Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

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 COURT: Who is going to appear at the reopened hearing if 1 reopen it ? MS. McCARTHY: The informant. Page 7

 Tr. 13. That colloquy continued:

THE COURT: The issue the government perceives is whether Cherry's declaration is admissible or would be admissible through the mouth of Thomas at a second trial. The government says no, it's not admissible because when viewed in the entirety of the circumstances, it's not reliable. That's really it, isn't it? MS. MCCARTHY: Yes.
Tr. 21.

  AUSA Chung picked up the thread of the government's argument, stating that "there is a threshold determination of admissibility that needs to be made by the Court." Tr. 27. Rule 804(b)(3), she continued, creates an exception to the hearsay for a "statement against interest," and requires a showing that "the circumstances are such [that] we believe the person wouldn't say it unless it was true." Id. But if the Court finds that "those circumstances don't exist, the Court could well find that not reliable, it might not ever come before the jury." Id.

  Focusing on the scope of a reopened hearing, 1 asked how many witnesses would have to he called. AUSA Chung responded. "You go to the point until you have heard what you need to hear to make a reliability determination," Tr. 29, and added that at a hearing the government "witness list" would be "the three people we have been talking about," that is, the Informant, Williams, and Cherry. Tr. 30.

  Thus the government's present motion for reconsideration, as the colloquies between the Court and government counsel quoted in this Part clearly demonstrate, turns upon whether the Informant's proffered information and other recent developments require the Court to reverse its holding in Camacho III that Cherry's declarations to Thomas would be admissible into evidence at a second trial of Camacho and Rodriguez Resolution of that question necessitates consideration Page 8 of Cherry's several declarations, at different times and in different places, as revealed by the record.*fn8


  According to the present record and prior opinions in the case, Gregory Cherry made a number of statements to a number of different people in a number of different places. I will describe them and certain pertinent events in chronological order.

  The fact that, for purposes of narrative clarity, I recite these declarations and their surrounding circumstances in the present tense should not be construed as a finding on my part that Cherry's declarations are true or even credible. As the March 22, 2003 colloquies quoted in Part II demonstrate, the government's present motion is concerned with the admissibility of those declarations. My purpose in this Part is to set forth the nature and development of Gregory Cherry's tale.*fn9

  On October 21, 1997, Joyce London, Esq., counsel for Camacho, has a conversation with Cherry in the Metropolitan Correctional Center ("MCC"). Cherry informs London that he has personal knowledge of the two people who had shot and killed Hector Ocasio and Gilberto Garcia and who had shot at Luis Garcia and that neither Jaime Rodriguez nor Steven Camacho had participated in the shootings Although Cherry implies to London that he himself was one of the Page 9 shooters, he stops short of actually admitting it, stating that he does not wish to reveal to London who performed those acts, until after Cherry has been sentenced in the case (Cherry having pleaded guilty to other charges in the same indictment). Cherry states to London that he would be willing to testify for Camacho and Rodriguez and exonerate them, but only if given immunity for his testimony.*fn10

  In the fall of 1997, Cherry makes comparable statements to Rodriguez while both are incarcerated at the MCC.*fn11

  Around June 1998, Christopher Thomas is incarcerated at the FCI, Otisville. He becomes acquainted with Cherry, who is also incarcerated there, awaiting sentence on his guilty plea in the C & C case. See fn. 2, supra. One day Thomas is sitting with Cherry in the prison library when Camacho walks in. Thomas comments to Cherry that he remembers Camacho but thinks that Camacho does not remember him, since Camacho did not greet him. Cherry tells Thomas that Camacho was his co-defendant and is in prison for something that Cherry did. Thomas asks Cherry what he means. Cherry responds with the word "bodies." Cherry also tells Thomas that he had previously told an attorney that Camacho and another person were innocent of the charges against them.*fn12

  In September 1998, London speaks for a second time with Cherry at the MCC. Cherry Page 10 repeats the same facts with respect to the of involvement of both Rodriguez and Camacho in the murders for which they were convicted, and again implies that he was one of the shooters.*fn13

  On December 1, 1999, this Court files its opinion in Camacho I, denying the motion on behalf of Camacho and Rodriguez to compel the government to grant immunity to Cherry in order to obtain Cherry's testimony with respect to the declarations described in the preceding paragraphs.

  On July 13, 2000, Thomas tells Camacho about his conversation with Cherry in June 1998. Thomas recounts that conversation in an affidavit dated July 14, 2000 and sends it to counsel for Camacho and Rodriguez during the late summer or fall of 2000.*fn14 Counsel for Camacho and Rodriguez submit Thomas's affidavit in support of their motion for a new trial.

  On March 13, 2002, this Court, having conducted an evidentiary hearing at which Camacho and Rodriguez called Thomas as a witness and the government called no witnesses, files its opinion in Camacho III, granting Camacho and Rodriguez a new trial, having concluded that Cherry's declarations were admissible and, if believed by a jury, could exonerate Camacho and Rodriguez

  On May 9, 2002, Maurice Sercarz., Esq., Cherry's court-appointed attorney at the time, proffers to the United States Attorney's office that Cherry "continues to maintain that Camacho and Rodriguez committed the Ocasio/Garcia murders."*fn15 In addition, according to attorney Sercarz's proffer, Cherry disputes London's statements that Cherry had implied, in conversations with her, that Page 11 he was responsible for those murders. This Court's decision granting a new trial had "caused the Government to meet with Cherry's attorney in order to ascertain Cherry's version of the facts."*fn16 While the record is unclear on the point, presumably that meeting between the government and Mr. Sercarz preceded Sercarz's May 9, 2002 proffer on Cherry's behalf.

  On June 20, 2002, Cherry, incarcerated at the MCC, signs an affidavit bearing the caption of the government's case against Camacho and Rodriguez. That affidavit reads as follows:

1. On or about May 9, 2002 my attorney, Maurice Sercarz, Esq., met with me and asked would I provide the government an affidavit or testify on behalf of the government in support of a motion to reopen a hearing, that resulted in a new trial for the above mention defendants.
2. I clearly told Mr. Sercarz that I will not provide an affidavit, testify for the government, nor will I tell him of the government whether or not if I was responsible for the Ocasio/Garcia murders or the defendants Camacho and Rodriguez.
3. I clearly pointed out to Mr. Sercarz that I'll not talk about this matter without some type of protection or relief
Cherry mails copies of this affidavit to AUSA McCarthy, to this Court, and to Judge Stem, to whom the government's case against Camacho and Rodriguez had been reassigned after I granted the defendants' motion for a new trial.

  On or about July 12, 2002, AUSA McCarthy is informed by an officer at the MCC that the Informant has come forward with information about conversations the Informant had with Cherry while Cherry and the Informant were housed together in the MCC. According to the MCC official, that information concerned Cherry's having falsely taken "credit" for the murders for which Camacho had been convicted. AUSA McCarthy speaks with the Informant's attorney and arranges Page 12 to meet with the informant.*fn17

  On July 22, 2002, AUSA McCarthy meets with the Informant at the MCC. The Informant tells AUSA McCarthy that in early May 2002, the Informant and Cherry were in the same unit at MCC. The informant asked Cherry why Cherry was back in the MCC (a sensible enough question, since the MCC is a short-stay facility and Cherry was serving a lengthy sentence as the result of his guilty plea in the C&C case). The Informant also tells AUSA McCarthy that on that occasion Cherry said to him that he was in the MCC because of "Camachito," Cherry's nickname for defendant Camacho; that when Cherry was housed at Otisville together with Camacho, Camacho asked Cherry to help him to get out from under his murder convictions; that Cherry and Camacho discussed different ways to attack the convictions; that finally, Cherry offered to testify that he had actually committed the murders when in fact he had not, provided that Camacho could get Cherry immunity; and that when Cherry did not succeed in getting immunity, he washed his hands of the plan The Informant further tells AUSA McCarthy that Cherry also recounted to the Informant Cherry's belief that after Camacho failed to get immunity for Cherry, and Cherry had no further involvement in Camacho's plan, a time came when Camacho asked Thomas to write an affidavit stating that Cherry had confessed to Thomas that lie. Cherry, had committed the murders instead of Camacho I he Informant also says to AUSA McCarthy that Cherry told the Informant that he had never m fact made such a confession to Thomas.*fn18

  On August 12, 2002, Cherry appears before Judge Stem to ask that Maurice Sercarz be relieved as his attorney. Cherry had written a letter to Judge Stem which the Judge reads into the Page 13 record. It says:

Your Honor: I am writing to request that you appoint another attorney to represent me in the above mentioned matter. Mr. Sercarz has put words in my mouth in order to help the government overturn Judge Haight's order. Therefore in my eyes Mr. Sercarz is an agent for the government and not an attorney that have [sic] my best interests in mind. Thank you.
Tr. 2. Judge Stein, drawing upon personal experience, praises Mr. Sercarz as "an excellent attorney" and urges Cherry to "rethink your request," Tr. 3, but Cherry is adamant; he says to Judge Stein: "Well, in essence, it's the same. I would like this man to withdraw from my case. I will not deal with him whatsoever under no circumstances." Tr. 4. The government, speaking through AUSA McCarthy, takes no position. Mr. Sercarz, asked by Judge Stein to comment, says that "Mr. Cherry's request to have me withdraw under the unique circumstances here may make sense because it is reasonably foreseeable to me that I might become a witness in this proceeding." Id. Mr Sercarz offers to elaborate, but Judge Stem sees no need for it, relieves Mr. Sercarz of his responsibilities as Cherry's attorney, and appoints another attorney. Tr. 4-5.*fn19

  On August 16, 2002, AUSA McCarthy meets again with the Informant at the MCC. The informant gives AUSA McCarthy handwritten notes that he tells AUSA McCarthy he had made of his conversations with Cherry in the MCC. The notes, while not fully legible or coherent, are consistent with the substance of what the Informant told AUSA McCarthy at their July 22, 2002 meeting. The notes also recite that during the conversations between Cherry and the Informant, Cherry said to the Informant that `Thomas was a beast in putting legal shit together, and that he was happy that Jaime and Camachito fucked the prosecutors, the judge, and the whole dam [sic] govt Page 14 for that matter."*fn20


  The Cherry declarations upon which defendants rely would be admissible at a second trial only if "corroborating circumstances clearly indicate the trustworthiness of the statement." Rule 804(b)(3), Fed.R.Evid. The opinions in Camacho II and Camacho III analyzed at length the concepts of "corroborating circumstances" and "trustworthiness," in the light of Second Circuit authority. Camacho III, which endeavored to follow that authority, concluded that Cherry's declarations were admissible. It is unnecessary to repeat that analysis.

  On the present motion, the government contends that the trustworthiness analysis must be revisited because of newly discovered evidence That newly discovered evidence consists of further statements Cherry is said to have made while housed at the MCC in May 2002. As outlined in Part III, Cherry purportedly made those more recent declarations to two individuals: Cherry's attorney at the time, Maurice Sercarz, who described them in a proffer to AUSA McCarthy; and the Informant, who described them during two interviews with AUSA McCarthy. These declarations either recant the earlier declarations upon which defendants rely or deny that they were ever made.

  Opposing the government's motion to reopen the hearing, counsel for Camacho and Rodriguez argue vigorously that no further evidence should be taken, and that the Court should not revisit its prior analysis and determination that Cherry's earlier declarations were trustworthy and hence admissible. However, I cannot agree that evidence of a subsequent recantation by Cherry of the declarations upon which defendants rely, or Cherry's denial that such declarations ever were Page 15 uttered, should not be considered by the Court in evaluating the "trustworthiness" of the earlier declarations.

  The briefs of counsel on the present motion focus almost exclusively upon the Informant, the defendants attacking the value of his testimony as foretold by AUS A McCarthy's two affidavits, and the government upholding the Informant.*fn21 But the briefs of counsel seem to lose sight of Mr. Sercarz. That omission is puzzling because, according to AUS A McCarthy's affidavit, Mr. Sercarz was proffering to her in May 2002 declarations by Cherry seemingly identical to the declarations the Informant says Cherry made to him at the same time. Moreover, Mr. Sercarz, a respected member of the bar of this Court, is not subject to the unflattering characterizations that defense counsel heap upon then Informant.

  After careful consideration, I have decided to reopen the hearing and take the testimony of Maurice Sercarz. His testimony will cover the circumstances which prompted him to make a proffer on Cherry's behalf in May 2002; what Cherry said to Mr. Sercarz before the proffer was made; what Mr. Sercarz and AUSA McCarthy said to each other when they met and discussed the matter, and what Mr. Sercarz said to Cherry thereafter Mr. Sercarz's testimony will furnish a valuable source of information abut the subsequent Cherry declarations upon which the government relics And his Page 16 testimony takes on ah added relevance, in view of Cherry's statement to Judge Stein at the August 12, 2002 hearing that he wanted a new attorney appointed to represent him because "Mr. Sercarz has put words in my mouth in order to help the government overturn Judge Haight's order." That is undoubtedly a reference to this Court's March 13, 2002 order granting Camacho and Rodriguez a new trial. Mr. Sercarz told Judge Stein that his replacement as Cherry's attorney was appropriate "because it is reasonably foreseeable to me that I might become a witness in this proceeding " And so he will be

  Since Mr Sercarz communicated to the government a proffer which Cherry undoubtedly authorized him to make, it would not appear that the attorney-client privilege would bar any of the testimony which I intend to receive I state that proposition tentatively because counsel have not had an opportunity to address it

  The hearing at which Mr Sercarz will testify will take place at 1030am on March 1, 2004, in Room 17C, 500 Pearl Street if that date is not possible for Mr Sercarz or any counsel involved in the case, they should telephone my Chambers

  Whether the Court will hear any other witnesses will be the subject of future rulings*fn22

  The foregoing is SO ORDERED

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.