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February 2, 2005.


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


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 decision.


  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 Page 2 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 Page 3 hearsay rule if the declarant is unavailable as a witness:

  . . . . . . . . . .

(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." Page 4 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 Page 5 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 Page 6 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 regarding, Page 7 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: Page 8
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 ...

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