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UNITED STATES v. PAYDEN

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


December 16, 1985

UNITED STATES OF AMERICA
v.
DONALD PAYDEN, EUGENE COLEMAN and ANTHONY GRANT, Defendants

The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge :

OPINION AND ORDER

 The court granted the government's request to reconsider the decision excluding from evidence statements made by defendant Anthony Grant ("Grant") to Special Agent Marvin Siegel ("Siegel"). The court's decision is contained in an Opinion and Order dated November 26, 1985. ("Nov. 26 Opinion"). Familiarity with that opinion is assumed. For the reasons set forth in the Nov. 26 Opinion and herein, Grant's statements may not be introduced into evidence.

 DISCUSSION

 After the court granted the government's request to reconsider the Nov. 26 Opinion, it conducted a hearing outside the presence of the jury on November 29, 1985 to afford itself an opportunity to judge the demeanor of Agent Siegel and also to preserve his testimony. Siegel appeared at the hearing, placing on the record his testimony regarding the meetings with Grant on July 19, 1984 and July 25, 1984. *fn1"

 The government contends that the court should permit Grant's statements to be introduced into evidence based on three theories. First, that there is sufficient independent non-hearsay evidence linking Payden and Grant to the conspiracy charged in the indictment; second, that the statements which are admissions as to Grant are also admissible as to Payden and Coleman as declarations against interest or under the "catch-all" exception to the hearsay rule; and third, that the court may consider Grant's statements for purposes of determining whether Grant and Payden were members of the same conspiracy.

 I. USE OF GRANT'S STATEMENTS IN MAKING GEANEY DETERMINATION

 The government argues that the court can consider Grant's statements, *fn2" even if they are hearsay, in making the finding required by United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 25 L. Ed. 2d 539, 90 S. Ct. 1276 (1970). Geaney requires the court to find the "participation in the conspiracy, by the defendant against whom the hearsay is offered, by a fair preponderance of the evidence independent of the hearsay utterances" Id. at 1120. This requirement of independent non-hearsay evidence is consistent with a 1942 Supreme Court case which addressed the issue whether the hearsay that is sought to be admitted against alleged co-conspirators may be used in making the Geaney type finding. The Court, in Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942), stated that the the co-conspirator declarations "are admissible over the objection of an alleged conspirator, who was not present when they were made, only if there is proof aliunde that he is connected with the conspiracy" because otherwise "hearsay would lift itself by its own bootstraps to the level of competent evidence." Id. at 74-75. This was one basis for this court's original decision. Nov. 26 Opinion at 7 & n.4.

 The government, in essence, argues that Rule 104(a) of the Federal Rules of Evidence overruled Glasser and thus permits the court to consider the hearsay. Rule 104(a) provides that "[p]reliminary questions concerning . . . the admissibility of evidence shall be determined by the court . . .. In making its determination it is not bound by the rules of evidence except those with respect to privileges." While conceding that eight circuits reject this argument, *fn3" the government cites to one footnote in a Second Circuit opinion that merely raises the issue, United States v. Cicale, 691 F.2d 95, 103 n.3 (2d Cir. 1982), cert. denied, 460 U.S. 1082, 76 L. Ed. 2d 344, 103 S. Ct. 1771 (1983) ("[w]e need not decide whether Fed. R. Evid. 104(a) permits a Geaney finding based on hearsay which is inadmissible under the Federal Rules."), definitive support in one circuit, United States v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979), cert. denied, 444 U.S. 1074,, 62 L. Ed. 2d 756, 100 S. Ct. 1020 (1980), and cases in two circuits which have, according to the government, "indicated some amenabilty to the statement's use," United States v. Martorano, 561 F.2d 406, 408 (1st Cir. 1977), cert. denied, 435 U.S. 922, 55 L. Ed. 2d 515, 98 S. Ct. 1484 (1978); United States v. Cryan, 490 F. Supp. 1234, 1241 (D.N.J.), aff'd, 636 F.2d 1211 (3d Cir. 1980). *fn4"

 While all circuits admittedly do not agree on this issue, this court is bound by decisions of the Second Circuit. Although Cicale posed the question as to the use of Rule 104(a), cases both before and after Cicale have consistently held that the court may not consider the hearsay itself in making the Geaney finding. *fn5" This court will not deviate from this overwhelming precedent. *fn6"

 II. THE GEANEY FINDING

 The court in the November 26, 1985 opinion found that the government had not satisfied the Geaney standard as to Payden and Coleman. The government urges the court to reverse itself on this finding, asserting that there has been additional evidence presented at the hearing. *fn7"

 The government introduced evidence at the hearing that was not contained in the materials submitted for the original motion. The additional evidence is essentially that exclusivity of territory is important in street level narcotics operations (Tr. at 2873), that prior to his meeting with Grant, Siegel observed what he believed to be a narcotics transaction involving Payden, *fn8" and that Grant utilized procedures to sell heroin accepted in the Payden enterprise as evidenced by this previous narcotics transaction.

 Grant raises the issue that the government exceeded the scope of reargument by eliciting testimony beyond that ever raised in its offer of proof and its subsequent memoranda. Mr. Grant is correct in noting that additional facts were presented at the hearing. The November 29, 1985 hearing, however, was not limited by the traditional rules relating to motions to reargue *fn9" because the hearing was conducted simply to afford the court an opportunity to observe the demeanor of Siegel and to preserve his testimony. (Tr. at 2697 & 2703).

 In any event, the issue is moot because even when these additional facts are considered, the result would not be any different: the government has not satisfied its burden under Geaney. There was certainly nothing unique about Grant's procedures or his position in an enterprise that would place him in the Payden organization. Further, Siegel's testimony regarding the exclusivity of territory, when considered with the other non-hearsay evidence, Nov. 26 Opinion at 11-13, is insufficient to show a "likelihood of an illicit association" between Grant, Payden and Coleman. See cases cited in Nov. 26 Opinion at 12. *fn10" Again, the court notes that Grant was involved in a narcotics conspiracy, however, the government has not established a "likelihood" that this conspiracy is the one charged in the indictment when Grant's statements are not considered. See Nov. 26 Opinion at 9 n.6, 15 n.7.

 III. DECLARATION AGAINST INTEREST AND THE "CATCH ALL"

 The government contends that even if the court should determine that the evidence of Grant and Payden's membership in the same conspiracy is insufficient to satisfy the Geaney standard, the statements are nevertheless admissible because they were against Grant's interest when made, Fed. R. Evid. 804(b)(3), and because they have "equivalent circumstantial guarantees of trustworthiness," Fed. R. Evid. 804(b)(5). The court has already rejected most of these arguments in the Nov. 26 Opinion and therefore need not address them again here. The government did raise one case that was omitted from its first memo, United States v. Lieberman, 637 F.2d 95 (2d Cir. 1980), and claims that the case is particularly instructive as to the Rule 804(b)(3) component of Grant's statements.

 Viewed in the context of Grant's narcotics activities, the statements inculpating Payden would "tend to subject" Mr. Grant to criminal liability within the meaning of Lieberman. *fn11" The statements, however, would not be admissible because there are insufficient corroborating circumstances. Nov. 26 Opinion at 10. *fn12" The "corroborating circumstances must clearly indicate the trustworthiness of the statements" to admit statements that are against the interest of the declarant and also inculpate the defendant. United States v. Katsougrakis, 715 F.2d at 775. This requirement is mandated by the confrontation clause of the Constitution. United States v. Alvarez, 584 F.2d at 700-01; accord United States v. Riley, 657 F.2d 1377, 1382 (8th Cir. 1981); see United States v. Katsougrakis, 715 F.2d at 776. At the very least, a standard comparable to the independent evidence requirement under 801(d)(2)(E) and Geaney must be used to determine corroboration. 4 D. Louisell & C. Mueller, Federal Evidence ยง 489, at 1181 (1980); see Tague, Perils of the Rulemaking Process: The Development, Application, and Unconstitutionality of Rule 804(b)(3)'s Penal Interest Exception, 69 Geo. L.J. 851, 959 (1981); cf. United States v. Stanchich, 550 F.2d 1294, 1298 n.1 (2d Cir. 1977) (the same corroborating evidence is necessary to support admission under state of mind exception and co-conspirator exception). *fn13" The same factors are applicable to making both the Geaney finding and the corroboration finding. Compare United States v. Lieberman, 637 F.2d at 102 with id. at 104. *fn14" Thus, for the reasons stated above and in the November 26, 1985 opinion regarding the failure to satisfy the Geaney standard, the statements cannot be admitted pursuant to 804(b)(3). *fn15"

 The government also seeks to admit the statements pursuant to Rule 804(b)(5). The statement cannot be admitted under this rule for two reasons. First, Rule 804(b)(5) requires that there be "equivalent guarantees of trustworthiness." For the same reasons that the statement is not admissible under Geaney for 801(d)(2)(E) and the corroboration requirement of 804(b)(3), the statement may not be admitted pursuant to the "catch-all" exception in 804(b)(5). United States v. Rodriguez, 706 F.2d 31, 40-41 (2d Cir. 1983); United States v. Hoyos, 573 F.2d at 1116. *fn16" Second, the Rule requires the "proponent of [the statement] make[] known to the adverse party sufficiently in advance of trial . . . to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant." There is no indication that the government made their intentions known to the defense. See United States v. Rodriguez, 706 F.2d at 40-41.

 CONCLUSION

 The government's request that the court vacate the November 26, 1985 Opinion is denied.

 SO ORDERED


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