## Facts

- Louis Cosentino was a project superintendent for the New York City Housing Authority (NYCHA) with limited authority to purchase supplies from private vendors when NYCHA could not provide them.
- NYCHA rules capped certain outside-vendor purchases at $500 per vendor and barred more than one such order from the same vendor within 30 days.
- The government alleged Cosentino split purchases among multiple companies controlled by the same vendors to circumvent NYCHA limits and solicited or received kickbacks tied to the orders.
- The prosecution relied heavily on testimony from two cooperating vendors who described kickback practices and tied Cosentino’s orders to payments to him.
- Evidence also included a claimed $1,000 “loan” Cosentino allegedly repaid by steering about $10,000 in orders to the lender without demanding his usual percentage.
- Cosentino testified that order-splitting was intended to obtain needed supplies and improve service, not to extort or accept bribes.
- A jury in the Southern District of New York convicted Cosentino of Hobbs Act extortion (18 U.S.C. § 1951) and using the mails to facilitate bribery (18 U.S.C. §§ 2, 1341).
- On appeal, Cosentino primarily challenged (1) admission of cooperating witnesses’ written cooperation agreements during direct examination and (2) alleged prosecutorial misconduct in questioning and summation.

## Issues

1. Whether the district court abused its discretion under Federal Rule of Evidence 403 by allowing the government to introduce cooperating witnesses’ agreements on direct examination, including truthfulness provisions and language that the government would assess compliance, thereby amounting to improper vouching.
2. Whether the prosecutor’s questions and summation comments, individually or cumulatively, constituted prejudicial misconduct depriving Cosentino of a fair trial.

## Decision

- The Second Circuit affirmed the convictions.
- The court held that introducing the cooperation agreements on direct examination, including truth-telling clauses, was permissible on these facts and did not constitute impermissible vouching.
- The court held the challenged prosecutorial questions and comments did not so infect the trial with unfairness as to deny due process.

## Legal Principles

- Cooperation agreements are generally admissible to help the jury evaluate credibility by revealing a cooperating witness’s incentives, bias, and motive to testify favorably for the government.
- The government may elicit the existence and basic terms of a cooperation agreement on direct examination to anticipate impeachment, including provisions requiring truthful testimony and describing potential benefits.
- Improper vouching occurs when the prosecution suggests, expressly or by implication, that it has verified the witness’s truthfulness or possesses extra-record knowledge of credibility; merely describing agreement terms is not necessarily vouching.
- Under Federal Rule of Evidence 403, the trial court has discretion to admit cooperation agreements when their probative value on bias and motive is not substantially outweighed by the danger of unfair prejudice.
- Cautionary instructions directing jurors to scrutinize accomplice/cooperator testimony may reduce any risk that cooperation agreements will be treated as an official endorsement of credibility.
- Prosecutorial misconduct warrants relief only when, in context of the entire trial, it renders the proceedings fundamentally unfair; isolated improprieties and curative instructions weigh against reversal.

## Conclusion

The Second Circuit affirmed Cosentino’s extortion and mail-related bribery convictions, concluding that admitting cooperating witnesses’ agreements on direct examination to expose bias and motive was within the district court’s discretion and did not amount to vouching, and that the prosecutor’s challenged conduct did not deny a fair trial.


United States v. Cosentino, 844 F.2d 30 (2d Cir. 1988)