The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.
I. Admission of Hearsay as Statements of Co-Conspirators
The Government seeks to introduce the testimony of Jesse Hyman, William Murtha and Salvatore Gravano. These witnesses will apparently testify about statements made to them regarding defendant Devine's participation in illegal activities. The District Council objects to this testimony on the ground it constitutes inadmissible hearsay.
The Government offers two bases for allowing the proffered testimony: that it is admissible as the statements of co-conspirators, see Fed. R. Evid. 801(d)(2)(E), and it is admissible as statements against interest, see Fed. R. Evid. 804(b)(3).
A. Statements of Co-conspirators
The co-conspirator statement rule provides:
(d) Statements which are not hearsay. The statement is not hearsay if . . .
(2) Admission by party-opponent. A statement is offered against a party and is . . .
(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
The District Council challenges the admission of the testimony under this rule, arguing (1) there is insufficient evidence of a conspiracy; (2) there is insufficient evidence that the conspiracy alleged includes Devine; (3) the conspiracy described by the Government to support this proof is dramatically different from that alleged in the complaint; and (4) the statements offered were not made in furtherance of the alleged conspiracy. See United States v. Bourjaily, 483 U.S. 171, 175, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987).
As a threshold matter, the Court must determine that a conspiracy existed, and that it involved the declarant and the party against whom the statement is offered.
See Fed. R. Evid. 104. Defendants claim that neither of these conditions is satisfied.
Defendants' objections are better addressed on a full evidentiary record. Accordingly, I will admit the contested statements subject to the receipt of other evidence of the conspiracy alleged. This practice was approved by the Second Circuit in United States v. Cota, 953 F.2d at 758. At the close of the Government's case, the defendants may renew their arguments that the testimony should be stricken on the ground that the Government failed make the necessary threshold showings.
Additionally, the court will reserve judgment on defendants' objections that the proffered statements were not made in furtherance of the conspiracy. When the details of the conspiracy are fleshed out, the Court can make a more competent judgment as to whether the statements offered are in furtherance of the conspiracy, or mere "idle chatter". See United States v. Paone, 782 F.2d 386, 390 (2d Cir. 1986).
Judge Weinstein summarizes the manner in which such declarations may be proved at trial: "So long as the declarant and the party against whom the statement is offered in court were members of a conspiracy at the time the statement was made, any witness who heard the statement may recount it at trial, whether the statement was made to a conspiracy member or not, and regardless of whether the witness was a member of a conspiracy." Id., at 801-305.
B. Statements Against Interest
The Government argues that even if the hearsay testimony of Hyman, Murtha and Gravano is not admissible as co-conspirator statements, it may be admitted as statements against interest. See Fed. R. Evid. 804(b)(3). Since the Court has agreed to hear the testimony subject to further proof on the existence of a conspiracy, the Court need not decide whether the statements would be admissible as statements against interest. If, at the close of the Government's case, District Council successfully moves to strike the testimony on the ground that the Government failed to show that the statements were admissible pursuant to Rule 801(d)(2)(E), the Government may renew its application to admit the testimony pursuant to the statement against interest rule.
II. Statements Against Interest Under Rule 804(b)(3)
The Government has indicated that it intends to offer into evidence the out-of-court statements of several contractors who have admitted paying off union officers. According to the Government, the statements consist of either sworn testimony before a state grand jury made under a grant of immunity, or memoranda of interviews with the contractors prepared by law enforcement officers. The District Council objects on the ground that this testimony constitutes hearsay. The Government argues that the testimony is admissible under Fed. R. Evid 804(b)(3).
Rule 804(b) of the Federal Rules of Evidence provides in pertinent part:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.
The District Council contends that the testimony offered by the Government does not qualify under this rule, challenging both the witnesses' "unavailability", and whether the statements made ...