STATE OF NEW JERSEY VS. FERDINAND C. AUGELLO (18-04-0517, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2203-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FERDINAND C. AUGELLO,
Defendant-Appellant.
_________________________
Submitted January 5, 2021 – Decided April 20, 2021
Before Judges Gilson, Moynihan, and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 18-04-0517.
Kelly Anderson Smith, attorney for appellant.
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (John J. Santoliquido, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
A jury found defendant Ferdinand C. Augello guilty of first-degree
racketeering (RICO1), N.J.S.A. 2C:41-2(c), and conspiracy to racketeer,
N.J.S.A. 2C:41-2(d) (count one); first-degree leader of a drug trafficking
network, N.J.S.A. 2C:35-3 (count two); third-degree distribution of a controlled
dangerous substance, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-5(b) (count
three); first-degree conspiracy to distribute a controlled dangerous substance,
N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-5(b) (count four); first-degree murder,
N.J.S.A. 2C:11-3(a)(1) (count five); and first-degree attempted murder, N.J.S.A.
2C:5-2(a)(1) and N.J.S.A. 2C:11-3(a)(1) (count nine), in connection with: the
murder of April Kauffman (April), 2 the wife of Dr. James Kauffman
(Kauffman); an OxyContin distribution network operated through Kauffman's
medical practice; and a plot to murder Kauffman. Defendant appeals from the
judgment of conviction, arguing:
1
The source of New Jersey's racketeering laws, N.J.S.A. 2C:41-1 to -6.2, is the
federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.A. §§
1961 to 1968, commonly known as the RICO Act or RICO. State v. Ball [Ball
II], 141 N.J. 142, 156 (1995); see also State v. Taccetta, 301 N.J. Super. 227,
245 (App. Div. 1997). As such, the New Jersey laws are often also collectively
referred to as the RICO Act, as was the case during the pretrial and trial
proceedings in the Law Division.
2
We use some given names in this opinion for clarity. We mean no disrespect
or familiarity by our practice.
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POINT I
THE TRIAL COURT FAILED TO SUPPRESS
IMPROPER, HIGHLY PREJUDICIAL 404(B)
EVIDENCE[.]
POINT II
THE STATE IRREPARABLY PREJUDICED
JURORS AGAINST THE DEFENDANT BY [ITS]
INFLAMMATORY COMMENTARY AND
IMPROPER REFERENCES[.]
A. The State Relied upon Inappropriate
Comments and Inferences Throughout [Its]
Entire Opening Remarks[.]
B. The Summation Was Replete with
Misconduct[.]
POINT III
THE TRIAL COURT'S INSUFFICIENT AND
IMPROPER INSTRUCTIONS AND JURY CHARGES
DENIED DEFENDANT A FAIR AND IMPARTIAL
TRIAL[.]
A. Defendant was Prejudiced and Suffered
Irreparable Harm When the Trial Court
Failed to Provide the Jury with Timely and
Sufficient Limiting Instructions Regarding
Bad Acts Testimony.
B. The Jury Charges Were Insufficient and
Incomplete.
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POINT IV
THE TRIAL COURT IMPROPERLY ADMITTED
HEARSAY STATEMENTS[.]
A. It Was Improper to Admit All Co-
Conspirator Statements[.]
B. The Trial Court Committed Error in
Admitting Hearsay Statements of the
Victim[.]
C. The "Jacobs Letter" Was Improperly
Admitted to the Jury[.]
POINT V
THE TRIAL COURT ERRED IN FAILING TO
COMPEL FULL DISCOVERY OF STATE'S
MATERIAL WITNESS[.]
POINT VI
THE TRIAL COURT ERRED BY PERMITTING THE
STATE TO INCLUDE AN AMENDED CHARGE OF
VICARIOUS ACCOMPLICE LIABILITY AFTER
THE TESTIMONY WAS COMPLETE AND CROSS-
EXAMINATION HAD FINALIZED[.]
POINT VII
THE STATE'S EXPERT WAS IMPROPERLY
PERMITTED TO TESTIFY WITHOUT AN EXPERT
REPORT[.]
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POINT VIII
THE CUMULATIVE ERRORS COMMITTED BY
THE TRIAL COURT DENIED DEFENDANT A FAIR
TRIAL AND RESULTED IN A MANIFEST
INJUSTICE[.]
Unpersuaded, we affirm.
I
The trial evidence revealed Kauffman used his medical practice to illicitly
distribute OxyContin to defendant, who was a retired member of the Cape May
chapter of the Pagan Motorcycle Club (Pagans), and to defendant's associates,
namely, the cooperating witness, Andrew Glick, and co-defendants Beverly
Augello (defendant's ex-wife), Joseph Mulholland, Glenn Seeler, Tabitha
Chapman, and Sheryl Pizza. All six associates testified at trial about their
participation in the drug distribution ring and defendant's role in it .
Beginning in 2011, defendant referred individuals to Kauffman who, in
exchange for $100, wrote prescriptions for 120 OxyContin pills. The
individuals then gave defendant either cash or half of the prescription—sixty
pills—which he would sell. In Chapman's case, defendant would accept
massages rather than cash because she had no money. Each member of the
distribution ring would typically see Kauffman in his office once per month, but
sometimes Kauffman would write an individual two prescriptions, dated thirty
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days apart, in exchange for $200. Defendant never personally saw Kauffman in
his medical office, but occasionally he would have his associates deliver notes
on his behalf to Kauffman.
In addition to that testimony, the State also presented evidence of
pharmacy transactions related to the distribution of regulated narcotics.
The trial testimony of April's daughter Kimberly Pack, sister-in-law Julia
Loftus, and best friend Lee Darby revealed the Kauffmans had a tumultuous
marriage, and April had long expressed a desire for a divorce. Because
Kauffman resisted that wish, April threatened to drive Kauffman into debt by
spending exorbitant amounts of money and to expose the illegal drug
distribution ring.
In the fall of 2011, defendant proposed to Mulholland that he kill April.
Mulholland testified defendant told him Kauffman had wanted April killed
because she was spending about $100,000 per month "and she knew . . . what he
was doing and she was going to blow the drug ring up." Mulholland declined
defendant's offer to kill April for $10,000 of the $30,000 Kauffman was willing
to pay defendant.
Defendant also solicited Glick and Seeler, as well as Joseph Drinhouser—
a member of the Pagans who was not involved in the distribution ring—to kill
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April; all declined. In addition to defendant, Kauffman also asked Mulholland
directly if he would be willing to kill his wife for $100,000. Mulholland testified
that he had declined that offer as well.
According to Mulholland's testimony, defendant ultimately recruited
Francis Mulholland (Frank)—no relation to Mulholland—to murder April.
Mulholland introduced Frank, a heroin addict, to defendant after Frank had said
he wanted to be part of the distribution ring. Mulholland testified that the plan
was for Kauffman to leave his front door open after he left for work in the
morning, allowing Frank entry to the house where he would shoot April, who
they surmised would still be asleep in her room. Phone records during this time
showed an increase in communications between defendant and Kauffman.
At defendant's direction, during the early morning hours on May 10, 2012,
Mulholland drove Frank to the Kauffmans' home, dropped Frank off on the side
of the road and drove to a diner in Somers Point. Frank later met Mulholland at
the diner where Frank showed him a small handgun and reported that "he did
the job." Frank said he had fired two shots at April who screamed. Mulholland
called defendant and reported April was dead. Mulholland then drove to Frank's
home; when Frank got out of the car, he gave Mulholland $1,000 and took the
handgun with him. Frank told Mulholland defendant had paid him $10,000 for
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the murder. Frank subsequently told Mulholland he had disposed of the
handgun.
Defendant's ex-wife, Beverly, testified that on the morning of April's
murder, defendant was at their sign business when she arrived at 7:30 a.m. Not
long after her arrival, defendant told her to make an appointment with Kauffman
because he had an envelope for defendant. Beverly saw Kauffman at 9:00 a.m.,
and he gave her prescriptions for her allergies and for 120 OxyContin pills. As
she left the office, she picked up a sealed "white business-sized envelope" that
she guessed, was about a quarter-inch thick and had "Fred" written on it. She
gave the envelope to defendant at the sign shop. He put it inside a drawer and
locked it.
Glick testified the drug distribution ring had continued to operate after
April's murder, but defendant had discontinued recruiting new individuals to
participate because the doctor started restricting who could get pills. Kauffman
also increased the price of his prescriptions from $100 to $500.
Seventeen months after April's murder, Frank died of an apparent heroin
overdose at his home. Mulholland testified he was there when Frank's body was
discovered. Mulholland said when he told defendant about Frank's death,
defendant "just smirked." Mulholland also testified that defendant was fearful
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Frank was an addict who would have cooperated with law enforcement if he
were arrested.
Several years later, on June 13, 2017, while April's murder remained
unsolved, Kauffman was arrested on unrelated charges for prescription fraud
and weapons offenses. When Glick went to Kauffman's office to retrieve his
medical records, he was told his records were among those seized by the Atlantic
County Prosecutor's Office (ACPO). Glick went to the ACPO after arranging
with Detective James Scoppa to pick up his records. Scoppa questioned him
about his relationship with Kauffman and the prescriptions Kauffman wrote for
him—particularly a prescription that was written on the day after April's murder.
Glick told the detective he had not seen the doctor that day, rather that
prescription was one Kauffman had written the month before but post-dated to
May. Glick told Scoppa he knew nothing about the murder and wanted to speak
to an attorney before answering any more questions. Later in the meeting,
Scoppa told Glick that he was aware that Glick was selling illegal substances,
particularly methamphetamine. Glick admitted to it but denied selling
prescription pain medication.
Glick was arrested for drug distribution on November 1, 2017. He agreed
to cooperate with the ACPO in the investigation of April's murder by recording
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his conversations with defendant and others. To prompt discussion with
defendant about the murder, Scoppa gave Glick a letter (the Jacobs Letter)
authored by Kauffman's attorney, Edwin Jacobs, Jr., which was sent to the
ACPO in March 2017 and connected defendant and Frank to the murder.
Glick testified, and the recordings played at trial showed, that during his
conversations with defendant, defendant would turn on the radio and write notes
to Glick to communicate information that he did not want to say aloud.
Defendant was heard to say on one of the recordings that he was "convinced that
[his] phone [was] tapped" and thus was careful with his words. When Glick
informed defendant of the Jacobs Letter, defendant made clear that he wanted a
copy of the letter. He also wrote a note saying, "the doc would be dead in two
days."
Later recordings also revealed that defendant had sought to have
Kauffman murdered. During the conversations, defendant often called
Kauffman "a rat." He also acknowledged having had a meeting with Kauffman
at which Kauffman said defendant's name out loud causing defendant to worry
he was being recorded. And they discussed selling Kauffman's car; defendant
worried that would connect him to April's murder.
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The recordings also revealed conversations with defendant and others
pertaining to the drug distribution ring and April's murder. Defendant
acknowledged he had made his associates money as a result of the drug
distribution ring: "I mean I made us money[.]"
Kauffman committed suicide in jail while awaiting trial.
II
We review defendant's varied evidential arguments, recognizing "the
decision to admit or exclude evidence is one firmly entrusted to the trial court's
discretion." Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-
84 (2010); see also State v. Scott, 229 N.J. 469, 479 (2017). We "apply a
deferential standard in reviewing a trial [judge's] evidentiary rulings and uphold
its determinations 'absent . . . an abuse of discretion.'" Scott, 229 N.J. at 479
(quoting State v. Perry, 225 N.J. 222, 233 (2016)). An abuse of discretion may
be shown if there is a "clear error in judgment" or a ruling that would result in
"a manifest denial of justice." Ibid. (quoting Perry, 225 N.J. at 233).
A
Defendant first challenges the admission of evidence about the "customs,
rules, and belief systems" of the Cape May chapter of the Pagans—of which he
was past president—claiming it was not direct evidence but prior-bad-act
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evidence, N.J.R.E. 404(b), that should have been analyzed under the Cofield
test.3 Defendant argues that evidence "unfairly made [defendant] out to be a
menace due to Pagan association[,] not because of his own actions"; and the trial
judge erred by "failing to properly limit the witness' testimony of unnecessary
and irrelevant details that destroyed . . . [d]efendant's image and bolstered his
propensity for violence," precluding his right to "a fair and unbiased trial."
The trial judge granted the State's pretrial motion to admit evidence
regarding the Pagans as "admissible to establish the elements of the RICO
charge and the underlying conspiracies." The judge did not abuse his discretion
because the evidence was relevant to the elements of the indictment's RICO
count alleging defendant, Chapman, Pizza, Seeler, Beverly, and Mulholland, as
well as Kauffman and other unnamed persons, were "coconspirators and
3
Under State v. Cofield, 127 N.J. 328, 338 (1992), the party proffering evidence
of a prior bad act must prove:
1. The evidence of the other crime must be admissible
as relevant to a material issue;
2. It must be similar in kind and reasonably close in
time to the offense charged;
3. The evidence of the other crime must be clear and
convincing; and
4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
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members or associates of [a] criminal enterprise," who committed racketeering.
Accordingly, the evidence was not subject to analysis under N.J.R.E. 404(b).
Before fully addressing that issue, we first reject defendant's contention
that the trial judge made a blanket preliminary ruling to admit all Pagan -related
evidence, subject only to the judge's prohibition against describing the Pagans
as a gang or an "outlaw" motorcycle club. After the assistant prosecutor
responded to the judge's call for a "need to know" how evidence about the
Pagans' customs, beliefs and operations was "going to come in if it[] [was]
coming in[,]" by naming the witnesses who would testify, defendant's counsel
did not contest the admission of that evidence, noting the defense was "on notice,
certainly, of the Pagans aspect of this, and [that] the court [would] rule as it
[saw] fit on this." Counsel noted only her prior concern that she did not have "a
proffer on what the lay witnesses [were going] to say and the basis of their
knowledge." The judge specifically recognized his in limine ruling was "subject
to any further rulings that the court may make with respect to notice and
availability of witnesses and any [prior] statements they may have made," and
that he would "hear, of course, any timely objections during trial with respect to
the evidence as it comes in."
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Returning to the link between the Pagan-related evidence and the indicted
crimes, RICO makes it "unlawful for any person employed by or associated with
any enterprise engaged in or activities of which affect trade or commerce to
conduct or participate, directly or indirectly, in the conduct of the enterprise's
affairs through a pattern of racketeering activity or collection of unlawful debt."
Ball II, 141 N.J. at 171-72 (quoting N.J.S.A. 2C:41-2(c)). Thus, in a RICO
prosecution, the State is required to prove:
(1) the existence of an enterprise; (2) that the enterprise
engaged in or its activities affected trade or commerce;
(3) that defendant was employed by, or associated with
the enterprise; (4) that he or she participated in the
conduct of the affairs of the enterprise; and (5) that he
or she participated through a pattern of racketeering
activity.
[State v. Ball [Ball I], 268 N.J. Super. 72, 99 (App. Div.
1993), aff'd, 141 N.J. 142 (1995).]
To that end, the State must present evidence of the discrete elements of an
"enterprise" and "a pattern of racketeering activity." Ball II, 141 N.J. at 161-62.
"The enterprise is the association, and the pattern of racketeering activity
consists of the predicate incidents. Nevertheless, evidence that serves to
establish such an enterprise need not be distinct or different from the proof that
establishes the pattern of racketeering activity." Id. at 162.
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The enterprise must have an "organization," consisting of "those kinds of
interactions that become necessary when a group, to accomplish its goal, divides
among its members the tasks that are necessary to achieve a common purpose."
Ibid. Evidence of a structure within the enterprise "support[s] the inference that
the group engaged in carefully planned and highly coordinated criminal
activity." Ibid. Besides the structure, the evidence must focus on the number
of persons involved, their knowledge of the organization's objectives, the
manner in which they interacted, their individual roles, the level of planning, the
decision-making process, the coordinated implementation of decisions, the
frequency of racketeering activity, and the amount of time between each
incident. Id. at 162-63.
A pattern of racketeering activity has two components: (1) at least two
incidents of racketeering conduct (predicate acts); and (2) the conduct must have
"the same or similar purposes, results, participants or victims or methods of
commission or are otherwise interrelated by distinguishing characteristics and
are not isolated incidents." N.J.S.A. 2C:41-1(d). "[T]he primary criterion of
New Jersey's 'pattern of racketeering activity' is 'relatedness,'" which "calls for
the application of a broad standard involving the totality of all relevant
circumstances" that "may include 'continuity.'" Ball II, 141 N.J. at 169.
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In the indictment, the State alleged the enterprise consisted of the named
defendants, Kauffman and other "associates or members named but not
charged," including members of the Pagans. Drinhouser, who defendant had
solicited to kill April, identified defendant as the president of the Pagans at the
time he joined in 2010. Defendant also solicited Seeler, a Pagan, to kill April.
He asked Glick, who had succeeded defendant as president of the Cape May
chapter, if he would ascertain if there was anybody who would be interested in
killing April.
So too, there was testimony from numerous witnesses about defendant's
role in the drug distribution scheme. Seeler testified he, as well as Mulholland,
Pizza, Beverly, and Glick—all of whom were members of or associated with the
Pagans4—had illegally obtained drugs from Kauffman of which defendant
received a share. Defendant solicited Glick to expand the scheme. Seeler
delivered notes between defendant and Kauffman, as did Glick. And Glick,
Beverly, Mulholland, Seeler, and Pizza testified about their participation in the
drug distribution ring and defendant's role.
4
Glick testified Mulholland was a member of the Herd or Shore Dogs, a then
Pagans "support group."
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Glick further testified about his concern that April's murder would be tied
to the Pagans, and that the "mother club" would find out it had not been receiving
its share of "tribute" from the drug distribution operation. Glick also told the
jury that a ranking member of the "mother club" and two "pretty big guys" came
to him because the ranking member was "hearing this stuff that . . . the Pagans
down here, either Atlantic or Cape May or somebody, [was] involved in [April's]
murder." Glick said he had lied when he told the "mother club" Pagans he knew
nothing about it because if he had told the truth, he "probably would have got[ten
his] ass handed to [him], beaten and [his] jacket taken," that is, he would have
lost his membership.
Inasmuch as two of the predicate acts alleged in the indictment were
April's murder and the distribution of drugs, as well as the conspiracy to commit
those crimes, the State properly sought to prove the existence of the enterprise,
as well as its organization and pattern of activities coordinated through
defendant. That evidence was pertinent to the indicted charges, not to other
crimes.
Because federal case law is often useful in perpending our RICO law, Ball
II, 141 N.J. at 156, we find apposite the Second Circuit's opinion in United States
v. Coppola, 671 F.3d 220, 244 (2d Cir. 2012), where the court addressed the
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defendant's argument that he received an unfair trial because the government
introduced inadmissible evidence of crimes committed by crime families that
"did not specifically implicate" the defendant. The Second Circuit concluded:
such evidence [was] relevant to prove both the
enterprise and pattern elements of the charged
racketeering crimes. . . . "[E]vidence of numerous
criminal acts by a variety of persons" may be relevant
to prove the enterprise and pattern elements of
racketeering. Thus, even though a defendant "may
reasonably claim no direct participation" in the acts of
others, evidence of those acts may be relevant to prove
(1) the "existence and nature" of the racketeering
enterprise, and (2) a pattern of racketeering activity by
the defendant "by providing the requisite relationship
and continuity of illegal activities."
[Id. at 244-45 (quoting United States v. DiNome, 954
F.2d 839, 843 (2d Cir. 1992)).]
We agree with the court of appeals that "[s]uch conduct is not 'other'
crime[s] evidence . . . ; rather, it is evidence of the very racketeering crimes
charged." Id. at 245. Thus, even though the evidence relating to the racketeering
charge included proof of criminal activities that did not always directly involve
defendant, it was admissible as part of the State's efforts to prove the existence
of an enterprise and a pattern of racketeering activity. Ibid.; see also Ball II,
141 N.J. at 175 (holding a defendant can be found to have participated in an
enterprise even if his role "do[es] not exert control or direction over the affairs
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of the enterprise, as long as the actor, directly or indirectly, knowingly seeks to
carry out, assist, or further the operations of the enterprise or otherwise seeks to
implement or execute managerial or supervisory decisions").
The trial judge properly admitted evidence of the criminal activity
conducted by members of the Pagans—largely directed by defendant, even after
he was "retired" from the club—as well as evidence of its customs, beliefs and
operations. That evidence was relevant to proving the enterprise, a substantial
part of which was comprised of Pagans and associates, and which, the evidence
shows, was influenced by those customs, beliefs and operations.
It was also relevant to proving that the enterprise was engaged in a pattern
of racketeering activity. N.J.S.A. 2C:41-2(c). As correctly recognized by the
trial judge, it need not have been evaluated as other crimes evidence under
N.J.R.E. 404(b). We discern no abuse of discretion in the judge's admission of
the evidence relevant to the Pagans' existence, organization and pattern of
activity. It not only proved those elements of racketeering; it showed the
pervasive Pagan tenets that undergirded defendant's control over the enterprise
and its members, and his expansion and protection of the drug distribution ring
by force or threat, including murder and conspiracy to commit same.
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The evidence involved details of the Pagans' activities that, despite the
trial judge's admonition to refrain from referring to it as an "outlaw" club or by
similar terms, showed the club was just that. When asked what the Pagans was,
Drinhouser explained that it was "a one-percent motorcycle club," and "one-
percent" "was a term that came up . . . years ago [when] someone had said
[ninety-nine] percent of the people that ride motorcycles are law-abiding
citizens and the other one[-]percent aren't." Likewise, Seeler said the term was
derived from "one[-]percenters [who] take the law into their own hands[,]" as
opposed to "[n]inety-nine percent of the population [who] follow[] the rules and
regulations[.]" Glick also made the same reference, specifically referring to the
Pagans as an "outlaw" group. So too, members used that term in their monikers.
We previously recognized that gang membership alone is not evidence of
criminal activity, but "it is at the very least strongly suggestive of such activity." 5
State v. Goodman, 415 N.J. Super. 210, 227 (App. Div. 2010). Thus, where
evidence of gang membership is presented, a limiting instruction is usually
required "because the average juror would likely conclude that a gang member
has engaged in criminal activity. Such evidence has the potential to 'taint' a
5
The defendant in Goodman was not charged with racketeering.
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defendant in much the same way as evidence of actual criminal conduct." Id. at
228.
The trial judge here was attuned to the potential prejudice engendered by
the State's racketeering proofs and, inviting input from counsel, crafted a
limiting instruction to ameliorate the prejudice and curtail the jury's
consideration of that evidence. Defendant challenges the timing, sufficiency
and completeness of the instruction.
The instruction, presented after opening statements and prior to the
presentation of witness testimony, referenced the State's opening statement that
the jury would hear: "evidence that . . . defendant was or is a member or leader
in an organization referred to as the Pagans Motorcycle Club"; "alleged criminal
activity of the Pagans and those associated with the Pagans"; "the history,
hierarchy, membership and rules of the Pagans"; and the Pagans' involvement in
"drug distribution, racketeering and murder in this case."
The judge instructed the jury it could utilize only what was presented as
evidence; it could not consider any information about the Pagans learned from
any other source. The judge also instructed the jury: "the limited purpose for
the introduction of evidence related to the defendant's alleged affiliation with
the Pagans and the organization and purposes of the Pagans [was] to show the
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defendant's involvement with racketeering activity"; "defendant's association
with the Pagans constituted his involvement in an enterprise and a pattern of
racketeering activity"; and "the existence of an enterprise [comprised] of the
defendant and others who are associated . . . with the purpose of carrying out at
least two incidents of racketeering conduct alleged" including "leader of a
narcotics trafficking network, distribution or possession with intent to distribute
controlled dangerous substances, murder and the attempt or conspiracy to
commit these crimes." Whether the evidence proved the existence of the
elements of racketeering beyond a reasonable doubt was left exclusively to the
jury. The judge cautioned that "defendant's mere association with or
membership in the Pagans in itself in no way proves the defendant was involved
in racketeering activity or that the Pagans constituted a criminal enterprise."
The judge also explained the jury had to determine whether "defendant's
conduct, together with the conduct of others in association with the Pagans,
constituted a pattern of racketeering activity[,]" and that "evidence of criminal
activity by persons associated in the Pagans may be relevant to [the jury's]
consideration whether the State has proven the existence of an enterprise and
the pattern of elements of racketeering." The judge explicated that evidence of
activities in which defendant had no direct participation might be relevant to the
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jury's "consideration of whether the State has proven the existence and nature of
the racketeering enterprise and the pattern of racketeering activity by . . .
defendant by providing the requisite relationship in continuity of alleged illegal
acts."
The judge repeated those principles and reminded the jury of that
instruction before Glick's cross-examination resumed on the fourth day of his
testimony. Throughout Glick's testimony, evidence, including Glick's recorded
conversations, was introduced showing defendant's alleged involvement in what
defendant contends were other-crime activities. Glick referred to defendant's
activities as "Freddy crime world."
Defendant's counsel first objected after a portion of Glick's conversation
with Drinhouser was played during his first day of testimony, claiming that
unrelated crimes she described as "the job on the Parkway" and "the lumping up
[of] the heating and cooling guy," were being attributed to defendant and should
be considered under N.J.R.E. 404(b). The judge told defendant's counsel he
would: reserve on defendant's objection, stop the recording if he perceived a
need and "certainly hear [from defendant's counsel] outside the presence of the
jury." Glick's lengthy testimony continued for the rest of that day without
further objection. At the end of the day, defendant's counsel briefly said that
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they were "going to talk about a potential curative [instruction] with 404(b)
issues."
The next day, before Glick's testimony resumed, the judge reiterated that
he would "consider certain limiting instructions or other remedies [that] may be
suggested by the defense," and proposed the matter be addressed cumulatively,
subject to any specific objection raised by defendant during Glick's continued
testimony. Defendant's counsel responded she had "wrongly assumed that with
[the] trial court order there would be some kind of motion made or there would
be redactions ahead of time[,]" and that she was awaiting a digest so she could
"make specific objections." She continued that "[i]f we're going to handle it
with a curative instruction, and again my objection is it's cumulative, [she
would] make notes in [her] transcripts"; she pointedly "ask[ed] that nothing,
even if it's curative, [the assistant prosecutor] has suggested things be stricken,
. . . [be] stricken from the record." The judge advised that he would continue to
listen to the recordings for objectionable evidence, but determined that "at least
so far what [he] heard[,] with proper instructions[,] could be taken as part of the
overall corrupt enterprise" alleged by the State.
Two days later, before final cross-examination, the judge ruled that,
contrary to defendant's position, the evidence adduced through Glick was related
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24
to the State's racketeering charge and was not subject to analysis under N.J.R.E.
404(b). The judge read his proposed charge to counsel outside the jury's
presence, referring to "certain terms and phrases" the jury had heard during
Glick's testimony and recorded conversations "that reference[d] . . . defendant's
alleged involvement with things like Freddy crime world, the Mafia and certain
dealings among the Pagans and others." Before harkening to his prior charge
about the limited use of that evidence, the judge told the jury the "evidence was
permitted in connection with the State's charges against . . . defendant that his
actions between 2011 and 2017 with the Pagans and others associated with him
and with the Pagans constituted the pattern of illegal activity as charged in the
indictment." Defendant's counsel said she had no objection to the instruction.
When, in response to defendant's counsel's request that the charge be given
immediately and at the end of her cross-examination, the judge said he would
give the charge before Glick resumed the stand and in the final charge,
defendant's counsel responded, "[t]hank you." The instruction was repeated
without objection in the final charge.
Although defendant's failure to object at trial constitutes a waiver of his
right to challenge the instruction on appeal, State v. Afanador, 151 N.J. 41, 54
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25
(1997); R. 1:7-2, we review his challenge to the timing, sufficiency and
completeness of the instruction under the plain error standard, R. 2:10-2.
In considering a jury charge, plain error is "[l]egal
impropriety in the charge prejudicially affecting the
substantial rights of the defendant sufficiently grievous
to justify notice by the reviewing court and to convince
the court that of itself the error possessed a clear
capacity to bring about an unjust result."
[State v. Jordan, 147 N.J. 409, 422 (1997) (quoting
State v. Hock, 54 N.J. 526, 538 (1969)).]
We discern no error in the charge that prejudiced defendant. The
instruction informed the jury as to the uses to which the evidence could and
could not be put, limiting any prejudice. Glick was on the stand for five days,
evidenced by approximately 952 pages of transcript. The evidence of criminal
activities by the enterprise was vast. Not only would it be unrealistic to expect
the judge to reference in the instruction each act defendant claims should have
been specified, e.g., the racial epithets used during the lengthy conversations, it
would have also encroached upon the jury's function to determine which
evidence it would accept and what was relevant and material to the elements of
the racketeering charge. Indeed, the jury could have determined some of the
evidence defendant now claims was attributed to his activities did not clearly
implicate defendant, such as the uncharged death of Frank who, evidence
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26
showed, died from an overdose. If highlighted by the trial judge, the jury may
have been swayed to impute that death to defendant.
For the same reasons, it would have been unreasonable for the judge to
repeat the instruction every time defendant claimed Glick provided
"inflammatory testimony." Though we recognize instructions are most effective
if given contemporaneously with the admission of the pertinent evidence, see,
e.g., State v. Fortin, 189 N.J. 579, 601 (2007) (finding that the limiting
instruction regarding other-crime evidence should be given "both at the time the
. . . evidence is presented and in the final jury charge"), the significance of any
delay in giving such instructions depends on the circumstances of the particular
case, see, e.g., State v. Baker, 400 N.J. Super. 28, 46-48 (App. Div. 2008), aff'd
o.b., 198 N.J. 189 (2009) (finding that a one-week delay in giving a limiting
charge on other crimes evidence was not reversible error where the sufficiency
of the final charge was adequate); State v. Hummel, 132 N.J. Super. 412, 424
(App. Div. 1975) (holding that inclusion of the limiting charge in the court's
instructions to the jury at the end of the case is sufficient). The interruptions
that would have been caused if the judge had given the limiting instruction
during Glick's long testimony would have been intrusive. Moreover, defendant's
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27
counsel voiced limited objections to the evidence and deemed the instructions
as given sufficient.
B
Defendant argues the trial judge erred by granting the State's pretrial
motion to admit "all statements made [by coconspirators] in furtherance of the
conspiracies" because he did not consider the specific statements the State
planned to introduce. The judge did not make a blanket ruling. He merely
recognized that under N.J.R.E. 803(b)(5)—the coconspirator exception to the
hearsay rule—coconspirators' statements were generally admissible, but noted
"general admissibility does not necessarily allow the State to bring [in] all such
evidence in . . . the event that an objection is made or in the event that the
testimony does not come in the way it is anticipated." Thus, the judge directed
that "at the time of the testimony," if either party "hear[s] or see[s] something is
different than what they anticipated," they should then "ask either for a sidebar
or adjournment so [they] can discuss the matter with the court and then we'll see
where that may go."
Defendant never lodged such an objection or requested a sidebar related
to that issue. And he does not now specify the coconspirators—many of whom
testified—whose hearsay was admitted, or what was said in those statements; he
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28
generally refers to "[p]artial hearsay statements." His present claims that the
admission of recorded statements was error because they were "not in
furtherance to a conspiracy, but rather in response to an investigation" that took
place years after, and that the statements were inadmissible because the State
presented "[n]o physical or direct evidence," independent of the hearsay, of the
existence of the conspiracy and defendant's relationship to it, are bald
arguments. We cannot properly analyze an argument that is not developed in a
party's merits brief. Chase Bank USA, N.A. v. Staffenberg, 419 N.J. Super. 386,
413 n.17 (App. Div. 2011).
To qualify for admission under the coconspirator exception: "(1) the
statement must have been made in furtherance of the conspiracy; (2) the
statement must have been made during the course of the conspiracy; and (3)
there must be 'evidence, independent of the hearsay, of the existence of the
conspiracy and defendant's relationship to it.'" State v. Savage, 172 N.J. 374,
402 (2002) (quoting State v. Phelps, 96 N.J. 500, 509-10 (1984)).
Although a statement may be admissible against a party if it is "made at
the time the party-opponent and the declarant were participating in a plan to
commit a crime or civil wrong and the statement was made in furtherance of that
plan," N.J.R.E. 803(b)(5), any scheme to avoid apprehension and prosecution
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29
continues a conspiracy beyond the actual commission of its objective, State v.
Soto, 340 N.J. Super. 47, 65 (App. Div. 2001) (holding a statement made to
evade capture after a crime was completed furthered the conspiracy), overruled
on other grounds, State v. Dalziel, 182 N.J. 494 (2005); State v. Cherry, 289 N.J.
Super. 503, 523 (App. Div. 1995) (holding statements by coconspirator to
establish a plan to prevent detection of himself and, in turn, the defendant
furthered the conspiracy).
Moreover, statements relating to past events may be
admissible if they are "in furtherance" of the conspiracy
and "serve some current purpose, such as to provide
cohesiveness, provide reassurances to a
[coconspirator], or prompt one not a member of the
conspiracy to respond in a way that furthers the goals
of the conspiracy."
[Savage, 172 N.J. at 403 (quoting Taccetta, 301 N.J.
Super. at 253).]
We do not discern any abuse of discretion in the trial judge's ruling that
there appears to be sufficient evidence of the
conspiracy and . . . defendant's relationship to it
independent of the hearsay; for example, the records of
pharmacy transactions related to the distribution of
[drugs] are independent of the coconspirator hearsay.
Further, there is evidence in connection with the
overarching drug ring so-called and . . . defendant's
involvement in it giving rise to independent and
corroborative evidence related to the homicide of April
. . . and evidence of . . . defendant's own admitted
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30
contact and involvement in the alleged plan to kill . . .
Kauffman related to that conspiracy charge.
The recorded statements were proof of defendant's involvement in the
drug distribution ring, April's murder and defendant's plan to murder Kauffman.
They evidenced defendant's desire to cover-up past events and avoid detection
by law enforcement. Moreover, contrary to defendant's argument, there was
evidence—independent of the wiretap statements—of the conspiracies and
defendant's relationship to them. Glick, Beverly, Mulholland, Seeler, Chapman,
and Pizza testified about their participation in the drug distribution ring and
defendant's role in it. Glick, Mulholland, Seeler, and Drinhouser testified about
how defendant solicited them to murder April; Mulholland further testified
about how he was involved in the murder and how he was directed by defendant
to carry out the crime. Glick and Scoppa testified about defendant's plan to
murder Kauffman. As the judge noted, there was also evidence of pharmacy
transactions related to the distribution of drugs, and phone records which
showed an increase in communications between defendant and Kauffman in the
days leading up to April's murder. On this record, we see no error, let alone
plain error, in the court's decision to admit the wiretap statements, or more
generally, the coconspirator statements, especially where defendant posed no
objection to any specific statement. See Afanador, 151 N.J. at 54.
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31
C
Defendant maintains the trial judge erred by granting the State's pretrial
motion to admit April's statements to show defendant's motive, which the judge
described as "derivative of . . . Kauffman's alleged motive to kill his wife to
prevent a costly divorce or to preclude the inopportune disclosure of personal
and potentially criminal information."
The judge heard testimony from Pack and Scoppa during a pretrial
hearing. Pack testified: Kauffman told her April wanted a divorce; she heard
April tell Kauffman that she hated him after accusing him of filling prescriptions
in her name for antipsychotic medication; April told her, in a conversation that
was overheard by Kauffman, she was unhappy, hated Kauffman and wanted a
divorce. Pack also testified that a "famous quote" of Kauffman was that he was
going to kill April before she took half of his empire.
Scoppa testified that, in statements he took from Glick, Drinhouser and
Mulholland, they said Kauffman wanted to kill April because "she was going to
divorce him and take half of his money, . . . she was cheating on him, and . . .
Kauffman was scared that she was going to out him and his illegal activities that
he was doing with the Pagan guys." On cross-examination he verified that Glick
"gave [him] information supposedly about [defendant's] motivation or . . .
A-2203-18
32
Kauffman's motivation and [Glick] got . . . Kauffman's motivation supposedly
from [defendant] and then that went to . . . Glick." Scoppa also testified
Drinhouser said defendant had pointed out Kauffman's house and then had told
Drinhouser he had a job for him because Kauffman wanted his wife killed and
would pay him $10,000 in cash.
From that proffer the judge concluded "defendant's motive, if any, in the
murder of April . . . [was] derivative of . . . Kauffman's alleged motive to kill
his wife to prevent a costly divorce or to preclude the inopportune disclosure of
personal and potentially criminal information." From Pack's testimony the judge
concluded Kauffman had known April wanted a divorce and had said he would
kill her before she took "half of his empire." The judge recognized our Supreme
Court's observation that "[i]t takes no great leap of intuition to understand that
divorce could motivate a person to kill[,]" State v. Calleia, 206 N.J. 274, 301
(2011), in finding April's wish for a divorce and Kauffman's reaction had
evidenced his motive to kill April. The judge then credited Scoppa's testimony
and found his interviews with Glick, Drinhouser and Mulholland had revealed
they had been "in possession of information or knowledge of interactions with
. . . defendant and his knowledge of . . . Kauffman's desires to carry out a
homicide against April." The judge concluded the State had established the
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33
admissibility of April's hearsay under N.J.R.E. 803(c)(3). We note that prior to
the judge's ruling, defendant's counsel told the judge, in light of Scoppa's
proffer, she could "see how the ruling [would] come down and [she would] make
arguments regarding weight before the jury."
N.J.R.E. 803(c)(3) allows admission of "[a] statement made in good faith
of the declarant's then-existing state of mind, emotion, sensation or physical
condition (such as intent, plan, motive, design, mental feeling, pain, or bodily
health), but not including a statement of memory or belief to prove the fact
remembered or believed[.]" In Calleia, the Court considered the admissibility
of evidence, under N.J.R.E. 803(c)(3), from the deceased victim's friends "who
uniformly revealed that [the victim] was unhappy with her marriage, was
contemplating divorce, and described steps she had taken in furtherance of
obtaining a divorce from defendant" to prove motive. 206 N.J. at 284-85.
The Calleia Court announced a revised view of such evidence, recognizing
"the special role of motive evidence and its unique capacity to provide a jury
with an overarching narrative, permitting inferences for why a defendant might
have engaged in the alleged criminal conduct." Id. at 293. Because "motive
must [often] be pieced together; potential motivating factors must be gleaned
from evidence that does not itself bespeak criminal intent but merely explains
A-2203-18
34
what events might have led the accused to commit a criminal act," "motive is
treated somewhat differently than other types of evidence," and "a 'wider range
of evidence' is permitted to prove motive, so long as it remains a material issue
in a case." Id. at 293-94 (quoting State v. Covell, 157 N.J. 554, 565 (1999)).
"'Any evidence which has a legitimate bearing on the question of motive is as a
general rule admissible' so long as it 'at least to a slight degree tend[s] to
establish the existence of the motive relied on.'" Id. at 293 (alteration in
original) (quoting 41 C.J.S. Homicide § 325 (2006)). "Time and again, courts
have admitted motive evidence even when it did no more than raise an inference
of why a defendant may have engaged in criminal conduct, and even in the face
of a certain degree of potential prejudice stemming from the evidence." Id. at
294. When evidence provides proof of motive, "a strong showing of prejudice
is necessary to exclude" such evidence under the balancing test of N.J.R.E. 403.
Ibid.
The Court, nevertheless, emphasized
a fact can only be probative on the question of motive
if a defendant is aware of that fact. Thus, in order to be
admissible as motive evidence, the State must directly
or circumstantially show that the accused probably
knew of the facts that are alleged to have given rise to
the motive.
[Id. at 296.]
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35
The Court repeated that admonition three times, concluding: "There can be no
misunderstanding: a prosecutor must demonstrate that a defendant knew or
likely knew of a victim's conduct in order for the victim's conduct to provide
motive evidence." Id. at 297.
The State's proffer demonstrated Kauffman's motive to have April killed.
Pack's testimony about Kauffman's "famous quote" about killing April to
prevent her from taking his assets, and Scoppa's proffer that Glick, Drinhouser
and Mulholland said Kauffman wanted to kill April because "she was going to
divorce him and take half of his money, . . . she was cheating on him, and . . .
Kauffman was scared that she was going to out him and his illegal activities that
he was doing with the Pagan guys[,]" was sufficient evidence to permit April's
hearsay statements under N.J.R.E. 803(c)(3) if offered against Kauffman.
Defendant presently argues the State failed to establish defendant had
known of Kauffman's motive. Although the trial judge should have relied upon
more compelling evidence than that offered by Scoppa's account of his
interviews with Glick, Drinhouser and Mulholland, Glick, himself, testified
defendant had told him, in Mulholland's presence, that Kauffman "was looking
for someone to kill his wife because she was . . . going to divorce him, was
cheating on him, and he wasn't going to give her half of his wealth which was
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36
almost five million." In the fall of 2011, defendant proposed to Mulholland that
he kill April. Mulholland testified defendant had told him Kauffman wanted
April killed because she was spending about $100,000 per month "and she knew
. . . what he was doing and she was going to blow the drug ring up." Considering
that evidence of defendant's knowledge of Kauffman's motives, the judge did
not abuse his discretion by admitting April's statements. Although defendant's
knowledge of all of Kauffman's motives was not shown by the evidence ,
defendant does not contend he was painted with a brush any broader than that
relating to the motives of which he had knowledge.
We determine defendant's argument that April's statements should have
been analyzed for admissibility under N.J.R.E. 803(b)(5) instead of N.J.R.E.
803(c)(3) to be without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
April was not a coconspirator.
D
In his last evidential argument, defendant argues the trial judge abused his
discretion by granting the State's pretrial motion to admit hearsay: the Jacobs
Letter. During a pretrial hearing, the judge heard testimony from Jacobs who
said he had authored the March 20, 2017 letter, and from Scoppa who said he
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37
had provided the letter to Glick on November 11, 20176 because Scoppa believed
if Glick presented the letter to defendant, it "would strike up conversation" about
April's murder. According to the judge's instruction to the jury, the Jacobs Letter
was written in response to an October 4, 2012 inquiry from the ACPO asking if
Kauffman "knew of any person who would have wanted to harm April," who
was killed on May 10, 2012.7 Jacobs responded that the names of Frank and
defendant had been brought to his attention.
The judge ruled the letter could be considered as evidence of defendant's
motive to conspire to murder Kauffman, subject to a jury instruction limiting
the use of that evidence to that purpose. The State presented a recorded
conversation between Glick and defendant, during which Glick showed
defendant the letter. Defendant responded by saying: "Here's what I think.
When I saw that paper . . . [w]ith my name on it . . . [t]hat guy is giving me up
. . . as the suspect to a murder"; and that "this guy"—who the State contended
was Kauffman—could tell the authorities that he paid defendant to arrange
6
During the Rule 104 hearing Scoppa also testified he had given the letter to
Glick on November 13, 2018, but during cross-examination stated the year was
2017. We note Glick agreed to cooperate in 2017, and the trial commenced in
Fall 2018.
7
Neither the Jacobs Letter nor the October 4, 2012 letter of inquiry was
provided in defendant's appendix; the State did not submit an appendix.
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38
April's murder. Defendant continued that the person to whom Beverly passed
notes—which evidence shows was Kauffman—would "fucking rat in a minute"
and disclose "every detail" including notes from defendant to Kauffman.
Defendant told Glick: "He's already given my name to the fucking Prosecutor's
[O]ffice as a suspect in a murder." The State argued that the recorded
conversation showed defendant wanted Kauffman dead.
The judge cautioned the jury the letter was "not proof that [defendant]
committed the offenses charged against him or that . . . Kauffman or any other
person identified him in connection with the death of April[.]" The judge
instructed that the only purpose for which the letter "and the testimony of the
several witnesses concerning th[e] exhibit" could be considered was to prove
defendant's motive, leaving to them the decision if it did.
The letter was not, as defendant now contends, hearsay. As the judge
explained, it was not offered for proof of what was stated therein. See N.J.R.E.
801(c)(2). "[I]f evidence is not offered for the truth of the matter asserted, the
evidence is not hearsay and no exception to the hearsay rule is necessary to
introduce that evidence at trial." State v. Long, 173 N.J. 138, 152 (2002).
Moreover, in light of the evidence supporting the letter's relevance to the State's
contention that it prompted defendant's statement to Glick that Kauffman should
A-2203-18
39
be killed to prevent him from implicating defendant, the judge did not abuse his
discretion in admitting it. Indeed, Mulholland testified defendant had shown
him the Jacobs Letter while pointing a gun at him, had told Mulholland that the
letter was from Mulholland's one-time lawyer's firm; and had said he was being
set up and was afraid Kauffman would cooperate with law enforcement
authorities.
III
Defendant argues he "was compromised and denied due process" when
the State failed to provide its experts' reports, and the court failed to exclude the
experts' testimony "despite the requirements of the Court Rules and
[d]efendant's clear application to bar the[ir] testimony."
Defendant's counsel protested pretrial about the "problem" she had
because she did not "know the names" of a computer-crimes detective and a
forensic detective who the State was going to call and she had "not been
provided any expert reports in that regard" although their titles "appear[ed] to
refer to expert witness testimony." After counsel made an application to bar
experts whose reports she had not received, the trial judge instructed counsel to
confer, exchange any additional information, if needed, and to contact him in
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40
writing if they could not resolve the issue on their own. The record does not
show this issue came before the court again.
The State called two expert witnesses during trial: Federal Bureau of
Investigation Special Agent John Hauger, an expert in historical cell-site
analysis and Doctor Gary Collins, a medical examiner, who was called to testify
about the autopsy that was performed on April's body.8
Prior to Hauger's testimony, defendant's counsel raised an objection, not
to the State's failure to supply his report, but to "information being incorporated
into the expert report." Contrary to defendant's present argument, defendant's
counsel was obviously in possession of Hauger's report and voiced no objection
that she could not proceed because it had not been provided or not timely
provided.
Nor did defendant raise any objection because the defense was not
provided with an expert report before the doctor testified to the straightforward
cause of death: a gunshot wound to April's chest that caused "heavy internal
8
Ian Finnimore, a forensic crime-scene detective, testified as a fact witness,
though defendant's counsel elicited that he had previously given expert opinions.
The State did not present the testimony of a computer-crimes expert.
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41
bleeding" or "hemorrhagic shock[.]" In summation, defendant's counsel told the
jury April "died from gunshot wounds inflicted on her body in her own home."
There is no merit to defendant's argument.
IV
Defendant argues the trial judge erred by denying his pretrial request for
discovery pertaining to Glick's arrest on unrelated drug charges and his
agreement to cooperate with the State.
Although the assistant prosecutor represented there was no formal or
informal agreement between the ACPO and Glick other than "the plea which is
[a] public record," the judge ordered the State to provide defendant with an
explanation of payments made to Glick by the ACPO and FBI and any
documentation related thereto. The judge ruled "Glick's cooperation and
involvement . . . has to be made known," and told defendant's counsel she could
"examine any witness on agreements, if any[.]"
As to defendant's petition for discovery linked to Glick's unrelated arrest,
reportedly made after a search warrant was executed, the judge denied that
request because Glick's
criminal exposure is still a matter of State's
investigation and does not need to be made known.
Confidential informants that are involved that you don't
plan on calling as witnesses in this case don't need to
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42
be made known. On the theory that Mr. Glick may spit
the bit and may decide not to cooperate and then you go
back to start, so the court is not in a position to
jeopardize the State's investigation in an unrelated
criminal activity alleged against Mr. Glick.
The judge clarified, in response to defendant's counsel's inquiry, that he was "not
requiring the State to produce [discovery in Glick's unrelated case] absent
information about his cooperation in this case." The judge did, however, tell
defendant's counsel she could "ask [Glick] whatever you want to ask him when
he's on the stand." Counsel did cross-examine Glick about his arrest on separate
drug charges; his expectations about the outcome on those charges; the existence
of any cooperation agreements; payments to him by the ACPO and FBI; his
cooperation and its impact on his separate charges, including their
administrative dismissal; uncharged acts; and on the crimes charged in this
matter.
"We accord substantial deference to a trial court's issuance of a discovery
order and will not interfere with such an order absent an abuse of discretion."
State v. Hernandez, 225 N.J. 451, 461 (2016); see also State ex rel. A.B., 219
N.J. 542, 554 (2014). Accordingly, we "defer to a trial court's resolution of a
discovery matter, provided its determination is not so wide of the mark or is not
'based on a mistaken understanding of the applicable law.'" A.B., 219 N.J. at
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43
554 (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371
(2011)). We do not perceive that to be the case here.
The judge's decision heeded the tenets that defendants are entitled to
discover a witness's plea and cooperation agreement and cross-examine a
witness on his "expectation of favorable treatment for his cooperation and argue
that he has sold his services and testimony to the State"; and to information
concerning any violation of the cooperation agreements, including disclosure of
material false statements made by the witness and known to the State.
Hernandez, 225 N.J. at 464-65. The judge also recognized the limits the Court
placed on discovery of unrelated cases:
Although our discovery rule generally requires that the
State provide all evidence relevant to the defense of
criminal charges, it does not open the door to foraging
through files of other cases in search of relevant
evidence. The only information discoverable in the
unrelated cases that is relevant to the defense at this
point are the cooperation agreements between the State
and the Witness and any violations of the agreements,
such as material false statements made by the Witness
and known to the State. The discovery order here
requires disclosure of information not mandated by our
discovery rule—information that has no ostensible
relevance to the case to be tried.
[Id. at 453-54.]
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44
In Hernandez, the State's case relied "on a cooperating witness who ha[d]
given assistance to law enforcement in a number of criminal investigations." Id.
at 464. The State provided the defendants with "the [w]itness's name, his
statements to law enforcement authorities, his criminal history, his plea and
cooperation agreements, audio recordings of the alleged drug transactions, the
report of the forensic analysis of the cocaine allegedly sold by defendants, and
investigative reports concerning the alleged offenses committed by defendants."
Ibid. The defendants wanted what the Court described as "open-file discovery
of unrelated cases because the present case and the unrelated cases share a
common thread—the same cooperating witness." Ibid.
The Court observed that rewards offered by the government to a
cooperating witness had the "capacity to induce false testimony[,]" necessitating
the State's "complete disclosure of the [witness's] cooperation and plea
agreements[,]" and "[t]hrough defendant['s] cross-examination and summation,
the jury [would] know" the witness had reason to seek the State's favor. Id. at
468. So too, the Court required the State to disclose material false statements it
knew the witness had made in the unrelated investigation. Ibid. But the Court
ruled the defendants' discovery request in connection with the unrelated cases
did not "fall within the ambit" of the criminal discovery rule reasoning unless
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45
the defendants could "signify with some specificity the relevance of the
requested documents—as opposed to speculative relevance"—discovery would
not be ordered "at least until defendants can make some concrete showing of
need." Ibid.
Through that lens, we determine the judge did not abuse his discretion by
denying defendant's discovery request. The judge carefully considered and
balanced the State's ongoing investigation in the unrelated matter, the
informants' involvement and defendant's unstated need for discovery in that
case.
V
Defendant urges us to reverse because the "State irreparably prejudiced
jurors against [him] by [its] inflammatory commentary and improper inferences"
in its opening and closing statements. Defendant did not object to any of the
assistant prosecutor's remarks.
We reject defendant's contention that the trial judge prohibited objections
from defendant's counsel to the State's opening and closing remarks. Defendant
misstates the record. The judge merely stated his "usual rule and preference"
was to have counsel "reserve any objections during . . . openings or closings."
The judge explained any such refrainment was "without prejudice," and invited
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46
counsel to bring to his attention "anything objectionable . . . at the end of the
[the adversary's] statement[,]" and he would then take "any corrective action
necessary[.]"
"Generally, if no objection was made to the improper remarks, [they] will
not be deemed prejudicial. Failure to make a timely objection indicates that
defense counsel did not believe the remarks were prejudicial" when made, and
"also deprives the court of the opportunity to take curative action." State v.
Timmendequas, 161 N.J. 515, 576 (1999). To justify a reversal and a new trial,
"the prosecutor's conduct must have been 'clearly and unmistakably improper,'
and must have substantially prejudiced defendant's fundamental right to have a
jury fairly evaluate the merits of his defense." Id. at 575 (quoting State v.
Hightower, 120 N.J. 378, 411 (1990)); see also State v. Wakefield, 190 N.J. 397,
438 (2007); R. 2:10-2 ("Any error or omission shall be disregarded by the
appellate court unless it is of such a nature as to have been clearly capable of
producing an unjust result, but the appellate court may . . . notice plain error not
brought to [its] attention."). We are satisfied that none of the comments
challenged on appeal constitutes plain error. R. 2:10-2.
Defendant argues it was improper for the assistant prosecutor to: suggest
that Glick had taken a risk by assisting law enforcement; suggest that defendant
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had connections to the Mafia or the Mexican Cartel; and "unduly impress the
jury by touting the credentials of his office and the case" by saying that this case
was the Atlantic County Prosecutor's "top priority." We disagree. These
assertions permissibly "provide[d] an outline or roadmap of the State's case" and
were "limited to a general recital of what the State expect[ed], in good faith, to
prove by competent evidence." State v. Walden, 370 N.J. Super. 549, 558 (App.
Div. 2004); see also State v. Land, 435 N.J. Super. 249, 269 (App. Div. 2014).
Glick testified he feared for his safety because he cooperated with law
enforcement; so too, Mulholland testified that defendant had threatened to kill
him if he ever implicated defendant in April's murder. Mulholland further
testified that defendant had pointed a gun to his head when defendant confronted
him with the Jacobs Letter and that "[defendant] didn't trust [him]" and "always
threatened to kill" him.
Glick and Scoppa testified regarding defendant's connections to organized
crime. Scoppa specifically recounted how he had followed defendant to the
Borgata Casino where he had observed defendant having a meeting with
members of the Mafia. Mulholland testified that defendant had "told [him] he
had spoken to . . . Glick" and "that some cartel was going to take care of the
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doctor," and that defendant had wanted Mulholland to call his "Mafia friends"
to deal with Kauffman.
The assistant prosecutor's passing comment regarding the Prosecutor's
prioritization of defendant's case related to a recorded conversation during
which Glick explained to defendant there was renewed interest in April's death,
five years after the letter that prompted the Jacobs Letter had been written,
"because of the new prosecutor."
Nor do we see any merit in defendant's argument that it was improper for
the prosecutor to infer defendant was responsible for Frank's death, highlighting
as particularly egregious the prosecutor's repeated use of the phrase: "[t]hree
people can keep a secret if two are dead." The remark referred to the State's
theory that "in [defendant's] mind, there[] [were] only three people on earth that
can get tied to that murder": Frank, Kauffman and defendant; and since Frank
and Kauffman were dead, defendant may have thought his secret was safe. The
assistant prosecutor later clarified the State's position: "Maybe three people can
keep a secret if two are dead, but this defendant could not keep his mouth shut,
and so it's not just three people. It's many, many more . . . people who you're
going to hear from."
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Trial evidence showed that defendant was worried Frank would expose
him; and when Mulholland told him of Frank's death, he "just smirked."
Contrary to defendant's skewed argument, the assistant prosecutor never
suggested defendant was responsible for Frank's death. The overwhelming
evidence was that Frank died from an overdose, as defendant's counsel noted in
summation, "face down in his own vomit on the carpet in the living room of the
. . . house his father had owned[.]" And it is undisputed Kauffman committed
suicide in the jail.
The assistant prosecutor did violate the trial judge's order to refrain from
referring to the Pagans as an "outlaw" motorcycle club when he said defendant
"was the president of what is known as the Pagan Outlaw Motorcycle Club."
There was ample evidence of illegal activities conducted by members of the
Pagans. We note defendant's counsel twice referred to the club as "the Pagan
[O]utlaw [M]otorcycle [C]lub" in summation. The trial judge's limiting
instruction guided the jury's use of evidence of defendant's association with the
Pagans. The jury is presumed to have followed that instruction. State v. Burns,
192 N.J. 312, 335 (2007). Improper remarks made by the prosecutor must be
considered in the context of the opening as a whole and will not be grounds for
reversal, particularly if unobjected to, as long as they did not deprive defendant
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of a fair trial. State v. Roman, 382 N.J. Super. 44, 57-58, 61 (App. Div. 2005).
The assistant prosecutor's single, fleeting comment does not warrant reversal.
Defendant's argument that, in his closing statement, the assistant
prosecutor prejudiced defendant when he improperly "made [it] a point to
denigrate the defense and cast suspicion onto the [d]efense [t]eam's integrity and
motivation"; "call[ed] defendant a monster"; and told the jury "[j]ustice
demand[s] he's guilty," is without sufficient merit to warrant discussion in this
opinion, R. 2:11-3(e)(2), save for some brief explanation.
The summation, in context, while at times melodramatic, presented the
State's case graphically and "forceful[ly]," State v. Bradshaw, 195 N.J. 493, 510
(2008), within the confines of the evidence. The assistant prosecutor's closing
remarks responded to the defense summation during which counsel attempted to
eviscerate the State's multiple witnesses' testimony relating to the establishment
of the enterprise by calling Glick a "con man"; Seeler a "Nazi sympathizer";
Mulholland "a cold-hearted man who . . . sold drugs in concert with Glick" and
had retained the law firm, whose partner—who she described as "a mob lawyer
representing a snitch"—authored the Jacobs Letter, represent him in connection
with separate crimes that resulted in "no conviction, apart from this while the
whole scheme was playing out"; Pizza a woman "entirely under the control of
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her husband . . . Seeler"; Chapman a woman "unable to remember anything of
the time period without her memory being refreshed"; and Beverly a woman
who "sold her pills to [defendant]." Throughout summation, the defense
attacked the State's witnesses' credibility, interests and motives, and highlighted
their illegal activities.
The assistant prosecutor did not denigrate the defense, only its theories.
He did not cast ad hominem aspersions; he responded to the defense's attack on
the State's witnesses. "It is not improper for the prosecution to suggest that the
defense's presentation was imbalanced and incomplete." Timmendequas, 161
N.J. at 593; see also State v. Patterson, 435 N.J. Super. 498, 508 (App. Div.
2014). Nor did the assistant prosecutor call defendant "a monster." And
considering the assistant prosecutor's complete statement: "Ladies and
gentleman, I ask you to find this man guilty, but not because I say he's guilty,
but because the evidence proves his guilt, because justice demand[s] he's guilty,"
not just the distorted portion argued by defendant, we perceive no impropriety.
The assistant prosecutor's opening and closing—that brought no objection
from defendant—were not "so egregious as to deprive defendant of a fair trial."
State v. Papasavvas, 163 N.J. 565, 615 (2000); see also Wakefield, 190 N.J. at
437. "Prosecutorial comments are deemed to have violated the defendant's right
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to a fair trial when they 'so infect[] the trial with unfairness as to make the
resulting conviction a denial of due process.'" State v. Jackson, 211 N.J. 394,
409 (2012) (alteration in original) (quoting State v. Koedatich, 112 N.J. 225,
338 (1988)). The trial record shows such was not the case.
VI
Defendant's argument that the trial judge erred by allowing "the State to
include an amended charge of vicarious accomplice liability" "and changed the
scope of the [r]acketeering charge" after the trial evidence had been presented
is also meritless. Despite the State's request during the charge conference that
the judge tailor that portion of the racketeering model jury charge instructing on
the fifth element of N.J.S.A. 2C:41-2(c), as charged in the indictment's first
count, the judge delivered the model charge largely verbatim. "When a jury
instruction follows the model jury charge, although not determinative, 'it is
persuasive argument in favor of the charge as delivered.'" State v. Whitaker,
402 N.J. Super. 495, 513-14 (App. Div. 2008) (quoting State v. Angoy, 329 N.J.
Super. 79, 84 (App. Div. 2000)). The judge delineated the incidents of
racketeering alleged by the State—those set forth in counts two through six of
the indictment. The instruction did not veer from the original racketeering
charge set forth in the indictment.
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Conflating the racketeering count with the murder count, defendant argues
"[t]he State further manipulated the charge." He argues the State, despite its
contention that Frank killed April, requested during the charge conference that
the jury be instructed that it alleged April's murder was committed by "another"
instead of specifying Frank. The State reasoned the jury could find someone
other than Frank committed the murder, but defendant would still be guilty of
conspiracy to commit murder if he conspired with that other person.
Although the trial judge's final charge on conspiracy-vicarious liability
and conspiracy to commit murder included that April's murder "was committed
by Francis Mulholland or by others acting in the conspiracy to murder April
Kauffman," he explained
defendant is legally accountable as an accomplice
acting in conspiracy with Francis Mulholland or with
others [acting] in the conspiracy for the crime of murder
committed by Francis Mulholland or with others in the
conspiracy because the defendant and Francis
Mulholland or the others in the conspiracy allegedly
conspired together to commit the crime. Specifically,
the State alleges that Francis Mulholland, Joseph
Mulholland and James Kauffman conspired among
themselves or with defendant to murder April
Kauffman.
He continued: "The State alleges that defendant is legally responsible for the
criminal conduct of Francis Mulholland" under the conspiracy statute.
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The judge did not adopt the State's suggestion. Although the judge added
"others" when he referenced Frank throughout the murder charge, the evidence
showed those "others" also played a role in the conspiracy to commit April's
murder. This was not an alternative theory to that originally charged in the
indictment and advanced during the trial. As the trial judge observed, the proofs
before the jury were that "Mulholland facilitated the delivery of [Frank] to the
scene of the crime and that [Frank], based on some of the other testimony, was
the guy who [shot April], and that . . . defendant's role, if these witnesses are to
be believed, was the person who orchestrated it[.]" Kauffman, it was alleged,
paid for the murder.
Neither the State nor defendant's counsel voiced any objection to the
judge's final charge when the trial resumed four days after the charge
conference, just prior to closing statements and the final instructions to the jury ;
counsel had received the final charge the day before. Nor did counsel object at
the conclusion of the charge.
Absent objection, we review the instruction for plain error and only
reverse if that error was "clearly capable of producing an unjust result." State
v. McKinney, 223 N.J. 475, 494 (2015) (quoting R. 2:10-2). An unjust result
arises when the error "raise[s] a reasonable doubt as to whether the error led the
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jury to a result it otherwise might not have reached." State v. Macon, 57 N.J.
325, 336 (1971); see also State v. Taffaro, 195 N.J. 442, 454 (2008). Failure to
object creates a "presum[ption] that the instructions were adequate." State v.
Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003).
In our judgment the jury instruction laid a clear path for the jury,
adequately explaining the applicable law.
VII
To the extent not here addressed, we determine defendant's remaining
arguments, including that "the cumulative errors committed by the trial [judge]
denied . . . defendant of a fair trial and resulted in a manifest injustice," to be
without sufficient merit to warrant any discussion. R. 2:11-3(e)(2).
Affirmed.
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