The opinion of the court was delivered by: Garaufis, United States District Judge.
This Memorandum and Order (M&O) addresses a number of recent requests and motions raised by the United States ("Government") and defendants Vincent Basciano ("Basciano") and Patrick DeFilippo ("DeFilippo") (together "Defendants"). Familiarity with the facts of this case and all prior rulings is assumed.
I. Admissibility of David Nunez's 1985 Lineup Identification of Basciano
The Government has charged that on or around November 14, 1985, Basciano attempted to murder David Nunez. On November 15, 1985, at approximately 6:15 p.m., Basciano was placed in a lineup and was identified by Nunez. (Basciano Nunez Ltr., dated Apr. 13, 2006, at 1; see also 1987 Wade Tr. at 33 (testimony of Police Officer Keith Garley).) Nunez has since given contradictory accounts of his recollection of his assailant, including (1) in December 1985, when he spoke with Basciano's then-attorneys Elias Martinez and Gary Friedman, and stated that all he remembered was a "man with a moustache" (M&O, dated Jan. 27, 2006, at 6); (2) in May 1986 he informed FBI Special Agents Howard Mette and Randolph Biddle that he made a mistake about the line-up because the person he identified (Basciano) did not have a moustache, and the person who shot him did (id.); and (3) he recently reportedly spoke with an investigator working for Basciano, and said that detectives came to his home on November 14, 1985 and showed him photographs of Basciano, which assisted him in identifying Basciano at the line-up. (Id. at 6-7.) In the M&O, dated January 27, 2006, in which this court denied Basciano's motion to exclude Nunez's identification of Basciano in the line up, this court rejected Nunez's last account, finding that this account is impossible to reconcile with the fact that hospital records show that he could not have gone home after being discharged and before the line up. (Id.)
Basciano now moves in limine to exclude the testimony of Officer Keith Garley on Nunez's identification of Basicano in the 1985 line-up as a violation of Basciano's Sixth Amendment Confrontation Clause rights as articulated in Crawford v. Washington, 541 U.S. 36 (2004).
The Confrontation Clause of the Sixth Amendment provides that "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. Const. amend. VI. The Supreme Court in Crawford v. Washington, 541 U.S. 36 (2005) "announced a per se bar on the admission of a class of out-of-court statements, denominated 'testimonial,' against an accused who had no prior opportunity to cross-examine the declarant." United States v. Stewart, 433 F.3d 273, 290 (2d Cir. 2006).
First, it is clear that the testimony sought, i.e. a police officer's account of Nunez's identification of Basciano in the line-up, is testimonial. "The types of statements cited by the Court as testimonial share certain characteristics; all involve a declarant's knowing responses to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her responses might be used in future judicial proceedings." United States v. Stewart, 433 F.3d 273, 290 (quoting United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004)). Generally, statements made to a law enforcement agent that were not subject to cross-examination are testimonial where, as here, they are offered for their truth. Id.
The Government in opposing this motion explains that it is entitled to admit Officer Garley's testimony on the ground that Basciano forfeited his Confrontation Clause rights by tampering with Nunez after the line-up. The Supreme Court in Crawford made clear that "the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability." Crawford, 124 S.Ct. at 1368. The 'rule of forfeiture' has been articulated by the Supreme Court as follows:
The Constitution gives the accused the right to a trial at which he should be confronted with the witness against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts.
Reynolds v. United States, 98 U.S. 145, 158 (1879). "Where a defendant has procured the declarant's unavailability 'by chicanery, . . . by threats, . . . or by actual violence or murder," the defendant is deemed to have 'waived his sixth amendment rights and, a fortiori, his hearsay objection' to the admission of the declarant's statements.'" United States v. Williams, 2006 U.S. App. LEXIS 8188, at *26-*27 (2d Cir. Mar. 22, 2006) (quoting United States v. Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982), cert. denied, 467 U.S. 1204 (1984)). This rule was codified in Fed. R. Evid. 804(b)(6), which provides that evidence of an out-of-court statement by an unavailable declarant is "not excluded by the hearsay rule" when "offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." Fed. R. Evid. 804(b)(6). "[A]n evidentiary hearing in the absence of the jury is necessary before a finding of a waiver may be made." Mastrangelo, 693 F.2d at 273. The Government has the burden to show a waiver by the preponderance of the evidence. Id.
The Government must therefore show (1) that Basciano tampered with Nunez, and that (2) as a result, Nunez is unavailable. On the first prong, the Government in opposition to Basciano's motion presents to this court evidence in the form of testimony by Tommy Lee, Anthony Bottone, and proffers that it would seek to admit other testimony showing that Basciano intimidated Nunez into denying his original identification of Basicano as the attempted murderer. (See Gov't Nunez Ltr., dated Apr. 14, 2006, at 3-6.) Although there are few post-Crawford cases analyzing the sufficiency of evidence necessary to find that defendant forfeited his Confrontation Clause rights, it is fair to conclude from this evidence that the Government has met its burden to show by a preponderance of the evidence that Basciano threatened Nunez in order to prevent him from testifying truthfully. See Francis v. Duncan, No. 03-Civ.-4959, 2004 U.S. Dist. LEXIS 16670, at *52-53 (S.D.N.Y. Aug. 23, 2004) (District court sitting in habeas review of New York state conviction held that Government's obligation to show causal link between misconduct and witness's refusal to testify can be met by circumstantial evidence, and judges may use common sense in drawing inference to determine the reasons for the witness's unavailability.); State v. Hand, 107 Ohio St. 3d 378, 390 (S.Ct. Oh. Jan. 18, 2006) (considering applicability of analogous Ohio waiver rule, judge found that government's production of witnesses who testified that defendant killed declarant in order to eliminate him as possible witness met prosecution's burden).
However, to properly invoke the forfeiture rule exception to Basciano's Confrontation Clause rights, the Government must show that Nunez is unavailable as a result of Basciano's tampering, the second prong of the forfeiture rule. The Government has not yet offered any evidence that Nunez, if called to testify, would not do so. Clearly, if the Government were to call Nunez to the stand, and he refused to testify, e.g. because of fear of retribution, that would satisfy the Government's burden to show that Nunez is unavailable. Similarly, this court could make a determination after an in camera interview of Nunez that he is unavailable. However, until the Government makes the requisite showing that Nunez is unavailable, it has not met its burden under the second prong of the forfeiture rule test and, hence, Officer Garley's testimony ...