The opinion of the court was delivered by: Scullin, Chief Judge
MEMORANDUM-DECISION AND ORDER
Defendant is charged with eight counts of knowingly and intentionally possessing cocaine with intent to distribute on various dates in February of 2001, in violation of Section 841(a)(1) of Title 21 of the United States Code. Defendant is also charged with eight counts of knowingly and intentionally using a communication facility, a telephone, in committing, causing and facilitating the violations of Section 841(a)(1) of Title 21 of the United States Code, in violation of Section 843(b) of Title 21 of the United States Code.
Defendant was previously charged with and acquitted of conspiracy to distribute cocaine in violation of Section 846 of Title 21 of the United States Code as part of the "Brito" narcotics organization. The Government, under Rule 801(d)(2) of the Federal Rules of Evidence, now seeks to admit statements in this prosecution regarding the possession and sale of cocaine that Defendant's then-attorney, Robert Moran, made during his opening and closing remarks in the previous conspiracy trial.
Defendant was previously indicted as one of eleven defendants in a twenty-count indictment as part of the "Brito" narcotics organization. He was only charged with one count in that indictment -- conspiracy to distribute cocaine. At the conspiracy trial, Mr. Moran, who represented Defendant, stated in his opening remarks:
"I believe that we can agree that the Britos had a conspiracy amongst themselves to sell cocaine, but his (Santiago) relationship with the Britos was not part of the conspiracy, it was part of a buyer type relationship. He was -- Mr. Broton said it, he was a customer. Mr. Broton said he was a customer of the Britos, and he was. The last thirty days, the thirty days that were part of the wiretap, were the worst part of Mr. Santiago's life. The thirty-eight eight balls that Mr. Broton says he purchased, he probably did. At least the numbers we have are pretty close to that, 35. . . . He's (Santiago) not going to tell you he didn't sell some of it at the end to fuel his addiction because he did, but he just wasn't part of this conspiracy."
See Government's Motion at 1-2 (quoting Trial Transcript annexed as Exhibit "A") (emphasis added).
In his closing remarks, Mr. Moran stated that "'[t]he last month of -- when the wiretap was on was -- a little over 100 grams of cocaine was given to Mr. Santiago, that he admits." See id. at 2 (quoting Trial Transcript annexed as Exhibit "A") (emphasis added). Following a bench trial, the Court acquitted Defendant of the conspiracy count and stated that "'the evidence establishes conclusively that defendant was a longstanding customer of the Brito conspiracy and that he resold some portion of the cocaine that he purchased on an unknown number of occasions.'" See id. (quoting Memorandum-Decision and Order dated May 29, 2003 at p. 10 copy annexed hereto as Exhibit "B").
Subsequently, the Government re-indicted and charged Defendant with substantive counts of possession with intent to distribute and distribution of cocaine in violation of Section 841(a)(1) of Title 21 of the United States Code and using a telephone to facilitate the drug transactions in violation of Section 843(b) of Title 21 of the United States Code. According to the Government, the substantive counts in this Indictment relate to the same transactions that were the basis for the conspiracy charge in the previous trial. The Government now seeks to admit the above-cited statements regarding Defendant's possession and sale of cocaine that his counsel made at the conspiracy trial in the upcoming trial under Rule 801(d)(2) of the Federal Rules of Evidence.
The Court heard oral arguments in support of, and in opposition to, the admission of these statements on February 10, 2006. At the conclusion of those arguments, the Court reserved decision and granted Defendant an in camera hearing to present an explanation for the inconsistency between the statements of Defendant's counsel at the conspiracy trial and Defendant's plea of not guilty to the counts of the Indictment in this case.
There are two legal issues that the Court must consider in deciding whether the Government may introduce the statements that Mr. Moran's to the Court in the conspiracy trial against Defendant in the trial in this case: (1) whether these statements are admissible as non-hearsay under Rule 801(d)(2) and (2) if they are, whether these statements meet the standard for ...