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U.S. v. SANEAUX

April 18, 2005.

UNITED STATES OF AMERICA,
v.
SAMUEL SANEAUX and RAFAEL ESTRELLA, Defendants.



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

MEMORANDUM OPINION AND ORDER

Presently before the Court are the in limine motions of defendants Samuel Saneaux and Rafael Estrella to preclude certain evidence expected to be offered by the government at trial. Defendants argue that transcripts of recordings of an unindicted coconspirator who is unavailable to testify constitute hearsay evidence and do not fall within the hearsay exemption for statements of coconspirators contained in Rule 801(d)(2)(E) of the Federal Rules of Evidence. In an opinion dated April 4, 2005,*fn1 I required the parties to address what was principally a procedural question: namely whether this Court should adjudicate defendants' motion prior to trial or whether it was preferable to follow what I called the "Geaney protocol" and admit the contested statements subject to connection at trial. See United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied sub nom. Lynch v. United States, 397 U.S. 1028 (1970). Hearings were held on this question on Wednesday, April 6, 2005. I. Background

Though I assume familiarity with Saneaux I, I will briefly revisit the relevant facts in order to provide context for this Opinion. The Second Superceding Indictment in the above-captioned case charges inter alia that the defendants, in concert with other unindicted conspirators, conspired to solicit and accept bribes in order to secure individuals an apartment in Andrews Plaza, a federally subsidized housing project located in the Bronx. There was, not surprisingly, a significant waiting list for subsidized apartments in Andrews Plaza. According to the indictment, the bribes were paid to defendants in order to advance prospective tenants to the front of the list, enabling them to bypass the wait. Specifically, defendant Saneaux, the former "site manager" of Andrews Plaza, is alleged to have employed the services of Andrews Plaza tenants, including defendant Estrella, to act as the intermediaries between the prospective tenants and Saneaux himself. Bribes were allegedly paid to the intermediaries*fn2 who passed the money to Saneaux, who allegedly used his position as site manager to manipulate the waiting list to provide the bribe-payers with apartments in Andrews Plaza.

  Another intermediary between prospective tenants and Saneaux is alleged to be an individual by the name of Robert Grullon.*fn3 Between August 2001 and December 2002, federal investigators recorded a series of conversations between Grullon, "Christian," a confidential informant ("CI"), and "Rosa Rodriguez," an undercover federal agent. The recordings depict Christian and Rodriguez engaging in a series of negotiations with Grullon to secure themselves an apartment in Andrews Plaza, through the payment of a bribe. It is the admission of these transcripts which forms the grist for defendants' motions. Defendants claim that Grullon's statements do not qualify as statements of coconspirators under Rule 801(d)(2)(E) because they were not made in furtherance of a conspiracy. Because he later acknowledged that he never intended to secure the CI and Rodriguez an apartment, and likely would not have been able to secure them an apartment, defendants contend that Grullon's recorded statements were not made to advance the goals of the conspiracy alleged in the indictment, or indeed any conspiracy, and should be precluded. According to defendants, Grullon made these statements as part of his own independent and solitary attempt to steal the money offered by the CI and Rodriguez and intended to serve as a bribe.

  II. Discussion

  A. Federal Rule of Evidence 801(d)(2)(E)

  The government seeks to admit these transcripts under Rule 801(d)(2)(E) of the Federal Rules of Evidence, which provides in pertinent part:
(d) Statements which are not hearsay. A statement is not hearsay if —
. . .
(2) [t]he statement is offered against a party and is . . . (E) a statement made by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish . . . the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
"Before*fn4 admitting a co-conspirator's statement over an objection that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied that the statement actually falls within the definition of the Rule." Bourjaily v. United States, 483 U.S. 171, 175 (1987) (emphasis added). In order to admit a statement under 801(d)(2)(E), "a court must find (1) that there was a conspiracy, (2) that its members included the declarant and the party against whom the statement is offered, and (3) that the statement was made both (a) during the course of and (b) in furtherance of the conspiracy." United States v. Tracy, 12 F.3d 1186, 1196 (2d Cir. 1993) (emphasis added). These prerequisites to admission of an 801(d)(2)(E) statement are "[p]reliminary questions concerning . . . the admissibility of evidence" as referenced in Fed.R.Evid. 104(a), and must be proven by a preponderance of the evidence. Bourjaily, 483 U.S. at 176; United States v. Daly, 842 F.2d 1380, 1386 (2d Cir. 1988) cert. denied, 488 U.S. 821 (1988). The court may consider the hearsay statements themselves, but "these statements are presumptively unreliable, and, for such statements to be admissible, there must be some independent corroboration of the defendant's participation in the conspiracy." United States v. Diaz, 176 F.3d 52, 83 (2d Cir. 1999) (citing United States v. Tellier, 83 F.3d 578, 580 (2d Cir. 1996)).

  B. Saneaux I and the Geaney Protocol

  While the foregoing discussion addresses the substance of the Court's preliminary obligations concerning the admission of an 801(d)(2)(E) statement, it does not concern the procedural facets of such adjudication. To wit, when, or at what point in the evolution of a case should the court adjudicate defendants' motion to preclude the government's evidence? This was the subject of the Saneaux I Opinion and the hearing it compelled. As I observed in Saneaux I, in this circuit, "trial judges routinely admit? coconspirator statements into evidence in the presence of the jury on a conditional basis, subject to the later submission of the necessary evidence." Saneaux I, 2005 WL 756857, at *2. I refer to this approach as the Geaney protocol, invoking Judge Friendly's opinion in United States v. Geaney, which established this procedure. 417 F.2d at 1120. However, I also noted that other circuits prefer to "first hold a hearing outside the presence of the jury to determine whether the party offering the statements has established the existence of a conspiracy by a preponderance of the evidence." Saneaux I, 2005 WL 756857, at *3 (citing United States v. James, 590 F.2d 575 (5th Cir. 1979)). This is commonly referred to as a `James hearing' invoking the Fifth Circuit's 1979 decision. In Saneaux I, I required the parties to discuss what procedure was most appropriate for adjudication of defendants' motion in the case at bar.

  During arguments held before the Court on April 6, 2005, neither the government nor the defendants suggested that I hold a James hearing. This did not mean, however, that the parties agreed on the proper adjudicative process. Not surprisingly, the government argued that the best course would be to follow the Geaney protocol and abstain from ruling on the defendants' in limine motions, allowing the recorded statements to be admitted at trial but subject to connection. The defendants, on the other hand, argued that sufficient evidence existed in the parties' submissions to support a ruling to preclude this evidence. Within the four corners of the parties submissions, according to defendants, the evidence demonstrates unequivocally that Grullon's hearsay statements were not made "in furtherance" of a conspiracy. The defendants' arguments have considerable force. I have difficulty in fathoming an interpretation of Grullon's statements which could support the government's position that those statements were made in furtherance of any conspiracy.

  C. Preliminary Requirements for Admission of an 801(d)(2)(E) Statement

  As I describe above, there are three preliminary requirements for a hearsay statement to be admitted pursuant to the coconspirator exemption in Rule 801(d)(2)(E); each of which must be proven by a preponderance of the evidence. First, there must be a conspiracy. Second, both the declarant and the defendants must be part of that conspiracy. And third, the statements must be made both during the course of and in furtherance of that conspiracy. The careful reader will surely notice that this final requirement is really two discreet requirements, each of which warrants its own independent analysis.

  As a preliminary matter, it is evident that, at least for the limited purposes of this Rule 104(a) disposition, it is only the existence vel non of the third prong which is in dispute. While the defendants certainly do not concede that there was a conspiracy of which both declarant and defendants were members, they recognize, appropriately I think, that the government possesses certain evidence which tends to establish these first two preliminary requirements.*fn5 I address the third requirement — and more precisely, the second prong of the third requirement — because of the present lack of evidence supporting the government's contention that Grullon's recorded statements were made in furtherance of a conspiracy. 1. Statements Made "During the Course of" A Conspiracy

  The third preliminary requirement provides first that the hearsay statement must be made during the course of a conspiracy. This is best described as a temporal requirement. That is to say the statements cannot be made after the cessation of the conspiracy or before its formation. See United States v. Grossman, 843 F.2d 78, 83 (2d Cir. 1988); United States v. DeVaugn, 579 F.2d 225, 227 (2d Cir. 1978); see also 29A AM. JUR. 2d Evidence § 837 (2004) ("[T]here must be a showing that the statements or acts of the coconspirator were made while the conspiracy was active, that is after it was formed and before it ended.") This requirement "protect[s] against the use of unreliable evidence, since the circumstances in which ...


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