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U.S. v. BORDEN

United States District Court, S.D. New York


January 5, 2005.

UNITED STATES OF AMERICA,
v.
JAMES BORDEN, Defendant.

The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

On January 30, 2003, defendant James Borden ("Borden") was convicted by a jury. Borden appealed, claiming inter alia that the admission at trial of the plea colloquy of a co-conspirator violated the Confrontation Clause. On February 9, the Second Circuit affirmed Borden's conviction in a summary order.

  On March 8, the United States Supreme Court issued its opinion in Crawford v. Washington, 124 S. Ct. 1354 (2004), where it held, among other things, that the Confrontation Clause prohibits the admission of out-of-court testimonial statements unless the declarant is unavailable and there has been a prior opportunity for cross-examination of the declarant. Id. at 1372. The Second Circuit subsequently permitted Borden to file a late petition for rehearing, and later granted a motion by Borden to recall the mandate, remanding the case to this Court for a determination of whether Borden is entitled to a new trial on the ground that the admission of the co-conspirator's plea colloquy was a violation of his Sixth Amendment right to confront the co-conspirator. For the reasons described below, Borden's motion for a new trial is denied.

  BACKGROUND

  Borden, Timothy Hepburn ("Hepburn"), and Hatem Saleh ("Saleh") were indicted on July 16, 2002, for one count of conspiracy to distribute and possess with intent to distribute crack cocaine, 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(C), 846, and one count of distribution and possession with intent to distribute crack cocaine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2. On January 9, 2003, Saleh pled guilty in front of the Honorable John S. Martin, Jr. to both counts of the indictment pursuant to a written plea agreement. During Saleh's plea allocution, the following colloquy took place: THE COURT: Tell me, in your own words, what you did that makes you guilty of this charge.

 

SALEH: I was standing at the corner of 47th and I was approached by one person. And as soon as I entered the car, before there wasn't any sale, I was arrested right there and then.
THE COURT: The person approached you to do what?
SALEH: To come and — come in to the car and make a sale.
THE COURT: And did you agree to make the sale?
SALEH: I agreed but it wasn't — I didn't — it was — I was — as soon as we went into the car that's when the arrest happened.
THE COURT: Were you working with somebody else at the time who was going to —
SALEH: Working?
THE COURT: That is, were you and another person engaged in this distribution of crack? Were there two or more of you asked to do this, or how did it happen?
SALEH: I was standing by myself, but when I entered the car there was a person there with the two undercovers. And then right before I entered the car the person had came to me and then —
THE COURT: I'm sorry?
SALEH: A person came up to me before I entered the car.
THE COURT: A person came to you and asked if you would provide crack to someone else?
SALEH: Yes.
THE COURT: And you agreed to do that?
SALEH: Yes. As soon as I entered the car, that's when the arrest happened. THE COURT: This occurred in April 2002?
SALEH: April 2002, yes.
THE COURT: Anything further? Did you actually have crack on you at the time?
SALEH: Yes.
AUSA: Yes, Your Honor. Just that the person who he agreed with was not one of the undercover officers.
THE COURT: Who was the other person?
AUSA: That's the question — the person — if the person, whether or not the person who he agreed with was the undercover officer.
THE COURT: Who was the person who came to you and asked you to provide the crack? Was it an undercover officer or somebody else you knew?
SALEH: No, somebody else.
Following additional questioning of Saleh, Judge Martin accepted his plea.

  Before Borden's and Hepburn's trial, the Government moved to admit a portion of Saleh's plea colloquy pursuant to Rule 804(b)(3), Fed.R. Evid. In its written motion, the Government stated that Saleh's attorney had communicated Saleh's intention to invoke his Fifth Amendment privilege against self-incrimination if he were called to testify at trial.

  The evidence at trial showed that Borden was the person on the street who solicited Saleh to sell drugs, and that Hepburn was waiting in the car with the undercover officers. Hepburn's counsel objected to introducing only a portion of the plea colloquy as opposed to the full colloquy quoted above. In response, the Government amended its motion, seeking thereafter to admit the full colloquy. Hepburn withdrew his objection.

  Borden's counsel objected to the following portion of the colloquy on two grounds: that the colloquy was insufficiently redacted pursuant to the line of cases beginning with Bruton v. United States, 391 U.S. 123 (1968), and that the statements were not sufficiently self-incriminating.

 

SALEH: I was standing by myself, but when I entered the car there was a person there with the two undercovers. And then right before I entered the car the person had came to me and then —
THE COURT: I'm sorry?
SALEH: A person came up to be before I entered the car.
THE COURT: A person came to you and asked if you would provide crack to someone else?
SALEH: Yes.
. . . .
THE COURT: Who was the person who came to you and asked you to provide the crack? Was it an undercover officer or somebody else you knew?
SALEH: No, somebody else.
  On the morning of Borden's and Hepburn's trial, this Court granted the Government's motion to admit the full colloquy from Saleh's guilty plea, ruling that the statements were self-inculpatory and did not violate the rule announced in Bruton that post-arrest statements made by non-testifying co-defendants that facially incriminate a defendant are inadmissible because such statements violate the defendant's Sixth Amendment right to cross-examine adverse witnesses. See Bruton, 391 U.S. at 135-36.

  An undercover officer, Officer Allison ("Allison"), testified to an initial drug conversation and exchange of "buy money" between himself and Hepburn. Allison testified that he and Hepburn then walked north on Eighth Avenue to the corner of 36th Street where Borden approached them and asked Hepburn "what . . . [Allison] need[ed]." Allison testified that he told Borden that he wanted $200 worth of crack cocaine, and that Borden responded that he could get that amount of cocaine and would sell it to Allison. Allison stated that Borden directed him and Hepburn to follow him to a public telephone, that Borden then made a telephone call, and that he, Borden, Hepburn, and another officer, subsequently traveled by car to the purchase location, where Borden left the car and met with Saleh. Allison testified as follows:

Q. What happened when you got there?
A. When we got there, Mr. Borden said to Det. Lynch to pull over. He pulled over . . . and Mr. Borden got out of the vehicle and walked to the front of the vehicle and met another individual later known to me as Hatem Saleh.
Q. What happened after Borden got out of the car and met with Mr. Saleh?
A. They had a short conversation. . . . Mr. Saleh said I need you to drive across the street. . . . .
Q. What happened after Det. Lynch drove across the street?
A. Mr. Borden and Mr. Saleh then met at the vehicle and got inside the vehicle.
According to Allison, Borden and Saleh joined Hepburn in the back seat of the car, with Detectives Lynch and Allison in the front seats. Saleh asked Allison if he had the money, and when Allison replied that he did, Saleh produced a white tissue containing a plastic bag filled with crack cocaine. At the end of its case-in-chief, the Government read to the jury the full colloquy from Saleh's guilty plea recited above.

  Borden and Hepburn each testified in his own defense. Hepburn alleged he was simply attempting to buy crack, denied having any connection or involvement in a conspiracy with Saleh, and attempted to shift blame to Borden. He denied that Allison gave him any money.

  Borden denied any involvement with Saleh, and explained that his presence on the scene was only due to his desire to purchase marijuana. He testified that he was on his way to a club, and stopped in the neighborhood of 35th Street and 8th Avenue, hoping to buy marijuana. He stated that strangers who he later could identify as Hepburn and Allison approached him and asked if he knew where "to get crack." Borden testified that he told Hepburn and Allison that he did not know where to buy crack, departed, and then later met Allison again, at which point Hepburn invited Borden to a party. Borden testified that he then rode in Detective Lynch's car, and that when the car stopped at 47th Street, Borden went inside a store to buy marijuana, telling someone in the store: "I got some crazy crack heads in the car that just want to go partying, get high, but I'm not with that stuff." Borden stated that he left the store, saw Saleh, asked him if he had any marijuana, and then got back into the car with Saleh, Hepburn, and the two undercover officers. Borden testified that he had never met Saleh prior to the date of the drug transaction, April 5, 2002, but referred to Saleh during his testimony in familiar terms, including calling Saleh by his first name, "Hatem." Borden also testified that he pleaded guilty to a charge of possession with intent to dispense cocaine in 1990 in Virginia, but maintained that he was innocent of that charge.

  During the jury charge, this Court instructed the jury that Saleh's plea allocution only pertained to two issues, namely, "whether there was a conspiracy to violate federal narcotics laws," and "what, if anything, that person did in order to further the object of the conspiracy, if you find that conspiracy existed." The jury instructions emphasized that the jury "may not use the statements for any other purpose. Specifically, you may not use them to determine whether either defendant was a member of any conspiracy that you find existed." During the jury's deliberations, the jury sent out six notes, including requests for the entire testimony of both Allison and Borden. Borden was convicted by the jury on January 30, 2003. Hepburn was acquitted. On July 25, Borden was sentenced to 96 months' imprisonment.

  DISCUSSION

  Prior to the Supreme Court's ruling in Crawford, it was appropriate to introduce a properly redacted plea allocution of a co-conspirator as a statement against penal interest to prove the existence of the conspiracy or scheme, and conduct in furtherance of it, pursuant to Rule 804(b)(3), Fed.R. Evid. See, e.g., United States v. Petrillo, 237 F.3d 119, 122 (2d Cir. 2000). As a result of the Supreme Court's ruling in Crawford, however, the plea allocutions of unavailable co-conspirators may not be admitted at trial without violating the Sixth Amendment unless there has been a prior opportunity for cross-examination. See United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004). Although the Second Circuit recently held that Crawford may not be applied retroactively on collateral review, Mungo v. Duncan, ___ F.3d ___, 2004 WL 2988301 (2d Cir. Dec. 28, 2004), that decision does not apply to cases on direct appeal, because "failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication." Griffith v. Kentucky, 479 U.S. 314, 322 (1987). See also United States v. Gutierrez Rodriguez, 288 F.3d 472, 476 n. 2 (2d Cir. 2002).

  The standard to apply where the defendant preserves a Confrontation Clause challenge is whether the error is harmless beyond a reasonable doubt. See McClain, 377 F.3d at 222. In the event that a plea allocution is erroneously admitted, a new trial is unnecessary as long as the Government can show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id.

  Here, the Government has carried that burden. First, the evidence of Borden's guilt was overwhelming. The testimony of Detectives Allison and Lynch was detailed, specific, and consistent, and implicated Borden more significantly than Hepburn in the drug transaction — Borden not only made the telephone call to arrange the transaction, but instructed the officers where to go, and conducted the negotiations with Saleh. This testimony demonstrated Borden's guilt on both the conspiracy count, including the existence of the conspiracy, as well as the substantive count. In addition, Borden's own testimony was wholly incredible, as it involved numerous random encounters with strangers to whom Borden referred familiarly, and a claim that Borden was interested only in purchasing marijuana while simultaneously traveling with the group of strangers to a cocaine purchase point. Borden's credibility was further marginalized by his previous conviction for possessing cocaine with the intent to distribute it. None of the jury notes requested a copy of the plea colloquy; instead, they focused on the testimony of both Allison and Borden. Consequently, it is clear that Borden would have been convicted whether or not the plea colloquy had been admitted into evidence.

  Moreover, the jury charge clearly instructed the jury that it could consider the plea allocution only as evidence that the conspiracy existed. This Court may presume that the jury followed this instruction. See McClain, 377 F.3d at 223; United States v. Downing, 297 F.3d 52, 59 (2d Cir. 2002). With such a presumption, the plea allocution was irrelevant to Borden's participation in the substantive count. The acquittal of Hepburn demonstrates that the jury carefully evaluated the strength of the evidence against each defendant separately. Borden received the same sentence that he would have received with a conviction on the substantive count alone. CONCLUSION

  For the reasons stated above, Borden's motion for a new trial is denied.

  SO ORDERED.

20050105

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