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2nd Cir. Issues Warning to Prosecutors in Otherwise Obvious Reversal

By William Peacock, Esq. on September 09, 2014 | Last updated on March 21, 2019

So, there's these Russians, right? And they had this ... defrauding the government thing. They'd sell medical equipment to the government at ridiculously inflated prices -- home whirlpools that cost about $30 were listed as costing $380 -- and they'd pocket the difference between the real cost and the fake cost, split it amongst co-conspirators, etc.

Hilariously, Vadim Yuzovitskiy and Grigory Groysman had been here before. They ran the same scam previously, Yuzovitskiy got caught, snitched on Groysman, and he snitched on everybody else. They testified that immediately after the case was closed, they opened a new office and went back to business as usual. When the sequel was inevitably discovered, the FBI went with their usual snitches and prosecuted the defendant, Lyubov Groysman, a woman who argues that she was simply a clerk, unaware of any scam or illegal activity.

Legally, that's all we know right now, because her conviction for being one of the main participants was just reversed for obvious, plain, ridiculous error. And the Second Circuit, mindful that not all cases will be this easy in the future, sent a little warning to prosecutors in the circuit.

Plain Errors Conceded

The errors were so obvious that the prosecutors didn't even try to deny them. While the Second Circuit thanked them for their candor, the court didn't buy their "harmless error" arguments.

Why? Half of the trial evidence was testimony by a Russian-speaking FBI agent who basically reiterated hearsay for three to four days and did all the translating for the rest of the evidence. Plus, the charts on those days consisted of the same hearsay. The other half of the evidence was poorly done audio and video recordings, plus the testimony of the two snitches.

There was an argument over whether the plain-error or the harmless-error standard applied (she objected to some, but not all, of the errors), but the court punted and held that even under the harsher (for the defendant) plain-error standard, this is a no-brainer.

The court, at the end of its opinion, recapped the effect of the agent's hearsay testimony:

In sum, the government has conceded that at Groysman's trial there were a large number of erroneously admitted pieces of evidence inculpating Groysman, including the many hearsay assertions by the government's main witness; the simple and easy-to-remember charts that were prepared on the basis of hearsay, whose admission in evidence was not authorized by the rules of evidence, and whose contents were inaccurate and misleading; and the impermissible opinion evidence from the government's main witness whose views were likely to be given substantial credence by reason of both his status as a law enforcement agent and his expertise in the language spoken by Groysman and the cooperators. The sole witness who could testify from first-hand knowledge in support of the government's contention that Groysman received cash from the present fraudulent scheme was Grigory G., a longtime criminal who had continued his fraudulent activities after escaping punishment in the past by assisting law enforcement authorities to convict others. Grigory G.'s testimony that he gave cash to Groysman was not corroborated by the electronic surveillance and was contrary to Ginzburg's debriefing notes; and Grigory G.'s uncorroborated testimony was the sole admissible basis for Ginzburg's repeated hearsay testimony that Groysman received cash at least once and for the government's reiteration of that assertion in summation. We conclude that the evidentiary errors now conceded by the government were serious and central to the prosecution's strategy; as such, they deeply undermine our confidence in the fairness and outcome of Groysman's trial. The paucity of the government's other evidence, although not as central to our decision, bolsters our conclusion that there was plain error.

Yeah, that's a hell of a paragraph, both in length and in substance, but it really shows how badly the government boned this case.

A Warning

This case was obvious, mostly because the evidence, which was weak, was bolstered by the FBI agent's hearsay-based testimony and hearsay-based charts. But the Second Circuit didn't just address this case -- they also issued a wee little reminder:

"Before delving into the individual weaknesses of the government's case, we issue a word of caution: The errors admitted to in this case bordered on the structural, and the government should not hope to overcome similar lapses in the future by the marshalling [sic] of a slightly stronger case," the court warned. "This Court has repeatedly warned prosecutors not to vouch for their witnesses' truthfulness."

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