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United States v. Persico

October 23, 2006


The opinion of the court was delivered by: Johnson, Senior District Judge


Before the Court is a motion by the government to preclude defendants, Alphonse T. Persico and John J. DeRoss ("Defendants"), from introducing into evidence certain statements made by Vincent "Chicky" DeMartino ("DeMartino"), an alleged co-conspirator of Defendants. For the reasons stated below, the government's application is GRANTED, and Defendants may not offer the DeMartino statements for their truth.*fn1


On March 2, 2006, a grand jury in the Eastern District of New York returned a superseding indictment charging Defendants with one count of murder in aid of racketeering, in connection with the murder of an individual named William Cutolo, Sr. ("Cutolo"), three counts relating to the attempted murder of an individual named Joseph Campanella ("Campanella"), and two counts of witness tampering. During the course of the trial, which commenced on September 25, 2006, Defendants have raised with the Court their intention to try to introduce certain out-of-court statements made by DeMartino. The government has objected and asked the Court to preclude admission of those statements.


I. The DeMartino Statements

The government has taken issue with Defendants attempting to elicit during trial -- predominantly, but not exclusively, through the use of audio recordings -- statements made by DeMartino. Defendants assert that they should be permitted to introduce these statements into evidence because they undermine the government's claim that the attempt by DeMartino and Giovanni Floridia to kill Joseph Campanella ("Campanella") was sanctioned by the Colombo family. According to Defendants, these recorded statements by DeMartino support the view that the attempt on Campanella was definitely not a sanctioned hit, thus tending to exculpate their clients as to the related charges.

No doubt exists, then, that Defendants wish to introduce these out-of-court statements for their truth, which makes those statements hearsay. See Fed. R. Evid. 801(c). Because these statements are hearsay, according to the Federal Rules of Evidence, they can only be admitted if they fall under one of the hearsay exceptions contained in the Rules. See Fed. R. Evid. 802.

The parties have discussed two potentially applicable exceptions. First, the government argues that Defendants may not rely on the co-conspirator exception contained in Rule 801(d)(2)(E). Defendants, though, assert that they are not relying on the co-conspirator exception. Nor could they. The co-conspirator exception is a one-way street down which only the government may travel. This view was confirmed recently by the Second Circuit in United States v. Milstein, 401 F.3d 53 (2005). In that case, the Second Circuit stated that defendants may not rely on the co-conspirator exception to introduce out-of-court statements by co-conspirators offered for the truth. Id. at 73.

Instead, Defendants in this case rely on Rule 806, which allows for impeachment of a declarant whose statement or statements have been admitted at trial under the co-conspirator exception contained in 801(d)(2)(E). According to Rule 806, such a credibility attack can come in the form of either a statement or conduct by the declarant, as long as the proffered impeachment evidence would be admissible against the declarant if that person had testified as a witness at trial.

Defendants have submitted to the Court transcripts for four of the telephone calls involving DeMartino that were captured on tape. The transcripts are for calls 59, 94, 118 and 858. Defendants argue that DeMartino's statements on these calls undermine his credibility in light of his co-conspirator statements that have come in earlier at trial. According to Defendants, these DeMartino statements may be used to impeach him because these statements undermine his already-admitted statement that the Campanella murder attempt was sanctioned.

After reviewing the transcripts Defendants submitted, and after considering the statement by DeMartino that has already come in, the Court does not agree the statements Defendants seek to introduce actually contain impeachment material against DeMartino. Thus, Rule 806 does not provide an avenue for the use or admission of these statements.

In the absence of any exception to the hearsay rules that would permit Defendants to introduce the DeMartino statements, Defendants next rely on Holmes v. South Carolina, 126 S.Ct. 1727 (2006). In that case, in order to protect a defendant's constitutional rights, the Supreme Court invalidated what it deemed to be an arbitrary interpretation of an evidentiary rule by the South Carolina state courts. Id. at 1735.

It is unclear exactly how Defendants in this case believe Holmes provides the way around the hearsay rules that they seek. Certainly, they are not arguing that the hearsay rules are themselves arbitrary -- and therefore unconstitutional -- for the mere fact that in many instances the hearsay rules categorically limit certain proof a ...

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