury could 7 consider

the alloc utions with

the quali fier “only” does no t negat e this poss ibility . Given these 8 ambiguities, we find that application of the presumption that the jury followed the court’s 9 limiting in struction s in this ca se is not sufficien t to prove harmlessness bey

ond a reasonable 10 doubt. We are left with serious doubts as to what the instructions might have meant to any 11 individual juror. 12 Even assuming that the district court’s limiting instructions did, as the government 13 suggests, imply

that the plea allocutions could not be considered for any purpose other than 14 Becker’s membership in the conspiracy , we conclude that it would be “quixotic” to expect jurors 15 to follow them. Cf. Jones , 16 F.3d at 493. When faced with the guilty pleas of eleven alleged 16

co-cons

pirators – each o f whom, lik

e Beck er, was a broker at IA , and ea

ch of whom confes sed to 17 intentionally defrauding investors using the same deceptive sales tactics – there was an 18 overwhelming probability that the jurors would infer that Becker was simply no different from 19 his former colleagues. That evidenc e was undoubtedly “ devastating” to Becker’ s defense, which 20 rested almost entirely on the proposition that, despite misleading customers in certain respects, he 2120

did not intend to commit fraud. Under these conditions, the presumption we ordinarily apply to a 1 district court’s limiting instructions collapses. 2 B. Other Ev idence o f Becke r’s Guilt 3 As an alternative basis for demonstrating harmless e rror, the government asserts that there 4

was over

whelming evidenc e of Be cker’s

guilt ind epende nt of the p lea alloc

utions. B ecause

it 5 was error to admit the allocutions, the government must show not merely that the other evidence 6 it presented at trial was sufficient to support a finding that Be cker acted willfully , but that it was 7 so overwhelming as to convince us that the error was harmless bey ond a reasonable doubt. See, 8 e.g. , McClain , 377 F.3d at 222. In assessing a Crawford

error’ s likely

impact, w e gene

rally 9 consider

a variety o f factors includ ing “the streng th of the governme

nt’s cas e, the de gree t

o 10 which the statement was material to a critical issue, the extent to which the statement was 11 cumulative, and the degree to which the government emphasized the erroneously admitted 12 evidence in its presentation of the case.” Reifler , 446 F.3d at 87. On t

he basis o f these f

actors, 13 we conclude that the government has fa iled to carry

its weighty burde

n here. 14 Contrary

to the go vernmen t’s conte ntion, the other ev idence presente d with regard to 15 Becker’s criminal intent and his membership in the conspirac y was fa r from overwhelming. 16 Beyond the

plea allocutions, the government relied primarily on two sources of evidence to prove 17 that Becker knew his actions in connection with the sale of house stocks violated the securities 18 laws: Becker’s own conduct, including the lies he told to customers regarding his backg round, 19 experience, and compensation; and the testimony of Joseph Mandaro and Todd Peterson, the two 20 cooperating witnesses. 2121

Despite the recordings of Be cker’s conversations with customers and the testimony of the 1 alleged victims who were misled into purchasing the house stocks, there was no direct evidence 2 that Becker knew his actions were w rong or that he intended to defraud investors. I nstead, the 3 government suggests that the fa ct that Becker was a licensed se curities broker implies that he 4 must

have known that what he was doing was wrongful because it was in violation of the 5 fiduciary duty

he owed to his customers. In prese nting this argument to the jury , the prosecutor 6 relied mainly on “wha t Joe Mandaro said . . . . That [fiduciary duty ] means you have to look out 7 for the b est inter

ests of the

customers. He know s it’s illegal to lie to the customers to g et their 8 money and hold it.” 9 At trial, as well as on appeal, the government c ontended that Becker’s actions wer e 10 consistent with conduct that Mandaro and Peterson testified they engaged in knowingly

as part of 11 a scheme to defraud investors. For example, in his closing, the government’s attorney pointed 12 out that Becker and Mandaro wer e “peers. They ’re friends. . . . Becker must have known what 13 Mandaro

was all a bout and if

they ’re wor

king tog ether it probably

means Gr

egg B ecker a

lso 14 thought that way [.] You know Gregg Becker lied a bout a bunch of things, working with Joe 15 Mandaro.” 16 The jury, howe ver, had substantial reasons to doubt the credibility of both government 17 witnesses. As the district court pointed out, both Peterson and Mandaro acknowledg ed that they 18 faced s ignific ant prison terms for their r oles in the

conspira cy and wer e hoping to rece ive non-j ail 19 sentences in exchange for their testimony . Both admitted to having used illegal drugs on a 20 regular basis. I

n addition, Mandaro admitted that he had lied under oath in proceeding s before 2122

the National Assoc iation of S ecuritie s Dealer s, and Pete

rson ack nowledg ed having

pled gu ilty to 1 lyin

g to posta l inspectors. 2 Furthermore, on cross-examination Peterson acknowledg ed that he knew nothing about 3 Becker’s sales practice s or other activities at the firm. Rather than rely ing on personal 4 knowledge about what Becke r did at IA, Peterson testified that he c ould “only go by what 5 happene d on, y

ou know, the majorit

y of the time. I

mean, the se were

the practices at t

he firm, 6 yo u know .” Ma

ndar o admitted

on cr oss-e xamina tion t hat it took h im up t o six months t

o rea lize 7 that the practices IA br okers used to discourage customers from selling the house stocks were 8 wrongf

ul, despit e having had gr eater e xperienc e in the f

inancia l industry than Be cker. H e also 9 acknowl edged

that the f irm distrib

uted and r

equired brokers to follow “ scripts”

for “ab solutely 10 everything ,” including opening customer acc ounts and selling the house stocks. Moreover, he 11 acknowledged that the principals who oversa w the fraud at IA’ s Melville branch, Vincent Grieco 12 and Douglas Mangan, wer e perceived to be well-connecte d, successful businessmen who had 13 signific ant influe nce ove r the y ounger brokers

. 14 All these facts elicited on cross-examination tended to support the defense’s c ontention 15 that Becker, due to his relative inexperience a nd naivete at the time he joined IA, may have 16 lacked the criminal intent necessary to support a conviction for securities fraud. The defe nse had 17 no similar opportunity at trial or before to cross-examine the eleven alleged co-c onspirators 18 whose plea allocutions the government read into evide nce. It appear

s, therefore, that Becker 19 suffered precisely the harm that the Confrontation Clause is intended to avoid. See, e.g. , Lee v. 20 Illinois , 476 U.S. 530, 541 (1986) (recognizing that the “truthfinding function of the 2123

Confrontation Clause is uniquely threatene d when an accomplice’s confession is sought to be 1 introduced against a criminal defenda nt without the benefit of cross-examination”). 2 Far from being merely cumulative, the testimony of eleve n other brokers admitting that 3 they eng aged in substantially the same conduct as Mandaro and Peterson, with the same leve l of 4 awareness that their acts were w rong, was of critical importance to the government’s case. Cf. 5 McClain , 377 F.3d at 223. At a minimum, the allocutions bolstered Mandaro’s and Peterson’s 6 otherwise uncorroborated statements that the knowing use of fraudulent sales tactics was 7 widespread throughout the firm, and helped re but the defense’s attempts to undermine the 8 credibility of the two live witnesses. I n addition, the government’s introduction of eleven plea 9 allocutions made it substantially more difficult for the defense to differentiate Bec ker’s intent 10 fro m t hat of o th er b rok ers at t he f irm who had adm it ted to bei ng m emb ers of t he c ons pi rac y. In 11 his closing, the Assistant United States Attorney r epeatedly highlighted the significance of the 12 allocutions, and pointed out (at least by implication) their c onsistency with Mandaro’ s and 13 Pe te rs on ’s te st im on y. 14 The government contends, finally, that Becker is foreclosed from a rguing a lack of 15 criminal intent on habeas review because on dire ct appeal this Court concluded that the 16 government’s evidence as to intent was suff icient to support the jury’s ver dict. This argument 17 confuses the applicable standard of review . As we have already noted, to overcome a Crawford 18 error the government must prove more than me re sufficiency

of the evidence it presented at trial. 19 It must establish bey ond a reasonable doubt that the erroneously admitted evidence did not affect 20 the verdict obtained. Given the relative weakne sses in the testimony of Mandaro a nd Peterson, 2124

on which t

he gove rnment now relies

as indepe ndent pro of of Be cker’s

criminal intent, it i s 1 disingenuous to suggest that the effe ct of the eleven erroneously admitted plea allocutions was 2 entirely innocuous. 3 We need not and do not conclude that the result of Becke r’s trial necessarily

would have 4 been different had the district court excluded the plea a llocutions from evidence. We do 5 conclude, however, that the allocutions may well have influenced the jury ’s verdict. Because the 6 other ev

idence o f Beck

er’s g uilt was by

no means overwhe lming, th e gove rnment ha s failed t

o 7 establish that the Crawford error was harmless bey ond a reasonable doubt. 8 CONCLUSION 9 For the foregoing r easons, we affirm the judgment of the district court. 10