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U.S. v. CHAN

January 14, 2002

UNITED STATES OF AMERICA,
V.
ALEXANDER CHAN, DEFENDANT.



The opinion of the court was delivered by: Leisure, District Judge.

  MEMORANDUM ORDER

The government charges the defendant Alexander Chan with five counts involving narcotics related offenses, one count of which charges Chan with a conspiracy to possess and distribute heroin. The government moves, in limine, to introduce portions of the guilty plea allocutions of three of the defendant's alleged co-conspirators, Kin Man Hui, Gerry Eng, and Ting To Kaw, in order to prove the existence of a conspiracy, arguing that these redacted allocutions are statements against interest under Rule 804(b)(3) of the Federal Rules of Evidence, and thus should be admitted as exceptions to the hearsay rule. For the reasons set forth below, the government's motion is granted.

BACKGROUND

The first count of the indictment in this case charges Alexander Chan with a conspiracy to possess and distribute more than one kilogram of heroin from in or about July 1997 to in or about September 1997, in the Southern District of New York. See Indictment of Alexander Chan, September 6, 2001 at Count One. The government alleges that Chan participated in this charged conspiracy with a group of coconspirators including Kin Man Hui, Gerry Eng, and Ting To Kaw. See Government's Motion in Limine Regarding Plea Allocutions, September 6, 2001 ("Government's Motion Regarding Plea Allocutions"), at 1.

On March 6, 1998, Kin Man Hui pled guilty to conspiring with others to distribute and to possess with intent to distribute heroin, from in or about August 1996 up to and including in or about September 1997. In the portion of the plea allocution the government seeks to admit, and while under oath, Hui admits to conspiring with others to distribute heroin. See Hui Transcript, March 6, 1998 at 10-11. On June 30, 1999, Gerry Eng pled guilty to conspiring with others to distribute and to possess with intent to distribute heroin, from in or about August 1996 through September 1997. In the portion of the plea allocution the government seeks to admit, and while under oath, Eng states that, in or around August 1997, he agreed to purchase heroin from one individual, with the intent of selling it to others. See Eng Transcript, June 30, 1999 at 9-12. On July 10, 1998, while under oath, Ting To Kaw also pled guilty to conspiring with others to distribute and possess with intent to distribute heroin, from in or about August 1996 through September 1997. See Kaw Transcript, July 10, 1998 at 9-12.

None of the redacted allocutions which the government seeks to admit mention the defendant. Counsel for Hui, Eng and Kaw have notified the government that if called to testify at trial, their clients will assert their Fifth Amendment privilege against self-incrimination. See Government's Motion Regarding Plea Allocutions at 2.

DISCUSSION

I. Motions in Limine

The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) (noting that although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996); National Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F. Supp. 276, 283 (S.D.N.Y. 1996). Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. See Noble v. Sheahan, 116 F. Supp.2d 966, 969 (N.D.Ill. 2000); see also Baxter Diagnostics, Inc. v. Novatek Medical, Inc., No. 94 Civ. 5520, 1998 WL 665138, at 3 (S.D.N.Y. Sept. 25, 1998) (denying a motion in limine to preclude presentation of evidence regarding a potential punitive damages claim because the motion was too sweeping in scope to be considered prior to trial). Indeed, courts considering a motion in limine may reserve judgment until trial, so that the motion is placed in the appropriate factual context. See National Union Fire Ins. Co., 937 F. Supp. at 287 (citing Hawthorne Partners v. AT & T Technologies, Inc., 831 F. Supp. 1398, 1400 (N.D.Ill. 1993)). Further, the court's ruling regarding a motion in limine is "subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer." Luce, 469 U.S. at 41, 105 S.Ct. 460.

II. The Availability of Hui, Eng and Kaw

Rule 804(b)(3) of the Federal Rules of Evidence provides for the admission of a statement against a declarant's interest if the declarant is unavailable as a witness at trial. It is well settled that when a witness invokes their Fifth Amendment rights, the witness is "unavailable" as defined by Rule 804(a)(1). See United States v. Matthews, 20 F.3d 538, 545 (2d Cir. 1994); United States v. Bakhtiar, 994 F.2d 970, 977 (2d Cir. 1993). A witness need not be physically brought into court to assert the privilege; the government's representation that the pleading defendants' lawyers had been contacted and that each attorney stated that his client would assert the Fifth Amendment privilege is sufficient. See, e.g., United States v. Williams, 927 F.2d 95, 98-99 (2d Cir. 1991). Indeed, the Fifth Amendment privilege can survive sentencing, as the Second Circuit has held that co-conspirators who have already been sentenced are unavailable if they assert their Fifth Amendment privilege. See Williams, 927 F.2d at 98-99 (allowing the admission of the plea allocutions of four defendants who asserted their Fifth Amendment privilege and had already been sentenced at the time of the defendant's trial); United States v. Adderley, No. 99 Cr. 574, 2001 WL 766988, at *2 (S.D.N.Y. July 9, 2001) (noting that the Fifth Amendment privilege may survive sentencing). Although Hui, Eng and Kaw have been sentenced, the government believes that they may expose themselves to additional criminal liability by testifying in the instant trial. See Government's Motion Regarding Plea Allocutions at 3. In addition, Hui, Eng and Kaw have notified the government through their attorneys that they will invoke their Fifth Amendment rights if called to testify. See id. Therefore, Hui, Eng and Kaw are unavailable under Rule 804(a)(1).*fn1

III. The Admissibility of the Plea Allocutions of Hui, Eng and Kaw as Statements Against Interest

Rules 801 and 802 of the Federal Rules of Evidence bar the admission of hearsay, statements other than one made by the declarant while testifying at trial, offered to prove the truth of the matter asserted. Statements which are against the declarant's interest, however, are carved out from the general hearsay prohibition when the declarant is unavailable. See Fed.R.Evid. 804(b)(3). Rule 804(b)(3) provides in pertinent part:

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, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's ...

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