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U.S. v. SANTIAGO

April 11, 2002

UNITED STATES OF AMERICA,
V.
JOSE SANTIAGO, ET AL., DEFENDANTS.



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

  ORDER

The Court held a jury trial in this matter from January 22, 2002 to March 8, 2002. During the course of the trial the Court made a number of evidentiary rulings on the record. The Court hereby directs that the orders that it issued in connection with those evidentiary rulings be amended by incorporating the Court's corresponding statements made on the record, copies of which are attached hereto.

SO ORDERED.

Statement of the Court Regarding Admissibility Cabrera's Testimony Related to Out of Court Statements by the Assesino Crime Family

Monday, January 28, 2002

Before we begin, I would like to address an issue that came up on Friday. The Government's last witness testified about the out-of court statements of others who were members of what he described as the "ACF," or the Assesino Crime Family. Defendants Williams and Agostini objected to these statements and moved to strike all parts of his testimony that contain hearsay related to the ACF, arguing that the ACF may well have been a conspiracy run by Santiago that was entirely different from the conspiracy in which they are charged to have participated in. The Government contends that the ACF was essentially a wing of younger members of Thief David's Crew who, the evidence will show, actively conspired to distribute narcotics and engage in violence with other non-ACF members of the crew. According to the Government, the evidence will show that ACF and non-ACF members of Thief David's Crew sold drugs together, protected and trusted each other, and had a common goal to maintain control and distribute drugs in and around the area of 137th Street and Brook Avenue in the Bronx.

The exception to the hearsay rule for co-conspirator statements, found in Federal Rule of Evidence 801(d)(2)(e), "requires a court to find by a preponderance of the evidence, first, that a conspiracy existed that included the defendant and the declarant; and second that the statement was made in furtherance of the conspiracy." See United States v. Padilla, 203 F.3d 156, 160 (2d Cir. 2000) (quoting United States v. Gigante, 166 F.3d 75, 82 (2d Cir. 1999)). While this court may consider a hearsay statement itself to determine the existence of a conspiracy, it is clear that there must be some independent corroborating evidence of the defendant's participation in the conspiracy.

Therefore, the initial question before the Court is whether the Government has provided independent corroborating evidence that would establish that Williams and Agostini were members of one overarching conspiracy that included ACF members. Compare with United States v. Orena, 32 F.3d 704, 713 (2d Cir. 1994) (affirming district court's determination that out of court statements relating to an overarching conspiracy between different families of the Mafia were admissible under Federal Rule of Evidence 801(d)(2)(e)). Although some form of corroboration is required, where, as here, hearsay evidence itself so convincingly implicates the defendant, a court may require less corroboration to find by a preponderance of the evidence that the defendant participated in the conspiracy for purposes of admitting co-conspirators' statements against him. See Padilla, 203 F.3d at 162.

Last Friday, citing United States v. Cote, 744 F.2d 913 (2d Cir. 1984), the Court ruled that the Government does not, at this time, have to establish that the defendants were members of Thief David's Crew to admit co-conspirator statements related to the operation of the group. As Cote indicates, this is clearly permitted under Federal Rule of Evidence 104(b) with the caveat that the statements are admitted provisionally with a view to connecting them up later. Although defendants asserted that this is impermissible under Bourjaily, footnote one of that opinion clearly stated that the majority of the Supreme Court "intimates no view on the proper standard of proof for questions falling under Federal Rule of Evidence 104(b) . . . [or] on the proper order of proof that trial courts should follow in concluding that the preponderance standard has been satisfied in an ongoing trial." Bourjaily, 483 U.S. at 176, note 1, 107 S.Ct. 2775.

On Friday, the Government provided a good faith and objectively reasonable belief that the missing links will be supplied as they present their case. The Court noted that if, at the end of the Government's case-in-chief, defendants feel that the Government has failed to connect up the evidence, they will have an opportunity to object and move to strike statements that were provisionally admitted.

The same rationale applies to the issue now before the Court. The Government presented a good faith and objectively reasonable belief that the ACF is merely a sub-group within Thief David's Crew. Furthermore, statements by ACF members relating to drug sales near 137th Street and Brook Avenue are corroborated by the testimony, last Thursday, of the two police detectives who bought crack cocaine from defendant Williams and immediately thereafter arrested him in October 1997. Unlike the conspiracy at issue in Orena, the conspiracy alleged here was limited to a small geographical area among a relatively small group of people. Reviewing the evidence received so far, the Court finds that it is highly unlikely that Santiago was running two conspiracies to sell drugs in essentially the same location. Finally, the Court notes that "the identities of both the declarant and the witness who heard the hearsay evidence are non-hearsay evidence" that the Court may consider "in assessing the reliability of the statement and finding the existence of a conspiracy." See Gigante, 166 F.3d at 82 (citing United States v. Tellier, 83 F.3d 578, 580, note 2 (2d Cir. 1996)). Here, the defendants, the ACF members in question, and witness Cabrera all lived in the same area and were allegedly all friends who trusted and protected one another. Accordingly, the Court finds that the identities of the declarant and the witness are another factor which suggests that only one conspiracy existed.

The Court concludes that witness Cabrera's testimony related to the out of court statements of ACF members is provisionally admissible under federal rules of evidence 104(b) and 801(d)(2)(e), subject to the condition that the Government later establish that the ACF was a part of Thief David's Crew and not a separate conspiracy. Defendants are free to renew their objections and motion to strike at the close of the Government's case.

Statement of the Court Regarding Admissibility of Government Exhibits 3563 G and Q and Elvis Rodriguez's Testimony Regarding His "Circle"

Monday, February 4, 2002

Before we begin, I would like to address two issues that came up last Thursday. The first issue involves the admissibility of Government exhibits 3563-G and 3563-Q. Exhibit 3563-G is a transcript of dictation by FBI agent David Burroughs related to his proffer session with Elvis Rodriguez on March 30, 2000. According to the transcript, Rodriguez had recounted that he met with defendant Agostini and others in a bar on February 19, 2000. According to Rodriguez, Agostini and others allegedly "bragged" about stabbing and slashing someone with whom they had a conflict the same night. The transcript does not reveal the name of the victim. Exhibit 3563-Q contains handwritten notes, dated May 8, 2000, which were purportedly authored by agent Burroughs in another proffer session with Rodriguez. The notes contain numerous abbreviations and are only partially legible.

Last Thursday, Mr. McIntyre attempted to use these two documents along with others to impeach the credibility of Rodriguez's testimony. For example, Mr. McIntyre asked Rodriguez if he failed to tell the Government when he met with them on March 30, 2000, the name of the victim of Agostini's alleged stabbing. When Rodriguez testified that he could not recall, Mr. McIntyre used exhibit 3563-G to refresh Mr. Rodriguez's recollection about the proffer session on March 30, 2000 and more specifically left the impression that the document somehow indicated that Rodriguez purposefully did not disclose or said he did not know the name of the victim at the first proffer session. To some extent, Mr. McIntyre's cross-examination implicitly mis-characterized the document. The document neither indicates that Rodriguez was asked about the name of the victim nor that he said he could not recall the name. In fact, ...


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