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February 5, 2004.


The opinion of the court was delivered by: CHARLES HAIGHT, District Judge


The government moves for reconsideration of this Court's order granting defendants a new trial pursuant to Rule 33, Fed.R. Crim. P., and to reopen the evidentiary hearing which preceded that ruling.


  The Court has filed four prior opinions relevant to this aspect of the case. They are reported at 1999 WL 1084229 (S.D.N.Y. Dec. 1, 1999) ("Camacho I") (denying defendants' motion to compel the government to grant immunity to Gregory Cherry in order to obtain Cherry's testimony with respect to the declarations at issue); 163 F. Supp.2d 287 (S.D.N.Y. 2001) ("Camacho II") (setting defendants' motion for a new trial down for an evidentiary hearing); 188 F. Supp.2d 429 (S.D.N.Y. 2002) ("Camacho III") (granting defendants a new trial); and 2002 WL 31770810 (S.D.N.Y. Dec. 11, 2002) ("Camacho IV") (declining to consider evidentiary material in support of the present motion for reconsideration which the government sought to submit ex. pane and under Page 2 seal).*fn1 Familiarity with those opinions is assumed. For present purposes it is sufficient to say that at the first trial, Camacho and Rodriguez were found guilty by a jury of charges arising out of the shootings of Hector Ocasio, Gilberto Garcia, and Luis Garcia. Ocasio and Gilberto were killed. Luis Garcia was wounded, recovered, and testified as a defense witness at the first trial.*fn2

  Following this Court's granting of a new trial in Camacho III, the government filed a timely notice of appeal with the Second Circuit, which it thereafter sought leave from that Court to withdraw so that it could present the evidence to this Court upon which the government bases its motion for reconsideration and reopening of the record. The Second Circuit responded in a per curiam opinion, 302 F.3d 35 (2d Cir. 2002), which denied the government's motion for leave to withdraw its appeal "without prejudice to a renewal of the instant motion after the government files its motion for reconsideration in the district court." and "the district court either denies the motion for reconsideration or indicates to this Court its desire to reopen the Rule 33 proceedings." Id. at 37

  This Court held a hearing on May 22, 2003 to explore with counsel what procedures the Second Circuit envisioned in making the order I have just quoted. A consensus emerged which is Page 3 captured by this quotation from the transcript of the May 22, 2003 hearing (hereinafter "Tr."):
THE COURT: So I don't think the court of appeals is waiting for me to resolve the merits of the motion for reconsideration in favor of the government. What they want to know is am I just going to adhere to the prior ruling without reopening the proceedings or if I am going to reopen the proceedings. If it is the latter, then the court of appeals has the view that it would be necessary to remand the case here so that could go forward. That's what I think my responsibilities are under, what shall I say, the road map prepared by the court of appeals. Do counsel agree with that? Do you agree?
MS. McCARTHY [counsel for the government]: Yes, your Honor.
MS. LONDON [counsel for defendant Rodriguez]: Yes.
MR. DRATEL [counsel for defendant Camacho]: I do.
Tr. 5.

  That consensus having emerged, I then said that "now 1 want to take up with you exactly what it is that the government envisions at a reopened evidentiary hearing," Tr. 5, which set the stage for the extended colloquies described in Part II of this Opinion


  The government was ably represented at the March 22, 2003 hearing by AUSA McCarthy and AUSA Chung. AUSA McCarthy led off She focused almost exclusively upon what the government characterized as "newly discovered evidence"*fn3 which it wished to introduce at a reopened hearing in opposition to defendants' new trial motion. That evidence consisted of oral statements and handwritten notes made by an Informant*fn4 who in May 2002 was incarcerated at the Page 4 MCC, Manhattan, with Gregory Cherry, the out-of-court declarant whose declarations lay at the heart of this Court's decision to grant defendants a new trial.*fn5 In order to demonstrate the centrality of Cherry's declarations, it is necessary to revisit briefly the Court's prior opinions in the case.

  According first to the affidavit and subsequently to the testimony of another inmate, Christopher Thomas, in June 1998 Cherry and Thomas were incarcerated on the same federal facility. At that time Cherry made declarations to Thomas which exonerated Camacho and Rodriguez of the shootings for which they were convicted, and inculpated Cherry himself as the shooter.*fn6 In Camacho III, I said that before determining that a new trial was warranted, "I must first consider whether Cherry's hearsay declarations (as testified to by Thomas) would be admissible at a trial." 188 F. Supp.2d at 439. For the reasons stated in Camacho III, id. at 439-444. I held that Cherry's declarations to Thomas would be admissible under Rule 804(b)(3), Fed.R. Evid., because Cherry was unavailable as a witness, Cherry's declarations to Thomas were against Cherry's penal interest, and "corroborating circumstances clearly indicate the trustworthiness of the statement."*fn7 Page 5 I then concluded that Cherry's declarations, if believed by a jury at a new trial, would probably create a reasonable doubt in the jury's mind "with respect to the government's theory of the case against Camacho and Rodriguez," and ordered a new trial. Id. at 454.

  In her submission at the hearing, AUSA McCarthy made plain the government's view that the Informant's information eviscerated the Court's conclusion in Camacho III that Cherry's declarations to Thomas were admissible under Rule 804(b)(3). She argued:
But the government submits that once the court hears from the informant, even just based on what the informant would say, what we advise the informant would say, that this was all a ruse, this was all an attempt to get information before the court in a roundabout way so that Cherry would not have to testify, so that's how an out-of-court declarant statement can get into court before a jury. We are saying our position is that that underpinning of the finding of the admission of the Cherry statement, the out-of-court declarant, through Thomas, must fail based upon the new evidence
Tr. 10 (emphasis added). According to AUSA McCarthy, it is the government's theory
under the new evidence, under the informant's testimony, that Cherry did in fact believe that this information would be before a court. It was not made in the way that a statement against interest is generally made to a confederate in secrecy, and all of those. So, all the foundation for the admission of Thomas' testimony would collapse if the court were to credit the informant's information.
Tr. 9.
  In the remarks 1 have just quoted, counsel used the phrase "admission of Thomas testimony," but it is clear that the government is challenging the admissibility of Cherry's declarations to Thomas, on the ground that those declarations do not come within the exception to the hearsay rule found in Rule 804(b)(3). This was made clear in an ensuing colloquy between the Court and AUSA McCarthy I had observed that there is a distinction between "admissibility on the Page 6 one hand and credibility on the other, they are really quite different things." Tr. 11. This exchange then took place:
MS. McCARTHY: But you don't need to get to the second if you have not found the first. THE COURT: That's true. So, is it fair to say that the main thrust of the reconsideration motion is to attack the threshold conclusion of this court that Cherry's declaration would be admissible? MS. MCCARTHY: Yes, your Honor. THE COURT: Is that the whole point of the reconsideration motion? MS. McCARTHY: Yes, your Honor.
Tr. 11-12. While AUSA McCarthy then suggested that the government might ask to call Trumont Williams and Cherry himself at a reopened hearing, the next colloquy made it clear that their testimony would relate to the credibility of Cherry's declarations to Thomas, and not their admissibility. This exchange thereupon occurred:

  MS. McCARTHY: . . . I believe that properly focused on the argument we are making as your Honor has cast it, that we are attacking the admissibility of Cherry's statement to Thomas THE COURT: That attack then, really, your weapon that conies to hand is the informant — MS McCARTHY: Correct. THE COURT: — at a reopened hearing. You are still asking me to reopen the hearing. MS McCARTHY: Yes, your Honor. THE ...

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