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UNITED STATES v. GALLEGO

January 16, 1996

UNITED STATES OF AMERICA, against ALFREDO GALLEGO, et al., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 This order disposes of motions in limine filed by the government and by defendant George Gallego, the latter of which has been joined in by the remaining defendants, to the extent not previously ruled upon in open court. It rules also on belated motions made on the eve of trial by new counsel for defendant Steven Martinez.

 The Government's Motion

 The George Gallego Allocution

 On January 21, 1993, the driver of a Postal Service truck was killed in connection with a robbery. Defendant Alfredo Gallego pleaded guilty to the robbery and to conspiracy to commit the robbery, among other charges, and currently is serving his sentence on those convictions. The superseding indictment in this case charges Alfredo Gallego, *fn1" Steven Martinez, and George Gallego, Alfredo's brother, with conspiracy to murder and the murder of the driver. *fn2" On December 18, 1995, George Gallego pleaded guilty before me to the conspiracy to murder charge. In relevant part, he allocuted as follows:

 
"Q Have you received a copy of the [] Indictment No. So 95 Crim. 284? A Yes, I have.
 
"Q And do you understand that you are charged in Count One with conspiracy to commit murder in violation of 18 U.S. Code, Section 1117? A Yes.
 
* * *
 
* * *
 
"A Yes.
 
"Q Mr. Gallego, did you participate in the planning of the robbery referred to in Count One of the [] indictment? A Yes, I did.
 
"Q And did you make a handgun equipped with a silencer available to the other participants? A Yes, I did.
 
"Q And did you understand, or was it implicit in your actions that, depending on what happened, the driver of the postal truck in question would be killed? A Yes.
 
"Q Was it your understanding that that individual would be killed if it was necessary to facilitate the robbery of the post office truck? A Yes.
 
* * *
 
"Q Mr. Gallego, is that correct, that the silencer was made available in order to further the scheme to rob the post office truck? A Yes."

 The government moves for an in limine determination that the quoted portion of the allocution is admissible at trial as a declaration against penal interest under FED. R. EVID. 804(b)(3) in light of the fact that George Gallego has taken the position, through counsel, that he would invoke his privilege against self-incrimination if called as a witness. It argues that the allocution is evidence of the existence of the conspiracy to commit murder and would not prejudice defendants improperly.

 The defendants acknowledge that George Gallego would invoke his privilege and appear to concede that it is unnecessary for the government to have him do so in the presence in the Court. In consequence, he is unavailable within the meaning of Rule 804(a)(1). E.g., United States v. Beltempo, 675 F.2d 472, 480 (2d Cir.), cert. denied 457 U.S. 1135, 73 L. Ed. 2d 1353, 102 S. Ct. 2963 (1982); see also United States v. Williams, 927 F.2d 95, 98-99 (2d Cir.), cert. denied 502 U.S. 911, 112 S. Ct. 307, 116 L. Ed. 2d 250 (1991). In consequence, the sole question before the Court is whether George Gallego's allocution is a statement against penal interest and otherwise admissible in light of the Confrontation Clause and FED. R. EVID. 403. The defendants' fundamental concern, putting aside the niceties, is that the admission that a conspiracy to murder existed, whatever its impact in another case, ...


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