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U.S. v. CAMACHO

October 1, 2001

UNITED STATES OF AMERICA
v.
STEVEN CAMACHO AND JAIME RODRIGUEZ, DEFENDANTS.



The opinion of the court was delivered by: Charles S. Haight Jr., United States District Senior Judge.

MEMORANDUM OPINION AND ORDER

On July 10, 2001, the Court ordered the defendants and the government to submit supplemental briefs addressing the question of whether the Court has jurisdiction pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Having received the parties' supplemental briefs, I now consider defendants' motion. For the reasons that follow, I determine as a threshold matter that this Court does have jurisdiction. On the merits, I deny defendants' request for a grant of judicial immunity, and I direct a hearing for the purposes of assessing whether testimony by Thomas regarding Cherry's statements would be admissible and, if so, whether a new trial is required.

BACKGROUND

Camacho and Rodriguez were indicted on racketeering charges on May 25, 1994, along with multiple other defendants as part of the federal prosecution of members of the C & C gang, which operated in the Bronx. Early in the case, the government agreed to try Camacho and Rodriguez separately from the others, and accordingly they were severed from the primary case. After securing guilty pleas from numerous defendants and agreeing to additional severances, the government initially proceeded to trial against Angel Padilla, one of the founders of the C & C gang, and Ivan Rodriguez, the man accused of killing the other founder, Juan Calderon. Both Padilla and Ivan Rodriguez were convicted in May of 1995.

Camacho and Jaime Rodriguez were later tried pursuant to a superseding indictment dated February 12, 1996. They were charged at trial with conspiracy to murder Hector Ocasio, the murders of Hector Ocasio and Gilberto Garcia, and the attempted murder of Luis Garcia, all in aid of the C & C racketeering enterprise, in violation of 18 U.S.C. § 1959; they were also charged with a related firearms offense in violation of 18 U.S.C. § 924. A jury trial commenced on June 3, 1996. The government advanced the following theory of how the murders and attempted murder took place: After Calderon was killed, Padilla told the members of his security force to keep a low profile and brought in a new head of security, Hector Ocasio, who hired new security members. Soon, Padilla and several longtime members of his security force, including James Albizu, Joey Pillot, Trumont Williams, and Gregory Cherry,*fn1 began to distrust Ocasio. Ocasio had reduced weekly salaries and then cut several security members from the payroll. He also had given local drug dealers permission to shoot Williams and Cherry. Albizu conceived of a plan to murder Ocasio, and he discussed his plan with Pillot, Williams, and Cherry. He also discussed his plan with Camacho and Rodriguez, who together used to pay C & C "rent" to sell drugs in the gang's neighborhood and were friendly with Albizu. In late December of 1992, Albizu, Williams, Cherry, Camacho, Rodriguez, and a cousin of Rodriguez's agreed to meet to kill Ocasio, but the plan fell through when Cherry failed to appear.

According to the government's theory, the plan to kill Ocasio was brought to fruition on January 2, 1993. On that day, Albizu, Camacho, and Rodriguez met Williams at his apartment. Williams called his regular car service driver, Douglas Welch, and for several hours, Welch drove the group around as they prepared to murder Ocasio. During that time, they collected weapons and obtained ammunition. They then located Ocasio, who was standing in front of a liquor store with Gilberto Garcia and Luis Garcia. Albizu went to collect his weekly salary from Ocasio and returned to the car. The group then met up with Cherry, who helped Albizu and Williams hijack an additional car. Albizu parked the hijacked car a few blocks from the liquor store, and Cherry left. Welch drove Albizu, Williams, Camacho, and Rodriguez around the neighborhood and then dropped off Albizu a few blocks from the liquor store. Welch then drove around for a few more minutes and parked half a block from the liquor store. Williams and Camacho exited the car while Rodriguez waited with Welch. Williams and Camacho then shot Ocasio, Gilberto Garcia, and Luis Garcia. Ocasio and Gilberto Garcia were killed. Luis Garcia was wounded. Camacho returned to the car, and Williams left in a different direction. Welch drove Camacho and Rodriguez away, and they regrouped with Williams and Cherry, who had the hijacked car. The next day, Camacho and Rodriguez met with Albizu and talked about the murders.

The principal witnesses for the government on the issue of defendants' participation in the shootings were Albizu and Welch, who testified to the sequence of events described above.*fn2 The defense attacked these witnesses' credibility by calling attention to the ruthless, self-serving acts committed by Albizu in connection with prior crimes and by arguing that Albizu and Welch were providing testimony to please the prosecutors in order to obtain leniency. Albizu had originally been indicted along with the defendants and had accepted a plea bargain pursuant to which he was sentenced to time served plus 60 days. In exchange for his cooperation, Welch was never prosecuted. The government also called defendants' former partner in their drug sales business, Jose Crespo, to testify as a background witness. Finally, the government called several police officers as witnesses.

To rebut Camacho's alibi defense that he was in Florida during the first weeks of January 1993, the government called as a rebuttal witness a parole officer who testified that Camacho met with her in the Bronx on January 6, 1993. The government also introduced a court transcript showing that Camacho appeared in court in the Bronx on January 7, 1993. Finally, the government called two New York City police detectives who testified that they had interviewed Garcia after the shootings and that Garcia told them at that time that he did not know who shot hi in.

On June 26. 1996, the jury returned a verdict of guilty on all counts against both Camacho and Rodriguez. Defendants immediately submitted a motion for a judgment of acquittal and, alternatively, for a new trial on the basis of insufficient evidence and various other grounds. The Court denied their motion. United States v. Carmacho, No. S12 94 Cr. 313, 1998 WL 472844 (S.D.N.Y. Aug. 10, 1998). In April of 1999, defendants filed a second motion for a new trial based on newly discovered evidence (the "second motion"). Defendants requested a grant ofjudicial immunity so that a proposed witness, Gregory Cherry, could testify that he committed the crimes for which defendants were convicted. Counsel for Rodriguez had met with Cherry in the fall of 1997 and the fall of 1998 and stated in an affidavit that Cherry told her that he knew who was responsible for the murders and that Camacho and Rodriguez were not involved. Cherry told her that he would testify only if he was granted immunity. Defendants also argued in their second motion that a new trial was warranted because of prosecutorial misconduct. The Court declined to grant judicial immunity and found that there was no newly discovered evidence of prosecutorial misconduct that would warrant a new trial. United States v. Carnacho, No. S12 94 Cr. 313, 1999 WL 1084229 (S.D.N.Y. Dec. 1, 1999). Judgment was entered against Rodriguez on April 11, 2000, and he filed a notice of appeal on April 20, 2000. Judgment was entered against Camacho on June 19, 2000, and he filed a notice of appeal on June 21, 2000.

During the late summer or fall of 2000, counsel for defendants received an affidavit by a federal inmate named Christopher E. Thomas (also known as Christopher E. Reese). Thomas's affidavit is dated July 14, 2000, and attests to the following events: Around June of 1998, Thomas was incarcerated at the federal prison in Otisville and frequently visited the prison law library. He became acquainted with Gregory Cherry, who was working in the law library, and began helping him with papers related to his sentencing proceedings.*fn3 One day, Thomas was sitting with Cherry when Steven Camacho walked into the library. Thomas commented to Cherry that he remembered Camacho but thought that Camacho did not remember him, since Camacho did not greet him. Cherry then stated that Camacho was his codefendant and was in prison for something that Cherry did. When Thomas asked Cherry what he meant, Cherry responded "bodies." Cherry also mentioned that he had told an attorney that Camacho and another person were innocent of the charges against them. Thomas did not tell anyone about the conversation until July 13, 2000, when he told Camacho. In Thomas's affidavit, dated July 14, 2000, he states that he is willing to testify in connection with Camacho's criminal case.

The Second Circuit Court of Appeals permitted defendants to withdraw their appeals without prejudice so that defendants could make a third motion before this Court for a new trial. That motion was filed on March 30, 2001.*fn4

DISCUSSION

1. Jurisdiction

At the Court's direction, the defendants and the government have submitted supplemental memoranda of law addressing the issue of the Court's jurisdiction as governed by Rule 33 of the Federal Rules of Criminal Procedure. That direction was explained in the Court's opinion dated July 10, 2001, which laid out the jurisdictional issue raised by defendants' motion, United States v. Carnacho, S12 94 v. Camacho, S12 94 Cr. 313, 2001 WL 789301 (S.D.N.Y. July 11, 2001); I restate the circumstances in full for the sake of clarity.

Rule 33 limits the time within which a defendant in a criminal case may move for a new trial. A district court has jurisdiction to consider a motion for a new trial only if the motion is submitted within the time limits established by Rule 33. United States v. Lussier, 219 F.3d 217, 220 (2d Cir. 2000). When the trial in this case took place in 1996, Rule 33 required that a motion for a new trial based on newly discovered evidence be filed within two years of "final judgment." If a defendant appeals unsuccessfully from a conviction, "final judgment" occurs when the Court of Appeals issues its mandate. Lussier, 219 F.3d at 218-19, reaffirming United States v. Reyes, 49 F.3d 63 (2d Cir. 1995). On December 1, 1998, an amendment to Rule 33 went into effect and changed the time limits applicable to motions for a new trial in criminal cases. The rule now provides that a motion for a new trial based on newly discovered evidence must be filed within three years of the verdict.*fn5

Defendants' motion for a new trial based on newly discovered evidence would be timely under the version of Rule 33 in effect prior to December 1, 1998, but it would be late under the current version of the rule. The jury announced its verdicts on June 26, 1996. [D]efendants filed this motion on March 30, 2001 *fn6 Since defendants have not yet completed their appeal, there has been no "final judgment" in this case, and therefore the time for making a motion for a new trial under the prior version of Rule 33 has not yet expired. Under the current version of Rule 33, however, the time for filing a motion for a new trial would have expired on June 26, 1999, three years after the verdict.

The question whether the amended version of Rule 33 should apply in circumstances such as are present in this case is a matter of first impression. See Lussier, 219 F.3d at 218-19 (not deciding whether amended Rule 33 applies to motion for new trial filed before effective date of amendment); see also United States v. Bowler, No. 99-31370, 2001 WL 568714, at *2-5 (5th Cir. May 25, 2001) (dealing with case in which verdict was reached more than three years before effective date of amendment to Rule 33); United States v. Soler, No. 94 Cr. 533, 2000 WL 385514, at *1 (S.D.N.Y. Apr. 17, 2000) (same); United States v. Jasin, No. Crim. 91-602-08, 2000 WL 1793397, at *2 (E.D.Pa. Nov. 22, 2000) (same).

Amendments to a rule of procedure generally apply to cases commenced after the effective date of amendment and also may apply to some pending cases "insofar as just and practicable." Bowler, 2001 WL 568714, at *3-5 interpreting Order of April 24, 1998 of the Supreme Court of the United States Adopting and Amending the Federal Rules of Criminal Procedure, 523 U.S. 1229. The trial of the case at bar ended with the jury's guilty verdicts on June 26, 1996, nearly a year and a half before the amendments to Rule 33 came into effect on December 1, 1998. Therefore, the amendment to Rule 33 should be applied in this case only if it is just and practicable to do so.

Defendants and the government offer several reasons why it would or would not be just and practicable to apply the new version of Rule 33 in this case. For the most part, their arguments miss the mark. Defendants contend that they have no control over the emergence of new facts and that their motion is meritorious; they also assert that resolution of their motion by the trial court would avoid piecemeal litigation through appeals and habeas petitions. These arguments do not in the slightest distinguish defendants' motion from other motions based on newly discovered evidence under Rule 33. In essence, defendants are arguing that it is unjust and impracticable to impose any time limit on a motion for a new trial based on newly discovered exculpatory evidence and, therefore, that the least restrictive time limit should apply. I must perforce accept the contrary proposition implicit in the drafters' revision of Rule 33 — that it is just and practicable to impose definite time limits, running from the date of the verdict, on motions for a new trial based on newly discovered exculpatory evidence. I am not persuaded that the former version of Rule 33 should apply merely because it is more permissive than the current version of Rule 33.

Defendants make the further argument that their motion relates back to their second motion for a new trial and that therefore the time limit of Rule 33 only applies to the filing of their second motion, Defendants' second motion for a new trial was timely filed under either version of the rule. Rule 33 does not provide an exception to its time limit for motions that relate to earlier motions, nor does it give courts discretion to grant additional time for defendants to file motions for a new trial based on newly discovered evidence, although the rule does give courts such discretion with regard to motions for a new trial made on other grounds. See Fed. R. Crim. P. 33 ("A motion for a new trial based on any other grounds may be made only within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7 day period."); Fed. R. Crim. P. 45(b) ("[T]he court may not extend the time for taking any action under Rules 29, 33, 34 and 35, except to the extent and under the conditions stated in them."). The time limits imposed by Rule 33 must be "strictly construed." Herrera v. Collins, 506 U.S. 390, 409 (1993). Defendants' motion cannot be treated as a timely amendment or supplement to their second motion, since the Court has already ruled on that motion.*fn7 Nor can defendants' motion be treated as a timely request for reconsideration of the Court's decision on the second motion, since defendants made this motion nearly sixteen months after the Court's decision on the second motion and nearly nine months after the Court entered judgment and the defendants filed their notices of appeal. See United States v. Clark, 984 F.2d 31, 33-34 (2d Cir. 1993) ("[T]he filing of a request for reconsideration [is] timely, in the absence of any specified time limit, if filed within the time for appeal. . . ."); Fed. R. App. P. 4 (providing ten days for defendant in criminal case to file notice of appeal of order or judgment); cf Canale v. United States, 969 F.2d 13, 14-15 (2d Cir. 1992) (addressing timeliness of motion for reconsideration filed by government). Therefore, defendants' present motion must be treated as their third motion for a new trial.

On the issue of whether it is just and practicable to apply the new version of Rule 33 in this case, the determinative question is not whether the new version of Rule 33 is itself just and practicable; rather it is whether that version can be applied in cases presenting comparable chronologies in a manner that is predictable, uniform, and consistent with the purposes of the rule. See Fed. R. Crim. P. 2 ("These rules . . ., shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay."). I find that it would not be just or practicable to apply the new version of Rule 33 in this case, where the verdict was reached before the amendments to Rule 33 came into effect, because the time period prescribed by the new version of the rule runs from the date of the verdict.

Defendants were convicted by the jury on June 26, 1996. If they had consulted Rule 33 on that date to determine how much time they had to file a motion for a new trial, they would have learned that they could file a motion for a new trial based on newly discovered evidence at any time before final judgment or for two years thereafter. Defendants filed this motion on March 30, 2001,*fn8 before the Second Circuit heard their appeal and thus before "final judgment." The amendments to Rule 33, imposing a new time limit based on the date of the verdict, became effective on December 1, 1998. Under the new rule, defendants would have been barred from submitting a motion for a new trial after June 26, 1999, that is three years after the verdict. It would be unfair to apply the new rule to defendants, because it would interject an unexpected deadline into the post-trial process. Defendants should be able to rely on the rule governing motions for a new trial that was in effect on the date they were convicted. Furthermore, application of the new rule in cases such as this one, where the verdict was reached before December 1, 1998, would have inconsistent effects. As of the effective date of amendment, some defendants would suddenly have only a few days or weeks to file their motions, while other defendants would have up to three years. Rule 33 should be applied in a manner to provide defendants in criminal trials with clear advance notice of their deadlines for filing post-trial motions. For this reason, I conclude that it makes sense and would be most just to apply the version of Rule 33 in effect on the date of the verdict, in this case the former version of Rule 33 providing a deadline of two years after final judgment.

Other courts have applied the version of Rule 33 in effect on the date of the verdict in circumstances where the defendants were convicted more than three years prior to the effective date of amendment of Rule 33. A district court in this circuit, in so holding, explained:

[A]t the time of the verdict [Rule 33] provided that such a motion could be made within two years following final judgment. The amendment of the rule did not become effective until December 1, 1998, more than three years after the verdict.
It would be entirely anomalous to apply the current time limit to defendant's motion. Doing so would mean that Soler's motion was barred before the revision of Rule 33 even came into effect. Soler surely had a right to rely on the old version of Rule 33 as long as it was effective. There is no sensible and fair way to apply the new rule to him. The old rule must govern, and under that rule the motion is timely.

United States v. Soler, No. 94 Cr. 533, 2000 WL 385514, at *1 (S.D.N.Y. Apr. 17, 2000) (Griesa, J.); accord Bowler, 2001 WL 568714, at *2-5 ("It would not be just and practicable to apply the new rule to [this] Rule 33 motion because that would have required Bowler to file the motion five months before the effective date of the new rule."); Jasin, 2000 WL 1793397, at *2 ("[T]he Court will apply to this case the rule relating to new trials based on newly discovered evidence as it existed when defendant was convicted, not as amended while his conviction was on appeal."). While application of the new version of Rule 33 would have been more harsh for the defendants in Soler, Bowler, and Jasin than it would be for Camacho and Rodriguez, since the defendants in those cases would have had no notice that their time for filing motions would be curtailed, I am convinced that the principle articulated in those cases has force in this case as well; defendants should be entitled to rely on the version of the rule governing motions for a new trial that was in effect at the close of their trial. This result is just and practicable because it ensures the predictable and uniform application of Rule 33, that the rule may function to provide criminal defendants with clear notice of the time period for filing motions for a new trial. Therefore, I find that this court has jurisdiction to consider defendants' motion.

II. Judicial Immunity

In an opinion dated December 1, 1999, the Court denied defendants' request for a grant of judicial immunity for Gregory Cherry. United States v. Camnacho, No. S 12 94 Cr. 313, 1999 WL 1084229, at *3-7 (S.D.N.Y. Dec. 1, 1999). A court may order the government to grant a defense witness immunity or risk dismissal of the charges against the defendant only if three requirements are met:

First, the district court must find that the government has engaged in discriminatory use of immunity to gain a tactical advantage or, through its own overreaching, has forced the witness to invoke the fifth amendment. Second, the witness's testimony must be material, exculpatory, and not cumulative. Third, the testimony must be unobtainable from any other source.

Id. at 3-4 (quotations omitted), citing and quoting United States v. Bahadar, 954 F.2d 821, 826 (2d Cir. 1992). The Court found that while Cherry's proposed testimony would be exculpatory and was not obtainable from any other source, defendants had not shown that the government's denial of immunity constituted overreaching or improper discrimination. Id. at *5-7; see also United States v. Bahadar, 954 F.2d 821, 826 (2d Cir. 1992) ("[Ali's] invocation of the fifth amendment was not the result of a discriminatory use of immunity by the government, nor of any other prosecutorial overreaching. In fact, it seemed to be solely the result of Ali's own willingness to change his story.").

Defendants now ask the Court to reconsider its refusal to grant judicial immunity to Cherry, but defendants fail to provide any evidence of prosecutorial misconduct that they did not provide, or could not have provided, in connection with their prior motion. Rodriguez argues that Thomas's affidavit shows that the government abused its prosecutorial discretion, and Camacho argues that Thomas's affidavit demonstrates a "compelling need" for immunity. These arguments are without merit. The affidavit by Thomas confirms the exculpatory nature of Cherry's proposed testimony, which the Court has already recognized. Camacho, 1999 WL 1084229, at *5, Thomas's affidavit does not, however, contain any information about government misconduct. Although defendants offer only Thomas's affidavit as new evidence justifying reconsideration of the Court's prior decision, Rodriguez recites numerous other allegations of misconduct. Camacho Mem. of Law at 3; Rodriguez Mem. of Law at 18-22; Rodriguez Reply Mem. of Law at 5-8. Some of these allegations are not based on new evidence, and the rest are not based on any evidence at all.*fn9

Counsel for Rodriguez suggests that the Court in its opinion of December 1, 1999, mistakenly applied the newly discovered evidence requirement to defendants' request for judicial immunity. Reply Mem. of Law. at 6. Counsel confuses the two grounds of decision in the Court's opinion. Defendants had requested a new trial based on proposed testimony by Cherry, which they hoped to obtain through a grant of judicial immunity, and, in the alternative, based on a pattern of prosecutorial misconduct. Camacho, 1999 WL 1084229, at *2. In considering defendants' request for a grant of judicial immunity, the Court did not require that evidence of prosecutorial misconduct be newly discovered. Id. at 2-7. The Court did apply such a requirement, however, in considering defendant's argument that a pattern of prosecutorial misconduct warranted a new trial. Id. at 8.

While defendants do not argue that the legal standards governing judicial grants of immunity have changed, Rodriguez does rely on United States v. Dolah, 245 F.3d 98 (2d Cir. 2001), an opinion issued by the Second Circuit subsequent to this Court's opinion of December 1, 1999. Counsel misrepresents that case as holding that "`discriminatory use of grants of immunity' means only that the government has conferred immunity on some witnesses and not on others." Reply Mem. of Law at 6. In fact, the Court in Dolah stated:

"The "discriminatory use" component of the test is not entirely clear. It is arguable that this component . . . means simply a decision by the Government to confer immunity on some witnesses and not on others. . . . On the other hand, . . . `tactical advantage' might mean something more than merely selecting from among potential witnesses those who will receive immunity."

Id. at 105-06. The court did not set any new standard for reviewing denials of immunity by prosecutors but rather summarized and affirmed existing precedent, in particular noting that interference with the power of prosecutors to grant or deny immunity was permissible only in "limited circumstances." Id. at 106. The court then held that it was fundamentally unfair for the government in that case to immunize select witnesses while introducing the plea allocations of similarly situated witnesses whose testimony would have been less favorable to the ...


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