The opinion of the court was delivered by: Johnson, Senior District Judge
Defendants Richard James and Ronald Mallay stand accused of participating in the "Mallay Enterprise," a criminal enterprise that existed for the purpose of, among others things, committing murder for pecuniary gain. Specifically, Defendants are accused of purchasing life insurance policies, hiring people to murder the insured person, and then recouping the life insurance proceeds for themselves and their co-conspirators. In sum, Defendants are charged with murder, murder-for-hire, solicitation of murder, conspiracy to murder, racketeering, obstruction of justice, mail fraud, and money laundering. Although Defendants are collectively charged with four murders, only the murders of Hardeo Sewnanan and Basdeo Somaispersaud are capital counts.
On May 9, 2007, the government called Derrick Hassan ("the witness") as a witness and introduced audio recordings of a conversation between the witness and Defendant Mallay which took place on August 8, 2001. The government introduced excerpts of the conversation, but not the entire conversation. Defendants have moved to introduce additional excerpts ("the proffered excerpts") of the August 8, 2001, conversation. On May 10, 2007, the Court reviewed the portions that Defendants sought to introduce, heard oral argument on the issue, and ruled that the proffered excerpts could not be introduced. On May 13, 2007, Defendants renewed their motion to introduce the proffered excerpts into evidence and to cross examine the witness on the issue of "backtracking," a Guyanese slang term for illegal alien smuggling. For the reasons stated below, the Court adheres to its previous ruling.
I. Admissibility of Proffered Excerpts
Defendants have proffered a myriad of reasons as to why the proffered excerpts are admissible. In turn, each legal theory of admissibility is considered.
Defendants' first challenge to the Court's ruling as to the admissibility of the proffered excerpts is premised upon the rule of completeness, see Fed. R. Evid. 106; United States v. Mussaleen, 35 F.3d 692, 696 (2d Cir.1994), which is violated "'only where admission of the statement in redacted form distorts its meaning or excludes information substantially exculpatory of the declarant,'" United States v. Yousef, 327 F.3d 56, 154 (2d Cir.2003) (quoting United States v. Benitez, 920 F.2d 1080, 1086-87 (2d Cir.1990)).
Under this principle, an "omitted portion of a statement must be placed in evidence if necessary to explain the admitted portion, to place the admitted portion in context, to avoid misleading the jury, or to ensure fair and impartial understanding of the admitted portion." United States v. Castro, 813 F.2d 571, 575-76 (2d Cir.1987), cert. denied, 484 U.S. 844 (1987); see, e.g., Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172-73 (1988); Phoenix Associates III v. Stone, 60 F.3d 95, 102 (2d Cir.1995). The completeness doctrine does not, however, require the admission of portions of a statement that are neither explanatory of nor relevant to the admitted passages. See United States v. Marin, 669 F.2d 73, 84 (2d Cir.1982).
Defendant Mallay argues that a jury hearing the proffered excerpts would interpret the subject of the conversation to be backtracking rather than murder-for-hire. This Court disagrees. The proffered excerpts do not change the meaning of the excerpts that the government introduced. The conversation about backtracking is not mutually exclusive to the conversation about murder-for-hire, nor do the proffered excerpts exhibit a plan or scheme to engage in alien smuggling. Rather, in the proffered excerpts, Defendant Mallay displays knowledge of the alien smuggling trade as well as interest in current methods of the practice. Nowhere in the proffered excerpts is there evidence of the planning, conspiring, or scheming that would compromise the witness' interpretation of the government's evidence. As a result, the proffered excerpts cast no doubt on the meaning of the admitted portion, do not place the admitted portion in context, and do not avoid misleading the jury.
Further, as discussed below, the witness has testified that he discussed backtracking with Defendant Mallay and has been cross-examined as to whether the portions that the government introduced into evidence were about backtracking rather than murder-for-hire. (Tr. 1985-86). The witness has stated unequivocally that those conversations were not about backtracking. Accordingly, the jury has not been given a distorted view of Defendant Mallay's statements in the absence of the proffered excerpts. See Mussaleen, 35 F.3d at 696 (finding that rule of completeness was not violated where defendant's statement, in conjunction with testimony, allowed the jury to adequately weigh defendant's defense). Therefore, the Court finds that the proffered excerpts are inadmissible under the rule of completeness.
Defendants have alternatively offered the proffered excerpts as independently admissible, a contention that the government disputes on the grounds that the proffered excerpts constitute inadmissible hearsay. Defendants contend that the proffered excerpts are not hearsay because (a) they are statements against penal interest; (b) they are statements "of which the party has manifested an adoption or belief in its truth," Fed. R. Ev. 801(d)(2)(B); and (c) they are admissible under the residual exception under Rule 807. Each of these contentions is meritless.
First, Defendant Mallay's statements cannot be considered statements against penal interest as to either defendant. Rule 804(b)(3) creates an exception to the hearsay rule for statements against penal interest. A hearsay statement can only be introduced as a statement against interest if (a) the declarant is unavailable, (b) the statement is so contrary to the declarant's interest that it is inherently trustworthy, and (c) if offered to exculpate a criminal defendant, there are corroborating circumstances that clearly indicate the trustworthiness of the statement.
Defendant Mallay cannot introduce these statements simply because he is not unavailable for the purposes of this hearsay exception. United States v. Peterson, 100 F.3d 7, 15 (2d Cir.1996) (finding that defendant did not, "by exercising his Fifth Amendment right not to testify, become unavailable within the meaning of Rule 804.").
Nor can Defendant James introduce the statements because the proffered excerpts do not clearly implicate Defendant Mallay in alien smuggling. In the first proffered excerpt, Mallay and Hassan "were discussing a corrupt customs agent that had worked in New York [...] but had been recently transferred to Atlanta." Def.'s Letter dated May 14, 2007, p. 8 ("Def's Letter"). There is no interpretation of this portion of the conversation that would expose Defendant Mallay to criminal liability. In the second proffered excerpt, Defendant Mallay "discusses the importance of getting forged 'papers' [and] how much it would cost to smuggle someone into the United States from Guyana." Def's Letter, p. 9. Under Defendants' own interpretation of these excerpts, Defendant does not inculpate himself in any crime, but rather only discusses the methods and means to commit the crime. At most, Defendant Mallay's statements indicate that he is familiar with backtracking, but at no point in the proffered excerpts does Defendant Mallay actually implicate himself in any conspiracy to commit that crime. Accordingly, the Defendant Mallay's statements are not properly considered statements against penal interest and are inadmissible when proffered by either defendant.
Defendants' contention that the statements are admissible under Rule 801(d)(2)(B) is likewise without merit. Defendants disregard the requirement under Rule 801(d)(2) that these statements be made by a party-opponent. See Fed. R. Evid. 801(d)(2). For this reason alone, the proffered excerpts do not constitute a manifest adoption of another's statement.
Defendants resorts to the residual exception to the hearsay rule, but the Court finds that this basis for introduction of the statements is also incorrect. See Fed. R. Evid. 807. A statement will be admitted under Rule 807 if "(i) it is particularly trustworthy; (ii) it bears on a material fact; (iii) it is the most probative evidence addressing that fact; (iv) its admission is consistent with the rules of evidence and advances the interests of justice; and (v) ...