United States District Court, S.D. New York
February 2, 2005.
UNITED STATES OF AMERICA
STEPHEN CAMACHO and JAIME RODRIGUEZ, Defendants.
The opinion of the court was delivered by: CHARLES HAIGHT, District Judge
MEMORANDUM OPINION AND ORDER
This case is before the Court on the government's motion for
reconsideration of the Court's prior order granting defendants a new
trial. A further evidentiary hearing has been completed and extensive
briefs of counsel exchanged. The government's motion is now ripe for
In June 1996 defendants Steven Camacho and Jaime Rodriguez were
convicted by a jury of various racketeering acts. The principal charges
of conviction were conspiracy to murder Hector Ocasio, the murders of
Hector Ocasio and Gilberto Garcia, and the attempted murder of Luis
Garcia, in aid of a racketeering enterprise and in violation of
18 U.S.C. § 1959.
The Court has had occasion to file numerous opinions in the case,
pre-trial, post-trial, and in connection with defendants's subsequent
motion for a new trial based on newly discovered evidence, which was
granted in an opinion forming the target of the government's present
reconsideration motion. While familiarity with all these opinions is
assumed, those of particular
relevance to the government's motion are reported at 163 F.Supp.2d 287
(S.D.N.Y. 2001) ("Camacho I") (holding that on defendants' motion for a
new trial, an evidentiary hearing was required to determine whether
corroborating circumstances indicated the trustworthiness of an
out-of-court declarant's statements inculpating himself and exculpating
defendants sufficiently to make the statements admissible at a new
trial), and 188 F.Supp.2d 429 (S.D.N.Y. 2002) ("Camacho II") (following
the evidentiary hearing, holding that declarant's statements would be
admissible at a new trial and would probably create a reasonable doubt in
the jury's minds as to the guilt of defendants, and granting defendants'
motion for a new trial). That is the order the government now asks the
Court to reconsider.*fn1
Briefly stated, defendants based their motion for a new trial upon
purported newly discovered evidence, in the form of an affidavit by
Christopher Thomas, a federal prisoner, that described a conversation
between Thomas and Gregory Cherry, a fellow inmate and a co-defendant
named in the indictment charging defendants, in which Cherry stated that
he had committed the crimes for which defendants had been convicted. For
reasons that need not be explicated here, Cherry would not be available
as a witness at a new trial of defendants. Accordingly the question arose
whether under the rules of evidence Thomas could testify at a new trial
as to the substance of the declarations Cherry made to him; or, to
sharpen the focus of the inquiry, whether Cherry's out-of-court hearsay
declarations to Thomas would be admissible. That question implicated Rule
804(b)(3), which provides in pertinent part:
(b) Hearsay exceptions. The following are not
excluded by the
hearsay rule if the declarant is unavailable as a
. . . . . . . . . .
(3) Statement against interest. A statement which . .
. at the time of its making . . . so far tended to
subject the declarant to . . . criminal liability, .
. . that a reasonable person in the declarant's
position would not have made the statement unless
believing it to be true. A statement tending to expose
the declarant to criminal liability and offered to
exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the
trustworthiness of the statement.
(emphasis added). I have emphasized the final phrase of Rule 804(b)(3)
because Cherry's declarations to Thomas, offered to inculpate Cherry and
thus exculpate defendants, is the sort of statement covered by the last
sentence of the Rule.
Given that circumstance, in Camacho I I identified the first question
presented by defendants' motion for a new trial as whether "the
declarations Thomas attributes to Cherry [would] be admissible under the
rules of evidence at a new trial," adding that "[i]f that question be
answered in the negative, then defendants' motion fails of necessity,
since this is the only new evidence defendants have to support it."
163 F.Supp.2d at 298. In view of Rule 804(b)(3)'s concluding
requirement, I further stated that the admissibility of Cherry's
declarations turned upon "whether other evidence provides clear
corroboration for the truth of Cherry's statement to Thomas that he
committed the murders for which Camacho and Rodriguez were convicted."
Id. at 309. Camacho I concluded with a ruling that "the prudent course is
to develop a full record during [an] evidentiary hearing," at which
Thomas would testify and "the government may cross-examine Thomas fully
as to whether or not in fact Cherry made the statements Thomas ascribes
to him," adding that the government "may also offer extrinsic evidence
(if it has any) bearing upon that question of fact."
Id. at 316.
The evidentiary hearing mandated by Camacho I consisted of the
testimony of Thomas, called as a witness by defendants, who testified on
direct examination in response to questions posed by defendants' counsel
and was cross-examined by government counsel. Further briefing and
submissions of counsel preceded the Court's opinion in Camacho II, which
granted defendants' motion for a new trial. On the question of the
admissibility of Cherry's declarations at a new trial, the government
contended that I should evaluate Thomas's credibility, in addition to
that of Cherry. I rejected that contention as contrary to Second Circuit
authority, citing United States v. Casamento, 887 F.2d 1141, 1170 (2d
Cir. 1989) ("In determining whether such a statement is trustworthy
enough to be admissible, . . . the court should not look to the
credibility of the in-court witness."). See Camacho II,
188 F.Supp.2d at 439. In Camacho II I identified the "critical
question" as "whether there are circumstances clearly corroborating the
reliability of Cherry's declaration," and undertook to consider on the
record as it then stood whether, first, "there is clear corroboration for
Cherry's reliability, evaluating the circumstances of his corroboration,"
and second, "whether there is clear corroboration for the reliability of
the declaration itself, evaluating whether there is other consistent
evidence." Id. I concluded in Camacho II that Cherry's declarations to
Thomas were sufficiently corroborated and would be admissible at trial,
see 188 F.Supp.2d at 439-444, and that "Cherry's declaration, if
believed by the 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." Id. at 454. Having reached those
conclusions, I granted defendants' motion for a new trial.
The government now moves for reconsideration of that order.
Symmetrically, the government bases its motion upon newly discovered
evidence, consisting of post-Camacho II
statements made to the government by Jose Melendez, a federal inmate who
for a time was incarcerated together with Gregory Cherry in the
Metropolitan Correction Center ("MCC") in Manhattan. Melendez told the
office of the United States Attorney for this District that Cherry had
told Melendez, in substance, that Cherry had not committed the murders
for which Camacho and Rodriguez had been convicted, and that Camamcho and
Rodriguez, with the assistance of Thomas, an experienced "jailhouse
lawyer," had fabricated the account to which Thomas had testified, which
described the declarations Cherry made to Thomas upon which defendants
had based their successful motion for a new trial.
In that circumstance, the government asked the Court to reopen the
evidentiary hearing for the purpose of receiving Melendez's testimony. I
granted that application. Melendez testified and was cross-examined by
defendants' counsel on May 13, 2004. Another government witness, Les
Owen,*fn2 a Bureau of Prisons staff attorney, testified on May 14 for
the purpose of admitting into evidence computer printouts showing where
the several inmates involved in the case Cherry, Camacho, Rodriguez,
Thomas and Melendez had been incarcerated at various times. Defendants
called no witnesses at the reopened hearing. The evidentiary record was
again closed. A further round of briefs of counsel have been submitted.
The government's motion for reconsideration of the Court's granting
defendants a new trial is now ripe for decision.
The government's basic contention is that Melendez's testimony,
which it characterizes as
credible, materially alters the factual circumstances which this Court
discerned from the evidentiary record as it existed when Camacho II was
decided. It follows, the government argues, that (1) Cherry's
declarations to Thomas would not be admissible at a new trial because (a)
they can no longer be regarded as against Cherry's penal interest, and
(b) there is insufficient corroboration of their trustworthiness; and (2)
even if Cherry's declarations were admissible, the defendants would again
be convicted because (a) the jury would regard Thomas's testimony
describing those declarations as unworthy of belief, and (b) Cherry's
declarations to Thomas that he, Cherry, committed the murders would be
disregarded by the jury as contrary to the weight of the evidence
available to the government at trial.
On this last point, the government devotes pages 29-57 of its brief to
reviewing the evidence adduced against defendants at the trial which
convicted them. There is force to the defendants' view that this aspect
of the government's present motion is more accurately characterized as a
motion for reargument based on old evidence rather than a motion for
reconsideration based on new evidence. But that criticism cannot be made
of the other contentions the government makes, which are squarely based
upon the testimony of Jose Melendez. It is necessary to consider that
testimony in detail.
The Bureau of Prisons records show that between May 10 and October 8,
2002, Melendez and Gregory Cherry were incarcerated together in unit 9
North in the MCC. Owen, Tr. 209. Melendez and Cherry knew each other
because they had been incarcerated together at the MCC during certain
periods in 1994 and 1995, as well as at the Federal Correctional
Institution ("FCI"), Otisville for nine days in 1995. Melendez testified
that during those earlier periods, he and Cherry would talk with each
other "about basically the street and his not his case his activity
you know, what he was arrested for and his being part of the C&C
organization." Tr. 46.*fn3
In 2002 Melendez was in the MCC awaiting sentencing by Judge McKenna
following his plea of guilty in an unrelated case. At that time, as the
government accurately states in its main brief at 6, "Melendez was in the
midst of contentious litigation against the Government. Melendez had
filed numerous affidavits and pro se motions contending that the federal
prosecutors involved in his case had lied about alleged promises they had
made to him concerning, among other things, the availability of a
downward departure on his behalf." Cherry was returned to the MCC in May
2002. The opinion in Camacho II granting Camacho and Rodriguez a new
trial had been filed on March 13, 2002. The government brought Cherry
back to the MCC to explore with him, if Cherry would cooperate, the
declarations which Thomas testified that Cherry had made. Thus the
opinion reported at 2004 WL 1367457, at *3, says in this regard:
At some time prior to May 9, 2002, the government was
made aware that Cherry may have made declarations to
other individuals inconsistent with his statements to
Christopher Thomas. Understandably, the government
wished to pursue this subject with Cherry. At that
time, as he is now, Cherry was in federal custody
serving a lengthy sentence. The government arranged
to have Cherry moved to the Metropolitan Correctional
Center (the "MCC") to facilitate a conversation.
Finding themselves together again at the MCC, Melendez and Cherry
conversed. According to Melendez's testimony, Cherry told Melendez about
the case involving Camacho (Cherry called him "Camachito"). Responding to
questions by the government, Melendez described what Cherry had told him
about Cherry's contacts with Christopher Thomas. Melendez testified:
He [Cherry] also talked to me about a guy named
Thomas. He said that he met Thomas in Otisville when
he was over there fighting his case, the sentencing
issues, and that Thomas was helping him with the
sentencing issues, and that he was and he said
that's how Thomas came into the picture in Camachito's
case. He actually said that Thomas filed some type of
affidavit and Camachito could get a new trial. Cherry
had told Thomas that he had been the shooter and that
Camachito was innocent, something to that effect, and
afterwards he was in the law library with his legal
papers and trial transcripts, I believe and walked
over to where they were at and told Mr. Cherry told
Cherry and said what's up to Cherry and Thomas. He
also stated that during that time Camachito proceeded
to roll over pull out trial transcript pages. He
actually said he was helping Camachito with the issues
relating to trying to obtain a reversal on the
conviction, and they proceeded to review trial
transcripts regarding the testimony of some guy named
Pito and another guy that had actually gotten shot,
that had lived and testified against him.
He also stated that they were going over different
scenarios in the law library together and that during
that time Mr. Cherry stated to Mr. Thomas that he was
trying to get immunity from prosecution, immunity
from the court so he can actually take the weight for
the shootings, but if he didn't get the immunity that
he couldn't do it, because then he would probably be
charged with the murder.
Mr. Cherry said that Thomas had told him, had told
Camachito to get on his job and contact his lawyer.
And I believe Mr. Cherry told him that he had already
done that, that he had met with the other defendant's
lawyer, Jamie's lawyer. And I think after that,
shortly thereafter, I think after that Thomas
actually left Otisville.
Q. And this is all information that Mr. Cherry gave
to you while you were together in 9 North, correct?
A. Yes, ma'am.
Q. Did the government ask you to talk to Mr. Cherry?
A. No, ma'am.
Q. Did Cherry tell you whether he had actually
participated in the murders [of] which Mr. Camacho
had been convicted?
A. Yes, he said he did not participate, he said he
was not the shooter.
Tr. 50-51. Returning to that last assertion, the government asked
Melendez on redirect:
Q. Well, had Mr. Cherry in fact told you that he had
nothing to do
with the murder Mr. Camacho did?
A. Yes, he did.
Melendez further testified in response to the government's questions:
Q. Did Mr. Cherry have a theory on how it was Mr.
Thomas came in [sic] to put in an affidavit for Mr.
A. Yes, he did.
Q. What was that?
A. He said that Camachito and Thomas had run into
each other again in Otisville, and that while they
were there Camachito must have gassed Thomas up to
prepare an affidavit for him, saying that Cherry had
told him he was the shooter when it was not true.
It occurred to Melendez, whose instinct for self-preservation is
manifest, that what he says Cherry told him might be of interest to the
government and of benefit to him. While Melendez's recollection of the
dates was uncertain when he testified, the government and defendants
stipulated at the hearing, Govt. Ex. 6, that on July 9 or July 10, 2002,
Ken Haas, an MCC employee, informed AUSA Sharon McCarthy that "a witness"
had information about Gregory Cherry. On July 11 or 12, 2002, Haas
identified the witness to AUSA McCarthy as Jose Melendez. On July 22,
2002, Melendez met for the first time with AUSA McCarthy and other
government personnel. On August 16, 2002, Melendez met for a second time
with the government. During those interviews, Melendez gave to the
government accounts of what Cherry told him which led to the hearing
testimony that I have quoted.
At the second interview on August 16, Melendez gave AUSA McCarthy
handwritten notes, Govt. Ex. 3501A, describing his conversations with
Cherry which he testified he prepared "shortly after" he met with AUSA
McCarthy the first time. Tr. 180. On November 20, 2002, Melendez
wrote a letter to Lloyd Epstein, his attorney, enclosing additional
handwritten notes, dated September 15 and 25, 2002, and asking that they
be forwarded to the government. These notes are Govt. Ex. 3501B. Melendez
testified that he prepared them after talking with Cherry on the
indicated dates in September. They were among his property left behind at
the MCC when Melendez was transferred elsewhere, and did not catch up
with him until November. Tr. 182-83.
As defendants' counsel brought out in cross-examination, the notes do
not contain all the statements by Cherry which Melendez described in his
testimony, but they are consistent with that testimony in that they both
quote Cherry as denying that he participated in the shootings for which
defendants were convicted. See, e.g., Govt. Ex. 3501B, at page 3:
G. [Cherry] stated that if Joyce London or the
prosecutor was to call him to testify by subpoena
that he was going to fuck the prosecutor, and give
enough doubt as to Camachito and Jaime's guilt, that
they would either get acquitted at a retrial or that
judge Haight will grant their new trial without
reconsidering his ruling of giving them a new
trial. . . . He stated that he didn't have anything
to lose, especially since he didn't have anything to
do with the murders Camachito and Jaime participated
in, and the government not being able to charge him
The notes' description of how Cherry intended to discomfit the government
is consistent with what Melendez testified Cherry told him about what he
would do if the government, having arranged Cherry's return to the MCC in
2002, called him to testify in the instant case:
Q. Now, did Mr. Cherry ever tell you what he would do
if he were in fact called to testify about Camacho's
A. Yes, ma'am. He said that if the government
subpoenas him without him having a deal to testify,
that he would take the stand and make implications
like he was somehow the shooter to screw the
government's case up. And when the government tried to
prosecute him for the crimes, that he had a big
surprise for them, to prove that he wasn't the
Based principally upon Melendez's testimony, the government offers the
following scenario of events. Gregory Cherry dislikes prosecutors.
Cherry, Camacho and Rodriguez are, so to speak, comrades in arms. Cherry
was quite prepared, even eager, to "fuck the prosecutor" and obtain a new
trial for Camacho and Rodriguez if he could do so without prejudice to
himself. He first attempted to do so by twice contacting Rodriguez's
attorney, Joyce London. On the basis of the record then before me, I
described those contacts in Camacho I, 163 F.Supp.2d at 291:
In April of 1999, defendants filed a second motion
for a new trial based on newly discovered evidence. . . .
Defendants requested a grant of judicial immunity
so that a proposed witness, Gregory Cherry, could
testify that he committed the crimes for which
defendants were convicted. Counsel for Rodriguez had
met with Cherry in the fall of 1997 and the fall of
1998 and stated in an affidavit that Cherry told her
that he knew who was responsible for the murders and
that Camacho and Rodriguez were not involved. Cherry
told her that he would testify only if he was granted
Melendez testified that Cherry told him this about his meetings
with Ms. London:
Q. [by AUSA McCarthy]: Did Mr. Cherry tell you
directly that he had in fact met with one of the
defendant's lawyers back in November of 1997? Do you
recall making a note of that in the initial notes,
A. I remember he did tell me that he had met with
Jamie's lawyer, but I can't tell you the exact date,
because I don't recall.
Q. All right. And can you tell us, if you recall, the
substance of what it was that Mr. Cherry told you
about that meeting with Jamie's lawyer?
A. Yes. He said that he met with her with the
intentions of trying to see if she could get immunity
for him from the court, and so he can testify on
behalf of Camachito in reference to the shootings
that occurred, and that at that meeting he kind of
spinned her around to make it seem like made
implications like he was the actual shooter and
stuff, but that he didn't want to tell her outright
that he had actually done these shootings, because
then if he didn't get the immunity, they would try to
charge him with the murders themselves,
which was exactly what they were doing now, accusing
Q. Did Mr. Cherry in essence tell you that he had
played head games with Jamie's lawyer?
A. Yes, he did.
On December 1, 1999, I declined to grant Cherry judicial immunity and
denied defendants' motion for a new trial. 1999 WL 1084229 (S.D.N.Y.
Dec. 1, 1999). The government's theory of the case is that Cherry's quest
for immunity having failed, thereby depriving defendants of Cherry's
direct testimony that he was the Ocasio/Garcia shooter, Camacho and
Thomas in a subsequent discussion agreed to get Cherry's statement before
the Court indirectly, by the vehicle of an affidavit by Thomas that
Cherry had made those declarations to him. And it was Thomas's affidavit
to that effect that led to the evidentiary hearing which resulted in the
Court's order granting defendants a new trial.
The government's scenario depends upon the credibility of Melendez,
which counsel for defendants vigorously attacked in their
cross-examinations and post-hearing briefs. Defendants's briefs argue
principally that while he was in the MCC in 2002, possibly after Cherry
was transferred there, Melendez conducted legal research, found this
Court's opinion in Camacho II granting defendants a new trial, read it
and realized that Cherry's declarations to Thomas as described by Thomas
were the cornerstones of that opinion, realized further that discrediting
those declarations would benefit the government, and therefore, in hopes
of benefitting himself, Melendez fabricated the statements he ascribed to
Cherry during his conversations with Cherry at the MCC, contacted AUSA
McCarthy through Haas, described those fabricated statements by Cherry to
the prosecutors during his two meetings with them, also made the
statements up in his handwritten notes, and
testified falsely during the reopened evidentiary hearing that Cherry had
told him that he was not the Ocasio/Garcia shooter and that any prior
contrary declarations, to Ms. London or to Thomas, were part of a scheme
to prejudice the government, deceive the Court, and obtain a new trial
The credibility of Melendez is thus placed squarely at issue. In my
view, if as a general proposition the credibility of Melendez and Cherry
were rated on a scale of 1 to 10, with 1 meaning nothing someone says can
be believed and 10 meaning everything someone says should be believed,
both would be hovering around 2.*fn4
Cherry is a violent felon, openly disposed against prosecutors, who has
given different accounts to different law enforcement agents at different
times, and never implicated himself in the Ocasio/Garcia shootings on
prior occasions when he was purportedly giving a full account of his
As for Melendez, he got in touch with the government through Haas of
the MCC, told the AUSA in charge of this case about Cherry's statements
to him, made his notes of those conversations, and gave them to the
prosecutor, all in the hope that it would benefit him in his sentencing in
the case before Judge McKenna or otherwise, as he acknowledged at the
hearing. AUSA McCarthy says in the government's main brief at 55 that
"Melendez's testimony at the hearing was entirely credible." That might
come as something of a surprise to former Special Assistant United States
Attorney Steven M. Cohen, who was the prosecutor in the case before Judge
McKenna. Responding to Melendez's claim that the government had
wrongfully denied him favorable treatment, Cohen wrote to Judge McKenna
that Melendez's repeatedly mendacious conduct "amply demonstrates why the
Government refused to enter into a cooperation agreement with him,
refused to call him as a trial witness and refused to place itself in the
untenable position of presenting him to a jury as a credible witness."
Letter dated October 8, 1998 from SAUSA Cohn to Judge McKenna at 4 (Ex. 1
to brief for defendant Camacho) (emphasis added).*fn5
A fact finder required to assess the credibility of a witness has
certain sources of assistance, including the witness's demeanor, the
plausibility or implausibility of the witness's statements, and the
presence (or absence) of independent corroborating evidence. In the case
at bar, there was nothing in Melendez's demeanor that either proclaimed
him to be a be truth teller or branded him as a liar. Perhaps that is not
surprising; he is experienced in the ways of the witness stand. But other
factors militate in favor of the credibility of Melendez's testimony.
First, the government's scenario is inherently plausible. The
attitudes, predilections, and desires of Cherry, Thomas, Camacho and
Rodriguez converge in a way that makes perfect sense of the government's
theory of the case. Cherry disliked law enforcement and prosecutors and
would welcome an opportunity to confound them, if he could do so without
cost to himself. Thomas
proclaimed his experience in giving inmates quasi-legal advice, and had
developed a modus operandi in providing inmates seeking new trials with
affidavits or testimony whose substance closely resembles that of the
declarations at issue in this case. Camacho and Rodriguez had an obvious
desire to obtain a new trial.
Second, the government's scenario is supported by the dates and
locations of the incarcerations of Cherry, Thomas, Camacho and
Rodriguez, as testified to by Owen and documented by the Bureau's
records. I will set forth the most pertinent data.
Camacho and Cherry were housed together at the MCC between January 27,
1997 and April 22, 1997. They were then together at Otisville between
July 9, 1997 and July 29, 1997. These overlaps would allow Camacho and
Cherry to discuss and agree upon Cherry's initial approach to Ms.
London, which occurred in the fall of 1997.*fn6 This is so, whether or
not they were housed in the same unit. Inmates at Otisville from
different housing units were allowed to mingle in the yard, a large
compound, during the evenings, and could also come together in the law
library. Owen, Tr. 205-06.
Camacho, Rodriguez, Cherry and Thomas were all housed at Otisville
between April 3, 1998 and June 9, 1998. These overlaps would allow some
or all of the four to discuss and agree upon Cherry's second approach to
Ms. London, which occurred in the fall of 1998.
The Court's decision refusing to compel the government to grant
immunity to Cherry (the condition precedent to the testimony Cherry
dangled before Ms. London) was dated December 1,
1999. Counsel for Camacho and Rodriguez undoubtedly informed their
clients of that ruling. Camacho and Thomas were lodged in the same
housing unit at Otisville between July 6, 2000 and July 18, 2000. That
overlap would allow Camacho to tell Thomas about defendants' failure to
place Cherry's exculpatory testimony before the Court directly, through
the medium of a grant of immunity, and also allow Thomas to suggest to
Camacho that (consistent with Thomas's modus operandi) the same
declarations could be presented to the Court indirectly, through the
medium of an affidavit and subsequent testimony by Thomas stating that
Cherry had made those statements to him. Strikingly, Thomas's affidavit
was dated July 14, 2000, midway through the period of time that Camacho
and Thomas were occupying the same housing unit at Otisville.
The close correlations between these overlapping incarcerations of the
individuals involved and significant external events in the case
considerably strengthen the likelihood of the government's scenario, and
with it the credibility of Melendez's testimony.
Third, the record contains direct corroboration of Melendez's
testimony. To begin with, Melendez recounted to the government what
Cherry purportedly told him about Cherry's contacts with Joyce London. I
quoted Melendez's testimony on that point supra. The question arises: how
did Melendez know that Cherry had spoken with Ms. London if Cherry had
not told him? To be sure, I described Cherry's contacts with Ms. London
in three opinions: the December 1, 1999 opinion, reported only in
Westlaw, rejecting defendants's motion to immunize Cherry; Camacho I,
163 F.Supp. at 309, decided on October 1, 2001, directing that an
evidentiary hearing be held on defendants' motion for a new trial; and
Camacho II, 188 F.Supp.2d at 450-51, decided on March 13, 2002,
granting the new trial motion. But Melendez testified that he had never
read any of the Court's opinions in the case. Tr. 91.
That testimony is significant, because as noted supra the defendants'
theory of the case assumes that Melendez read, marked, learned, and
inwardly digested the Court's opinion in Camacho II, which inspired him
to fabricate the statements by Cherry that Melendez recounted to the
Defendants offer no evidence in support of that theory. It is
speculation, contrary to the only evidence in the record, and inherently
implausible, given the library facilities that existed at the MCC at the
time. Owen testified, and I accept, that no prison (including MCC) allows
inmates unfettered access to the Internet, Tr. 217, so an opinion
reported only in Westlaw would not have been available to Melendez. The
law library at the MCC, which still collects those old-fashioned
artifacts called "books," keeps the West federal reports current. Those
reports up to 1996 are also kept on a CD-ROM, which the MCC staff used
for awhile in an effort to avoid damage to the bound volumes, but "we
didn't continue to upgrade or update that system, because we just found
it wasn't cost efficient to do so." Owen, Tr. 218. All inmates have
access to the library, in one way or another; but inmates confined in a
special housing unit, as Melendez was at the pertinent time, Tr. 90, in
lockdown 23 hours a day, would have to use a contained "satellite"
library in the unit and request that particular volumes be brought to
them. Owen, Tr. 222. In addition, defense attorneys can send hard copies
of opinions to their incarcerated clients.
What all this comes down to is that while Melendez was in the MCC he
could have read the opinion in Camacho II, there is no evidence that he
did so, his access to the law library was limited, he was busily pursuing
his own agenda in Judge McKenna's case, and he denied having read any of
the opinions in this case. I am not persuaded by defendants' speculation
to the contrary.
Accordingly, I accept Melendez's testimony that he has never read any
of my opinions in this
case. That finding leads inescapably to the conclusion that Melendez knew
about Cherry's approaches to Ms. London because Cherry told him about
In a similar vein, Melendez recounted to the government what Cherry had
said to him about Cherry's dissatisfaction with the attorney then
representing him in connection with Cherry's own recent discussions with
the prosecutors, and gave his reasons. Tr. 49-50. It is crystal clear
that the attorney in question was Maurice Sercarz, Esq., who Judge
Stein*fn7 eventually replaced as Cherry's attorney. The relevant facts
and circumstances are set out in my opinion dated found in 2004 WL
235257, at *6-*7 (S.D.N.Y. Feb. 6, 2004). The government says without
contradiction that this was the first publicly available description of
these facts and circumstances, so that, again, Melendez could have known
of them in 2002 only because Cherry told him.
Counsel for defendants cast a suspicious eye upon Melendez's two sets
of handwritten notes describing what Cherry told him. Melendez eventually
acknowledged in his testimony that he did not write up the first set of
notes until after his first discussion with the prosecutors. He gave
those first notes to the prosecutors at his second and last meeting with
them. Defendants argue that the notes cannot be credited because Melendez
simply wrote down what he had learned the government wanted to hear.
However, the record makes it clear that during his first meeting with
prosecutors on July 22, 2002, Melendez gave an oral description of what
Cherry had said to him which was the same in substance as that contained
in the notes Melendez gave to the prosecutors during the second meeting
on August 16, 2002. We know this because AUSA McCarthy set forth the
substance of Cherry's statements to Melendez in an affidavit filed with
the Second Circuit and dated July 26, 2002. In preparing that affidavit,
AUSA McCarthy could have been relying only upon what
Melendez told her on July 22; she did not receive Melendez's first set of
notes until August 16.
To sum up this aspect of the case: while Melendez had an obvious motive
to lie to the government about Cherry's statements to him at the MCC in
2002, and his reputation for credibility was deplorable, there is
significant evidence in the record which supports and corroborates
Melendez's testimony about what Cherry said to him.
What effect does Melendez's testimony, if I accept it, have upon the
entitlement of the defendants to a new trial? I begin that analysis with
a consideration of the relevant burden of proof.
The defendants are the proponents of Cherry's purported declarations to
Thomas. Therefore they bear the burden of demonstrating the admissibility
of the declarations. This general principle applies to all questions of
admissibility that arise under the Federal Rules of Evidence. The Supreme
Court made that clear in Bourjaily v. United States, 483 U.S. 171
(1987), which dealt with Rule 104(a). That rule provides: "Preliminary
questions concerning . . . the admissibility of evidence shall be
determined by the court." The Court observed that while preliminary
questions of fact determinative of admissibility "must be resolved by the
[trial] court," the Federal Rules of Evidence "nowhere define define the
standard of proof the court must observe in resolving these questions."
483 U.S. at 175. The Court then said:
We are therefore guided by our prior decisions
regarding admissibility determinations that hinge on
preliminary factual questions. We have traditionally
required that these matters be established by a
preponderance of proof. Evidence is placed before
the jury when it satisfies the technical requirements
of the evidentiary Rules, which embody certain legal
and policy determinations. The inquiry made by a
court is not whether the proponent of the evidence
wins or loses the case on the merits, but whether the
evidentiary Rules have been satisfied.
Id. (emphasis added).
In the case at bar, Rule 804(b)(3) is the evidentiary rule whose
"technical requirements" must be "satisfied" and defendants as proponents
of the evidence bear the burden of doing so, as the Second Circuit has
made plain in cases the rule governs. See, e.g., United States v. Doyle,
130 F.3d 523, 543-544 (2d Cir. 1997) ("The burden is on the accused to
justify admission of the statements by demonstrating that the statements
are sufficiently corroborated."); United States v. Salvador, 820 F.2d 558,
561 (2d Cir. 1987) ("[T]he burden is put upon the accused to justify
admission of the exculpatory statement by showing `corroborating
circumstances' that indicate `the trustworthiness' of the
The record having been reopened and Melendez's testimony received, it
becomes entirely clear that the defendants, as proponents of the
admissibility of Cherry's asserted declarations to Thomas, can carry
their burden of proof as to admissibility of those declarations only if I
conclude that I must reject the Melendez testimony and accompanying
handwritten notes as entirely as unworthy of belief. That is so for the
The key declarations by Cherry to Thomas that defendants would offer
for admission at a new trial were purportedly made during the period in
1998 when Camacho, Cherry and Thomas were all housed at Otisville. Those
declarations are summarized in Camacho II, 188 F.Supp.2d at 441:
According to Thomas, one day when Thomas was working
in the library with Cherry, Camacho walked in. Thomas
Camacho looked in their direction and did not greet
them, and Thomas assumed that Camacho didn't recognize
him. Thomas remarked to Cherry that he knew Camacho.
Cherry responded that Camacho was his co-defendant and
was there for something that Cherry did. When Thomas
asked Cherry what he meant, Cherry said `bodies.'"
Cherry also mentioned that he had told ana attorney
that Camacho and another person were innocent of the
charges against them.
(emphasis added). Given the totality of the circumstances, these asserted
declarations can only be referring to the Ocasio/Garcia murders. Cherry
and Camacho (together with Rodriguez) were co-defendants in the C&C
case, and the charges against Camacho and Rodriguez, upon which they were
convicted, centered upon the Ocasio/Garcia murders.
As the proponents of these declarations by Cherry to Thomas at a new
trial, in order to satisfy the requirements of Rule 804(b)(3) defendants
would have to establish by a preponderance of proof each of these
elements: (1) Cherry actually made these statements to Thomas; (2) the
statements should be regarded as against Cherry's penal interest; and (3)
"corroborating circumstances clearly indicate the trustworthiness of the
statement[s]." In Camacho I I concluded that defendants had satisfied
these requirements, but the record has now been expanded to include the
testimony of Melendez and his handwritten notes, and the effect of that
evidence, if I do not reject it, must be assessed.
As for the first element: Melendez did not testify that Cherry told him
he had never made the declarations in question to Thomas. What Melendez
testified was that Cherry "actually said that Thomas had filed some sort
of affidavit and Camachito would get a new trial. Cherry had told Thomas
that he had been the shooter and that Camachito was innocent, something
to that effect . . ." Tr. 50.
However, the circumstances of that statement by Cherry to Thomas, as
described by Cherry to Melendez, taken together with Cherry's other
statements to Melendez quoted supra, cast grave doubt upon the second
prerequisite of the admissibility of Cherry's declarations to Thomas as
described by Thomas: that they be against Cherry's penal interest. The
picture that emerges from Melendez's testimony about what Cherry told him
at the MCC in 2002 is one of Cherry stating or intimating that he was the
Ocasio/Garcia murderer not as an individual making a credible statement
against his own penal interest, but rather as playing a leading role in a
fictitious drama designed to free Camacho and Rodriguez and dismay the
government (which, given Cherry's world view, would constitute a
gratifying killing of two birds with one stone).
Moreover, if Melendez's testimony is accepted by the Court, the
totality of circumstances revealed by the record makes it impossible for
the defendants to bear their burden of proving, either by the
preponderance standard articulated by the Supreme Court in Bourjaily or
the arguably more stringent standard the Second Circuit suggested in
Salvador, the existence of "corroborating circumstances" that "clearly
indicate the trustworthiness" of Cherry's declarations to Thomas as
testified to by Thomas. Unless Melendez's testimony is rejected as
unworthy of belief, the indications in the expanded record point to the
untrustworthiness of those declarations, rather than to their
Having considered the record carefully, I conclude that I am not able
to dismiss Melendez's testimony as unworthy of belief. I have reviewed
the several circumstances which support or corroborate Melendez's account
of what Cherry said to him. The combined effect of those circumstances
leads me to the conclusion that Melendez testified truthfully.
It follows that, for the reasons stated, Thomas could not testify at a
new trial about Cherry's
purported declarations to him because those declarations are not
admissible under Rule 804(b)(3). This is fatal to the defendants' motion
for a new trial, because it depended entirely upon the admissibility of
The government's motion for reconsideration is granted. The Court's
prior order granting defendants a new trial is vacated. Their motion for a
new trial is denied.
It is SO ORDERED.