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UNITED STATES v. MUYET

January 29, 1997

UNITED STATES, against JOSE MUYET, JOHN MUYET, PEDRO NARVAEZ, FRANK SOSA and ANTONIO FELICIANO, Defendants.


The opinion of the court was delivered by: LEISURE

 LEISURE, District Judge :

 The defendants are charged in connection with an alleged narcotics trafficking organization. The Government seeks to introduce a portion of former codefendant Julio Matias's plea allocution into evidence, arguing that it is admissible as a declaration against penal interest under Rule 804(b)(3) of the Federal Rules of Evidence. The defendants argue that although courts have permitted the introduction of plea allocutions in other cases, the allocution should be excluded in this case as unfairly prejudicial because Matias and his lawyer participated in this trial, before the jury, for weeks. For the reasons stated below, the Government may introduce a redacted version of the plea allocution.

 When this trial commenced on December 3, 1996, seven defendants were on trial. Those defendants were Jose Muyet, John Muyet, Pedro Narvaez, Frank Sosa, Antonio Feliciano, William Delvalle, and Julio Matias. From that day, until December 18, 1996, Julio Matias and his lawyer, Susan Wolfe, sat in the courtroom alongside Matias's codefendants and participated in this trial. On December 18, 1996, Matias pleaded guilty to conspiring to murder Angel Luis Rivera, Nelson Pacheco and Antonio Cruz, in violation of 18 U.S.C. § 1959(a)(5), and conspiring to murder Antonio Flores, in violation of 18 U.S.C. § 1959(a)(5). Matias faces a potential sentence of 20 years' imprisonment on these counts. Following Matias's plea allocution, Susan Wolfe, in the presence of Matias, advised the Court that if he were called as a witness at trial and questioned about charges in the indictment, he would invoke his Fifth Amendment privilege against self-incrimination. William Delvalle also pleaded guilty on December 18, 1996. When the trial resumed, the Court instructed the jury not to speculate as to why Matias and Delvalle were no longer on trial.

 DISCUSSION

 I. RULE 804(b)(3)

 Under Rule 804(b)(3) of the Federal Rules of Evidence, a statement is not excluded as hearsay if (1) the declarant is unavailable; and (2) the statement "at the time of its making ... so far tended to subject the declarant to ... criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Fed. R. Evid. 804(b)(3); see United States v. Bakhtiar, 994 F.2d 970, 977 (2d Cir.), cert. denied, 510 U.S. 994 (1993). The defendants concede that the Matias is unavailable. They could not successfully argue otherwise because a declarant, whose attorney represents that the declarant will assert his privilege against self-incrimination if called to testify, is unavailable for purposes of Rule 804(b)(3). See United States v. Williams, 927 F.2d 95, 99 (2d Cir.), cert. denied, 502 U.S. 911, 116 L. Ed. 2d 250, 112 S. Ct. 307 (1991). Therefore, the only issues before the Court are whether the statements offered by the Government qualify as statements against penal interest, whether admission of the statements would violate the Confrontation Clause, and whether the probative value of the statements is substantially outweighed by the danger of unfair prejudice.

 The Court of Appeals for the Second Circuit has indicated on more than one occasion that a guilty plea qualifies as a statement against penal interest. See United States v. Scopo, 861 F.2d 339, 348 (2d Cir. 1988), cert. denied, 490 U.S. 1022 (1989); Williams, 927 F.2d at 98; United States v. Winley, 638 F.2d 560, 562 (2d Cir. 1981), cert denied, 455 U.S. 959, 71 L. Ed. 2d 678, 102 S. Ct. 1472 (1982). In Scopo, the Second Circuit explained that:

 
In general a plea of guilty is a statement against the penal interest of the pleader for the obvious reason that it exposes him to criminal liability. Likewise, so much of the allocution as states that that defendant committed or participated in the commission of a crime, thereby permitting the court to accept the plea, is normally against his interest.

 Scopo, 861 F.2d at 348 (citations omitted). The Second Circuit has also observed that:

 
It is hard to conceive of any admission more incriminating to the maker or surrounded by more safeguards of trustworthiness than a plea of guilty in a federal court, particularly when, as here, the facts elicited in the allocution are buttressed by the testimony of other witnesses.

 Williams, 927 F.2d at 98 (quoting Winley, 638 F.2d at 562). Matias's plea allocution clearly contains statements against his penal interest. He pleaded guilty to two counts of committing a violent act in aid of racketeering. The plea exposed him to a potential sentence of 20 years' imprisonment. Furthermore, as was the case in Winley, the statements contained in the allocution are corroborated by the testimony of other witnesses. Although corroboration is not required under Rule 804(b)(3) when a statement is offered to inculpate a defendant, see United States v. Bahadar, 954 F.2d 821, 828-29 (2d Cir.), cert. denied, 506 U.S. 850, 113 S. Ct. 149, 121 L. Ed. 2d 101 (1992), it serves as an additional indicium of reliability.

 Nevertheless, the mere fact that Matias's allocution contains some statements against his penal interest does not render the entire allocution admissible. See Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994). In Williamson, the Court held that Rule 804(b)(3) "does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory." Id. at , 1994 U.S. LEXIS 4832, *24, 114 S. Ct. at 2435. Rule 804(b)(3) is based on the premise that reasonable people do not tend to make statements that will expose them to criminal liability. See id. at , 1994 U.S. LEXIS 4832, *20, 114 S. Ct. at 2435. However, the "fact that a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self-inculpatory parts." Id. at , 1994 U.S. LEXIS 4832, *10, 114 S. Ct. at 2435. Therefore, portions of a plea allocution that do not tend to expose a defendant to criminal liability are not admissible as declarations against penal interest. Cf. Scopo, 861 F.2d at 348 ("If, however, a pleading defendant had an agreement with the government or with the court that he would not be punished for the crimes to which he allocuted, then that allocution would not subject him to criminal liability and would not constitute a statement against his penal interest within the meaning of Rule 804(b)(3).").

 Matias pleaded guilty to violating 18 U.S.C. § 1959(a)(5). The elements of a § 1959(a) offense are: "(1) that the Organization was a RICO enterprise, (2) that the enterprise was engaged in racketeering as defined in RICO, (3) that the defendant in question had a position in the enterprise, (4) that the defendant committed the alleged crime of violence, and (5) that his general purpose in doing so was to maintain or increase his position in the enterprise." United States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992), cert. denied, 510 U.S. 856 (1993). The statements that tend to establish the elements of this offense qualify as statements against Matias's penal interest.

 Having carefully reviewed the portion of the allocution offered by the Government, the Court concludes that the statements on page 26, lines 13 through 19, *fn1" and on page 27, lines 17 through 20, *fn2" do not qualify as statements against penal interest because ...


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