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United States v. Black

United States District Court, E.D. New York

November 5, 2014

UNITED STATES OF AMERICA,
v.
ZACHARY BLACK, Defendant.

MEMORANDUM AND ORDER

DORA L. IRIZARRY, District Judge.

This opinion is written for the benefit of the parties and familiarity with the underlying facts and issues is presumed. Briefly, defendant Zachary Black is charged with conspiracy to distribute and possess with intent to distribute marijuana between June 1, 2011 and July 2, 2013, conspiracy to commit money laundering between June 1, 2013 and July 2, 2013, conspiracy to distribute and possess with intent to distribute methylone between April 19, 2013 and April 29, 2013, and attempted possession of methylone with intent to distribute it on or about April 29, 2013.

The government now moves to: (1) preclude the defendant from introducing self-serving exculpatory statements to law enforcement officers; (2) introduce evidence of the defendant's prior attempt to purchase methylone as either direct evidence of the methylone trafficking charges or, in the alternative, under Rule 404(b) as proof of the defendant's knowledge and intent; and (3) introduce evidence of the defendant's failure to report significant sums of money in his tax filings as either direct evidence of the money laundering conspiracy or, in the alternative, under Rule 404(b). For the reasons set forth below, the government's motion is granted in its entirety.

DISCUSSION

I. Preclusion of Defendant's Self-Serving, Exculpatory, out-of-Court Statements

The government seeks to preclude the defendant from introducing, through cross-examination or otherwise, his "self-serving exculpatory statements to law enforcement officers, " during a traffic stop in Oregon. ( See Motion in Limine by USA ("Govt. Mot."), Docket Entry 129, at 1.) The government argues it may introduce the defendant's inculpatory statements to these law enforcement officers because they are not hearsay when introduced by the government. ( Id. at 5-6.) The government contends that defendant's self-serving, exculpatory statements are hearsay when offered by the defendant and, since there is no hearsay exception under which the defendant can introduce them at trial, he should be precluded from introducing these statements through cross-examination or as substantive evidence. ( Id. at 5-6.) In addition, the government contends the rule of completeness is inapplicable here because the inadmissible, exculpatory statements are not necessary to explain the admissible, inculpatory statements. ( Id. at 6.)

In opposition, defendant simply contends that preclusion of the exculpatory statements violates his due process and Confrontation Clause rights. ( See Defendant's Reply to Government's Motion in Limine ("Def. Opp."), Docket Entry No. 132, at 2.)

Hearsay is an out-of-court statement "offer[ed] in evidence to prove the truth of the matter asserted in the statement." Fed.R.Evid. 801(c). A party's own statement, if offered against him, is not hearsay. Fed.R.Evid. 801(d)(2)(A). Thus, "[s]tatements made by the defendant may be introduced by the government in a criminal trial to prove the truth of the facts stated in them because they are admissions of an adverse party." United States v. Russo, 302 F.3d 37, 43 (2d. Cir. 2002). However, "[w]hen the defendant seeks to introduce his own prior statement for the truth of the matter asserted, it is hearsay, and it is not admissible." United States v. Marin, 669 F.2d 73, 84 (2d. Cir. 1982); see also United States v. Vrancea, 2013 WL 549099, at *4 (E.D.N.Y. Jan. 4, 2013) ("Under this rubric, self-serving and exculpatory statements are inadmissible hearsay and may not be introduced by the defendant at trial.").

The "rule of completeness, " which is reflected in Federal Rule of Evidence 106, "permits a defendant to introduce the remainder of a statement not otherwise admissible if it is 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. Gonzalez, 399 Fed.Appx. 641, 645 (2d Cir. 2010) (citing United States v. Castro, 813 F.2d 571, 576 (2d Cir. 1987)). This is true, "even though a statement may be hearsay." United States v. Coplan, 703 F.3d 46, 85 (2d Cir. 2012); United States v. Kopp, 562 F.3d 141, 144 (2d Cir. 2009). The rule of completeness "does not, however, require the admission of portions of a statement that are neither explanatory of nor relevant to the admitted passages." Kopp, 562 F.3d at 144.

In the instant case, the purportedly exculpatory statements the defendant made to law enforcement agents in the course of his arrest in Oregon would be hearsay if introduced by the defendant, and no exception exists for the defendant to admit such statements. With regard to the rule of completeness, the portions of the defendant's statements that the government expects to admit do not trigger any of these concerns.[1] The government intends to introduce, inter alia, the defendant's alleged statement to law enforcement agents that half of the money seized during his arrest was from marijuana production. (Govt. Mot. at 4.) Whether the defendant obtained some of the money from Las Vegas casinos, friends, and financial accounts, as he told the law enforcement officers, does not further explain or clarify his admission that half the money came from marijuana transactions. ( Id. at 4.) The rule of completeness does not "require introduction of portions of a statement that are neither explanatory of nor relevant to the admitted passages." United States v. Marin, 669 F.2d 73, 84 (2d Cir. 1982). Consequently, the defendant's self-serving, exculpatory statements are inadmissible hearsay, and he cannot use this rule of completeness as "a mechanism to bypass hearsay rules for any self-serving testimony." Gonzalez, 399 Fed.Appx. at 645.

Lastly, the defendant contends that preclusion of his self-serving statements would violate the Confrontation Clause. ( See Def. Opp. at 2-3.) The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." U.S. CONST. amend. VI. "It is a clearly established principle of Supreme Court jurisprudence that the Confrontation Clause requires that a criminal defendant be afforded a meaningful opportunity to cross-examine witnesses against him." Watson v. Greene, 640 F.3d 501 (2d Cir. 2011) (citation omitted) "[T]he right to confront and to cross-examine, " however, "is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295 (1973); accord Watson, 640 F.3d at 510. Thus, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

From this Court's review of Second Circuit case law, it does not appear that the Second Circuit has considered whether limiting a defendant's elicitation of his own exculpatory, out-of-court statements implicates the defendant's rights under the Confrontation Clause. In the absence of guidance from the Second Circuit, this Court looked to sister circuits that have considered this question. It appears that every court to address this issue has held that a court may preclude a defendant's elicitation of his own otherwise inadmissible statements without violating the Sixth Amendment. See e.g., United States v. Ford, 761 F.3d 641, 652 (6th Cir. 2013) ("Precluding a defendant from eliciting inadmissible hearsay statements [including his own statements] does not violate the Confrontation Clause.") (citation omitted); United States v. Larsen, 175 Fed.Appx. 236, 241-42 (10th Cir. 2006) ("In this case, we decline to permit [the defendant] to use the Confrontation Clause as a means to effectuate an end run around the adversarial process by admitting his otherwise inadmissible hearsay testimony without subjecting himself to cross-examination.") (internal quotation marks and citations omitted); United States v. Ortega, 203 F.3d 675, 682-83 (9th Cir. 2000) (holding that defendant "should not be allowed to use the Confrontation Clause as a means of admitting hearsay testimony through the back door' without subjecting himself to cross-examination.") (citation omitted).

Similarly, this Court finds that the defendant may not rely on the Confrontation Clause as a basis to introduce his otherwise inadmissible statements. His bald conclusory claims of deprivation of due process are similarly unavailing. Accordingly, the defendant is precluded from introducing the self-serving, exculpatory statements he ...


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